Discretionary Review of April 13, 1998 Appeal Decision on Sawtooth Wilderness Management Direction

Mr. Sam Davidson
Senior Policy Analyst
The Access Fund
220B San Benancio Road
Salinas, California 93908

RE: Discretionary Review of April 13, 1998, Appeal Decision on Sawtooth Wilderness Management Direction

Dear Mr. Davidson:

We have reviewed Deputy Regional Forester Jack G. Troyer's April 13 1998, appeal decision of your November 4, 1997, appeal of the Sawtooth National Forest Supervisor Bill LeVere's September 15, 1997, Sawtooth Wilderness Management Direction Decision Notice and Finding of No Significant Impact. I have decided to exercise my authority to conduct a discretionary review pursuant to 36 C.F.R. 217.17. My decision affirms in part and reverses in part the Deputy Regional Forester's April 13, 1998, appeal decision. I affirm Deputy Regional Forester Troyer's April 13, 1998, decision on Issues 1b, 2, 5, and 6b without further comment. I reverse Deputy Regional Forester Troyer's April 13, 1998, decision on Issues 1a, 3, 4, and 6a for the reasons set forth below.

Background

In his September 15, 1997, Sawtooth Wilderness Management Direction Decision Notice, Supervisor LeVere included the following direction for "Fixed Anchor Management":

"No additional anchors will be allowed. Replacement and maintenance (of existing anchors) will be allowed on existing anchors by special use permit only (standards are set by the climbing community). As in any wilderness, no mechanized equipment will be permitted, including battery operated drills."

The Access Fund appealed the Forest Supervisor's decision to not allow any additional fixed anchors and his authority and rationale for regulating the use of fixed anchors in the Sawtooth Wilderness. The appeal issues are as follows:

APPEAL ISSUE 1: The Decision Notice/Finding of No Significant Impact (DN/FONSI) Contradicts law and policy concerning fixed anchors.

APPEAL ISSUE 1a: The Decision to prohibit new fixed anchors in the Sawtooth Wilderness is arbitrary and capricious, having no basis in established law, objective LAC-type analysis of the wilderness resource, or existing Forest Service guidance.

APPEAL ISSUE 1b: Supervisor LeVere concludes with no citation of legal precedent or other rationale, that fixed anchors are "permanent improvements".

APPEAL ISSUE 2: The proposed rule would adversely affect the health and safety of persons engaged in wilderness climbing in the Sawtooth Wilderness

APPEAL ISSUE 3: The DN/FONSI being appealed does not adequately describe wilderness-dependent climbing opportunities in the Sawtooth Wilderness, and wrongly concludes that "additional fixed anchors...are unnecessary for management of this area."

APPEAL ISSUE 4: Fixed anchors are necessary for "management, protection, and use of the Sawtooth Wilderness."

APPEAL ISSUE 5: Under the DN/FONSI, future generations of climbers will not be able to experience the same unique climbing opportunities in the Sawtooth as past and present generations.

APPEAL ISSUE 6: Other considerations.

APPEAL ISSUE 6a: The EA does not describe the role and effect of education and other "soft" management responses in minimizing fixed anchor use and other climbing impacts nor explain why these measures are not sufficient to protect wilderness character and values.

APPEAL ISSUE 6b: The prohibition on fixed anchors in the Sawtooth Wilderness could have a serious negative effect on the relationship between climbers and the Sawtooth National Forest.

The Deputy Regional Forester affirmed the Forest Supervisor on all issues, but with direction on Appeal Issues 1a, 3, 4 and 6a. The Reviewing Officer directed the Forest Supervisor to complete an analysis of the management need for fixed anchors to protect the wilderness resource and administer climbing activities in the Sawtooth Wilderness. Such analysis should determine the need for fixed anchors, the general areas they are to be allowed, and the disposition of those anchors found not necessary for the administration of the Sawtooth Wilderness. He also directed that prior to the completion of the analysis no new fixed anchors will be allowed within the Sawtooth Wilderness and that a closure order would be issued pending the completion of the analysis.

Legal Analysis

The Wilderness Act (hereinafter "the Act) "established the National Wilderness Preservation System composed of federally owned land "administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness. . ." 16 U.S.C.

