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 Constitution⁵ 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 non-discretionary 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 which 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.

As each of these difficulties is discussed below, each argument of which will require some attention and briefing by the litigant, the environmental lawyer may well ask if the flame is worth the candle. On any of several issues a court could rule against the applicability of the Convention; and hours the environmental lawyer could have better spent buttressing his other legal arguments would have then been wasted briefing the Convention. The answer to the question of whether to bother to bring in the Convention depends ultimately on the case the environmentalist has without it. Due to the requirement that there be domestic legislation to implement the Convention,⁶ any cases brought in which the Convention would be invoked would presumably have a statutory cause of action in addition to the treaty count. Simply because the Convention is so old, so sweeping in its scope, and so heretofore obscure, a court might bend over backwards to find it inapplicable if it is cited as the only basis for relief. But in a close case such as the recent St. Clair decision,⁷ or Parker v. United States,⁸ the Convention introduces a weighty new factor into the legal balancing process which may be decisive.

A. The Definitional Problem

The Convention defines "strict wilderness reserves" as regions:

[3 ELR 50045]

[1] under public control;

[2] characterized by primitive conditions of flora, fauna transportation, and habitation;

[3] wherein there is no provision for the passage of motorized transportation; and

[4] wherein all commercial developments are excluded.⁹

The first two of these requirements should cause little difficulty for the environmental lawyer.¹⁰ It is perhaps noteworthy that the Convention does not require that strict wilderness reserves be entirely devoid of means of transportation and habitation, but merely that the conditions be primitive. The inclusiveness of the term "primitive" is essentially a question of fact, which must be determined anew in the light of the facts of each case; but apparently the presence of abandoned facilities which have been reclaimed by nature or of rustic cabins and horsepaths was contemplated by the drafters of the Convention as consistent with wilderness.

The third requirement, that there be no provision for motorized transportation, is more nettlesome. The term "provision" might be read to mean "physical facility." Such an interpretation could be the basis of an argument against including within the Convention a primitive area which is criss-crossed with abandoned but usable temporary dirt roads (or which contains within it an abandoned, usable airstrip). So long as the facilities are not actually used for motorized transportation, such an argument appears frivolous. If it appears, however, that the argument is likely to prevail in a particular case, a counter-argument could be made that, since no part of the Convention's definition establishes minimum size qualifications on strict wilderness reserves, the areas on both sides of the facility individually satisfy the definition, and only the road or airstrip itself is excluded.

Alternatively, the term "provision" might be interpreted as "legal allowance," and so the "no provision" for motorized transportation would be identical in law to the "excluded" commercial developments of the fourth criterion. Since motorized transportation is excluded in units of the National Wilderness Preservation System,¹² National Forest Service Primitive Areas,¹³ and Bureau of Land Management Primitive Areas,¹⁴ such an interpretation would not affect many areas likely to be the subject of litigation. Since some de facto wilderness areas are not so classified, however, and have been the subject of legal proceedings,¹⁵ it is a matter of more than academic interest whether the Convention's "no provision" clause requires active prohibition of motorized transportation.

The wording of the definition strongly suggests that the drafters intended "no provision" to mean something less than affirmative exclusion. The principle of economy in phraseology suggests that, had they intended to require only areas in which both motorized transportation and commercial developments were excluded to qualify as strict wilderness reserves, the drafters would have lumped them together and required them both to be "excluded", as earlier in the definition they had required the disparate entities of flora, fauna, transportation, and habitation all to be "characterized by primitive conditions." That they did make an affirmative distinction between "no provision" and "excluded" requires a court interpreting the "no provision" clause to give effect to the distinction by requiring something less than legal prohibition of motorized transportation as threshold satisfaction of the Convention's requirement.

