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Monday, October 31, 2011

Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses

Ross W. Gorte
Specialist in Natural Resources Policy

The 1964 Wilderness Act established a National Wilderness Preservation System of federal lands “where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” The act designated 54 wilderness areas with 9.1 million acres within the national forests and reserved to Congress the authority to add areas to the system. Congress has enacted 117 subsequent statutes designating wilderness areas (including one with 16 wilderness-related subtitles) and 8 other statutes requiring wilderness study or otherwise significantly affecting wilderness areas. Many of these statutes provide management direction for designated areas that differs from the Wilderness Act provisions. As of December 31, 2010, the system totaled 759 wilderness areas with 109.7 million acres of federal land.

The Wilderness Act and other wilderness statutes have contained many provisions related to the administration of the areas. All but three direct management in accordance with the Wilderness Act. Provisions prohibiting buffer zones around designated areas are common. Many also preserve existing state jurisdiction and responsibilities over fish and wildlife, while some preserve other jurisdictions and authorities, such as for law enforcement and cooperation with other federal, state, and local agencies. Water rights has been a controversial issue—some statutes have neither claimed nor denied water rights, some have reserved water rights, and others have directed no claim to water. Several statutes have directed wilderness study of potentially qualified lands, and have designated intended or potential wilderness, contingent upon some future condition or event. Concern about protection of the study areas has led Congress to include provisions addressing interim management and release of areas during and after the studies.

The Wilderness Act generally prohibits commercial activities within wilderness areas, although it allows commercial activities related to wilderness-type recreation. The act also generally prohibits motorized and mechanical access, and roads, structures, and other facilities within wilderness areas. Although wilderness is generally open to other public uses, some wilderness statutes have authorized temporary closures for various reasons. Also, many statutes have withdrawn the designated areas from the public land disposal laws, the mining and mineral leasing laws, and from the laws authorizing the disposal of common mineral materials. However, valid existing rights are not terminated, and can be developed under reasonable regulations.

The Wilderness Act and many subsequent wilderness statutes have also allowed various nonconforming uses and conditions. Motorized access has generally been permitted for management requirements and emergencies, for nonfederal inholdings, and for fire, insect, and disease control. Continued motorized access and livestock grazing have also generally been permitted where they had been occurring prior to the area’s designation as wilderness. Construction, operations, and maintenance, and associated motorized access, have also been permitted for water infrastructure and for other infrastructure in many instances. Motorized access for state agencies for fish and wildlife management activities has sometimes been explicitly allowed. Low-level military overflights of wilderness areas have been permitted in several statutes. Access for minerals activities has been authorized in some specific areas and for valid existing rights; the Wilderness Act specifically allowed for mineral prospecting and for establishing mineral rights for 20 years after enactment. Finally, several statutes have allowed access for other specific activities, such as access to cemeteries within designated areas or for tribal activities.

Date of Report: October 1
7, 2011
Number of Pages:
Order Number: R416
Price: $29.95

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