Nps Case Study 7500

By Sandra B. Zellmer in Articles, Volume 44, Issue 2

Topics:Fish and Wildlife, Wilderness Act



This Article provides a wilderness scorecard of sorts for the two “dominant use” land management agencies—the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). Given that both agencies operate under a similar conservation oriented mandate, one might assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. However, NPS and FWS have both, at times, been surprisingly hostile toward wilderness within their systems. In NPS’s case, this is likely because of a concern that wilderness might disrupt visitor use and rein in its management discretion over park activities and resources. It may also be due to the perception that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by the state fish and game agencies that exert pressure on FWS.

While both agencies have issued policies supportive of wilderness preservation, only FWS has put its policies—at least some of them—in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither agency has been especially committed to wilderness planning, although FWS’s planning processes may have a slight edge. Both agencies could improve their wilderness strategies and practices by engaging in rulemaking to solidify their commitment to preserving wilderness characteristics. For its part, the Department of Interior could take steps to coordinate its wilderness strategies and its oversight over all of the wilderness managing agencies.

I. Introduction

The nation’s preeminent preservation statute, the Wilderness Act of 1964, has achieved significant gains in ensuring that portions of federal lands remain “unimpaired for future use and enjoyment as wilderness.”[1] Great strides have been made to realize the congressional purpose of “secur[ing] for the American people of present and future generations the benefits of an enduring resource of wilderness . . . . administered . . . in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, [and] the preservation of their wilderness character. . . .”[2] Despite the achievements, pressure to allow motorized access, road construction, and intensive recreational use within wilderness areas continues to mount.

All four of the nation’s federal land management agencies are subject to the Wilderness Act, and each has millions of acres of federally designated wilderness under its jurisdiction.[3] But there is significant variation between agencies when it comes to their wilderness management approaches. As Robert Glicksman and George Cameron Coggins observed, the wilderness managing agencies have their own distinct traditions, missions, and governing standards, with “no pretense of uniformity or even of coordination.”[4]

Professor Glicksman’s Article in this symposium issue explores the distinctions between the two multiple-use agencies—the Bureau of Land Management (BLM) and the Forest Service—and concludes that the Forest Service does a better job of achieving the objectives of the Wilderness Act.[5] He measures the agencies’ successes and failures by applying six factors that signify the agencies’ approaches to wilderness: 1) the physical characteristics of the lands managed by each agency; 2) the agencies’ history, culture, and structure; 3) the distinctions in statutory provisions governing the agencies’ activities; 4) the differences in the agencies’ planning and other policies; 5) congressional commitment to wilderness preservation on the lands under each agency’s jurisdiction; and 6) judicial treatment of the agencies’ wilderness related decisions.

This Article unabashedly borrows Glicksman’s analytical framework to provide a scorecard of sorts for the two “dominant use” land management agencies—the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). It applies many of the same factors to determine whether NPS or FWS has had more success in handling wilderness issues. In a slight departure from Glicksman’s analysis, this article hones in on wilderness management, but considers the agencies’ approaches to wilderness designation to the extent that they shed light on the agencies’ management modus operandi. Keying in on wilderness management leads to a greater emphasis on the language and implementation of the agencies’ regulations and internal policies and guidelines. It also sharpens the focus on individual case studies on wilderness management and their resolution in court.

Like Glicksman’s Article, this assessment provides an impressionistic view rather than an empirical one. For the purpose of the analysis, “success” in the agencies’ approaches to wilderness management is measured by each agency’s tendency to preserve the primitive, untrammeled character of wilderness areas under its jurisdiction, particularly when facing conflicts with other priorities and values. This benchmark for success tracks the Wilderness Act’s requirement to keep wilderness areas wild by minimizing deliberate manipulation of natural biological and ecological processes and by prohibiting intrusive, “unnatural” human activities such as roads, motorized vehicles and equipment, structures, and installations.[6]

Unlike the multiple-use agencies, the organic statutes of both NPS and FWS favor resource conservation and recreation over commodity production and extractive uses.[7] Given that both agencies operate under a similar conservation oriented mandate, one might assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. The agencies have not necessarily agreed.

NPS and FWS are alike in that they both have, at times, been surprisingly hostile toward wilderness within their systems. In NPS’s case, this is likely because of a concern that wilderness might disrupt visitor use and enjoyment of the National Parks and rein in its management discretion over park activities and resources. It may also be due to the sentiment that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by state fish and game agencies that exert pressure on FWS.

Part II of this Article tests these hypotheses by cataloguing the distinguishing features of wilderness management by the two dominant use agencies. It explores the physical characteristics of the land under each agency’s jurisdiction, then turns to agency history, culture, and structure. Next, it assesses distinctions in the statutory provisions governing each agency, as well as the distinctions in their respective regulations and policies. Part III then attempts to identify management patterns and biases in NPS and FWS wilderness case studies. Part IV looks ahead, assessing how wilderness preservation on dominant use lands might be enhanced by reinforcing preservation oriented factors and by dampening preservation destroying factors. Possible options include legislative amendments, regulatory reforms, and presidential or secretarial orders. Part V provides closing observations about the two agencies and their relative success as wilderness managers.

In contrast to Glicksman’s assessment of the Forest Service and the BLM, where the Forest Service comes out the clear “winner,” there is no obvious front runner between NPS and FWS. They each face pressure to allow intensive recreation: NPS must navigate demands for roads and tourism development, while FWS must navigate demands for wildlife propagation and hunting. They each have issued policies supportive of wilderness preservation. But only FWS has put its policies—at least some of them—in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither has been especially committed to wilderness planning, although FWS’s planning processes may have a slight edge. Finally, each agency has prevailed in court when it has made preservation oriented decisions, and each has lost when it has attempted to favor intervention or development over preservation. All that can be said with confidence is that both agencies could improve their wilderness strategies and practices by engaging in rulemaking to solidify their commitment to preserving wilderness characteristics, and that the Department of Interior could take steps to coordinate its wilderness strategies and oversight over all of the wilderness managing agencies.

II. Distinguishing Features of Wilderness Management by the Dominant Use Agencies

The Wilderness Act defines wilderness “as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.”[8] Congress intended wilderness areas to be different than the vast majority of federal public land, “in contrast with those areas where man and his own works dominate the landscape.”[9] The Act further specifies that wilderness is “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,” having four essential characteristics:

(1) [It] generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable;

(2) [It] has outstanding opportunities for solitude or a primitive and unconfined type of recreation;

(3) [It] has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and

(4) [It] may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.[10]

Both the National Park System and the Wildlife Refuge System contain qualifying lands, but the physical characteristics of the two systems are distinct.