It is the fourth criterion of the Convention's definition, however, which will cause the greatest consternation to environmentalists hoping to establish that national forest units of the National Wilderness Preservation System, units of the National Wildlife Refuge System, national forest porimitive areas, or public lands which are de facto wilderness, satisfy the requirements of strict wilderness reserves. The Convention quite explicitly requires as a condition of such reserves that "all commercial developments are excluded." Section 1133(d)(3) of the Wilderness Act,¹⁶ however, states:

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Notwithstanding, any other provisions of this chapter, until midnight December 31, 1983, 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."

Similar exemptions of mining activities exist under the National Wildlife Refuge System Administration Act of 1966,¹⁷ the regulations governing national forest primitive areas,¹⁸ the laws regulating national forests in general,¹⁹ and the Wild and Scenic Rivers Act.²⁰

The St. Clair decision²¹ would provide an attractive escape from this difficulty for units of the National Wilderness Preservation System. In that case, Judge Neville held that, to avoid interpreting an act of Congress as a nullity in the face of an exemption clearly inimical to the overall purpose of the Wilderness Act, the exemption would have to yield.²² But such an interpretation of the Wilderness Act would render invocation of the Convention superfluous, and is inconsistent with the purpose for wanting to include the National Wilderness Preservation System within the Convention: to provide an independent basis of argument against specific application of the mining exemption. The apparent fragility of the St. Clair opinion as a precedent is a reason for the desire to find an independent source of law in its support, and that need is not met by the Convention if it depends in turn for its applicability on the St. Clair decision.

The fact that less than all commercial activities are excluded from national forest areas of the National Wilderness Preservation System²³ does not, however, preclude the areas from satisfying the Convention's definition of strict wilderness reserves. To see why this is true, it is necessary to examine more closely the nature of the obligation the Convention imposes on the United States.

Article II, § 1 of the Convention states:

The Contracting Governments will explore at once the possibility of establishing in their territories … strict wilderness reserves as defined in the preceding article. In all cases where such establishment is feasible, the creation thereof shall be begun as soon as possible after the effective date of the present Convention.

While this language clearly contemplates effectuation through domestic implementing legislation (i.e., it is not self-executing), the Convention is no less an international obligation of the United States, and hence no less fit a subject for judicial consideration while construing a statute, for that reason. As the Second Restatement of Foreign Relations Law of the United States says,

The duty of a state to give effect to the terms of an international agreement to which it is a party … is not affected by a provision of its domestic law that is in conflict with the agreement or by the absence of domestic law necessary for it to give effect to the terms of the agreement.²⁴

Similarly, Article 27 of the 1969 Vienna Convention on the Law of Treaties states, in part:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.²⁵

The terms of the Convention are unequivocal: "In all cases where … establishment [of strict wilderness reserves] is feasible the creation thereof shall be begun as soon as possible" (emphasis added). If, having explored the possibility of establishing strict wilderness reserves, a county finds immediate establishment impractical, the country "shall" select areas "to be transformed into … strict wilderness reserves as soon as … circumstances will permit."²⁶

It was against this background of international obligation that Congress enacted the Wilderness Act of 1964 which, except for the mining exemption, appearsto satisfy the Convention's definition of strict wilderness reserves in every respect.²⁷ Although Congress did not specifically allude to the Convention in the Wilderness Act, a court of the United States must give the Convention effect under the supremacy clause of the Constitution²⁸ and the rule of judicial construction which decrees that [3 ELR 50047] subsequent statutes must be construed, if possible, in a manner consistent with international obligations.²⁹

Just as a nation may make a reservation at the time of entering into a treaty that it will not be bound by some of the treaty's terms, or will be bound only in circumscribed respects,³⁰ so it may make a "reservation" at the time of enacting implementing legislation, and the mining exemption should be so construed. Such a "reservation" at the time of enacting implementing legislation differs from a true reservation at the time of ratification of the treaty in that the latter is a non-acceptance of part of the treaty obligation ab initio, whereas the former is a subsequent statutory abrogation of international obligations previously assumed and acknowledged.

