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The Wilderness Act and climate change adaptation.

I.   INTRODUCTION
II.  HOW THE WILDERNESS ACT CAN HELP US UNDERSTAND THE ROLE OF LEGAL
     FLEXIBILITY FOR CLIMATE CHANGE ADAPTATION
     A. The Wilderness Act: An Inflexible Law That Could Obstruct
        Climate Change Adaptation
     B. Climate Change and Wilderness Areas
        1. Temperature and Precipitation
        2. Synergistic Effects of Climate Change and Fire
           Suppression
        3. Effects on Species Persistence and Distribution
        4. Effects on Insects, Disease, and Invasive Species
        5. Land Management Agencies' Responses to Climate Change
           Effects on Wilderness Areas
III. POSSIBLE CLIMATE CHANGE ADAPTATION ACTIONS IN WILDERNESS AREAS
     A. Where Inaction is Deemed Unacceptable, Management Strategies
        May be Employed to Enhance Ecosystem Resilience and Resist
        Changes to "Buy Time."
        1. Fire and Fire Surrogates to Restore Natural Fire Regimes,
           Improve Forest Health, and Benefit Plants and Wildlife
        2. Actions to Control Insects and Disease Outbreaks
        3. Actions to Control Normative Invasive Plant and Animal
           Species
        4. Intensive Measures to Keep Endangered Plant and Animal
           Species Healthy in Their Current Range
        5. Reintroductions of Native Plant and Animal Species After
           Disturbances and Extirpations Caused by Direct or Indirect
           Human Action
     B. Management for Realignment May Successfully Facilitate Changes
     C. Restraint
        1. Passive Management in Wilderness Areas Allows for Adaptation
        2. Resources May be Better Spent on Active Management in More
           Altered Landscapes
        3. Uncertainties and Lack of Monitoring Caution Against Active
            Management
        4. Political and Bureaucratic Pressures

 IV. What Management Choices are Possible Under the Wilderness Act?
     A. Management Agency Policy Handbooks Provide Broad Leeway Under
        the Wilderness Act
        1. Biodiversity
        2. Forest Health
     B. Statutory Restrictions on Agency Wilderness Management
         1. Statutory Prohibitions and Exemptions
         2. Demonstrating Necessity Under the Wilderness Act
         3. Identifying the Appropriate Goals of the Wilderness Act
     C. Defining a Spectrum of Permissible to Impermissible Management
        Strategies for Climate Change Adaptation
        1. Prohibited
        2. Potentially Permissible: The Exceptions to Sections 4(c)
           and 4(d)
        3. Permitted
  V. CONCLUSION


I. INTRODUCTION

Policymakers, resource managers, lawyers, and legal scholars are all struggling with the implications of climate change for environmental and natural resources law. Substance, procedure, goals: All of the elements of environmental and natural resources law are up for debate in light of the effects that climate change will have. A common theme in those discussions is the need for more legal and political flexibility to allow for adaptation to climate change. But what kind of flexibility? How much? And at what cost? These are difficult questions that the environmental law community is just starting to get a handle on.

The Wilderness Act (1) is an excellent place to start answering these questions. The passage of the Act in 1964 was, in many ways, a precursor to the wave of federal environmental and natural resource laws enacted in the 1970s. (2) It was one of the first examples of the modern environmental movement flexing its political muscles and forcing legislative changes. (3) It marked a major paradigm shift in federal natural resources law and policy away from discretionary decision making by resource management agencies--decision making that was primarily intended to allow for significant amounts of human management, development, and exploitation of natural resources for human use and enjoyment. (4) The Wilderness Act removed some discretion from management agencies, providing Congress with primary decision making authority: It retained sole authority to create, eliminate, expand, or contract wilderness areas. (5) The Wilderness Act established a strong presumption that hands-off management was the best choice for wilderness areas and would allow for the maintenance and restoration of a natural balance; exploitation and development were not the primary goals for wilderness areas." It was one of the first examples in federal environmental law and policy establishing that passive, recreational use was to be one of the dominant uses of federal public lands.

All of these presumptions are in question today. Active management may be required to respond and adapt to climate change, as hands-off management is no longer a guarantee that natural processes will dominate in wilderness areas. (8) For instance, there have been frequent proposals to aggressively use timber harvests to respond to climate change-induced pine beetle infestations. (9)

Thus, the Wilderness Act, at age fifty, provides us with an excellent case study to consider the question of how well existing environmental and natural resources law can provide for climate change adaptation.

We begin in Part I with an overview of the Wilderness Act and why it can be seen as an exemplar of an inflexible law at a time when flexibility might be required to adapt to climate change. We also discuss the current and future effects of climate change on the resources in wilderness areas, how wilderness areas will be a critical component of adaptation to climate change in the United States, and the very tentative steps that management agencies have taken so far to respond to climate change in wilderness areas. In Part II, we discuss the wide range of possible adaptation steps that might be taken to respond to climate change in wilderness areas, all the way from passive management--what we categorize as restraint--to short-term steps to resist climate change or provide resilience for wilderness resources, to long-term efforts to actively facilitate changes in wilderness areas--what we categorize as realignment. In Part III, we examine how many of these management options are foreclosed or limited by the Wilderness Act. We start with an examination of agency policies to see if the agencies have limited themselves with respect to available options. We then proceed with a close review of the relevant statutory text and case law--supplemented by agency practice and regulations--to identify the constraints the Act itself imposes on management agencies.

