Wilderness Laws:
Prohibited and Permitted Uses

Ross W. Gorte

Natural Resources Economist and Policy Specialist
Environment and Natural Resources Policy Division

October 9, 1998

98-848 ENR

Congress enacted the Wilderness Act (P.L. 88-577) in 1964 to establish 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." Congress has taken two approaches to protecting certain federal lands while allowing some uses that might alter the pristine character of the lands. One approach, described here, is to explicitly allow uses in designated wilderness areas that do not conform with the Wilderness Act's general management guidance; the other, not covered in this report, is to designate areas by some other label, with special management direction for those areas in the laws creating them.

The 1964 Wilderness Act, directly and by reference in subsequent wilderness legislation, generally prohibits commercial activities, motorized access, and roads, structures, and facilities in units of the National Wilderness Preservation System designated by Acts of Congress.1 Specifically, §4(c) states:

Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall he no temporary road, no rise of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical trans-port, and no structure or installation within any such area.

Thus, this section prohibits most businesses and commercial resource exploitation (such as timber harvesting) and motorized entry (via cars, trucks, off-road or all-terrain vehicles, bicycles, aircraft, or motorboats) except in emergencies.

Wilderness Act Provisions

The Wilderness Act also authorizes activities that do not conform with the restrictions, usually subject to regulation by the Secretary. 2 Specifically:

· §4(d)(1) allows "the use of aircraft or motorboats, where these uses have already become established," subject to "desirable" restrictions;

· §4(d)(1) also allows "such measures ..~ as may be necessary in the control of fire, insects, and diseases,'' subject to ''desirable'' conditions;

· §4(d)(2) allows mineral prospecting conducted "in a manner compatible with the preservation of the wilderness environment";

· §4(d)(3) provides for establishing and developing valid mineral rights, "subject, however, to such reasonable regulations governing ingress and egress as may be prescribed" consistent with using the land for mineral development, and with leases, permits, and licenses containing "such stipulations as may be prescribed ... for the protection of the wilderness character of the land consistent with the use of the land

· §4('d)(4) allows the President to authorize water project development, including road construction and use;

· §4(d)(4) also allows livestock grazing, "where established prior to the effective date of this Act... subject to such reasonable regulations as are deemed necessary"; and

· §4(d)(6) allows commercial services "which are proper for realizing the recreational or other wilderness purposes of the areas.

Subsequently Enacted Provisions

In addition to the special provisions in the Wilderness Act that allow otherwise-prohibited activities in some circumstances, many subsequent laws designating units of the National Wilderness Preservation System have authorized specific uses or activities that do not conform with the general prohibitions on the access and use of wilderness areas. Many of these provisions are identified below, grouped into several categories and arranged chronologically within each category

Motorized Access-Land

· P.L. 95-237, Endangered American Wilderness Act of 1978: §2(i) allows local government access for maintaining current and future watershed facilities in one area in Utah.

· P.L. 95-249, Absaroka-Beartooth Wilderness Act: §4 preserves a right-of-way claim in one area being litigated at that time.

· P.L. 95-495, Boundary Waters Canoe Area Wilderness Act: §4(e) allows snow-mobile use in certain areas; §4(d) and §4(g) allow mechanized portages in certain areas; §4(h) allows continued motorized uses only; and §4(i) allows motorized access for emergencies and administrative purposes.

· P.L. 96487, Maska National Interest Lands Conservation Act of 1980: §703 (b) allows mechanized portage equipment in a specific area.

· P.L. 96-560, Colorado Wilderness Act of 1980: §102(a)(17) allows motorized access for maintenance of water resource facilities in one area.

· P.L. 98425, California Wilderness Act of 1984: §101(a)(2) and (25) allow continued access for livestock facilities in two specific areas; §101(a)(6) allows motorized administrative use of a fire road between contiguous wilderness areas; and §101(a)(24) allows a right-of-way for construction.

· P.L. 98-428, Utah Wilderness Act of 1984: §302(b) allows local government access for maintaining current and future watershed facilities in 9 of the 12 areas designated.

· P.L. 98-550, Wyoming Wilderness Act of 1984: §201(a)(1 1) allows motorized federal access for bighorn sheep management in one designated area.

· P.L. 101-628, Arizona Desert Wilderness Act of 1990: §101(a)(3) allows access for operating and maintaining a pipeline in one area; §101(a)(20) provides access and use of a powerline right-of-way in one area; and §101(k) allows continued use and maintenance of a particular road.

· P.L. 102-301, Los Padres Condor Range and River Protection Act: §2(5) allows continued use of a road corridor in one area until a bypass is completed.

· P.L. 103-77, Colorado Wilderness Act of 1993: §8(d) allows motorized access for use, operation, maintenance, repair, and replacement in all designated areas.

· P.L. 103-433, California Desert Protection Act of 1994: §102(1) and (13) provide rights~of-way for military access across two designated areas; § 103 (f) allows state motorized access for wildlife management; and §708 guarantees access to non-federal lands within all designated areas.

