Short answer:
No. In almost every instance, the law says that the states may do a variety of actions. Legally, this implies that there is discretion, and the discretion whether to allow it belongs to the federal managing agency, just as in any other wilderness. For a detailed analysis of this language, see long answer below. The outstanding exception is the law designating the Wovoka Wilderness containing language that creates an area called a wilderness but which does not conform to the Wilderness Act. (See pp. 887-893).
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Long answer:
See also pp. 888-893 for additional context and full footnoted references.
An extensive series of additions that first appeared in the Clark County Conservation of Public Land and Natural Resources Act of 2002[1] deserves detailed attention, in part because they have been duplicated (with minor revisions) in subsequent bills in Nevada[2] and also in one bill in Idaho,[3] and in part because of the confusion wrought by the Clark County additions. While this analysis is specific to the sections found in the Clark County law, it is easily applied to similar language in the other laws.
Subsection (a) of the Clark County additions is the reiterated wildlife boilerplate, but instead of saying nothing in this law “affects” the jurisdiction of the state, it says nothing “affects or diminishes” state jurisdiction. The change is redundant: if nothing “affects” then nothing “diminishes.” This subsection changes nothing of substance from the reiterated wildlife boilerplate, which in turn changes nothing of substance from the language in the Wilderness Act itself.
Subsection (b) gives the Secretary authority to authorize otherwise prohibited uses if the Secretary determines their use is necessary[4] to “promote healthy, viable, and more naturally distributed wildlife populations that would enhance wilderness values and accomplish those purposes with the minimum impact necessary to reasonably accomplish the task.”[5] Since this is the same authority that the Secretary has in every wilderness, this subsection changes nothing of substance from the authority found in the Wilderness Act itself.
Subsection (c), which refers to “existing activities,” provides that: “Consistent with section 4(d)(1) of the Wilderness Act . . . the State may continue to use aircraft, including helicopters, to survey, capture, transplant, monitor, and provide water for wildlife populations in the Wilderness.”[6] This language has caused confusion for land managers, state agencies, and non-governmental organizations alike. In part, this is because Section 4(d)(1) of the Wilderness Act has always been interpreted to mean the landing of aircraft by the public at established sites, rather than at any location for administrative use (which would be the case for the activities described in this subsection). Regardless, subsection (c), like section 4(d)(1) of the Wilderness Act, specifies that the state “may be permitted” to continue this use; in other words, the Secretary has discretion to allow it or not.[7]
Agency regulations and policy place parameters on the use of such discretion. BLM regulations state: “As necessary to meet minimum requirements for the administration of the wilderness area, BLM may… [p]rescribe conditions under which . . . State agencies or their agents may [land aircraft] to meet the minimum requirements for protection and administration of the wilderness area.”[8] The wildlife section of BLM wilderness policy emphasizes that any prohibited uses “must be determined by the BLM to be the minimum necessary to preserve wilderness character.”[9] USFS wilderness regulations reiterate the blanket prohibition of the Wilderness Act,[10] while the wildlife section of the USFS wilderness policy is silent on this, other than to direct managers to follow a policy developed with the International Association of Fish and Wildlife Agencies (IAFWA).[11] That document contains language identical with H. Rept. 101-405, which is also listed as a guiding reference in subsection (c), as noted above. The result of this subsection, then, is that the Secretary may approve the state’s use of aircraft for a number of wildlife-related purposes, but only if it is the minimum necessary for managing the area as wilderness – exactly the same authority granted under the Wilderness Act.
Subsection (d) authorizes “wildlife water development projects,” more commonly known as “guzzlers,” if they will “as determined by the Secretary, enhance wilderness values by promoting healthy, viable and more naturally distributed wildlife population.”[12] Again, note that guzzlers are not authorized for any other reason, such as to increase hunting opportunities for certain species. However, an additional restriction is placed on these installations: they may only be authorized if “the visual impacts of the structures and facilities on the wilderness areas can reasonably be minimized.”[13] As minimizing visual impact is now standard management practice, this subsection changes nothing of substance from the authority found in the Wilderness Act itself.[14] (For additional discussion of guzzlers in wilderness, see pp. 921-926.)
Subsection (e) reiterates the Secretarial authority to prohibit, “in consultation with the appropriate State agency (except in emergencies),” hunting, fishing, or trapping “for reasons of public safety, administration, or compliance with applicable laws.”[15] Since the Secretary has this authority on all public lands, this subsection changes nothing of substance from existing federal authority.
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Subsection (f) directs the Secretary of the Interior to “enter into a cooperative agreement with the State of Nevada . . . [to] specify the terms and conditions under which the State (including a designee of the State) may use wildlife management activities.”[16] A Memorandum of Understanding (MOU) between the BLM and the Nevada Department of Wildlife (NDOW) was reached in 2003 and was last amended in 2012.[17] The MOU largely reiterates H. Rep. 101-405, with added sections on scheduling coordination meetings between the two agencies and on the maintenance, repair, and replacement of guzzlers.[18]
Since the 107th Congress passed the Clark County bill in 2002, thirty additional wilderness laws have been signed into law. Such extensive extra special provisions for wildlife management were replicated in only the four laws cited above.[19] While these have been confusing to federal managers, state employees, and non-governmental organizations by appearing to devolve greater deference to the states, the fundamental federal authority—and responsibility—for managing fish and wildlife in wilderness areas remains virtually unchanged. In fact, the same general statement can be made concerning all of the extra special provisions for managing wildlife throughout all the wilderness legislation, even prior to 2002. With the exception of a few unique provisions,[20] all the language added over time actually has had little material effect on the federal government’s authority and responsibility to manage wildlife in wilderness.
