Connecting federal employees, scientists, educators, and the public with their wilderness heritage
Cultural Resources Toolbox
The Cultural Resources Toolbox is a 'work in progress' and
represents only the information available. In addition to the resources provided here, you may also be able to obtain advice and recommendations through discussion on
. Date of last update: 10/5/16.
This toolbox contains material pertaining to the stewardship of cultural resources in wilderness. It is not a comprehensive site for finding all materials necessary for managing cultural resources elsewhere. In addition, because of the many cultural resource laws and recent court findings, it is important to keep in mind that different agencies -- and different geographical regions in our agencies -- have interpreted the finer points of cultural resource management in wilderness differently. Be sure to check with you Regional or State Offices. Basis in the Wilderness Act
The Wilderness Act states in Section 2(c)(4) that wildernesses "may contain…features of scientific, educational...or historical value." Where present, cultural resources are part of this "unique" quality of wilderness character. Of the hundreds of wilderness areas that Congress has designated, many, but not all, are rich in cultural resources. Cultural resources have not been identified in some areas, and their presence is clearly not required for an area to be wilderness. But where those resources have been identified, they may be among the most important reasons for designating the area as wilderness. Recent court cases seems to be interpreting the "historical value" as in the use of these lands, not in the remnants left behind. And, certainly, the historical use of the area is an important contribution to this unique quality as well - a use that often stretches from the far distant past right up to today, and into the future. And yet it does not make sense to believe the wilderness character of North McCullough Wilderness would be enhanced by obliterating its petroglyphs, or the wilderness character of Mesa Verde enhanced by removing the cliff houses. In fact, when the Wilderness Act was first introduced in 1956, it contained a list of suggested areas which included the entirety of Mesa Verde National Park except for those portions "required for roads, motor trails, buildings, and necessary accommodations for visitors." Clearly, when originally envisioned, wilderness areas could contain stabilized structures of historical value. In addition, surely the presence of cultural resources contributes to the outstanding opportunities for primitive recreation. For some visitors, few experiences are more exciting than being in a wild place and coming across the remains of a former life - from an Archaic lithic scatter to a homesteader’s cabin. There seems to be a symbiotic relationship between cultural resources and wilderness. We've seen, above, how cultural resources can enrich wilderness. On the other hand, wilderness is sometimes the most beneficial land use allocation for protecting cultural resources, because it is there that these resources have been -- and continue to be -- farthest from the ravages of modern technological civilization. Cultural Resource Laws
These are not the only cultural resource laws -- only the ones that are particularly applicable to managing cultural resources in wilderness.
Antiquities Act (1906), the genesis of laws to protect and manage heritage resources on Federal lands
National Historic Preservation Act (1966, as amended through 2006), creates Federal procedural requirements
American Indian Religious Freedom Act (1978), outlines inherent right of freedom of traditional religions
Archaeological Resources Protection Act (1979 & 1988), strengthens provisions in the Antiquities Act
Native American Graves Protection and Repatriation Act (1990), regulates disposition of human remains and associated funerary objects Case Law
Heritage Assets and Wilderness Court Case Guidance
Wilderness Watch v. IWAMOTO 853 F. Supp. 2d 1063 - Dist. Court, WD Washington, 2012 Topic: Historic structures in wilderness and the minimum necessary (Green Mountain Lookout) Background: In the years since its construction, Green Mountain lookout has been subject to a series of increasingly elaborate rehabilitation efforts, a principal purpose of which has been to keep the lookout from slipping off the summit. The first major effort occurred in the early 1950s, after heavy snowfall severely damaged the lookout, "twist[ing] the building apart." In the decades following the 1950s reconstruction of Green Mountain lookout, several key pieces of legislation were enacted. One of these was the Wilderness Act of 1964, which provided for the designation of federally-protected wilderness areas. Another was the Washington State Wilderness Act of 