| Previous :: Next Topic |
| Historic preservation within Wilderness is and should be: |
| Legal |
|
83% |
[ 59 ] |
| Illegal |
|
16% |
[ 12 ] |
|
| Total Votes : 71 |
|
| Author |
Message |
trestle
Member
Joined: 17 Aug 2008
Posts: 2093 | TRs | Pics
Location: the Oly Pen |
|
trestle
Member
|
 Mon Jun 20, 2016 10:30 pm |
|
|
We all have our opinions but it's the legal opinion that counts the most and I guess we will know the definition when the case is eventually ruled upon. Regardless of which way the verdict falls, it will likely set some amount of precedence for similar cases in other National Parks. But I'm not a lawyer, I only play one on Mondays. 
"Life favors the prepared." - Edna Mode
"Life favors the prepared." - Edna Mode
|
| Back to top |
  
|
|
Ski
><((((°>
Joined: 28 May 2005
Posts: 12835 | TRs | Pics
Location: tacoma |
|
Ski
><((((°>
|
Tue Jun 21, 2016 12:13 am |
|
|
First, before proceeding, a little clarification:
trammel n. Also tramel, tramell 1. A shackle used to teach a horse to amble. 2. Usually plural Something that restricts activity or free movement: a hindrance. 3. A vertically set fishing net of three layers, consisting of a finely meshed net between two nets of coarse mesh. Also called "trammel net". 4a. An instrument for describing ellipses. b. the pivoted beam of a beam compass. 5. An instrument for gauging and adjusting parts of a machine. Also called "tram." 6. An arrangement of links and a hook in a fireplace for raising and lowering a kettle. -tr v. trammeled or -melled, -meling or -melling, -mels.
Also tramel, tramell. 1. To confine or hinder. 2. To entrap, sometimes used with up. [Middle English tramale, trammel net, from Old French Tramail, from Late Latin tremaculum.]
(American Heritage Dictionary of the English Language © 1969)
==
The word "untrammeled" appears once in the Wilderness Act of 1964.
==
RE: WHEN OLD BECOMES NEW: RECONCILING THE COMMANDS OF THE WILDERNESS ACT AND THE NATIONAL HISTORIC PRESERVATION ACT
(* links to both the Wilderness Act of 1964 and the National Historic Preservation Act of 1966 are cited on the previous page of this thread.)
I'd just like to make a couple comments in response to this paper:
| Nikki C. Carsley, Washington Law Review pp 544 wrote: | | One court has even stated, “When there is a conflict between maintaining the primitive character of the [wilderness] area and between any other use . . . the general policy of maintaining the primitive character of the area must be supreme.” 161
161. Minn. Pub. Interest Research Grp. v. Butz, 401 F. Supp. 1276, 1331 (D. Minn. 1975), rev’d in part on other grounds, 541 F.2d 1292 (8th Cir. 1976). |
This statement is in direct conflict with the provisions of the Wilderness Act.
| Nikki C. Carsley, Washington Law Review pp 546 wrote: | | Though the court did acknowledge that the Wilderness Act provides for historical use, 175 it concluded that “[g]iven 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 manmade, features.” 176
Although the Wilderness Watch court does hold that the Wilderness Act precludes motorized tourist access to historic sites, the decision carefully leaves room for historic preservation within wilderness areas under the NHPA. 177 For example, after determining that “historical use” as provided for in the Wilderness Act refers to natural features, the court acknowledged, “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.” 178 The court then clarified that “[t]his appeal turns not on the preservation of historical structures but on the decision to provide motorized public access to them across designated wilderness areas.” 179 Moreover, while holding that “the Wilderness Act . . . unambiguously prohibit[s] the Park Service from offering motorized transportation to park visitors through the wilderness area,” 180 the court made no mention of the Park Service’s motorized transport across the wilderness area for the purpose of maintaining the historic sites. |
(* emphasis added)
What is "consistent" about the use of the word "untrammeled", which appears exactly once in the text of the Wilderness Act of 1964?
Is this a typographical error, or did the presiding judge in this case not understand the definitions of either "consistent" or "untrammeled"?
Where is the "pairing" of "historical", "geological", and "ecological"?
I don't profess to have a PhD in the English language, but it certainly reads to me as a list in the text of the Wilderness Act of 1964.