Our conclusions may surprise some readers. It turns out that the vast majority of management options are available to management agencies in wilderness areas, though the agencies may have to jump through some procedural and substantive hoops. Of course, these hoops might still be too much of a constraint to allow for effective adaptation to climate change. But we do not think so. There are substantial benefits to restraint and passive management for climate change adaptation--at least in the particular context of wilderness areas--and the procedural and substantive requirements for active management under the Wilderness Act put a thumb on the scale in favor of agencies focusing primarily on restraint and passive management. That thumb on the scale may be particularly important given the uncertainty about what kinds of active management techniques might be effective, the possible negative effects of active management on other resources, and the political and bureaucratic pressures that might otherwise lead to the overuse of active management in response to climate change.

II. HOW THE WILDERNESS ACT CAN HELP US UNDERSTAND THE ROLE OF LEGAL FLEXIBILITY FOR CLIMATE CHANGE ADAPTATION

Not long after the creation of the U.S. Forest Service, the idea of wilderness was born. Early in the agency's history, leaders recognized the need to preserve areas of national forests in a natural state. (10) In 1919, officials in Colorado's White River National Forest decided to forgo road construction into the Trappers Lake basin, concluding that "the mood" of the area would be better preserved by preventing motorized access." Then in 1924, the Forest Service designated the Gila Wilderness in New Mexico's Gila National Forest at employee Aldo Leopold's behest. (12) In the following decades, the agency added more acres to its young system of wilderness, wild, and primitive areas. (13) However, increasing recreational use and timber harvests in national forests led to public concerns about the administrative system for designating and preserving wilderness. (14) In response, Congress enacted the Wilderness Act of 1964.16 The Act established the National Wilderness Preservation System (NWPS), consisting of fifty-four federally owned and congressionally designated "wilderness areas," and created a process by which Congress could designate additional wilderness areas. (16)

Today, wilderness areas are managed by four federal agencies in two departments: the U.S. Forest Service in the Department of Agriculture, and the Bureau of Land Management (BLM), National Park Service (Park Service), and Fish and Wildlife Service (FWS) in the Department of Interior. (17) This Article focuses on wilderness areas managed by the Park Service and Forest Service because these two agencies manage the greatest wilderness acreage and have the most developed climate change policies. (18)

A. The Wilderness Act: An Inflexible Law That Could Obstruct Climate Change Adaptation

The Wilderness Act is often characterized as one of the most restrictive and inflexible environmental laws. (19) Under the Act, mechanized transport and roads are generally prohibited in wilderness areas. (20) Construction of buildings and other man-made structures is also generally prohibited, as is the use of mechanized tools, such as chainsaws. (21) The general purpose of the Act is to preserve certain federal lands 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." (22)

On the other hand, the Act has significant exemptions: The Act's restrictions can be waived for "the control of fire, insects and diseases." (23) Also, temporary roads and motorized and mechanized equipment are permissible "as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter (including measures required in emergencies involving the health and safety of persons within the area)." (24) Pursuant to these exemptions, agencies have undertaken major active management projects in wilderness areas using tools such as prescribed fire, (25) pesticides to control insects (26) or nonnative fish, (27) timber harvest to prevent beetle infestations, (28) helicopters, (29) and mechanized transport and chainsaws. (30) A number of commentators have concluded that the Wilderness Act is not as rigid as it is sometimes portrayed, (31) and that there is significant uncertainty about how stringent the restrictions in the Act actually are in practice. (32) Some have even argued that land management agencies may have a mandate to take active management steps to restore wilderness characteristics that have been damaged by human intervention. (33)

Nonetheless, despite the exemptions and the implementation of active management in wilderness areas by various federal land management agencies, it is accurate to say that of all the federal land management statutes, the Wilderness Act is the most restrictive. (34) It is far more restrictive than the multiple-use standards that apply to BLM and Forest Service lands, standards that give broad discretion to those agencies in making management decisions. (35) Even the Park Service and the FWS have significant discretion under their organic acts. While the Park Service is tasked with both providing recreational opportunities and protecting natural resources on its lands, it is given broad discretion as to how to balance those goals. (36) While FWS is tasked with an overarching goal of protecting biodiversity on its lands, it is given significant discretion to determine whether other goals, such as recreational uses, are compatible with conservation and therefore can be permitted. (37) The breadth and specificity of the restrictions on management choices under the Wilderness Act are much greater than any of the other federal land management standards. (58)

Moreover, courts have been quite willing to enforce the Wilderness Act's restrictions against federal land management agencies. (39) Courts have prevented agencies from conducting timber projects, fish hatchery projects, motorized transport of tourists, and maintenance of dams in wilderness areas. (40) As one scholar documented, courts are far more likely to intervene to restrict agency decision making pursuant to the Wilderness Act than under other federal land management or environmental statutes. (41)

Thus, while it is certainly fair to say that the Wilderness Act does not absolutely prevent all active management and does have some flexibility given its exemptions, it is also one of the most--if not the most--restrictive environmental laws in the United States.

It is therefore not surprising that the Wilderness Act has also been identified as one of the statutes that might pose particular challenges to, and be particularly challenged by, the need to adapt to climate change. (42) Commentators have asserted that the Wilderness Act is based on a premise of a stationary, balanced, natural world that can be kept pristine from human intervention. (43) That premise is false, according to these commentators, because the natural world is extremely dynamic, and because human intervention is pervasive across the planet, most obviously as a result of climate change. (44) Because of those pervasive human impacts on all wilderness areas--particularly climate change--active human intervention in wilderness areas will be necessary to retain desired natural features, protect biodiversity, and maintain functioning ecosystems. (45) At heart, climate change and other indirect human effects on wilderness areas create a tension between maintaining the historic natural state of the wilderness area and avoiding human intervention in the wilderness area. (46) Accordingly, a range of commentators have called for reconsideration of the goals and restrictions of the Wilderness Act to adapt to a new, human-dominated world. (47)

These specific critiques of the Wilderness Act are consistent with broader calls for changes in environmental law to allow for adaptation to climate change. The general argument is that climate change will make many of the goals under existing environmental law--particularly those based on a vision of a stable natural world that can be protected from human intervention--obsolete. (48) Likewise, rigid constraints in existing environmental law are incompatible with adaptation to climate change because they constrain the experimentation and novel active management tools needed to deal with unprecedented changes in natural systems. (49) Relatedly, some have argued that flexibility in environmental law is essential for the implementation of adaptive management, which in turn is required to reduce uncertainty in a world affected by climate change. (50)

Applying these broader arguments to the Wilderness Act raises the question: Can such a rigid, inflexible law like the Wilderness Act feasibly allow for adaptation to climate change?

