A recent decision by a district court in Minnesota, Izaak Walton League v. St. Clair,¹ has brought again to national consciousness the anomalous exemption granted to mining activities² in the Wilderness Act of 1964.³ That exemption,⁴ allegedly inserted into the Wilderness Act by former Representative Wayne Aspinall as the price of reporting the bill out of the House Committee on Interior and Insular Affairs,⁵ has been viewed with alarm by environmentalists, but has not heretofore been the subject of reported litigation.⁶

St. Clair made national headlines⁷ because sweeping language in the section of the opinion entitled "Conclusion" apparently struck down the entire mining activities exemption, and perhaps other provisions in the Wilderness Act which limit the absolute protection of the wilderness character of designated areas:⁸

Any use of the surface for the exploration or extraction of minerals becomes an unreasonable use because the surface is no longer wilderness and is irreversibly and irretrievably destroyed for generations to come. Mineral development thus by its very definition cannot take place in a wilderness area; else it is no longer a wilderness area…. [I]f the area is to remain true wilderness there is no reasonable usage to which the surface can be put and still retain the character of wilderness….There is an inherent inconsistency in the Congressional Act and it falls in the lap of the court to determine which purpose Congress deemed most important and thus intended. In this court's opinion the Wilderness objectives override the contrary mineral right provision of the statute…. It does not seem to this court that it can presume that Congress intended a nullity…. To create wilderness and in the same breath to allow for its destruction could not have been the real Congressional intent and a court should not construe or presume an Act of Congress to be meaningless if an alternative analysis is available.⁹

The holding in St. Clair is, however, probably a good deal narrower than the language of the conclusion suggests. Mainly, it is the peculiar fact situation of St. Clair which narrows its scope. The court early notes¹⁰ that the section of the Wilderness Act giving an exemption to mineral extracting activities¹¹ is inapplicable to the Boundary Waters Canoe Area (BWCA), where the mineral claims of this litigation are situated, since the [3 ELR 50024] BWCA was among lands withdrawn from the operation of the United States mining laws in 1873.¹² Assuming the correctness of the court's interpretation of that section,¹³ the controversy then reduces to the applicability of § 1133(d)(2), which section permits only "activity, including prospecting, for the purpose of gathering information about mineral or other resources…." in wilderness areas. The sweeping language of the opinion's conclusion above quoted¹⁴ is, in fact, an interpretation of the phrase in the section allowing prospecting activities in wilderness areas.¹⁵ The information-gathering during prospecting or otherwise must be "carried on in a manner compatible with the preservation of the wilderness environment."¹⁶ In view of the definition of a "wilderness area" which Congress enacted,¹⁷ the court concluded that no activity under the prospecting section could be compatible with the concept of a wilderness area, and granted a permanent injunction against further attempts at mineral exploration.¹⁸

If the court is correct in its holding that the exception in the Wilderness Act for mineral extraction activity,¹⁹ as opposed to prospecting activity, in applicable, the further discussion in this opinion — which includes the conclusion — is really a tempest in a teapot.²⁰ The possibility of mineral extraction activities has been foreclosed, and no rational man with commercial interests would desire to prospect for mineral deposits if the Wilderness Act would prevent the extraction of deposits once found. Thus, unless St. Clair can be read as holding that the extraction exemption is itself invalid, the significance of this case for other litigation under the Wilderness Act is much less than many who read the early headlines at first believed.

Two other factors cast doubt upon the precedential value of St. Clair for the support of the broad proposition that the mining exemption of the Wilderness Act is subordinate to the provisions establishing the areas as wilderness. The first is the unique treatment accorded to the BWCA in § 1133(d)(5) of the Wilderness Act,²¹ discussed in a separate section by the court.²² Conflicting statutory phrases on the one hand protect BWCA from any instrusion and on the other guarantee the right to mine in wilderness areas free from all limitations. Beginning "Other provision of this chapter to the contrary notwithstanding…,"²³ the section giving special treatment to the BWCA runs boilerplate-to-boilerplate with the opening phrases of the prospecting exemption ("Nothing in this chapter shall prevent …") and the mineral extraction exemption ("Notwithstanding any other provision of this chapter…"). Caught between Scylla and Charybdis, the language of the court's opinion regarding the avoidance of a nullity²⁴ becomes meaningful, even acknowledging that it was not the conflict between these mutually exclusionary phrases to which the court was alluding at the time. In such a situation, the court may well have chosen the exclusive language of the special section protecting the BWCA over the exclusive language of the special section giving an exemption for prospecting, and reached the same substantive result. In such an instance, however, the holding of the case would plainly extend no further than the boundaries of the BWCA.