Do judges also have the authority to arbitrarily redefine rules of grammar and syntax in the English language?
If the only "reasonable reading" of "historical use" includes only "natural" as opposed to "man made" features, shall we interpret this to mean that the petroglyphs at Ozette, having been man-made, have no historical use?
The highlighted text in the second paragraph is part of the final ruling that was used as precedent in Olympic Park Associates vs. Mainella, but was conveniently ignored by the court. (see immediately below)
| Nikki C. Carsley, Washington Law Review pp 548 wrote: | | The Olympic Park court concluded that the designation of the Olympic Wilderness changed the analysis regarding permissible historic preservation activities—and these activities no longer included the reconstruction of historic snow shelters. 188 While the court quoted some of the language from Wilderness Watch, it did not include the exceptions the Eleventh Circuit cited in which Congress provided for the protection of historic structures under the NHPA. 189 Moreover, the Olympic Park court did not cite the Eleventh Circuit’s clarification that its holding precluded only motorized tourist transportation across wilderness areas and not the preservation of historic structures per se. 190 |
(* emphasis added)
Regarding the highlighted text immediately above, part of the final ruling used as precedent in Olympic Park Associates vs. Mainella: the court's complete disregard for those provisions of the ruling should be in and of themselves reason enough to overturn the ruling in Olympic Park Associates vs. Mainella.
Either the judge presiding in the case had already determined the outcome prior to hearing arguments, or NPS hired incompetent legal counsel.
| Nikki C. Carsley, Washington Law Review pp 549 wrote: | | Finally, the court applied the canon of statutory construction in which a specific provision governs a general provision, concluding without analysis that “the Wilderness Act[,] under which the Olympic Wilderness was designated, is the specific provision, while the National Historic Preservation Act . . . is the general.” 201
201. See Olympic Park, 2005 WL 1871114, at *8. The court does not discuss why the Wilderness Act is more specific than the shelters’ eligibility for placement on the National Register of Historic Places under the NHPA. Id. |
(* emphasis added)
Without analysis? Based on what stretch of the imagination? The Wilderness Act of 1964, with its ambiguous language, is more specific than the National Historic Preservation Act? On what planet is that the case?
Again, the ruling in Olympic Park Associates vs. Mainella is flawed in its very premise.
| Nikki C. Carsley, Washington Law Review pp 550 wrote: | | For support, in addition to referencing Olympic Park, the High Sierra Hikers court cited the same passage of Wilderness Watch that the Olympic Park court highlighted, which defined the Wilderness Act’s provision for historical use to refer to natural, not human-made, features.208
208. See id. at 1135 (quoting Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1092 (11th Cir. 2004)); supra text accompanying note 187. |
In other words: the petroglyphs at Ozette are not, by this court's definition, of "historical use".
Or the petroglyph "She Who Watches" which looks out over the Columbia Gorge. Or the thousands of petroglyphs and pictographs scattered across the American West. Or any number of other archaeological sites left behind by aboriginal native Americans. And certainly not the homesteads of Grant Humes or Peter Roose, both of which pre-date not only the creation of Olympic National Park, but also the National Park Service.
Most Egyptologists argue that both the Pyramid of Khufu at Giza and the Sphinx are man-made objects. Based on this courts interpretation, neither of these sites are of "historical use".
==
The Washington Law Review paper not only makes it abundantly clear that a revision of the Wilderness Act of 1964 is appropriate and necessary in order to avoid the sort of conflicts we have seen on historic features within National Parks, it also highlights the complete and total disregard for the National Historic Preservation Act by the judges who have ruled on cases where the two acts have come into conflict, particularly Olympic Park Associates vs. Mainella, in which the presiding judge was just simply dead wrong.
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
|
| Back to top |
|
|
Ski
><((((°>
Joined: 28 May 2005
Posts: 12835 | TRs | Pics
Location: tacoma |
|
Ski
><((((°>
|
Tue Jun 21, 2016 1:05 am |
|
|
| cefire wrote: | | I'm still having a difficult time understanding why we need to preserve these "historic" buildings. |
part of the answer to your question can be found here - see Section 1
see also the founding documents for Olympic National Park and the Mission Statement of the National Park Service:
"The National Park Service mission is to preserve unimpaired natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations."
(* emphasis added)
one does not exclude the other.
