1. NEPA and WildernessNEPA and Wilderness Michael C. Blumm & Lorena Wisehart ‘13 Wilderness Act at 50 (April 11, 2014) Lewis and Clark Law School

2. I. Wilderness Designation I. Wilderness Designation II. Wilderness Management II. Wilderness Management III. Protection of Potential Wilderness III. Protection of Potential Wilderness NEPA 2

3. 3

4. The Wilderness Act of 1964 Selway-Bitterroot Wilderness Designated: 54 areas in 13 states 9.1 million acres “instant wilderness” 4

5. The Wilderness Act of 1964 gave statutory protection for “primitive areas” managed as wilderness since the 1920s. Forest Service Studies Primitive Areas Forest Service makes wilderness recommendations to President President makes recommendations to Congress Congress designates wilderness And contiguous areas. Parker v. U.S. 309 F. Supp. 593 (D. Colo. 1970), aff’d 448 F.2d 73 (10th Cir. 1971). 5

6. National Environmental Policy Act essential to expanding wilderness system beyond the “rock and ice” primary vehicle for challenges to Forest Service wilderness recommendations and attempted releases of wilderness-eligible lands to multiple use management 1964 Wilderness Act 1970 NEPA 6

7. RARE Roadless Area Review and Evaluation – Studied 56 million acres of roadless areas in the National Forest System to assess their suitability for wilderness designation. 1964 Wilderness Act 1970 NEPA 1972 RARE I 7

8. Wilderness:1 2 million ac Further study: 11 million ac Non-wilderness: 33 million ac 8 RARE I Recommendations

9. NEPA Challenges to RARE I Sierra Club v. Butz, E NVTL. L. R EP. 20,071 (N.D. Cal. 1972) – NEPA required the Forest Service to prepare an EIS prior to authorizing timber sales in roadless areas that RARE I inventoried but designated as non-wilderness Wyo. Outdoor Coord. Council v. Butz 484 F.2d 1244 (10th Cir. 1973) – “[T]here is an overriding public interest in preservation of the undeveloped character of the area...” – Enjoined existing timber sale contracts in roadless areas, effectively halting timber sales in all areas identified by RARE I until the F.S. prepared an EIS that complied with NEPA 9 1964 Wilderness Act 1970 NEPA 1972 RARE I 1979 RARE II

10. Wilderness: 15 million ac (12 million) Further study: 10.8 million ac ( 11 million) Non-wilderness: 36 million ac (RARE I-33 million) RARE II Recommendations 10

11. NEPA Challenges to RARE II California v. Block, 690 F.2d 753 (9th Cir. 1982) – Failure to describe the wilderness values at risk in the lands proposed for release – Inadequate range of alternatives 8 alternatives considered; but none allocated greater than 1/3 of the inventoried lands to wilderness – Enjoined Forest Service from authorizing activities that would impair the wilderness character of inventoried lands pending NEPA compliance Effectively precluded road building and logging in all RARE II lands classified as non-wilderness 11

12. Congress Intervenes Congress passed a series of state-specific wilderness bills – designated wilderness amounting to over 8 % of the total wilderness system today – 28 bills adding 9.8 million acres, a 12% increase but more than doubling the amount of land protected by the 1964 Wilderness Act. 1964 Wilderness Act 1970 NEPA 1972 RARE I 1979 RARE II 1984-1993 Congress Passes 28 State Wilderness Bills 12

13. NEPA & Wilderness Management Permits and cumulative impacts – High Sierra Backpackers Assn v. Blackwell, 390 F.3d 630 (9th Cir. 2003) – NEPA required Forest Service to consider individual and cumulative effects of issuing issued issuance multi-year special-use permits and renewals of special-use permits 13

14. NEPA and Potential Wilderness Nat’l Audubon Soc. v. U.S.F.S. 46 F.3d 1437(9th Cir. 1993) – timber sales in Rogue River N.F. enjoined until F.S. completed an EIS describing effects on the roadless and undeveloped nature of the sale areas 14 Photo: BLM

15. NEPA and Potential Wilderness Smith v. U.S. Forest Service, 33 F.3d 1072 (9th Cir. 1994). – NEPA requires consideration of roadlessness regardless of whether Congress made a determination on the wilderness status of the land – F.S. required to evaluate effect of logging on roadless area in order to protect the congressional prerogative of designating wilderness in the future Photo: USFS 15

16. NEPA and Potential Wilderness Forest Service’s 2001 Roadless Rule – Nationwide rule protecting 58.5 million acres of inventoried roadless areas—nearly 1/3 of national forest lands—from future road-building – Purpose: protect the ecological and social characteristics of undeveloped roadless areas 16 Photo: USFS

17. NEPA and Potential Wilderness Challenges to the Roadless Rule – Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002). it was reasonable for the F.S. to limit its consideration to alternatives that banned roads in roadless areas given the purpose of the roadless rule lifted the district court’s injunction prohibiting implementation of the roadless rule – Wyoming v. USDA, 661 F.3d 1209 (10th Cir. 2011) no NEPA violation; no Wilderness Act violation 17

18. NEPA & BLM Wilderness Study Areas – Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) Combination of NEPA and FLPMA’s nonimpairment standard imposed a duty to examine less damaging alternatives and to select the least damaging alternative NEPA and Potential Wilderness 18

19. NEPA and Potential Wilderness NEPA & Land Plans ONDA v. BLM, 531 F.3d 1114 (9th Cir. 2008) – NEPA required BLM to take wilderness characteristics into account when revising land plans – Enjoined implementation of BLM’s Southeast Oregon plan until the agency complied with NEPA by addressing wilderness characteristics in the EIS – No reason this duty should not be applicable to other federal land plans 19

20. New Legislation - SHARE Act of 2013 H.R. 3590 - Sportsmen's Heritage And Recreational Enhancement Act of 2013 – Wilderness Act: authorizes activities currently prohibited in Wilderness (e.g. mechanized equipment and construction of temporary roads and permanent structures) § 804(e)(2)-agencies mandated “not to impede underlying federal land purposes” when doing effectively anything wildlife- or recreation-related in Wilderness. § 804(e)(1)-“[t]he provision of opportunities for hunting, fishing, and recreational shooting, and the conservation of fish and wildlife to provide sustainable use recreational opportunities on designated Federal wilderness areas shall constitute measures necessary to meet the minimum requirements of the administration of the wilderness area.” – NEPA: 804(c)(2) - “[n]o action taken under this Act,” or under Section 4 of the National Wildlife Refuge System Administration Act, shall be considered a “major Federal action significantly affecting the quality of the human environment.” exempts all National Wildlife Refuge management decisions and a potentially wide range of other public lands management decisions from environmental review and public disclosure under NEPA 20

21. Conclusion State wilderness bills added 9.8 million acres to NWPS, increasing wilderness acreage by more than 12% Roadless Rule: Applies to 58.5 million acres roadless forest lands Sierra Club v. Hodel: Applies to the 585 WSAs covering 13.8 million acres that BLM manages ONDA v. BLM: NEPA requires BLM land use plans to consider the wilderness characteristics of millions of acres of roadless lands outside WSAs (e.g. 3.7 million ac in Utah alone). 21