THE WILDERNESS ACT OF 1964
Congress enacted the Wilderness Act in 1964 to “establish a National Wilderness Preservation System for the permanent good of the whole people . . . .” Congress intended that the Act would secure for present and future generations of Americans an “enduring resource of wilderness” by creating areas that “shall be administered for the use and enjoyment of the American people in such a manner as to leave them unimpaired for future use and enjoyment as wilderness . . . . ”
The Wilderness Act defines “wilderness” as:
[A]n area where the earth and its community of life are untrammeled by man, where man himself is a visitor and does not remain. An area of wilderness is further defined to mean . . . 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; 3) 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) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
Under Congress’ express designation of the Cumberland Island Wilderness and NPS’s own internal management policies (Management Policies 6.3.1),potential Wilderness must be managed in the same manner as Wilderness.
THE CUMBERLAND WILDERNESS AREA ACT
The Cumberland Wilderness Area was created by Congress in 1982. Congress designated 8,840 acres as the Cumberland Island Wilderness and an additional 11,718 acres as potential Wilderness, consisting of a large portion of the northern two-thirds of the island. The area of potential Wilderness consists largely of the lands and salt marshes surrounding the Wilderness.
THE CUMBERLAND ISLAND NATIONAL SEASHORE ACT
Recognizing the unique natural habitats of Cumberland Island and the importance of preserving and maintaining the Island in its natural state, Congress established the Cumberland Island National Seashore on October 23, 1972. The boundaries of the national seashore encompassed the entire island. 16 U.S.C. § 459i. As a national seashore, Cumberland Island is managed by the National Park Service (NPS), with whom lies all responsibility for enforcement of park service regulations.
The enabling legislation specifically provides that, apart from limited recreational development, the “seashore shall be permanently preserved in its primitive state, and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions not (sic) prevailing.”
THE U.S. 11th CIRCUIT COURT OF APPEALS: WILDERNESS WATCH V. MAINELLA
In the case Wilderness Watch v Mainella, 375 F.3d 1085 (11th Cir. 2004) the United States 11th Circuit Court of Appeals determined that National Park Service and Greyfield Inn violated the Wilderness Act by using motor vehicles to transport park visitors through the Cumberland Wilderness Area.
In court, the Park Service argued that the “preservation of historic structures in wilderness is in fact administration to further the purposes of the Wilderness Act.” The court reaffirmed the overaching purpose of the Wilderness Act, declaring that “any obligation the agency has under the NHPA [National Historic Preservation Act] to preserve these historical structures must be carried out so as to preserve the ‘wilderness character’ of the area.”
In court, Wilderness Watch addressed the incompatibility of motor vehicle use within the context of wilderness values.
The prohibition on motor vehicle use in the Wilderness Act stems from more than just its potential for physical impact on the environment. The Act seeks to preserve wilderness areas “in their natural condition” for their “use and enjoyment as wilderness.” 16 U.S.C. § 1131(a) . The Act promotes the benefits of wilderness “for the American people,” especially the “opportunities for a primitive and unconfined type of recreation.” Id. at § 1131(c). Thus, the statute seeks to provide the opportunity for a primitive wilderness experience as much as to protect the wilderness lands themselves from physical harm. See also National Park Service, Reference Manual 41 at 14: “In addition to managing these areas for the preservation of the physical wilderness resources, planning for these areas must ensure that the wilderness character is likewise preserved.” Use of a passenger van changes the wilderness experience, not only for the actual passengers, but also for any other persons they happen to pass.
In managing wilderness resources, “[a]ll management decisions [of the NPS] affecting wilderness will further apply the concept of “minimum requirement” for the administration of the area regardless of wilderness category.” (2006 NPS Management Policies, Chapter 6.3.1: Wilderness Preservation and Management). The Minimum Requirements Determination is “a documented process used to determine if administrative actions, projects, or programs undertaken by the Service or its agents and affecting wilderness character, resources, or the visitor experience are necessary, and if so how to minimize impacts.” (2006 NPS Management Policies, Chapter 6.3.5: Wilderness Preservation and Management).
The court went on to emphasize NPS’s obligations to preserve and promote those wilderness values for which the Cumberland Wilderness Area was created, the court pointing to “[o]ther documents in the record [which] highlight the potential conflict between wilderness values and the transportation of passengers.” The agency’s Minimum Requirements Determination (MRD) for the Plum Orchard trips recognized concerns over the van affecting the quality of the visitor experience for those seeking a wilderness experience. The House report accompanying the bill establishing the Cumberland wilderness area urged the Park Service to provide exclusive access to Plum Orchard by water in the interests of minimizing unnecessary intrusion on wilderness values. The agency itself previously stressed the need to limit mechanized transport to administrative purposes that promote wilderness values. (‘Administrative use of motorized equipment or mechanical transport will be authorized only if determined by the superintendent to be the minimum requirement needed by management to achieve the purposes of the area as wilderness, including the preservation of wilderness character and values, or in emergency situations. . . .’)” (Internal citations and quotations omitted.). Wilderness Watch at 1093, 1094. In the end the court concluded “the acquisition and use of a large passenger van for transporting tourists cannot reasonably be squeezed into the phrase ‘necessary to meet minimum requirements’ of administration [of the Wilderness].”
CUMBERLAND ISLAND BOUNDARY ADJUSTMENT ACT OF 2004
The Cumberland Wilderness Boundary Adjustment Act (Public Law 108-447) (hereinafter the “Act”) was passed in October of 2004 on the heels of Wilderness Watch v Mainella, 375 F.3d 1085 (11th Cir. 2004). See the above review of Wilderness Watch v Mainella.
In an apparent affront to the Cumberland Wilderness Area, the Act removes a 25-foot wide area including the roadways depicted on a revised map of the Cumberland Wilderness Area as the ‘Main Road’, ‘Plum Orchard’, and the ‘North Cut Road’ and directs the Secretary of the Interior to maintain these roads “ for continued vehicle use”. Moreover, the Act directs the Secretary “to ensure that not more than 8 and not less than 5 round trips are made available daily on the Main Road north of the Plum Orchard Spur and the North Cut Road by the National Park Service or a concessionaire for the purpose of transporting visitors to and from the historic sites located adjacent to Wilderness.”. Act, Sec. 2 (g).
While the Act removes several roads from the Wilderness for the limited purpose of providing access to visitors to a few historic resources located adjacent to the Wilderness, the Cumberland Island Wilderness still remains very much in place. In fact, the Act directs and is specifically conditioned upon the Wilderness being “administered by the Secretary, in accordance with the applicable provisions of the Wilderness Act (16 U.S.C. 1131 et seq.) governing areas designated by that Act as wilderness areas . . . .”
The Service’s implementation of the Cumberland Wilderness Boundary Adjustment Act will prove problematic. The requisite management plan has yet to be prepared. The overall cost of this program to the tax payer will likely prove to be extraordinary, especially when compared to other projects needing funding on Cumberland Island.
On a more substantive basis, the tours will result in major adverse impacts affecting the Cumberland Wilderness Area and impairing the Seashore’s resources and values. Wilderness backpackers will be forced to leave wilderness trails and seek refuge on other trails as the noise, dust, and sights of the vehicular tours consistently impinge on the island’s solitude. New nodes of non-conforming use activity will be created within or adjacent to the Wilderness Area effectively shrinking the overall size of the Cumberland Wilderness Area for all to use and enjoy.