Wheelchair accessibility in wilderness areas: the nexus between the ADA and the Wilderness Act.

The Americans with Disabilities Act of 1990 (ADA) extended the civil rights of access and integration to those with mobility impairments, including wheelchair users. The Wilderness Act of 1964 promised to preserve the wilderness for the American people's "use and enjoyment." This Comment questions whether extending "use and enjoyment" to wheelchair users is required by the ADA or other federal law, and if so, whether compliance would conflict with the preservation doctrine of the Wilderness Act. The author concludes that the two laws are not wholly incompatible and that wilderness areas could be made more accessible without compromising their preservation.

I. INTRODUCTION

The American's with Disabilities Act of 1990 (ADA),(1) along with its predecessor, the. Rehabilitation Act of 1973,(2) extended civil rights and remedies to persons with physical and mental disabilities. These rights include the right to participate in services, programs, and activities without discrimination based on disability.(3) Section 504 of the Rehabilitation Act, for example, guarantees Americans with disabilities the right to the same recreational activities enjoyed by able-bodied citizens on public lands, including access to lands designated as wilderness areas under the Wilderness Act of 1964.(4) However, the practicalities of providing access for those with mobility disabilities may not be wholly compatible with the goal of maintaining the "wilderness character" of lands governed by the Wilderness Act.(5) Thus, the ADA specifically exempts wilderness area managers from making modifications necessary to provide wheelchair accessibility,(6) the proposed regulations that address accessibility in outdoor recreation areas would codify the exemption by making accessibility guidelines inapplicable to "primitive" areas.(7) Nevertheless, the spirit if not the letter of the ADA should encourage wilderness managers to enhance the accessibility of the areas; the position taken in this Comment is that they can do so without jeopardizing the intent of the Wilderness Act.

"Access" can have at least two meanings. Wheelchair users, for example, are free to enter wilderness areas, so wilderness areas are, in a sense, "accessible." This type of "theoretical access"--the mere absence of prohibition--may be meaningless if the only trail available to the wheelchair user is too narrow to navigate, or if fallen trees make trail passage impossible. To correct these conditions, wilderness managers would have to act affirmatively and effect "practical access." The difference between these two types of access will be the focal point of much of the discussion in this Comment.(8) However, the discussion of what forms accessibility might take within wilderness areas assumes that practical access is the type at issue, as well as the type envisioned by the ADA. This Comment focuses solely on access for those with mobility impairments, and wheelchair users in particular, because accommodations for those users are most likely to conflict with the land use requirements of the Wilderness Act. Additionally, although this Comment considers the conflict that has arisen in Minnesota's Boundary Waters Canoe Area between proponents and opponents of motorboat use, its focus remains primarily on land rather than water travel.

Part II of this Comment provides an overview of current accessibility levels in wilderness areas, present use of the areas by visitors with disabilities, and the modifications that might be necessary to provide practical access. Part III addresses the question of whether, and in what forms, access is required under the Rehabilitation Act and the ADA. Part IV examines whether, and in what forms, access is possible under the Wilderness Act. This Comment concludes with an examination of the new set of accessibility guidelines for outdoor recreation areas, promulgated by the Advisory Committee to the Architectural and Transportation Barriers Compliance Board.(9) Although these guidelines offer a sound new approach to "information access," they fall short when it comes to accessibility in wilderness areas.

II. ACCESS TO WILDERNESS AREAS BY PEOPLE WITH DISABILITIES: AN OVERVIEW

A. Current Levels of Accessibility

Four federal agencies presently manage wilderness areas: the National Park Service (NPS), which manages more wilderness acreage than any other agency; the U.S. Forest Service (Forest Service), which manages more individual wilderness areas, or "units," than any other agency; the Bureau of Land Management (BLM); and the U.S. Fish and Wildlife Service FWS).(10) Under current agency management, wheelchairs are not excluded from wilderness areas, so theoretical access to wilderness areas is available to wheelchair users. Practical access, however, is not available in most designated wildernesses. For example, most NPS-managed areas are inaccessible because the trails are too steep or rugged for wheelchair use.(11) Additionally, otherwise accessible trails in national parks and wilderness areas may simply be too narrow for wheelchair passage.(12) In national parks, trails may be paved yet still inaccessible because of steps or stairs,(13) cross slope,(14) or other barriers.(15) Under Forest Service wilderness management policy, trails within wilderness areas are to be no more than two feet wide, yet wheelchair users require a minimum of thirty-two inches clearance.(16) Of Course, accessibility would not be an issue if there were no people with disabilities visiting Wilderness areas. This is not the case, however, according to the National Council on Disability's report on use levels.(17)

B. Levels of Use: The Disability Council's Report

In compliance with section 507 of the ADA,(18) the National Council on Disability furnished a report to Congress on the effect of wilderness area management on the use and enjoyment of wilderness areas by users with disabilities.(19) In evaluating use of wilderness areas by visitors with disabilities, the Council cautioned that its data were limited and unverifiable. However, a survey of federal land managers estimated that nearly seventeen thousand persons with disabilities visit wilderness areas each year.(20) Based on survey responses from eighty wilderness area users with disabilities,(21) the Council concluded that those with disabilities visit the wilderness for the same reasons as all other visitors do, and in many of the same ways.(22)

Most of the eighty respondents, on at least one occasion, used canoes for transportation, and another fifty-eight percent used kayaks or rafts. Thirty-nine percent hiked, and twenty-one percent rode horses. Only five percent ever used a mechanized form of transport (excluding wheelchairs) in a wilderness area.(23) The majority of the respondents used art assistive device in their wilderness recreation; half used manual wheel-chairs and another thirty-three percent used crutches or a cane. Twenty-four percent responded that the trails and/or the terrain were too rugged, and another thirteen percent complained about "poor access at [the] entry point."(24)

The narrative comments in the survey demonstrate a divergence of views about whether access is currently sufficient and, if so, what additional measures might be appropriate. More respondents were in favor of maintaining current levels of accessibility versus increasing access inside wilderness areas(25) though Most agreed that trailheads and entry points should be completely accessible).(26) About three quarters of the respondents were against allowing mechanized devices in wilderness areas. Of the twenty-one percent that did favor such use, comments primarily suggested the use of all-terrain vehicles.(27) These comments bring the tension between greater access and wilderness values sharply into focus. A characteristic statement against greater accessibility read: "I don't want to lose the wilderness; rather than having the wilderness adapt, I'd rather see the persons with disabilities adapt."(28) Other users took the opposite stance: "Widen and reroute the grade of trails. People with disabilities have a right to visit their forests."(29) Despite the polarization of these views, it may be that greater accessibility is possible without compromising the wilderness. That possibility depends on the specific needs of wheelchair users, delineated below.(30)

C. Necessary Modifications Under the ADAAG

Assuming that absolute practical accessibility were a goal of wilderness land managers, what modifications would such access require? The ADA Accessibility Guidelines (ADAAG), developed by the Architectural and Transportation Barriers Compliance Board and published in 1991, provide the specific standards that define "accessibility" under the ADA.(31) The ADAAG evaluate wheelchair access according to four categories: width, surface, cross-slope, and grade.(32)

The width required under federal regulations for the passage of one wheelchair is thirty-six inches, with an absolute minimum required width of thirty-two inches.(33) The minimum width for the passage of two wheel-chairs is sixty inches; this is also the amount of space a wheelchair requires to execute a 180-degree turn.(34) Thus, an accessible trail could be three feet wide, with an occasional narrowing to thirty-two inches. A trail of this type would need to include either a sixty-inch diameter passing space or a T-intersection at intervals of no more than two hundred feet.(35)

Creating an accessible surface for a wilderness trail is a slightly more daunting proposition. The ADAAG require walkway surfaces to be "stable, firm, [and] slip-resistant"(36) with "Changes in level" no higher than half an inch without a ramp.(37) The best surface materials for wheelchair use are asphalt, concrete, mortared tile, or brick.(38) A hardened-dirt trail free of rocks and fallen logs might meet the minimum requirements for an accessible surface, at least in dry weather seasons.

The ADAAG provide that the cross-slope of a pathway should not exceed 1:50, or a 5% grade, even though some cross-slope may be necessary to let water drain off the trail surface.(39) Meeting the cross-slope requirement seems achievable for most wilderness trails; however, in many wilderness terrains the issue of grade may be the least amenable to compromise. The ADAAG allow a sustained running slope no steeper than 1:12, or 8.33%;(40) they allow a "maximum grade," for limited distances, no greater than 1:8, or 12.5%.(41) The terrain of many mountainous wilderness areas would obviously make compliance with the ADAAG nearly impossible.(42) The following examines whether federal law mandates such compliance for wilderness land managers.