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
|
| Back to top |
|
|
coldrain108
Thundering Herd
Joined: 05 Aug 2010
Posts: 1858 | TRs | Pics
Location: somewhere over the rainbow |
| cefire wrote: | | but I'm still having a difficult time understanding why we need to preserve these "historic" buildings. |
especially since the goats already do such a good job of reminding us of the knuckleheaded human history of the park.
Since I have no expectations of forgiveness, I don't do it in the first place. That loop hole needs to be closed to everyone.
Since I have no expectations of forgiveness, I don't do it in the first place. That loop hole needs to be closed to everyone.
|
| Back to top |
|
|
Humptulips
Member
Joined: 08 Nov 2012
Posts: 234 | TRs | Pics
|
All this makes me wonder why anyone would support designating any NP a Wilderness area.
Seems like a real headache for administration for little if any gain in protection.
|
| Back to top |
|
|
cefire
Member
Joined: 03 Feb 2010
Posts: 523 | TRs | Pics
|
|
cefire
Member
|
Wed Jun 22, 2016 5:00 pm |
|
|
| Ski wrote: | | cefire wrote: | | I'm still having a difficult time understanding why we need to preserve these "historic" buildings. |
part of the answer to your question can be found here - see Section 1
see also the founding documents for Olympic National Park and the Mission Statement of the National Park Service:
"The National Park Service mission is to preserve unimpaired natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations."
(* emphasis added)
one does not exclude the other. |
Obviously. The definition of "cultural resources" is what is in question here. I submit that reconstructed lean-to's and cabins do not fit this definition, but this is entirely subjective. Many (most) others disagree.
I really don't think it is a big deal either way, go ahead and keep the old and/or new cabins. I've never seen anybody use them, but hey, if you enjoy lookin at'em have at it  I should also state that I do not support WW's suit in this case, there are soooo many more important things worth spending resources on.
|
| Back to top |
|
|
Ski
><((((°>
Joined: 28 May 2005
Posts: 12835 | TRs | Pics
Location: tacoma |
|
Ski
><((((°>
|
Wed Jun 22, 2016 7:31 pm |
|
|
Well.... the issue isn't really "reconstructed lean-tos and cabins", cefire.
There are structures and man-made features that exist in other National Park Service administered facilities that are also within "designated wilderness" areas of our National Parks.
If you read the Washington Law Review paper I cited just above, you would see that one of the lawsuits involved some wooden dams that were built to enhance fisheries habitat.
I can't pull other stuff off the top of my head, but with the number of National Parks in the system I have no doubt there are other "man made" features somewhere other than Olympic National Park.
Structures, signs, bridges are, by definition, "cultural resources".
Rod, correct me on this one - I may be mistaken: wasn't it Gay Hunter who was putting together a comprehensive inventory of all the "cultural resources" up at ONP? Pretty sure it was Gay. I sent her a list a few years ago. see here
One of the things she was trying to document was graffiti/carvings in the Park as well - initials carved or cut with a chain saw on the end cuts of logs that had been cut out by trail crews - used to be one just below Bob Creek that had a trail crew member's initials carved in it with a chainsaw but it's gone now.
All that stuff on that list is, by definition, "cultural resource". Yes: even the rusted automobile frame laying out in the middle of Andrews Field.
No more or less "cultural resource" than the shell midden they dug up at the mouth of Chambers Creek (near Steilacoom) a couple decades ago.
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
|
| Back to top |
|
|
RodF
Member
Joined: 01 Sep 2007
Posts: 2593 | TRs | Pics
Location: Sequim WA |
|
RodF
Member
|
Thu Jun 23, 2016 6:42 am |
|
|
| cefire wrote: | | Obviously. The definition of "cultural resources" is what is in question here. I submit that reconstructed lean-to's and cabins do not fit this definition, but this is entirely subjective. Many (most) others disagree. |
Subjective? See the Secretary of the Interior's Standards for Treatment of Historic Properties including preservation, rehabilitation, restoration and reconstruction.
For information on the historic shelters, cabins, lookouts, ranger stations in Olympic Wilderness, see:
Olympic NP Historic Resource Study (NPS, 1983)
Olympic NP Backcountry Historic Structures Report (NPS, 2008) and
Olympic NP's 33 individual National Register of Historic Places listings.
