Hovercraft Ruling Deals a Major Blow to Land Conservation in Alaska

by Dana Johnson

 

In a major blow to conservation efforts in Alaska, including efforts to protect over 56 million acres of Wilderness in the state, the U.S. Supreme Court held that John Sturgeon, a moose hunter, can “rev up his hovercraft in search of moose” on the Nation River—a river that flows through the Yukon-Charley Rivers National Preserve in Alaska. The suit came after the Park Service told Sturgeon he could not use his hovercraft within the Yukon-Charley because Park Service regulations ban hovercraft within national preserves and parks. Sturgeon sued the Park Service, arguing that it had no authority to regulate activity on rivers in the preserve because the Alaska National Interest Lands Conservation Act (ANILCA) restricts Park Service authority to federally owned “public lands,” and the Nation River does not constitute federally owned public land under ANILCA. The Court agreed, noting, “If Sturgeon lived in any other State, his suit would not have a prayer of success” because the Park Service’s normal statutory authority would allow it to regulate both land and waters within parks and preserves, regardless of who owns the land and water. But, the Court found Alaska is “the exception, not the rule.”

ANILCA, signed into law in 1980, more than doubled the size of the National Park System and protected over 104 million acres of federally owned public land in the state, including over 56 million acres of new Wilderness. The Act designated such iconic Wildernesses as Denali, Gates of the Arctic, Glacier Bay, Katmai, Wrangell-Saint Elias, Izembek, Arctic Wildlife Refuge, Kenai, Misty Fjords, as well as many other Wildernesses administered by the National Park Service, the Forest Service, and the Fish and Wildlife Service. Unfortunately, the law also contains a number of bad provisions that affect federal agencies’ abilities to protect these areas from degradation.

The problem here comes with one provision within ANILCA stating, “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.” The Court noted that while the Park Service normally has broad authority to protect the land and water in parks, “add Section 103(c) [of ANILCA], and the equation changes.” Under this one provision, “[a]ll non-public lands (… including waters) [are] ‘deemed,’ abracadabra-style, outside Alaska’s system units,” and “[g]eographic inholdings thus become regulatory outholdings, impervious to the Service’s ordinary authority.” While the Park Service can still regulate “public lands flanking rivers,” and while it may still enforce regulations designed to protect its reserved water rights from diversion or depletion, it cannot apply park regulations to rivers in Alaska that fall outside of this narrow regulatory bubble.

Understandably, the Park Service argued that such a holding would significantly hamstring its ability to protect parks and preserves from degradation. Justices Sotomayor and Ginsburg seemed to agree. While they felt legally constrained to join the unanimous opinion, in a separate concurring opinion they highlighted the unintended consequences that can flow from compromise provisions in statutes. “Many of Alaska’s navigable rivers course directly through the heart of protected parks, monuments, and preserves. A decision that leaves the Service with no authority, or only highly constrained authority, over those rivers would undercut Congress’s clear expectations in enacting ANILCA and could have exceedingly damaging consequences.”

So, where does this leave things? The Court’s opinion states that the Park Service cannot apply park system rules and regulations to non-public lands and waters in Alaska. Presumably this would apply to other federal land management agencies. Justices Sotomayor and Ginsburg suggest that there may be avenues for the Park Service to regulate non-public areas when such regulation is necessary to protect parklands—it just can’t “apply normal park rules to nonpublic lands.” For example, while the Park Service can’t broadly prohibit hovercraft use on the Nation River under its general park ban, it might be able to prohibit hovercraft “in certain designated areas [on the River] to protect a particular sensitivity in a surrounding (public) park area, including some habitats on the banks of the Nation River.” Justices Sotomayor and Ginsburg also suggest that the opinion might have gone differently had the Nation River been designated a Wild and Scenic River, noting “the Service should retain full authority to regulate the Wild and Scenic Rivers as parklands.” But, the legal durability of those regulatory paths will be left for a different day, and the two Justices worry “that authority may be more circumscribed than the special needs of parks require… threaten[ing] the Service’s ability to fulfill its broader duty to protect all of the parklands through which the rivers flow.” To remedy harm caused by Section 103(c) of ANILCA, they note that “Congress can and should clarify the broad scope of the Service’s authority over Alaska’s navigable waters.”

Ultimately, this case is illustrative of the poison pill problem—compromise provisions made to get a conservation bill passed may ultimately weaken the law so substantially that its original intent is smothered by the weight of exception. In this case, one provision leaves navigable waters flowing through the heart of National Parks and Wildernesses in Alaska largely unregulatable by the federal agencies charged with protecting them. Buyer beware.