While it has been well established in constitutional law that a subsequent act of Congress may supersede prior treaty obligations of the United States,³¹ a clearly expressed intention on the part of Congress to abrogate the treaty is required.³² Even where there is such a clear expression by Congress, the Supreme Court has said of a subsequent statute in derogation of a prior treaty:

… the rule is well established that effect must be given to both, if by any reasonable interpretation that can be done; that there must be a positive repugnancy between the provisions of the new laws and those of [the treaty]: and even then [the treaty] is repealed by implication only pro tanto, to the extent of the repugnancy.³³

Relying on the St. Clair case only to the extent of the court's incontrovertable assertion that "[t]here is an inherent inconsistency in the Congressional Act … to create wilderness and in the same breath to allow for its destruction …",³⁴ it may well be argued that the positive repugnancy with the Convention required by the Supreme Court does not exist in the Wilderness Act. Thus, although some commercial activities are allowed within some units of the National Wilderness Preservation System, that fact alone does not cause all wilderness areas, nor even national forest wilderness areas, to be excluded from the Convention's definition of strict wilderness reserves. Moreover, the obligations imposed by the Convention require a strict and narrow reading of the mining activites exemption allowed in national forest areas under the Wilderness Act.³⁵

One such strict construction might be to find that the "reasonable stipulations" which the Secretary of Agriculture may prescribe on mining activities for the protection of the wilderness character of the land within national forest wilderness areas³⁶ must be drawn so as to guarantee that the United States' international obligations under the Convention will be satisfied. Thus, whereas the Wilderness Act says that the stipulations for the protection of the wilderness character of the land may be "consistent with the use of the land for the purposes for which they are leased, permitted, or licensed³⁷ i.e., mining, a court may find that the Convention requires the stipulations must be "consistent with the purposes for which the area was established," i.e., wilderness values.³⁸

B. Other Strict Wilderness Reserves

As we have seen, the United States has been under an international obligation since 1942 to establish strict wilderness reserves. Thus far, the discussion has mainly focussed on the Wilderness Act of 1964 as implementing legislation for the Convention. Since Article II of the Convention is not self-executing,³⁹ there must be some [3 ELR 50048] governmental act to establish strict wilderness reserves before the substantive prohibitions of Article IV can be invoked. The same elements of specificity and concreteness which determine whether or not a treaty is self-executing enter into a determination of whether or not a given governmental act is an implementation of a non-self-executing treaty. Because the obligations of Article II are loosely phrased, only a governmental act explicitly implementing the Convention, or one like the Wilderness Act, specifically and concretely effectuating the Convention's terms, can be interpreted to implement the Convention.

The United States Forest Service had been administering "primitive areas" for 13 years before the effective date of the Convention. Under the Wilderness Act of 1964, the Secretary of Agriculture was directed to review all then-existing primitive areas for inclusion in the National Wilderness Preservation System.⁴⁰ The Forest Service now administers primitive areas in all essential respects, including exempting mining activity, as it does wilderness areas.⁴¹ Whether the recognition of primitive areas in the Wilderness Act is a sufficiently explicit governmental act to be recognized as an implementation of the Convention is problematic. However, the fact of its being considered as potential wilderness areas has been enough for at least one court to enjoin activities inconsistent with wilderness in a roadless area which was not even a designated primitive area,⁴² pending a final determination of the area's inclusion in an adjacent wilderness. The rationale of that decision would apply a fortiori to primitive areas still under review.

Under authority of the Classification and Multiple Use Act of 1964,⁴³ the Bureau of Land Management has established its own designated primitive areas.⁴⁴ These areas are managed similarly to national forest primitive areas, except that in the BLM regulations the exemption for mining activities is as conspicuously absent as it is conspicuously present in the Forest Service regulation.⁴⁵ That is, although defined by regulation, rather than by statute, BLM primitive areas appear to fit the Convention's criteria even better than units of the National Wilderness Preservation System.