A. Physical Characteristics

1. Wilderness Characteristics

In addition to being untrammeled and without permanent improvements or habitation, to qualify as wilderness, an area must be at least 5,000 acres or otherwise of “sufficient size as to make practicable its preservation and use in an unimpaired condition . . . .”[11] Wilderness designations include immense swaths of land, such as Death Valley National Park in California and Nevada, which contains more than three million acres, and the eight million acre Mollie Beattie/Arctic National Wildlife Refuge in Alaska. However, small areas amenable to preservation and use in unimpaired condition are also included in the system. For example, the Rocks and Islands Wilderness in California encompasses nineteen acres of coastal shoreline, reefs, and islands situated within the Pacific flyway, and the Pelican Island Wilderness—which was initially set aside as a bird haven by President Theodore Roosevelt in 1903—covers a mere six acres of lagoons within the Indian River in Florida.[12]

As for “primeval character and influence,” a wilderness area must “generally appear[] to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable. . . .”[13] It must also have “outstanding opportunities for solitude or a primitive and unconfined type of recreation. . . .”[14] In addition, wilderness areas may “contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”[15] This provision is discretionary, and does not require that areas be selected for their ecological or other listed values.[16] As a result,

“many wilderness areas were chosen for reasons other than their ecological amenities. Unlike the National Wildlife Refuge System . . . the wilderness system was not designed to ensure that areas with the most biodiversity potential are included; rather, Congress and wilderness advocates . . . were more concerned with recreational and aesthetic virtues.”[17]

As Glicksman notes, this may have caused “more portions of the national forests, which tend to feature more spectacular scenery and opportunities for hiking and camping in wooded areas, than of the [BLM] public lands [to be] chosen as wilderness.”[18] This is true of NPS lands as well. Other than battlefields and other historic sites, most of the units within the National Park System were chosen for their scenery, in contrast to wildlife refuges, which were generally chosen for their value as habitat.

Once designated, the Wilderness Act imposes some of the most restrictive, nondiscretionary management constraints found in federal law to ensure that wilderness areas retain their wild characteristics. Specifically, the Act flat-out prohibits permanent roads and commercial activities.[19] It also limits motor vehicles, motorized equipment, mechanical transport, aircraft landings, structures, and installations.[20] With respect to this latter set of activities, the Act makes a narrow exception for intrusions “as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area).”[21] Wilderness managers are also directed to manage wilderness areas “so as to preserve . . . natural conditions,” but “natural” is not defined in the Act, leaving managers with a great deal of discretion in the implementation of this provision.[22]

In all, the National Wilderness Preservation System (“System”) includes 109.5 million acres spread across 757 wilderness areas.[23] Of that amount, forty-four million acres of wilderness are located in forty-nine units of the National Park System (this comprises 40% of the wilderness system and roughly half of the National Park System), while twenty-one million acres of wilderness land are found in sixty-three units of the Wildlife Refuge System (18% of the wilderness system and roughly one-quarter of the Refuge System).[24] According to Glicksman, the total acreage of wilderness areas administered by each agency is the “most obvious and objective manifestation of the differences in wilderness management experiences.”[25] Yet differences between the agencies in their implementation of the statutory prohibitions and exceptions and, more generally, their approaches to wilderness management go beyond the number of acres of wilderness under their jurisdiction.[26]

2. National Park Characteristics

The National Park System includes 401 units spanning eighty-four million acres of land.[27] In addition to national parks and monuments, there are dozens of battlefields, historical sites, recreation areas, parkways, and seashores.[28] Every state hosts at least one unit, as does the District of Columbia, American Samoa, Guam, Puerto Rico, and the Virgin Islands.[29]

The first national park, Yellowstone, is the core of one of the last intact natural ecosystems in the Earth’s temperate zone, containing endemic predators, such as Grizzly bears and gray wolves, the oldest free-ranging native bison herd in the country, and a diverse array of other animal and plant species.[30] Yellowstone and a number of other parks host unique geologic features, such as geysers, thermal pools, mudflats, lava tubes, hoodoos, canyons, and caves. The System is also known for its extensive historic and cultural resources, ranging from fossils of long-extinct species to centuries-old churches and other structures, and from petroglyphs to mountains and valleys that are sacred sites to Native American tribes.[31]

In addition to natural and historic features, the System contains an extensive network of roads and infrastructure. There are about 900 visitor centers and contact stations within the System. Over 630 concessionaires operate in 128 different park units, providing visitors with food, shops, transportation, and lodging options that range from four star hotels to modest campsites.[32]

Most of the largest national parks—especially those in the West—were created from existing public lands owned by the federal government.[33] Despite their size, historian Patricia Limerick notes that, “[w]ith arbitrary borders determined by political and economic expedience more than by science, no national park makes ecological sense.”[34] This is especially true in the East, where many areas were heavily settled and fewer federal lands remained for the creation of new parks. In some cases, Congress conditioned the creation of new parks on state acquisition of certain designated private lands. In other instances, private lands have been acquired to create new park units, but not always in fee simple absolute. Some of the newer parks—like Padre Island National Seashore, established in 1963—have jurisdiction over only the surface estate, while mineral interests own the subsurface. Even more recently, conservation partnerships and the acquisition of conservation or scenic easements have been employed to expand the park system without obliterating existing ownership patterns.[35]

Mixed ownership patterns, wide variations in visitation and surrounding urban and rural populations, and the diverse array of park designations and resources make comprehensive, cohesive management of the National Park System a challenge, even without the overlay of a wilderness designation. Adding wilderness areas to the mix makes it all the more complex.

3. Wildlife Refuge Characteristics

The National Wildlife Refuge System comprises over ninety-five million acres of federal lands divided into 540 units located across the fifty states. It is home to more than 700 species of birds, 220 species of mammals, 250 reptile and amphibian species, and 200 species of fish. Although other categories of federal land, including National Parks, provide habitat for a diverse array of species, the Refuge System is the only category dedicated only to wildlife.[36]

Today, the system includes wildlife refuges as well as game ranges, waterfowl production areas, migratory bird refuges, wildlife coordination areas, and several other land categories. Historically, federal wildlife refuges, such as the Pelican Island Bird Refuge, were designated individually by either the president or Congress, and each refuge had its own unique purpose. Many refuges were carved out of other types of federal lands, but some were purchased from, or donated by, private owners, sometimes with the assistance of birding and hunters’ groups.[37] Some refuges still allow farming and other types of activities that predated their designation.[38]

Topography ranges from expansive first- and second-growth forests and arctic tundra in Alaska, to deserts and shrublands in the Southwest, to islands and estuaries along both coasts and the Gulf of Mexico, to grasslands and prairie potholes in the Great Plains. The top ten largest wildlife refuges are found in Alaska, including two that exceed nineteen million acres. Several refuges in Montana, Nevada, and Arizona approach or exceed one million acres each.[39] Although it is not the largest, according to FWS, one of the most remote refuges in the contiguous United States is the 40,000 acre Ruby Lake in Nevada.[40] Many wildlife refuges in the South, Northeast, and Midwest are quite small, however, and a handful are under five acres. By contrast, the smallest refuge in Alaska, Izembek National Wildlife Refuge, spans 315,000 acres.[41] As a result, according to Robert Fischman, “[t]he National Wildlife Refuge System is a tangle of land units with widely varying sizes, purposes, origins, ecosystems, climates, levels of development and use, and degrees of federal ownership and Service control.”[42]

B. Agency History, Culture, and Organization

Wilderness management within the National Parks and Wildlife Refuges is shaped by the pre-Wilderness Act history of the two agencies, as well as their preexisting management policies and organizational structure. Although both agencies are located within the Department of Interior, there are nearly as many disparities between the two as there are commonalities. The Department of Interior’s organizational structure and jurisdictional sweep has been described by Patricia Limerick as “a crazy mosaic,” with the range of each agency or bureau within it enough “to make the head spin.”[43]

A common feature of both the NPS and the FWS is that each agency was created after a good number of parks and wildlife refuges had been created.[44] This Part of the Article teases out other commonalities and distinctions in pre-Wilderness Act agency history, along with the impacts of Wilderness Act passage on each agency, and then turns to current agency culture and organization.

