1. Cultural Resources and Wilderness Character
Pei-Lin talked about a broad range of cultural resources. For today’s discussion, I want to focus on the aspect of cultural resources that is the most controversial in wilderness +
Structures and Installations ++

2. Except in certain specific instances, “there shall be no
Except in certain specific instances, “there shall be no...structure or installation within any [wilderness] area.”
Wilderness Act, Section 4(c)
There are many aspects to cultural resources. But the ones that give us most trouble in wilderness are structures (things built for human occupation) and installations (built items not intended for human occupation).
They’re trouble because of this clause in the Wilderness Act: +
{read}
This is the clause which has figured so prominently in recent court cases. ++

3. 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.”
It all started with Wilderness Watch v. Mainella. {give short synopsis} And the court said... +
{read 1st paragraph}. Why?
{read 2nd paragraph}. Therefore...
{read 3rd paragraph}. Whoa.
Soon after: Olympic Park Associates v. Mainella. {give short synopsis}
{read}. ++

4. 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.”
High Sierra Hikers v. USFS (E.D. Calif. 2006)
Wilderness Watch v. Iwamoto (W.D. Wash. 2012)
And two other cases in the same vein. {give short synopses} +
Which have in common that the agency claimed “historical use” and the Courts cited the two previous decisions in their rulings.
In one case the structure was allowed to remain, in the other the structure was ordered removed – though the removal was later stayed. But clearly , if you can’t -- ever – need to preserve historical structures, the court seems to be saying that wilderness areas would be better off without them. ++
Agency claimed “historical use”
Courts cite 1st two cases

5. 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.”
So this is what we’re left with. <<No preserving structures because the historical use of the wilderness refers to natural rather than man-made features, and we can’t “graft” preservation of historical structures onto the general purpose of wilderness absent “explicit” instruction.>>
Well guess what. We have explicit instruction and don’t have to graft anything.
That’s my thesis and I’m sticking to it. ++

6. “Definition of Wilderness”
“A wilderness...(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
Wilderness Act, Section 2(c)
I want to draw your attention to another part of the Act – Section 2(c) +
{read}
Section 2(c), where this phrase occurs, is central to the Wilderness Act – the Act calls it...
...the Definition of Wilderness. ++

7. “Definition of Wilderness”
“A wilderness...(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
Wilderness Act, Section 2(c)
For shorthand, we call this the Other Features of Value ++

8. “Definition of Wilderness”
ecological geological scientific educational scenic historical
There are 6 classifications of values mentioned in Section 2(c). +
Ecological, such as here in the Tres Alamos, where the Mojave and Sonoran Deserts meet.
Geological, such as here in the Hawaii Volcanoes, where Pu’u O’o is making more wilderness.
Scientific, such as here in the Bisti/De-Na-Zin, where paleontologists have seen where 70 million years ago a tyrannosaur broke, and then healed, her rib.
Educational, such as here in the Absaroka-Beartooth, where the great Leo McAvoy is teaching the Tyrolean Traverse.
Scenic, such as here, where the John Muir serves as an ironic form-mirrors-form counterpoint to the Manzanar Internment Camp.
Historical, such as found at this tiny graveyard in the Isle Royale W. ++

9. Definition v. Use Definition [2(c)] Use [4(b)]
ecological geological scientific educational scenic historical
recreational scenic scientific educational conservation historical
So this is the list. +
The trouble we run into, and the courts have stumbled over this, that there’s another list in the Act. OK. They look so similar. Many of them, in fact, are exactly the same.
We see the same words and assume they mean the same thing.
They do not.
The column on the left is part of the very definition of “wilderness.
The column on the right is a list of acceptable uses.
And so we have a dichotomy between the definition of wilderness and how we use wilderness areas. ++

10. Definition v. Use Definition [2(c)] Use [4(b)]
ecological geological scientific educational scenic historical
recreational scenic scientific educational conservation historical
And today I’m going to focus on the differences between these two apparently identical words. ++

11. ≠ Definition v. Use 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
When we’re talking about a “definition,” what do we mean? +
{read} American Heritage
On the other hand, a “use” is {read}
These are not the same. But because the words are the same, many people think of these two parts as interchangeable. They are not.
The definition is WC.
The uses are the public purposes.
Why is this important?... ++

12. 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)
Because of this language in Section 4(c) of the Wilderness Act
{read}
This “exception” is what was omitted from the first time we saw this prohibition earlier. I want to highlight a couple of phrases here, to make sure we understand the explicit direction from the Wilderness Act. ++

13. 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)
What are we talking about when the Act says “administration”? +
There is a common misconception that what this refers to if the regulation of the area. That a cultural resource, to be part of the administration of an area means it’s something like a like patrol cabin or fire lookout.
But, in fact, “administration” includes ANY activity we undertake to fulfill our duty. (American Heritage dictionary again.). And our duty, of course, is to fulfill the purpose of the Act. So ANY activity we take to fulfill the purpose of the Act is part of our “administration.” ++
“administration” NOT just regulatory
“Activity in the exercise of [the agency’s] duties”