These list the most significant historic structures, their place in context of Park history, unique architectural characteristics and condition.
Please realize that the Wilderness Act section 4(a)(3) states it "shall in no manner lower the standards evolved for the use and preservation of such park" in accordance with the National Park Service Organic Act and the National Historic Preservation Act.
Olympic NP General Management Plan Environmental Impact Statement (2008), through a 6 year process with 3 rounds of public meetings and 4 public comment periods, explained the laws and adopted an affirmative cultural resource preservation policy.
What is subjective are individuals' concepts of wilderness, not the values protected in designated Wilderness. One person might not appreciate history, another might not appreciate the trees blocking their views or the elk blocking the trail or the gritty taste of glacial meltwater. It is left up to each of us to appreciate all the "ecological, geological, or other features of scientific, educational, scenic, or historical value" thankfully protected by The Wilderness Act. Wilderness is a classroom, in which we may learn, appreciate and grow. And leave, intact, to the next generation.
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
|
| Back to top |
|
|
cascadetraverser
Member
Joined: 16 Sep 2007
Posts: 1407 | TRs | Pics
|
Wow, what a thread!! The details presented are impressive...I am no Lawyer (just a Family Doctor...) but it seems pretty clear how this lawsuit will turn out.
As a utilitarian, and avid backcountry user, and in keeping with my years of traveling in the Parks and wildernesses, I am clearly on the side of preserving these cool structures. I have on many occasion, planned trips in fall in sure rain (with a shelter in mind) and have enjoyed my trips all the more using the shelter for respite, as an enjoyable dry place. I should add mice are occasionally around (just like about anywhere lots of tents and food reside) but the more common denizen is the pack rat, a beautiful animal (a bit noisy at times and the reason I always tent it outside) which I am happy to have seen a couple of times..
Travelling to the Olympic National park in my mind is venturing into a different place with different sights and charms as compared to lets say the North Cascade NP or some of the various wilderness areas surrounding it. ONP feels and always has to me, more historical and imprinted by man. Think the long history, the Press and O`Neil Expeditions, Theodore Roosevelt`s imprint, etc. Granted, NCNP and surrounding areas have the imprint of miners and fisherman, but to me it just doesn`t have the same historical appeal of ONP. I guess the lines blur some in this point of view as Green Mountain and Miner`s ridge Lookout stand out as cool structures I have passed by in the Cascades. Either way, when I travel the Olympics the whole experienced is more nuanced and different than other places and to me that makes it wonderful in a whole different way. I love the shelters and the historical reminders which make my ONP trips even better. Grand wild places like the NCs are great in their own way too. Its nice to have both, methinks. I think the purists who oppose the shelters and lookouts everywhere honestly have a bit of tunnel vision in regards to all this....
|
| Back to top |
|
|
RodF
Member
Joined: 01 Sep 2007
Posts: 2593 | TRs | Pics
Location: Sequim WA |
|
RodF
Member
|
Tue Jun 28, 2016 9:26 am |
|
|
| Ski wrote: | | The Washington Law Review paper not only makes it abundantly clear that a revision of the Wilderness Act of 1964 is appropriate and necessary in order to avoid the sort of conflicts we have seen on historic features within National Parks, it also highlights the complete and total disregard for the National Historic Preservation Act by the judges who have ruled on cases where the two acts have come into conflict, particularly Olympic Park Associates vs. Mainella, in which the presiding judge was just simply dead wrong. |
It should be noted:
1) Judge Coughenour's 2012 decision, noting "historic value is a wilderness value", in Wilderness Watch v. Iwamoto, and the Ninth Circuit in 2010 Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service, have already overturned Judge Burgess' erroneous ruling in Olympic Park Associates v. Mainella. Wilderness does not "trump" historic preservation.
2) In 2014, Congress amended section 4 of the Wilderness Act. The current text is available at Congress' Office of the Law Revision Counsel and enter Title 16 section 1133.
This amendment is in Public Law 113–287, "National Park Service and Related Programs", section 5(d)(21).