§1131(a). "Wilderness" is defined in section 2(c) of the Act as:

. . . an area where the earth and its community of life are untrammeled by man.

. . retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable. . .

Id. at §1131(c).

Section 2(c) of the Act establishes the public policy that there should be no permanent improvements within Wilderness areas. The Forest Service has defined "permanent improvements" to include all structural or nonstructural improvements that remain in one location for more than one field season. Forest Service Manual §2320.5(5). Permanent improvements are authorized in designated wilderness areas only for the protection of the wilderness resource.

Id. at §2323.13.

Section 4(c) of the Act puts teeth into section 2's policy pronouncement by prohibiting various activities in Wilderness areas:

Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of

Mr. Sam Davidson 4

this chapter (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.

16 U.S.C. §1133(c).

The prohibition in section 4(c) of the Act against "installations" is relevant to the issue of fixed anchors. While "installation" is not defined in the Act or regulations, its common meaning is "(s)omething installed, as a system of machinery or apparatus placed in position for use." Random House College

Dictionary, p. 690 (1980). In our opinion, fixed anchors used to facilitate rock climbing fall within the common meaning of "installation." If that is the case in this situation, and we believe it is, then the question is not whether the Forest Service can regulate the practice of fixed anchors, but whether it can allow the activity to occur in the first place. The Act does not provide the agency with the discretion to authorize fixed anchors in wilderness areas. ¹

The appeal asserts that "the minimum requirements" for wilderness climbing in the Sawtooth Wilderness include that distinct and wilderness-dependent climbing opportunity which involves exploration of new vertical terrain." Appellant also contends that "fixed anchors are necessary for "management, protection, and use" of the Sawtooth Wilderness." This appeal appears to presume that climbing in wilderness is included within the Act's reference to recreational use, and that the Forest Service's management responsibilities in administering wilderness areas is to authorize whatever means are necessary to rock climb in wilderness. As appellant noted and the Regional Forester acknowledges, there is a significant history of rock climbing in wilderness areas, and the Forest Service recognizes rock climbing as an appropriate activity in wilderness areas. While rock climbing is an authorized activity in wilderness areas, providing rock climbing opportunities where use of equipment or installations is

Mr. Sam Davidson 5

required that violates the Act's prohibitions is not permissible under the Act. Administration of wilderness areas pertains primarily to the Forest Service's responsibility to care for and protect the wilderness resource, not for wilderness users to undertake their recreational activities by whatever means necessary. Rock climbing is a recreational activity subject to the prohibitions set forth in the Act.

Previous litigation involving structures and installations in wilderness areas indicates the Forest Service may not authorize permanent structures and installations in wilderness, with very limited exception. In Wilderness Watch v. Robertson, No. 92-0740 (Apr. 16, 1993, D. D.C.), plaintiff sued the Forest Service over the authorization of permanent structures and installations for use by commercial outfitters and guides operating in the Frank Church-River of No Return Wilderness. The structures and installations included tent frames, caches of non-native materials, and water systems. The court held that such structures "directly conflict with express provisions of the Wilderness Act because they are not necessary to meet minimum requirements for the administration of the area, and they do not appear to be temporary in nature." Wilderness Watch, at 11. The Court directed the parties to develop a remedial plan to ensure compliance with the Act, and subsequently adopted a plan prohibiting permanent structures, with the very limited exception of minimal native material structures where necessary to protect the wilderness resource. The agency's interpretation of the Act's prohibition on structures and installations as applied to fixed anchor is consistent with the court's interpretation of the Act in Wilderness Watch.

Policy Implications

The appeal identifies fixed anchors as "necessary for management, protection and use of the Sawtooth Wilderness." It favorably compares climbers using fixed anchors with hikers using trails. There are significant differences between these two activities:

On-the-ground trails serve multiple administrative functions including, but not limited to, search and rescue; firefighting; backcountry supply; monitoring resources such as snowpacks; and research. There is a direct nexus between the existence of trails and administration of the area beyond whatever recreational use is made of trails. By contrast, vertical "trails" of fixed anchors do not serve an administrative function and are not necessary to the administration of wilderness areas.

