Michigan's New Wilderness and Natural Areas Act of 1972

Michigan has recently enacted a statute for the protection of state wildernesses, wildlands and natural areas. The Wilderness and Natural Areas Act of 1972 (ELR 43003), House Bill No. 4881, was signed by the Governor on August 3, 1972. The Act defines a wilderness area as a tract of undeveloped state land or water which is either 3,000 acres or more in size or is an island of any size which:

generally appears to have been affected primarily by the forces of nature with the imprint of man's work substantially unnoticeable … [which] has outstadning opportunities for solitude or a primitive and unconfined type of recreation … [and which] contains ecological, geological or other features of scientific, scenic or historical value. Section 2(d).

This definition shows the influence of the wording of the federal Wilderness Act of 1964, 16 U.S.C. § 1131 et seq. [ELR 41412], and especially § 1131 (c), which emphasizes the lightness of man's mark upon the proposed wilderness, without requiring a total lack of traces of his presence. Virgin wilderness, in other words, is not required under either the federal or the Michigan legislation.

The Act goes on to define "wild area," a significant new concept in the protection of state wildlands which emphasizes that the personal experience of nature is important to protect in areas of less than wilderness size. A "wild area" is a tract of undeveloped state land or water smaller than 3,000 acres in size which:

has outstanding opportunities for personal exploration, challenge or contact with natural features of the landscape and its biological community … [and] possesses one or more of the characteristics of a wilderness area. Section 2(e).

Such area, if protected at all by federal law, are usually within the National Parks or National Refuge systems or are given a special administrative designation (Scenic Area, Pioneer Area, Backcountry Area) by the U.S. Forest Service if within a National Forest. Under the Michigan legislation, section 5 (1) gives priority to the acquisition of wild areas and natural areas near large urban population centers.

The new Act goes on to define yet another new category of state wildland. A "natural area" is defined as state land or water which:

has retained or reestablished its natural character, or has unusual flora and fauna or biotic, geologic, scenic or other similar features of educational or scientific value, but it need not be undisturbed. Section 2 (f).

Emphasis, however, in contrast to the above two categories which stress wilderness in itself (wilderness area) and the layman's personal experience of natural (wild area), is upon scientific and educational value. If such value exists, man's imprint may be quite heavy and the area will nevertheless qualify.

The Michigan Act's "natural areas" are undoubtedly intended to serve the same function as the federal land management agencies' "research natural areas." Scattered throughout the federal lands, these areas of limited size now number well in excess of 330, and have been left undisturbed for purposes of research and education.

All three definitional clauses appear to be affected by Section 8 (2), which states:

Grasslands, forested lands, swamps, marshes, bogs, rock outcrops, beaches and wholly enclosed water of this state which are an integral part of a wilderness area, wild areas or natural area shall be included within and administered as a part of the area.

The Act thus stresses the ecological wholeness of areas considered for inclusion. Section 8 (2) will almost certainly be cited to ward of attacks on small portions of a total acreage under consideration. Such attacks may occur during preliminary boundary determinations because the portion has timber, mineral resources or other high-use potential, or because the portion — even if an "integral part" of the area — currently cannot satisfy the definition because man's use has altered the wild character of that portion only of the unit. (Note that under Section 8 (1), the preceding subsection, the state must restore areas to preserve their natural values.)

Dedication of state lands for Wilderness and Natural Areas Act protection is formally completed by the State Commission of Natural Resources.¹ The Commission may receive proposals for the protection of areas under the Act from three separate sources. First, the Department of Natural Resources must conduct an annual review of all state lands under its control and propose suitable areas to the Commission based on that review. Second, proposals may also be made by the Wilderness and Natural Areas Advisory Board, a 7-member board created by the Act.² Finally, private citizens may propose areas directly to the Commission (Section 4 (2)).

[2 ELR 10206]

Areas under the Department's jurisdiction already enjoying some measure of natural or wilderness protection prior to passage of the Act are now to be reviewed, not by the Department, but by the new Board. If the areas are eligible under the new Act, the Board will then propose them to the Commission. The procedure is superior to the drawn-out procedure of review for pre-existing Primitive Areas and contiguous areas under the federal Wilderness Act. The federal legislation commits review to the management agencies, while the Michigan Act involves a specially appointed public review board. Review under the federal act has been dilatory,³ at least until recently.In fact, the Forest Service's attempts to speed up review and pass over some eligible roadless areas have been subject to a successful challenge in court on the grounds that the Forest Service was conducting pro forma reviews that could not possibly result in meaningful recommendations to Congress. See Sierra Club v. Butz, 2 ELR 20698 (N.D. Calif. Oct. 16, 1972).

The Michigan Act's provision for formal proposals from three sources helps ensure that other views than just those of the state's land management agencies will be given a full hearing. While the Michigan Act identifies characteristics which require expert scientific and land management evaluation, it also brings out effectively recreational, meditative and other values which the non-expert can readily identify. Under the federal act the land management agencies have not generally responded to outside viewpoints in wilderness selection decisions without direct pressure from Congress. The federal Wilderness Act has come to be considered by most federal land management agencies as just another land management statute, empowering the agencies alone to set key management policies.⁴ Congress intended, however, to regain lost control and limit agency discretion in enacting the federal Wilderness Act. Perhaps Michigan's legislature will be more successful.