B. Climate Change and Wilderness Areas

Wilderness areas are not just important as a case study for understanding the importance of legal flexibility for climate change adaptation; they will also be important in their own right for the process of climate change adaptation in the United States. There are 759 wilderness areas across forty-four states, totaling approximately 110 million acres. (51) They comprise nearly 5% of all land in the United States. (52) These areas will play an important role in climate change adaptation and mitigation because they contain undeveloped and relatively intact land, as discussed in more detail below. (53)

Climate change is already affecting wilderness areas, and will continue to do so. (54) It will amplify and compound existing stressors to wilderness ecosystems, including invasive species, fire, pathogens, disease, insects, pollution, and extreme weather events. (55) Other changes, including variations in the timing, amount, and type of precipitation (i.e., snow vs. rain), drought, and shifting species ranges will create a "kaleidoscope of new patterns and trends" and require new management strategies. (56) The changes described below lead scientists and managers to question whether maintaining existing conditions in wilderness areas will be feasible in the future, and whether resisting changes makes financial and ecological sense. (57)

1. Temperature and Precipitation

By 2100, average annual temperatures in the United States are projected to increase by 2 to 11.5 degrees Fahrenheit ([degrees]F). (58) While temperature changes across federal lands will not be uniform, (59) rising temperatures will create a "no analog" future in many ecosystems. (60) All climate models predict warmer temperatures overall and most models predict higher average winter temperatures by 2100 throughout the West, where wilderness areas are primarily located. (61) In Alaska, home to over half of wilderness acreage, air temperature has increased 0.4[degrees]C; permafrost has warmed by 0.5[degrees]C each decade since 1950; and temperatures are projected to continue warming between 0.4 and 0.7[degrees]C per decade over the next century. (62) Outside Alaska, the majority of wilderness is located in five ecoregions: California's Mojave Desert, the southern and middle Rocky Mountains, California's Sierra Nevada, and the Pacific Northwest's Cascade Mountains. The latter four contain significant forest components. (63) Temperatures in each of these regions are projected to increase. (64) In the Pacific Northwest, temperatures may rise between 1.5 and 3.2[degrees]C by 2040. (65) By 2100, temperatures in the Sierra Nevada are projected to rise between 1.7 and 5.8[degrees]C (66) and temperatures in the Intermountain West are projected to rise between 2 and 5[degrees]C. (67)

In the last fifty years, climate change has already altered river flows and snowpack throughout the West. (68) Further changes in the amount, timing, and nature of precipitation are predicted to accompany increased temperatures. (69) Climate warming and moderate increases in precipitation in Alaska have affected the hydrologic cycle, soil resources, and disturbance regimes by lowering regional water tables, causing soil drying and reductions in tree growth. (70) Further, despite increases in overall precipitation, scientists are predicting less snowpack throughout the Sierra Nevada and the Cascades. (71) In the Intermountain West, future declines in snowpack will compound those that have occurred since the 1950s. (72) These changes are predicted to impair water quality and quantity. (73) Shifts in the timing of runoff may also overwhelm existing dams and reservoirs and cause flooding downstream. (74)

2. Synergistic Effects of Climate Change and Fire Suppression

Anthropogenic alteration of fire regimes (75) has significantly affected natural resource management and biodiversity conservation. (76) Decades of fire suppression have produced increased tree densities on many public lands, including in some wilderness areas. (77) Even with wilderness designations, approximately 85% of all natural fire ignitions in Forest Service wilderness areas are suppressed each year. (78) Collectively, fire suppression decisions have had a large effect. According to one study, over half of the area within wilderness areas in the eleven western states is moderately or highly departed from historical fire regimes. (79)

This legacy of fire suppression is problematic in a changing climate because ecosystems that are stressed from altered fire regimes are probably more vulnerable to climate-driven ecological change. (80) Regional changes in temperature and precipitation can add to existing stress and increase the severity and frequency of wildfires. (81) Warmer and drier conditions caused by climate change lead to increased moisture stress in trees and forest vegetation, which in turn result in earlier and longer fire seasons. (82) Fewer months of snow cover will allow more time for vegetation and forest fuels to dry during increasingly warm summers. (83)

Together, climate change and fire suppression have caused the acreage burned by fire and suppression costs to rise dramatically since 2000. (84) These patterns are expected to continue throughout the next century. (85) According to fire ecologists, the 2013 Rim Fire, which burned more than 402 square miles (257,314 acres) in the Stanislaus National Forest and Yosemite National Park, including some wilderness areas, (86) may be a sign of things to come. (87)

Moreover, increasingly large patches of high-severity fire in forest types not adapted to this fire type raise concerns that forests are becoming vulnerable to "type conversion from forest to a different vegetation type (e.g., shrubland or grassland) following some high-severity fires." (88) In addition, more frequent fires may cause an increase in greenhouse gas emissions and the number of "bad air days." (89)