Wild river areas designated under the Wild and Scenic Rivers Act⁴⁶ also seem to satisfy all criteria of strict wilderness reserves. There areas, also, are encumbered with a mining exemption.⁴⁷

Finally, the Forest Service has designated experimental areas and research natural areas,⁴⁸ and BLM has designated natural areas,⁴⁹ any of which may meet the Convention's criteria. The regulations designating these areas, however, let alone the statutory authority under which the regulations are made, are so vague as to virtually foreclose inclusion under the Convention.

C. Notification of the Pan American Union

Article II, § 3 of the Convention states:

The Contracting Governments shall notify the Pan American Union of the establishment of any … strict wilderness reserves and of the legislation, including the methods of administrative control, adopted in connection therewith.

If the United States were to notify the Organization of American States (successor to the Pan American Union) that areas designated by the Wilderness Act, or any of those mentioned in part B above, were "strict wilderness reserves" under the Convention, the definitional problems of part A above would be ended. But, lacking such notification, are areas which satisfy the definition precluded from invoking the protection of Article IV of the Convention? The answer, in a word, would appear to be, "no."

Again, the legal effect of the notification provision turns on the intentions and purpose of the parties at the time the provision was drafted into the Convention. Article II §§ 1 and 2 of the Convention⁵⁰ make establishment of strict wilderness reserves clearly the primary obligation of the contracting governments. The duty to notify is, by its nature, subsequent to, distinct from, and [3 ELR 50049] secondary to, the obligation to establish. While no less mandatory, the duty to notify is clearly separable from the duty to establish, and appears to exist solely for the purpose of aiding the implementation of the Convention by informing other parties to the Convention of the existence of areas and domestic laws to which the international obligations of the Convention attach. To argue that the United States government, having fulfilled its obligations under the first two sections of Article II, could escape the further obligations imposed by Article IV, because of its failure to fulfill its obligations under the third section of Article II, would be to distort the notification provision into an instrument to defeat, rather than to aid in, the effectuation of the other provisions of the Convention. Such an interpretation could not have been the intention of the parties to the Convention.

D. Standing to Invoke the Convention

The Convention clearly attaches rights on the contracting governments to enforce its terms commensurate with the obligations it imposes. Haiti, for example, unquestionably could bring a suit to enforce the Convention. Whether or not a citizen of the United States (or Haiti) can sue the United States to compel compliance with the Conventions however, depends on whether the treaty was intended to be for the benefit of private citizens.⁵¹ While private citizens are never mentioned in the Preamble to the Convention,⁵² the very nature of the values protected is such that the Convention's purpose is evidently to benefit the citizens of the American republics.⁵³ Thus, the interests of individual citizens are within the zone of interests the Convention was designed to protect and, under the doctrine of Sierra Club v. Morton,⁵⁵ if those interests are arguably injured in fact, due to violation of the Convention, the private citizen has standing to sue under it.

We do not deem it necessary to consider the constitutional limits of the treaty-making power. A treaty, within those limits, by the express words of the Constitution, is the supreme law of the land, binding alike National and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights.⁵⁶

In short, then, the standing question is no different under the Convention than it is under domestic law.Since, as we have seen, domestic legislation is necessary to implement the Convention, the allegations relating to standing which one would make under the domestic statute would likely be the same allegations one would make to establish standing under the Convention.