In addition, the Forest Service does not allow any group or person to build "at will" any structure or trail in Wilderness (or non-wilderness) public lands. Trail work performed by people who are not Forest Service employees (such as contractors or volunteers) is carefully supervised and is directed with resource goals as a priority.

The Forest Service designs and builds trails after analysis of trail objectives and management priorities found in the Trails Management Handbook FSH 2309.18. Trails must meet the setting requirements for the Recreation Opportunity Spectrum class established for a given area of wilderness (FSM 2310 and FSH 2309.18), further guided by the Limits of Acceptable Change for that wilderness (GTR INT-176).

New trails are built when existing use (or expected use) in an area is causing resource damage through widespread trampling, proximity to creeks and riparian areas, or when hazards pose a significant threat to user safety. The goal of a trail is to reduce the total number of paths and impacts. In contrast, the "exploration of new vertical terrain" as stipulated by the appellants makes the climber the trail decision maker and manager. The possibility for "fixed anchor trails" to be created randomly and indiscriminately is enhanced. However, even if regulated the placement of fixed anchors would have adverse impacts on the wilderness resource such as accelerated weathering of rock faces, damage to lichens and mosses and adverse effects on cliff dwelling birds.

While "primitive and unconfined recreation" is a primary purpose of wilderness identified in the Act, recreational pursuits that violate the prohibitions in the Act are excluded. An example is mountain biking, a popular outdoor recreational pursuit which clearly violates the Act's prohibition on "mechanical transport". Managers are not expected to accommodate recreation for recreation's sake, but to authorize those recreational activities, and the means to conduct those activities, that are permissible under the Act. If the Forest Service were to authorize installations in wilderness areas prohibited under Section 4(c) by defining those installations as necessary for administration of wilderness for recreational use, the Forest Service would significantly undermine the Act's prohibitions. Persons wishing to undertake recreational activities in wilderness areas could justify using structures, installations, or motorized equipment by asserting the necessity for using such devices to accomplish the activity in the most effective or comprehensive manner. The Forest Service has no more discretion under the Act to authorize use of fixed anchor in support of rock climbing than it does to authorize power ice augers in support of ice fishing or permanent structures in support of hunting or fishing activities.

When outside of wilderness areas, many recreational activities frequently are performed with the aid of structures, installations, or motorized equipment. Ice fishing for example, is often conducted using a power ice auger when outside of a wilderness area. Within wilderness areas, however, power ice augers are prohibited because they are motorized equipment. The Act does not reference power ice augers specifically, but the Act's prohibition of motorized equipment must be read to include power ice augers. Similarly, rock climbing outside of wilderness areas is performed frequently using fixed anchors. Within wilderness areas, however, such devices are prohibited pursuant to Section 4(c) of the Act.

The Forest Service is committed to working with climbing organizations to provide the maximum possible access for climbing in non-wilderness areas in an effort to minimize the impact of reductions in available climbing locations within the Wilderness areas of the National Forest System resulting from this decision. The Chief of the Forest Service has identified improved recreational opportunities within the National Forest System as a priority for the agency, and efforts are underway to accomplish this important objective. This decision is a reflection of the agency's commitment to upholding all laws governing administration of National Forest System lands, not any indication of the agency's retreat from providing optimal recreation opportunities, including rock climbing.

Conclusion

The Wilderness Act prohibits the use of installations" except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act. . ." It is our opinion that fixed anchors qualify as installations and are not necessary to meet minimum requirements for the administration of the area for the purpose of the Act.

Consequently, we believe that the use of fixed anchors is prohibited within wilderness areas. Therefore, the Regional Forester's April 13, 1998, decision which, among other things, directed the Forest Supervisor to "complete an analysis of the management need for fixed anchors to protect the wilderness resource . . ." is reversed. No such analysis is necessary because fixed anchors are prohibited under the Wilderness Act.

This constitutes the final administrative determination of the Department of Agriculture [36CFR 217.17 (f)].

Sincerely,

/s/ Darrel L. Kenops

Darrel L. Kenops
Reviewing Officer for the Chief

cc: Regional Forester, R-4