III. ACCESSIBILITY AS MANDATED UNDER FEDERAL LAW

Does federal law require wilderness managers to take affirmative steps to ensure practical access? The purpose of the Rehabilitation Act and the ADA is to provide, through federal standards and enforcement, an end to discrimination against persons with disabilities.(43) These laws extend to those with disabilities the same legal protection against segregation and mistreatment offered under the Civil Rights Act.(44) Section 504 of the Rehabilitation Act prohibits discrimination "under any program or activity receiving Federal financial assistance,"(45) While ADA Title II mandates equal treatment by state and local public services.(46) The ADA addresses wilderness area accessibility specifically in Title V, containing "miscellaneous provisions" of interpretation and limitation.(47) Because federal agencies manage designated wilderness areas, accessibility standards fall under section 504 of the Rehabilitation Act.(48) Modifications to any human-made features in the wilderness may also be subject to section 504's "new construction/alteration" requirements.(49) However, section 507 in Title V of the ADA effectively trumps any program accessibility or new construction requirements.(50)

Section 504 of the Rehabilitation Act mandates that no recipient of federal funds, including the government agencies that manage federal lands, may discriminate against persons with disabilities by denying them the benefits of any activity or program.(51) Section 504 prohibits discrimination whether it is intentional or the result of a policy that has a "disparate impact" on those with disabilities.(52) An agency must therefore provide "meaningful access" to its programs by, if necessary, making "reasonable modifications" in them.(53) There are two qualifications to this requirement. First, each aspect of a program need not be accessible; instead, the program must be accessible "when viewed in its entirety."(54) Second, federal agencies do not have to make modifications for accessibility if those modifications would fundamentally alter the nature of the program provided.(55) The fundamental alteration exception is a common rationale for failure to provide practical accessibility in national parks and other outdoor recreation areas.(56)

Given the broad scope of the language of the statutes and regulations, the program accessibility requirement seems most applicable to agency management of wilderness areas and other federal lands.(57) However, it is possible that the new construction provisions of the Rehabilitation Act might apply as well. Regulations promulgated under section 504 require all new construction and alteration (other than maintenance) of facilities to be fully accessible. There is no "fundamental alteration" exception for this requirement.(58) The term "facilities" is broadly defined to include "roads" and "walks";(59) however, it is unclear whether the new construction requirement would apply to, for example, newly constructed trails on federal recreational lands, because the guidelines for accessibility are only now being expanded to include outdoor recreation areas.(60) The current practices of the four federal agencies managing wilderness areas indicate that accessibility guidelines are not applied to newly constructed or altered wilderness trails,(61) and even advocates of accessibility agree that such guidelines are intended to apply to the "built environment" rather than the "outdoor recreation environment."(62) Until new regulations are in place to address outdoor areas,(63) the ADAAG are applicable only to "elements and spaces" common to both the built and the outdoor environments,(64) such as "parking areas, entrances, [and] toilet rooms."(65)

For this reason, the discussion that follows in section A considers practical access to wilderness areas only in terms of the program accessibility standard of section 504. The discussion inquires whether access that might otherwise be required under section 504 is excepted either by the "essential eligibility requirements" language,(66) or the exemption for modifications that would "fundamentally alter" the service or program in question.(67) These arguments apply as well to outdoor recreation areas other than those classified as wilderness, and that application is important for two reasons. First, because wilderness areas are often bordered by other federal lands, those areas may provide one option for wilderness accessibility.(68) Second, the application is important because, as stated previously, section 507 of the ADA supersedes anything else in the ADA or the Rehabilitation Act that could be read to require practical access in wilderness areas. This discussion concludes in section B with a look at section 507's specific treatment of the nexus between the ADA and the Wilderness Act.

A. Section 504's Prohibition Against Discrimination

Section 504 of the Rehabilitation Act of 1973 seems to require wilderness area managers to make these areas practically accessible: "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...."(69) In "allowing" the use of wheelchairs and other mobility-assistive devices within wilderness areas, federal agencies do provide theoretical access. Under a Supreme Court decision interpreting section 504, however, that may not be sufficient. In Alexander v. Choate,(70) the Court found that section 504 was not limited to "intentional discrimination," but could also include discrimination that resulted from the "disparate impact" a federal agency's policy might have on people with disabilities.(71) In that case, the Court held that a budget cut reducing Medicaid-reimbursed hospital stays did not "have a particular exclusionary effect on the handicapped."(72)

In a recent Florida district court case, however, the results of a budget cut had a much clearer impact on participants with disabilities. The city in Concerned Parents to Save Dreher Park Center v. City of West Palm Beach(73) Cut its budget to eliminate recreational programs geared toward persons with disabilities. Although the city did not close its general-population activities to participants with disabilities, the court held that the elimination of the specific programs had the effect of denying those with disabilities "equal benefits of recreation" in violation of Title II of the ADA.(74) Following the Alexander opinion, the court distinguished between "intentional discrimination" or "discriminatory animus" on the one hand, and "effective discrimination" on the other.(75) Citing 28 C.F.R. section 35.130(b)(3), the court found that either type of discrimination falls under the prohibition in Title II:

While it is true that there is no evidence of deliberate exclusion of disabled

persons from the general recreational programs offered by the city, it is clear

that many of the general programs are unable to offer the benefits of recreation

to individuals with disabilities because of the nature of the recreational activities

and the physical and other limitations of persons with disabilities.(76) By extension, simply not forbidding the presence of wheelchairs in the wilderness may not satisfy the mandate against denial of benefits under section 504. That is, affirmative steps to ensure practical access might also be necessary to enable wilderness users with disabilities to obtain the same benefits from wilderness visits as other users.(77)

In addition, a strict reading of some of the federal regulations enforcing section 504 would require agencies to make wilderness areas practically accessible. For example, the regulations specify that an agency may not administer a program or service in such a way that has "the effect of subjecting qualified handicapped persons to discrimination."(78) One could argue, for example, that wilderness area managers, in restricting trail widths to twenty-four inches, are "utiliz[ing] criteria or methods of administration" that deny access to wheelchair users.(79) Additionally, federal regulations forbid an agency from choosing a facility site that "[ha[s] the effect" of discrimination or which "substantially impair[s] the accomplishment of the objectives of the program or activity" for persons with disabilities.(80) One could even argue that when a wilderness manager routes a trail up a mountainside at a slope greater than 1:12, that choice violates the regulations.(81)

The first line of defense against a commandment to pave the outback is a look at the meaning of "qualified individual with a disability" provided in section 504 itself.(82) The regulations define this individual as one who meets the essential eligibility requirements for the receipt of such services."(83) Essential eligibility requirements have, in turn, been defined in case law by reference to 28 C.F.R. section 35.130(b)(8), an ADA regulation that prohibits public entities from establishing "eligibility criteria that screen out or tend to screen out an individual with a disability ... unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered."(84) The district court in Coleman v. Zatechka(85) addressed the issue of whether the University of Nebraska had to allow a wheelchair user to participate in a dormitory program that assigned roommates randomly. The University argued that the student did not meet two "implied" eligibility requirements: students sharing a room could not use more space than their one-half share, and students could not routinely have three or more visitors per day."(86) The court rejected these implied requirements and found that any eligibility requirements that might screen out participants with disabilities must be necessitated by the service in question.(87) Because neither the space nor the visitor limitations were necessary to the roommate assignment program, they were not essential eligibility requirements.(88)

After Coleman, an argument that a wilderness area visitor with a disability did not meet the essential eligibility requirements for wilderness use is less likely to prevail. Any suggestion that potential users must have a particular degree of mobility or fitness runs afoul of the regulation, because that sort of requirement would tend to screen out those with mobility impairments. Following the reasoning in Coleman, one would then have to demonstrate that a fitness or mobility requirement was "necessary for the provision of the service."(89) The extreme variety found both in the settings and terrain of wilderness areas, and in the people who visit them, makes this argument unwieldy. Almost anyone, regardless of ability, can find a navigable wilderness. Similarly, the court in Dreher Park considered the "qualified individual" element. One could argue, the court said, that "a threshold level of physical ... abilities [was an] essential eligibility requirement' for participation in recreational or athletic activities.(90) The argument fails, though, unless the defendant service provider offered only one type of recreational program, such as a single soccer team:

An essential eligibility requirement of a soccer team may be the ability to run

and kick, but the only essential eligibility requirement of the City's recreational

program (which is the sum of a variety of individual recreational, social, and

educational activities and programs) is the request for the benefits of such a

program.(91)

In Dreher Park, the city provided "an entire network of individual activities and services."(92) If a facility offers a range of program types, then under the ADA and the Rehabilitation Act, that range must include programs offering a reasonable modification to extend the benefit to all participants.(93) The same could be argued in the context of wilderness accessibility: because wilderness areas offer a wide range of wilderness experiences and require widely varying levels of skill to negotiate, some wilderness areas must be reasonably modified to encompass the users with disabilities within the class of people receiving the benefits of the service.

The essential eligibility argument, though it might fail under the reasoning of Coleman and Dreher Park, has another angle as well. That angle requires one to view wilderness managers not as providing a range of wilderness experiences, but as providing one particular sort of "service" whose nature is defined by the Wilderness Act. That service has less to do with providing people with recreational opportunities and more to do with setting aside and protecting primitive areas for the future.94 In providing the wilderness area service, federal land managers evaluate possible human uses and decide whether or not those uses are compatible with preserving the wilderness. In that sense, wilderness areas constitute a service that, like the single soccer team in the Dreher Park hypothetical, is of only one type and has only one set of eligibility requirements. Under those requirements, each wilderness visitor--with or without a disability--must take the wilderness as she finds it.

