Policies are guidelines written by agencies to govern the behavior of that agency. For example, Forest Service policies only apply to Forest Service employees acting in their official capacity. Because policy does not stem directly from legislative mandate, it is not legally binding in all cases. The Director of the National Park Service, for instance, can issue a waiver to a policy in a specific circumstance.
Example: The Wilderness Act of 1964 allows for insect control. Forest Service policy elaborates that this will only occur when insects threaten adjacent lands; otherwise, insect populations will fill their natural role in wilderness. In this way, agencies utilize policy to provide consistent decision-making.
Source: Policies are published by the individual agencies, and are usually found in manuals, Director's orders, or policy books. See also, Wilderness Policies and Regulations.
Code of Federal Regulations
Regulations are legally enforceable rules written by administrative agencies as a result of legislative mandate. They apply to the actions of both federal agencies and the general public - in the case of wilderness, regulations apply to anyone using a wilderness, for whatever purpose.
Example: The Wilderness Act of 1964 permits some commercial activity in wilderness for recreation purposes. A Bureau of Land Management regulation interprets this to include granting permits to outfitters for temporary structures. In this manner, the regulation assigns specific meaning to the general language of the Wilderness Act.
Source: Regulations are found in the Code of Federal Regulations. Citations are as follows: 43 CFR II 8560 means Code of Federal Regulations, Title 43, Chapter II, Part 8560. See also, Wilderness Policies and Regulations.
These are summaries of court cases addressing wilderness stewardship issues. Court cases provide a history of how judges have interpreted legislation, clarifying the intent of the law. The list of wilderness case law is not extensive, but we have included what is available.
Example: Motorboat use was present on Crooked Lake, now part of the Sylvania Wilderness, before wilderness designation. The Wilderness Act of 1964 allows the presence of motorboats to continue as an established use, but remains silent on the regulation of that presence. When the Forest Service tried to limit what types of motorboats would be allowed, the residents of the area sued. The residents claimed the Forest Service plan constituted a taking (a government seizure of property or the right to use it that requires just compensation to the property owner) because several of the residents relied on motorboat use in their businesses. The court ruled in favor of the residents and declared the plan unlawful. The taking, however, only applied to Crooked Lake and not other areas of the wilderness because of the motorboat-dependent businesses there. Knowing how the court decided this case may help a manager of another wilderness with a similar situation.
Sources: Official records of court cases are found in the Federal Supplement (abbreviated F. Supp. or F. Supp. 2d for Federal Supplement, second series) and the Federal Reporter (F. 1 or F. 2d for the second series). The summaries on this Web site were supplied by the master's thesis Wilderness Case Law for Nonlawyers by Sarah Heim-Jonson (University of Montana, 1999).
This is the record of Congressional discussion that occurred before a law was passed. It includes hearings, committee reports, and floor debates, which help put the intent behind the law in context. However, not all types of legislative history carry equal weight. Courts of law give different types of legislative history documents different importance. (See the following papers by Shannon Meyer for more information on this: "The role of legislative history in agency decision making: a case study of wilderness airstrip management in the United States," 1999, International Journal of Wilderness 5(2):9-12, and "Legislative interpretation as a guiding tool for wilderness management," 2000, pages 343-347 in Wilderness Science in a Time of Change Conference, USDA Forest Service Proceedings RMRS-P-15-Vol-5, Ogden, UT.) For example, a committee report is more important than a statement from an opponent of the legislation, based on the assumption that the committee has minutely examined the legislation, while the opponent may exaggerate the actual power of the legislation. The significance of legislative history documents, in descending order of importance, is as follows:
||a. Statements of sponsors to the whole chamber
b. Explanations of the committee chair
||a. Committee hearings
b. Statements in general debate
||a. Statements of members of the opposition
b. Amendments or language rejected in committee or on the floor
Managers can incorporate this hierarchy into their own evaluation of the relevance of legislative history documents. Legally, legislative history is used to clarify the intent behind legislation only when the meaning of the legislation itself does not follow the "plain meaning rule." Essentially, if the language of a statute is unambiguous, then interpretation must be based solely on the wording of the statute, without reference to outside sources of information. In situations where the pertinent legislation is conflicted or ambiguous, legislative history may serve as a reference point for understanding the intent of Congress. Understanding the intent behind ambiguous wording "gives wilderness managers a basis for consistent and appropriate decision-making regarding nonconforming wilderness uses" (Meyer, Wilderness Airstrips).