Despite these challenges, wilderness areas offer hope in a changing future. The chances of restoring natural fire regimes--and therefore ending the need for continued human manipulations (e.g., thinning)--are best in large wilderness areas. (90) The Rim Fire suggests that programs that allow for management of natural ignitions in wilderness areas may be successful in preventing large-scale type conversions from forest to shrubland. (91) In total, an estimated 40% of the vegetation in the total area burned by the Rim Fire burned at high severity--typically defined as at least 95% canopy tree mortality--an occurrence that may be unprecedented in the Sierra Nevada. (92) By comparison, only 7% of the 77,000 acres of the vegetation in wilderness areas burned by the Rim Fire experienced high-severity fire. (93) This severity pattern may be attributed to the long history of prescribed fire and managed natural fire in these wilderness areas. (94)

3. Effects on Species Persistence and Distribution

Climate change will also have dramatic effects on biodiversity. (95) There is evidence that drought conditions are already negatively affecting pinyon-juniper woodlands in Arizona, shrub communities in the Colorado Plateau, amphibian species in Yellowstone National Park, and aquatic habitat in the Chugach National Forest. (96) Certain public lands, including Bandelier National Monument and Mesa Verde National Park, are at risk of losing their forests altogether. (97)

Many species will likely respond to climate change by migrating northward and to higher altitudes; therefore, species that five at high elevation, where many wilderness areas are located, are especially vulnerable. (98) Increasing temperatures contributed to substantial upward changes in elevation limits for many small mammal species like the pika in Yosemite National Park from 1914 to the mid-2000s. (99) This changed community compositions at mid- and high-elevations because former low-elevation species expanded their ranges, while high-elevation species contracted their ranges. (100) These "trends do not bode well for several mid-to high-elevation species...." (101)

Because rates of climate change are significantly faster than they were in the past, in situ genetic adaptation to new conditions is unlikely in most populations. (102) Additionally, many species may not migrate fast enough to keep pace with changes. (103) Climate-caused alterations in wildlife and plant community composition and "mismatches in life history events (e.g., migration and blooming)" will create many new species assemblages and additional species losses. (104) All of these responses will increase the risk of species extinctions, adding to the extinctions that studies suggest climate change has already caused. (105) Due to "rapid loss of habitable climate space," the first climate-caused species extinctions affected mountain-restricted species. (106) Climate change may even cause the disappearance of entire ecosystems, including alpine tundra and some oak woodlands. (107)

4. Effects on Insects, Disease, and Invasive Species

Climate change will alter the distribution, range, and severity of pathogens and diseases that affect plant and animal species. (108) "[O]verwintering survival" of plant and tree pathogens and diseases is projected to increase in a warming climate because low winter temperatures limit the survival of these pathogens and diseases. (109) Likewise, many vector-transmitted diseases that affect wildlife are climate-limited and their prevalence may increase in warmer temperatures. (110) As climate change increases pathogen survival and spread, it will also increase host susceptibility. (111)

Climate change will affect the abundance of insects and their impact on forest ecosystems. (112) Shifts in temperature and precipitation directly affect insect reproduction, survival, and spread; alter host defenses and susceptibility to attack; and indirectly affect ecological relationships by causing changes in the abundance of competitors, parasites, and predators. (113) Climate change is already credited with increasing insect infestations, which further exacerbate the fuel loading problem created by fire suppression. (114) Scientists blame climate change for the mountain pine beetle outbreak that killed hundreds of thousands of acres of trees throughout the interior West. (115) Warmer winters associated with climate change are thought to have perpetuated the outbreak because warmer weather decreases generation time and winter mortality, resulting in "exponential population growth and major range extension." (116) Beetle attack and the introduced pathogen white pine blister rust have severely affected whitebark pine, which provides a critical food supply for species including the grizzly bear. (117) This epidemic has resulted in such extensive whitebark pine mortality that FWS has found that listing the species as threatened or endangered is warranted. (118) One study that has tracked tree stands in wilderness areas and other protected areas since 1955 found that approximately 87% have experienced increased tree mortality due, in part, to insects. (119)

Finally, climate change is likely to increase invasions by nonnative plant and animal species. (120) Many of the same traits that make species invasive, including their ability to survive in adverse conditions and rapid growth rates, allow invasive species to succeed in competing with native species in response to climate change. (121) Additionally, increased ecosystem disturbances and stress on native species from climate change may allow for the establishment of more invasive species. (122)

5. Land Management Agencies ' Responses to Climate Change Effects on Wilderness Areas

Until recently, federal agencies were slow to integrate climate change into project planning and implementation due to its uncertain effects, insufficient local information, budget and personnel constraints, and lack of a mandate to do so. (123) This began to change in the late 2000s. In 2008, the Forest Service formally adopted a strategic framework that identified climate change adaptation as a key agency goal and recommended integrating climate change considerations into agency-wide policies and program guidance. (124) In September 2009, the Department of Interior issued a series of policy documents asking the Park Service and other agencies to initiate actions for climate change adaptation and mitigation. (125) Then, in October 2009, President Obama signed Executive Order 13514, which tasked the Interagency Climate Change Adaptation Task Force with recommending federal efforts to prepare the country for climate change. (126) The Task Force's 2010 report called on agencies to "demonstrate leadership on climate change adaptation," and its 2011 report defined five "key areas of federal adaptation progress." (127)

Now, both the Forest Service and Park Service recognize that climate change challenges their ability to implement their missions. (128) Former Forest Service Chief Abigail R. Kimbell "characterized the Agency's response to the challenges as 'one of the most urgent tasks facing the Forest Service.'" (129) Likewise, in a statement before the U.S. Senate Subcommittee on Public Lands and Forests, Forest Service Chief Tom Tidwell stated that:
   [C]limate change is already altering our Nation's forests in
   significant ways and those alterations are very likely to
   accelerate in the future, in some cases dramatically.... In the
   uncertain environment of climate change, risk management will
   become critical. This is managing ecosystems for resiliency to
   prepare uncertain future outcomes. (130)


