Arthur Carhart National Wilderness Training Center DEVELOPING CONSISTENT INTERAGENCY WILDERNESS REGULATIONS Arthur Carhart National Wilderness Training Center 2020 Vision Identify opportunities for developing consistent, interagency wilderness regulations. Arthur Carhart National Wilderness Training Center Pinchot Report Pinchot Institute non-governmental organization dedicated by President Kennedy. 1999, Pinchot Institute asked to review wilderness stewardship. Pinchot Institute non-governmental organization dedicated by President Kennedy. 1999, Pinchot Institute asked to review wilderness stewardship. Arthur Carhart National Wilderness Training Center Pinchot Report Forge an integrated and collaborative system across the four wilderness management agencies. The Secretaries should issue joint policies and regulations specifying common interpretation of law. Forge an integrated and collaborative system across the four wilderness management agencies. The Secretaries should issue joint policies and regulations specifying common interpretation of law. Arthur Carhart National Wilderness Training Center Discussion Topics Introduction to wilderness regulations Compare and contrast agency differences in wilderness regulations Omissions in current regulations Concerns expressed by agency staff Feedback from you Introduction to wilderness regulations Compare and contrast agency differences in wilderness regulations Omissions in current regulations Concerns expressed by agency staff Feedback from you Arthur Carhart National Wilderness Training Center Introduction to Regulations How they relate to statutes and policy What they do, why they are important How they come about Limitations of policy Current status How they relate to statutes and policy What they do, why they are important How they come about Limitations of policy Current status Arthur Carhart National Wilderness Training Center Introduction to Regulations StatutesRegulations Policy Arthur Carhart National Wilderness Training Center Introduction to Regulations StatutesRegulations Policy statutes are the actual laws passed by Congress Arthur Carhart National Wilderness Training Center Introduction to Regulations Statutes Regulations Policy regulations are the who, what, when, where, and how to administer or enforce a statute. Arthur Carhart National Wilderness Training Center Introduction to Regulations Statutes Regulations Policy policy provides guidance to managers and staff. Arthur Carhart National Wilderness Training Center Introduction to Regulations Enforcing Statutes Section 4(c) Ten prohibited uses commercial enterprise permanent road temporary road use of motor vehicles motorized equipment motorboats landing of aircraft, mechanical transport structure installation Arthur Carhart National Wilderness Training Center Introduction to Regulations Enforcing Statutes [An] Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone. California Banking Association v. Schultz, 416 US 21 (1974) Arthur Carhart National Wilderness Training Center Introduction to Regulations Enforcing Statutes if the Secretary were to do nothing, the Act itself would impose no penalties on anyone [An] Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone. California Banking Association v. Schultz, 416 US 21 (1974) Arthur Carhart National Wilderness Training Center Introduction to Regulations Administering Statutes Section 4(d) and 5 Special Provisions aircraft and motorboats fire insects and disease mineral rights water rights grazing commercial services wildlife inholding access rights-of-way Arthur Carhart National Wilderness Training Center Introduction to Regulations Administering Statutes Congress, by statute, has delegated [its authority to manage federal land] to agencies subject to reasonable regulation. Adams v. United States, 255 F.3d 787, 795 (9th Cir. 2001). Arthur Carhart National Wilderness Training Center Introduction to Regulations Administering Statutes "...power to issue regulations is not power to change the law..." US v. New England Coal and Coke Company 318 F.2d 138 (1963) Arthur Carhart National Wilderness Training Center Introduction to Regulations Promulgating a Regulation Code of Federal Regulations Federal Register Act in 1937 Administrative Procedures Act 1946 publish proposed regulation for comment publish final regulation Arthur Carhart National Wilderness Training Center Introduction to Regulations Special Rules and Regulatory Provisions BLM Supplemental Rules FS Forest Orders NPS Compendium FWS Special Regulations Special Rules and Regulatory Provisions BLM Supplemental Rules FS Forest Orders NPS Compendium FWS Special Regulations