1984, Pub.L. 98-339, 98 Stat. 299 (July 3, 1984), pursuant to which Green Mountain lookout became part of a federally designated wilderness area (the Glacier Peak Wilderness Area), and accordingly, subject to the provisions of the Wilderness Act. During this period, Congress also passed the National Historic Preservation Act ("NHPA"), which was designed to promote preservation of historical and archeological sites in the United States "for the inspiration and benefit of the people of the United States." In 1977, the Forest Service and the State Historic Preservation Officer considered whether the Green Mountain lookout qualified for listing on the National Register. The Forest Service found that the lookout "does not appear to meet the National Register criteria ... [t]he building is associated with important historical events, but it's a reconstruction and is not the last remaining survivor with such an association." The State Historic Preservation Officer concurred with this assessment, finding that the Green Mountain lookout "does not meet National Register Criteria." In May 1998, the Forest Service circulated internally a draft analysis of various courses of action with respect to Green Mountain lookout, including (1) dissembling the lookout and removing it from the wilderness, either by helicopter or by packstock; (2) relocating it to an area outside of wilderness; (3) burning it down; (4) leaving it alone to naturally deteriorate; and (5) stabilizing and repairing it, either with or without motorized equipment. This draft analysis was never made final or public and the Forest Service did not solicit public comment. In September 1998, the Forest Service issued a decision memo detailing its decision to repair the lookout, using a rock drill and a helicopter to transport supplies. The memo anticipated that about 25,000 pounds of material would be transported, resulting in about 8 helicopter trips. In the memo, the Service stated that the special environmental impact documentation required by NEPA was not required with respect to this decision since it fell within a categorical exclusion, namely "repair and maintenance of recreation sites and facilities." The memo did not analyze other alternatives to dealing with the lookout, though it did assert, generally, that "[a] variety of alternatives were considered for this project, including no action and reconstruct [ion] ... without the use of motorized equipment." Pursuant to the Decision Memo, a contractor and volunteers invested hundreds of hours into repairing and stabilizing the lookout. Nevertheless, despite these efforts, by June 2002, the Forest Service discovered that the lookout's foundation had failed on account of heavy snowfall during the prior winter. Forest Service personnel noted the need to take further action urgently or risk losing the lookout entirely during the next winter. After internal discussion, the Forest Service decided to: disassemble the lookout piece by piece; remove it from Green Mountain by helicopter; repair and restore the pieces at a ranger station, salvaging original materials where possible; "repair" the foundation on the peak; and then fly the pieces back in for reassembly on top of the reconstructed foundation in an internal planning document, entitled "Green Mountain Lookout Dismantle, Restoration and Reconstruction Plan 2002-2005." This document did not compare the proposed plan to any alternatives or otherwise analyze the necessity of the chosen course of action. The Forest Service did not solicit public comment on its plan. In or around August 2002, a few months after it had discovered the damage to the lookout's foundation, the Forest Service disassembled the lookout and removed the pieces by helicopter from the wilderness. In 2009, seven years after the lookout was removed from its original location, the Forest Service hired the National Park Service to construct a new foundation for a lookout on Green Mountain. After the foundation was laid, most of the disassembled pieces of the lookout - which had been restored or replaced off-site-were flown to the mountain and reassembled on site. According to Plaintiff, this work involved at least 67 helicopter turns in wilderness, an assertion which the Forest Service does not contest. Around this time, one of the members of Plaintiff Wilderness Watch became aware of the Forest Service's actions with respect to Green Mountain lookout. In 2010, Plaintiff brought this suit, seeking a declaratory judgment (that the Forest Service's actions violated the Wilderness Act and the National Environmental Policy Act) and an injunction requiring removal of the lookout. Holding: "The Court rejects the notion that the Forest Service had any affirmative obligation to preserve the Green Mountain lookout pursuant to § 110 of the NHPA that must be balanced against