1. Pre-Wilderness Act Agency History

According to Charles Wilkinson and Mike Anderson, “[t]he Forest Service can rightfully claim credit for pioneering the concepts and methods of wilderness planning.”[45] Moreover, “[t]he Forest Service . . . has remained, at the frontiers of administrative creativity and efficiency.”[46] Of course, the Forest Service’s commitment to wilderness preservation has waxed and waned over time, as has the wilderness commitment of other agencies, including NPS and FWS.[47]

a. National Parks

Long before Congress created the National Park Service with the passage of the Park Service Organization Act in 1916,[48] it had established an array of parks, ranging from national battlefields to Yellowstone, and several other scenic parks. In the 1890s, Congress established five Civil War battlefield parks, which, along with their associated cemeteries, were managed by the United States War Department.[49] Yellowstone’s establishment in 1872 was followed by three larger, scenic parks in the 1890s: Sequoia, Yosemite, and Mount Rainier.[50] Several archeologically significant sites, including Casa Grande Ruins and Mesa Verde, were established in the late 1800s and early 1900s as well,[51] along with spas surrounding thermal hot springs.[52] Meanwhile, the president utilized his authority under the Antiquities Act of 1906 to create several dozen national monuments, ranging from relatively small, archeologically significant sites to one of the deepest and most dramatic river canyons in the world (aptly named the Grand Canyon).[53] These too came under NPS jurisdiction in 1916.[54]

Some of the earliest and best known champions of the National Park System, such as John Muir, were among the first to espouse the value of preserving wild areas across the federal land holdings.[55] In 1888, Muir wrote, “Only by going alone in silence, without baggage, can one truly get into the heart of the wilderness. All other travel is mere dust and hotels and baggage and chatter.”[56] Muir’s expositions helped motivate Congress to declare Yosemite a National Park in 1890.[57] Nearly 100 years later, Congress, in apparent agreement with Muir, designated 94% of Yosemite as wilderness.[58]

NPS officials, on the other hand, were not terribly excited about wilderness preservation. Although by 1920 Stephen Mather, NPS’s first director, admitted that parts of both Yosemite and Yellowstone “should be maintained as a wilderness” and “wholly undeveloped,”[59] he enthusiastically supported increasing visitor access throughout the Park System. Mather, a former marketing director and owner of the detergent-mining company Borax, was determined to fulfill Interior Secretary Franklin Lane’s vision of making the parks a “national playground.”[60] Capitalizing on the nation’s newfound love for automobiles was, in Mather’s mind, the key to ensuring continued political and financial support for the system. This required roads, lodges, and other visitor facilities—lots of them. According to Robert Keiter, “[i]n a few short years, the early parks were literally transformed in appearance,” but the park superintendents called for even more roads and hotels, lest parks be left as “mere[] [] wilderness.”[61] On nearly all fronts, the Park Service sought not only to control but to subdue nature by fighting wildfires, eradicating wolves and other predators, corralling bison and baiting bears for the visitors’ viewing pleasure, all in order to provide a more entertaining and less threatening recreational experience.[62] As NPS historian Richard West Sellars notes, “more than anything else, park development simulated resort development.”[63]

Road building continued apace in the 1930s, aided by the employment of the Civilian Conservation Corps (CCC). By the end of the decade, the CCC had built more roads and other visitor facilities in the parks than had been completed in the previous fifty years.[64] NPS director Horace Albright felt some concern, and when he left the directorship in 1933, he cautioned his successors to resist proposals to “penetrate . . . wilderness regions with motorways and other symbols of modern mechanization.”[65]

The pace of development in the parks “set[] off alarm bells with conservationists,” including Bob Marshall, then chief forester of the Office of Indian Affairs.[66] In 1934, Marshall proposed a national wilderness preservation policy to Interior Secretary Harold Ickes, prompting Arno Cammerer, the new director of NPS, to protest: “we have [already] been able to conserve the vast bulk of the parks free from roads and buildings, and other artificialities.”[67] Nonetheless, Ickes worked to ensure that at least some portions of the Everglades, Kings Canyon, and other newly established parks would be treated as wilderness.[68] But in general, NPS did not believe that wilderness protection would be consistent with its recreational mission, nor did it feel that it needed official wilderness designations because in certain areas where preservation might be appropriate, the Organic Act already provided authority for it to protect backcountry values.[69] Discouraged with Interior’s response, Marshall subsequently asked to be transferred to the Forest Service, explaining:

Eighty percent of the roadless areas of 100,000 acres or more are in the national forests. The Park Service has wrecked most of its roadless areas and the possibility of saving the wilderness just from a sheer statistical standpoint lies primarily in national forests. . . .[T]he requirements of trail building machinery and large crowds are more important in their minds than the preservation of the primitive.[70]

When legislation was introduced in 1939 to authorize the President to declare wilderness areas in national parks and monuments, Marshall threw his support behind the bill.[71] The legislation died, while interest in development in the parks grew.

The post-World War II years brought new roads, lookouts, parking lots, visitor centers, hotels, ski resorts, tramways, and even dams.[72] Wilderness proponents continued to worry about the loss of wild areas, and in 1955, the Director of the Wilderness Society, Howard Zahniser, circulated a draft bill that required the “designation of wilderness zones in units of the National Park System,” as well as national forests, wildlife refuges, and Indian reservations.[73] Senator Hubert Humphrey introduced the bill in 1956.[74] As he explained:

Our national parks and many of our national monuments include within them our superbly beautiful pristine areas of wilderness. The chief threats to their preservation as such, under existing legislation, come from prospects for the extension of roads and the intrusion of recreation developments, perfectly good in themselves, that nevertheless are out of place in wilderness. Unless provision is made to protect the primeval within the parks, eventually the developments may take over.[75]

Humphrey conceded, however, that authorizing roads and accommodations in certain portions of the “primeval back country” of the parks may be necessary to “make them accessible and hospitable.”[76] Thus, the wilderness bill allowed the designation of additional areas for development, “but only after a public notice that will give all concerned an opportunity to weigh the importance of diminishing the area of wilderness.”[77]

