1. This file is part of the FS Resources section at: http://www
This presentation should be reviewed and revised as needed to match the local training objectives and target audience and local images should be inserted where needed.
The Wilderness Act training presentations are posted in parts which may be combined or used separately as needed:
History and Purpose of the Wilderness Act
National Wilderness Preservation System
Values and Benefits
Definitions and Management
Other Laws
Stewardship Principles
Court Decisions
FS Policy
More Information

2. Wilderness Court Decisions
This presentation highlights some of the significant court decisions that have helped shape wilderness management in recent times. It is not a comprehensive analysis and does not represent agency policy.

3. “…preserve wilderness character…”
BWCAW – Superior NF
Izaak Walton League v. Kimbell
(D. Minn.) (2007)
“...an agency’s duty to preserve wilderness character … may apply to agency activity that occurs outside the boundaries…. The key questions in determining whether agency action violates §4(b) is whether that action degrades the wilderness character…”
The Forest Service proposed to build a snowmobile trail just outside the wilderness boundary and prepared an EA. The court ruled that an EIS was needed to determine if the effects on wilderness character due to the sounds of motor vehicles was an impairment of wilderness character and the opportunities for visitors inside the wilderness. The forest is implementing a monitoring plan to help determine the effects of sound originating outside wilderness on visitors inside wilderness.

4. “…preserve wilderness character” Outfiter-guide operations in wilderness Inyo and Sierra NFs High Sierra Hikers v. Blackwell (9th Cir.) (2004)
Balance:
Types of activities
Need for services in wilderness, not demand
Amount of use the land can tolerate - capacity
BUT “overarching purpose” is to “’preserve wilderness character,” “unimpaired for future use and enjoyment.”
The court ruled that public or commercial demand does not equal need for commercial services in wilderness.
The FS must balance the social and biophysical capacity of the wilderness with the public need for commercial services in wilderness.
Managers must show standards and thresholds and implement actions that prevent degradation before it occurs.

5. “…preserve wilderness character…”
Caribou-Targhee National Forests
Heli-skiing in area recommended for wilderness
Greater Yellowstone Coalition vs. Timchak
(D.Idaho) (2006)
The court ruled that areas recommended for wilderness in the forest planning process must be managed to maintain their presently existing wilderness character until Congress decides whether to designate them as wilderness.
The forest had decided to allow a heli-skiing operation to expand into a portion of an area recommended for wilderness. The NEPA analysis described the proposed heli-skiing area as inaccessible by any other means and concluded that nobody would be impacted by the use of helicopters. The court interpreted the Wilderness Act as a mandate to agencies to protect the outstanding opportunities for solitude regardless of whether or not anyone is actually using the area and ruled that the FS had not done an adequate job in assessing effects to wilderness character from the proposed heli-skiing operation.

6. “ …preservation of wilderness dominates…” Road Access to In-holding Absaroka-Beartooth Wilderness Gallatin NF Absaroka Trust vs. Glickman (D. Mont.) (2002)
The owners of an patented mining claim in the Absaroka-Beartooth Wilderness in Montana asked the Forest Service for permission to construct a 6-mile gravel road to their property so they could better access the mineral potential, transport construction materials for hunting and fishing cabins, and for emergency access. The Forest Service denied them the road. They looked at other inholdings so situated and found that in only one other instance had new road construction been authorized in a wilderness area. The FS said the owners could still walk or ride horses in and construction materials could be flown in by helicopter.
The owners went to court: helicopter access was prohibitively expensive & unreasonable.
The Court found for the Forest Service, succinctly decreeing, the law “does not guarantee the cheapest access, only adequate access,” and this access is consistent with similar areas situated elsewhere, and cited FS Regulations, “Where a conflict in resource use exists, the preservation of wilderness predominates over other values.”

7. “…preserve wilderness character…”
Barnes v. Babbitt
(D. Ariz.) (2004)
“The W. Act requires the BLM to ‘preserve the wilderness character…and [to] so administer such area for such other purposes…as also to preserve its wilderness character.’”
Because of character of wilderness, non-motorized access is adequate
Barnes v. Babbitt, decided in 2004 –in Arrastra Wilderness, Arizona.
The owner wanted unlimited access to his inholding to repair a series of abandoned range developments on his property and adjacent Federal land on the newly reactivated allotment. The access he wanted was decades old, but had been impassable to most motor vehicles since before the wilderness was designated. Here’s what it looks like.
The BLM issued an EA that authorized access with conditions: restoration and maintenance was to be only enough for the passage of 4-wheel drive vehicles, and to be used only for maintaining the grazing developments.
A group of environmental organizations appealed to IBLA, but so did the landowner (he wanted unlimited access).
IBLA found for the BLM. The landowner then went to District Court, still wanting unlimited access. As did the enviros, who claimed motorized access was illegal.
The Court overturned the IBLA, and found BLM erred when it allowed reconstruction of a route that had been impassable long before wilderness designation.
IBLA had said the area route didn’t seem to qualify as part of the Wilderness, so BLM could authorize its reconstruction as a road. The Court said it IS part of the Wilderness:
Congress choose not to cherry-stem this route, therefore by definition in the Wilderness Act it CANNOT be a road. (And it defined a road as having been “improved or maintained by mechanical means for relatively regular and continuous use.”) And there is not right of motorized access to refurbish abandoned livestock developments.
The owner, who had half a loaf, ended up with none.