its obligations under the Wilderness Act. In fact, there is no conflict between the Wilderness Act and the NHPA here since neither action nor inaction toward the Green Mountain lookout would have placed the Forest Service in violation of the NHPA, for the very reason that the NHPA itself that does not compel any particular outcome." "The Court finds that in light of the ambiguity arising out of the Wilderness Act's reference to various uses, deference is due to the Forest Service's interpretation that historical use is a valid goal of the Act. Nevertheless, the Court's analysis does not end here. The Court must go on to determine if the actions of the Forest Service with respect to the lookout were "necessary" to meet the "minimum requirements" for administration of the area for the purpose of historical use." "The Court has come to the conclusion that the Forest Service's 2002 decision failed to take proper account of the mandates of the Wilderness Act. It is clear that the Forest Service went to extraordinary lengths to protect a man-made structure from the natural erosive effects of time and weather. The Forest Service went too far. Clearly, there are less extreme measures that could have been adopted, such as relocation of the lookout outside the wilderness area, which would have had less impact on the "wilderness character" of the area but still furthered the goal of historical preservation." "The extensive use of helicopters to carry out the Forest Service's reconstruction plan is also concerning. As other courts have observed, machinery as intrusive as a helicopter is rarely "necessary to meet minimum requirements for the administration of the area" since "[h]elicopters carry `man and his works' and so are antithetical to a wilderness experience." "The Forest Service made frequent use of helicopters not to promote wilderness values but rather to further what the Service understands to be a separate purpose of the Wilderness Act, i.e., historic preservation." "The Court finds that the Service abused its discretion by not conducting an EIS or EA - or, at a minimum, by not readdressing the issue of whether a category exclusion was applicable - before embarking on its dismantle, restoration, and reconstruction plan." "The Court finds that removal of the present lookout structure is the appropriate remedy for the Forest Service's violations of the Wilderness Act and NEPA."
High Sierra Hikers v. U. S. Forest Service (E.D.Calif. 2006) Topic: Historic structures and the minimum necessary (Emigrant dams) Background: Several water control structures were built starting in the 1920's to develop fishery projects that had started 30 years earlier when natural, fishless lakes were planted with fish by local cattlemen. In addition, the dams were to 'provide downstream benefits to fish habitat, food production, and power production." In the 1950's a major dam outside the Emigrant diminished the downstream importance of the Emigrant dams. The area became part of the Emigrant Wilderness in 1975 (which was enlarged by a second act in 1984); since the late 1980's the dams were operated primarily by the California Department of Fish and Game. Unmaintained, the dams had not been used to manipulate the streamflow since the 1990's. The Forest Service decided to maintain 11 of the 18 dams: 7 were deemed eligible for the National Register; 4 improved reproduction of the fishery, supporting the reduction or elimination of fish stocking; all 11 'are a highly valued cultural connection in the local history" and their refurbishing would be consisted with the MOU between the USFS and CDFG. High Sierra Hikers disagreed, calling the dams 'non-conforming" structures not mentioned in either Emigrant Wilderness act. Various interveners on behalf of the Forest Service argued that the State's water rights compelled the Forest Service to repair and maintain the dams. Holding: Plaintiffs' motion for summary judgment on their claim for relief pursuant to 5 U.S.C., section 706(2) to declare Forest Service's decision As reflected in the Report of Decision to repair, maintain and operate the several dam structures in the Emigrant Wilderness unlawful and to set aside same is hereby GRANTED. Defendant's motion for summary judgment on the same issue is correspondingly DENIED. Plaintiffs' motion for summary judgment on their claim for relief pursuant to 5 U.S.C.., section 706(1) to declare unlawful Forest Service's decision to not consider or adopt actions that would cause the several dam structures in the Emigrant Wilderness to be physically removed, and to compel Forest Service consider and/or adopt same is hereby DENIED. Defendant's motion for summary judgment, on the same issue is correspondingly GRANTED. Plaintiffs' request for injunctive relief is hereby DENIED. That portion of Forest Service's Report of Decision