At the time, NPS agreed that untrammeled, roadless lands in the National Park System had certain virtues:

[I]t is the part of a National Park that is not intensively used that makes a park, and the undeveloped wilderness beyond the roads furnishes the setting and the background. Take away the background, and the park atmosphere of the whole disappears, and with it a very large part of the pleasure of those whose only contact with wilderness is experienced as they look outward over it from the roadside.[78]

Even so, NPS was lukewarm, at best, about inclusion of its lands in the proposed Wilderness Act.[79] People wanted access, and gateway communities near the parks relied on tourism dollars.[80] NPS had just adopted a plan to give them what they wanted. “Mission 66,” announced in 1956, was a massive program designed to accommodate 80 million visitors by 1966 by adding more construction, development, utilities, and staffing.[81] Mission 66 was the brainchild of NPS director Conrad Wirth. Wirth, a landscape architect and recreation planner, feared that wilderness would interfere with his plans, but he also believed that there was simply no advantage to blanketing the parks with wilderness designations:

It is our belief that such primeval areas of national parks and monuments are, in fact, already wilderness areas with adequate protection against future nonconforming use. . . . 77othing would be gained from placing such areas in the National Wilderness Preservation System. . . . [W]e view with some apprehension any proposed law which will deal with our fundamental objectives and policy. What we have now can hardly be improved upon.[82]

Not everyone agreed. The conservation community was understandably skeptical. A 1962 report by the congressionally chartered Outdoor Resources Recreation Review Committee observed that NPS’s concept of wilderness was actually weakening the security of wildlands within parks and monuments.[83] The report concluded that NPS’s approach was far more subjective and far more subject to change by the “stroke of a pen” than the Forest Service’s relatively consistent approach to wilderness protection through zoning and other, more objective measures.[84]

NPS softened its position on wilderness legislation with the arrival of President Kennedy and his Interior Secretary Stuart Udall, who strongly supported the legislation.[85] By 1964, when Congress finally passed the Wilderness Act, the National Park System was included, and NPS “reluctantly reconciled” itself to wilderness designations.[86] It issued regulations governing wilderness reviews and recommendations in 1966 and chose Great Smoky Mountains National Park as its “pilot” wilderness proposal.[87] The wilderness would include nearly 250,000 acres, but it was split by a proposed transmountain highway running from North Carolina to Tennessee. NPS carved out the main line and inner loop roads from its proposed wilderness. The conservation community’s opposition was unified and vocal.[88] Great Smoky and other early proposals prompted Sierra Club Director Michael McCloskey to accuse NPS of attempting to isolate “a series of [wilderness] islands within a sea of various levels of development.”[89] To date, wilderness has not been designated in Great Smoky.[90]

Through the early 1970s, NPS continued to move at a snail’s pace on its wilderness proposals. Many of the recommendations that did get forwarded to Congress were far more modest than many wilderness advocates had hoped, and excluded far too many “enclaves” surrounding aircraft landing strips, snow gauges, fire towers, grazing lands, and ranger cabins.[91] At the urging of a number of congressmen—including Senator Frank Church, who had been the floor manager of the Wilderness Act in 1964—NPS eventually grew more willing to expedite its proposals and to include areas with modest developments.[92] Yet it seems fair to say that NPS’s decades-long promotion of intensive recreational development and its historic bias against having an overlay of highly restricted, congressionally designated wilderness areas within the National Park System continue to color NPS’s wilderness management approaches.[93]

b. FWS

The FWS traces its origins back to 1871, when Congress created the United States Commission on Fish and Fisheries in the Department of Commerce to study population declines of fish species harvested for food.[94] It also has roots in the Division of Economic Ornithology and Mammalogy, created in 1885 in the Department of Agriculture to study the effects of birds in controlling agricultural pests and to track the geographical distribution of animal and plant species throughout the country.[95] Over the years, these entities were folded into the Bureau of Fisheries and the Bureau of Biological Survey (BBS), and the responsibilities of the BBS were expanded to include management of national wildlife refuges.[96] Both entities were eventually moved to the Department of the Interior and, in 1940, were combined to create the FWS.[97]

In addition to legislation governing the management of the wildlife refuge system, FWS administers several other historic wildlife conservation statutes with land management implications. Earliest among them was the Migratory Bird Treaty Act (MBTA) of 1918, which protects bird species in accordance with international treaties with Mexico, Canada, Japan, and the former Soviet Union.[98] The MBTA prohibits the killing of migratory birds “by any means in any manner,” unless specifically authorized by federal regulation.[99] Although courts are split regarding the MBTA’s application to habitat degradation, FWS has occasionally used the statute to prosecute defendants whose pollution or habitat destruction results in actual bird mortality.[100] A number of wildlife refuges were created to satisfy the objectives of the MBTA.[101]

The Fish and Wildlife Coordination Act of 1934 directs the Department of the Interior to cooperate with federal and state agencies as well as public and private organizations in developing, protecting, and increasing wildlife resources.[102] In particular, it requires consideration of wildlife conservation in developing water resource development programs. Any federal agency that proposes to impound, divert, or otherwise modify a water body for any purpose must consult with FWS and the state agency with jurisdiction over wildlife resources in order to prevent damage to such resources.[103]

The 1970s ushered in two landmark species conservation statutes—the Marine Mammal Protection Act (MMPA) of 1972, which protects seals, whales, porpoises, polar bears, and other mammals that inhabit the marine environment,[104] and the Endangered Species Act (ESA) of 1973, which protects federally listed animal and plant species and their critical habitat.[105] Both are administered primarily by FWS, and both strive to conserve species and their habitat. The objective of the MMPA is “to maintain the health and stability of the marine ecosystem,”[106] and while it focuses on preventing the “take” of protected species, it also includes provisions for conservation, habitat acquisition, and improvement.[107] The Refuge System includes 107 coastal and marine ecosystems within the National System of Marine Protected Areas.[108]

The ESA prohibits “take” (including habitat destruction that injures a listed species), requires FWS to consult with other federal agencies to ensure that their actions avoid jeopardizing the species or degrading its critical habitat, and authorizes habitat acquisition and other land conservation measures.[109] Due to these strict requirements, no other federal statute has had such a profound impact on land management in all categories of federally owned lands.[110] The ESA has also triggered the acquisition of at least fifty-six wildlife refuges, including Oklahoma Bat Cave Refuge and Florida’s Crystal River Refuge for manatees.[111]

Although FWS is historically a wildlife agency, its mission goes beyond managing species’ propagation. Its responsibilities for the National Wildlife Refuge System has propelled it to the spotlight as a major federal land management agency, with jurisdiction over 150 million acres of land.[112]

Managed growth of the national wildlife refuge system began with the appointment of Ding Darling as the head of FWS’s predecessor, the BBS, by President Franklin D. Roosevelt in 1935.[113] In 1940, Roosevelt issued a proclamation standardizing the names of refuge units as “wildlife refuges,” and characterizing a utilitarian purpose for the system: “conservation and development of the natural wildlife resources [so they] may contribute to the economic welfare of the Nation and provide opportunities for wholesome recreation.”[114]

