Preserving the seven remaining wilderness study areas under Forest Service management will help Montanans find a place for the public lands experience they want. In December, U.S. Sen. Steve Daines introduced Senate Bill 2206 to withdraw protections from those 450,000 acres of public land. When I served at the U.S. Department of Justice and defended wilderness study areas, I learned they serve a useful purpose. They help the Forest Service separate incompatible uses.
“Wilderness areas” differ from “wilderness study areas.” In the Wilderness Act of 1964, Congress created the concept of wilderness areas and directed the Forest Service to preserve those areas in their “natural conditions.” Wilderness areas under the Wilderness Act differ from wilderness study areas under the Study Act.
Congress intended wilderness areas to remain as areas where “the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Generally, the Wilderness Act prohibits permanent roads and motor vehicles in wilderness areas. Montana hosts 16 wilderness areas.
In contrast to wilderness areas, the 1977 Montana Wilderness Study Act directed the Forest Service to manage wilderness study areas differently. With that act, Congress created nine wilderness study areas. Congress directed the Forest Service to analyze those areas and to recommend to Congress whether to protect them as wilderness areas.
Until Congress decided one way or the other, the Study Act directed the Forest Service “to maintain their presently existing wilderness character and potential” for Congress to designate them as wilderness areas. In the past 40 years, Congress removed two wilderness study areas from protection. That left the seven areas where Daines wants to remove protections.
Those seven areas encourage varied public lands uses. While at the U.S. DOJ, I defended two wilderness study areas: the Middle Fork Judith and Hyalite-Porcupine-Buffalo Horn. In the Middle Fork Judith case, I argued on behalf of the United States that the Study Act did not require freezing the wilderness character in these ever-changing forests. That would be impossible.
I argued that, instead, the Study Act requires the Forest Service to make sure the wilderness study areas maintain their wilderness character. U.S. District Judge Sam Haddon disagreed and wanted the Forest Service to freeze their wilderness character. The Forest Service appealed. The Court of Appeals for the Ninth Circuit overruled Haddon and adopted my interpretation. Now, the Study Act does not stop the Forest Service from managing the seven study areas as long as they stay as wild or wilder than they were in 1977.
In the Middle Fork Judith case, the Forest Service had used the Study Act to separate conflicting users in the Lewis and Clark National Forest Travel Plan. Off-road vehicle users often do not want slow mountain bikers around. Mountain bikers often do not want noisy off-road vehicle users around. The Forest Service prioritized non-motorized vehicles in the Middle Fork Judith wilderness study area, and the Ninth Circuit upheld that decision.
The Middle Fork Judith Wilderness Study Area travel plan demonstrates how wilderness study areas can aid the Forest Service in separating uses and avoiding conflicts. Removing Study Act protections could increase conflicts on national forests and make management more difficult for federal agencies. Protecting the wilderness study areas will help ensure all public lands users have access to areas where they can have the outdoors experience they seek — instead of allowing every use everywhere. Opportunities for varied experiences make Montana great and entice tourists to our $7 billion public lands economy.
Daines, the Montana Legislature, and others think the time for study is over. Perhaps that is true. But that does not mean Congress has to remove the Study Act protections. Congress can just designate those areas for the Forest Service to preserve their wilderness character. Doing that will help ensure we all have areas for the particular outdoor experience we enjoy.
Jared Pettinato, of Whitefish, has worked as a trial attorney in the U.S. Department of Justice environment and natural resources division. He is currently running for the Democratic nomination for Montana’s U.S. House seat.