New Wilderness

Rewriting Law

New Wilderness

In the Eye of the Beholder

By Stephen L. Wilmeth

            The truth is revealed.

            At a news conference last week in Brussels, the executive secretary of the United Nation’s Framework Convention on Climate Change, Christiana Figueres, admitted what too many of us have long known. Figueres boldly confirmed that the goal of environmental activists is not to save the world from ecological calamity, but, rather, to destroy capitalism.

            Within hours, several articles appeared that predicted that the sitting American president was demonstrating in a manner that would project him in a favorable light to key votes among United Nations membership countries. The matter was his potential quest for that organization’s Secretary Generalship.

            Could it be that, within the endless acts of willful denigration of our Constitution, this fellow is foisting upon our country the very UN agenda that intends to destroy our underpinnings? We know of the rewilding genesis that came from the Clinton administration draft that served as the basis for the UN’s Environment Programme. It also became their Global Biodiversity Assessment, but can we discern footprints much closer to home?

            The answer to that question is probably yes, and the matter starts with the premise that … environmental beauty, or its wilderness equivalent, lies in the eye of the beholder.

            From Molly Bawn

            The concept has probably been around longer, but a first suggestion of qualifying beauty can be found in 3^rd Century BC Greek writings. Since then, something perceived to be unique has been described time and again. Different phrasing and catchwords have been used, but the undertow reaches for something that captures a measure of merit for subjective beauty.

            Out of the dark ages, Lyly and Shakespeare took shots at trying to best describe the phenomenon.

John Lyly wrote, “As neere Fancie to Beautie, as the pricke to the Rose as the stalke to the rynde, as the earth to the roote”.

Shakespeare attempted to be more adept, but we are reminded why studying him was such drudgery. In his 1588 Love’s Labours Lost he concocted, “Good Lord Boyet, my beauty though but mean, needs not the painted flourish of your praise. Beauty is brought by judgment of the eye, not utter’d by base sale of chapman’s tongue”.

Ben Franklin came closer in his Poor Richard’s Almanac when he wrote, “Beauty, like supreme dominion, is but supported by opinion.”

David Hume’s 1742 essay, Moral and Political, suggested, “Beauty in things exists merely in the mind that contemplates them”.

Finally, the Irish novelist, Margaret Wolfe Hungerford, nailed the concept. In her 1878 Molly Bawn she wrote, “Beauty is in the eye of the Beholder”.

Margaret, who first wrote under the pseudonym of “The Duchess”, was born in County Cork in 1855. As a child, she enjoyed making up stories. Similar to modern day wilderness crusaders, she grew into an adult with the propensity to promote light romantic fiction with zest and passion.

In fact, it was exactly the spirit of her phrasing that a modern day wilderness crusader used when I asked him the question of what modern characteristics of American wilderness should actually be. He told me, “Wilderness is what the beholder deems appropriate”.

That answer came after he learned it was important to shut ranch gates by being on the same side of the fence as the pickup. His demonstration of logic could well be the continuing story of a wilderness advocate’s grasp of the real world.

Wilderness regardless of the cost

The federal land agencies are on a quest.

They are hunting for new wilderness on orders from the administration and its environmental handlers. The authority is not organic at all. The orders are coming from prerogative powers usurped through the creation of adulterated policy.

The Wilderness Act of 1964 defined the designation’s characteristics. Such land reflecting the concept of American wilderness were those that 1) generally appear to have been affected primarily by the forces of nature, 2) have outstanding opportunities for solitude or a primitive and unconfined type of recreation, 3) have at least 5,000 acres of (contiguous) land, and 4) may contain certain fundamental values.

Those finite premises were also included in the directive to inventory other federal lands as outlined in subsequent law, Public Law 94-579, otherwise known as the Federal Lands Policy and Management Act of 1976 (FLMPA). Section 201 of that Act directed the Secretary to inventory lands then and on a continuing basis to identify new and emerging resources and other values. The reference to wilderness does not appear in the Section. It is silent.

Section 202 sets forth further inventory procedures with an initial planning guideline of the use and observation of multiple use and sustained yield set forth in the Act and other applicable laws. There is abundant language directing the agency (BLM) to assure the consideration of local land use plans that are germane to the matter of federal land planning. Conflict resolution is required. The reference to wilderness does not appear in this Section. It is silent.

Wording references of wilderness and or wilderness inventory don’t appear until Section 603. In that section, the Secretary is given strict orders to identify only those roadless lands of 5000 and more acres that have wilderness characteristics as set forth in the Wilderness Act.

