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Commercial Services Toolbox
The Commercial Services Toolbox is a 'work in progress' and represents only the information available. It provides information on agency policy and guidelines, examples of processes, plans, assessments and other related documents. In addition to the resources provided here, you may also be able to obtain advice and recommendations through discussion on
. Date of last update: 9/13/16.
Commercial enterprises are generally prohibited in wilderness by Section 4(c) of the Wilderness Act of 1964. (Exceptions include valid existing rights such as pre-existing mineral leases.) A commercial enterprise is any use or activity undertaken for the purpose of the sale of products or services for the generation of funds or revenue, or for the promotion of a product, individual, or business, regardless of whether the use or activity is intended to produce a profit. It also includes any use or activity where an entry or participation fee is charged. A commercial service, however, is a type of commercial activity that is permitted under Section 4(d)(6) of the Wilderness Act if the managing agency determines it to be necessary and appropriate for realizing the recreational or other wilderness purposes of the area. Allowable commercial services may include those provided by packers, outfitters, and guides, and may also include commercial filming. Case Law
HIGH SIERRA HIKERS ASSOCIATION v. UNITED STATES DEPARTMENT OF INTERIOR Dist. Court, ND California, Jan. 24, 2012 Topic: Extent of commercial services necessary Background: This case challenges administrative actions and land management practices which allegedly impact the level of stock use in the Sequoia and Kings Canyon National Parks ("SEKI"). Plaintiff High Sierra Hikers Association ("HSHA") asserts that defendants violated both the Wilderness Act and the National Environmental Policy Act ("NEPA") by issuing a General Management Plan ("GMP") which permits the use of horses and mules in wilderness areas without conducting the proper environmental assessment of the impact of such stock use. The parties have filed cross motions for summary judgment. Holding: "The courts have emphasized that the prohibition against commercial activity is â€˜one of the strictest prohibitions of the Act.'"Thus, if an agency determines that a commercial use should trump the Act's general policy of wilderness preservation, it has the burden of showing the court that, in balancing competing interests, it prepared the "requisite findings" of necessity. "[T]he agency's primary responsibility is to protect the wilderness, not cede to commercial needs." "[T]he fact that the NPS has committed to forego authorizing new types of commercial activities until after the [Wilderness Stewardship Plan is written] is inadequate. The NPS has issued a GMP which, programmatic or not, at the very least, provides for the continuation of stock use at its current levels. Pursuant to the Wilderness Act, a necessity finding is required. Because the NPS has yet to complete this finding, the GMP violates the Act."
HIGH SIERRA HIKERS ASSOCIATION v. UNITED STATES DEPARTMENT OF INTERIOR Dist. Court, ND California, May 29, 2012 Topic:
Extent of commercial services necessary
Following an order granting in part and denying in part the parties' cross-motions for summary judgment, High Sierra Hikers Association ("HSHA") filed a motion for partial vacatur and injunctive relief. This motion addresses the proper remedy for defendants' Wilderness Act violation and requests the imposition of interim measures while the National Park Service ("NPS") completes the requisite necessity finding and finalizes the stock-specific Wilderness Stewardship Plan ("WSP"). NPS responded with its own briefing on remedy, agreeing that both a partial vacatur and interim order were appropriate, but disputing plaintiff's proposed terms. For the following reasons, the motion for partial vacatur and interim relief is granted in part and denied in part as explained below.
"Plaintiff's motion for partial vacatur and injunctive relief is granted under the following terms:
The Court hereby vacates all portions of the GMP and ROD which provide programmatic guidance regarding the type or level of commercial stock services necessary in the SEKI wilderness area or direction as to the need, appropriateness, or size of developments, structures, or facilities used completely or partially for commercial stock services. This includes all references to the future development or installation of stock facilities. NPS shall complete the WSP and the specialized Wilderness Act finding no later than January 31, 2015. The WSP may consider both front-country and back-country matters as required under NEPA and other statutory guidelines. In conducting the analysis, the agency must consider imposing limits on group size, number of stock, trail suitability for various stock use types and the necessity of additional stock use facilities. Pending completion of the WSP, the following interim measures shall apply: A total number of commercial stock use permits may be authorized for SUNs equivalent to 80% of 3,200 SUNs. NPS shall use its best efforts to continue to monitor and reduce use of service days. For the entirety of the interim period before NPS completes the WSP and the Wilderness Act findings, commercial stock operations cannot occur except under the terms and conditions of this order, and under any NPS directives which are consistent with this order. Nothing in this order prevents NPS from permitting new commercial outfits, such as those utilizing burro or llama packers from competing with existing permit holders to provide commercial stock services. If the Sequoia and Kings Canyon National Parks Back-country Access Act is signed into law, the parties are to submit separate briefs, each not to exceed ten pages in length, within twenty days of the statute's enactment directed to the effect, if any, of such law on the terms and conditions set forth in this order. The motion by BHC to file an amicus curiae brief is granted. All other interim relief requested by HSHA is denied."