A second and more defensible counter to the program accessibility requirement is the fundamental alteration exception. A provider of a program or activity is not required to take any action toward accessibility if the agency demonstrates that such action "would result in a fundamental alteration in the nature of a service, program, or activity."(95) An agency could easily take the position that, for example, paving a new trail in a wilderness area would involve a fundamental alteration of what Congress and the agency intend a wilderness designation to signify. The less profound the modification, however, the less tenable the agency's fundamental alteration position. For example, it would be more difficult to argue that a new trail thirty-six inches wide, or even sixty inches wide, instead of twenty-four, would fundamentally alter the nature of a wilderness area. In addition, the Department of Justice regulations stress that the exception "does not establish an absolute defense"(96) and that Congress intended a high standard for the exception.(97) Also, in keeping with the ADA's generally flexible approach,(98) the regulation expressly provides that the availability of a "fundamental alteration" exception does not excuse an agency from providing as much access as it can.(99)

B. ADA Title IV's Provision for "Federal Wilderness Areas

The requirements of section 504 and ADA Title II and the issue of their applicability to wilderness areas are expressly provided for in the ADA's Miscellaneous Provisions.(100) Section 507 required the National Council on Disability to submit a report to Congress on the effect of wilderness area management on the use and enjoyment of such land by persons with disabilities.(101) Subsection (c) specifically addresses wheelchair use:

Congress reaffirms that nothing in the Wilderness Act is to be construed

as prohibiting the use of a wheelchair in a wilderness area by an individual

whose disability requires use of a wheelchair, and consistent with the Wilderness

Act no agency is required to provide any form of special treatment or

accommodation, or to construct any facilities or modify any conditions of

lands within a wilderness area in order to facilitate such use.(102)

The subsection goes on to define a wheelchair as an assistive device "suitable for use in an indoor pedestrian area."(103) The Act's legislative history reveals that the provision originally contained only the call for the Disability Council's report, and that subsection (c) was added with a House amendment.(104) The drafters of the entire provision urged the managers of wilderness areas "[when] constructing or reconstructing a trail, bridge or facility to comply with the intent of" the ADA--so long as their compliance comported with the Wilderness Act's objectives of maintaining "wilderness character."(105)

In the report required under subsection (a), the Disability Council's general assessment of federal land managers' policies and practices was that they comported with section 507 of the ADA. That is, the four agencies allow wheelchairs in wilderness areas, but they do not make 'special provisions for use by persons with disabilities"; both of these policies are consistent with section 507(c)(1).(106) However, the Council stopped short of giving wilderness managers an unqualified stamp of approval. For example, Forest Service policy forbids the use of motorized wheelchairs in wilderness areas; the report found that this policy "appears to be in conflict with ... Section 507(c)(2)" and the definition of "wheelchair" as any mobility-assistive device suitable for indoor use.(107) The Council interpreted this definition to include both manual and motorized wheelchairs. The section's plain meaning--that is, the use of the general term "wheelchair," without any qualification--supports the Council's interpretation. The legislative history of the section lends support as well.(108) The Forest Service appears willing to alter this policy,(109) and the Council recommended it do so.(110)

In addition to this specific policy point, the report discussed two other areas of concern in wilderness area management. First, the Council found that administrative policies for disabled users did not always trickle down to the implementation level, so that, on a site-by-site basis, actual practices and implementation of policy varied considerably.(111) Second, the Council determined from its data that, across the four agencies, "specific guidelines on what is consistent with the Wilderness Act regarding use of the NWPS [National Wilderness Preservation System] by persons with disabilities appear to be lacking" and that "the federal agencies do not factor in use of the NWPS by persons with disabilities as much as they could."(112)

Consistent with these conclusions, the Council recommended absolute compliance with section 507(c), including a change in the policy prohibiting use of electric wheelchairs in Forest Service-managed areas. It also recommended more extensive training for wilderness area "unit managers."(113) The Council called for the development of specific guidelines for facilitating access for disabled users consistent with the Wilderness Act.(114) Finally, the Council encouraged a free flow of information: agencies should provide more information on accessibility in wilderness areas to disabled users, and all concerned federal agencies should continue to study the issue arid make their information publicly accessible.(115)

The language of section 507 is clear: It relieves federal land managers of responsibility for making wilderness areas practically accessible to those with mobility impairments that require the use of assistive devices such as wheelchairs. The Disability Council recognized that administrative failure to make "special provisions" was consistent with section 507(c)(1).(116) A straightforward reading of this ADA provision produces no mandate to agencies to make wilderness areas accessible.

Nevertheless, both the ADA'S legislative history and the Disability Council's report tend to soften the impact of section 507. Congress urged agencies to "comply with the intent" of the ADA when they construct trails, bridges, or facilities.(117) The Council's report reinforces that legislative intent by essentially calling for agencies to pay more attention to wilderness area use by disabled visitors and to establish guidelines that would help agencies provide for the greatest accessibility allowable under the Wilderness Act.(118)

The flexibility granted to the agencies is explicit in the federal regulations promulgated under Title II. For example, 28 C.F.R. section 35.105 provides that a public entity must operate its services, programs, and activities so that each, "when viewed in its entirety, is readily accessible."(119) The regulation states specifically that the accessibility requirement does not "[n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities."(120)

In addition, the legislative history stresses that the ADA should be used flexibly in a way that is faithful to its overall purpose as a mandate against discrimination. In House reports addressing the "new construction" language of section 303, the drafters, hypothesizing an example of a building that would not be made completely accessible under the "structurally impracticable" exception, felt that it should still be made as accessible as possible because the ADA's "requirements should not be viewed as an all-or-nothing proposition."(121) The drafters also emphasized that the ADA is "geared toward the future--the goal being that, over time, access will be the rule rather than the exception."(122) For example, the ADA focuses on requiring new construction and alterations to be up to accessibility standards.(123) The basic intent of the ADA, one could argue, is not to make the world instantly accessible, but to require that public entities and private providers of public accommodation begin to take accessibility into account when they alter or add to their facilities--in other words, the ADA adds disabled people to the "equation."(124)

The flexible approach of 28 C.F.R. section 35.150, as well as the legislative intent that the ADA be future-oriented and applied with flexibility, reinforce the idea that compliance under the ADA is not "an all-or-nothing proposition." Agencies may choose to monitor their compliance with the ADA by focusing on specific provisions and regulations; the better approach, however, would be to assess programs and facilities with an appreciation of the ADA'S overall purpose to create a powerful mandate for the future accessibility of American society.

The ADA is more than a bundle of particular provisions. When viewed as an organic whole, the Act is infused with meanings supplied by at least three sources. First, its legislative history shows the intent of its drafters that wilderness managers should comply with the ADA's purpose of granting equal access,(125) with a view toward ever-increasing accessibility in the future(126) and a flexible approach to providing accessibility.(127) Second, the recommendation of the National Disability Council, in the report mandated under section 507, was for guidelines allowing agencies to make wilderness areas as accessible as practical under the Wilderness Act.(128) Finally, the Department of Justice regulations on program accessibility encourage a fundamentally flexible approach rather than a harsh choice between compliance with either the Wilderness Act or the ADA.(129)

Thus, while it is impossible to say that the ADA requires specific affirmative actions on the part of federal land managers to ensure practical access to wilderness areas for users with disabilities, the statute as a whole can certainly be read to require agencies to push the possibilities for access until they collide with the hard surface of the Wilderness Act. The location and permeability of that surface are the subjects of Pan IV.

IV. ACCESSIBILITY AS PERMITTED UNDER THE WILDERNESS ACT

In the Wilderness Act of 1964, Congress set aside 9.1 million acres of land as a "down payment"(130) on the commitment "to secure for the American people of present and future generations the benefits of an enduring resource of Wilderness."(131) Congress mandated that, for this purpose, wilderness areas would be designated and "administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and employment as wilderness."(132) Despite the Act's assumption of a singular "purpose,"(133) two are evident: the purpose of human "use and enjoyment," and the purpose of preservation and protection of the natural environment.(134) Those two purposes are not as compatible as they seem in Congress's lofty, unpunctuated mandate. In fact, substantial tension inherently exists between human recreational use and wilderness preservation.(135)

It is not difficult to ascertain the priority of these uses. The language of the Act itself, its nine-year legislative history, the regulations written to enforce it, and the case law interpreting it all point unequivocally to the preservation of "wilderness character"(136) as the Act's overriding concern. If that is correct, then any steps to make wilderness areas accessible must be harmonized with the preservation of "wilderness character." The possibilities for practical access within that constraint are examined in section B.

