Peter A. Appel Alex W. Smith Professor University of Georgia School of Law Presented via Webinar Sponsored by the Carhart Center November 15, 2 012

 In general, courts defer heavily to discretionary decisions—66- 75% win rate  Wilderness win rates vary significantly from that For challenges by environmentalists, about 48% win rate  Courts look at terms of statutes (plain meaning, maybe legislative history?) and regulations to hold agencies accountable to written rules  General standard is “arbitrary or capricious” review

 Section 4(c) contains the principal prohibitions that define what can/can’t go on in a wilderness.  The Section 4(c) prohibitions are subject to “existing private rights.”  There are also a number of exceptions in Section 4(d).

 Commercial fishing? Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065 (9 th Cir. 1997).  Fish hatchery run by volunteers but to support commercial harvest that takes place outside wilderness? Wilderness Soc’y v. FWS, 353 F.3d 1051 (9 th Cir. 2003) (en banc).

 Provision at issue: “Commercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.” (*Note this was § 4(d)(6) in the 1964 Act) Selway-Bitterroot Wilderness, MT

“Commercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.” Selway-Bitterroot Wilderness, MT

 No court cases interpreting the term  Generally construed by agencies to include: Guide services Commercial photography (even if it’s nonprofit) Scientific research with commercial applications

 Section 4(b): “wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use”  Section 2(a) “to secure for the American people of present and future generations the benefits of an enduring resource of wilderness” “For this purpose there is hereby established a National Wilderness Preservation System [which] shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness”

 Courts generally presume that Congress picks its language carefully  No court cases distinguishing the two terms  “Commercial Enterprise”: No McDonald’s or WalMart  “Commercial Service” Guide services Commercial photography (even if it’s nonprofit) Scientific research with commercial application

 Mostly litigated in context of guide services  How necessary is necessary? Strictly necessary— which means very few activities would be allowed Reasonably necessary

 Pack animal services in Ansel Adams and John Muir Wilderness Areas USFS limits number of visitors for overnight stays Limits regulated by quotas at specific trailheads Pack animal services regulated by special use permit  NEPA and Wilderness Act claims brought—NEPA violation found

 “It is clear that the statutory scheme requires, among other things, that the Forest Service make a finding of ‘necessity’ before authorizing commercial services in wilderness areas.” USFS did so here WA “does not specify any particular form or content for such an assessment; therefore the finding of ‘necessity’ requires this court to defer to the agency’s decision under the broad terms of the Act.”

 “However, under the terms of the Wilderness Act, a finding of necessity is a necessary, but not sufficient, ground for permitting commercial activity in a wilderness area.”  The agency “must show that the number of permits granted was no more than was necessary to achieve the goals of the Act. Nowhere in [its planning documents] does the Forest Service articulate why the extent of such packstock services authorized by the permits is ‘necessary.’”

 USFS examined three factors, all of which held to be relevant: “the types of activities for which commercial services are needed” “the extent to which current permits are being used “the amount of use the land can tolerate.”  “[A]t some point in the analysis, the factors must be considered in relation to one another. If complying with the Wilderness Act on one factor will impede progress toward goals on another factor, the administering agency must determine the most important value and make its decision to protect that value. That is what the Forest Service failed to do in this case.”

“At best, when the Forest Service simply continued preexisting permit levels, it failed to balance the impact that that level of commercial activity was having on the wilderness character of the land.” “At worst, the Forest Service elevated recreational activity over the long-term preservation of the wilderness character of the land.”

“The Forest Service’s decision to grant permits at their pre-existing levels in the face of documented damage resulting from overuse does not have rational validity. In its Needs Assessment, the Forest Service listed the trailheads showing damage from overuse, but it did not take the next step to actually protect those areas by lowering the allowed usage.”

“Although the Act stresses the importance of wilderness areas as places for the public to enjoy, it simultaneously restricts their use in any way that would impair their future use as wilderness. This responsibility is reiterated in Section 1133(b), in which the administering agency is charged with preserving the wilderness character of the wilderness area.” The Wilderness Act of 1964 Section 1133(b)

 USFS relied on survey results to show necessity  Court agrees that it must defer to USFS methodology

“[T]he survey here allowed anonymous responses without any means to verify that the respondents were the intended recipients of the survey... and the recipients knew its purpose. Most strikingly, there is evidence that respondents took advantage of these flaws in the survey’s design by copying and distributing the survey to non-recipients friendly to the packers and encouraging these individuals to return the survey anonymously in a deliberate effort to skew the results.”

 Survey unreliable for other reasons  “In relying on an aging population with various disabilities to show a huge increase in future need for pack services, [USFS] cited the most frequently occurring health conditions of elderly people. Yet these conditions included hearing impairments, sinusitis and others which are irrelevant to determining the need for pack stock services due to an inability to hike with gear.”

 Often, pack animals used to bring into wilderness items not essential to wilderness experience (e.g., radios and cases of beer)— wants, not needs (i.e., not “necessary”)  Concerns about spikes in usage, trailhead vs. destination quotas

 Pack animals in Sequoia/Kings Canyon Nat’l Parks  Challenge to General Management Plan, not actual permitting decisions for specific activities  Necessity finding not made in GMP NPS admits but says it will do at permitting level  Same result

 Sec. 4(c) limits many agency activities to those that are “necessary to meet minimum requirements for the administration of the area for the purpose of this Act”  Compare Wilderness Watch v. Mainella, 375 F.3d 1085 (11th Cir. 2004)

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