McGrail & Rowley v. Babbitt 986 F. Supp. 1386 (S.D. Fla. 1997) Topic:
Extent of commercial services necessary
McGrail & Rowley owned a tour boat company. They applied for a permit to take tours in the Key West National Wildlife Refuge. The Fish and Wildlife Service (FWS) denied the permit. McGrail & Rowley appealed. McGrail & Rowley argued that FWS allowed another tour boat company to operate in the Refuge, so it was inconsistent that they not be allowed to operate also. FWS argued that the other tour boat company ran "passive and educational" tours that respected the wildlife, while McGrail & Rowley were more recreational and involved picnics and kayaking and Frisbees on the beach.
FWS argued that McGrail & Rowley's tours were more likely to damage sensitive areas.
Holding: On whether the agency's actions were arbitrary and capricious: The court held that the agency's decision that MRI's uses were incompatible with the purposes of the refuge was not arbitrary and capricious. The refuge and wilderness within it were established to protect wildlife, birds, and their habitat. MRI's business ventures, including playing frisbee in the shallow water on the beach and kayaking around the shore, were found to have potentially negative impacts on the sensitive ecosystem of the keys. In reviewing the agency's decision, the court found that it acted appropriately. On whether the FWS had the authority to regulate state lands and waters: The court held that the FWS had the authority to regulate commercial use of federal lands including submerged lands and adjacent state waters. The authority was vested in the FWS through the Property Clause of the Constitution. The Property Clause states "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States..." 986 F. Supp. at 1394 quoting The Constitution, Article IV, § 3, cl. 2. In United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979), the court expanded the federal government's authority to include, "non-federal land 'when reasonably necessary to protect adjacent federal property or navigable waters.'" 986 F. Supp. at 1394. Therefore, the court held that the FWS was acting within its authority in regulating access to state-owned waters off Boca Grande Key.
High Sierra Hikers v. Blackwell, 390 F. 3d 630 - Court of Appeals (9th Cir. 2004) Topic:
Extent of commercial services necessary
The John Muir and Ansel Adams Wilderness Areas are located within the Inyo and Sierra National Forests. Each National Forest contains some portion of each wilderness area. The Forest Service regulates the usage of the wilderness areas by the issuance of permits. Commercial outfitters and guides, including those with livestock, who operate commercial services, must obtain a "special-use permit." The amount of wilderness use the commercial operators are allowed is dictated by "service day allocations." A "service day" equals "one person being assisted by an outfitter or guide and using the wilderness for one day." In 1997, the Forest Service issued a draft EIS proposing the replacement of existing Management Plans with new management plans for the Ansel Adams and John Muir Wilderness Areas. In February 1999, the Forest Service announced that it would issue a revised draft EIS, which it did in August 2000. On April 10, 2000, High Sierra brought suit in federal district court seeking declaratory and injunctive relief against the Forest Service for management practices in the John Muir and Ansel Adams Wilderness Areas. Specifically, High Sierra alleged that the Forest Service's authorization of special-use permits to commercial packstock operators violated NEPA, the Wilderness Act, the National Forest Management Act, 16 U.S.C. §§ 1600-1687, and the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706. On December 19, 2000, the Forest Service filed a motion to dismiss or alternatively for summary judgment on the grounds that: (1) High Sierra's challenges to the Forest Service's management program for the two wilderness areas amount to an impermissible programmatic challenge barred by Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); and (2) there was no final agency action from which High Sierra could obtain relief under the APA. On December 20, 2000, High Sierra filed a motion for summary judgment. High Sierra sought declaratory relief that the Forest Service had: (1) violated the National Forest Management Act by failing to implement or meet Forest and Wilderness Standards; (2) violated the Wilderness Act by failing to determine that commercial services are necessary and proper, and by allowing services that degrade wilderness values; and (3) violated NEPA by failing to prepare environmental analyses before issuing special-use permits and other instruments that allow commercial services to be performed in the wilderness areas. On June 5, 2001, the district court found that the final EIS and the Record of Decision, accompanying the 2001 Wilderness Management Plan, had analyzed the need for stock services and concluded that such services were necessary. The district court also found that the Forest Service was vested with broad discretion under the Wilderness Act to determine how much commercial pack use to allow and how to deal with the impacts. However, the district court granted High Sierra's motion for summary judgment on the NEPA claim. The district court found that the Forest Service was violating NEPA by issuing multi-year special-use permits and granting one-year renewals of special-use permits to commercial packers without first analyzing the impact by completing an EIS, and issued an order, granting injunctive relief and ordering the Forest Service to complete a NEPA analysis of cumulative impacts by December 31, 2005, and a site-specific analysis for each permittee by December 31, 2006. In the interim, the district court ordered a reduction in the allocation of special-use permits and limited access to areas of environmental concern. Both sides appeal.