Once a proposal is received by the Commission, it cannot lapse or be ignored. The Statute requires the Commission, with the prior approval of the Board, either to make the dedication or to issue a written statement of its principal reasons for denying the proposal (Section 4 (3)). This schedule puts the Commission, Board and Department under considerable pressure to act. The Commission and Board must both decide within 90 days; and before the final decision is made, the Department is required by the same section to hold a hearing in the county where the dedication will occur.

Section 6 virtually suspends all activity within a proposed area that may be inimical to its alleged character as a wilderness area, wild area of natural area for the 90-day period while a dedication is pending, if the department proposes the area. Thus Section 6 has the interesting effect of deciding in advance that some areas which are suitable for possible protection under the Act will automatically enjoy a 90-day reprieve while the Commission (which controls the Department) decides how to rule on a proposal. The helter-skelter rush for a temporary restraining order and preliminary injunction so typical under federal legislation has to some extent been made unnecessary.⁵ The courts and the agencies have no authority to balance the equities; the legislature has opted for a one-sided view favoring total protection while study proceeds. Unfortunately, this presumption was not made favoring areas proposed by the public. To obtain temporary protection for such areas litigation may still be necessary.

The Act is silent on the effect of the failure of the Commission to act within 90 days. Is dedication automatic? Does the moratorium lapse? Presumably dedication will not occur automatically. In the absence of any statutory guidance, the common law rule requiring clear evidence of an express or implied intent to dedicate is likely to be applied. On the other hand, the mere failure of the Commission to act should not end the moratorium. Such non-action has exactly the same effect as a denial, yet occurs without a written statement of reasons, which could be enjoined. To give effect to the statutory purpose, the courts will probably require the moratorium to continue in effect until the Commission has complied with the Act. Further, mandamus may lie to require the Commission to perform its non-discretionary duty by acting on the petition.⁶ Finally, the Michigan courts arguably have full authority under the Michigan Environmental Protection Act of 1970 to determine that the failure of the state to keep the moratorium in effect will endanger the public trust, which is specifically declared by the latter Act.⁷

Once an area has been established, the Department will carry out the Act's management policy. Section [2 ELR 10207] 8 (1) states that "state land in a wilderness area, wild area or natural area shall be maintained or restored so as to preserve its natural values in a manner compatible with this act." Other provisions make it a misdemeanor to use motorized transport in a declared area, including wild areas and natural areas. Finally, the area must be posted, both for the 90-day period of review and, if dedication takes place, for the permanently restricted uses.

The most important management sections, however, are contained in section 6. Section 6 (b) forbids easements in the dedicated areas, a prohibition which has the effect of ensuring that they will remain roadless. Section 6 (c) forbids mineral extraction, the effect of which is obvious. An unsettled question of some importance, however, is whether oil is a mineral under Michigan law.

Finally, key to an understanding of the new legislation is the absence in the management provisions of any differentiation in management practices for the three areas. All are to be managed by the same strict standard.

1. The dedication doctrine at common law is extensively discussed in Comment, "Public Rights and the Nation's Shorelines," 2 ELR 10184 (Sept. 1972). At common law, dedication is irrevocable. A question therefore arises about the ffect of Section 4 of the new Act, which implies that the Commission may withdraw a dedication.It may very well be that the state lacks the power to withdraw dedications, unless the land is put to an alternative related public use.

2. The Act, Section 3 (1) states:

The board shall consist of 7 citizens of the state who shall be appointed by the governor with the advice and consent of the senate; 1 shall be from the Upper Peninsula; 1 shall be from the Lower Peninsula north of townline 16; 3 members shall posses experience in the evaluation and preservation of wilderness or natural areas; 1 shall be trained and experienced in wildlife biology; 1 shall be a registered forester, trained and experienced in forest ecology, silviculture and protection of forest land; 1 shall be qualified in outdoor education and nature interpretation; and 1 shall represent those industries whose basic resources come from the lands and forests. The board shall elect 1 of its members as chairman. Members shall serve for terms of 3 years each except that of the members first appointed, 2 shall be appointed for terms of 1 year, 2 for 2 years and 3 for 3 years. Members shall serve without compensation.

3. See Environmental Quality — The First Annual Report of the Council on Environmental Quality (1970), pp. 180-181.

4. Although the Wilderness Act had the effect in some instances of "protecting" national forest from the Forest Service, nevertheless the Service viewed it as a special case under the "broader" mandate of the Multiple Use — Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531.

5. See West Virginia Highlands Conservancy v. Island Creek Coal Co. & U.S. Forest Service, 1 ELR 20160 (4th Cir. 1971).

6. However, the availability of mandamus to a citizen plaintiff under Michigan law is somewhat doubtful. See Jaffe, Judicial Control of Administrative Action 468-469 (footnote 44 and the Michigan cases cited therein).

7. See ELR 43001 § 2 (1).