Darling recruited J. Clark Salyer to manage the fledgling refuge system.[115] The FWS describes Salyer as the “father of the refuge system,” and “the primary driving force in selecting new refuge areas and campaigning for their acquisition, in defending their integrity, in protecting the wildlife which they harbored, and in seeing that refuges were administered and managed to best serve the wildlife resource.”[116] When Salyer retired in 1961, refuge acreage had grown from 1.5 million acres to nearly twenty-nine million acres.[117]

Congress provided explicit authority to FWS to acquire and develop refuge lands for the conservation of wildlife in the Fish and Wildlife Act of 1956.[118] Like Roosevelt’s 1940 proclamation, the Fish and Wildlife Act is couched in economic terms: “the fish, shellfish, and wildlife resources of the Nation make a material contribution to our national economy and food supply, as well as a material contribution to the health, recreation, and well-being of our citizens . . . [and] such resources are a living, renewable form of national wealth. . . .”[119] Under the 1956 Act, the FWS gained official recognition as a federal agency within the Department of Interior.[120]

The wildlife refuge system is critical for providing habitat for a wide variety of species, but it is also important for promoting outdoor recreation. To facilitate the increasing recreational demands on the wildlife refuges, Congress passed the Refuge Recreation Act of 1962 to authorize recreational uses as long as they were not “inconsistent” with the individual refuge’s primary wildlife related purposes.[121] The system’s popularity for recreational pursuits continued to grow, as did the nation’s concern about the extinction of wildlife species, and Congress passed the National Wildlife Refuge System Administration Act of 1966 to address the increased pressure of recreational use and to ensure wildlife conservation.[122] The 1966 Act requires activities to be “compatible” with the individual refuge’s “major purposes.”[123] It also consolidated the various land units managed by FWS into a Wildlife Refuge System, and applied an overarching conservation mandate to recreation and all other uses of the system.[124] The 1966 Act turned away from the utilitarian language of the Roosevelt proclamation by dropping the reference to “development” and by explicitly including restoration in the mission of the system.[125]

Much like the National Park System, many National Wildlife Refuges had been created long before Congress passed the Wilderness Act of 1964.[126] However, the controversy surrounding wilderness application to national wildlife refuge lands appears to have been less heated, or at least less publicized, than it was for the National Parks. Issues regarding institutional reorganization, financing for refuge lands, and recreational use preoccupied the FWS and its predecessor agencies prior to 1960. Financing for the purchase of new lands and for the management of established refuges was an especially vexing problem.[127]

In addition, the reorganization of federal agencies had a direct impact on the management of wildlife refuges.[128] Prior to the creation of the FWS, wildlife refuge management rested primarily with the BBS, which was housed in the Department of Agriculture.[129] Due to this early organizational structure, “refuges were closer institutional cousins to the national forests than to Interior Department lands such as national parks.”[130] Even after the creation of FWS, refuges were managed idiosyncratically, without any comprehensive, overarching strategy for system-wide management. Congress addressed this problem, in part, by passing the Refuge Recreation Act in 1962, but it was concerned primarily with the vastly expanding recreational use of refuge lands.[131] Although Congress consolidated the units managed by FWS into a National Wildlife Refuge System in the 1966 Refuge Administration Act,[132] refuges were not managed as an integrated system with an overarching, comprehensive mandate until much later, when Congress passed the 1997 Refuge Administration Improvement Act.[133]

Despite the statutory emphasis on conservation, as Professor Coggins explained, the FWS has remained “heavily  influenced by state agency opinions, and state game agencies were in turn highly responsive to hunter desires.”[134] However, Coggins believes that, due to a “revolution in administrative law and procedure” and “better information, broader education of biologists, and the initiatives of wildlife partisans, . . . [the] [historic] emphasis upon hunting . . . is undergoing great change.”[135] Even so, when it comes to both refuge administration and ESA listings, state officials continue to exert pressure on FWS to promote state interests in recreation and economic development.[136] This relationship has, at times, dampened FWS’s enthusiasm for wilderness preservation.[137]

2. Timing and Impact of Wilderness Application

Upon enactment of the Wilderness Act of 1964, Congress designated nearly ten million acres of “instant” wilderness areas from lands that already had preservation status (wild, wilderness, and canoe areas) within the National Forests.[138] Going forward, the Wilderness Act required the Departments of Agriculture and of Interior to review National Forest lands as well as NPS and FWS lands for wilderness potential.[139] The Department of Interior was directed to give wilderness recommendations to the President on all roadless areas of at least five thousand acres within national parks and wildlife refuges.[140] Congress, however, retained the sole authority to designate wilderness areas.[141]

Over the years, nearly thirty-seven million acres in the National Parks have been added to the National Wilderness Preservation System, most of which were established in 1980 with the passage of the Alaska National Interest Land Conservation Act (ANILCA).[142] Today, NPS manages the most wilderness acreage of any agency, weighing in at nearly forty-four million acres in total, which comprises about 40% of the federal wilderness system.[143] It also manages the largest wilderness area—the nine million acre Wrangell-Saint Elias Wilderness in Alaska—and several of the newest areas, including the Beaver Basin Wilderness in Michigan, which includes thirteen miles of Lake Superior’s shoreline, and the Rocky Mountain National Park Wilderness, with around 250,000 acres.[144]

Although wilderness designations are now found throughout the Park System, there are some notable exceptions. Three of the most iconic National Parks—Yellowstone, Glacier, and Grand Canyon—have no designated wilderness areas within them.[145] More generally, according to Professor Keiter, NPS has been “seriously laggard in seeking wilderness protection for its lands and has yet to complete the wilderness review process required by the 1964 Wilderness Act.”[146] From the beginning, NPS responded “timidly” with its recommendations to the president. It made no formal recommendations until 1970, and even then it flagged only the most remote portions of its parks for protection. Although it was required to submit a complete list of recommendations within ten years of enactment, as late as 2000, NPS had not yet conducted wilderness reviews for thirty-nine units of the Park System.[147] Moreover, when it finally did submit its recommendations, it was reluctant to champion them in Congress, leaving many of the most hotly contested areas vulnerable to development.[148]

Within the National Wildlife Refuge System, there are over twenty million acres of designated wilderness. The first area to receive wilderness status was the Great Swamp National Wildlife Refuge in New Jersey in 1968.[149] Banner years for wilderness additions include the 1980 passage of ANILCA, and the 1984 passage of statewide wilderness acts for federal lands in California, Oregon, Washington, and Arizona.[150] The most recent additions were included in the 1994 California Desert Conservation Area Act, which designated the Havasu National Wildlife Refuge and the Imperial National Wildlife Refuge, both straddling Arizona and California.[151]

