Thomas Flynn

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The federal government owns a huge swath of this country, fully half of the American west.[1] The question of how to manage all this land, especially which parts, if any, to permanently protect, has always been controversial. Today, about one-sixth of federal lands are designated as Wilderness areas,[2] the most protective public land designation available.[3] Many more acres remain controversial, proposed for Wilderness or other designations.

Recently, the Wilderness controversy has centered on mountain bikes, which are prohibited in Wilderness areas.[4] The mountain bike community was particularly stung by the loss of access in the Boulder and White Cloud mountain ranges of Idaho, thanks to a contested Wilderness designation in 2015.[5] This conflict between bikes and Wilderness areas came to a head in 2016, with the introduction of the Human-Powered Travel in Wilderness Areas Act. [6] If passed, it would be the first significant amendment to the Wilderness Act, and would allow mountain bikes in Wilderness areas under certain conditions.[7]

With the exception of the recent designation in Idaho, the project of adding new Wilderness areas has sputtered in recent decades.[8] Proposed Wilderness designations often face stiff opposition from extractive industries, western elected officials,[9] land management agencies, [10] and, less influentially, mountain bikers.[11] As a result, millions of acres of public lands are left either largely unprotected, or in various “pre-Wilderness” designations, such as Inventoried Roadless Areas and Wilderness Study Areas,[12] or in a multitude of “non-Wilderness,” alternative designations, such as National Monuments and National Recreation Areas.[13] The land designation options currently available will not easily resolve the controversy over whether and how to protect the remaining undesignated public lands. Nothing suggests the level of controversy will decrease. The total acreage of public lands has remained steady and even shrunk since 1990,[14] while the demands on those lands—from industry, recreation, wildlife, and other interests—have only increased.

This Note proposes a new designation for federal public lands called Backcountry areas. After describing the current situation—characterized by increasing conflict over public lands, a hodge-podge of inadequate alternative designations, and a stalled Wilderness project—this Note aims to provide a viable middle-ground solution. This Note describes the Wilderness Act and analyzes the unprecedented Human-Powered Travel in Wilderness Areas Act, concluding that neither challenging agency interpretation of the Wilderness Act nor passing the Human-Powered Travel Act are viable or desirable changes to the Wilderness Act. This Note continues by studying selected existing alternative designations, and determining that none of these offer satisfactory alternatives to Wilderness. Instead, this Note proposes the Backcountry designation, created by pulling together the best features of existing designations, including Wilderness, National Monuments, and Wild and Scenic Rivers. The goal of the Backcountry designation is to create a robust middle-ground alternative between Wilderness and unprotected public lands, a compromise that will help settle the debate, over mountain bikes and other issues, for the millions of acres of public land whose future remains contested.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] Congressional Research Service, Federal Land Ownership: Overview and Data 20 (2014) (reporting that 46.9% of the 11 coterminous western states is federally owned).

[2] As of September 2015, there are about 109 million acres of designated Wilderness. Summary Fact Sheet, wilderness.net, http://www.wilderness.net/factsheet.cfm (September 21, 2015). This is 17% of the approximately 640 million acres of federal land. Congressional Research Service, supra note 1, at 1.

[3] Heidi Ruckriegle, Mountain Biking into the Wilderness, Wyo. Law., June 2016, at 40.

[4] 16 U.S.C. § 1133(c) (2014).

[5] Grayson Schaffer, The Mountain Biker and Wilderness Relationship: It’s Complicated (Aug. 19, 2015) http://www.outsideonline.com/2009216/mountain-biker-and-wilderness-relationship-its-complicated.

[6] Human-Powered Travel in Wilderness Areas Act, S. 3205, 114th Cong. (2016).

[7] Id. § 2(b)(1).

[8] Martin Nie & Christopher Barns, The Fiftieth Anniversary of the Wilderness Act: The Next Chapter in Wilderness Designation, Politics, and Management, 5 Ariz. J. Envtl. L. & Pol’y 237, 274 (2014) (The 112th Congress was the only Congress to reduce the overall acreage of Wilderness); see also Number of Wilderness Laws Enacted by Year, wilderness.net, http://www.wilderness.net/NWPS/chartResults (Sept. 21, 2015) (showing the decrease in the number of Wilderness bills passed per year since the highpoint of 21 bills in 1984); Michael C. Blumm & Andrew B. Erickson, Federal Wild Lands Policy in the Twenty-First Century: What a Long Strange Trip Its Been, 25 Colo. Nat. Resources, Energy & Envtl L. Rev. 1, 4 (2014) (describing the slowdown in Wilderness additions since 2000).

[9] Blumm & Erickson, supra note 7, at 5.

[10] Peter A. Appel, Wilderness and the Courts, 29 Stan. Envtl. L.J. 62, 84 (2010); Robert L. Glicksman & George Cameron Coggins, Wilderness in Context, 76 Denv. U. L. Rev. 383, 391 (1999).

[11] Theodore J. Stroll, Congress’s Intent in Banning Mechanical Transport in the Wilderness Act of 1964, 12 Penn. St. Env’l L. Rev. 459, 460 (2004).

[12] Nie & Barnes, supra note 7, at 252–60.

[13] Ruckriegle, supra note 3, at 44.

[14] Congressional Research Service, supra note 1, at 15.