Holding: "We hold that the district court correctly found that the Forest Service was in violation of NEPA by failing to assess the individual and cumulative impacts of the issuance of special-use permits to commercial packstock operators in the John Muir and Ansel Adams Wilderness Areas." "The district court was incorrect, however, in granting a summary judgment holding that the requirements of the Wilderness Act had not been violated. We hold that the Wilderness Act imposes substantive requirements on an administering agency and that there are triable issues of fact regarding whether the Forest Service damaged the wilderness areas." "Until such time as the Forest Service complies with the court's order concerning the NEPA procedural requirements, and thereafter reaches a decision concerning the commercial activity permissible in the Wilderness Areas, the Court's interim injunction largely addresses the requirements of the Wilderness Act. The ultimate decision of the Forest Service will remain subject to the substantive requirements of the Wilderness Act." "We affirm the decision of the district court in granting the injunction, but reverse the summary judgment with respect to the Forest Service's compliance with the Wilderness Act and remand to the district court for a determination of appropriate relief under the Wilderness Act for remediation of any degradation that has already occurred." Key language: Commercial Services - "The issuance of multi-year special-use permits to the commercial packers constitutes 'major federal action' and requires the agency to prepare a detailed EIS." "It is clear that the [Wilderness Act] requires, among other things, that the Forest Service make a finding of 'necessity' before authorizing commercial services in wilderness areas....Under the broad terms of the Act, a finding that packstock was needed to provide access to those people who would otherwise not be able to gain access for themselves or their gear, can support a finding of necessity. However, under the terms of the Wilderness Act, a finding of necessity is a necessary, but not sufficient, ground for permitting commercial activity in a wilderness area....The Forest Service may authorize commercial services only 'to the extent necessary' (emphasis added in original). Thus, the Forest Service must show that the number of permits granted was no more than was necessary to achieve the goals of the Act." Preserving wilderness character - "If complying with the Wilderness Act on one factor will impede progress toward goals on another factor, the administering agency must determine the most important value and make its decision to protect that value. That is what the Forest Service failed to do in this case. At best...it failed to balance the impact that that level of commercial activity was having on the wilderness character of the land. At worst, the Forest Service elevated recreational activity over the long-term preservation of the wilderness character of the land." Purpose of wilderness - "The Wilderness Act twice states its overarching purpose. In [U.S.C.] Section 1131(a) the Act states, 'and [wilderness areas] shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character." (emphasis added in original). Although the Act stresses the importance of wilderness areas as places for the public to enjoy, it simultaneously restricts their use in any way that would impair their future use as wilderness. (emphasis in original). This responsibility is reiterated in Section 1133(b), in which the administering agency is charged with preserving the wilderness character of the wilderness area."
High Sierra Hikers v. Weingardt (N.D.Calif. 2007) Topic:
Extent of commercial services necessary
First, see HSHA v. Blackwell 2004. In May 2007, Plaintiffs filed a motion for summary judgment alleging that the Forest Service, through the 2005 EIS and subsequent ROD, violated the Wilderness Act and NEPA, and seeking wide-ranging injunctive relief. The Forest Service opposed that motion and filed a cross-motion for summary judgment. The cross-motions were fully briefed and the Court held a hearing on the merits on September 5, 2007.
Plaintiffs' Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment are granted in part and denied in part. (Note that the holdings were many and detailed. We have included a list of the items here with the understanding that they are more fully explained in the official opinion.)