The Refuge System includes both the smallest wilderness area—the two-acre Wisconsin Islands Wilderness in Green Bay National Wildlife Refuge—and one of the largest wilderness areas—the eight million acre Arctic National Wildlife Refuge wilderness in Alaska.[152] Approximately ninety percent of Refuge System wilderness is found in Alaska.[153] Alaskan wilderness areas tend to be more remote, less developed, and less compromised than wilderness areas in the contiguous United States. ANILCA provides that in light of these “unique conditions,” and the need for both subsistence use and access by Native Alaskans and rural residents, ANILCA’s provisions should not be construed as diminishing or modifying the requirements of the Wilderness Act or the interpretation of the Wilderness Act on lands outside of Alaska.[154]

In contrast to the National Park System, no new wilderness areas have been designated in the Refuge System since 1994.[155] Recommendations for new refuge wilderness designations continue to lag. In 1989, the General Accounting Office found that as a result of restrictive criteria issued by FWS’sDirector, FWS recommended that only 3.4 million acres in Alaska’s refuges be designated as wilderness, which was less than seven percent of the area that FWS’s planning teams found qualified as wilderness.[156]

3. Modern Agency Culture and Organization

NPS is governed by a Director, several deputy directors and associate directors, and seven regional directors. The Director establishes national policy, determines legislative strategies, and guides the implementation of NPS goals and objectives. The regional directors oversee all park superintendents within their regions, and are responsible for strategic planning, formulation of strategies for parks and programs within the region, and compliance with national policies and priorities.[157] Today, there are over 20,000 NPS full time employees, including archeologists, landscape architects, biologists, and law enforcement officers, and thousands of seasonal employees.[158]

FWS currently employs around 7,500 people in it headquarters in Washington, D.C., seven regional offices, and nearly 700 field units.[159] Wildlife refuge management is included within the FWS’s Division of Natural Resources, and is headed by the Assistant Director of the National Wildlife Refuge System.[160] Wilderness responsibilities are vested in the Director, the Assistant Director, and the National Wilderness Coordinator, who advises the Assistant Director on wilderness issues and coordinates wilderness stewardship policies with other wilderness management agencies.[161]

The two agencies share an Assistant Secretary for Fish and Wildlife and Parks, and they both obtain legal advice from the Deputy Solicitor for Parks and Wildlife.[162] These positions provide guidance and oversight for the two agencies, and can serve as a unifying force to ensure that the priorities and policies of the Secretary of Interior and the President are met in a systematic way. However, as Professor Glicksman explains, agency cultures still differ markedly from one another, and these differences affect how agencies implement their statutory responsibilities.[163] The requirements and goals of the Organic Acts of the two agencies are also quite different, and these differences influence how the agencies manage wilderness.

C. Contours of the Agencies’ Statutory Mandates

1. The Park Service Organic Act

Under the Organic Act of 1916, the NPS must “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[164] When the dual purposes of conservation and public use conflict, NPS must find an appropriate balance. Courts have insisted, “[t]he test for whether the NPS has performed its balancing properly is whether the resulting action leaves the resources ‘unimpaired for the enjoyment of future generations.’”[165] But as Robert Fischman observed, “the Organic Act sets up an elegant tension between providing for enjoyment (often interpreted as recreation) and leaving units unimpaired (often interpreted as preservation).”[166]

In addition to the Organic Act, units within the National Park System are also governed individually by park-specific legislation and planning documents. Each unit must uphold the mission of the park system as well as the purposes set forth in the specific legislation under which it was created.[167]

At times, NPS has asserted that the conservation mandate of the Organic Act provides the same level of protection as the preservation mandate of the Wilderness Act, such that wilderness designation resulted in little change to an area’s management.[168] However, as Michael McCloskey observed: “‘It is obvious that Congress could only have intended . . . that wilderness designation of National Park System lands should, if anything, result in a higher, rather than a lower, standard of unimpaired preservation.’”[169]

2. The Refuge Acts

Two years after the passage of the Wilderness Act, Congress organized the widely scattered national wildlife refuge lands into a unified system by passing the National Wildlife Refuge System Administration Act of 1966.[170] The Act sets forth the primary purpose of the system: “the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.”[171] It limits secondary uses of the land to those uses “compatible with” the primary purpose.[172] It allows recreational uses to the extent such uses are “not inconsistent with” and do “not interfere with” the primary purpose.[173]

Despite the statutory directives, in 1989, the General Accounting Office concluded that FWS was allowing harmful secondary uses—such as boating, grazing, timber harvest, and public use—on 59% of the refuges.[174] In 1996, President Clinton issued Executive Order 12,996 to reform refuge management and to establish an overriding conservation mission for the system.[175] The Executive Order prompted Congress to enact the National Wildlife System Refuge Improvement Act of 1997.[176]

The Improvement Act maintained all of the major provisions of the 1966 Act, but added new provisions intended to subordinate human uses to wildlife conservation and to promote “biological integrity, diversity, and environmental health.”[177] The Act also requires the FWS to prepare and implement comprehensive conservation plans for each refuge.[178]

The Improvement Act emphasizes that all activities within a refuge must be compatible with the system’s conservation purpose. A “compatible use” is one that “will not materially interfere with or detract from the fulfillment of the mission of the System or the purpose of the refuge.”[179] Wildlife-dependent recreational uses—such as environmental education, interpretation, wildlife photography, hunting, and fishing—are considered a priority use, and are generally deemed compatible unless the refuge manager finds otherwise.[180] All other uses—including grazing, oil development, timber harvesting, and nonwildlife related recreation—receive a lower priority ranking, and are prohibited when they conflict with the National Wildlife Refuge System mission, contradict the purposes for which the individual refuge was created, or materially interfere with wildlife-dependent uses.[181] FWS’s guidelines for determining the compatibility of proposed uses explain that uses that may “conflict with th[e] directive to maintain the ecological integrity of the System are contrary to fulfilling the National Wildlife Refuge System mission and are therefore not compatible.”[182]

The 1997 Act is far more detailed, and provides far more specific substantive management criteria, than does the NPS Organic Act of 1916.[183] As a result, FWS’s management discretion is bounded by relatively discrete congressional parameters, and the legally binding statutory requirements of the 1997 Act can be more easily enforced through judicial review. That said, FWS still has a great deal of discretion in determining whether public uses are compatible with the purposes of any individual refuge and the system as a whole, and whether and when management intervention might be warranted to protect or restore refuge conditions.[184]

D. Agency Rules, Policies, and Procedures

As described above, the organic statutes for both the Park Service and the FWS embrace conservation principles.[185] In exercising the discretion afforded by the conservation mandate, however, both agencies have fluctuated between more and less protective regimes. Differences between the two agencies are a product of the factors discussed above in Parts A–C, including agency history, culture, organization, and statutory missions. In addition, the agencies’ regulations, policies, and planning requirements influence how wilderness is managed and preserved in both systems.