The Wilderness Act section 4(a)(3) now reads: Nothing in this chapter shall modify the statutory authority under which units of the national park system are created. Further, the designation of any area of any park, monument, or other unit of the national park system as a wilderness area pursuant to this chapter shall in no manner lower the standards evolved for the use and preservation of such park, monument, or other unit of the national park system in accordance with section 100101(b)(1), chapter 1003, and sections 100751(a), 100752, 100753, and 102101 of title 54 [NPS Organic Act], the statutory authority under which the area was created, or any other Act of Congress (National Historic Preservation Act) which might pertain to or affect such area, including, but not limited to, section 796(2) of this title [Federal Power Act]; and chapters 3201 and 3203 of title 54 [the Historic Sites Act and the Antiquities Act].
In plain text, the Wilderness Act "shall in no manner lower the standards evolved" "for the use and enjoyment of the people" or "to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people".
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
|
| Back to top |
|
|
Ski
><((((°>
Joined: 28 May 2005
Posts: 12835 | TRs | Pics
Location: tacoma |
|
Ski
><((((°>
|
Tue Jun 28, 2016 10:10 am |
|
|
^ what's the date on the Carsley paper? (Washington Law Review article cited above)
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
|
| Back to top |
|
|
RodF
Member
Joined: 01 Sep 2007
Posts: 2593 | TRs | Pics
Location: Sequim WA |
|
RodF
Member
|
Thu Oct 20, 2016 10:52 pm |
|
|
Oral arguments will be presented before Judge Leighton by attorneys for plaintiff Wilderness Watch, defendant National Park Service and co-defendants National Trust for Historic Preservation, Washington Trust for Historic Preservation and Friends of Olympic National Park.
Friday, December 2 at 1:30 pm in Federal District Court, Courtroom B. United States Courthouse, 1717 Pacific Avenue, Tacoma. For those who wish to attend, here's a map
This case will decide the fate of five historic trail shelters and cabins in Olympic Wilderness, affects Olympic National Park's general management and wilderness stewardship plans, and set a precedent affecting the preservation of other historic structures within Wilderness areas, including Enchanted Valley Chalet and many others.
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
|
| Back to top |
|
|
Ski
><((((°>
Joined: 28 May 2005
Posts: 12835 | TRs | Pics
Location: tacoma |
|
Ski
><((((°>
|
Sat Oct 22, 2016 11:02 pm |
|
|
thanks! 
are you going to be there?
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
"I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each."
|
| Back to top |
|
|
Seventy2002
Member
Joined: 19 Jul 2008
Posts: 512 | TRs | Pics
|
|
| Back to top |
|
|
RodF
Member
Joined: 01 Sep 2007
Posts: 2593 | TRs | Pics
Location: Sequim WA |
|
RodF
Member
|
Thu Dec 15, 2016 3:03 pm |
|
|
The court agrees with the majority of NWhikers polled here: historic preservation is legal within Wilderness. In its ruling today, "the Court defers to the Park Service's conclusion that historic preservation furthers a goal of the Wilderness Act" and "the Court owes deference to the Park Service's interpretation of historic structures as a benefit offered by an enduring wilderness".
The court considered and dismissed all of Wilderness Watch's claims, and granted summary judgement in favor of the National Park Service as requested by intervenor-defendants the National Trust for Historic Preservation, Washington Trust for Historic Preservation and Friends of Olympic National Park.
| Judge Leighton wrote: | | CONCLUSION
The record demonstrates that the Park Service did not arbitrarily and capriciously repair Botten Cabin, Canyon Creek Shelter, Wilder Shelter, Bear Camp Shelter, and Elk Lake Shelter in Olympic National Park’s wilderness. It reasonably determined the minimum amount of work necessary to preserve the structure’s historic integrity, consistent with the Wilderness Act. It also properly exempted this routine, replacement work from environmental review by first considering and dismissing the possibility that it would produce significant environmental impacts. Therefore, Wilderness Watch’s Motion for Summary Judgment [Dkt. #21] is DENIED, and the Park Service’s Motion for Summary Judgment [Dkt. #42] is GRANTED. The case is DISMISSED. |
Full text of the court ruling is available at this link.
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
"of all the paths you take in life, make sure a few of them are dirt" - John Muir
"the wild is not the opposite of cultivated. It is the opposite of the captivated” - Vandana Shiva
|
| Back to top |
|
|
|
|
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot vote in polls in this forum
|
Disclosure: As an Amazon Associate NWHikers.net earns from qualifying purchases when you use our link(s). |