E. Uses "consistent with the purposes for which the area is established."

Once the environmental lawyer has proven that an area falls within the Convention, and that he has standing to invoke it, the substantive enforcement section for strict wilderness reserves is Article IV of the Convention.⁵⁷ That article requires the areas to be maintained "… 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." This last proviso creates some difficulties with regard to national forest areas. As set out in the statute defining the purposes for which national forests may be established:

No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions … to authorize the inclusion therein of lands more valuable for the mineral therein …⁵⁸

A later section reinforces the concept of maintaining the availability of national forests for mining.⁵⁹

These purposes have been historically modified, however. The Multiple-Use Sustained-Yield Act,⁶⁰ passed in 1960, begins:

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528-531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established … Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands …⁶¹

The next section adds,

… In the administration of the national forests, due [3 ELR 50050] consideration shall be given to the relative values of the various resources in particular areas. The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of sections 528-531 of this title.⁶²

Finally, that act recognized "… that some land will be used for less than all of the resources."⁶³ This provision, and the Forest Service's administration of it, have been regarded by the Public Land Law Review Commission as in fact establishing dominant-use zoning in national forests, with multiple-use existing only in the composite of the zones.⁶⁴

The Wilderness Act of 1964 further specified that maintenance of some national forest areas as wilderness, inviolate, is consistent with the purposes for which national forests were established:

The purposes of this chapter are hereby declared to be within and supplemental to the purposes for which national forests … are established and administered and — (1) Nothing in this chapter shall be deemed in interference with the purposes for which national forests are established … and the Multiple-Use Sustained-Yield Act …⁶⁵

Thus, the history of the statutory mandate for the administration of wilderness areas in national forests has moved from restriction on uses other than "improving and protecting" the forest, securing favorable water flows and guaranteeing a timber supply; to recognizing outdoor recreation, wildlife and fish, and, particularly, the establishment and maintenance of wilderness areas as supplemental purposes; to specifically establishing wilderness areas and recognizing that such establishment is within, supplemental, and not in interference with the earlier stated purposes. In interpreting the phrase "consistent with the purposes for which the area was established", therefore, it is appropriate to focus on the purpose for which this particular area was set apart from other areas within the national forests, rather than the purpose for which the national forests as a whole were established.

This rule applies similarly to other than national forest wilderness areas. The "purposes for which the area was established" are the purposes of the particular law or administrative regulation upon which the environmental lawyer relies as the governmental act which implements the provisions of the Convention, rather than the purposes for which the general class of lands from which this particular area has been set aside. With regard to any of the types of federal lands discussed in this pair of articles, the environmental lawyer should have little difficulty in establishing that the "purposes for which the area was established" ranked preservation of the wilderness environment above all, and the areas should be maintained inviolate.

1. Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, 56 Stat. 1354 (1942), ELR 40346.

2. Guilbert, Wilderness Preservation I: A Recent Case and a Not-So-Recent Treaty, 3 ELR 50023 (May 1973). See also Comment, 3 ELR 10061 (May 1973).

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

4. Minnesota Public Interest Research Group v. Butz, 3 ELR 20457. (D.Minn. April 16, 1973), hereinafter referred to as MPIRG. At first glance, the opinion in MPIRG appears even more startling than that in St. Clair. Whereas in St. Clair, the court was confronted with the problem of resolving the general provisions of the Wilderness Act defining and creating wilderness areas, the specific exemption given to mining activities by that act, and the even more specific section of that act requiring that the primitive character of the Boundary Waters Canoe Area (BWCA) be maintained; the court in MPIRG granted an injunction against the one use — timber — specifically exempted from the specific exemption in favor of the BWCA's primitive character. MPIRG, however, unlike St. Clair, is not entirely a Wilderness Act decision, but essentially based upon NEPA, and the CEQ and Forest Service guidelines under NEPA.

5. U.S. Const. Art. VI.

6. Guilbert, supra note 2, at 3 ELR 50026.

7. Supra note 3.

8. Parker v. United States, 309 F. Supp. 593, 1 ELR 20522 (D. Colo. 1970), aff'd 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971), cert. den. 405 U.S. 989.

9. Convention, supra, note 1, Article I § 4, ELR 40346.

10. While, as noted in the Comment in the May issue of ELR, supra note 2, nothing in the definition excludes state or municipally-owned lands from falling within the definition, the plain intention of the Convention was to protect lands administered by the national government. The provision calling for the establishment of the reserves begins, "The Contracting Governments will …"., and the substantive enforcement provision begins, "The Contracting Governments agree …". (emphasis added).