[1] Clark County Conservation of Public Land and Natural Resources Act of 2002, Pub. L. No. 107-282, § 208(a)-(f) (2002).
[2] Lincoln County Conservation, Recreation, and Development Act of 2004, Pub. L. No. 108-424, § 209(a)-(f); Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, Div. C, Title III, Subtitle B, § 329(a)-(f); Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, Div. A, Title XXX, Subtitle E, § 3064(e)(1)-(5) and § 3066(d)(1)-(5) and (e).
[3] Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, Title I, Subtitle F, 1503(b)(8)(A)-(C).
[4] Emphasis added. See 16 U.S.C. § 1133(c) (prohibiting motor vehicles and equipment, aircraft landing, and structures or installations unless “necessary to meet minimum requirements for the administration of the area for the purpose of this chapter”).
[5] Pub. L. No. 107-282 § 208(b) (citing H. Rep. 101-405, App. B). Notably, this provision does not authorize activities to promote agricultural-style population increases in certain “desirable” species.
[6] Id. § 208(c) (citing 16 U.S.C. 1133(d)(1)). Subsection (c) also cross-references House Report 101-405 Appendix B, which provides at section B(1) that “The emphasis is on the management of the area as wilderness as opposed to the management of a particular resource. This language is viewed as direction that all management activities within wilderness be done without motor vehicles, motorized equipment, or mechanical transport, unless truly necessary to administer the area or are specifically permitted by other provisions in the Act. It means that any such use should be rare and temporary.” In addition, see section B(3): “In rare instances, facility development and habitat alteration may be necessary to alleviate adverse impacts caused by human activities on fish and wildlife…. [F]ish and wildlife habitat developments necessary for fish and wildlife management (which were in existence before wilderness designation) may be permitted to remain in operation” (emphasis added).
[7] 16 U.S.C. 1133(d)(1) (“the use of aircraft . . . may be permitted to continue subject to such restrictions as the Secretary . . . deems desirable) (emphasis added).
[8] 43 C.F.R. 6303.1(b).
[9] U.S. Dep’t of the Interior, Bureau of Land Mgmt., Management of Designated Wilderness Areas, Manual 6340 (2012), § 1.6.C.21.c.1.
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[10] 36 C.F.R. 261.16(c).
[11] U.S. Dep’t of Agric., U.S. Forest Serv., Wilderness Management, FSM Chapter 2320, § 2323.32(5).
[12] Pub. L. No. 107-282, § 208(d)(1).
[13] Id. § 208(d)(2).
[14] Id. Subsection (d) adds little if anything to subsection (b), which as noted above, provides authority to allow otherwise prohibited uses such as installations, under similar circumstances. Congress may have been motivated to include a provision specific to the visual impacts of guzzler installations due to the infamous Faydee guzzler in the Orocopia Mountains Wilderness of the California Desert, installed prior to wilderness designation, which is so obtrusive as to be visible in aerial photographs taken by earth-orbiting satellites.
[15] Pub. L. No. 107-282, § 208(e). This tracks the language of the Sawtooth extra special provision, Pub. L. No. 92-400, § 8.
[16] Pub. L. No. 107-282, § 208(f).
[17] Transmittal of an amendment (Supplement 9) to the Memorandum of Understanding between the Bureau of Land Management and the Nevada Department of Wildlife, BLM Nev. Information Bulletin, No. NV-2013-006 (Dec. 19, 2012). Appendix 1 is the amended MOU.
[18] Id. The MOA contains some minor discrepancies with the Executive Order on invasive species – Executive Order No. 13112 (1999) – in the definitions concerning native and non-native species.
[19] It is unclear why this developed in Nevada legislation, though the state’s primary wilderness “friends” group has historically been more supportive of the Nevada Division of Wildlife than of preserving the wilderness character of the designated areas. (See Article pp. 924-925) This organization’s influence may also explain the extraordinary language undermining the Wilderness Act in the Wovoka Wilderness.
[20] Pub. L. No. 95-237 § 4(c) (1978) (directing the Forest Service to conduct wildlife research in cooperation with the state of Idaho in the Gospel-Hump Wilderness); Pub. L. No. 96-487 § 1315(b) (1980) (allowing aquaculture in certain Alaska wilderness areas); Pub. L. No. 98-140 § 2(c) (1983) (limiting the use of motor vehicles for wildlife management in the Lee Metcalf Wilderness); Pub. L. No. 103-433 § 103(f) (1994) (permitting greater leeway in approving the use of motor vehicles for management) and § 506(b) (directing the Secretary to allow hunting in the Mojave National Preserve Wilderness (created largely out of BLM lands where hunting was permitted)); Pub. L. No. 113-137 § 3 (2014) (mandating fish stocking in the Stephen Mather Wilderness). The provisions in Pub. L. No. 96-487 (Alaska National Interest Lands Conservation Act) and Pub. L. No. 103-433 (California Desert Protection Act).
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