the exclusionary language in section 3,30 and the removal of Indian lands from section 2.31

37

36

32

34

While the history of the present bill may discourage some, other advocates find solace in the fact that the national parks bill was in Congress 5 years before its ultimate passage." That such solace should be earnestly sought after is evident when one considers the subsequent history of Senate bill 4013. The measure was reintroduced in substance on February 11, 1957, as Senate bill 1176,33 and hearings were held thereon before the Committee on Interior and Insular Affairs in Washington, D.C., on June 19 and 20, 1957.3 As a result of these hearings and subsequent conferences, the measure was revised and on June 18, 1958, reintroduced as Senate bill 4028.35 Among the numerous changes incorporated in the revised form were the following: first, a new subsection was added as section 1(d), emphasizing that the bill is in keeping with multiplepurpose philosophy; second, in lieu of listing included areas by name, a provision was made for included areas to be determined by the interested departments; third, a provision was added to section 2(a) clarifying the need for further study to determine included primitive areas and their boundaries, together with a provision that such determination should be made within 10 years from the date of the act; 38 fourth, it was provided that proposed changes in the included areas could be vetoed by a concurrent resolution of Congress within a 120-day period; fifth, the last sentence of section 1(d) made clear that the purposes of the wilderness bill would not interfere with those of the national forest system; sixth, the list of prohibited uses was dropped from section 3(b) and a proviso made that "no portion of any area *** shall be used for any form of commercial enterprise not contemplated in the purposes of this act"; seventh, although permanent roads remained categorically prohibited, yet section 3(c) (2) was clarified so as not to interfere with necessary administrative protection of the areas from fires, insects, and disease," though there is a continuing prohibition of operations and improvements "in excess of the minimum required for the administration of the area for the purposes of the act"; eighth, an allowance was made in section 3(c) (2) for mining and reservoir construction upon a Presidential determination that such use "will better serve the interests of the United States"; "ninth, section 3(c) (5) made clear that nothing in the legislation may be construed to modify existing water law; tenth, provision was made to include areas given to a Federal agency for purposes of wilderness preservation; " eleventh, certain safeguards,

41

45

48

.40

39

46

30 A special provision in sec. 3(c) now allows mining and reservoir construction in national wilderness areas upon a presidential determination that such use "will better serve the interests of the United States.'

31 Though modifications to the original measure were set forth in S. 4028, 85th Cong., 2d sess., sec. 2(d), 104 Congressional Record 11553 (1958), further amendments are reported to have entirely omitted the lands from consideration. The reasoning for this exclusion was advanced for purposes of motivation in 105 Congressional Record 2468 (daily edition, Feb. 19, 1959) (remarks of Senator Neuberger).

32 See 106 Congressional Record 763 (daily edition, Jan. 20, 1960) containing a reprint of an article which appeared in the Albert Lea Tribune for Jan. 3, 1960, wherein the present delay was discounted on this basis.

33 S. 1176, 85th Cong., 1st sess., 103 Congressional Record 1813 (1957). The text of the bill and discussion thereon appear in 103 Congressional Record 1893-1896 (1957).

34 Hearings on S. 1176 before the Senate Committee on Interior and Insular Affairs, 85th Cong., 1st sess. (1957).

35 S. 4028, 85th Cong., 2d sess., 104 Congressional Record 11552 (1958). A similar bill had been tentatively introduced by Senator Neuberger 2 months earlier as S. 3619, 85th Cong., 2d sess., 104 Congressional Record 6341 (1958).

36 S. 4028, 85th Cong., 2d sess., sec. 1(d), 104 Congressional Record 11552 (1958). For a consideration of this assertion see p. 118, infra.

37 E.g., S. 4028, 85th Cong., 2d sess., sec. 2(a), 104 Congressional Record 11552 (1958). "This has reduced the length of the bill by about 6 pages." 104 Congressional Record 11558 (1958). But see p. 117, infra.

38 S. 4028, 85th Cong., 2d sess., sec. 2(a), 104 Congressional Record 11552 (1958). It is further provided that if such determination as to a given area is not made within that period it is automatically included. The period of time varies with the different units. For example, sec. 2(c) limited the determination as to wildlife refuges to 5 years. see note 95, infra.