A. Preservation as the Act's Primary Purpose

The Wilderness Act, in structure and phraseology, presents wilderness preservation as its primary purpose. Section 2(a) begins with a declaration that "the policy of Congress" is to preserve wilderness areas against the encroachment of an expanding population and "growing mechanization."(137) The first sentence promises that Congress will "secure for the American people ... the benefits of ... wilderness."(138) However, it omits any mention of whether those benefits include recreational use. Without the "use and enjoyment" phrase that follows in the second sentence, Congressional purpose seems confined to preservation. Significantly, the second sentence begins by giving "purpose"(139) a singular meaning. The second sentence can easily be read as an implementation of that single purpose, the "use and enjoyment" language being subsumed in the phrase immediately following--"in such manner as will leave them unimpaired for future use and enjoyment as wilderness."(140) Thus, while Congress arguably intended the Wilderness Act to promote multiple purposes, it used language that clearly put wilderness preservation at the top of any possible hierarchy.(141)

Likewise, the Act's legislative history, from its introduction by Senator Hubert H. Humphrey (D-Minn.) in 1956 to its long-awaited and much-debated signing late in 1964, is almost entirely colored by a battle to preserve areas of wilderness by giving them statutory protection.(142) Humphrey's concern with the legislation originated at the urging of Friends of the Wilderness and other public interest groups,(143) cautioning that the nation's wilderness was in danger of complete and eventual destruction under then-current resource management policies.(144) By 1959, clear battle lines had developed, and the opposing and irreconcilable forces were those favoring preservation and those with "commodity interests" favoring development.(145) In 1964 the "preservation community" won, the Wilderness Act becoming law.(146) The history of the legislative debate shows an almost exclusive focus on preservation; likewise, the House Report to establish a National Wilderness Preservation System concentrates on the preservation issue.(147) Its analysis of section 2, for example, makes no mention of "use and enjoyment."(148) Instead, it summarizes the Act's purpose as ensuring the future presence of "unimpaired areas in their natural state."(149)

If the Wilderness Act's plain language and legislative history are not sufficiently clear in mandating the primacy of preservation over human use and enjoyment, the regulations promulgated by the Forest Service and the Bureau of Land Management (BLM) make the priority explicit and binding. Both regulations provide that "wilderness values" will be "dominant" (Forest Service) or "primary" (BLM) "[i]n resolving conflicts in resource use."(150) Both regulations also specify that "[w]ilderness will be made available for human use to the optimum extent consistent with the maintenance of primitive conditions."(151)

Case law has reinforced this regulatory priority-setting. In Parker v. United States,(152) the Tenth Circuit upheld an injunction against timber harvesting on public lands that bordered a wilderness area.(153) The court identified "the general purpose of the Wilderness Act" as "simply a congressional acknowledgment of the necessity of preserving one factor of our natural environment from the progressive destructive and hasty inroads of man."(154) Any uses incompatible with that purpose must be evaluated cautiously before they are permitted. A Minnesota district court decision was even more explicit: "When there is a conflict between maintaining the primitive character of the area and any other use . . . the general policy of maintaining the primitive character of the area must be supreme."(155)

B. Possibilities for Access

If wilderness areas were to be made as accessible as the preservation focus of the Wilderness Act allows, would that level of accessibility be enough to provide practical access for visitors who use wheelchairs? That inquiry requires a look at three somewhat distinguishable models for access: wilderness trail conditions, the use of motorized transport, and the possibility of providing limited-scope accessible areas including and adjacent to wilderness trailheads.

1. Modifying Trails

The limitations to wheelchair access found on a typical wilderness trail have to do primarily with width, surface, and grade.(156) An accessible trail could be three feet wide, could occasionally narrow to thirty-two inches, and would have to include either a sixty-inch diameter passing space or a T-intersection at intervals of at least four hundred feet.(157) Currently, Forest Service trail management policy allows trail widths of two feet in wilderness areas.(158) However, there is nothing in the formal regulations or the Wilderness Act itself to suggest that three-feet-wide trails occasionally widening to five feet would be classified as a "road," forbidden by the Act,(159) or compromise an area's "wilderness character." Indeed, because (under the preservation-as-primary doctrine) the focus of trail construction is on protecting the land,(160) and because wheelchairs are permitted by statute in wilderness areas,(161) wider trails that would protect land against the tread of a wheelchair seem perfectly appropriate. The Forest Service does say that it is "exploring the idea of allowing tread widths in excess of 24 inches where the impact to the natural environment is minimal and there is an opportunity for wheelchair users to achieve a quality wilderness experience."(62)

Creating an accessible surface for wilderness trails, one that is "stable, fim, [and] slip-resistant,"(63) may be less feasible than widening them. A well-groomed trail of hardened dirt might meet this requirement, but could quickly become impassible following a rainstorm. Even if agencies had the resources to provide paved trails, the alternative hardly seems viable from a wilderness character perspective. None of the descriptions of what is meant by "wilderness" appear compatible with pavement. For example, a wilderness should be free of "permanent improvements," should appear in its "natural condition[]" with "the imprint of man's work substantially unnoticeable."(164) Intuition, if not statutory language, declares that paved trails are not commensurate with either goal-wilderness preservation or access. However, two arguments militate against that position.

First, the same need for protection of the environment that works in favor of widening trails for the passage of wheelchairs also works for paving them. If wheelchairs, like bicycles,(165) are harmful to wilderness preservation, but are required by some users to navigate the wilderness, then part of the land manager's task in protecting the areas is to protect them from potential damage caused by wheelchair use. This protection might include widening trails, reinforcing or resurfacing particular areas, and given paving sections of trails especially susceptible to erosion or subject to heavier than usual wheelchair use. Such improvements would be analogous to more traditional efforts to protect the environment from human use. For example, footbridges are often provided at heavily traveled stream crossings.(166) In Minnesota's Boundary Waters Canoe Area, land managers installed primitive toilets to offset sanitation problems created by intensive use of the area.(167) Advocates of accessibility agree that "developed features" should comply with the ADA Accessibility Guidelines (ADAAG).(168)

Second, one could argue in the abstract that when one begins with a pristine wilderness, "untrammeled by man""(69) the distinction between dirt trails and paved trails is no wider a gulf than the one between dirt trails and no trails at all. Of course, that alone is not enough to warrant pavement in wilderness areas. Besides, hauled down from the abstract and placed back in historical context, the position becomes untenable. By the time Congress passed the Wilderness Act, conferences had formed in support of the Appalachian and Pacific Crest Trails. In fact, legislation regarding a national trail system had been introduced in 1945, long before the Wilderness Act debate ever began.(170) The Congressional awareness of scenic trails as a presence suggests that when Congress proscribed "permanent improvements," it did not mean dirt trails. Another factor is the Act's characterization of wilderness as a place for "a primitive and unconfined type of recreation;"(171) in considering the recreating public, Congress surely did not envision hordes of bushwhackers. Thus, the gulf between dirt and pavement is significant enough to make paved wilderness trails an unacceptable alternative. Nevertheless, packed dirt does not make a wilderness inaccessible to wheelchair users, and federal managers could make trail surfaces more hospitable in many areas without compromising "wilderness character." For example, managers could groom otherwise accessible trails to clear them of fallen logs, scree, and imbedded stones, removing barriers to access without significantly modifying the environment.

In many wilderness terrains, the issue of grade may be the greatest obstacle.(172) The problem would not be insurmountable in all areas, however. Flat marshes and wetlands, coastal regions, and the lake country of the Great Plains along the Canadian border all could be made at least partially accessible with regulated grade restrictions.(173) Although some portions of more mountainous wilderness areas could fall within the slope requirements, clearly much of the terrain would defy all attempts to achieve accessibility without the introduction of lifts, tramways, or other developments manifestly at odds with maintaining "wilderness character." Nevertheless, making the flat terrain of each wilderness area as accessible as possible would be a step toward fulfilling the ADA mandate that a program be accessible "when viewed in its entirety."(174)

2. Motorized Transport and the Conflict in the Boundary Waters Canoe Area

There is one solution to providing access that could supplement, if not replace, the need to change trail conditions: the use of motorized transportation, such as the "all-terrain vehicle" (ATV). An ATV could allow a mobility-impaired wilderness visitor greater access to rugged terrain. It would also violate the Wilderness Act's prohibition against "motor vehicles," "motorized equipment," and any "other form of mechanical transport."(175) The Wilderness Act does relax this prohibition somewhat, however, in providing prior use exceptions for motorboats and other 'established uses."(176) It is under these exceptions that a battle over motorboats, snowmobiles, and motorized portages has raged in Minnesota's Boundary Waters Canoe Area (BWCA). The battle is instructive in that it tends to polarize the issue of motors in wilderness areas and force an examination of what Congress meant by "wilderness character."