The results are chaotic. Congress failed to act on the inventory and the compounding stewardship vacuum over the ensuing years has been filled by powerful legions of elites who have superimposed their environmental agenda. Their imposition of modern characteristics of wilderness has taken on a whole new life with breadth not at all envisioned by the original promises made to the American public.

The neuveau criteria

 Casting the legal wilderness inventory aside, the agency criteria for selecting new lands with wilderness characteristics restates obligatory authority from the organic legislation, but the real leap of authority does not come from law. It comes from policy.

In the BLM’s case, it comes most specifically from manual numbers 6310 and 20. These instruction memorandi provide guidance on public involvement in the inventory process, the role that cooperating agencies play in the process, and the allowance to share information with the public. Those in the actual trenches of trying to exist share a broad agreement that, in practice, only certain affiliations have been privy to shared information, but the real point of extra legal manuals comes from the original premise of FLPMA. In exchange for the federal desire to manage public lands on the basis of retention rather than disposal, local governments were to be involved in all matters of land designation from initial stages. The intention to conceive and manage these matters from Washington or from the board rooms of environmental organizations was not the model sold to the American citizenry.

The most bizarre and overt reach for inventing more de facto wilderness comes from the new characteristics of wilderness created simply by altering policy. The first expansion of authority comes from manipulation of the 5,000 acre roadless standard. The 5,000 acre parameter remains, but the operational condition now reflects ‘contiguous’ BLM lands. The interpretation opens the path for gerrymandering around state and private lands, but, as long as there is a federal land continuum, the 5000 acre fulfillment can be engineered.

There is also an addendum whereby lands with less than 5,000 acres can be considered if they abut existing 5,000 acre parcels and each of which continue to have wilderness characteristics. Wilderness creep is the obvious and expected result.

The most frightening new authority comes from the nebulous concept of naturalness. Naturalness refers to whether or not the area looks natural to the average visitor.

The instructions for judging such naturalness come right out of the text of Molly Bawn. These natural conditions can be used to judge the work of humans, but, as long as those works remain largely unnoticeable, the wilderness tag can be attached. The list of human marks include such improvements as trails, trail signs, bridges, fire breaks, pit toilets, fishery enhancements, fire rings, historic properties, archeological resources, hitching posts, snow gauges, water monitoring devices, fences, spring developments, stock ponds, and barely linear disturbances. The latter relates to certain roads and ways.

A realization emerges.

With the latitude for the selection process widened not just by extralegal criteria as compared to the organic acts, but compounded with subjective authority of defining naturalness, wilderness is indeed defined in an ever widening swath … in the eye of the beholder.

Reality

In a recent meeting organized by ten organizations and local governing boards with BLM, the question was asked what can be done about the drift of authority in the matter of wilderness expansion.

The agency answer was brief … “you can always sue us.”

Isn’t that a terrible place to find ourselves?

Stephen L. Wilmeth is a rancher from southern New Mexico. “Folks affected by these matters can ill afford to defend themselves, and … representatives who are like minded have demonstrated zero capability of helping.”

I have no idea what Shakespeare thought about wilderness, contiguous or acreage, but I do know what the Interior Board of Land Appeals has ruled on wilderness study areas, contiguous and less than 5,000 acres.

In DON COOPS ET AL  the IBLA ruled

Where, in assessing the wilderness characteristics of a unit during the intensive inventory, the Bureau of Land Management determines only that the unit in conjunction with adjacent Forest Service land possesses a certain wilderness characteristic, the method of assessment is improper. The Bureau is required to assess whether the unit itself has the requisite characteristic.

And in TRI-COUNTY CATTLEMEN'S ASSOCIATION the IBLA ruled:

While the Bureau of Land Management may inventory and identify areas of the public lands of less than 5,000 acres as having wilderness characteristics, it may not properly designate such areas as wilderness study areas under sec. 603(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1782(a) (1976), because that section only mandates review of roadless areas of 5,000 acres or more and roadless islands of the public lands.

Those decisions, however, dealt with Sec. 603 of FLPMA, whereas the issues today deal with the inventory and management sections of that Act and how they relate to "lands with wilderness characteristics."  And Wilmeth is right, policy is the issue.

Under the two decisions above plus one other, over a million acres were removed from WSA status.  My role in that removal leads me back to one of the important lessons I learned from Jim Watt, which I write about here.