But

The

39 S. 4028, 85th Cong., 2d sess., sec. 2(f), 104 Congressional Record 11553 (1958). original study bill provided that either House could veto the effectuation of a proposed change. S. 4013, 84th Cong., 2d sess., sec. 2(f), 102 Congressional Record 9776 (1956). 40 S. 4028, 85th Cong., 2d sess., sec. 1(d), 104 Congressional Record 11553 (1958). 41 S. 4028, 85th Cong., 2d sess., sec. 3(b), 104 Congressional Reccord 11553 (1958). 42 S. 4028, 85th Cong., 2d sess., sec. 3(c)(2), 104 Congressional Record 11553 (1958). 43 S. 4028, 85th Cong., 2d sess., sec. 3(b), 104 Congressional Record 11553 (1958). 44 S. 4028, 85th Cong., 2d sess., sec. 3(c) (2), 104 Congressional Record 11553 (1958). 45 S. 4028, 85th Cong., 2d sess., sec. 3(c) (5), 104 Congressional Record 11553 (1958). 46 S. 4028, 85th Cong., 2d sess., sec. 2(c), 104 Congressional Record 11552 (1958).

now obsolete, were included to meet objections regarding Indian lands; "and twelfth, certain changes were made in the scope of section 4 governing the council which are also obsolete.48 Senate bill 4028 was also subjected to numerous hearings before the committee, held at various sites in the West in November of 1958," and while that bill was dead at the time, the hearings operated on the entirely valid assumption that the issue was not.50

Subsequent to consideration by the 84th and 85th Congresses, the issue, in the form of Senate bill 1123, came before the 86th Congress on February 19, 1959. Committee hearings 52 elicited public reactions similar to those previously held toward the measure."

51

53

To

While these various bills have differed in many respects, and alterations both of improvement and appeasement have been made in the course of its long history before congressional committees, the fact remains that its basic purpose is to protect certain areas from what its sponsors term "exploitation." 54 accomplish this purpose they feel it is essential that teeth remain in the act,5 while those interests which oppose the measure are equally adamant that the effective parts of the measure be destroyed.5 It must be recognized that there are some who feel that the present bill does not go far enough in preserving the wilderness and others who feel that it defeats the principle [sic] purpose of multiple-use management.57 A more complete understanding of the respective arguments will, of course, result from a realization of the type of interests which promote them.58 Although there are exceptions, the major opposition to the bill comes from livestock, oil, mining, and lumbering interests,50 while its principal support comes from conservation groups and individual "lovers of the wild." " Advocates of the measure have taken two major tacks: first, what may be termed the "negative approach,” which stresses the fact that the measure does not interfere with other interests; second, the positive approach, which emphasizes what are felt to be the real and important values which can be achieved by

47 Rather than the original inclusion by name, the instant version provided that consultation with the tribes involved should determine which areas to include. S. 4028, 85th Cong., 2d sess., sec. 2(d), 104 Congressional Record 11553 (1958). Three possible solutions were posed in 104 Congressional Record 11555 (1958). These were to leave them out, to include them with the consent of the Indians or to include them as other Federal lands. See 106 Congressional Record 2656 (daily edition, Feb. 18, 1960), where the first alternative is declared to have prevailed. See also, Hearings on S. 4028, supra, note 34, at p. 502.

48 See note 28, supra.

49 Hearings on S. 4028 before the Senate Committee on Interior and Insular Affairs, 85th Cong., 2d sess. (1958). These hearings were held at Bend, Oreg.; San Francisco, Calif.; Salt Lake City, Utah; and Albuquerque, N. Mex.

50 See, e.g., hearings on S. 4028-4048, supra, note 49, at p. 554.

51 S. 1123, 86th Cong., 1st sess., 105 Congressional Record 2388 (daily edition, Feb. 19, 1959).

62 Hearings on S. 1123 before the Senate Committee on Interior and Insular Affairs, 86th Cong., 1st sess. (1959), were held at Seattle, Wash., and Phoenix, Ariz.

53 See p. 112, infra.

54 See, e.g., 102 Congressional Record 9781-9782 (1956) (remarks by Senator Morse). 55 "Those who understand the problems of wilderness preservation on Federal lands are convinced that congressional action is necessary to retain wilderness areas for future generations." 102 Congressional Record 12314, 12316 (1956) [reprint of Gilligan, "Wilderness in a Democracy, the Living Wilderness" (spring-summer 1955)]

56 "The wilderness system, no matter what Congress does to it, will always be under fire from those who see in the forest nothing but board feet and kilowatts." Editorial appearing in the Eugene Register-Guard of June 18, 1956, and reprinted in 102 Congressional Record 10980 (1958).