1. National Parks

The NPS does not have formal, binding regulations governing wilderness preservation in the National Park System.[186] Instead, its wilderness management guidelines are found in the NPS Management Policies, manual provisions, and general management plans.[187]

The NPS Management Policies contain the agency’s interpretation of the Organic Act and other statutory requirements, including the Wilderness Act.[188] The Policies allow some effects to park resources when necessary to fulfill the purposes of a park, so long as the effects stay below the threshold of “impairment” to affected resources and values.[189] When there is a conflict between conserving resources and providing for their enjoyment, the Policies insist that conservation predominates.[190] Because the threshold at which “impairment” occurs is not always apparent, NPS strives to avoid “unacceptable impacts,” including those that individually or cumulatively “diminish opportunities for current or future generations to enjoy, learn about, or be inspired by park resources or values” or impede the attainment of desired park conditions.[191]

The Policies include several provisions directly relevant to wilderness management. First, they require park superintendents to “develop and maintain a wilderness management plan or equivalent planning document to guide the preservation, management, and use of these resources.”[192] This plan should specify desired future conditions for wilderness areas and “establish indicators, standards, conditions, and thresholds beyond which management actions will be taken to reduce human impacts to wilderness resources.”[193] Wilderness management plans should also contain “specific, measurable management objectives that address the preservation and management of natural and cultural resources within wilderness as appropriate to achieve the purposes of the Wilderness Act and other legislative requirements.”[194]

Wilderness plans have been slow in coming. NPS’s own national wilderness coordinator criticized the agency for failing to issue wilderness management plans in a timely fashion.[195] As of 2004, nearly three-fourths of the NPS’s wilderness areas did not have wilderness management plans in place.[196] When The Wilderness Society attempted to force NPS to follow the Policies and issue management plans for designated wilderness areas, its claims were dismissed. The court held that the Policies are not judicially enforceable, because they had not been promulgated as official rules and because they contained general statements of policy rather than specific directives.[197] According to the court, the Policies are “no more than a set of internal guidelines for NPS managers and staff.”[198]

Unenforceable though they are, the Management Policies are not unimportant. NPS treats the Policies as the “Level 1” top-tier directive in its hierarchy of internal instructions and guidance, and NPS officers and staff look to it for direction.[199] In addition to the wilderness planning guidelines, the Policies provide substantive guidelines regarding activities and processes in wilderness areas. Chapter six, on Wilderness Preservation and Management, directs NPS managers to allow “natural processes . . . insofar as possible, to shape and control wilderness ecosystems.”[200] However, management intervention is allowed “to the extent necessary to correct past mistakes, the impacts of human use, and influences originating outside of wilderness boundaries.”[201]

Intrusion into wilderness is also allowed for scientific activities “when the benefits of what can be learned outweigh the impacts on wilderness resources or values.”[202] Chapter six cautions that scientific activities must be evaluated to ensure that they are the “minimum requirement” for managing wilderness.[203] The minimum requirement concept is applied as a two-step process that determines whether the proposed action is 1) appropriate or necessary for administration, and 2) does not cause a significant impact to wilderness resources and character. At step two, the NPS manager must analyze the techniques and types of equipment needed to ensure that impacts are minimized.[204] Chapter six provides that, “[w]hen determining minimum requirements, the potential disruption of wilderness character and resources will be considered before, and given significantly more weight than, economic efficiency and convenience.”[205] It also notes that the use of motorized equipment or mechanical transport may be authorized in “emergency situations (for example, search and rescue, homeland security, law enforcement) involving the health or safety of persons actually within the area,” but only if they are the minimum tool that will address the emergency situation.[206]

The NPS Management Policies are supplemented by Director’s Order #41 on Wilderness Stewardship, issued in 2013.[207] Director’s Orders provide the next level of guidance to park managers. They “capture the Director’s expectations” by prescribing operating policies, instructions, and standards for specific functions, programs, and activities.[208] Order #41 addresses wilderness training requirements, wilderness reviews and boundaries, and wilderness stewardship strategies. In particular, the Order identifies the goal of wilderness stewardship: “to keep these areas as natural and wild as possible in the face of competing purposes and impacts brought on by activities that take place elsewhere in the park and beyond park boundaries.”[209] It directs managers of wilderness areas within parks to “integrate the concept of wilderness into park planning, management, and monitoring in order to preserve the enduring benefits and values of wilderness for future generations.” The values of wilderness are described in terms of “biophysical, experiential, and symbolic ideals” of areas that are “(1) untrammeled, (2) undeveloped, (3) natural, (4) offer[] outstanding opportunities for solitude or primitive and unconfined recreation, and (5) other features of scientific, educational, scenic, or historical value.”[210] The Order provides additional details on the timing and application of the “minimum requirement” concept, generally and as it relates to fire management, invasive species management, and other activities.[211]

The Order specifically addresses two types of increasingly popular activities occurring in the National Parks—commercial filming and rock climbing.[212] It states that filming should not occur in wilderness unless it necessarily must take place in wilderness (presumably, if the plot involves wilderness characteristics that cannot be found elsewhere, such as Into the Wild and 127 Hours).[213] If filming does occur in wilderness, it must be the minimum amount of activity for the shortest period of time possible. Even so, park managers are directed to help the applicant find suitable locations outside of wilderness.[214] For climbing, the Order provides that clean climbing techniques that rely on temporary, removable equipment “should be the norm,” and that “[f]ixed anchors or fixed equipment should be rare in wilderness.”[215]

In addition to the Management Policies and Director’s Order, NPS’s Wilderness Stewardship Reference Manual #41 provides yet another layer of guidance to NPS employees in managing and protecting wilderness character and resources.[216] Reference Manuals provide the third level of NPS directives, and typically include relevant regulations, policies, and other instructions or requirements, along with examples and recommended practices.[217]

Reference Manual #41 expressly provides, “[w]ilderness is to be given supplemental and permanent protection beyond that normally afforded other back country resources.”[218] To dispel any misconceptions, it continues:

[T]he Wilderness Act of 1964 . . . provides a degree of protection to the resources of the National Park Service Organic Act does not. . . .

