U.S. GOVERNMENT PRINTING OFFICE

41–004 cc WASHINGTON : 1997

IMPLEMENTATION OF WILDERNESS ACT

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC

LANDS

AND THE

SUBCOMMITTEE ON FOREST AND FOREST HEALTH

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

EXPLORING THE IMPLEMENTATION OF THE 1964 WILDERNESS ACT

BY THE FOREST SERVICE, THE BUREAU OF LAND MANAGEMENT,

AND THE NATIONAL PARK SERVICE

APRIL 15, 1997—WASHINGTON, DC

Serial No. 105–13

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

NICK LAMPSON, Texas

RON KIND, Wisconsin

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS

JAMES V. HANSEN, Utah, Chairman

ELTON, GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

WAYNE T. GILCHREST, Maryland

RICHARD W. POMBO, California

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

JOHN B. SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

RICK HILL, Montana

JIM GIBBONS, Nevada

ENI F.H. FALEOMAVAEGA, American

Samoa

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

FRANK PALLONE, JR., New Jersey

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

WILLIAM D. DELAHUNT, Massachusetts

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

ALLEN FREEMYER, Counsel

STEVE HODAPP, Professional Staff

LIZ BIRNBAUM, Democratic Counsel
Page

III

SUBCOMMITTEE ON FOREST AND FOREST HEALTH

HELEN CHENOWETH, Idaho, Chairman

JAMES V. HANSEN, Utah

JOHN T. DOOLITTLE, California

GEORGE P. RADANOVICH, California

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

MAURICE D. HINCHEY, New York

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

————— —————

————— —————

————— —————

BILL SIMMONS, Staff Director

ANNE HEISSENBUTTEL, Legislative Staff

LIZ BIRNBAUM, Democratic Counsel

(V)

C O N T E N T S

Page

Hearing held April 15, 1997 ................................................................................... 1

Statements of Members:

Chenoweth, Hon. Helen, a U.S. Representative from Idaho ......................... 2

Grams, Hon. Rod, a U.S. Senator from Minnesota ........................................ 6

Hansen, Hon. James, a U.S. Representative from Utah ............................... 1

Kildee, Hon. Dale, a U.S. Representative from Michigan ............................. 3

Skeen, Hon. Joe, a U.S. Representative from New Mexico ........................... 4

Vento, Hon. Bruce F., a U.S. Representative from Minnesota ..................... 8

Statements of witnesses:

Access Fund, a Climbers Advocacy Organization (prepared statement) ..... 204

Baumunk, Edward T., co-owner, BBJ Mining ............................................... 56

Prepared statement ................................................................................... 164

Brown, David, Executive Director, American Outdoors ................................ 55

Prepared statement ................................................................................... 154

Conti, Richard A., Jr., Waterhole Coordinator, Society for the Conservation of Bighorn Sheep ................................................................................... 53

Prepared statement ................................................................................... 147

Hillier, Gerald, San Bernardino County ......................................................... 56

Indehar, Todd, President, Conservationists with Common Sense ............... 51

Prepared statement ................................................................................... 133

Knuffke, Darrell, Western Regional Director, The Wilderness Society ....... 71

Prepared statement ................................................................................... 189

La Tourell, Robert, Jr., President, Ely Outfitters Association (prepared

statement) ...................................................................................................... 198

Nickas, George, policy coordinator, Wilderness Watch ................................. 70

Prepared statement ................................................................................... 185

Nugent, Ted, President and founder, Ted Nugent’s United Sportsmen

of America, Jackson, MI ............................................................................... 9

Pendley, Perry, Esq. ......................................................................................... 25

Stupak-Thrall, Kathy, President, Crooked Lake North Shore Association,

Watersmeet, MI ............................................................................................ 17

Prepared statement ................................................................................... 88

Unser, Bobby, professional race car driver, Albuquerque, NM .................... 11

Wallop, Malcolm (former Senator), Chairman, Frontiers of Freedom Institute, Arlington, VA ....................................................................................... 15

Prepared statement ................................................................................... 84

Additional material supplied:

Excerpts from Forest Service Handbook ........................................................ 125