57 The controversy has been said to consist of "Board feet and Kilowatts versus Stringsavers." See note 56, supra.

58 Of perhaps particular interest, although limited importance, is the fact that the forte of the opposition seems to have been testimony given in the committee hearings, while the supporters of the bill have been rabid in placing their side of the story in the Congressional Record. Three of the limited exceptions to the favorable comment appearing in the Congressional Record are: 105 Congressional Record A5013 (daily edition, June 11, 1959) (remarks of Senator Bennett); 106 Congressional Record A144 (daily edition, Jan. 11, 1960); and 106 Congressional Record A532 (daily edition, Jan. 20, 1960) (remarks of Representative Westland). It is to be noted, however, that certain flanking movements are being attempted. See, e.g., 106 Congressional Record A2705 (daily edition, Mar. 24, 1960), discussing H.R. 10572 which is purported to "commit forests to 'multiple use' so that they cannot be set aside except by further congressional action."

59 E.g., see hearings on S. 1123 before the Senate Committee on Interior and Insular Affairs, 86th Cong., 1st sess., at p. 467 (statement of American National Cattlemen's Association), 379-380 (statement by representative of Signal Oil & Gas Co.), 413-414 (statement of Maricopa Council of Small Mine Operators' Association), and 108-112 (statement by Western Pine Association) (1959).

60 See, e.g., hearings on S. 1123, supra, note 59, at p. 441 (statement by the Santa Fe Wildlife & Conservation Association), and 242 (statement by John R. Barnard, Seattle, Wash.) (1959).

61

62

63

the establishment of a wilderness preservation system. Under this latter category, backers of the bill maintain, among other things, that the program will protect areas of scenic grandeur for the entire population, both present and future. Arguments in justification of preserving scenic grandeur have included the relatively materialistic urgings of those who assert its efficacy as a tourist attraction with consequent swelling of local coffers, claims that wilderness areas are "essential to the American way of life," and the claim that wild nature is "a most vital essential in this era of restlessness approaching hysteria." Finally, and perhaps more realistically, the claim is made that "if for no other reason than sentiment" every effort should be made to preserve scenic areas. A second value ascribed to the bill is that the wilderness affords a type of recreation sought by many people. This recreation is purported to possess qualities capable of rehabilitating both the mind and the body, and to be of a type which is within the economic reach of those who seek it.65 It is further claimed that certain scientific assets will be protected. These assets include plant and animal life, geological materials, and the preservation of control areas for purposes of scientific research. Next it is maintained that establishment of a wilderness system will insure watershed protection in these areas." A final plea is made for passage of the bill upon the ground that the potential of the area should be preserved for determination by future generations as to what use should be given the highest priority.

68

64

67

70

Realizing that the benefit of any undertaking must be weighed against the disadvantages which arise therefrom, it has been vehemently asserted by the wilderness backers not only that its passage is necessary to assure its aims, but also that an adequate system of wilderness can be established without sacrificing other interests."9 In support of this claim, the supporters stress the fact that only Federal lands are involved and that the entire area ultimately to be included will not exceed two percent of the country's total area. More specifically, they assert that all existing rights, including grazing privileges and the operation of mines, will continue to be recognized," as will State water laws.72 Much emphasis is also placed upon the assertion that no areas now open to lumbering will be affected, and that 90 percent of the areas in the national forest would remain unaffected and open to lumbering interests and other commercial ventures.73 The somewhat anomalous position is taken that the bill will actually benefit these interests as well as the nation as a whole by encouraging development and maximum utilization of available areas.

The two allegations which cause the greatest dispute between the factions involved are (1) the necessity for the measure, and (2) its effect on the multiple-purpose doctrine of Federal land management.75 The proponents, while commending the agencies involved in the present management, maintains that adequate protection against designing interests in the future requires that Congress have the key to the storehouse of wilderness.76 They are equally as vocif

61 See, e.g., 105 Congressional Record 10636 (daily edition, June 24, 1959) (editorial by attorney general of Montana reprinted from Great Falls Tribune).

62 See 102 Congressional Record 3552 (1956) (exerpts from letters to Senator Humphrey). 63 Id., at p. 3553.

64 See, e.g., hearings on S. 1123, supra, note 59, at p. 11. But see note 80, infra.

65 105 Congressional Record A2512 (daily edition, Mar. 23, 1959) (remarks of Senator Neuberger); 102 Congressional Record 12583 (1956) (remarks of Representative Saylor). See, also, hearings on S. 1123, supra, note 59, at p. 436. But see id., at p. 368.

66 See, e.g., 105 Congressional Record A7297 (daily edition, Aug. 24, 1959) (reprint of editorial from June 1959 issue of Montana Wildlife).