Much of the legislative history contained in the Wilderness Stewardship Reference System concerns the reasoning behind allowing nonconforming uses in wilderness. What were the specific considerations that led to Congress writing legislation the way it did? What problems were they trying to avoid or solve?
Example: The Wilderness Act of 1964 describes wilderness as "untrammeled by man" and "with the imprint of man's works substantially unnoticeable." The Forest Service interpreted this to mean that areas with any sign of human activities, such as roads or previously logged areas, would not be considered for wilderness designation (the "purity doctrine"). The Endangered American Wilderness Act of 1978 states that some areas were not "adequately protected or fully studied," but makes no direct reference to the concept of "purity." A committee report in the legislative history, however, specifically refutes the "purity" concept in the context of potential wilderness: "Generally, the committee believes that the so-called 'purity' concept of wilderness long adhered to by the Forest Service, is unnecessarily restrictive and should be abandoned" (U.S. Congress. Senate. Committee on Energy and Natural Resources. "Endangered American Wilderness Act of 1977." S. Rept. 95-490 on H.R. 3454. 95th Cong. 1st sess. October 11, 1977).
Sources: Legislative history can be found in:
- The Congressional Record. It is organized by Congressional session and branch, and contains floor discussions regarding the actions of Congress. Each session of the printed version of the Congressional Record includes a Daily Digest, which is a brief synopsis of the daily business conducted in each branch, and an index volume, containing a roster of names for the Senate and House, an index of names and subjects, and a history of bills and resolutions for both branches. Each Congressional period covers two years, and consists of two sessions. Each session begins on the third of January and runs until both branches adjourn, usually in the fall (Encyclopedia Americana, Danbury, CT: Grolier, 2000). For example, the 100th Congress met during the years 1987 and 1988.
- Senate and House Committee Reports. The reports are issued by individual committees, usually regarding recommendations about legislation they have studied; citations are written as H. Rept. 88-109 for House Report number 109, 88th Congress.
- Senate and House Documents. These include such miscellaneous texts as presidential messages, agency reports and Congressional special study reports; they are cited as Sen. Doc. 100-10 for document 10 of the 100th Congress.
This refers to legislative language in various wilderness laws that deviates from the definition of wilderness in the Wilderness Act of 1964 (including parts of that law itself). Often, these provisions involve unique exceptions or conditions for a particular wilderness. The Wilderness Stewardship Reference System also contains relevant passages from the Wilderness Act of 1964 concerning the definition of wilderness and prohibited activities.
For a brief overview of special provisions in the Wilderness Act of 1964 and subsequent acts, see Wilderness Legislation: Congressional Research Service: Wilderness Laws: Prohibited and Permitted Uses. This website contains the 1998 Congressional Research Service Report 98-848 ENR, Wilderness Laws: Prohibited and Permitted Uses by Ross W. Gorte.
Example: The Alaska National Interest Lands Conservation Act (ANILCA), in the interests of restoring fish populations, allows rehabilitation and restocking of fisheries in Alaska wildernesses. This may include building fish ladders, hatcheries, and other permanent improvements, activities that normally do not fall under the "minimum requirements for administration" phrase in section 4(c) of the Wilderness Act of 1964. ANILCA very clearly states that permission for these types of intensive fishery management practices only applies to Alaska wildernesses. Awareness of the special provisions pertaining to a wilderness helps clarify why the area was designated and what human uses are acceptable.
Sources: Legislation is filed by Public Law (for example, P.L. 100-184 became law during the100th Congress, and was the 184th piece of legislation passed) or US Code (for example, 16 USC 1132 means US Code title 16, section 1132). The US Code includes all legislation that becomes public law, although a single piece of legislation may be broken down into various sections scattered throughout the US Code. A reference series titled United States Code Annotated includes a Tables volume that translates public law numbers into US Code numbers.
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