In the BWCA, the battle lines were drawn with ecologically minded, serenity-seeking canoeists on one side and practical, economic-minded motorboat and snowmobile users on the other.(177) The complicating factor was that everyone more or less agreed that the motorboat and snowmobile use in question did not cause ecological damage; instead, it merely offended the sensibilities of those who wanted a "wilderness experience" that did not include the sound of the internal combustion engine.(178) As a Saint Louis county commissioner put it, "the only disturbance that exists is in the head of the sensitive canoe paddler."(179)

The first interesting and instructive facet of the BWCA conflict was that the two sides could not comproniise because they represented an irreconcilable polarization of values: "one economic and the other aesthetic."(180) Following numerous court cases and much in-will, the issue was statutorily resolved mainly in favor of the "aesthetic" side, with motor travel significantly restricted as "incompatible with the wilderness."(181) Fourteen years before, the struggle to pass the Wilderness Act had ended the same way, with a law that allowed motors in the wilderness in only the most narrow of circumstances. Thus, motor use in wilderness areas appears to be blocked by the preservation-as-primary doctrine, whether or not the use directly affects ecology.

The second instructive issue in the BWCA conflict is the way, even in the 1970s, accessibility entered the debate. Those on the side of motorized transport argued that a ban would "discriminate" against "those with physical handicaps."(182) The wilderness advocates countered that allowing motors would deny everyone, including the disabled, a "true wilderness experience."(183) A botany instructor in the area, who despite his disability visited the BWCA without motorized transport, cared the discrimination argument a "phony issue, supported and perpetuated mainly by those having little or no interest in the welfare of the handicapped."(184) Others have commented on the use of the accessibility issue as a false front hiding an agenda for resource exploitation.(185) Most persons with disabilities, like most others who visit wilderness areas, may prefer the restriction on motorized transport to ensure the quality of their wilderness experience. In the Disability Council's report, seventy-six percent of respondents with disabilities said those restrictions did not "diminish[] their ability to enjoy the wilderness."(186) On the other hand, some members of veterans groups in the BWCA area have disabilities and do apparently rely on motorized transport to venture into the wilderness; in fact, the motorboat exemptions on three border lakes may allow a "better wilderness experience than most disabled people are able to get."(187)

Like most other accessibility issues, the question of ATV use is not "an all-or-nothing proposition." For example, disabled users could apply for special use permits allowing ATV use in certain areas.188 However, as prior use' exceptions are evaluated, litigated, and resolved in legislation, those decisions tend to fall on the side of preservation rather than continuing exemptions for motor use. Another example occurred in a 1991 court case over, once again, motor use in the BWCA.(189) The issue was whether to allow continued use of motorized boat portages in the BWCA. The portages connected the three remaining lakes with motorboat access, and consisted of guides, pickups, and trailers to transport boats from one like to another.(190) In upholding the decision of the administrative law judge that motorized portages were needed to make portaging "feasible,"(191) the distriet court noted briefly that the decision naturally could involve "issues of access for disabled persons," if other laws were involved.(192) The court also held that feasibility must be judged in terms of the impact on both wilderness and human use, the standard being best described as "reasonably convenient or usable."(193) In its holding, the court recognized that wilderness users consisted of a variety of people, "some of whom seek a pristine experience and some of whom seek one less pristine and more accessible."(194) The Eighth Circuit reversed the decision precisely on the basis of feasibility, defining it as "physically possible."(195) The court cited legislative history that supported its interpretation: "'feasible' meant a method involving two able-bodied resort guests and one able-bodied guide."(196) Despite its obvious implications for the exclusion of disabled visitors, the Eighth Circuit's reversal once again reinforced the position that the doctrine of preservation takes priority over motorized use in wilderness areas.

3. Trailheads and Limited-Scope Accessible Areas

One solution that could satisfy the access needs of a greater range of users is to focus efforts on enhanced access to trailhead facilities and nearby routes of limited scope. Several federal wilderness managers suggested this in the Disability Council's report.(197) In addition, one of the report's specific recommendations was to bring trailhead facilities "up to code."(198) Of course, there would be little point in installing accessible bathrooms at a wilderness trailhead if the trail leading from it were inaccessible. It might, however, be feasible to extend a truly accessible, even paved trail a few miles into the wilderness or on adjacent federal land. Each wilderness area trailhead could be designed with, for example, a one- or two-day hike along an accessible route. If that were available, wilderness areas would be open to most disabled users, and the ADA's mandate that a public facility be accessible "when viewed in its entirety"(199) would be capable of realization even in exempted wilderness areas.

Designated wilderness areas frequently border other federal lands.(200) Thus, the limited-scope accessibility routes could often intersect with wilderness trailheads but be confined entirely or almost entirely to land without the wilderness designation. Such land would, in any case, fall under the requirements of either the Rehabilitation Act or the ADA.(201) In fact, the very presence of the section 507 exemption for modifications of vdldemess areas implies that other federal lands are not exempt. Under federal law, nonexempt facilities, including newly constructed trails, must comply with code standards to follow the ADAAG.(202)

V. CONCLUSION: THE 1994 ADVANCE NOTICE OF PROPOSED GUIDELINES

In its ADA section 507 report, the Disability Council recommended more specific guidelines to help facilitate wilderness area use by those with disabilities and better, more accessible information about what wilderness areas offer to individuals with disabilities.(203) Each of these recommendations is addressed in the Architectural Transportation Barriers Compliance Board's "Advance Notice of Proposed Rulemaking," which sets out to develop, for the first time, guidelines for accessibility in outdoor recreation areas.(204)

The new guideline suggestions were developed by an advisory committee that split into six subcommittees to examine types of recreational facilities. One such type was "Developed Outdoor Recreation Facilities," where the subcommittee found that "[t]he most critical issue . . . is the issue of balancing accessibility with the preservation of the fundamental nature of the outdoor recreation environment."(205) The subcommittee addressed that issue by devising several levels of accessibility that correspond, proportionately, to levels of development. Starting from the premise of a basic distinction between the "built environment and the outdoor recreation environment," the subcommittee divided outdoor areas into four categories: 1) high development (urban/rural settings), 2) moderate development (roaded natural settings), 3) minimal development (semi-primitive settings, or "back country"), and 4) no development (primitive).(206) Corresponding accessibility levels were classified, respectively, as "easier," "moderate," "difficult," and "most dffficult."(207)

The committee began with the parameters established by the ADA Accessibility Guidelines (ADAAG) for the "easier" access level and adjusted those parameters downward for decreasing accessibility in, for instance, "recreation trails." For example, the ADAAG require a three-foot path to widen to a five-foot "passing space" at least every two hundred feet.(208) This requirement applies to the "easier" access expected for recreation trails in areas of high development, but the interval lengthens to three hundred feet in areas of moderate access and development and four hundred feet in areas of difficult access and minimal development. In primitive areas, the passing space requirement is "not applicable."(209) Similar adjustments were provided for minimum trail width,(210) maximum grade,(211) and maximum level change.(212)

As the rationale for its graded scale of development and accessibility, the subcommittee used the "fundamental alteration" language of the regulations(213)--the greater the requirement for access, the greater the risk that the modifications will "fundamentally alter, threaten, or destroy the character of the recreation setting or associated recreation experiences."(214) Thus, all of these guidelines are said to be `generally not applicable' in primitive, or wilderness areas,(215) although accessibility is required for improvements to "points of public entry," or trailheads, "if feasible given the environmental constraints."(216)

Besides making the ADAAG specifically applicable to outdoor areas, the subcommittee's guidelines also provide for an information system to alert users, who may or may not have disabilities, to the access rating of a particular area. In the proposed system, trails are rated for difficulty based on width, grade, cross slope, and surface,(217) and the ratings are consolidated in a single informational sign at the beginning of the trail.(218) In addition, the subcommittee recommended that supplemental information be "provided in displays, brochures, and maps at information nodes or kiosks, trailheads, and entrance stations."(219)

Information is a form of accessibility in itself. The proposed requirements for providing more information in wilderness areas should make it easier for a wheelchair user to venture into the wilderness, knowing what to expect. However, though the proposed guidelines put accessibility into a context that is intuitively workable and practically sound, they take refuge too quickly in the wilderness area exemption provided in ADA section 507. This may be a by-product of their framework: the guidelines group accessibility for the wheelchair user into a generalized concept of accessibility that includes a range of traits common to disabled and nondisabled users alike--health, stamina, willingness to take risks, and "expectations of comfort [and] security."(220) But the hiker on two feet and the hiker in a wheelchair may be precisely equal in all of these traits, yet the pedestrian hiker can easily venture into the wilderness on a twenty-four-inch trail, and the hiker in a wheelchair cannot--solely by reason of a disability.

An extra foot of width in a newly constructed wilderness trail does not compromise "wilderness character"--neither would clearing fallen logs and buried boulders from such a trail, or even providing several miles of paved trail along the border of a wilderness area in conjunction with an accessible trailhead. Combined with the information accessibility proposed by the Compliance Board, these small efforts could make portions of the wilderness available to those with disabilities.

