Should Wilderness Be Made Safe? 10.29.10

Posting on website for the Eugene, Oregon-based Forest Service Employees for Environmental Ethics, 10.29.10

Next week the Forest Service plans to explode some trees. With dynamite. In a wilderness. To protect hikers.

The 150 large, dead or dying hemlocks lie along the Joyce Kilmer trail that snakes through the 17,394-acre Joyce Kilmer-Slickrock Wilderness in North Carolina. The trees are victims of the hemlock woolly adelgid, a non-native insect. The Forest Service proposes to blast the tops out of the trees, lessening their chance of falling on someone, while preserving the appearance that the trees were snapped by wind and not cut by saw.

The Wilderness Act requires the Forest Service to preserve wilderness character. The Act also bans certain uses (e.g., roads, commercial enterprises, motor vehicles, motorized equipment or motorboats, landing of aircraft, mechanical transport, and structures) “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area).”

Removing trees does not fall within any of the prohibitions for which the “emergencies involving health and safety” apply. But, even if the safety allowance was relevant, i.e., tree detonation is one of the prohibited uses that has an emergency safety allowance, the case law would not support the agency’s view that this is the kind of emergency Congress had in mind. In a safety case involving structures (and thus relevant to the emergency safety allowance), the court quoted from the National Park Service’s environmental assessment:

The Wilderness Act and current NPS Management Policies encourage wilderness users to prepare for, and encounter the wilderness on its own terms, striving to provide “primitive and unconfined” recreation opportunities, complete with the risks that arise from wildlife, weather conditions, etc. NPS wilderness management policies do not support the provision of facilities in wilderness specifically to eliminate these risks.

Olympic Park Assocs. v. Mainella, 2005 U.S. Dist. LEXIS 44230 (W.D. Wash. July 29, 2005).

Tree falling is precisely the kind of danger that inheres in primitive recreation; it is a risk that arises from an act of Nature.

What makes the Forest Service decision to blow up these trees particularly ironic is that the agency took precisely the opposite position in litigation brought by hikers injured in this same wilderness when a “huge rotten tree” fell on them. In that case, the Forest Service argued that “the wilderness objectives of ‘solitude, physical and mental challenge, spirit of adventure and self-reliance,’ mean ‘that any trees — including rotten ones — should not be tampered with whatsoever.’” Wright v. United States, 868 F. Supp. 930, 931 (E.D. Tenn. 1994). The plaintiffs’ tort case for damages was dismissed on other grounds.

Why has the Forest Service reversed course 180 degrees to conclude that dead trees must now be dynamited to make the wilderness safe for hikers? Is this part of the Obama administration’s “Nanny State?”