8. State Authority for Management of Fish and Wildlife in Wilderness
10th Amendment
Geer v. Connecticut (1896)
Wilderness Act, § 4(d)(8)
43 CFR 24.3(b)
The common misconception that the States have ultimate authority over the fish and wildlife in the Federal wilderness areas within their borders is based on three, tiered legal documents.
First is the 10th Amendment to the U.S. Constitution, which says (in part) that, “The powers not delegated to the United States by the Constitution…are reserved to the states….” The thinking goes that since the Constitution does not explicitly “give” control over wildlife populations to the United States, then that power must belong to the states. This was a basis for:
The 1896 Supreme Court decision in Geer versus the State of Connecticut. Here, the Court held that states owned the wildlife within their borders, and their “right to preserve game flows from the undoubted existence in the State of a police power.” While this decision went on to say that the Federal government may impose restrictions, the thinking goes that without specific restrictions (such as the Migratory Bird Treaty Act), states own resident fish and wildlife. And specific restrictions (excluding those concerned with “prohibited uses”) cannot be found in:
Section 4(d)(8) of the Wilderness Act – the section which explicitly addresses the management of fish and wildlife in wilderness areas. The phrase in that section that goes “Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the several States….” is often believed to mean that, as has been customary and in line with the 10th Amendment and the Geer decision, that the jurisdiction and responsibility for managing wildlife remains with the State. In fact, the language merely says that the Wilderness Act does not change that responsibility – whatever level it might be.
But the State Authority Position has made it even into the Code of Federal Regulations, which says (in part): “Congress has, in fact, reaffirmed the basic responsibility and authority of the States to manage fish and resident wildlife on Federal lands.”
However, the common interpretation that the states have ultimate authority for management of fish and wildlife populations in federal wilderness areas is not correct, as can been seen by the four court decisions displayed on the following slides– three by the US Supreme Court, and one by the 10th Circuit Court of Appeals.

9. Kleppe v. New Mexico (1976)
“Congress’ complete authority over the public lands includes the power to regulate and protect the wildlife living there.”
“The Property Clause…gives Congress the power to protect wildlife on the public lands, state law notwithstanding.”
“Where…state laws conflict with…legislation passed pursuant to the Property Clause, the law is clear: The State laws must recede.”
The central recent ruling is a unanimous decision by the Supreme Court in 1976 in Kleppe versus New Mexico. In it, the court stated that “The power over the public land thus entrusted to Congress is without limitations” and that
From a Constitutional point of view, {read}. This is not to say that the States are without interest. The Court said, “Unquestionably the States have broad trustee and police powers over wild animals…. But… those powers exist only ‘in so far as [their] exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal Government by the Constitution.’”
The Kleppe case was originally brought over the Constitutionality of the Wild Free-roaming Horse and Burro Act. This is occasionally used by proponents of the States’ Authority Position to argue it has no application outside that law. The Supreme Court decision, however, explicitly states the contrary:
“Where … state laws conflict with the [Wild Horse & Burro Act], or with other legislation passed pursuant to the Property Clause, the law is clear: The state laws must recede.”
For our purposes, not only must conflicting State laws be considered “inferior” to the Wilderness Act but, by logical extension, State fish and wildlife interests as expressed in State conservation plans or similar documents must, if they conflict with the Wilderness Act, also “recede.”

10. Hughes v. Oklahoma (1979)
“The cases defining the scope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests.”
“Geer v. Connecticut…is overruled. Time has revealed the error of the result reached in Geer through its application of the 19th century legal fiction of state ownership of wild animals.”
Three years later, the Supreme Court clearly recognized the difficulty in interpreting seemingly-ambiguous Congressional direction:
But it also reaffirmed the tenet of Federal Supremacy:
Any part of the States’ Authority Position that relies on the Geer decision from 1898 is no longer valid.
It should be noted that this Hughes case in 1979 concerned commercial uses of wildlife, and is primarily concerned with application of the Commerce Clause. The Property Clause was invoked in an applicable case long before the Kleppe case in or the Wilderness Act of 1964.