Experience of Ed Pavek, dated March 28, 1997 ............................................ 211

Final EIS, Land and Resources Management Plan, Ottawa National Forest ................................................................................................................... 102

Final Environmental Statement, Roadless Area Review and Evaluation ... 114

Guides say Uinta wilds plan targets them ..................................................... 159

Saddle Peak Mountains Wilderness Study Area ........................................... 169

The flag war continues ..................................................................................... 213

The luckiest man in the BWCAW ................................................................... 212

Wilderness Accessibility for People with Disabilities (report) ...................... 193

Wilderness areas that have been ‘‘undesignated’’ .......................................... 129

Communications received:

Barnier, Jo (DOAg): Letter of December 18, 1996, to Friends ..................... 202

Jackson, A.G.: Letter of January 24, 1997, to Richard Martin .................... 182

Mackey, Craig W.: Letter of April 12, 1996, to Bob Yearout (NPS) ............. 160
Page

VI

Communications received—Continued

Martin, Richard H. (DOI):

Letter dated January 22, 1997, to A.G. Jackson .................................... 181

Letter dated February 11, 1997, to A.G. Jackson ................................... 183

Unser, Robert W.: Letter to Members of Congress and Committee ............. 81
(1)

IMPLEMENTATION OF THE 1964 WILDERNESS

ACT

TUESDAY, APRIL 15, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NA- TIONAL PARKS AND PUBLIC LANDS, AND SUBCOMMITTEE

ON FOREST AND FOREST HEALTH, COMMITTEE ON RE- SOURCES, Washington, DC.

The Subcommittee met, pursuant to call, at 10:06 a.m. in room

1324, Longworth House Office Building, Hon. James V. Hansen

(Chairman of the Subcommittee) presiding.

STATEMENT OF HON. JAMES HANSEN, A U.S. REPRESENTATIVE FROM UTAH; AND CHAIRMAN, SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS

Mr. HANSEN. The committee will come to order.

The Subcommittee on National Parks and Public Lands and the

Subcommittee on Forests and Forest Health convene this hearing

to explore the implementation of the 1964 Wilderness Act, by the

Forest Service, the Bureau of Land Management and the National

Park Service. I welcome Chairman Chenoweth and appreciate her

work on this issue and look forward to the testimony today.

The 1964 Wilderness Act established the National Wilderness

Preservation System which ‘‘shall be administered for the use and

enjoyment of the American people,’’ section 2(a) of the 1964 Wilderness Act. In their zeal to protect and conserve our national heritage, our Federal national land management agencies forget about

the fact these lands were set aside for the American people. These

areas are not museums where we can only look and not touch.

They are for the ‘‘gathering and dissemination of information regarding their use and enjoyment as wilderness.’’

The Federal Government currently manages over 104 million

acres of wilderness in this country. Within these vast areas are

preserved the greatest and most remote places on this Earth. As

a veteran on this committee, I am proud to have played a role in

designating millions of these acres in Utah, Montana, Colorado, Arizona, California and many other States. The Wilderness Act and

its original intentions continue to be important tools in protecting

our Federal lands, but we must remember that people are just as

important to this equation.

We will hear testimony today which should amaze the members

of this committee. We will hear of people being punished for trying

to save their own lives, of property rights being violated, of Boy

Scouts being excluded from wilderness areas, of wildlife being al-
2

lowed to perish and people simply being excluded from the ‘‘use

and enjoyment’’ of our wilderness areas.

We have a number of witnesses today, and I would like to ask

we keep our opening statements brief so we might move on to the

witnesses and have an opportunity to explore the many issues before us. I welcome our witnesses and again appreciate the work of

Chairman Chenoweth on this hearing and look forward to the testimony.

I will now turn to the Chairman of the Subcommittee on Forests

and Forest Health, the gentlewoman from Idaho.

STATEMENT OF HON HELEN CHENOWETH, A U.S. REPRESENTATIVE FROM IDAHO; AND CHAIRMAN, SUBCOMMITTEE ON

FOREST AND FOREST HEALTH

Mrs. CHENOWETH. Thank you, very much, Mr. Chairman, and I

am pleased to be conducting this hearing with Chairman Jim Hansen. I want to thank him for his hard work on this issue and I appreciate having the opportunity to work with him on this hearing.