While the National Park Service Organic Act and the Wilderness Act speak in comparable terms about preserving integrity resources, the Wilderness Act prohibits activities in national park wilderness that the Organic Act permits or leaves open to interpretation by park managers. The effect of the Wilderness Act is to unambiguously place an additional layer of protection on wilderness within the National Park System.[219]

Apparently, NPS managers have sometimes failed to distinguish between wilderness areas and backcountry lands, which are “primitive, undeveloped portions of parks” that have not been congressionally designated as wilderness and that are not subject to the statutory requirements and prohibitions of the Wilderness Act.[220] In addition to Reference Manual #41, a 2005 Guidance Paper issued by the National Wilderness Steering Committee pointedly reminds NPS managers to recognize the distinction between wilderness and backcountry lands: “there should be no question that [wilderness] decisions must be analyzed and framed differently than similar decisions for backcountry given the language and intent of the law.”[221] In either case, NPS managers must avoid impairment to park resources, but they have much greater discretion over activities and structures in the backcountry than in wilderness areas.[222]

Finally, within each individual park unit, the General Management Plan (GMP) for that unit further defines the direction for resource preservation and visitor use.[223] In particular, GMPs must include measures for preserving the area’s resources, for managing the types and intensity of development, and for establishing visitor carrying capacity and other “implementation commitments.”[224] GMPs also provide a mechanism through which NPS evaluates wilderness characteristics and suitability within the National Park System.[225] The planning guidance provides:

“[I]f lands and waters in a park have not been analyzed for possible designation as wilderness . . . , an assessment should be conducted within the general management planning process [and] . . . potentially eligible resources . . . should be zoned accordingly in the GMP to protect the wilderness or wild and scenic river values until such time as a formal study is completed and Congress acts on the agency’s proposal.[226]

Although wilderness reviews are not required in conjunction with each GMP, coordination of the two is seen as “an economical way to achieve multiple responsibilities.”[227] GMP’s are to be reviewed and revised every 10 to 15 years, or sooner if conditions change significantly.[228] Not all parks have up-to-date GMP’s; in fact, it appears that most parks do not have a GMP, thereby limiting their usefulness to National Park System management.[229]

2. Wildlife Refuges

In contrast to NPS, the FWS promulgated binding wilderness regulations in 1971, with amendments in 1972.[230] The regulations generally track the prohibitions and exceptions of the Wilderness Act.[231] More specifically, they give the FWS Director broad power to “prescribe conditions under which motorized equipment, mechanical transport, aircraft, motorboats, installations, or structures may be used to meet the minimum requirements for authorized activities to protect and administer the wilderness.”[232] They also empower the Director to “prescribe the conditions under which such equipment, transport, aircraft, installations, or structures may be used in emergencies involving the health and safety of persons, damage to property, violations of civil and criminal law, or other purposes.”[233]

By statute and by regulation, public uses within the National Wildlife Refuge System are treated quite differently than public uses of National Parks. Unlike the Park System, wildlife refuges are generally closed to public access unless a decision is made to open them, following a compatibility determination.[234] The FWS’s wilderness regulations specify that refuge managers may regulate public access and use by “limiting the numbers of persons allowed in the wilderness at a given time, imposing restrictions on time, seasons, kinds and location of public uses, requiring a permit or reservation to visit the area, and similar actions.”[235]

The regulations also provide that refuge managers may provide “[l]imited public use facilities and improvements . . . as necessary for the protection of the refuge and wilderness and for public safety.”[236] They caution that facilities and improvements are not allowed simply for the comfort and convenience of wilderness visitors.[237] Yet the regulations authorize public services by packers, outfitters, and guides, along with certain temporary installations and structures, as “necessary” for realizing recreational or other wilderness purposes.[238]

Although the regulations specify that management activities in forests within refuge wilderness areas should be aimed at letting natural ecological processes operate freely, they state, “[t]o the extent necessary, the Director shall prescribe measures to control wildfires, insects, pest plants, and disease to prevent unacceptable loss of wilderness resources and values, loss of life, and damage to property.”[239] They also commit to controlled burning “when such burning will contribute to the maintenance of the wilderness resource and values in the unit.”[240]

As for rangelands within the refuges, FWS’s wilderness regulations specify that “[t]he Director may permit, subject to such conditions as he deems necessary, the maintenance, reconstruction or relocation of only [pre-existing] livestock management improvements and structures.”[241] They also provide that “[n]umbers of permitted livestock . . . may be more restrictive” than had been the case prior to wilderness designation.[242] The Wilderness Act expressly authorizes continued livestock grazing on National Forest lands where established prior to September 3, 1964.[243] Established grazing continues in some Department of Interior wilderness areas as well.[244] Grazing has been a particularly controversial economic use of the refuges within wilderness and wilderness study areas.[245]

In addition to the regulations, the FWS adopted a Wilderness Stewardship Policy in 2008 to govern wilderness planning, management, and recommendations for inclusion in the wilderness system.[246] As with NPS policies, the FWS Wilderness Stewardship Policy provides guidance, but it is probably not legally enforceable.[247]

The FWS Policy outlines the planning processes that refuge managers must follow in crafting wilderness stewardship plans (WSPs) for wilderness areas and in incorporating wilderness concerns into the comprehensive conservation plans (CCPs) for refuges.[248] It provides that WSPs, which are used to guide the preservation and use of wilderness areas, should include descriptions of baseline wilderness conditions and existing public uses, objectives for the wilderness area, minimum requirements analyses for activities within the area, stewardship strategies for natural resources and recreation, and implementation schedules.[249] Like CCPs, WSPs should be revised when significant changes occur, and at least every fifteen years.[250]

As for wilderness management, the FWS Policy states that refuge managers generally will not modify ecosystems with prescribed fires, new structures, water impoundments, or interventions into species population levels or natural processes in wilderness areas.[251] However, the Policy provides an exception when such actions are necessary to accomplish wilderness or refuge purposes, to maintain or restore biological integrity, diversity, or environmental health, or as necessary to protect or recover threatened or endangered species.[252]

The FWS Policy also guides the determination of whether a proposed refuge management activity, such as restoring habitat for a threatened or endangered species, constitutes the minimum requirement for wilderness management. It calls for the use of the “minimum tool,” defined as “[t]he least intrusive tool, equipment, device, force, regulation, or practice determined to be necessary to achieve a refuge management activity objective in wilderness.”[253]

Over the last 12 months, Genroe has been privileged to work with nib health funds (one of Australia’s fastest growing health funds) to help them evolve their Net Promoter Score processes. In that time, we helped them implement CustomerGauge, an end to end, integrated, Net Promoter Score data collection, reporting, analysis and action system.

In the past, nib has allowed us to publish insightful information in two blog posts:

Now, the full story behind the successful NPS implementation process has been captured in a new case study: nib health funds: Checking Up On Customer Loyalty.

In this case study, nib offers more insights into the changes they have made using NPS insights:

“Based on the customer feedback, nib has implemented the following specific changes to its claims processes in order to improve the customer experience:

1. Faster processing and payment of customer claims. Claims are also now paid directly into a customer’s account.

2. Simplification and streamlining of Orthodontia claims processes.

3. Simplification of online claiming through the improvement of internal processes.

4. Improved communication by consultants to customers about items covered under individual policies to help reduce confusion surrounding hospital out-of-pocket expenses

5. Instantaneous delivery of key paperwork, allowing customers to receive and discuss such items during the course of a call with a consultant. This has had a significant positive effect on customer satisfaction and nib’s  goal to answer customer queries at the first point of contact.”


Download the full case study here: nib health funds: Checking Up On Customer Loyalty.

More Information

If you are thinking about implementing a Net Promoter Score process in your organisation, give us a call. We can help you to implement right systems and change management program for your organisation to drive long term success.


Filed Under: Case Studies and Statistics, Net Promoter ScoreTagged With: #voc, netpromoter, NPS

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