11. Hunt v. U.S. (1928)
“The power of the United States to…protect its lands and property does not admit of doubt, the game laws or any other statute of the state to the contrary notwithstanding.”
That was in 1928, in the Supreme Court decision of Hunt (the governor of Arizona) versus the United States.
Back in the 20’s, the Forest Service killed large numbers of deer on the Kaibab National Forest. Arizona state officials claimed this was in violation of their game laws, as the deer were the property of the state. The Court found for the Federal government:
If the Federal government can kill animals contrary to a State’s wishes, why could they not save animals (for instance, the other animals in natural balance at a fishless lake) contrary to a State’s wishes?

12. Wyoming v. U.S. (2002)
“State…trustee and police powers over the…wildlife found on Federal lands…are not constitutionally-based.”
“In view of [Kleppe], we believe the point painfully apparent that the Tenth Amendment does not reserve to the State…the right to manage wildlife.”
“The State…does not have the sovereign power to manage wildlife on Federal lands.”
The fourth case is the most recent: a 10th Circuit Court of Appeals decision from 2002in a suit by the State of Wyoming against the United States.
Wyoming wanted to inoculate the elk in the National Elk Refuge for brucellosis, to prevent the spread of that disease throughout the State. The US Fish and Wildlife Service refused, citing questions about the vaccine’s efficacy. The State countered that the FWS lacked the authority to refuse, citing the Tenth Amendment to the Constitution and what the court referred to as an “opaque” clause (because Congressional meaning was not transparent) in the National Wildlife Refuge System Improvement Act that is strikingly similar to Section 4(d)(8) of the Wilderness Act -- except that it might seem to give even more powers to the States. While questioning the rationale for stopping the State from vaccinating the elk, the court upheld the Federal government’s right to do so.
The Court declared that the Federal Regulations found at 43 CFR 24.3 are a “policy statement” which reflect customary “historical” powers “[which] are not constitutionally-based.”
Concerning the applicability of the Tenth Amendment, the Court referred to the Kleppe decision cited earlier in this module, adding:
“In view of [the Kleppe decision], we believe the point painfully apparent that the Tenth Amendment does not reserve to the State…the right to manage wildlife….” The Court of Appeals concurred with the District Court that “managing wildlife on federal land was not a power reserved to the States under the Tenth Amendment. Rather, the Federal Government took that power under the auspices of the Constitution’s Property Clause….Accordingly
“the State…does not have the sovereign power to manage wildlife on Federal lands.”
To this point in our discussion, the 10th Amendment and the Geer decision have been removed by judicial decisions as parts of a rationale for the State Authority Position. But what about the Wilderness Act itself – that “opaque” so-called “savings clause” in Section 4(d)(8)? “Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the several States….”

13. Wyoming v. U.S. (2002)
“We must not be guided by a single sentence…but to look to the provisions of the whole law.”
“By establishing a system ‘to administer a national network of lands and waters…,’ Congress undoubtedly intended a preeminent federal role.”
“The saving clause does not deny the [Federal agency], where at odds with the State, the authority to make a binding decision.
The Court recognized that “[A]scertaining the intent of Congress in disputes between the Federal Government and a State is among the most difficult judicial tasks.” However, in construing the intent of the Act, the Court wrote,
“We must not be guided by a single sentence or member of a sentence, but to look to the provisions of the whole law.”
So what is the Congressional intent?
Otherwise, the Court argued, the State could take action in a manner deemed incompatible with the purpose of the area’s designation, concluding:
“We find highly unlikely the proposition that Congress would carefully craft the substantive provisions of [this law], to grant authority to the [Federal agency] to manage [it]…, and then essentially nullify those provisions…with a single sentence.”

14. Wyoming v. U.S. (2002)
“Federal management and regulation…preempts state management and regulation…to the extent the two actually conflict, or where state management and regulation stands as an obstacle to the accomplishment of the full purposes and objectives of the Federal Government.”
The court cited this National Elk Refuge case as an example of failed “cooperative federalism.” That is, the State is not totally without a voice.
But .this language from the 10th Circuit Court of Appeals serves as a perfect encapsulation of the respective Federal and State roles in the management of fish and wildlife in Designated Wilderness. And it is the frame through which the Federal policies on the subject must be viewed:
Both levels of government cooperate to the greatest extent possible, but in those instances where State desires for wildlife populations or habitat conflicts with the overall intent of the Wilderness Act, the demands of that law take precedence. It is the Federal government’s authority (and responsibility) to preserve wilderness character. To the extent that State objectives do not conform with that Congressional direction, they must be denied.