Second, another provision of the Wilderness Act could have provided a result identical with that just suggested. Section 1133(a)(2),²⁵ which is not cited by the court, says:

Nothing in this chapter shall modify the restrictions and provisions of the Shipstead-Nolan Act…, the Thye-Blatnik Act… and the Humphrey-Thye-Blatnik-Andresen Act… as applying to the Superior National Forest or the regulations of the Secretary of Agriculture.

The enumerated acts,²⁶ which as the court notes²⁷ [3 ELR 50025] are subject to the Weeks Act of 1911,²⁸ withdraw "from all forms of public entry or appropriation under the public land laws of the United States…" lands which include the BWCA. As to most of the lands in issue in this litigation, the severance of the mineral rights took place after the 1930 enactment of the Shipstead-Nolan Act.²⁹ Under the specific authorization of the Shipstead-Nolan Act, and, even prior to that law's enactment, under the general authority of 16 U.S.C. § 551³⁰ the Secretary of Agriculture has promulgated rules and regulations which would render most mining activity impossible, including establishing the BWCA as a roadless area. Bolstered now by the exclusionary language of the Shipstead-Nolan Act's exemption,³¹ there arises another direct conflict of mutually exclusionary language with that of the prospecting and extraction exemption similar to the conflict between those sections and the special section treating the BWCA.³²

Finally, one must question as a matter of fact whether it is impossible to engage in "activity, including prospecting, for the purposes of gathering information about mineral or other resources…"³³ without disturbing the wilderness character of an area. Certainly, mechanized core-drilling, especially if it requires moving heavy equipment into an area, may be inconsistent with wilderness values. But it is by no means a foregone conclusion, as the court seems to imply, that no prospecting could be consistent with the purposes for which Congress established wilderness areas.³⁴ The extraction of minerals is of course an entirely different matter.³⁵

Thus the narrowness of the factual controversy in St. Clair necessarily casts doubt on the broad propositions of law stated in the court's opinion. Attorneys and environmentalists ought not hasten, however, to the conclusion that the opinion in St: Clair is bad law. As shown here there was ample legal basis for the court's holding, and the case should be upheld if appealed.³⁶ It is, however, insufficient for a commentator merely to point out that the language of St. Clair's conclusion was much broader than it needed to be, or that the holding was much narrower than it purported to be. The court in St. Clair points to fundamental internal inconsistencies in the Wilderness Act that remain regardless of whether they were legitimately raised by the fact situation in that case, and the conclusion reached by the court must be evaluated as to whether or not it is a rational resolution of the inconsistencies apart from the particula facts here. Judge Neville was undoubtedly right when he wrote, "if the area is to remain true wilderness, there is no reasonable usage to which the surface can be put and still retain the area's character of wilderness…."³⁷ The legal, as opposed to factual, question follows logically: how does one interpret the act of Congress which established wilderness areas and in the same breath granted an exemption to mining activities, without presuming the former to be a nullity?

The special exemption for the Boundary Waters Canoe Area and the Shipstead-Nolan Act do not apply to other areas in the National Wilderness Preservation System, and the battle of the boilerplate, where two "Notwithstanding any other provisions" phrases clash, is never joined. Even so, it is not foreordained that the values of the Multiple Use Sustained Yield Act³⁸ or of mining interests³⁹ would necessarily prevail over the wilderness values expressed in 16 U.S.C. § 1133(c), which lacks such an exclusionary clause.

The Wilderness Act and International Law

Those sections of the Wilderness Act⁴⁰ which define wilderness for the purpose of the act may have some hidden strength of their own to pit against the exclusionary clauses of the exemptions given to mining activities and the Multiple Use-Sustained Yield Act. Deriving their force from Article VI of the United States Constitution, which establishes treaties as the supreme law of the land,⁴¹ the sections defining wilderness will cause the [3 ELR 50026] exemptions to be violations of the United States' international obligations if the definition is congruent with a valid treaty guaranteeing protection of areas so defined.

The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere⁴² appears to be such a treaty. Signed by Secretary of State Cordell Hull in 1940, ratified after advice of the United States Senate in 1941, it was deposited with the Pan American Union, and, after similar ratification by Guatemala, Venezuela, El Salvador, Haiti, the Dominican Republic, and Mexico, it was proclaimed by President Franklin D. Roosevelt in 1942.⁴³ The Convention's preamble states:

The governments of the American Republics…, wishing to protect and preserve scenery of extraordinary beauty, unusual and striking geologic formations, regions of aesthetic, historic, or scientific value, and areas characterized by primitive conditions … have agreed upon the following Articles:

Article II of the Convention calls upon the contracting governments to "explore at once the possibility of establishing areas …," including "strict wilderness reserves," for the effectuation of purposes stated in the preamble.

