The Wilderness Act, Izaak Walton League v. St. Clair, and A Neglected 1942 Treaty on Wilderness: All the Subject of an Article in this Issue

A signed staff article in this month's issue discusses Izaak Walton League v. St. Clair, a recent Wilderness Act decision. The case raises anew the perplexing problem of how to resolve the contradiction between the policy and purposes of the 1964 Wilderness Act and the exemption for mining activities embedded in that Act. Thomas Guilbert finds, despite criticism of the opinion which has been heard from some quarters, that the holding in the case is sound and that the allegedly over-broad and over-blown language of the widely-reported dictum stating that mineral rights must give way where wilderness is threatened has much to recommend it.

The most interesting and fully-developed point made in the article, however, is an argument never raised in the St. Clair case: that the mining exemption should be strictly construed against because it is in derogation of the international obligations of the United States. Specifically, mining activities would violate the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, ELR 40346, which defines "strict wilderness reserves" in such a way that the National Wilderness Preservation System must be included, and then sets strict limitations on what activities the contracting nations may allow in such areas. Thus the most vexing loophole in the Wilderness Act — the mining exemption — may have been closed off long before its self-included December 31, 1983 termination date, and environmentalists will be able to devote more attention toward getting Congress to add new areas to the Wilderness System, and less toward protecting already included areas against pickaxe and steam shovel.

The article may have barely scratched the surface of the applicability of the Convention, however. As noted in a footnote, areas designated under the Wilderness Act may not exhaust areas of public lands which meet the Convention's definition of "strict wilderness reserves." The author of the article limits himself to the case where Congress has specifically recognized the character of wilderness areas by definitions embodied in law. But other regions under public control may well fall within the Convention's definition.

Under law existing at the time the Convention was ratified in 1942, the Secretary of Agriculture had the sanction of Congress to make rules and regulations for the protection of National Forest lands. As specifically recognized in the Wilderness Act, the Secretary had by 1964 classified some National Forest lands as Primitive Areas. Might all or most of these come under the Convention's protection?Given the criteria of the Convention, and the criteria applied to these areas by which they were designated Primitive Areas by the Forest Service in the first place, the argument is strong that these areas, too, must be kept "inviolate" under the treaty, which is the supreme law of the land. We will watch with interest to see if the argument is made in the forthcoming review of the Idaho and Salmon River Breaks Primitive Areas, which are being reviewed for possible inclusion in a "River of No Return" wilderness area.

What of state-owned lands which meet the Convention's criteria for strict wilderness reserves? These, too, are under public control, and Article VI of the United States Constitution suggests they, too, must be kept "inviolate."

Depending upon the interpretation of the Convention's phrase, "… wherein there is no provision for the passage of motorized transportation and all commercial developments are excluded," the argument may be made that all federally- and state-owned areas which are de facto wilderness are also protected under the Convention. Do the terms "no provision" and "excluded" require affirmative action in the form of laws or regulations prohibiting, or do they include the de facto lack of provision for motorized transportation and past exclusion of commercial activity? If the latter, such areas as French Pete Creek in the Willamette National Forest would also have to be kept "inviolate."

When the 1899 Refuse Act was "reawakened" after decades of dormance to become a water pollution statute, environmentalists asked each other how it could have been ignored for so long. The answer, of course, was that, until the environmental movement grew strong in the 1960's, no one had ever considered using the 1899 Act for any purpose but navigation. The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere has not been ignored to date, but has primarily been regarded as a wildlife treaty. In enacting The Endangered Species Conservation Act of 1969, Congress cited the Convention as one basis of authority. The 1899 Refuse Act never received much notoriety as a navigation statute, but rose to great prominence once "refuse" was interpreted to include pollutants. Unlike the history of that act, no re-interpretation of the Convention's language is necessary for it to have far-reaching effects on the administration of the public lands of the United States. Only time will tell if that is the role it will play.