The Forest Service now directs managers to consider climate change "in the delivery of [the Agency's] overall mission." (131) To implement this mandate, guidance documents direct that managers consider climate change in both land management plan revisions and in planning individual projects. (132) This guidance urges agency staff to demonstrate "[l]leadership in mitigating climate change and adaptive management for unavoidable climate change" effects in furtherance of "proper land stewardship for our national forests and grasslands." (133)

Similarly, in the 2010 Park Service Climate Change Response Strategy, the agency wrote: "The NPS is moving rapidly beyond the question of whether the Earth is warming and is focused on what to do about it." (134) In the 2010 Strategy, Park Service Director Jonathan B. Jarvis asserted that that "climate change is fundamentally the greatest threat to the integrity of our national parks that we have ever experienced." (135) To meet this threat, Director Jarvis created a Climate Change Coordinating Group in 2010 to "address tough questions of policy, such as impairment, arrival of new species, or facilitated migration." (136) According to Director Jarvis, the Park Service "shall not sit idle" because the agency's organic act (137) directs it to "conserve" the resources in national parks "in such manner and by such means as will leave them unimpaired for future generations." Director Jarvis interprets the words "by such manner and by such means" as giving the agency "latitude to use whatever resources we have to protect parks in a future that has been characterized as 'hot, flat and crowded.'" (138)

Neither agency's guidance clearly explains whether and to what extent managers should use resources to actively manage wilderness areas for climate change adaptation. However, there are indications that federal managers envision wilderness areas as suitable for certain climate change adaptation projects. (139) In 2010, University of Washington researchers found that the majority of Park Service and Forest Service managers from six different units in Washington State did not view the Wilderness Act as a barrier to climate change adaptation projects, (140) though respondents noted that the Wilderness Act may preclude certain types of projects requiring infrastructure development or use of mechanized equipment. (141)

III. POSSIBLE CLIMATE CHANGE ADAPTATION ACTIONS IN WILDERNESS AREAS

The Intergovernmental Panel on Climate Change defines climate change adaptation as the "[a]djustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities." (142) Adaptation may be achieved through implementation of passive or active management strategies. Active management involves human manipulation of natural systems (e.g. restoration treatments including reforestation, weed or erosion control, prescribed fire, and fire suppression), while passive management is hands-off (e.g. allowing naturally ignited fires to burn or acquiring lands to serve as migration corridors and leaving those lands alone). Of course, ecosystems will adapt to climate change absent human interaction. (143) However, active management strategies for climate change adaptation may be appropriate where inaction would allow changes to exceed socially acceptable levels. (144) For example, society may consider the cost of species extinctions, weed invasions, or habitat alteration to be too high to forgo active management.

There are various formulations of strategies to adapt to climate change. Many adaptation strategies have "roots in traditional conservation and ecosystem management principles." (145) These strategies include: reducing existing stressors like invasive species, pollution, and habitat fragmentation; "managing for ecosystem processes and function rather than for particular species or community types"; and establishing habitat buffers and wildlife corridors to connect habitat in existing protected areas with habitat that may be suitable in the future. (146) However, there are more controversial adaptation strategies, including translocation of threatened species to new areas where they did not previously exist, or implementing "triage" systems to concentrate conservation efforts on those species with the greatest chance for survival. (147) Many of these more controversial strategies are designed to address a specific climate change impact and will therefore have more uncertain outcomes that depend on the nature of future change. (148)

Ecologists Nathan Stephenson and Constance Millar divide these strategies into four broad classes of management actions for climate change adaptation in wilderness areas: "restraint (do nothing), resilience, resistance (near-term ways of buying time), and realignment (long-term adaptation)." (149) These four categories represent a "spectrum of possible management actions" for climate change adaptation in wilderness areas. (150) While an exhaustive review of proposed climate change adaptation strategies is beyond the scope of this article, Part III draws on scientific literature, agency proposals, and examples from wilderness case law to identify a variety of adaptation actions that have been or may be proposed for application in wilderness areas, organized by Stephenson and Millar's four categories.

Our assessment focuses on how the Wilderness Act may help or hinder adaptation efforts related to forest health and biodiversity in forest ecosystems, rather than desert, grassland, or coastal ecosystems. Wilderness areas are not limited to forest ecosystems, but we limit our analysis to forest ecosystems for two reasons. First, the majority of acres in wilderness areas are forested. (151) Second, the scientific literature on climate change adaptation largely discusses actions that may be appropriate in various forest ecosystems. (152) However, we believe that our conclusions are relevant to a wide range of other ecosystems and management choices.

A. Where Inaction is Deemed Unacceptable, Management Strategies May be Employed to Enhance Ecosystem Resilience and Resist Changes to "Buy Time."

Resistance refers to "management actions designed to resist change," (153) or the ability of an ecosystem to "resist forces of climate change and maintain values and ecosystem services in their present or desired states and conditions." (154) Similarly, resilience is defined as "an ecosystem's ability to absorb a stress without flipping into an entirely new state, such as from forest to eroded shrubland." (155) According to Forest Service research scientist David Peterson, the goal of managing for resilience is to enhance the ability of ecosystems to "withstand or absorb increasing effects without irreversible changes" to processes or functions. (156)

Management for climate change resistance and resilience may take various forms. For example, managers may construct fuel breaks around endangered or otherwise vulnerable plant species in order to lessen the likelihood of extinction from "climate-aggravated wildfire"; combat insect-caused tree mortality with prescribed burning or thinning treatments to reduce drought stress; or implement an aggressive invasive species monitoring and removal program. (157)

