War of words

Tester bill may rewrite the book on wilderness



Sen. Jon Tester's 84-page Forest Jobs and Recreation Act doesn't exactly make for scintillating summer reading. But environmental groups who have pored over the proposal warn that its "incredibly sloppy" language may set a dangerous precedent for what's permissible in wilderness areas, and federal employees have confirmed that some provisions read unlike anything they've ever seen before—and not necessarily in a good way. The concern is that the bill, as currently written, will change the very definition of wilderness.

Critics of Sen. Jon Tester’s Forest Jobs and Recreation Act have called the bill’s language “incredibly sloppy,” while U.S. Forest Service - personnel have admitted never before seeing the kind of wording included in Tester’s proposal. If passed, the bill could redefine what’s permissible in wilderness areas.
  • Critics of Sen. Jon Tester’s Forest Jobs and Recreation Act have called the bill’s language “incredibly sloppy,” while U.S. Forest Servicepersonnel have admitted never before seeing the kind of wording included in Tester’s proposal. If passed, the bill could redefine what’s permissible in wilderness areas.

"Once these provisions get into wilderness bills, they often get replicated in future bills," says George Nickas, executive director of Wilderness Watch, a Missoula-based nonprofit dedicated to protecting federal wilderness. "You see that in Tester's bill, where he's included provisions that have shown up in other recent bills. All these bills are now becoming a race to the bottom. They never put in any provisions that strengthen wilderness protections. Each one seems to be allowing more and more nonconforming activities so that wilderness becomes less unique, less protected and less special."

The most glaring example in Tester's bill allows military helicopters to land inside the Highlands, a portion of the Beaverhead-Deerlodge National Forest slated for wilderness designation. Tester included the provision in order to honor an existing agreement with Peak Enterprises, a private company in Butte that drops soldiers in the area as part of a mountain warfare training exercise three-to-four times per year.

Allison Stewart, national press officer for the U.S. Forest Service, incorrectly told the Independent three weeks ago that similar provisions existed in other wilderness areas throughout the country. The Independent found no such examples.

"I misspoke," says Stewart. "I was thinking of low-level overflights. I am not aware of any landings, and I do not believe there is any legislation that authorizes it."

Stewart's misunderstanding is indicative of how subtle wording in the bill may cause confusion. Low-level overflights, or military aircraft using airspace above wilderness, are commonly allowed in wilderness bills. But landings inside a designated wilderness area would be a first.

"Forget about the legality or the illegality or the conflict with the original Wilderness Act," says Nickas. "It's really hard for me to envision anything that's more contrary to the idea of wilderness, to these sacred places where nature is in charge, than overlaying military training in these places."

Aaron Murphy, a spokesperson for Tester, says the senator's aware that no other bill allows for military landings, but stresses that the training exercises are infrequent. He adds the provision is an example of Tester's willingness to work with all Montanans to craft the proposal.

"Jon wrote this bill because he—like many Montanans—knows that the old way of managing our forests isn't working," says Murphy. "He knows that in order for good forest policy legislation to move forward, it needs to be created from the bottom up."

Good policy or not, the Forest Service still expressed surprise with how Tester's bill addressed typically boilerplate wilderness provisions. In a portion of the bill covering the proposed Snowcrest Wilderness Area, one passage allows specifically for "historical motorized access to trail sheep."

"I'm not familiar with that specific term," says Terry Knupp, a Washington, D.C.-based wilderness program manager with the Forest Service, when asked whether she's heard of "historical motorized access to trail sheep" before. "There are several pieces of legislation that have some accommodation for historical grazing practices in them, but it's typically listed in a general way. What you're asking me, I'm not sure what that means, as written. I've never heard of something like that before."

Krupp goes on to explain that most legislation references detailed guidelines on grazing practices provided in a 1990 House report. Those guidelines read, in part, "Where practical alternatives do not exist, maintenance or other activities may be accomplished through the occasional use of motorized equipment..."

Critics believe Tester's Snowcrest section doesn't account for "practical alternatives" and, when it broadly preserves motorized access "for other ranching activities," it opens the door to more than just "occasional use."

"What does that mean?" asks Nickas. "Does that mean a rancher could come along and say that he's been driving all over hell just to count his cows and listen to them bawl? The point is, it's not specific."

Tester's office admits the language is "unique," but says the bill simply reinforces the continuation of grazing in the Snowcrest and adapts "to Montana's historic needs."

"Jon is not concerned about this provision being expanded beyond sheep trailing," says Murphy.

That's little consolation for those worried about some of the bill's squishy language. With Tester touting the bill as "a model for the West," as he recently told the Helena Independent Record, precise wording becomes a priority.

"One of the problems with the bill, in general, is that it's incredibly sloppy," says Nickas. "Having been involved in a lot of litigation and appeals and other things involving the Wilderness Act, words matter. Language matters a lot. The sloppy language in Tester's bill is really problematic in a lot of places."

Tester's office does concede that there is still time to make changes. Murphy calls the bill a "work in progress" and that amendments can be made.

"Many legal experts have reviewed the bill," he says, "and have the best intentions to make this language uniquely fit Montana."

The question remains whether the bill fits the traditional definition of congressionally designated wilderness

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