67 See, e.g., 105 Congressional Record 13609, 13610 (daily edition, Aug. 3, 1959) (remarks of Senator Neuberger).

68 See, e.g., hearings on S. 4028, supra, note 49, at p. 498.

69 103 Congressional Record 1893 (1957) (remarks by Senator Humphrey).

70 See, eg, hearings on S. 4028, supra, note 49, at p. 521.

supra, note 59, at p. 187.

71 See note 25, supra.

72 See note 45, supra.

But see hearings on S. 1123,

73 Senator Murray furnished statistics showing: first, that only 14 million acres (or 9.6 percent) of the forest areas would be included; and secondly, that present cut on the nonwilderness areas could increase by 50 percent before it exceeded the allowable cut on these areas. 105 Congressional Record 2435 (daily edition, Feb. 19, 1959). But see hearings on S. 4028, supra, note 49, at p. 544; hearings on S. 1123, supra, note 59, at p. 198.

74 This would seem to be the gist of Senator Humphrey's comments in 103 Congressional Record 1893 (1957).

75 See p. 118, infra.

76 See 106 Congressional Record A2578 (daily edition, Mar. 22, 1960). However, the charge is frequently made that the proposed measure is a criticism of the present administration of the areas. See 106 Congressional Record A2768 (daily edition, Mar. 29, 1960).

erous in their claims that multiple-purpose philosophy is espoused in their measure.

77

Those who are opposed to the bill take issue with each of the basic positions taken by the advocates. They not only deny the necessity of the present measure, but assert that its effect upon other interests is of such serious nature that its passage should not be considered.78 They strongly urge that existing laws and regulations for the management of Federal lands are fully adequate and that under these laws sufficient acreage has been reserved as wilderness areas.79 In any event it is claimed that there is no evil at which the proposed legislation could be aimed, since not only have the administrative agencies themselves set aside such areas, but also an analysis of statistics indicates that the type of use for which such areas are designed is unproductive and therefore unjustified.80

82

In addition to the claim that the present system provides adequate protection of the type sought, opponents of the bill attack the dedication of large areas of public land for a single use. These groups maintain that the sole purpose of the bill is to provide a monopoly to the few individuals who are inclined to take advantage of the afforded recreational facilities. It is argued that adoption would pose a dangerous precedent for departure from long-established principles of multiple use.* This departure would lessen the opportunity for nearto-the-road recreation which is in far greater demand than the pioneer recreation advocated by the bill.83 A loss of a more material nature is forecast in the form of unrealized potential both of recreation revenues and resource receipts from commercial developments.8* Claims regarding the loss of resource development also include the foreboding possibilities of a fatal breach in national defense due to shortages of strategic materials. Not only would resources be idle, it is argued, but their value could actually be lost forever by the creation of large blocks of inaccessible areas which would remain vulnerable to fires, insects, and disease. Frequent mention is also made of possible losses occurring through nonfacilitation of water storage sites."

86

85

87

In conjunction with the claim that the system is not needed, opponents of the wilderness bill frequently stress that no evidence of such a need has been demonstrated, and any action should be postponed until a release of the results of a fact finding survey being made by the National Outdoor Recreation Resources Review Commission.88 In addition to arguments emphasizing the needlessness, cost, and prematurity of the bill, it has been asserted that the bill as phrased is incomprehensible at best, and possibly unconstitutional. The basis

77 But a notable exception to the claim of multiple use is apparent in 102 Congressional Record 12314 (1956), containing a reprint of an article wherein the author stated that "the Forest Service*** finds itself in the awkward and contradictory position of setting aside wilderness units and at the same time advocating multiple use as a basic policy."

78 E.g., it is asserted that the bill would seriously reduce the potential dollar production of the land, and since each dollar of production creates $5 in trade economy, the future of jobs and payrolls would be jeopardized. See hearings on S. 4028, supra, note 49, at p. 544. See also hearings on S. 1123, supra, note 59, at p. 39.

79 However, it is to be noted that some of the groups who recognize this virtue in the controlling agencies concede that adjustments, when demonstrated to be in the "public interest" are easier to effectuate through the agencies, and for this reason are opposed to a statutory establishment of these areas. Hearings on S. 4028, supra, note 49, at p. 546. 80 "The records show that only about 0.3 percent of our population visit and use wilderness areas, while around 30 percent visit and use national forest areas under multiple-use management, that only 1 percent of the people visiting and using national forests visit and use wilderness areas ***. We are now talking about setting aside over 50 million acres of wilderness area for use by a small number of people." Hearings on S. 4028, supra, note 49, at p. 516.

81 "Wilderness use is a special type of recreation available only to a handful who want to and can hike or climb over our mountainous country or who can afford the luxury of pack animals and guides." Hearings on S. 4028, supra, note 49, at p. 545.