The survey methodology underlying the Needs Assessment was unreliable. Additional flaws in the Needs Assessment. The extent of the finding of need in the Needs Assessment was arbitrary and capricious. The Destination Management strategy does not adequately address the preservation of wilderness character and improperly allows harmful spikes in use. The Forest Service violated NEPA by failing to take a hard look at the harm to theYosemite Toad caused by commercial pack stock operations. The Forest Service failed to take a hard look at water quality issues in the FEIS and allowed further degradation through increased grazing in already impacted areas in violation of the Wilderness Act. Plaintiffs failed to show that they exhausted their administrative remedies with respect to grazing by domestic livestock. The Forest Service's change to the campfire policy was arbitrary and capricious in violation of the Wilderness Act and NEPA. The Forest Service's decision to implement a 15 person and 25 stock group sizes does not violate NEPA's requirement to consider reasonable alternatives. Forest Service did not act arbitrarily in concluding that the issue of motorized access on the Muir Trail is outside the scope of the FEIS. Key language: Preserving wilderness character - "Plaintiffs argue that the Act requires the Forest Service to preserve wilderness character, not simply maintain existing degraded conditions. Defendants respond that 'maintain' and 'preserve' are synonyms and that there is no general restoration requirement. While Defendants may be correct that there is no automatic restoration duty in the abstract, the Wilderness Act does impose a general requirement on the Forest Service to manage wilderness areas so as to preserve the land's wilderness character. More importantly, [because of] the Forest Service's demonstrated failure in the past to fulfill this mandate,...the Ninth Circuit recognized a need for remediation under the Wilderness Act." Extent necessary - "[T]he Forest Service's decision to count all persons with equipment too heavy or bulky to carry on foot as 'in need of' commercial pack services was arbitrary and capricious....The Forest Service's argument that [the] items [listed] are not specifically forbidden in the wilderness area confuses the absence of a specific prohibition with the requirement of necessity; the fact that something is otherwise 'legal' does not make it necessary....This conclusion improperly equates 'preference' with 'need.'"
Wilderness Watch v. Robertson, 1998 U.S. Dist. LEXIS 14457 (D.D.C. 1998). Topic: Commercial services and minimum necessary Background: Plaintiff Wilderness Watch brought suit against the Forest Service, alleging violations of THE WILDERNESS ACT in its management of the Frank Church Wilderness. The trial court found in favor of the plaintiffs, and the FS was required to comply with a remedial order. The order required the FS to remove any caches of goods from the wilderness area, assign camping spaces in compliance with FS regulations, and remove or disapprove permanent structures that are not "necessary to meet minimum requirements for the administration of the area." Wilderness Watch v. Robertson, 1998 U.S. Dist. LEXIS 14457, *3 (D.D.C. 1998). Wilderness Watch brought suit against FS again for failure to comply with the remedial order. Holding: The D.C. District Court held that the defendants FS had adequately complied with the remedial order. First, the FS had attempted to remove all caches and had taken disciplinary action against outfitters who failed to clean up caches at their sites. Second, the FS has some discretion in locating campsites, and the location of some sites within 200 feet of trails, streams, or lakes was not a violation of the order. Third, the small permanent structures that the FS allowed did not violate either the order or the Wilderness Act. The permanent structures did not violate the order because they were small, unobtrusive structures (such as base logs, hitching posts, and stored lumber) that the FS deemed were necessary to meet the minimum requirements for area administration. Wilderness Watch argued that even if the permanent structures didn't violate the order, they violated the Wilderness Act, which forbids permanent structures. However, the court found the FS's reading of the Wilderness Act more persuasive - that the FS "may approve some permanent structures, but only as necessary for minimal management of the wilderness." Wilderness Watch v. Robertson, at *19. Plaintiffs argued that the permanent structures were not necessary because they were not geared towards conservation values of the Wilderness Act. However, the court held that the FS's approval of the permanent structures was reasonable because "management of wilderness areas is done with both the purpose of conservation and of ensuring that the public may use and enjoy the areas." Key lesson: The Wilderness Act does not expressly prohibit permanent structures when they are necessary to meet the "minimum requirements" for administering the area for the purposes of the Act. Caches of goods kept by commercial outfitters on wilderness land are prohibited. Policy and Guidelines
