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By Brett Haverstick

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Taking a long trip into the backcountry during winter doesn’t appeal to some people. That’s understandable. But I enjoy it, and it’s something I try to do a few times a year. Winter backpacking is very different, and more challenging, compared to strapping on the pack during other seasons.

For one it’s darn cold, with many trips never getting above freezing, day or night. Two, there’s usually lots of snow on the ground, which means you’re probably wearing snowshoes, and, perhaps, breaking trail too. Three, your pack is heavier because of all the extra warm gear you are carrying, including more food because you need to consume a lot of calories each day. Four, you have to work harder in just about everything you do, from setting up your shelter and trying to stay warm to melting water and attempting to stay hydrated. Five, there’s not a lot of daylight, so you have to stay motivated and keep moving if you want to cover some miles. Lastly, not too many people want to spend 5-6 days in the cold, blowing snow of the northern Rockies in January! But find someone to share the workload if you can!

My recent trip into the Frank Church-River of No Return Wilderness was with a friend, and, perhaps more importantly, an individual with a skill set that I could trust and depend on. Once the weather report showed a high-pressure system moving across the region, Russell and I finalized our plans and set out for the trailhead. We felt confident we could cover 50 miles before the next weather front moved in.

For two and a half days, we trudged across the frozen ridge, one foot after the other, breaking snow almost the entire time. Occasionally, we would hear the call of the raven or the knock of the woodpecker, but for the most part we walked in silence and deep in thought. Accompanying us the whole time was a set of moose tracks, with deer and elk tracks scattered about. It appeared snowshoe hare were in the area too. Blood on the trail indicated that a mountain lion, or another carnivore, might have wounded one of the ungulates.

The daily routine of building the morning fire, boiling water, drying gear, packing up, snowshoeing 10-16 miles, and then searching for a place to dig out the next snow cave was in some ways more mentally challenging than physical. But the white silence of the forest was peaceful, views of the snow-covered mountain peaks were tantalizing, and the cold, crisp air was exhilarating. With each arduous step, the wilderness boundary drew nearer.

You know the feeling. As one travels down the trail, through the forest, around the next bend or over the saddle, your heart pounds like a kid at Christmas. You anxiously await the sign that reads “…Wilderness, “…National Forest.” Yes, you say to yourself. Hope for humanity. Escape from the madness. Refuge for the plants and animals. Nature’s Bill of Rights at last. Leave me here and let me die with my true friends! And down the trail you continue.

Prior to our trip departure, Russell and I learned about the intent of the Idaho Fish & Game Department to land helicopters, and harass and collar elk, in the Frank Church-River of No Return Wilderness. We were angry, concerned, disappointed, and flabbergasted by the fact that the Forest Service gave the green light to land machines in the Wilderness, up to 120 times over a 3-month period. Of course, it doesn’t matter if it’s 1 time or 12 times, but 120 times was mind-blowing. Who the hell is running the Forest Service? Didn’t they, along with millions of Americans, just celebrate the 50th Anniversary of the Wilderness Act not too long ago? Looks like that was lip service!

And what about the people running the Idaho Fish & Game Department? Why do they still have authority over wildlife management on federal public lands? Why are their intensive and intrusive management plans being permitted in federally designated Wilderness? When is that going to change? Why is the Forest Service continually shining the shoes of the state hook and bullet departments? Who is really administering the Wilderness?

As Russell and I descended in elevation on the third day, the sun shined warmly, the skies stretched a bright blue, and the mighty Salmon River came within view. We peered though the binoculars, and combed the south-facing slopes for herds of elk. Dozens of ungulates lay basking on the hills, while those closer leaped and bound to a more secure place. We also observed whitetail and mule deer (strangely enough together) and lots of wolf tracks. Far off in the distance, we saw what looked like two golden eagles circling a spot on the hill, as if a kill had recently occurred.