Treatments that promote resilience all seek to reduce "species or system vulnerability to acute or chronic stress" so that species and ecosystems can better respond to, and recover from, climate change effects. (158) Treatments to enhance resistance improve the ability of species and ecosystems to "maintain a relatively constant state," despite climate change disturbances and stressors. (159) As such, neither climate change resistance nor resilience is an end itself. Both strategies aim to keep ecosystems within the historic range of variability (160) despite climate change effects, and may be most appropriate where current societal values dictate that change is unacceptable. While these strategies might "seem counter to working with change," they may be especially important where resources of high social or ecological value, such as endangered species, are increasingly vulnerable to climate change's direct or indirect effects. (161)

These strategies are also means of buying time until wilderness managers, the public, and policymakers more carefully assess climate change implications and researchers develop and test long term adaptive responses. (162)

1. Fire and Fire Surrogates to Restore Natural Fire Regimes, Improve Forest Health, and Benefit Plants and Wildlife

In a warmer climate, studies show that lower stand densities may be necessary in some forest types "to achieve the same level of reduced intertree competition as was achieved in the past." (163) Existing stand density problems caused by decades of wildfire suppression may compound climate change effects within and outside wilderness areas. (164) Additionally, in areas where climate change has resulted in rain replacing snow, declining snowpack, and an upward migration of the freezing line, (165) tree regeneration at higher elevation has increased, leading to the filling of canopy gaps and formerly perennial snow patches with small trees. (166) This is leading to higher fuel continuity, and could lead to more extreme fire behavior in high elevation forests, where many wilderness areas are located. (167) To address these problems, managers may prescribe stand density reduction to minimize water stress, fire hazard, and certain types of insect outbreaks by reducing competition for water and increasing tree vigor. (168) Prescribed fire, managed natural ignitions, and thinning are management strategies that may be proposed to reduce stand densities, as well as to reestablish historic fire regimes, benefit plants and wildlife, and increase resilience in wilderness areas. (169)

Where fires cannot be allowed to burn due to high fuel loads or resource protection concerns, mechanical thinning can be used to achieve lower stand densities. (170) In dense stands, managers may also recommend mechanical thinning prior to reintroducing wildfire to restore historic fire regimes. (171) To promote climate change resistance, managers may also conduct fuels reduction treatments around populations of sensitive plant species or ecologically valuable riparian areas in order to prevent high-intensity fire from causing habitat loss. (172) However, studies caution that thinning is only a partial solution as a surrogate for fire, because "silvicultural prescriptions that attempt to mimic natural forest-fire dynamics may never achieve the complexity that freely burning fire can." (173) Therefore, scientists recommend "[e]xpanding the domain for allowing more freely burning wildland fire" in order to increase patch heterogeneity and forest resiliency. (174)

In some stands, managers may want to introduce prescribed fire before allowing natural ignitions to burn. For example, the Deschutes and Willamette National Forests have proposed to implement prescribed bums in areas of the Three Sisters and Mt. Washington Wilderness Areas in order to "create breaks in the continuous vegetation, resulting in conditions that could improve opportunities to allow lightning-caused fires to play their natural role in the wilderness." (175) Likewise, in Minnesota's Boundary Waters Canoe Area Wilderness (BWCAW), a prescribed fire program was implemented to respond to fire danger created after a major storm caused expansive wind-throw in 1999. (176)

However, prescribed fire or mechanical thinning is not always necessary before allowing natural fires to bum because "many unlogged, fire-excluded forests possess latent resilience to reintroduced fire." (177) Therefore, "a passive forest restoration approach of simply returning fire can be effective" in some stands without implementing active treatments. (178)

Beyond fuel reduction, other resiliency benefits flow from restoring fire to wilderness areas. (179) In some cases, allowing wildfires to bum freely may achieve desired objectives for wildlife habitat creation because fire is often "key to ecosystem integrity and biological diversity, particularly in unroaded areas." (180) For example, high severity wildfires create early seral habitats, which benefit species like the black-backed woodpecker, that are dependent on high-severity fire. (181) Prescribed and natural fires can also help decrease pest outbreaks, (182) enhance fire-dependent plant species populations, (183) and prevent conifer encroachment into ecologically diverse alpine meadows. (184)

Currently, the use of prescribed fire and the management of natural ignitions is allowed in some National Park and Forest Service wilderness areas, including some in the Rockies and Sierra Nevada. (185)

2. Actions to Control Insects and Disease Outbreaks

In response to the increase in insect and disease epidemics as a result of climate change, managers and scientists have proposed several treatments for direct control of mountain pine beetles, including sanitation cuts (e.g., single tree or small patch removal) that attempt to eliminate beetles in a particular area by removing infested trees before beetles develop and disperse, and prescribed bums or toxin applications that attempt to destroy beetles in infested trees onsite. (186) Other treatments, including insecticide application, and even acoustic technology, can be used to prevent beetle infestations. (187)

A variety of projects to combat insect and disease epidemics have already been implemented or proposed in wilderness areas, though not for climate change adaptation. (188) For example, a series of lawsuits in the late 1980s challenged a Forest Service program to control southern pine beetle infestations in wilderness areas in Arkansas, Louisiana, and Mississippi using timber harvest and insecticides. (189) The Forest Service has also proposed actions in wilderness areas to address the aftermath of beetle infestations for safety purposes. (190) In 2009, the Forest Service proposed to use chainsaws to fell dead hazard trees along trails for public safety in New Mexico's Sandia Mountain Wilderness. (191)

Similar actions may be proposed if climate change brings new or increasingly severe insect and disease epidemics to wilderness areas. Scholars suggest that sanitation, "removal of susceptible species to create breaks in transmission," chemical, and bio control treatments for exotic tree diseases and pests may be necessary for climate change resistance and resilience in BWCAW. (192) They predict that wilderness managers may want to chemically treat "exemplary stands" when a pandemic arrives in order to preserve those stands, and they cite an example in Shenandoah and Great Smoky National Parks where chemical treatments have been used to save a few stands of eastern hemlock from the hemlock wooly adelgid. (193)