The purposes and goals of the Wilderness Act and ADA are not completely incompatible. The Wilderness Act seeks to preserve wilderness; the ADA seeks to extend the benefits of American society to people with disabilities. To the extent that human `use and enjoyment' is permitted in wilderness areas, those with disabilities should have the same degree of use providing for the same level of enjoyment. (1) 42 U.S.C. [subsections] 12101-12213 (Supp. V 1993). The ADA extended the reach of the Rehabilitation Act to programs and services of state and local governments, to privately owned public accommodations, and to public and private employers. See Robert L. Burgdorf, Jr., "Equal Members of the Community": The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L.Q. 551, 558-59 (1991). Thus, the ADA and the Rehabilitation Act work in tandem to proscribe discrimination against individuals with disabilities; generally the Rehabilitation Act applies to federal entities, while the ADA applies to state, local, and private entities. See Penn Lerblance, Introducing the Americans with Disabilities Act: Promises and Challenges, 27 U.S.F. L. Rev. 149, 150 (1992); John Ricca & Jean C. Gaskill, Americans with Disabilities Act: A Survey of the Law, Regulations and Legislative History, 442 Practicing L. Inst. 93 (1992), available in WESTLAW, Practicing Law Institute (PLI) Database ("The Federal government is excluded from the coverage of the ADA but will continue to be covered by the Rehabilitation Act."). (2) 29 U.S.C. [subsections] 701-797(b) (1988 & Supp. V 1993) (applicable to federal agencies and any recipient of federal funds). (3) 42 U.S.C. [sections] 12132 (Supp. V 1993). (4) 16 U.S.C. [subsections] 1131-1136 (1994). For a discussion of wilderness designation under the Wilderness Act, see infra notes 133-55 and accompanying text. (5) 16 U.S.C. [sections] 1131(a) (1994). (6) 42 U.S.C [sections] 12207 (Supp. V 1993). (7) See infra part IV. (8) For a discussion related to this theoretical-practical distinction in the context of a city recreation program, see Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846 F. Supp. 986, 991 (S.D. Fla. 1994), in which the court concluded that actions with a discriminatory effect violate the ADA, even absent discriminatory animus; see also infra notes 73-81 and accompanying text. (9) See 36 C.F.R. pt. 1191 (1994). (10) Wilderness Inquiry, Inc., National Council on Disability, Wilderness Accessibility for People With Disabilities: A Report to the President and the Congress of the United States on Section 567(a) of the Americans with Disabilities Act 15-21 (1992) [hereinafter Report]. (11) See generally Northern Cartographic, Access America: An Atlas an Guide to the National Parks for Visitors with Disabilities (1988) [hereinafter Atlas]. This publication is a descriptive guide to the National Park System designed for use by persons with disabilities. It provides information regarding accessibility for each national park, including trail access, park elevations, transportation restrictions, and medical support services. Trails that are accessible to persons with disabilities are specifically identified. Most trails, however, are inaccessible due to grade restrictions. See, e.g., id. at 110 (Denali), 146 (Grand Canyon), 178 (Great Smoky Mountains), 367 (Yellowstone). (12) See, e.g., id. at 167 (explaining that "Grand Teton is a mountain park and the park's own standards for the most developed trails call for a width of 18 to 48 inches with the minimum being maintained"). (13) Id. at 279. (14) Id. at 167. Cross slope is the grade "perpendicular to the direction of travel." 36 C.F.R. pt. 1191, app. A, [sections] 3.5 (1994). (15) See, e.g., Atlas, supra note 11, at 250 (giving an example of a paved trail with an inaccessible trailhead); Kristian Faden-Vencil, For the Ready and Willing Disabled, The Oregonian, Apr. 27, 1995, at B1 (example of "pointless barriers ... [l]ike the accessible restroom at the top of a steep gravel slope"). (16) See infra notes 156-62 and accompanying text. (17) Report, supra note 10, at 3. (18) 42 U.S.C. [sections] 12207(a)-(b) (Supp. V 1993). (19) Report, supra note 10. The National Council on Disability was originally an advisory board to the Department of Education, but was granted independent status by the Rehabilitation Act Amendments of 1984. Id. at i. Composed of 15 presidential appointees, it was directed to submit an annual report to the President and Congress detailing progress made toward the "full integration" of persons with disabilities. Id. The ADA specifically charged the Council to submit a report on "the effect that wilderness designations and wilderness land management practices have on the ability of individuals with disabilities to use and enjoy the National Wilderness Preservation System." 42 U.S.C. [sections] 12207(a) (Supp. V 1993). The report was submitted to Congress in December 1992. The product of a study conducted by contract with a Minnesota outfitter, Wilderness Inquiry, Inc., the report contained a survey of federal wilderness area managers, outfitters providing services to those wilderness users with disabilities, and the users themselves. The Council presented this survey data for three main purposes: 1) to describe the frequency and character of wilderness area use by those with disabilities, 2) to summarize the policies and practices of the four federal agencies that manage wilderness areas, and 3) to make specific recommendations about the management of wilderness areas under the ADA. Report, supra note 10, at 2; see also infra part III.B discussing the Disability Council's recommendations to wilderness managers). (20) Report, supra note 10, at 45. Estimates of the annual number of users with mobility impairments visiting "semi-primitive and primitive areas," with or without the wilderness area designation, are as high as 50,000. PLAE, Inc., Universal Access to Outdoor Recreation: A Design Guide 105 (1993) [hereinafter Design Guide]. Many outfitters and guide services cater to clients with disabilities. Report, Supra note 10, at 13. (21) The Disability Council received 80 completed surveys from persons with disabilities who had experienced the National Wilderness Preservation System. Respondents were asked to name the areas they had visited and to rate their enjoyment level. Report, Supra note 10, at 28. (22) Id. at 45. (23) Id. at 32. (24) Id. at 31-32. (25) Id. at 37. (26) Id. at 38. (27) Id. at 33-34. (28) Id. at 37 (quoting survey respondent). (29) Id. at 39 (quoting survey respondent). (30) See infra part IV.B. (31) Design Guide, supra note 20, at 15, 223. "[T]he Departments of Justice (DOJ) and Transportation (DOT) have already adopted ADAAG as their standard. Since DOJ and DOT are vested with the authority to enforce accessibility laws, it is likely that ADAAG will soon ... [become] the nation's sole accessibility standard." Id. at 15. The ADAAG are codified at (36) C.F.R. pt. 1191, app. A (1994). (32) Design Guide, supra note 20, at 89. (33) 36 C.F.R. pt. 1191, app. A, [sections] 4.2.1. (34) Id. [subsections] 4.2.2, 4.2.3. However, in a 60-inch turning space, "many people will not be able to turn without repeated tries and bumping into surrounding objects. If possible, it is best to provide a space that is 60 inches ... wide by 78 inches ... long. This will allow most people in wheelchairs to make a U-turn without difficulty." Design Guide, supra note 20, at 121. (35) 36 C.F.R. pt. 1191, app. A, [sections] 4.3.4. But see Recreation Access Advisory Comm., U.S. Architectural & Transp. Barriers Compliance Bd., Recommendations for Accessibility Guidelines: Recreational Facilities and Outdoor Developed Areas 146 (1994) [hereinafter Compliance Bd. Recommendations] (proposing passing intervals of up to 400 feet for trails in areas classified as "back country"). (36) 36 C.F.R. pt. 1191, app. A, [sections] 4.5.1. (37) Id. [sections] 4.5.2. (38) American Soc'y of landscape Architects Found., U.S. Dep't of Housing & Urban Dev., Barrier Free Site Design 22 (1977). (39) 36 C.F.R. pt. 1191, app. A, [sections] 4.3.7; see also Design Guide, Supra note 20, at 173. (40) 36 C.F.R. pt. 1191, app. A, [sections] 4.8.2. (41) Id. [sections] 4.1.6(3)(a)(jj). (42) See infra part IV.B.1. (43) 29 U.S.C. [sections] 701(b) (1988 & Supp. V 1993); 42 U.S.C. [sections] 12101(b) (Supp. V 1993). (44) See Burgdorf, supra note 1, at 552-53 (comparing Title II of the Civil Rights Act to the Public Accommodations provisions of Title III of the ADA); H.R. Rep. No. 485(M), 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 449 ("The Americans with Disabilities Act completes the circle ... by extending to [persons with disabilities] the same civil rights protections provided to women and minorities beginning in 1964."); see also Civil Rights Act of 1964, Pub. L No. 88-352, 78 Stat. 243 (codified as amended at 42 U.S.C. [subsections] 2000a-2000e (1988) and other scattered sections of 42 U.S.C.). (45) 29 U.S.C. [sections] 794(a) (1988 & Supp. V 1993). (46) 42 U.S.C. [subsections] 12131-12165 (Supp V. 1993). (47) Id. [subsections] 12201-12213. (48) 29 U.S.C. [sections] 794 (1988 & Supp. V 1993). (49) Id.; see also 45 C.F.R. [sections] 84.23(a) (1994) ("Each facility ... shall be ... readily accessible to and usable by handicapped persons."). Likewise, Title III of the ADA provides that all "new construction" or "alteration" of "commercial facilities" be "readily accessible to and usable by individuals with disabilities." 42 U.S.C. [sections] 12183(a) (Supp. V 1993). In many respects, the ADA is simply a private-sector corollary to the Rehabilitation Act: "The ADA extends the principles of Section 504 of the Rehabilitation Act, as amended, to protect persons with disabilities in all public facilities and programs irrespective of the funding source." Design Guide, supra note 20, at 15. (50) 42 U.S.C. [sections] 12207 (Supp. V 1993). For the statutory language exempting wilderness areas from the purview of the ADA, see infra note 102 and accompanying text. (51) 29 U.S.C. [sections] 794(a) (1988 & Supp. V 1993). (52) Alexander v. Choate, 469 U.S. 287, 299 (1985). (53) Id. at 30 1. "Reasonable accommodation" under the Rehabilitation Act includes making facilities "readily accessible to handicapped persons." 