Despite seeing a number of horses by the river late that afternoon (why are horses running freely on the national forest in winter, particularly in crucial winter-range habitat?), not a human was in sight, and the frozen riverbank was ours to explore and make home. We rested and dreamily watched small pieces of ice float downstream along the sides of the quiet, rolling river.

Later that evening, after a hot meal, warm fire, and the usual time-to-get hydrated routine, we dozed peacefully under a star-studded sky when suddenly we were awoken by the yips, screams, and howls of coyotes. After shaking our heads no, those are not wolves, we gleefully listened to the songs (and celebrations?) of a dozen coyotes not far from our tarp. They yipped for 3-4 minutes but it felt like a lot longer than that. The sweet music of the Wilderness had finally reached us!

When day broke and our bags were packed, Russell and I contemplated where the Idaho Fish & Game helicopters could be. Were they invading to the south along Big Creek? Were they harassing and stressing dozens of cows and calves to the east? The mere thought of these non-conforming, highly mechanized machines flying and landing wherever they want in the Wilderness made us sick to our stomachs. We both wanted to know how can the uses of helicopters, net-guns, tranquilizers, and GPS-collars be the minimal tool(s) needed to administer the Frank Church-River of No Return Wilderness? None of it made any sense. Little did we know that wolves were being collared too.

Which leads me to my final thoughts. What good is a National Wilderness Preservation System if the federal officials charged with administering the system, and individual areas, continues to approve projects that are incompatible with the Wilderness Act? Why are the Forest Service, Bureau of Land Management, National Park Service, and U.S. Fish and Wildlife Service repeatedly rubber-stamping proposals that harm Wilderness? How is the collaring of wildlife in federally designated wilderness representative of a self-willed landscape? Explain to me how helicopters, net-guns, and radio-collars enhance or preserve wilderness character?

This tragedy (“accident”) should serve as a lightning rod to spark a discussion, better yet, a movement, to do two things: create an independent federal department solely charged with stewardship of the wilderness system, and pressure Congress to pass legislation that forbids all state fish and game agencies from conducting any operations inside federally designated Wilderness.

To hell with the Forest Service and the other federal agencies, which continue to trammel the Wilderness and our natural heritage. We cannot keep leaving it to the attorneys to defend the Wilderness Act. We must do something bold. The status quo is badly broken and only getting worse. Ed Abbey is rolling in his grave and still screaming, “The Idea of wilderness needs no defense, just defenders.” This message needs to reach every living room in America.

Brett Haverstick is the Education & Outreach Director for Friends of the Clearwater, a public lands advocacy group based in Moscow, Idaho. He has a B.S. in Parks & Recreation Management from Northern Arizona University and a Master’s degree in Natural Resources from the University of Idaho. He has been a member of Wilderness Watch since 2007. The views expressed are his own.

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ImageOf Wolves and Wilderness
By George Nickas

“One of the most insidious invasions of wilderness is via predator control.” – Aldo Leopold, A Sand County Almanac

Right before the holidays last December, an anonymous caller alerted Wilderness Watch that the Forest Service (FS) had approved the use of one of its cabins deep in the Frank Church-River of No Return Wilderness (FC-RONRW) as a base camp for an Idaho Department of Fish and Game (IDFG) hunter-trapper. The cabin would support the hired trapper’s effort to exterminate two entire wolf packs in the Wilderness. The wolves, known as the Golden Creek and Monumental Creek packs, were targeted at the behest of commercial outfitters and recreational hunters who think the wolves are eating too many of “their” elk.

Idaho’s antipathy toward wolves and Wilderness comes as no surprise to anyone who has worked to protect either in Idaho. But the Forest Service’s support and encouragement for the State’s deplorable actions were particularly disappointing. Mind you, these are the same Forest Service Region 4 officials who, only a year or two ago, 
approved IDFG’s request to land helicopters in this same Wilderness to capture and collar every wolf pack, using the justification that understanding the natural behavior of the wolf population was essential to protecting them and preserving the area’s 
wilderness character. Now, somehow, exterminating those same wolves is apparently also critical to preserving the area’s wilderness character. The only consistency here is the FS and IDFG have teamed up to do everything possible to destroy the Wilderness and wildlife they are required to protect.

