The 5th Qualityof

Wilderness Character

Cultural ResourcesStructures & Installations

Managing the 5th Quality

Except in certain specific instances, “there shall be no...structure or installation within any [wilderness] area.”

Wilderness Act, Section 4(c)

Quick Poll #1. Choose the best answer: In designated wilderness,

A. Wilderness law ‘trumps’ cultural resources law.

B. Cultural resources law ‘trumps’ wilderness law.

C. Neither is correct.Immateria

l

WildAct v. NHPA

Wilderness Act – specific & substantiveNHPA – general & procedural

Specific & substantive “trumps” general & procedural

∴ Wilderness Act “trumps” NHPA Immateria

l

WildAct v. NHPA

Wilderness Act – specific & substantiveNHPA – general & procedural

Specific & substantive “trumps” general & procedural

∴ Wilderness Act “trumps” NHPA Le

t’s not g

et hung up on th

is!

WildAct v. NHPA

Wilderness Act – specific & substantiveNHPA – general & procedural

Specific & substantive “trumps” general & procedural

∴ Wilderness Act “trumps” NHPA Cultural re

source

s are protecte

d by

the Wild

erness Act

Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation

of historical structures furthers the goals of the Wilderness Act.”

“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”

“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”

OLYM Park Assoc. v. Mainella (W.D. Wash. 2005)

“The Court’s reasoning in Wilderness Watch v. Mainella is persuasive.”

Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation

of historical structures furthers the goals of the Wilderness Act.”

“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”

“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”

High Sierra Hikers v. USFS (E.D. Calif. 2006)Wilderness Watch v. Iwamoto (W.D. Wash. 2012)

Agency claimed “historical use”Courts cite 1st two cases

Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation

of historical structures furthers the goals of the Wilderness Act.”

“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”

“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”

5th Quality v. public purposes

DEFINITION [2(c)] USE [4(b)]

ecologicalgeologicalscientificeducationalscenichistorical

recreationalscenicscientificeducationalconservationhistorical

5th Quality v. public purposes

DEFINITION [2(c)] USE [4(b)]

ecologicalgeologicalscientificeducationalscenichistorical

recreationalscenicscientificeducationalconservationhistorical

5th Quality v. public purposes

DEFINITION [2(c)] USE [4(b)]

“a precise meaning or significance; the act of making clear and distinct”

Wilderness Character

“the employment of something for some purpose; the quality of being suitable or adaptable to an end”

Public Purposes

≠

Managing the 5th Quality

Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act.”

Wilderness Act, Section 4(c)

Managing the 5th Quality

Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirments for the administration of the area for the purpose of this Act.”

Wilderness Act, Section 4(c)

“administration” NOT just regulatory“Activity in the exercise of [the agency’s] duties”

Managing the 5th Quality

Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirments for the administration of the area for the purpose of this Act.”

Wilderness Act, Section 4(c)

“the purpose” is to preserve wilderness character

NOT to facilitate public uses

5th Quality v. public purposes

DEFINITION [2(c)] USE [4(b)]

“a precise meaning or significance; the act of making clear and distinct”

Wilderness Character

“the employment of something for some purpose; the quality of being suitable or adaptable to an end”

Public Purposes

≠

↑We have been

arguing for this

↑We should have been arguing for

this

5th Quality v. public purposes

To what extent do your wilderness area’s contribute to making clear and distinct the area’s precise meaning and significance?

To what extent are those an inextricable part of the area’s wilderness character?

Other Features of Value

Other Features

5th Quality v. public purposes

To what extent do your wilderness area’s contribute to making clear and distinct the area’s precise meaning and significance?

To what extent are those an inextricable part of the area’s wilderness character?

Cultural Resources

Cultural Resources

Earliest Congressional Intent

Earliest Congressional Intent

Sec. 1(c)(2): For NPS, “’Wilderness’ shall include those units...except those portions set aside...for roads and accommodations for visitors.”

Sec. 2(b): “The System shall include...Mesa Verde National Park.”

Sec. 3(b): “...there shall be no road...nor any structure or installation in excess of the minimum required for the administration....”

Earliest Congressional Intent

3 Classes of Stuff

1) Wilderness Character would be improved without it.

REMOVE

3 Classes of Stuff

1) Wilderness Character would be improved without it.

REMOVE2) Mixed effects to Wilderness Character if it

disappeared DOCUMENT, AT LEAST3) Wilderness Character would be

irrevocably damaged if it were lost. PRESERVE

3 Classes of Stuff1)Remove both2)Remove one,

“molder” one3)Molder both4)Remove one,

preserve one

5)Molder one, preserve one

6)Preserve both7)Something else

Insert poll in place of this slide

“A wilderness...(4) may also contain ... features of ... historical value.”

Wilderness Act, Section 2(c)

Preserving the 5th Quality