In the mid-1960s, Congress recognized that the increased rate of human development needed to be balanced by efforts to preserve the nation’s natural and cultural resources. This awareness led to the passage of both the Wilderness Act of 1964 and the National Historic Preservation Act of 1966.
The Wilderness Act created a mechanism for designating some of the country’s most undeveloped public lands as wilderness areas, thus preserving them in their natural state for future generations. Designated wilderness areas enjoy the highest level of conservation protection, and they are managed to minimize impacts from human activities. Today there are more than 750 designated wilderness areas managed by the U.S. Forest Service, Bureau of Land Management, U.S. Fish and Wildlife Service, and the National Park Service (NPS).
The National Historic Preservation Act (NHPA) was enacted “in a spirit of stewardship for the inspiration and benefit of present and future generations.” It established the National Register of Historic Places, created the Section 106 consultation process to ensure that adverse effects to historic resources are considered in federal decision-making, and articulated a national policy in favor of preserving historic and cultural resources—among other things. Today there are more than 90,000 properties listed on the National Register, and the Section 106 consultation process regularly improves preservation outcomes.
The Wilderness Act and NHPA were both passed to protect resources valued by the American public and to establish federal policies that support these conservation efforts. The two laws can work in tandem to protect both wilderness and historic preservation values. But despite the complementary aims of the laws, a series of court rulings over the past two decades—including the recent case of the Green Mountain Lookout in the state of Washington—have eroded the ability of federal agencies to maintain historic structures that are located in wilderness areas. Although compliance with the Wilderness Act does not require federal agencies to abandon preservation responsibilities, the litigants in these cases have claimed that no historic structures should be allowed in wilderness areas.
The National Trust for Historic Preservation has been involved in several of these cases, including Wilderness Watch, Inc. v. Creachbaum, which is currently pending in the United States Court of Appeals for the Ninth Circuit. The National Trust intervened in support of the NPS in this lawsuit, which challenges the agency’s decision to maintain historic structures in Olympic National Park. The case raises the question of whether the NPS and other federal agencies will be able to maintain historic structures located on public lands in wilderness areas.
The Wilderness Act and Historic Resources
The Wilderness Act defines “wilderness” as:
…an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; […] and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. [Emphasis added.]
The Act further provides that “wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.” [Emphasis added.]
However, despite the act stipulating that wilderness areas may contain features of historical value and should be devoted to historical use, some wilderness advocates have taken the absolutist position that no manmade structures, even historic ones, should be allowed to exist in wilderness areas. This argument is based on language contained in 16 U.S.C. § 1133(c), a section of the Wilderness Act that prohibits commercial enterprises, permanent roads, the use of motorized equipment, and structures in wilderness. This generalized reference to “structures” in a statutory section focused on prohibiting new, modern intrusions and incompatible uses from being introduced into wilderness areas is being used to argue against maintaining existing historic resources.
Historic Resources in Olympic National Park
Olympic National Park covers nearly 1,400 square miles on the Olympic Peninsula in the state of Washington and includes rainforests, glaciers, lakes, streams, and mountains. It also includes multiple structures listed on or eligible for listing on the National Register.
The federal government first acted to preserve the area in 1897, when Congress created the Olympic Forest Reserve. In 1909 President Theodore Roosevelt used the Antiquities Act to increase protection of the area by designating a portion of the reserve as the Mount Olympus National Monument. Then, in 1938, President Franklin D. Roosevelt signed legislation creating Olympic National Park. Fifty years later, in 1988, Congress designated the Olympic Wilderness within the park.
At the time of the wilderness designation, Olympic National Park contained trail shelters that were used by the public to access the backcountry. In response to concerns that the wilderness designation would impact these beloved shelters, the principal author of the legislation, former Washington state Senator Dan Evans, remarked “It would be my presumption that designation of the park as wilderness by this act should not, in and of itself, be utilized as justification for removal of any of these structures from the park.”
Management and planning documents developed by the NPS for Olympic National Park following the wilderness designation have expressed support for preserving the shelters. Most recently the NPS completed a General Management Plan (GMP) for the park in 2008. The GMP affirms a policy of preserving historic structures, stating that “Structures and cultural landscapes listed or eligible for listing in the National Register of Historic Places will be preserved and rehabilitated to retain a high degree of integrity
In accordance with the GMP, the NPS has performed repair and maintenance work on four historic trail shelters in Olympic National Park—including the last remaining shelter that had been constructed by the Civilian Conservation Corps—and on one cabin that has been used by backcountry rangers for decades. Each of these five structures is either listed or eligible for listing on the National Register.
The NPS undertook a careful planning process to ensure that the preservation of these five historic structures complied with the Wilderness Act. Despite this, litigants sued the NPS, asserting that the act prohibits maintaining historic structures in wilderness. They asked the court not only to order the removal of the repaired trail shelters and cabin in Olympic National Park but also to require the NPS to stop all maintenance of other historic structures in wilderness areas.
On December 14, 2016, the federal district court issued a positive decision upholding the NPS’ preservation activities. However, the plaintiffs have filed an appeal. Appellate briefs will be filed in the Ninth Circuit Court of Appeals over the summer and oral arguments are anticipated to be scheduled later this year. If the district court’s ruling is reversed, the discretion of federal agencies to make decisions about how best to manage historic resources located in wilderness will be significantly impaired. The National Trust will continue to intervene in the case to advocate for an interpretation of Wilderness Act and NHPA requirements that will protect the full breadth of wilderness values, including preservation of historic structures.
Sharee Williamson is an associate general counsel at the National Trust for Historic Preservation.#NationalParkService #Legal #PublicLands #AntiquitiesAct #Wilderness #NHPA