Arthur Carhart National Wilderness Training Center Introduction to Policy Policy Policy is provided in Manuals, Handbooks, and Orders Agency procedures and instructions to manage programs Arthur Carhart National Wilderness Training Center Introduction to Policy Policy the MANAGEMENT POLICIES is a guidance manual for NPS managers and staff that does not create enforceable regulations or modify existing legal rights. Wilderness Society v. Norton, 434 F.3d 584,596 (D.C. Cir. 2006). Arthur Carhart National Wilderness Training Center Introduction to Policy Policy the court concludes that the Manual states FWS policy and provides guidance to refuge managers, but is not binding on FWS. McGrail & Rowley v. Babbitt, 986 F. Supp. 1386, 1394 (S.D. Fla. 1997) Arthur Carhart National Wilderness Training Center Regulations and Policy Policy Arthur Carhart National Wilderness Training Center Regulations and Policy Code of Federal Regulations (BLM) you must not build, install, or erect structures or installations including transmission lines, motels, vacation homes, sheds, stores, resorts, organization camps, hunting and fishing lodges, electronic installations, and similar structures. Arthur Carhart National Wilderness Training Center Regulations and Policy BLM Manual The Prohibited Uses installations. Anything made by humans that is not intended for human occupation and is left behind when the installer leaves the wilderness. Arthur Carhart National Wilderness Training Center Status of Regulation and Policy RegulationdatePolicy/ Guidance date BLM 43 CFR BLM Manual FS 36 CFR CFR FSM FWS 50 CFR FW NPS not specific to wilderness MP 2006 DO 41 RM interagency 43 CFR As above Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Definitions Prohibitions Special Provisions Public Uses Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Definitions Mechanical Transport BLM: Mechanical transport means any vehicle, device, or contrivance for moving people or material in or over land, water, snow, or air that has moving parts. FS: Mechanical transport, as herein used, shall include any contrivance which travels over ground, snow, or water on wheels, tracks, skids, or by floatation and is propelled by a nonliving power source contained or carried on or within the device. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Definitions - Aircraft BLM: aircraft, including helicopter, hang glider, hot air balloon, parasail, or parachute. FS: aircraft, including helicopter. FWS: any contrivance used for flight in the air, including sail planes, and hang gliders NPS: Aircraft means a device that is used or intended to be used for human flight in the air, including powerless flight. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Prohibitions Use vs. Use and Possession BLM: In BLM wilderness areas you must not: Use motorized equipment; or motor vehicles, motorboats, or other forms of mechanical transport; FS: The following are prohibited in a National Forest Wilderness: (a) Possessing or using a motor vehicle, motorboat or motorized equipment except as authorized by Federal Law or regulation. (b) Possessing or using a hang glider or bicycle. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Prohibitions Use vs. Use and Possession FWS: Except as necessary to meet minimum requirements for the administration of the areathere shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats NPS: Addressed in the General Regulations under: Motorized Equipment (Audio Disturbance) Bicyclescannot possess Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Prohibitions Landing of Aircraft BLM: In BLM wilderness areas you must not: Land aircraft, or drop or pick up any material, supplies or person by means of aircraft, including a helicopter, hang-glider, hot air balloon, parasail, or parachute; FS: The following are prohibited in a National Forest Wilderness: Landing of aircraft, or dropping or picking up of any material, supplies, or person by means of aircraft, including a helicopter. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Prohibitions Landing of Aircraft FWS: The language in Section 4.(c) is repeated without further clarification. NPS: Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Special Provisions Section 4(d)(1) BLM: Subject to such restrictions as BLM determines necessary to protect wilderness values, we may authorize you to land aircraft and use motorboats at places within any wilderness area if these uses were established and active at the time Congress designated the area as wilderness. FS: may permit, subject to such restrictions he deems desirable, the landing of aircraft and the use of motorboatswhere these uses were established prior to the date the wilderness was designated Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Special Provisions Section 4(d)(1) FWS: The director may permit, subject to such restrictions as he deems desirable, the landing of aircraft and the use of motorized equipmentwhere such uses were established prior to the date the wilderness was designated NPS: Special provisions of the Wilderness Act are not addressed specifically in NPS regulations. Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Public Use BLM: The BLM addresses public use under the title Use of Wilderness Areas. Consistent with the preservation of wilderness character Specific usescollecting rocks/plants, using a wheelchair FS: The FS includes a section titled Control of Uses but this section mostly addresses administrative use Arthur Carhart National Wilderness Training Center Inconsistencies Between the Agencies Public Use: FWS: The FWS addresses public use in a section titled Public Use. In accordance with the purposes of the individual wildlife refuge Facilities and improvements will not be provided for comfort and convenience of visitors. NPS: The NPS addresses public use in their General Regulations in Part 2 Resource Protection, Public Use and Recreation. Not specific to wilderness, but application to wilderness areas is implied. Numerous topics covered Arthur Carhart National Wilderness Training Center Wilderness Regulations Are they really missing or just in another place? MISSING REGULATIONS Arthur Carhart National Wilderness Training Center Missing in Regulations BLM Definition Installations Possession of Mechanical Transport or Motorized Equipment Arthur Carhart National Wilderness Training Center Missing in Regulations FWS Definitions Motorized Equipment Mechanical Transport Landing of Aircraft Arthur Carhart National Wilderness Training Center Missing in Regulations USFS Definitions Structures Installations Arthur Carhart National Wilderness Training Center Missing in Regulations NPS Mechanical Transport (other than bicycles) Special Provisions Arthur Carhart National Wilderness Training Center Someplace Else/Obscure BLM Commercial Services Arthur Carhart National Wilderness Training Center Someplace Else/Obscure FWS Penalties for violations Gathering of information about minerals or other resources Arthur Carhart National Wilderness Training Center Someplace Else/Obscure USFS Commercial Services Hard to find Arthur Carhart National Wilderness Training Center Someplace Else/Obscure NPS Motor Vehicles Motorized Equipment Arthur Carhart National Wilderness Training Center Wilderness Regulations Yay! Wilderness Regs Can be What is Arthur Carhart National Wilderness Training Center Is there really a problem? Arthur Carhart National Wilderness Training Center Information is not knowledge. Einstein Arthur Carhart National Wilderness Training Center Do you have management issues related to differences between agency wilderness regulations? What did we ask? Arthur Carhart National Wilderness Training Center FS: Regional Wilderness Program Managers Special Agents in Charge FWS: Refuge Managers BLM: NLCS State Leads NPS: Wilderness Leadership Council (WLC) and several Chief Rangers Whom did we ask? Arthur Carhart National Wilderness Training Center Administration Policy Enforcement Regs Within Regs Between What did we learn? Arthur Carhart National Wilderness Training Center Administration MRAs for the use of aircraft, motorboats, or snowmobiles, where public use is legal (provided by ANILCA or WA Sec 4(d)(1)) Use of motorized equipment or mechanical transport, with or w/o an MRA What did we learn? Arthur Carhart National Wilderness Training Center Administration Agency research projects Permit administration, particularly of commercial services and non-agency research What did we learn? Arthur Carhart National Wilderness Training Center What did we learn? Policy Varying levels of decision authority for prohibited uses Enforcement Forest Protection Officers (FPOs) vs professional, commissioned Law Enforcement Officers (LEOs) Arthur Carhart National Wilderness Training Center What did we learn? Regs Within Food storage, various visitor use restrictions, stay limits, caches, trespass structures, game carts, portage wheels, absence of regulations, language in conflict with the WA Arthur Carhart National Wilderness Training Center What did we learn? Regs Between Fixed anchors, power drills, commercial uses (especially filming), UASs, pet restrictions, stay limits, weed free feed, food storage, penalties (absent in regulations), boundary setbacks Arthur Carhart National Wilderness Training Center