The Wilderness Act of 1964 is one of our principal environmental

laws. Quoting from the Act, the purpose of the Wilderness Act is

‘‘to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.’’

Wilderness was created to allow American citizens the ability to

enjoy nature in its purest sense. It has been created to ensure that

future generations have the same opportunity to enjoy the beauty

of the land that we do today. However, several incidents have been

brought to the committee’s attention that bring into question

whether our land management agencies are implementing the Wilderness Act properly.

Today, we will have the opportunity to hear testimony from a

number of citizens that have been harassed by our land management agencies in wilderness areas. Many of you are familiar with

the case of the 14-year-old Boy Scout who was separated from his

troop in the Pecos Wilderness area in New Mexico. After a helicopter located the boy, the Forest Service refused to permit the helicopter to land to bring him to safety.

And yet, in my State of Idaho, some ranch hands notified the

rangers on the Boise National Forest that a gray wolf had been injured about 4 miles inside the Frank Church River of No Return

Wilderness. The recovery biologist for the U.S. Fish and Wildlife

Service determined that a helicopter would be needed to transport

the wolf to safety. Permission was sought from and granted without question by the Forest Service to allow the helicopter to land

and transport the wolf.

I do not question the seriousness of the injury of the wolf, but

I do question the wisdom of an agency that allows for a helicopter

to enter a wilderness area for a wolf, but refuses on the other hand

to allow a helicopter to land to bring a young man to safety. As we

will hear today, the implementation of the Wilderness Act by our

Federal land management agencies is fraught with many similar

stories.

What happened to common sense? What happened to compassion

in our Federal land management agencies? Has the Wilderness Act

gone wild? I say that the Act has not, but from the documentation
3

that we have received, the Federal agencies’ implementation warrants much attention and continued oversight. It is my intention

to introduce legislation that will guarantee that our Federal agencies will act—will not have the ability to harass American citizens

that are simply enjoying the beauty of our wilderness areas.

Wilderness controversies are not confined to the West. I am particularly interested in hearing the testimony of Kathy StupakThrall of Michigan to learn how the Forest Service interprets the

legal term ‘‘valid existing rights’’ and the rights of the State of

Michigan to control water within its borders.

I believe that as the public begins to understand the inflexible

nature of how our Federal agencies implement the Wilderness Act,

and as the public begins to learn of the horror stories, some of

which we will hear today, we will be able to inject some common

sense into the wilderness debate.

I want to be clear, I support the goals of the Wilderness Act. Preserving pristine areas for our children is a laudable purpose, but

when the Act has been administered in such a way that human life

and limb are at risk, I have to question whether we have gone too

far. When property is taken without compensation, I have to ask

whether that is the intent of the 1964 Act; and when a large segment of our population is unable to access wilderness, I am forced

to wonder just why we are blocking off these beautiful lands to so

many of our citizens.

I am hopeful that this hearing will help answer some of these

questions. That being said, I am pleased to be conducting these

hearings with Chairman Hansen and want to welcome our witnesses.

I look forward to receiving your testimony.

Mr. HANSEN. Thank you. We appreciate the testimony.

The gentleman from Michigan, Mr. Kildee, is sitting in for the

gentleman from American Samoa, Mr. Faleomavaego, and we will

now turn to Mr. Kildee.

STATEMENT OF HON DALE E. KILDEE, A U.S.

REPRESENTATIVE FROM MICHIGAN

Mr. KILDEE. Thank you, Mr. Chairman, and Madam Chair.

Thank you for holding this hearing today.

I would first like to welcome all of our witnesses here today who

are testifying, particularly Mr. Ted Nugent and Ms. Kathy StupakThrall, both from my home State of Michigan.

Mr. Nugent, I would like you to know many members of my staff,

along with myself, are big fans of yours; and although our opinion

may differ in how to manage our Nation’s wilderness areas, we will

probably find some areas of agreement, too. I appreciate your deep

interest in this issue and your presence here today.