12. 16 U.S.C. § 1133(c).

13. 36 CFR § 251.86. In this regulation, the Forest Service, interestingly, echoes the exact words of the Convention: "… no provision for … motorized transportation …"

14. 43 CFR § 6221.2(b).

15. See Parker v. United States, note 8, supra, cf. In Re Sierra Club (Board of Forest Appeals, Dept. of Agriculture, F.S. Docket No. 197, October 16, 1972), 3 ELR 30008.

16. U.S.C. § 1133(d)(3), ELR 41414. Note that the exemption applies only to wilderness areas created out of national forests. Under § 1133(c), wilderness areas created out of wildlife refuges or National Monuments would not be affected by this exemption.

17. 16 U.S.C. § 668dd (c), ELR 41810. Units of this system which are also units of the National Wilderness Preservation System are not subject to this exemption. See note 16, supra.

18. Supra note 13.

19. 16 U.S.C. § 482.

20. 16 U.S.C. § 1280.

21. Supra note 3.

22. See Guilbert, supra note 2.

23. For simplicity, the remainder of the discussion in part A will discuss only the National Wilderness Preservation System.

24. American Law Institute, Restatement (Second) of Foreign Relations Law of the United States § 140 (1965).

25. United Nations Conference of the Law of Treaties, Doc. A/CONF. 39/27, May 23, 1969. Cf. former President and Chief Justice Taft in his book, The Presidency:

"… [W]hen a treaty provision requires for its performance legislative action as for instance, the appropriation of money to meet payment agreed to in the treaty, Congressional neglect or refusal may defeat the performance of a treaty; but it cannot effect its binding obligation." At 98-99. Attorney Advisor Diven to Legal Advisor Gross, Department of State memorandum, "Definition of 'Self-Executing Treaty'," April 22, 1948 MS. Department of State, file 711-009/4-2248.

26. Convention, supra note 1 Article I § 2 (emphasis added).

27. Cf. Guilbert, supra note 2, at 3 ELR 50026. Note that for wilderness areas not in national forests, the definition is completely satisfied.

28. Supra note 5.

29. See Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804); United States v. Lee Yen Tai, 185 U.S. 213, 221 (1902); MacLeod v. United States, 229 U.S. 416, 434 (1913); Cook v. United States, 288 U.S. 102, 120 (1933); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).

30. See, e.g., Power Authority of the State of New York v. Federal Power Commission, 247 F.2d 538, 539-42 (D.C. Cir. 1957).

31. Foster v. Neilson, 2 Pet. 253, 314 (1929); Vanity Fair Mills, Inc. v. T. Eaton Co., 133 F. Supp. 522 (E.D.N.Y. 1955); Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972) cert. denied __ U.S. __.

Note that when a nation makes a reservation at the time of ratification of a treaty, only those provisions to which the reservation applies are affected; other provisions continue to have full effect. Power Authority v. FPC, supra note 30.

32. "[A] treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed. Chow Heong v. United States, 112 U.S. 536; United States v. Payne, 264 U.S. 446, 448." Cook v. United States, 288 U.S. 102, 120 (1933).

33. United States v. Lee Yen Tai, 185 U.S. 213, 221 (1902).

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

35. Another mode of reaching the same result, not inconsistent with the argument proposed here, would be to argue that mining is not a "development" in the sense of the definition's use of "… all commercial developments are excluded." However, the word "development" is specifically used with reference to mining claims the United States Forest Service regulations governing wilderness areas, which tends to weaken this argument. See 36 CFR § 251.83.

36. 16 U.S.C. § 1133(d)(3). ELR 41415.