3. Actions to Control Nonnative Invasive Plant and Animal Species

Nonnative invasive species interact with other elements of climate change and can considerably damage managed and natural systems, imposing "huge costs [on] society." (194) In western forest ecosystems, large scale insect outbreaks, wildfire, and thinning treatments designed to ameliorate the effects of insects and fire can exacerbate climate change effects by further facilitating the spread of normative invasive species. (195) Active treatments to remove invasive species in order to preserve ecologically diverse landscapes may be especially important in wilderness areas, which generally contain intact habitat. With climate change, monitoring for invasives may become increasingly necessary to enable a rapid response to aggressively target and prevent spread into habitat for threatened, endangered, and sensitive species. (196)

Several methods have been developed and deployed to control a wide range of invasive plant and animal species. (197) Eradication, the "removal of every individual and propagule of an invasive species so that only reintroduction could allow its return," is the favored approach where possible. (198) Although eradication can be expensive and time consuming, successfully removing an invader provides the best opportunity to recover native biodiversity. (199) Where eradication is impossible, control--which reduces the presence of the invasive species--and containment--which limits further spread--are options. (200) Standard eradication and control tools include manual methods (e.g., hand pulling, burning, or "manual destruction or removal of nests, egg masses or other life stages"); chemical methods (e.g., pesticides, herbicides, and fungicides); biological methods ("the use of animals, fungi or diseases to control invasive populations"); cultural methods ("the manipulation of forest structure and composition to control invasive species or the alteration of the stand so that effects will be limited if invasion occurs"); and mechanical methods (e.g., hoeing, cutting, mowing, or constructing barriers). (201)

Examples of various normative and invasive species control projects exist in wilderness areas. (202) In several Sierra Nevada wilderness areas, projects have been proposed to eliminate nonnative fish, which have negative effects on endangered frogs and native fish species. (203) Many wilderness lakes in California's Sierra Nevada were historically fishless until state fish stocking programs brought nonnative species like rainbow, brook, and golden trout to these lakes. (204) These normative fish prey upon native species, like the federally endangered mountain yellow-legged frog, and have pushed the frogs out of deep mountain lakes where they previously lived. (205) The endangered frogs are now relegated to smaller ponds, which are more vulnerable to drying associated with climate change. (206) Normative trout also affect native fish species. (207) In a 2011 district court case, plaintiffs challenged a normative trout eradication project in the Carson-Iceberg Wilderness that proposed to use rotenone to kill normative fish before restoring the native and federally threatened Paiute Cutthroat Trout. (208)

Invasive plant species removal projects are ongoing in wilderness areas. (209) In 2013, the Superior National Forest approved a project to remove a total of 14.3 acres of invasive species in the BWCAW, 10.8 acres using herbicide, and 3.5 acres using manual treatment. (210) The project also approved treatment of an additional forty to sixty acres over the next ten years. (211) In the future, similar projects may be implemented in the BWCAW and elsewhere. (212)

4. Intensive Measures to Keep Endangered Plant and Animal Species Healthy in Their Current Range

Conservation of biological diversity is connected to climate change resilience because genetic diversity "allows species to adapt continuously to evolving environmental conditions." (213) While simply leaving wilderness areas alone would benefit some wildlife species because untreated habitats offer heterogeneity, (214) intensive measures may be necessary to ensure the persistence of endangered, threatened, or sensitive species. (215) Several studies suggest that conservation resources should be focused on species that might become extinct due to climate change effects. (216)

One method for allowing wildlife species to persist in a warmer and drier climate is the installation of artificial water sources, also known as wildlife guzzlers. (217) Guzzlers have been proposed in several wilderness areas to support wildlife populations, particularly in dry areas like Southern California mountain ranges, where there is evidence that water scarcity has significantly affected the success of bighorn sheep populations. (218) Guzzler installation in wilderness areas has been quite controversial. (219) In 2010, an environmental group successfully challenged FWS's decision to construct a 13,000-gallon guzzler in Arizona's Kofa Wilderness. (220)

Water may be important for plant conservation as well. Stephenson and Millar provide the example of "keeping an endangered plant population healthy by drip irrigation," (221) as a climate change adaptation strategy that can help reduce environmental stress and facilitate restoration. (222) This strategy may be recommended in wilderness areas as climate change impacts worsen. For example, managers have begun to discuss the possibility of watering giant sequoias in California's southern Sierra Nevada. (223) This action may be necessary because scientists predict that the optimal temperature zone for these trees will rise hundreds of feet in elevation, leaving the trees at risk of dying from drought and heat. (224) However, these strategies may be extremely expensive and cannot be directed at every climate-imperiled species absent significant new funding sources. (225)

Because climate change is projected to negatively impact water quality and quantity in some areas, agencies may also choose to manage for resistance in wilderness areas by restoring eroded areas after disturbances, especially where flooding is expected to increase. (226)

5. Reintroductions of Native Plant and Animal Species After Disturbances and Extirpations Caused by Direct or Indirect Human Action

As discussed earlier, climate change will increase disturbances such as fire, insects, and disease. (227) Active management may assist recovery of species and ecosystems from those disturbances. Post-disturbance forest recovery efforts can focus on: 1) "managing the state of the system immediately after the disturbance (e.g., salvage logging)" or 2) "managing the ongoing process of recovery (e.g., planting and reseeding)." (228) Actions like salvage logging may be unlikely to be proposed in wilderness areas due to prohibitions on mechanized equipment and road construction and because "stands can recover naturally" without removing dead and damaged trees. (229) However, other actions may be important for enhancing recovery in wilderness areas. An important strategy to resist climate change is revegetation with native plant and tree species after disturbances affect a landscape in order to speed succession. (230) For example, in 2013, the Forest Service proposed to replant native whitebark pine in Washington State's Pasayten Wilderness where the species existed before the 2002 Quartz Mountain Fire. (231)