that authorizes the repair, maintenance and operation of the several dam structures, in the Emigrant Wilderness is hereby SET ASIDE pursuant to 5 U.S.C., section 706(2). Forest Service may take further action consistent with this memorandum opinion and order. Key Language: Structures - 'While the outcome of the case in Wilderness Society [v. USFWS] turned ultimately on the commercial nature of the fish-stocking operation, the present case turns on man-made structures whose presence in a wilderness area are no less at odds with the textual provisions of the Wilderness Act....Both 'commercial enterprises' and 'structures' are prohibited by the same sentence within the Wilderness Act and the only distinction between the two is that 'structures' may be maintained to the extent they may be 'necessary to meet minimum requirements for the administration of the area.' The court does not find...that a structure offends the Wilderness Act any less than a commercial enterprise where that exception clause is not applicable. The Wilderness Act presents no textual basis for the proposition that the prohibition against 'structures or installations', of which the dams in this case are an example, is somehow less compelling than the prohibition against 'commercial activity." 'If one considers the overall legislative intent of the Wilderness Act to preserve 'area[s] where the earth and its community of life are untrammeled by man,' one must conclude that the sort of commercial activity...in Wilderness Society is no more offensive, and perhaps less so, than maintaining dams.] In Wilderness Society,...at issue was 'an activity with a benign aim to enhance the catch of fishermen, with little visible detriment to wilderness.'...[Dams are] permanent structures that alter the hydrological scheme of the area and alter the natural distribution of species and habitats." 'Distinctions such as unobtrusive and harmonious with the natural environment involve subjective judgments....The Wilderness Act's prohibition against structures is categorical so far as this court can determine, allowing only those exceptions that are specifically set forth in the Act or in Congress's designation of a particular wilderness area." 'The court must conclude the plain and unambiguous text of the Wilderness Act speaks directly to the activity at issue in this case -- repairing, maintaining and operating dam 'structures' -- and prohibits that activity." Recreational Use - 'While fishing is an activity that is common among visitors to wilderness areas, neither fishing nor any other particular activity is endorsed by the Wilderness Act, nor is the enhancement of any particular recreational potential a necessary duty of wilderness area management. Rather, the...wilderness that the Act seeks to preserve is not defined by reference to any particular recreational opportunity or potential utility, but rather by reference to the land's status or condition as being 'Federal land retaining its primeval character and influence, without permanent improvements or human habitation.'" 'There is no logical necessity in maintaining, repairing, or operating the dams in order to administer the area for purposes of the Wilderness Act. The area manifested its wilderness characteristics before the dams were in place and would lose nothing in the way of wilderness values were the dams not present. What would be lost is some enhancement of a particular use of the area (fishing), but that use, while perhaps popular, is not an integral part of the wilderness nature of that area." Do different agencies manage wilderness differently? - 'Although [the FS] contend the NPS administers parks for purposes 'different than the Forest Service multiple use objectives,' they offer no authority for the implied contention that application of the Wilderness Act should yield different results under similar factual circumstances where the objectives of the administrating agency are different. The court can find nothing in the Wilderness Act that supports that contention and is aware of no case authority to that effect." Deference Limit - 'The legal foundations of Forest Service's actions are due no deference because the proposed actions are contrary to the express purposes of the Wilderness Act." Purpose - 'The Wilderness Act is as close to an outcome-oriented piece of environmental legislation as exists. Unlike NEPA, or the Clean Air or Clean Water Acts, the Wilderness Act emphasizes outcome (wilderness preservation) over procedure." '[T]he overall language of subdivision (d) of [U.S.C.] section 1133, along with case authority and Forest Service Policy, imply that 'when there is a conflict between maintaining the primitive character of the area and between any other use [...] the general policy of maintaining the primitive character of the area must be supreme.'"