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Dana Johnson is the staff attorney for Wilderness Watch, a national wilderness conservation organization headquartered in Missoula, MT, www.wildernessswatch.org.

 

Since Cumberland Island now belongs to the American public, who purchased it from the private owners, in early February of last year my wife and I decided to check on our property by making a three day-back-pack. It was her first visit to the island, and we especially wanted to visit Cumberland Island Wilderness, and also visit Carol Ruckdeschel, a renowned biologist who lives on the island. For decades, Carol has fiercely protected both the island and the endangered sea turtles who nest on its beaches every summer.  Carol is part of the fascinating history of Cumberland Island, and has been written about by a number of writers, including John McPhee. The most recent, and probably best account of her efforts to keep Cumberland wild, is Will Harlan’s book "Untamed: The Wildest Woman in America and the Fight for Cumberland Island," which was published by Grove Press this past May.

 

After spending the night in St. Marys, a sleepy fishing village on the southeast tip of Georgia’s coast, we boarded the early morning Park Service ferry for the 45 minute ride to the island. Pelicans and gulls flew overhead and dolphins played in the ferry’s bow wave. After a brief orientation at Sea Camp Ranger Station -- which used to be developer Charles Fraser’s headquarters when he had plans to turn the island into another Hilton Head -- we started walking north towards the Wilderness.  Along the way we passed near Greyfield, one of the mansions built as wedding gifts for Thomas and Lucy Carnegie’s children. Now it’s an inn run by some of the Carnegie descendants.

A little over a decade ago, on a backpack with friends,  I witnessed the Park Service driving a pickup truck through the wilderness area, and later saw a truck load of guests staying at Greyfield Inn being taken on a motorized commercial tour through the Wilderness. Soon thereafter, the Park Service, with the blessing of The Wilderness Society and National Parks Conservation Association, began conducting its own motorized visitor tours using 15-passsenger vans. When this was reported to Wilderness Watch’s founder Bill Worf, he was incredulous and came to Georgia himself to check it out. Later, in 2004, Wilderness Watch brought suit against the Park Service and won in the Eleventh Circuit U.S. Court of Appeals.  A three judge panel ruled unanimously that of course driving in Wilderness was illegal. Unfortunately, this victory was short-lived, as the local Republican Congressman, Jack Kingston, quietly tacked a rider onto an omnibus spending bill in Congress later that same year. His rider removed the unpaved single lane main road that runs the length of the island and also the entire beach from the Wilderness. This was the first time, and hopefully the last, that Wilderness had ever been removed from the National Wilderness Preservation System without public input.
Later that day, we passed another luxurious Carnegie mansion, Plum Orchard, which the Park Service has renovated at considerable expense for daily tours.  At 25,000 square feet with countless bedrooms, an indoor pool and squash court, a huge formal dining room, a “gun room” for the men, and an enormous staff of servants, it was a wedding gift to Thomas and Lucy’s son George, who enjoyed it only for a few months each year. Finally, we reached the wilderness boundary and spent our first night in Yankee Paradise, one of three designated wilderness camping areas.  The next day we hiked under huge live-oak trees dripping Spanish moss to our next campsite at Brickhill Bluff, which overlooks the marshes between the island and the mainland. After setting up our tent, we continued hiking to the north end of the island. This is a small area beyond the wilderness boundary shared by Carol’s modest cabin, the historic one room First African Baptist Church, established in 1893, and a private complex owned by the Candlers, heirs of the inventor of Coca-Cola. We spent a very pleasant afternoon sitting on Carol’s porch, marveling at the pet animals, including several buzzards, that live there with Carol, and talking about the challenges of keeping the island protected, which are explained in an excellent website that Carol writes, http://www.wildcumberland.org.
The next day we had a long hike back to the ranger station to catch the afternoon ferry, mainly walking on the beach, which is so long you can’t see from one end of it to the other due to the earth’s curvature.  We didn’t spot a single person until we reached the south end of the island!  This place, in my view, is the most beautiful and interesting place in Georgia. Cumberland gets into your blood, and it’s my hope to continue to visit the island at least once a year.

by Kevin Proescholdt
I recently came across an on-line forum asking whether “snow kiting” is allowed in Wilderness.  While snow kiting in Wilderness might still be a rather rare activity, the question bears quite heavily on a variety of activities and the future of the National Wilderness Preservation System.