The definition of "strict wilderness reserves" is found in Article I of the Convention:

4. The expression STRICT WILDERNESS RESERVES shall denote: A region under public control characterized by primitive conditions of flora, fauna, transportation and habitation wherein there is no provision for the passage of motorized transportation and all commercial developments are excluded.

It is apparent from the language, "explore at once the possibility," that the establishment of such areas is not mandatory, requires domestic implementing legislation, and is thus, by definition, not self-executing.⁴⁴ It is here submitted that the areas established by the Wilderness Act of 1964 satisfy the requirements of the Convention.⁴⁵

The National Wilderness Preservation System is:

Composed of federally owned areas designated by Congress as 'wilderness areas,' and … 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, so as to provide for the protection of these areas, the preservation of their wilderness character ….⁴⁶

In short, they are regions under public control, within the definition of Article I, § 4 of the Convention. Moreover, the language here cited reiterates the "protect and preserve" idiom of both the title and the preamble of the Convention.

'Wilderness," as defined in the Wilderness Act, likewise conforms to the Convention's definition of "characterized by primitive conditions of flora, fauna, transportation and habitation":

A wilderness … is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain … 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 … generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable.⁴⁷

As for the Convention's requirement of "no provision for the passage of motorized transportation and all commercial developments are excluded," the Wilderness Act provides:

[T]here shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and … 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.⁴⁸

In short, the Wilderness Act's definition of "wilderness areas" is a perfect fit with the Convention's definition of "strict wilderness reserves."

Unlike Article II of the Convention, Article IV contains language which appears to need no implementing legislation to become internal law of the United States, that is, to be self-executing:⁴⁹

[3 ELR 50027]

The Contracting Governments agree to maintain the strict wilderness reserves inviolate, as far as practicable, except for duly authorized scientific investigations or government inspection, or such uses as are consistent with the purposes for which the area was established.⁵⁰

Neither mineral extraction nor logging are purposes for which the wilderness areas were established:

In order to assure that an increasing population, accompanied by … growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established the National Wilderness Preservation System ….⁵¹

Thus, except for scientific investigations or government inspections, the United States is obligated under international law to leave all wilderness areas within the National Wilderness Preservation System "inviolate." "Inviolate" would seem to preclude the massive disturbances associated with both mining and logging, both in those activities' effect on the face of the land and in the noise and air and water pollution usually associated with the machinery used in those operations.

The Convention does not, however, reduce the exemptions in the Wilderness Act for mining activities and the Multiple-Use-Sustained-Yield Act to nullities. Under Article VI of the United States Constitution,⁵² both federal law enacted under the Constitution and treaties made under the authority of the United States are the supreme law of the land. Subsequent United States statutes take precedence over previously ratified treaties.⁵³ Lacking explicit legislative repudiation of the treaty obligation, however, there is a judicial canon of construction which requires a statute to be construed, if at all possible, in a manner consistent with treaty obligations.⁵⁴

In construing the validity of claims to mineral rights in wilderness areas courts must consider two factors. First, what is the true date of the statutory authority for the asserted right? Many mineral patents were issued prior to the ratification of the Convention in 1942, and most under statutes dating from 1872⁵⁵ or 1920.⁵⁶ One mode of construction for a court seeking to reconcile the Wilderness Act of 1964 and the United States' obligations under international law would be to find that the date of accrual of the mineral rights predated the ratification of the Convention, either because the Convention automatically rendered null and void all mineral patents issued prior to 1942 in areas which would become wilderness areas,⁵⁷ or because it rendered the 1872 and 1920 prior legislation null and void from 1942 on, as they applied to wilderness areas, or both.

Second, when viewing the Wilderness Act as a whole, as Judge Neville did in St. Clair in the conclusion of his opinion,⁵⁸ one must agree with him that the existence of the mining exemption is a contradiction that cannot be rationalized and is totally inconsistent with the purposes of the Act. The court in St. Clair found by simply pitting the wilderness preservation against the mining exemption, that "in this court's opinion the Wilderness objectives override the contrary mineral right provision of the statute…. To create wilderness and in the same breath to allow for its destruction could not have been the real Congressional intent…."⁵⁹ Armed with the knowledge that it is the international obligation of the United States to keep such areas inviolate, and the rule of construction that statutes, not explicitly overriding treaty obligations, are to be construed consistent with those obligations, Judge Neville would have had another independent basis for his holding, and the correctness of his conclusion is underscored.