37. Id.

38. See discussion accompanying notes 57 to 65, infra.

39. See text accompanying notes 23 to 26, supra. The determination of whether or not a treaty provision is self-executing is enormously complicated, but hinges ultimately on the intention of the parties:

Whether or not a given treaty or convention is "self-executing" depends upon the intention of the parties to the treaty … Most often … the treaty instrument itself is silent on the point and a judgment as to the intention of the parties has to be made on the basis of an examination of the document itself and the circumstances surrounding its negotiation. Thus, if the obligations of the instrument are broadly phrased, i.e., countries pledge themselves to "promote human rights," as in the United Nations Charter, it will almost certainly be judged that the instrument is not intended to be self-executing …

On the other hand, where the obligation is in more concrete terms, it may be found in the 'self-executing' category, i.e., the Migratory Birds Convention with Canada …

Stanley D. Metzger, Ass't Legal Advisor for Economic Affairs to Office of Business Practices (Goldblatt), Office of Economic Affairs, Department of State, memorandum, "Dr. Bogsch's question on 'self-executing treaties,'" January 31, 1951, MS Dept. of State, file 3000/1-3151.

40. 16 U.S.C. § 1132(b), ELR 41413.

41. Cf. 36 CFR § 251.86 (primitive areas) with 36 CFR §§ 251.70 to 251.84 (wilderness areas).

42. Parker v. United States, supra, note 8.

43. 16 U.S.C. §§ 1411-1418

44. See 43 CFR Subpart 2071; 43 CFR Subpart 6221.

45. Cf. 43 CFR § 6221.2 with 36 CFR § 251.86.

46. 16 U.S.C. §§ 1271-1287. In § 1273(b), a "wild river area" is defined as the "free-flowing stream and the related adjacent land area" of "[t]hose rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America." Under § 1273(a), a wild river must be authorized for inclusion under the act by an act of Congress the state legislature, or the governor plus the Secretary of Interior. The Bureau of Land Management's regulations under the Wild and Scenic Rivers Act, 43 CFR Subpart 6223, are singularly uniformative.

47. 16 U.S.C. § 1280.

48. 36 CFR § 251.23.

49. 43 CFR Subpart 6225.

50. See text accompanying notes 23 to 26, supra.

51. In this respect, a treaty is no different from a third party beneficiary contract, under which the beneficiary may sue … See generally, Corbin on Contracts (one volume edition), Chap. 41, especially §§ 776-777 (1952).

52. Supra note 1, at ELR 40346.

53. Were Mr. Justice Douglas' dissent in Sierra Club v. Morton, 405 U.S. 345, 2 ELR 10194 (1972), the prevailing law of the land, standing in citizens, rather than in the protected objects and values themselves, would be less clear.

55. Supra note 53. See also Comment, Recent Cases on Standing, 2 ELR 10194 (September, 1972).

56. Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 272-273 (1909). (emphasis added).

57. Supra note 1, at ELR 40347.

58. 16 U.S.C. § 475, ELR 41405.

59. 16 U.S.C. § 482.

60. 16 U.S.C. §§ 528-531, ELR 41406. See generally, Zaelke, Controlling Forest Service Discretion Under the Multiple Use Act, 3 ELR 50017 (May, 1973).

61. 16 U.S.C. § 528, ELR 41406.

62. 16 U.S.C. § 529, ELR 41406.

63. 16 U.S.C. § 531(a), ELR 41406.

64. Public Land Law Review Commission, One Third of the Nation's Land 51 (United States Government Printing Office, 1970).

65. 16 U.S.C. § 1133(a). In an incredible decision in In Re Sierra Club, supra note 15, the Board ofForest Appeals, Dept. of Agriculture, recently used this section as a means of avoiding the effect of the decisions of two courts in Parker v. United States, supra note 15. To reach such a result, it was necessary for the Board to shut its eyes to the fact that the 1964 Wilderness Act was an elaboration and modification of the 1960 Multiple-Use Sustained-Yield Act, not vice-versa.

3 ELR 50044 | Environmental Law Reporter | copyright © 1973 | All rights reserved