Wilderness Watch v. Mainella, 375 F.3d 1085, 1087 (11th Cir. 2004) Topic: Cultural (Historic) use and the minimum necessary (Cumberland Island) Background: Plaintiffs sued NPS alleging violation of the Wilderness Act for allowing motor vehicle use within a wilderness area on Cumberland, Island, GA. Specifically, NPS was allowing vans to transport tourists along an existing dirt road in the wilderness to access historic buildings adjacent to the wilderness area. NPS was using the road to access, maintain, and administer the historic sites, but had made a decision to transport tourists in the NPS vehicles being used for site maintenance and administration. Holding:The court viewed reference to historical use in the Act as referring to natural rather than manmade features given the act's prohibition on structures in wilderness areas. The need to preserve historical structures may not be inferred from the Act and any obligation under NHPA to preserve such structures must be done in a manner consistent with maintenance of the area's wilderness character. Regarding use of a van to transport tourists and to maintain the structures, the court held that such use of a van cannot be construed as necessary to meet the minimum requirements for administration of the area. Key Language: Cultural - "We cannot agree with the Park Service that the preservation of historical structures furthers the goals of the Wilderness Act. The Park Service's responsibilities for the historic preservation...derive, not from the Wilderness Act, but rather from the National Historic Preservation Act (NHPA). Given the consistent evocation of 'untrammeled' and 'natural' areas, the previous pairing of 'historical' with 'ecological' and 'geological' features, and the explicit prohibition on structures, the only reasonable reading of 'historical use' in the Wilderness Act refers to natural, rather than man-made features. However, it has not been argued in court that the structures may be part of the "historical value" that is part of wilderness character as defined in § 2(c)(4) of the Act. It is far from clear in the language of the law that such an association is not a reasonable reading of the Act. Legislative history indicates it is. When the Act was first introduced, it specifically enumerated the areas that should be designated first. While this list was later dropped, giving the agencies greater leeway in recommendation, it is important to note the list included Mesa Verde National Park. The portion to be designated would exclude only what was "required for roads, motor trails, buildings, and necessary accommodations for visitors" (S. 4103, 84th Congress). Clearly, the Mesa Verde Wilderness was to include cultural structures, many of which had been -- and were being -- preserved, long before the National Historic Preservation Act was written. It is not reasonable to think Congress intended to designate this area as Wilderness but stop the preservation of these irreplaceable treasures. See also, Crowley et al. 2012. Integrating cultural resources and wilderness character. Park Science 28(3): 29-33,38. Of course, Congress may separately provide for the preservation of an existing historical structure within a wilderness area, as it has done through the NHPA." "Any obligation the agency has under the NHPA to preserve these historical structures [in wilderness] must be carried out so as to preserve the 'wilderness character' of the area." Motorized vehicles - the statute limits motor vehicle use and transport to what is "necessary to meet minimum requirements for the administration of the area." "The compromise on public transportation reached in this case cannot be squared with the language of the Wilderness Act." "In no ordinary sense of the word can transporting 15 tourists in a van through a wilderness area be considered as necessary to administer the area for the purposes of the Act."
Olympic Park Assoc. v. Mainella, 2005 WL 1871114, at 8 (W.D. Wash. Aug. 1, 2005) (W.D. Wash. 2005) Topic: Historical use and the minimum necessary (Olympic NP structures) Background: In 1988, a portion of Olympic National Park - the Olympic Wilderness area - was formally designated under The Wilderness Act. The 1974 Environmental Impact Statement created in the process of designation allowed for the retention of several pre-existing shelters, including the Home Sweet Home and Low Divide shelters, for health and safety purposes. In addition, the EIS determined that historic properties should not be affected by the wilderness designation, and the two shelters were ultimately placed on the National Historic Register in 2001. However, the two shelters had been damaged by snow loads in 1998, and the Park rebuilt the shelters. After NEPA review involving the creation of the 2004 Environmental Assessment and notice and comment period, the Park determined that transporting the re-built shelters to their historic sites via helicopter would pose no significant environmental impact (FONSI). Plaintiffs then brought suit against the NPS, claiming that it had violated NEPA and THE WILDERNESS ACT with its plan to transport the shelters into the park. Holding: The District Court for the Western District of Washington held that the NPS abused its discretion by planning to airlift rebuilt shelters into the Olympic Wilderness area. The court rejected NPS's reliance on the National Historic Preservation Act (NHPA), 16 U.S.C. § 461, et seq., for two reasons. First, the NHPA does not require rehabilitation or reconstruction of historic structures; therefore, the NPS was under no obligation to rebuild the shelters. Second, the NPS was bound in its administration of the Olympic Wilderness area by The Wilderness Act Section 2(b) (16 U.S.C. § 1133(b)), which provides that an agency must administer a wilderness area to preserve its wilderness character even if it is also administering it for other purposes. The court rejected the NPS's argument that the rebuilt shelters belonged in the wilderness area for public health and safety reasons because the court read the emergency exception to apply to matters of "urgent necessity" rather than "conveniences." ("The emergency exception [to the Prohibited Uses in] the Wilderness Act...most logically refers to matters of urgent necessity rather than to conveniences for use in an emergency.") The court also recognized that the shelters had previously been an important part of the uses of Olympic National Park, but it cautioned that the shelters were no longer appropriate since the uses had changed once 95% of the park became designated as a wilderness area.
