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Wilderness Preservation II: Bringing the Convention Into Court

June 1973

Citation: ELR 50044

Author: Thomas G.P. Guilbert

The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere1 was introduced in an article in the May issue of ELR,2 in the context of an analysis of the recent decision in Izaak Walton League v. St. Clair.3 The author suggested that the Convention provided independent grounds for support of Judge Neville's opinion enjoining mining activities in the Boundary Waters Canoe Area of the National Wilderness Preservation System. Even as that article was being written, another judge in Minnesota, in another opinion that could have invoked the Convention, was citing St. Clair's broad language in granting an injunction against certain logging activity in the same Boundary Waters Canoe Area.4

If a judge has already made up his mind to decide a case in favor of wilderness values, it is a relatively simple task for him to invoke the Convention's edict that strict wilderness reserves must be maintained inviolate. He can simply cite the Supremacy Clause of the United States Constitution,5 which makes treaties the supreme law of the land, binding on all courts of the nation. The environmental lawyer, on the other hand, may find obstacles blocking the path to his introduction to the judge of his nondiscretionary duty to give effect to the Convention. The environmentalist must prove that the area satisfies all of the Convention's criteria for strict wilderness reserves; he must show either that the area is listed as a strict wilderness reserve with the Organization of American States or that its non-listing is of no legal effect; he must establish standing to invoke the Convention in his litigation; and he must prove that the use of the wilderness that he is trying to prevent is not "consistent with the purposes for which the area was established." These impediments to invocation of the Convention are the subject of this Article.

B.A., Amherst; M.A., Yale; J.D., Yale. Member of New York and Oregon Bars; Senior Project Associate, Environmental Law Institute.

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