The Wildlands Designation
Section 2 of the Wilderness Act of 1964 (16 U.S.C. 1131 et seq.) establishes the purpose of the Act:
In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.
The Act goes on to define the enduring resource of wilderness as federal lands “where the earth and its community of life are untrammeled by man.” The Wilderness Act covered lands managed by the National Park Service, Forest Service and Fish and Wildlife Service while the Federal Land Policy and Management Act of 1976 (FLPMA; 43 U.S.C. 1701 et seq.) extended wilderness eligibility to public lands managed by the Bureau of Land Management. Today, the National Wilderness Preservation System includes 757 wilderness areas in 44 states, totaling more than 100 million acres, or about five percent of the United States.
Both the Wilderness Act and FLPMA prohibit the Executive branch from designating wilderness; only Congress can create wilderness areas. However, both statutes direct federal land management agencies to inventory areas for wilderness characteristics and manage those areas to preserve those characteristics until Congress acts. Such interim protection is critical given the pace of Congressional wilderness designations.
In addition to general inventory and management requirements in sections 201 and 202, section 603 of FLPMA specifically required a wilderness inventory to be completed by 1993, fifteen years after the date of enactment of FLPMA. Those areas found to have wilderness characteristics were to be designated as Wilderness Study Areas (WSAs). Based on the inventories conducted pursuant to these authorities, BLM has identified almost 550 WSAs, including more than 12 million acres, and manages these areas to preserve their wilderness characteristics until Congress makes a formal designation, pursuant to the Wilderness Act.
Importantly, every Interior Secretary to interpret FLPMA since its enactment, during both Democratic and Republican Administrations, viewed the wilderness inventory and management authority in sections 201 and 202 of FLMPA as permanent, regardless of the time limit set for the specific, “snap-shot” review authorized in section 603. Consistent with this interpretation, more than 100 WSAs were designated pursuant to section 202 and both the Clinton and Bush Administrations continued conducting wilderness inventories and preserving WSAs until 2003.
The Norton Reversal
In response to litigation filed by the State of Utah in 2003, Secretary of the Interior Gale Norton filed a stipulation in the United States District Court for the District of Utah disavowing any authority to designate new WSAs post 1993 and stating that the Department would not “establish, manage or otherwise treat public lands, other than section 603 WSAs and Congressionally designated wilderness, as WSAs or wilderness pursuant to the section 202 process.” (Utah v. U.S. Department of the Interior, 535 F.3d 1184, 1190). The Norton stipulation caused the parties to settle the Utah litigation and the case was dismissed. The Bush Administration then applied the Utah policy nationwide, refusing to inventory or designate new WSAs and refusing to acknowledge any WSA designated after 1993.
Secretarial Order 3310
On December 22, 2010, Secretary Salazar issued Secretarial Order 3310 reversing the Norton policy:
The Order provides direction to the BLM regarding its obligation to maintain wilderness resource inventories on a regular and continuing basis . . . and further directs the BLM to protect wilderness characteristics through land use planning and project-level decisions unless the BLM determines, in accordance with this Order, that impairment of wilderness characteristics is appropriate and consistent with other applicable requirements of law and other resource management considerations.
Given that the Norton “No-More-Wilderness” policy was part of a voluntary, private settlement in Utah, it is not binding on the current Administration. As a result, Secretarial Order 3310 is now in effect. On January 19th, 47 Members of the House, all Democrats, joined Ranking Member Markey in signing a letter commending Secretary Salazar for resuming the Interior Department’s compliance with the Wilderness Act and FLPMA by this Order. Section 1778 of H.R. 1, approved by the House February 19th, states that, “None of the funds made available by this division or any other Act may be used to implement, administer or enforce Secretarial Order 3310, issued by the Secretary of the Interior on December 22, 2010.”