Middle Fork Salmon River, Frank Church-River of No Return Wilderness, Idaho

Middle Fork Salmon River, Frank Church-River of No Return Wilderness, Idaho: Where nine wolves were killed by IDFG’s hired hunter-trapper. Photo: Rex Parker

Wilderness Watch, along with Defenders of Wildlife, Western Watersheds Project, Center for Biological Diversity, and Idaho wildlife advocate Ralph Maughan, filed suit in federal court against the Forest Service and IDFG to stop the wolf slaughter. Our suit alleges the FS failed to follow its own required procedures before authorizing IDFG’s hunter-trapper to use a FS cabin as a base for his wolf extermination efforts, and that the program violates the agency’s responsibility under the 1964 Wilderness Act to preserve the area’s wilderness character, of which the wolves are an integral part. Trying to limit the number of wolves in Wilderness makes no more sense than limiting the number of ponderosa pine, huckleberry bushes, rocks, or rainfall. An untrammeled Wilderness will set its own balance.

The FS’s anemic defense is that it didn’t authorize the killing, therefore there is no reviewable decision for the court to overturn, and that it was still discussing the program with IDFG (while the trapper was in the field killing the wolves). Unfortunately, the district judge sided with the FS and IDFG, so we filed an appeal with the Court of Appeals for the Ninth Circuit. Rather than defend its action before the higher court, Idaho informed the court that it was pulling the trapper out of the Wilderness and would cease the program for this year. In the meantime, nine wolves are needlessly dead.

We will continue to pursue our challenge because the killing program will undoubtedly return. The Forest Service can’t and shouldn’t hide behind the old canard that “the states manage wildlife.”  Congress has charged the FS with preserving the area’s wilderness character and the Supreme Court has held many times that the agency has the authority to interject itself in wildlife management programs to preserve the people’s interest in these lands. Turning a blind-eye is a shameful response for an agency that used to claim the leadership mantle in wilderness stewardship.

Wilderness Watch expresses its deep appreciation to Tim Preso and his colleagues at Earthjustice for waging a stellar legal battle on our behalf and in defense of these wilderness wolves.

George Nickas is the executive director of Wilderness Watch. George joined Wilderness Watch as our policy coordinator in 1996. Prior to Wilderness Watch, George served 11 years as a natural resource specialist and assistant coordinator for the Utah Wilderness Association. George is regularly invited to make presentations at national wilderness conferences, agency training sessions, and other gatherings where wilderness protection is discussed.

There is a good amount of cynicism about the legal system these days. Truth is, we have long been cynical about lawyers and lawsuits. “The first thing we do,” Shakespeare wrote in Henry VI, over four hundred years ago, “let’s kill all the lawyers.” The line has a certain humor, even allure, yet today. Just imagine a civilization without lawyers, without litigation. How good, how amicable, how non-litigious life would be!

As a lawyer myself, I am somewhat biased against Shakespeare’s approach. Maybe let’s spare the lawyers, but we could certainly confine them. We could choose to be non-litigious, to forget about lawsuits, to take a more civilized approach. If we have a dispute, let’s talk it through, resolve it like human beings, without the need for a messy lawsuit.

I have heard echoes of this view in the conservation community, and even among wilderness advocates. I have heard accusations that our community and cause, and the groups that represent it, are too litigious, are too willing to run into court over the tiniest little thing. The argument goes that it puts the agencies that steward our public lands and wildlife in a tough spot. Make any move and run the risk of getting sued. Don’t make a move and get sued as well. Damned if you do, damned if you don’t.