14. 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)
And what is “the purpose of this Act”? +
{read}. Three time is the Act Congress gave managers that direction.
The purpose is NOT to facilitate the public uses. That why it is so important to separate a historical use from the historic value which is an inextricable part of the fabric of the area’s wilderness character -- that value which cannot be removed without unraveling the whole of the wilderness. The failure to separate the public use from the value of the Other Feature’s contribution to the area’s WC is a mistake the courts have perpetuated. ++
“the purpose” is to preserve wilderness character
NOT to facilitate public uses

15. We should have been arguing for this We have been arguing for this
Definition v. Use ≠
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
So if you look at this dichotomy... +
We’ve been arguing the public purposes “trump” the prohibition of structures and installations -- when the Act makes it clear structures and installations can only be permitted if they are the minimum necessary to preserve wilderness character.
This is what we should have been arguing. Historical value, not historical use. ++ ↑
We should have been arguing for this ↑
We have been arguing for this

16. Preserving Wilderness Character
“A wilderness...(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
Wilderness Act, Section 2(c)
We are told to preserve wilderness character. And the Other Features of Value are part of that character. ++

17. Preserving Wilderness Character
“A wilderness...(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
Wilderness Act, Section 2(c)
“Features.” What is a feature? Again, American Heritage: ++

18. Preserving Wilderness Character
“A wilderness...(4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
Wilderness Act, Section 2(c)
“Any prominent or distinctive aspect or quality.”
{read} ++

19. Preserving Wilderness Character
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
When preserving wilderness character, among the questions we must ask ourselves are these:
{read}
Or, in essence {read}
The answers to these questions help distinguish those values from the public purposes with the similar names. How do the Other Features of Value help DEFINE a wilderness. ++

20. Preserving Wilderness Character
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
For our purposes today, we can just substitute Cultural Resources in place of all the Other Features of Value. These, I think, are the central questions we need to answer. And separating the inextricable cultural resource values from the public uses of cultural resources is critically important when it comes to management. ++

21. Earliest Congressional Intent
For further evidence that the preservation of certain cultural resources is an integral value in the whole of wilderness character is apparent from the very beginning of wilderness legislation. +
This is the bill that first appeared in the Senate in June of 1956. ++

22. Earliest Congressional Intent
Sec. 3(b): “...there shall be no road...nor any structure or installation in excess of the minimum required for the administration of the area for the purposes of this Act.” Sec. 1(c)(2): “’Wilderness’ shall include...those units within the National Park Service...except those portions set aside...for roads and accommodations for visitors.” Sec. 2(b): “The System shall include...Mesa Verde National Park.”
Let me select some quotations for you. +
Just so there is no mistake about structures, the first bill said: {read}.
The legislation described what was to be designated as wilderness: {read}. And the legislation lists specific areas:
{read}. ++

23. Earliest Congressional Intent
I single out Mesa Verde not because it was the only area listed with cultural resources – it wasn’t. +
But the cultural resources there are obvious, were well-known to all...
...and had already been not only stabilized, but (many of them) restored. Even reconstructed to an extent I think most archaeologists would be uncomfortable with today. But clearly, both Spring House and Square Tower House were acceptable developments in the National Wilderness Preservations System as originally envisioned by Howard Zahniser. More than acceptable – they are part of the inextricable character of this place.
So where does that leave us? ++

24. 3 Classes of Cultural Stuff
Wilderness Character would be improved without it.
REMOVE
With 3 classes of cultural stuff in wilderness. +
There’s a class of stuff where wilderness character would clearly be improved if it were gone.
So that’s what you do. You remove it.
Like this old hulk – even though these visitors are using it as a photo op.
Remember, this is where the courts seem to be leading us with respect to historical structures. But we know that was based on faulty legal arguments. ++

25. 3 Classes of Stuff Wilderness Character would be improved without it.
REMOVE
Mixed effects to Wilderness Character if it disappeared
DOCUMENT, AT LEAST
Wilderness Character would be irrevocably damaged if it were lost.
PRESERVE
Because we know, on the other hand... +
There is stuff that, if lost, would irrevocably damage the wilderness character of an area.
So we should preserve it. We’ve just seen an example. Others may be called out in legislation – but being mentioned in legislation is not a requirement for preservation.
And then there is the middle ground – stuff that would have mixed effects to wilderness character if it were lost.
At the very least, you want to document this.
These are not distinct categories. There are lots of degrees to preservation. And there well may be cultural features in that third category that are preserved only by documentation. I’m thinking of the installation that is commonly referred to as the Shrine of the Stone Lions in the Bandelier Wilderness. There is no picture here because of certain cultural sensitivities – but if you don’t know what I’m talking about you can Google dozens of pictures. When those finally melt completely away, something will have forever gone out of the essence of that place. And yet to stabilize it would be exactly the wrong thing to do. In fact, this installation is so important, I can envision having a serious discussion on whether Cochiti Pueblo should – if they want – install new lions.
There’s a continuum on the other end as well. How trashy is a trash dump? I came across one near the boundary of the Bisti/De-Na-Zin in So I asked the office lead archaeologist to look at it. He said there was nothing remarkable in the garbage and that it had been at that site for no longer than 20 years. When I asked him what specialized knowledge enabled him to know that – he said at the bottom of the pile was a penny dated 1972. ++

26. 3 Classes of Stuff
“A wilderness...(4) may also contain ... features of ... historical value.”
Wilderness Act, Section 2(c)
“Definition of Wilderness”