82 "If enacted (the bill) will lift the lid off a political Pandora's box which will trigger movements for other single-purpose land dedication *** all to the detriment of the sound multiple-use land policy under which the Government is now managing most of its western lands." Hearings on S. 1123, supra, note 59, at p. 189.

83 See hearings on S. 4028, supra, note 49, at p. 546.

84 "The proponents fail to tell the people that many of the areas proposed to be set aside by the bill are potential sources of revenue." Hearings on S. 1123, supra, note 59, at p. 189.

85 See, e.g., hearings on S. 4028, supra, note 49, at p. 487.

86 Id. at p. 546.

87 E.g., the claim is made that the bill would result in the loss of Utah's water storage facilities in Dinosaur National Monument. 105 Congressional Record A5013 (daily edition, June 11, 1959) (remarks of Senator Bennett).

88 The report on this survey is due by Sept. 1, 1961. Hearings on S. 4028, supra, note 49, at p. 489.

of the former claim is centered on the lack of definition and failure to spell out certain procedural devices, while the apparent attack on constitutionality is based upon the assertion that the proposal to grant agencies an extended and differing period to determine what areas will be included is an attempt to legislate for future Congresses and supposedly violative of separation of power principles.

89

While the arguments set forth above are not inclusive, they represent the major issues raised by the respective parties. In evaluating these positions, the value and need of the end sought should be weighed against the cost of the action in terms of sacrificed values. Other alternatives to attain the same or a similar end should be considered and a choice made of that plan which in the long run will provide the greatest good for the greatest number. It is submitted that each side has presented arguments based upon premises for which no foundation has been laid, though it is likewise conceded that the nature of the values sought often precludes other than abstract contentions. However. where such is the case it should be squarely recognized and not obscured.

It would appear first that the contention that the existing agencies are doing an adequate job of preserving wilderness areas is but an attempt to confuse the issue. This is supported by the reason often given (and always implicit) for leaving control with the agencies, i.e., that they are easier to convince of the wisdom of commercial development in the public interest.90 This in turn results in the circumvention of the purported purpose of the act. If its purpose is a worthy one then the proper way to carry it forward is to let the representatives of the people speak.

Although any consideration of the values to be attained by the bill must be measured against the cost of the achievement, the nature of the values asserted is by and large incapable of the price-tag evaluation. Certainly the worth of observing scenic grandeur, a sense of national pride, preservation of the American way of life, and spiritual rejuvenation for both the mind and body are incapable of a dollars-and-cents reduction. And, it is equally impossible to prove that the proposed plan will effectuate these values or that it is the only feasible method of so doing. Nonetheless, the contention that these ends are in fact valueless would seem to impose an undeserved materialistic outlook upon a people who have often supported economically unsound ventures in favor of intangible rewards.91 At first blush a definite measurable loss in economic opportunity would seemingly result from an exclusion of commercial interests from these areas. Yet, a degree of uncertainty enters at this point, since no showing has been made as to the necessity of utilizing whatever resources nature has stored in these areas. Anomalously it would seem that an argument as to the urgency of entering these areas for exploration and development in order to maintain the status quo would encourage the passage of the bill. That is, if 2 percent of the area of the country has assumed such significant importance to survival, the only regret might be that controlled development and maximum utilization of more limited areas was not sooner promulgated and enforced.

92

In one sense the most impressive argument against the present passage of the bill is its alleged prematurity. The survey presently being made should provide far more knowledge than is now possessed in regard to the recreational habits of the American people." However, even assuming that the result of the survey shows, as it most probably will, that to provide playgrounds of easy access is a more pressing need than is "wilderness" recreation, by no means would this lead to a conclusion that the disputed areas should not be withdrawn from commercial uses. Of course, it may be necessary to open up these wilderness areas to a more commercialized or at least "civilized" type of recreation, with a clientele of weekend picnickers rather than adventuresome outdoorsmen, but there is nothing in the proposed act which would prevent its use for this purpose if necessary. Beyond a doubt, the presently proposed use would leave the areas in a receptive condition for such a policy, whereas a wide-open brand of commercial development might conceivably constitute an interference. Therefore, the mere fact that the survey may show a pressing

89 These views are set forth, together with a proposed substitute bill professedly avoiding the shortcomings of the one under attack, in 106 Congressional Record 2653-2657 (daily edition, Feb. 18, 1960).

80 See, e.g., note 79 supra.

91 See, e.g., 105 Congressional Record A2811 (daily edition, Apr. 7, 1959).

92 See note 88, supra.