The most common approach to determining the need for Commercial Services in wilderness has been to prepare a Needs Assessment. Agency policy does not require a needs assessment nor provide guidance as to what should be considered in determining a need for commercial services beyond what is stated in the Wilderness Act. A Needs Assessment is typically a programmatic assessment that does not require a NEPA analysis. Identification of need is not based solely on public need for a service but may consider how a commercial service operation can contribute to preserving wilderness character, meeting wilderness management objectives, and support the public purposes of wilderness TWA, Section 4(b). The public's need for services can be determined by examining current and past use and trends, results of a visitor preference survey, state game hunting license data, etc. Consider the following elements when determining need: Visitor need for services Specialized skills needed Specialized equipment needed Accessibility or age issues Visitor safety Wilderness dependent activity Other wilderness specific factors Management objectives Information and education Resource protection Other wilderness specific factors Public purposes of wilderness recreational scenic scientific educational conservation historical use
Capacity Determination, Extent Necessary, Allocation of Use Determining Need, Allocating Use and NEPA
Note - The following are general guidelines only and should be verified against agency regulations and current policy. The two levels of planning allow for both programmatic and site-specific analysis but have differing requirements for NEPA compliance. Planning Processes: Programmatic Planning: Desired Conditions Prescriptions, standards, guidelines Capacity framework (guidelines) Needs Assessments Project or Site-specific Planning Specific capacity limits Outfitter-Guide use allocation Outfitter-Guide Special Use Authorization NEPA Analysis Requirements: Programmatic - NOT a NEPA Decision: Needs Assessments Need for Services Role of Providers Programmatic - NEPA Decision Allocation of use by activity Project (Site Specific) - NEPA Decision
FWS Policy FS
National Forest Planning
Commercial Filming and Photography Memo
NPS Policy Examples (Plans, Analyses, Templates, and Agreements, etc.)
Bighorn Needs Analysis and Allocation
Bob Marshall Wilderness Determination of Need
Bridger Teton NF Outline
Carson Service Days Analysis Table
Deschutes NF-Sisters RD Needs Analysis
Eagle Cap Wilderness Needs Assessment
Humboldt-Toiyabe Needs Assessment Model
Inyo NF Needs Assessment
Inyo NF ROD
Mt. Hood Needs Determination
San Juan NF Needs Analysis
San Juan NF Compartment Form
Sawtooth Wilderness Needs Assessment
Shoshone NF Needs Analysis
Sierra NF Needs Assessment
Winema-Klamath NF Needs Analysis Analyses, Scoping, Prospectus, and Screens
Inyo NF Cumulative Effects Analysis
Bob Marshall Wilderness Cumulative Effects Analysis
Bob Marshall Wilderness Cumulative Effects Summary
Bob Marshall Scoping Letter
Bob Marshall Decision Memo
Gallatin Prospectus Process
Humboldt-Toiyabe Proposal Screening Checklist
Okefenokee National Wildlife Refuge Commercial Services Evaluation Criteria
Okefenokee National Wildlife Refuge Guiding Information
Okefenokee National Wildlife Refuge Permit Application Procedures
Okefenokee National Wildlife Refuge Special Use Permits Operating Plans
Selway-Bitterroot Operating Plan Example
Gallatin NF 5-Year Operating Plan
Gallatin NF Annual Operating Plan
Payette NF Annual Operating Plan
FS R6 Operating Plan Text
Operating Plan Sample Letter
Operating Plan Sample Language
Okefenokee National Wildlife Refuge Commercial Services Management Plan Monitoring Tools
Performance Evaluation Form
Field Inspection Form
Inspection Form Training Materials
FS Northern Region (R1) 2005 Workshop Agenda
FS Intermountain Region (R4) Agenda
Gila Wilderness Agenda
Gila Wilderness Poster
Commercial Services in Wilderness Outline
Needs Assessment Training Outline
Wilderness in the Courts Webinar Series Session 1: Commercial Services This webinar was held on November 15, 2012 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 existing case law that decision-makers can use to make more informed decisions regarding the extent to which commercial services are necessary in wilderness.
Questions and Answers Resources
Stankey, George H.; Cole, David N.; Lucas, Robert C.; Petersen, Margaret E.; Frissell, Sidney S. 1985.
The limits of acceptable change (LAC) system for wilderness planning. Gen. Tech. Rep. INT-176. Ogden, UT: USDA For. Serv., Intermountain Forest and Range Exper. Stn. 37pp. Leopold Publication Number 125.
Gila NF Handbook Supplement
Wilderness Stewardship Reference System (WSRS)