Climate change will increase species extinctions and cause extirpations of local plant and animal populations. (232) Captive breeding or propagation and reintroduction of animal and plant species may be suggested for climate change resistance. (233) While these strategies may not be viable over the long term for more than a few species, reintroductions of native wildlife species may be proposed in some wilderness areas. (234) Frelich and Reich suggest that reintroductions of native species extirpated by direct or indirect human action may be desirable in the BWCAW. (235) With all reintroduction strategies, monitoring is essential to inform managers about the outcomes of their actions. (236)

One existing example is wolf reintroduction efforts, which have a long history in wilderness areas. (237) In March 1998, reintroduction of Mexican gray wolves began with eleven wolves in New Mexico's Blue Range Wilderness Area. (238) Thirty-six gray wolves were also reintroduced to Idaho's Frank Church-River of No Return Wilderness in 1995 and 1996. (239) Wolf management currently occurs in some wilderness areas. (240) In 2010, an Idaho district court upheld the use of helicopters to dart and collar gray wolves in wilderness areas. (241) Some scientists have asked whether wolves should be reintroduced in Isle Royale National Park, a federally designated wilderness area in Lake Superior, Michigan. (242)

B. Management for Realignment May Successfully Facilitate Changes

Resistance and resilience are not always long term solutions. (243) Both will become more difficult as climate pressures increase and management priorities change. (244) Long term climate change impacts will likely be so great that many resistance and resilience strategies "will fail, perhaps catastrophically." (245) Because changes may "exceed physical and biological thresholds" and result in undesirable outcomes--including species mortality or extinctions--it is important for managers to have approaches that accommodate, rather than resist, change. (246)

Climate change may therefore require responsive management strategies that work "directly with climate-induced changes to assist transitions to future states." (247) Long term biodiversity maintenance and preservation of key ecosystem functions may be most successful if wilderness managers "actively facilitate change." (248) These strategies may be necessary where the ecosystems that existed under the historic "baseline" are no longer adapted to the climatic patterns anticipated in the next century. (249) For example, where species are unable to migrate fast enough to keep up with shifts in suitable habitat, assisted migration--the physical moving of species from native habitat to more suitable habitat--may be desirable, especially where extinction is the alternative. (250) Likewise, for plant species, some authors believe that it may be appropriate to plant novel species mixes better adapted to future conditions post disturbance, or purposefully mix genotypes more adapted to projected future conditions. (251)

Assisted migration, also known as translocation, has received recent attention in both scientific and legal literature. (252) Techniques for translocation have been developed for numerous plant and animal species, (253) and some studies have begun to consider translocation for climate change adaptation purposes in wilderness areas. (254) For example, one study suggests that assisted migration within and around the BWCAW may be desirable for climate change adaptation. (205)

There is at least one example of a wilderness area assisted migration project, though the purpose was not climate change adaptation. In 2006, the Forest Service approved a project in Montana's Bob Marshall Wilderness that would assist the migration of "genetically pure westslope cutthroat trout" to twenty formerly fishless lakes. (256) The fish would otherwise be unable to migrate to these lakes, which "offer a refuge from other fish that hybridize with westslope cutthroat and pollute them genetically." (257) This example illustrates the potential to use techniques like assisted migration in wilderness areas for climate change adaptation, "despite the degree to which they seem like 'playing God.'" (258)

The outcomes of assisted migration are especially uncertain. (259) As compared to strategies designed to increase connectivity or remove ecosystem stressors (e.g., dam removal and restoration of riparian vegetation), translocations are far more unpredictable. (260) This is due to challenges associated with forecasting optimal future habitat and "significant gaps" in our knowledge about the biology of many rare species. (261) While resilience and restoration strategies are likely to be "more robust to the uncertainties of climate change," strategies like translocation are more dependent on the particular nature of climate change and will not be beneficial to species throughout the full range of future scenarios. (262) "Strategies with highly uncertain outcomes" necessarily "depend on the specific nature of future climatic changes [and] will be most successful if they include monitoring and prescriptions for alternative actions." (263)

Managers may also intentionally plant species with genotypes adapted to expected new conditions after disturbances like wildfire. (264) For example, based on climate conditions, managers might plant trees that come from a lower elevation seed zone at a higher elevation. The BLM and Forest Service have pursued this strategy in Southwestern Colorado. (265) To respond to regional climate change, (266) these agencies developed a drought vulnerability model, an alpine monitoring program, and created projections of future temperatures and precipitation patterns for the management unit. (267) The agencies will use this new information to help land managers respond to climate change by planting different tree species that are better adapted to fire, drought, and pests. (268) This type of information may also assist wilderness managers in planning for higher elevation insect or disease outbreaks and anticipate species loss and forest mortality events. (269) However, as one study warns, expanding seed zone sizes or relaxing genetic transfer rules "is experimental by design [and] should be undertaken cautiously." (270)

In grassland ecosystems, there are also examples of realignment approaches used to exclude invasion by nonnative plants. In one grassland revegetation project at the base of Colorado's Front Range, managers revegetated a gravel pit with an "uncertain climate seed mix" of native grasses whose moisture demands spanned a 500 mm gradient. (271) The plant community that emerged, dominated by a mixed grass prairie species capable of surviving a three year drought, differed from the tallgrass species mix that might have otherwise emerged. It appears largely resistant to normative plant invasions. (272)
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Title Annotation:I. Introduction through III. Possible Climate Change Adaptation Actions in Wilderness Areas B. Management for Realignment May Successfully Facilitate Changes, p. 623-658; The Wilderness Act at 50
Author:Long, Elisabeth; Biber, Eric
Publication:Environmental Law
Date:Mar 22, 2014
Words:8626
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