Motorized Access-Water

· P.L. 93429, Okefenokee National Wildlife Refuge Wilderness Act: §2(1) allows powered watercraft of 10 horsepower or less within the area.

· P.L. 95-495, Boundary Waters Canoe Area Wilderness Act: §4(c) identifies horsepower limits and duration (some access is temporary) for motorboats in specific counties and or lakes within the area; and §4(f) limits motorboat use to historic levels, except for homeowners.

· P.L. 98-430, Florida Wilderness Act of 1984: §1(4) allows continued motorboat use in one area.

Motorized Access-Ai

· P.L. 95-237, Endangered American Wilderness Act of 1978: §2(i) allows helicopter access for sanitary facilities in one area in Utah.

· P.L. 96-312, Central Idaho Wilderness Act of 1980: §7(a)(1) allows continued landing of aircraft within a designated area.

· P.L. 98-428, Utah Wilderness Act of 1984: §302(b) allows helicopter access for sanitary facilities in 10 of the 12 designated areas.

Water Infrastructure

· P.L. 95-237, Endangered American Wilderness Act of 1978: §2(e) protects rights for water diversion and use, including operations, maintenance, repair, and replacement in one area in Colorado.

· P.L. 96-550, New Mexico Wilderness Act of 1980: §102(a)(9) retains existing management, rules, and regulations for a municipal watershed in one area.

· P.L. 96-560, Colorado Wilderness Act of 1980: §102(a)(5) protects rights for water diversion and use, including operation, construction, maintenance, and repair in one area.

· P.L. 98-425, California Wilderness Act of 1984: §101(a)(25) protects rights for water diversion and use, including construction, operation, maintenance, and repair in one area.

· P.L. 98-550, Wyoming Wilderness Act of 1984: §201(c) protects rights for water diversion and use, including construction, operation, maintenance, and modification in four areas.

· P.L. 101-628, Arizona Desert Wilderness Act of 1990: §101(1) protects flood control dam operations in one area; and §301(e) and §302 direct that the two areas abutting the Colorado River have no effect on upstream dams or on water management in the Upper Colorado River Basin, respectively.

· P.L. 103-77, Colorado Wilderness Act of 1993: §2(a)(13) protects rights for water diversion and use, including construction, operation, use, maintenance, and repair in one area.

· P.L. 103433, California Desert Protection Act of 1994: §202 and §203 direct that the two areas abutting the Colorado River have no effect on upstream dams or on water management in the Upper Colorado River Basin, respectively.

Other Infrastructure and Activities

· P.L. 95-237, Endangered American Wilderness Act of 1978: §2(c) and §2(d) allow fire prevention and watershed protection activities in two areas.

· P.L. 96-312, Central Idaho Wilderness Act of 1980: §5(d)(1) allows prospecting and exploration for and development of cobalt within part of one area.

· P.L. 96-550, New Mexico Wilderness Act of 1980: §102(a)(5) allows construction of additional fencing for livestock grazing in one area.

· P.L. 97-384, Charles C. Deam Wilderness Act: §3 allows access to and maintenance of a cemetery in one area in Indiana.

· P.L. 98-322, Vermont Wilderness Act of 1984: §104(c) allows maintenance of trails and associated facilities in all designated areas.

· P.L. 98406, Arizona Wilderness Act of 1984: §101(a)(13) allows installation and maintenance of hydrological, meteorological, and telecommunication equipment in one area.

· P.L. 98428, Utah Wilderness Act of 1984: §305 allows installation and maintenance of hydrological, meteorological, climatological, and communication equipment in 9 of 12 designated areas.

· P.L. 100-668, Washington Park Wilderness Act of 1988: §102 allows the maintenance, repair, and replacement of an underground powerline through one area.

· P.L. 101-195, Nevada Wilderness Act of 1990: §10 allows installation and maintenance of hydrological, meteorological, and climatological equipment in all designated areas.

· P.L. 101-628, Arizona Desert Wilderness Act of 1990: §301(g) allows continued border enforcement activities within one designated area.

· P.L. 101-633, Illinois Wilderness Act of 1990: §9 allows access to and maintenance of a cemetery in one area.

· P.L. 102-301, Los Padres Condor Range and River Protection Act: §3(b) allows fire prevention and watershed protection activities in one area.

· P.L. 103433, California Desert Protection Act of 1994: §103(g) allows motorized law enforcement activities within all designated areas; and §705(a) provides for Native American access for cultural and religious purposes.

Reference

1 For background on wilderness, see CRS Report 94-976 ENR, Wilderness: Overview and Statistics.

2 The Wilderness Act generally referred to the Secretary of Agriculture, because the Act only designated wilderness areas in the National Forest System. Subsequent wilderness laws refer to the Secretary of Agriculture or Secretary of the Interior, depending on who has juris-diction over the designated areas.