45 C.F.R. [sections] 84.22(a); see also 42 U.S.C. [sections] 12102(9) (Supp. V 1993) (corresponding ADA requirement that "existing facilities [be] accessible to and usable by individuals with disabilities"). (54) 45 C.F.R. [sections] 84.22(a); see also 28 C.F.R. [sections] 35.150(a). (55) Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979); see also 28 C.F.R. [sections] 35.150(a)(3) (1995) (ADA regulations codifying the section 504 case law that developed the exception). (56) See, eg., Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities; Recreation Facilities and Outdoor Developed Areas, 59 Fed. Reg. 48,542, 48,543 n.4 (Sept. 21, 1994) (advance notice of proposed rulemaking). (57) Examples of this broad language include section 504's definition of "program or activity" as "all of the operations" of an agency, 29 U.S.C. [sections] 794(b) (1988), and the Department of Justice regulations implementing ADA Title II, stating its application to "all services, programs, and activities provided or made available by public entities." 28 C.F.R. [sections] 35.102(a). (58) See supra note 56. (59) 45 C.F.R. [sections] 84.3(i); see also 28 C.F.R. [sections] 35.104 (ADA regulatory definition including "roads, walks, [and] passageways"). (60) See 59 Fed. Reg. at 48,542. But see Telephone Interview with ADA Specialist, Technical Assistance Information Line, Public Access Section of the Civil Rights Division of the Department of Justice (Nov. 10, 1994) (speculating that a plan for a new trail would have to follow the ADAAG). (61) For example, Forest Service policy restricts wilderness trail widths to 24 inches. Report, supra note 10, at 19-20. (62) Design Guide, supra note 20, at 40; Compliance Bd. Recommendations, supra note 35, at 138; see also Burgdorf, supra note 1, at 571 (noting National Park Service policy of decreasing accessibility in areas with fewer ("man made modifications"). (63) See 59 Fed. Reg. at 48,542. (64) Design Guide, supra note 20, at 40. (65) 59 Fed. Reg. at 48,542. (66) 45 C.F.R. [sections] 83.3(k)(4). (67) See supra notes 55-56 and accompanying text. (68) See infra part III.B.3. (69) 29 U.S.C. [sections] 794(a) (1988 & Supp. V 1993); see also 42 U.S.C. [sections] 12132 (Supp. V 1993). This corresponding provision of the ADA applies the same basic standards to programs and activities provided by "any State or local government." Id. [sections] 12131(1)(a). (70) 469 U.S. 287 (1985). (71) Id. at 299. (72) Id. at 302. (73) 846 F. Supp. 986 (S.D. Fla. 1994). (74) Id. at 992. (75) Id. at 991. (76) Id. (77) Of course, access to a "benefit" assumes that wilderness area managers provide a "program" or "service." Arguably, this is not their function at all. Under the Wilderness Act, designated areas are "secure[d]" for human "use and enjoyment." 16 U.S.C. [sections] 1131(a) (1994). This language suggests the granting of a benefit; however, the Act also operates to make this benefit secondary to the preservation of "wilderness character." Id.; see also infra part IV.A (discussing the dual purposes of the Wilderness Act). (78) 45 C.F.R. [sections] 84.4(b)(4)(i); see also 28 C.F.R. [sections] 35.130(b)(3)(i) (1995) (ADA regulations). (79) 45 C.F.R. [sections] 84.4(b)(4). The corresponding ADA regulation uses identical language. 28 C.F.R. [sections] 35.130(b)(3); see also 36 C.F.R. pt. 1191, app. A., [subsections] 4.2.1, 4.2.3. "The minimum clear width for single wheelchair passage shall be 32 in (815 mm) at a point and 36 in (915 mm) continuously." Id. [sections] 4.2.1. "The space required for a wheelchair to make a 180-degree turn is a clear space of 60 in (1525 mm) diameter . . . ." Id. [sections] 4.2.3. (80) 45 C.F.R. [sections] 84.4(b)(5)(i)-(ii); see also 28 C.F.R. [sections] 35.130(b)(4)(i)-(ii) (ADA regulations). (81) 41 C.F.R. pt. 101-19.6, app. A, [sections] 4.8.2. (1994); see 36 C.F.R. pt. 1191, app. A, [sections] 4.8.2 "The least possible slope shall be used for any ramp. The maximum slope of a ramp in new construction shall be 1:12."). (82) 29 U.S.C. [sections] 794(a) (1988 & Supp. V 1993). (83) 45 C.F.R. [sections] 84.3(k)(4). Title II of the ADA incorporated this regulatory language into the statute: "The term `qualified individual with a disability' means an individual with a disability who meets the essential eligibility requirements for the receipt of services . . . ." 42 U.S.C. [sections] 12131(2) (Supp. V 1993). (84) 28 C.F.R. [sections] 35.130(b)(8). (85) 824 F. Supp. 1360 (D. Neb. 1993). (86) Id. at 1368. The student plaintiffs disability required visits from an attendant three times per day. Id. at 1370. (87) Id. at 1368; see also 28 C.F.R. [sections] 35130(b)(8). (88) 824 F. Supp. at 1368-71. (89) 28 C.F.R. [sections] 35.130(b)(8). (90) Concerned Parents to Save Dreher Park Ctr. v. City of West Palm Beach, 846 F. Supp. 986, 990 (S.D. Fla. 1994). (91) Id. (92) Id. (93) Id. (94) The Wilderness Act states: There is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as "wilderness areas" and these 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 .... The Wilderness Act of 1964, 16 U.S.C. [sections] 1131(a) (1994). (95) 28 C.F.R. [sections] 35.150(a)(3). Although these regulations were promulgated under the ADA, the fundamental alteration exception was first introduced in a section 504 case, Southeastern Community College v. Davis, 442 U.S. 397,410 (1979). See Burgdorf, supra note 1, at 561. (96) 28 C.F.R. [sections] 35.150. (97) The regulation notes that, [u]nlike title III of the [ADA], which requires public accommodations to remove architectural barriers where such removal is "readily achievable," or to provide goods and services through alternative methods, where those methods are "readily achievable," title II requires a public entity to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens. Congress intended the "undue burdent standard in title II to be significantly higher than the "readily achievable" standard in title III. Id.; see also Burgdorf, supra note 1, at 560-61 ("[T]he fundamental alteration limit imposes a much higher level of obligation upon operators of public accommodations than does the `undue hardship' limit upon employers."). (98) See infra notes 119-29 and accompanying text. (99) 28 C.F.R. [sections] 35.150. (100) 42 U.S.C. [subsections] 12201-12213 (Supp. V 1993). (101) Id. [sections] 12207(a)-(b). (102) Id. [sections] 12207(c)(1) (citations omitted). (103) Id. [sections] 12207(c)(2). (104) Compare H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 141 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 424 (requiring only the report) with H. R. Rep. No. 485(III), 101st Cong., 2d Sess. 74 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 497 (adding only that current practice allows manual and motorized wheelchairs in "park lands," including wilderness areas) and H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 86 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 595 (amending the section to contain most of the current language of the provision). (105) H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 86 (1990), reprinted in 1990 U.S.C.C.A.N. 565,595. (106) Report, supra note 10, at 44; 42 U.S.C. [sections] 12207(c)(1) (Supp. V 1993). (107) Report, supra note 10, at 44. (108) See H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 74 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 497. An earlier draft of the provision described current National Park Service regulations as allowing access to "wheelchairs (both manual and motorized)." Id. Because this clause was replaced in a later draft with section 507(c), the parenthetical definition, though dropped from the revised version, arguably is implicit in the definition of "wheelchair" finally adopted by Congress. (109) Report, supra note 10, at 20. (110) Id. at 45. (111) Id. (112) Id. at 4445. (113) Id. at 46. (114) Id. at 45-46. (115) Id. at 46. (116) Id. at 44. (117) H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 86 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 595. (118) Report, supra note 10, at 44-46. (1190 28 C.F.R. [sections] 35.150(a). (120) Id. [sections] 35.150(a)(1). (121) H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 120 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 403. (122) H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 63 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 486. (123) Id. (124) See id. at 26, reprinted in 1990 U.S.C.C.A.N. at 449 ("The ADA is a comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of exclusion and segregation."). (125) H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 86 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 595. (126) H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 63 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 486. (127) H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 120 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 403. (128) Report, supra note 10, at 4446. (129) 28 C.F.R [sections] 35.150(a). (130) Craig W. Allin, The Politics of Wilderness Preservation 136 (1982). (131) 16 U.S.C. [sections] 1131(a) (1994). (132) Id. (133) See infra notes 137-41 and accompanying text. (134) Daniel Rohlf & Douglas L. Honnold, Managing the Balances of Nature: The Legal Framework of Wilderness Management, 15 Ecology L.Q. 249, 255-56 (1988). For the position that the Wilderness Act and its legislative history reflect three purposes (human "use and enjoyment," preservation and protection of the natural environment, and "accommodation of local and commercial interests" , see id. at 258. (135) Id. at 278; see also Irene T. Thompson, The Tocks Island Dam Controversy, in WHEN Values Conflict: Essays on Environmental Analysis, Discourse, and Decision 35, 49-50 (Laurence H. Tribe et al. eds., 1976) ("True preservation of the environment often requires the exclusion of people; a wilderness cannot remain a wilderness if it is subjected to any substantial human use." . (136) 16 U.S.C. [sections] 1131(a) (1994). (137) Id. (138) Id. (139) Id. (140) The entire passage of section 2(a) reads as follows:

In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as "wilderness areas," and these 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, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness; and no Federal lands shall be designated as "wilderness areas" except as provided for in this chapter or by a subsequent Act. Id. (141) See also Rohlf & Honnold, supra note 134, at 279 (contending that the "primary objective" of Congress was to "preserv[e] the wilderness character of the last of America's wildlands"). (142) See Allin, supra note 130, at 102-36. (143) Id. at 103. (144) Id. at 102-05. (145) Id. at 120; see also James N. Gladden, The Boundary Waters Canoe Area: Wilderness Values and Motorized Recreation 20 (1990) ("The legislative history of [the Wilderness Act] shows strong conflicts between those who promoted resource development on public lands and those who wished to set aside some natural areas." . (146) Allin, supra note 130, at 135. (147) H.R. Rep. No. 1538, 88th Cong., 2d Sess. 2 (1964), reprinted in 1964 U.S.C.C.A.N. 3615, 3616-17. (148) See id. (149) Id. at 12, reprinted in 1964 U.S.C.C.A.N. at 3621. Interestingly, the only significant mention of recreational use occurs in the context of a discussion about the San Gorgonio Wild Area in California. Id. at 10-12, reprinted in 1964 U.S.C.C.A.N. at 3619-21. The House proposed to set aside a portion of San Gorgonio for recreational skiing, designating the rest as wilderness. It based this recommendation on a commission report that emphasized the distinction between--and the fundamental incompatibility of--"protection" of natural areas versus "recreational uses." Id. at 11-12, reprinted in 1964 U.S.C.C.A.N. at 3620. (150) 36 C.F.R. pt. 1191, app. A, [sections] 293.2(c) (1994); 43 C.F.R. [sections] 8560.0-6(c) (1994). (151) 36 C.F.R. pt. 1191, app. A [sections] 293.2(b). BLM's corresponding provision uses "wilderness character" in place of "primitive conditions." 43 C.F.R. [sections] 8560.0-6(b). (152) 448 F.2d 793 (10th Cir. 1971), cert. denied, 405 U.S. 989 (1972). (153) Id. at 794, 798. (154) Id. at 795. (155) Minnesota Pub. Interest Research Group v. Butz, 401 F. Supp. 1276, 1331 (D. Minn. 1975), rev'd on other grounds, 541 F.2d 1292 (8th Cir.), stay denied, 429 U.S. 935 (1976), cert. denied, 430 U.S. 922 (1977). The Eighth Circuit reversed this decision not because the district court had misconstrued the Wilderness Act in general, but because the region at issue, the Boundary Waters Canoe Area, was not intended in the Act to be treated "as a pure wilderness area." Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1298 (8th Cir.), stay denied, 429 U.S. 935 (1976), cert. denied, 430 U.S. 922 (1977). Notwithstanding the reversal, at least two commentators found the lower court's interpretation of the Wilderness Act "instructive." Rohlf & Honnold, supra note 134, at 265. (156) See supra part II.C. (157) 36 C.F.R. pt. 1191, app. A, [subsections] 4.2.1-.2.3; see supra notes 33-35 and accompanying text. (158) Report, supra note 10, at 19. (159) 16 U.S.C. [sections] 1133(c) 1994). (160) John Hart, Walking Softly in the Wilderness: The Sierra Club Guide to Backpacking 411-12 (1977); see also 36 C.F.R. [sections] 293.2(b) ("Wilderness resources shall be managed to promote, perpetuate, and, where necessary, restore the wilderness character of the land .... Wilderness will be made available for human use to the optimum extent consistent with the maintenance of primitive conditions."). (161) 42 U.S.C; [sections] 12207(c) (Supp. V 1993). (162) Report, supra note 10, at 19. (163) 36 C.F.R. pt. 1191, app. A, [sections] 4.5.1. (164) 16 U.S.C. [sections] 1131(c) (1994). (165) See 43 C.F.R. [sections] 8560.0-5(d) (including bicycles within the category of prohibited "mechanical transport"). (166) Hart, supra note 160, at 200-01. (167) Design Guide, supra note 20, at 106. For example, [t]he heavily used Boundary Waters Canoe Area [installed] ... wooden box toilets ... several years ago in response to sanitation concerns. Design details such as a wide seating platform and a toilet lid that provided back support made these structures somewhat accessible to many visitors, albeit in a very primitive way. Recently, these toilets were replaced with conical-shaped, fiberglass toilets that are easier to transport, install, and maintain. However, since back rests and other features that would help people with balance and mobility impairments were not provided, these new toilets are much less accessible than the old wooden box toilets. This problem might have been avoided if designers involved people with disabilities .... Id. (168) Id.; see also Compliance Bd. Recommendations, supra note 35, at 138. (169) 16 U.S.C. [sections] 1131(c) (1994). (170) Allin, supra note 130, at 176-77. (171) 16 U.S.C. [sections] 1131(c) (1994). (172) See supra part II.C. (173) Hart, supra note 160, at 357-68; see also Atlas, supra note 11, at 120 ("[T]he level terrain that characterizes the [Everglades National Park] provides good potential for access..."). (174) 28 C.F.R. [sections] 35.150(a). (175) 16 U.S.C. [sections] 1133(c) (1994). (176) Id. [sections] 1133(d)(1); see also James A. Browning et al., Idaho Forest, Wildlife and Range Experiment Station, 103 Wilderness Laws: Milestones and Management Direction in Wilderness Legislation, 1964-1987, at 7 (1988) (providing examples of currently permitted motorized use in wilderness areas). (177) Gladden, supra note 145, at 54-65. (178) Id. at 69. (179) Id. (quoting Alvin Hall, County Commissioner of St. Louis County, Minnesota). (180) Id. at 63. (181) Id. at 83. (182) Id. at 60. (183) Id. at 62. (184) Id. (quoting William Muir, botany instructor at Carleton College) (185) See, e.g., Joseph L. Sax, Mountains Without Handrails: Reflection on the National Parks 80 (1980) ("[T]hose who urge development have put the elderly and the handicapped on their front line."). (186) Report, supra note 10, at 33. (187) Telephone Interview with ADA Specialist, supra note 60. (188) Report, supra note 10, at 39. (189) Friends of the Boundary Waters Wilderness v. Robertson, 770 F. Supp. 1385 (D. Minn. 1991), rev'd, 978 F.2d 1484 (8th Cir. 1992), cert. denied, 113 S. Ct. 2962 (1993). (190) Telephone Interview with ADA Specialist, supra note 60. (191) 770 F. Supp. at 1392. (192) Id. at 1389 n.8. (193) Id. at 1392. (194) Id. (195) Friends of the Boundary Waters Wilderness v. Robertson, 978 F.2d 1484, 1488 (8th Cir. 1992), cert. denied, 113 S. Ct. 2962 (1993). (196) Id. (197) Report, supra note 10, at 38. (198) Id. at 4. (199) 28 C.F.R. [sections] 35.150(a). (200) Hart, supra note 160, at 386-96; see also Allin, supra note 130, at 147-52. (201) See supra part IIII.A. (202) Id. (203) Report, supra note 10, at 45-46. (204) 36 C.F.R. pt. 1191. (205) Compliance Bd. Recommendations, supra note 35, at 134. (206) Id. at 138, 160. (207) Id. at 159. (208) See supra part IV.B.1.

(209) Compliance Bd. Recommnedations, supra note 35, at 162. (210) Id. at 160. (211) Id. at 161. (212) Id. at 163. (213) 28 C.F.R. [sections] 35.150(a)(3). (214) Compliance Bd. Recommendations, supra note 35, at 137. (215) Id. at 155. (216) Id. at 156. (217) Id. at 151. (218) Id. at 152. (219) Id. at 151. (220) Id. at 137.

(*) Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1997; M.A. 1988, B.A. 1986, University of Oregon.