Cultural Resources Structures & Installations

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. Immaterial

Wilderness Act – specific & substantive NHPA – general & procedural Specific & substantive “trumps” general & procedural ∴ Wilderness Act “trumps” NHPA Immaterial

Wilderness Act – specific & substantive NHPA – general & procedural Specific & substantive “trumps” general & procedural ∴ Wilderness Act “trumps” NHPA Let’s not get hung up on this!

Wilderness Act – specific & substantive NHPA – general & procedural Specific & substantive “trumps” general & procedural ∴ Wilderness Act “trumps” NHPA Cultural resources are protected by the Wilderness Act

Wilderness Watch v. Mainella (11 th 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 (11 th 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 1 st two cases

Wilderness Watch v. Mainella (11 th 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.”

DEFINITION [2(c)] USE [4(b)] ecologicalgeologicalscientificeducationalscenichistorical recreational scenic scientific educational conservation historical

DEFINITION [2(c)] USE [4(b)] ecologicalgeologicalscientificeducationalscenichistorical recreational scenic scientific educational conservation historical

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 ≠

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)

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”

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

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

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

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

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....”

1) Wilderness Character would be improved without it. REMOVE REMOVE

1) Wilderness Character would be improved without it. REMOVE REMOVE 2) Mixed effects to Wilderness Character if it disappeared DOCUMENT, AT LEAST DOCUMENT, AT LEAST 3) Wilderness Character would be irrevocably damaged if it were lost. PRESERVE PRESERVE

1)Remove both 2)Remove one, “molder” one 3)Molder both 4)Remove one, preserve one 5)Molder one, preserve one 6)Preserve both 7)Something else

“A wilderness...(4) may also contain... features of... historical value.” Wilderness Act, Section 2(c)