1. Izaak Walton League v. St. Clair, 353 F. Supp. 698, 3 ELR 20196 (D. Minn. January 5, 1973).

2. ELR has touched on this area in the past. When the State of Oregon issued regulations which have the effect of precluding mining in federal wilderness areas, ELR printed the regulations in full, ELR 49001, along with a Comment, 2 ELR 10204, and a Digest entry on the Oregon Attorney General's opinion regarding state regulation of mining on federal lands, ELR Dig. [250], ELR 65222.

A Comment on the related area of right to access to mining claims, 2 ELR 10015, was occasioned by the decision in In re Alfred K. Koenig, 2 ELR 30002.See also Longergan, John B., Access to Intermingled Mineral Deposits, Mining Claims, and Private Lands Across Surrounding Public Domain and National Forest Lands, 8 Land & Water L. Rev. 149 (1973).

There have been several other cases litigated under the Wilderness Act dealing with other matters than the mining exemption. See, e.g., Parker v. U.S., 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971), cert. den. 403 U.S. 934; Sierra Club v. Butz, 3 ELR 20071 (N.D. Cal. 1972); In re Intermountain Co., Decision of the Chief, Forest Service, 3 ELR 30006, for a representative sampling.

3. 16 U.S.C. § 1131 et seq., ELR 41412.

4. 16 U.S.C. § 1133(d)(2) and (3), ELR 41414. The exemption extends through Dec. 31, 1983.

5. See 2 National Journal 2827 (Dec. 26, 1970). The Senate, which passed the Wilderness Act before House action had rejected an amendment similar to Aspinall's, (which originally would have allowed mining until 1989), but which in the Senate version allowed mining only until 1977. Cong. Record, April 9, 1963, p. 5928.

6. See West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 1 ELR 20160 (4th Cir. 1971), in which the section was in issue, but was not a basis of the opinion.

7. See, e.g., New York Times, January 21, 1973, Section 1, p. 68.

8. Of particular interest: 16 U.S.C. § 1133(a)(1):

Nothing in this chapter shall be deemed to be in interference with the purpose for which the national forests are established as set forth in the Act of June 4, 1897 (30 Stat. 11), and the Multiple-Use-Sustained-Yield Act of June 12, 1960 (74 Stat. 215), ELR 41414.

This provision formed a major basis for the decision of the Board of Forest Appeals, Dept. of Agriculture in In re Sierra Club, 3 ELR 30008 (October 16, 1972). Judge Neville's language in St. Clair would seem to apply with equal force to this provision as to the mining exemption. See also the language "… logging off [is] anathema to all wilderness values." Supra note 1, at 353 F. Supp. 714, 3 ELR 20203.

9. (Emphasis added.) Supra note 1, at 353 F. Supp. 715, 3 ELR 20203.

10. Footnotes 2, 5 of the opinion, supra note 1, at 353 F. Supp. 703, 704, 3 ELR 20198.

11. 16 U.S.C. § 1133(d)(3), ELR 41414.

12. Act Feb. 18, 1873, c. 159, 17 Stat. 465, from which the present 30 U.S.C. § 48 is derived. In his memorandum opinion, Judge Neville erroneously stated the date in the text accompanying footnote 2 as 1893, an error which both ELR and West Publishing Company faithfully transcribe. 353 F. Supp. 703, 3 ELR 20198. However, the court correctly stated the date as 1873 in the section of the opinion under the heading "BWCA Specially Treated in Statute," 3 ELR 20202. But see 353 F. Supp. 713, where the sharp-eyed West proofreader has altered the date to 1893 for consistency.

13. The language of § 1133(d)(3) states "… the United States mining laws and all laws pertaining to mineral leasing shall, to the same extent as applicable prior to September 3, 1964, extend to those national forest lands designated by this chapter as 'wilderness areas' …" ELR 41414 (emphasis added). Conveivably, the emphasized language could apply to laws not covered by 30 U.S.C. § 48, supra note 12. However since "[n]o State permits nor leases have been given for mineral exploration, …" 353 F. Supp. 706, 3 ELR 20199, the court's interpretation seems incontrovertible for the present fact situation.

14. Text accompanying note 9, supra.

15. 16 U.S.C. § 1133(d)(2), ELR 41414.

16. Supra note 1, at 353 F. Supp. 714, 3 ELR 20203.

17. 16 U.S.C § 1131(c), ELR 41412; 353 F. Supp. at 714, 3 ELR 20203.

18. Supra note 1, at 353 F. Supp. 716, 3 ELR 20203.

19. 16 U.S.C. § 1133(d)(3), ELR 41414.