The Difference Between Historical Value and Historical Use A PowerPoint presentation with complete notes, presented at the Lewis & Clark Law Conference, April 2014. Regulation & Interagency Policy
These regulations and policies apply to all agencies. The citations listed are far from comprehensive, but are those of particular importance to the intersection of cultural resources and wilderness.
36 CFR 60 and 36 CFR 63, pertaining to the National Register of Historic Places
36 CFR 65, pertaining to National Historic Landmarks
36 CFR 79, pertaining to the curation of collections
36 CFR 800, pertaining to the consultation requirements when actions by Federal agencies may affect a historic property
43 CFR 3 and 43 CFR 7, pertaining mainly to the permitting process as a way to protect cultural resources
43 CFR 10, pertaining to the implementation of NAGPRA Standards for Treatment of Historic Properties
The Standards are "neither technical nor prescriptive, but are intended to promote responsible preservation practices that help protect our Nation's irreplaceable cultural resources." Many of the details of these standards would not apply to historic properties inside wilderness, and they cannot, in and of themselves, be used to decide how to treat a particular property. "But once a treatment is selected, the Standards provide philosophical consistency to the work." The Standards are found in 36 CFR 68 and detailed in the guidelines for preserving, rehabilitating, restoring, and reconstructing historic buildings. Executive Orders
These are of particularly important for managing cultural resources in wilderness.
E.O. 13007, pertaining to the access to and use of sacred sites
E.O. 13287, pertaining to the use of historic properties for administrative functions National Register Bulletins
NRB 38, pertaining to evaluating and documenting traditional cultural properties Professional Qualification Standards
Though on a National Park Service website, these standards are used by all four agencies. For Regulatory reference, see 43 CFR 7(a)(1).
These are not the only BLM resources for cultural resource management, just the ones most pertinent to managing cultural resources in wilderness. Be sure to check with your State Office for additional guidance.
43 CFR 6302.18, wilderness regulations concerning cultural resources
Manual 6340 1.6.C.5, wilderness policies concerning cultural resources
Manual 8100, Foundations for Managing Cultural Resources
Manual 8110, Identifying and Evaluating Cultural Resources
Manual 8120, Tribal Consultation
Manual 8130, Planning for Uses of Cultural Resources
Manual 8140, Protecting Cultural Resources
Manual 8150, Permitting Uses of Cultural Resources
Manual 8170, Interpreting Cultural Resources for the Public FWS
610 FW 2.29, wilderness regulations and policies concerning cultural resources
614 FW 1 General Policy, Responsibilities, and Definitions
614 FW 2 Survey and Identification
614 FW 3 Evaluation and Designation
614 FW 4 Planning, Protection, and Management
614 FW 5 Authorization to Use FS
Be sure to check with your Regional Office for additional guidance.
Sections of wilderness manual concerning cultural resources
FMS 2320.2 Objectives
FMS 2320.3 Policy
FMS 2323.8 Management of Cultural and Historic Resources
FSM 2360 NPS
NPS- 28 Cultural Resource Management Guideline Examples (Plans, Analyses, Templates, and Agreements, etc.)
Frank Church-River of No Return Wilderness Historic Preservation Plan Training Materials
Wilderness in the Courts Webinar Series, Session 2: Cultural Resources This webinar was held on February 20, 2013 at 12:30 PM Eastern time. The 90-minute session featured Peter Appel, the Alex W. Smith Professor of Law at the University of Georgia Law School, and introduced participants to the topic through case study analysis of four court cases dealing with cultural resources.
Questions and Answers Resources & References
Advisory Council on Historic Preservation website
BLM Heritage Resource Programs website
FWS Cultural Resources Program website
FS Heritage Resource Program website
NPS Cultural Resources Website
Heritage Resource Site (Fire Management Toolbox)