In some measure, that may be right. In some cases, there may be too much reliance on the court system as the fix-all for the environment. But to be honest, I don’t worry about that problem. I trust that the remedies and realities of the legal system will address that concern just fine. What I worry about is our reaction to it. I worry about the view that we should shy away from lawsuits as a means of defending wilderness and the values that it represents, over any concern that we are being too acrimonious by doing so.

We have to keep in mind the basic tenets behind the legal system itself. The root of that system is, of course, the Constitution. This one, short document designed a government of three branches, each one delicately balanced to keep the other two in check. Article I created Congress, vesting it with the legislative authority – the power to make law. Article II created the executive branch, charging it with the duty to faithfully execute the laws that Congress passed. Article III created the judicial branch, vesting it with the authority to hear cases arising under those laws.

This basic structure has an incredibly important implication for wilderness. The reason why begins with Article IV. After creating the three branches, the Constitution vested Congress with the power to regulate federal lands. The legislative power is so broad in this area that absent an unlikely breach of the Constitution, it cannot be challenged. The Supreme Court has held that “neither the courts nor the executive agencies [can] proceed contrary to an Act of Congress in this congressional area of national power.” Congress’s authority is “without limitation.”

While Congress cannot create wilderness any more than it can strike lightning, it can surely seek, through legislation, to protect federal land in its untrammeled, natural condition– as wilderness. To do this, there are any number of paths Congress could have taken. It could have, for example, passed a general mandate turning the issue of wilderness protection over to the executive branch, similar to what the Organic Act did with the National Park System. By so doing, Congress would have taken itself out of the business of wilderness preservation. The law would only have conveyed a general intent that there be lands preserved as wilderness, but would have otherwise left it up to the agencies to figure out what that means.

Such a legislative strategy would have had the compounding effect of mostly taking the judicial branch out of play. The reason for this is sovereign immunity – a doctrine that, in general, makes the government immune from lawsuits brought by citizens. No one can just sue the government out of hand. Instead, Congress must pass a law that waives sovereign immunity to whatever extent it sees fit. In the case of environmental litigation, that law is the Administrative Procedure Act, or APA, which allows citizens to sue governmental agencies in order to overturn administrative decisions that are arbitrary, capricious, or unlawful.

Take heed at that point: Congress wanted citizens to be able to enforce statutes like the Wilderness Act by initiating lawsuits against federal agencies in the federal court system.

With a statute like the Organic Act, this is difficult to do. More often than not, a court will view such a statute as only a general mandate that gives an agency a broad range of discretion to manage the lands under its jurisdiction as it sees fit. For this reason, there are very few cases in which a plaintiff has successfully enforced the Organic Act against the National Park Service.

But for wilderness, Congress took a wholly different approach. Instead of expressing its intent and deferring the nuts-and-bolts to the agencies, it got directly into the business of wilderness itself. The Wilderness Act of 1964 is an unusual federal lands statute in that it provides a series of specific and clear directives on what wilderness is and how a system of wilderness is to be created and maintained. Indeed, one federal judge has deemed it the “closest thing to a purist manifesto as exists in federal law.” The Act’s directives effectively take away much of the discretion that the agencies normally enjoy. For established areas, it imposes a statutory structure with detailed requirements – no vehicles, no structures, and no commerce – along with a strict, over-arching mandate to preserve wilderness character.

The benefit of this approach is that it puts wilderness squarely within the checks and balances of the three branches. Congress can and did pass a law to preserve lands as wilderness. The executive branch is to faithfully execute that law. To the extent that it fails to do so, the judicial branch has the authority to mend any breach of that law. Avoid that last step, and destroy the balance that makes the entire system work. Take out the judiciary and the balance goes away, as does the check on the agencies, leaving no mechanism by which to enforce the Wilderness Act against them.