20. The court seems to recognize this fact: "… [P]rospecting is only worthwhile if something is found, and it would follow as an a fortiori that removal of the ore is the next step…" Supra note 1, at 353 F. Supp. 715, 3 ELR 20203.

21. 16 U.S.C. § 1133(d)(5), ELR 41414.

22. Supra note 1, at 353 F. Supp. 712-713, 3 ELR 20202.

23. 16 U.S.C. § 1133(d)(5), ELR 41414.

24. See text accompanying note 9, supra.

25. 16 U.S.C. § 1133(a)(2), ELR 41412.

26. The three enumerated acts are now codified as 16 U.S.C. §§ 577-577h.

27. Supra note 1, at 353 F. Supp. 703, 3 ELR 20198.

28. 16 U.S.C. § 513 et seq.

29. Supra note 1, at 353 F. Supp. 701, 3 ELR 20197. It is unclear from the stated facts of the case as to whether this fact is of any legal significance, the important question being compliance with the Weeks Act, supra note 28, and whether any mineral rights predated the 1873 withdrawal of the lands from United States mining laws. See note 12, supra.

30. Granting general authority to the Secretary of Agriculture to promulgate rules and regulations for the protection of national forests. See the court's discussion, supra note 1, at 353 F. Supp. 703, 3 ELR 20198.

31. See text accompanying footnote 25, supra.

32. See text accompanying footnotes 21-24, supra.

33. 16 U.S.C. § 1133(d)(2), ELR 41414.

34. The defendant coal company in the West Virginia Highlands case, supra note 6, voluntarily undertook a program of minimal environmental disturbance in its Otter Creek prospecting activities. They completed their prospecting with no damage to the wilderness, according to counsel for plaintiffs, and found that the coal deposits were not economically extractible.

35. See footnote 20, supra.

36. As of May 3, 1973, the defendants were undecided as to whether they would appeal the decision. Telephone conversation with defendant's counsel, May 3, 1973.

37. Supra note 1, at 353 F. Supp. 715, 3 ELR 20203.

38. 16 U.S.C. §§ 528, 529, which would conflict with wilderness values through 16 U.S.C. § 1133(a)(1) of the Wilderness Act, ELR 41412. Cf., footnote 8, supra.

39. 16 U.S.C. §§ 1133(d)(2) and (3), ELR 41414.

40. 16 U.S.C. §§ 1131(c), ELR 41412; 16 U.S.C. § 1131(a), ELR 41412; 16 U.S.C. § 1133(c), ELR 41414.

41. "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. IV, para. 2.

42. Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, 56 Stat. 1355 (1942), ELR 40346.

43. Other signatories of the convention are Bolivia, Cuba, Nicaragua, Peru, Ecuador, Costa Rica, Uruguay, Brazil, Colombia, and Chile.

44. See Friederich, "Criteria for Self-Executing Treaties," U. Ill. L.F. 238 (1968):

Where a treaty is incomplete either because it expressly calls for implementing legislation or because it calls for the performance of a particular affirmative act by the contracting sovereigns, which act or acts can only be performed through a legislative act, such a treaty is for obvious reasons not self-executing and subsequent legislation must be enacted before such treaty is enforceable by the courts. At 245.

45. Whether the scope of Art. I § 4 of the Convention extends to other areas, such as the administratively-designated Primitive Areas of the National Forests, and even de facto wilderness areas is an interesting question not explored at this time.

46. 16 U.S.C. § 1131(a), ELR 41412.

47. 16 U.S.C. § 1131(c), ELR 41412.

48. 16 U.S.C. § 1133(c), ELR 41414.

49. That parts of a treaty may call for implementing legislation does not prevent other sections from being self-executing. Agnilar v. Standard Oil Co., 318 U.S. 724, 738 (1943) (concurring opinion); Indemnity Ins. Co. of North America v. Pan American Airways, Inc., 58 F. Supp. 338, 340 (S.D.N.Y. 1944).

50. Supra note 42, Art. IV.

51. 16 U.S.C. § 1131(a), ELR 41412.

52. Supra note 41.

53. Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. Oct. 31, 1972), cert. den. __ U.S. __.

54. Id. at 466.

55. Mining Law of 1872, 30 U.S.C. § 22, ELR 41410.

56. Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq., ELR 41410.

57. By so holding, a court might render the United States liable under the Fifth Amendment to compensation for "taking" mineral rights.

58. See text accompanying footnote 9, supra.

59. Supra note 1, at 353 F. Supp. 715, 3 ELR 20203.

3 ELR 50023 | Environmental Law Reporter | copyright © 1973 | All rights reserved