For those unfamiliar with the sport, snow kiting is an offshoot of kiteboarding (a water sport), but conducted on land and on snow.  Like kiteboarders, snow kiters use large inflatable kites – some are similar to parasails – that allow the wind to pull them along or to jump and glide in the air for seconds at a time.  Kite lines run to a snow kiter’s harness and handle, which are used to maneuver the kite.  Though many snow kiters use snowboards, some telemark and alpine skiers also use kites as part of their sport.

Snow kiting in units of the wilderness system seems to have increased in recent years.  But I believe snow kiting violates the Wilderness Act, even though the federal agencies have been slow in writing specific rules spelling out such a ban.  I hope that soon, before this use becomes too entrenched in units of the wilderness system, all four agencies will ban snow kiting in Wilderness for two main reasons.

First, snow kiting violates the Wilderness Act, most notably its ban on mechanical transport in Wilderness.  U.S. Forest Service wilderness policy comes close to articulating a ban on snow kiting, by prohibiting (among other banned mechanical transport) hang gliders and parachutes, which are similar to snow kiting:

Forest Service Manual 2320.5
Mechanical Transport. Any contrivance for moving people or material in or over land, water, or air, having moving parts, that provides a mechanical advantage to the user, and that is powered by a living or nonliving power source. This includes, but is not limited to, sailboats, hang gliders, parachutes, bicycles, game carriers, carts, and wagons.

At least some of these specific prohibitions have held up in the courts.  A federal court upheld a Forest Service ban on sailboats on wilderness lakes, for example, in one of a series of court cases involving the Sylvania Wilderness in the Upper Peninsula of Michigan.  The 6^th Circuit Court of Appeals wrote in this case, “Certainly, Congress could rationally conclude that certain forms of mechanical transport, including sailboats and houseboats, should be excluded from the Sylvania Wilderness in order to preserve the ‘wilderness character’ of the property.”

The National Park Service also appears to have prohibited snow kiting in Wilderness, though under its regulations that govern aircraft (snow kiting meets its definition of aircraft in the Code of Federal Regulations) and “aerial delivery,” and not under its regulations prohibiting mechanical transport in Wilderness.  As a result, the Park Service has prohibited snow kiting in Glacier National Park’s Recommended Wilderness as well as in other national park Wildernesses.

In addition to violating the ban on mechanized travel, snow kiting runs against the grain of the types of recreation the Wilderness Act sought to provide.  The law defines Wilderness in part as providing “a primitive and unconfined type of recreation….”  Snow kiting is clearly not this type of primitive recreation envisioned by the Wilderness Act.

Second, beyond the legal violations, snow kiting should be banned in Wilderness because the activity makes Wildernesses less wild.  This is not about snow kiting’s physical impacts on Wilderness, but about our relationship to Wilderness.  Snow kiting is a modern transportation method, not one envisioned by the founders of the Wilderness Act or the ideals behind it.  It is not travel by primitive means.  It ignores the humility and restraint that Wilderness Act author Howard Zahniser urged us to use in our relationship to Wilderness.

Wilderness is in part about preserving and experiencing these places from an earlier time and an earlier pace of travel, such as by foot, horseback, or canoe.  According to the Wilderness Act, designated Wildernesses are to be “in contrast with those areas where man and his works dominate the landscape….” If snow kiting and other yet-to-be-created transportation means are allowed in Wilderness, that contrast will be increasingly diminished and indistinct, and Wilderness will cease to be that special place set apart from modern civilization.  I believe that we must stand up for that distinction or we open the door to untold and unforeseen levels of non-human- or non-animal-powered transportation in Wilderness, making Wilderness little different from the rest of our human-dominated landscape.

I understand the concern expressed by some that any restrictions short of an outright ban on all mechanical devices (including, for example, a ski binding) would be somewhat arbitrary.  But it seems that the most reasonable, protective, and defensible rule is one rooted in the methods of travel in common use at the time the Wilderness Act was passed.  This is the approach a federal court took when several members of the Chippewa (also called Ojibwe or Anishinaabe) tribe challenged the prohibition on snowmobile use while exercising their treaty rights to fish in the Boundary Waters Canoe Area Wilderness in Minnesota.  The court relied on the fact that Band members traditionally accessed the area by canoe or on foot at the time of the 1854 treaty, and therefore the Wilderness Act’s ban on modern snowmobiles didn’t constitute an infringement on treaty rights.

If we don’t keep wilderness protections anchored to something solid like the primitive modes of travel contemplated in the law, what’s to protect Wilderness from any whimsical fad, recreational pursuit, or technological advance that comes its way?

Kevin Proescholdt is conservation director (and former board president) for Wilderness Watch. He has written extensively on the Boundary Waters, and wilderness policy and history.