I do not mean to derogate those that bear the responsibility for stewarding our wilderness areas. In fact, I mean exactly the opposite. Our government is, after all, an enterprise staffed by human beings, who by their nature are not perfect, have their own opinions, and can reasonably disagree. Prior to courts, for hundreds if not thousands of years, the resolution of conflict was a matter of the sword, a matter of might makes right. Our present system of government seeks to avoid that by creating a forum for intelligent, civilized debate moderated by a judge vested with the power of the sovereign. At its root, the idea of litigation is that it allows two disagreeing parties to come forward and speak their peace to a neutral authority, who then reviews the evidence and decides the issue, thereby resolving the conflict. To be blunt, the point of the judicial branch is to resolve conflict, not to create it.

What better opportunity is there to advocate the values of wilderness than that? What more reasoned approach exists by which wilderness advocates can air their disagreements with agencies to an authority that is obligated to follow and enforce the law exactly as it is written?

Indeed, such a forum lends itself particularly well to a statute like the Wilderness Act. It is hard to find a more clear, basic statutory command than, for example, there shall be no motor vehicles in wilderness. But the challenge of understanding the Act is that the rationale behind such statutory commandments is not so easy. The reason why it is important to have wild areas free of motorized vehicles is not obvious. It requires an understanding of not only the inter-workings of all of the Act’s terms, but also the philosophies and ideals underlying those terms – as the author of the Act, Howard Zahniser, put it, the need for wilderness itself.

In fact, Zahniser himself recognized that part of the need for wilderness lay in its educational lessons, which in his words included “the lessons of history – a stimulus to patriotism of the noblest order – for in the wilderness the land still lives as it was before the pioneers fashioned in and from it the civilization we know and enjoy.” Such lessons of history include our political history, the values underlying our own system of government. On one level, the Wilderness Act seeks to preserve a system of lands that allowed the American democratic experiment to occur and flourish. Likewise, the Declaration of Independence holds that our self-evident rights are derived from the state of nature – wilderness itself. As we litigate wilderness issues, we are placing our trust in the legitimacy of a system born from the geographic and philosophical roots of the very lands we are seeking to preserve.

So too does litigation lend itself well to the oversight of different lands in a common system. No lawsuit is an island. Each judicial decision that is handed down creates and becomes a part of a greater body of law in and of itself.

While courts in different circuits and jurisdictions can disagree, all decisions, no matter how minor, have at least some weight. Whenever a lawyer steps to the podium to argue for wilderness, he or she is never doing so only with respect to the issue at hand, but is seeking an application of the Act that will exist in perpetuity, for as long as our government shall last. Litigation over the Wilderness Act is not only a check on the agencies that administer wilderness, but also acts as a continuous test of the Act itself. If courts find the Act to be infirm, or unclear, then there is no better signal that the Act is not doing its job and needs to be strengthened through legislative action.

As for the idea that wilderness advocates could somehow be too litigious, the practicalities of litigation offer an effective deterrent. Lawsuits are hard. They require a significant investment of time and resources, and no matter the amount of effort expended, they are always difficult to win. The judicial system must be used judiciously. A plaintiff must carefully consider the merits of every lawsuit in advance, to determine whether the issue at stake is worth fighting for, whether there are sufficient resources to see it through to the end, and whether a good or bad outcome will enhance or inhibit the greater aspects of the cause. No one who takes litigation lightly will advance their mission, either by rushing to the courthouse for any minor dispute, or refusing to do so for any dispute.

Be cynical towards litigation. Be wary of lawyers. But do so in the right way, a way that is careful in approach but bears in mind the incredible importance that this branch of government has. Anyone who has been in this line of work for any length of time realizes that effectively advocating for wilderness preservation demands effective advocacy in all three branches. Wilderness needs litigation. If we decide to ignore that, then the very resource we seek to protect is destined for the same fate as Henry VI.

Jon Dettmann is an attorney with Faegre & Benson in Minneapolis, MN, an experienced Wilderness Act litigator, and President of Wilderness Watch’s Board of Directors.

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