I have been a member of the committee for the past 15 years,

and in that time, I have always believed we need to manage our

public lands in a way that benefits the American people. We live

in a country where people have diverse interests, tastes and beliefs;

that is why I have always supported the concept of multiple use

in the management of our Nation’s public lands.

I have supported timber harvesting in our national forests. It is

important to have the economy and the health of the forest in
4

mind, and I have advocated for a wide range of recreational activities on the forest, including hunting, fishing, snowmobiling, camping and hiking.

It is my belief the multiple-use philosophy, a law that led me to

write the Michigan Wilderness Act, a law that set aside 92,000

acres of pristine forestland in Michigan so they can be managed

much as they came from the hand of God.

In fact, this year marks, Mr. Chairman and Madam Chair, the

tenth anniversary signing of the Michigan Wilderness Act, and in

10 years, these areas have become permanently protected, nothing

has changed. And that is the beauty of the wilderness law: Nothing

man has done has changed the lands.

In Michigan, there are 2.7 million acres of national forestland in

Michigan’s three national forests. Of that, only 92,000 acres are

designated as wilderness areas. That means only 3 percent of the

national forest land in Michigan is protected as wilderness area.

I know not everyone is going to visit a wilderness area, but it is

nice to know in today’s high-paced technological society, there will

always be areas people can ski, snowshoe, or paddle a canoe in an

absolutely motorless area. This is all possible because in 1964 Congress had the foresight and wisdom to understand that some parts

of a forest are too precious to develop.

I know your interest in the outdoors, Mr. Nugent, and in Michigan, we have a long and very proud history, tradition of hunting

and fishing. It is a tradition that my family has enjoyed for five

generations in Michigan. In fact, my two sons, who are now lieutenants of the United States Army, are avid hunters and fishermen. My own son got hooked. The first 15 minutes of his first day

of deer hunting in Michigan, he bagged a buck; and that has

hooked him ever since, and he is a regular hunter. That is why

when we wrote the Michigan Wilderness Act; we allowed hunting

and fishing in the wilderness areas. We let that be regulated by the

State ANR.

Wilderness areas allow for a variety of public uses of the land,

ecological safety of the area. Many of our Nation’s wilderness areas

are really the crown jewels of our national patrimony. I believe we

should be thanking our public land managers for the outstanding

job they have done in protecting these lands, and I have been up

there visiting the lands, visiting the managers, visiting the people

up there. I have had two or three hearings up there on the wilderness areas. I only wish those managers had been invited to testify

today so I could thank them in person.

And thank you, Madam Chair, Mr. Chairman. I look forward to

the hearing today.

Mr. HANSEN. I appreciate the comments of the gentleman from

Michigan.

We will proceed in this manner. The gentleman from New Mexico, and we will ask Mr. Skeen to join us on the dais, and then we

will go to our first panel.

STATEMENT OF THE HON. JOE SKEEN, A U.S.

REPRESENTATIVE FROM NEW MEXICO

Mr. SKEEN. Thank you very much, and I want to thank my good

friends for holding this important hearing on the current policies
5

regarding management of our Nation’s wilderness area areas, but

I especially want to thank you for allowing me to come here today

to pay my respects to an outstanding citizen of New Mexico, and

that is Bobby Unser.

Bobby Unser and his family have become a living symbol of auto

racing in America today. This three-time winner of the most famous race in America, the Indianapolis 500, 14-time winner of the

Pikes Peak Hill Climb and 35-time winner of Indy Car races is

today one of the premier spokespersons for auto racing in America.

Millions of Americans know him from his career as a race broadcast analyst for ABC, and his background has given him the tremendous insight he passes on to viewers across America who have

never been behind the wheel of a car going 200 miles an hour, except on the 14th Street Bridge.

Bobby has never forgotten his hometown of Albuquerque and, we

will never forget him or his family; he has been a credit to his city,

his family; and we are proud the Land of Enchantment is his

home.

I only wish this hearing was focusing on honoring Bobby and the

great sport of auto racing.

I want to remind people, the first wilderness in America was created in New Mexico. The Wilderness Act was a product of Senator

Clinton Anderson of New Mexico. So suffice it to say, we know a

little about wilderness in our State, and I will let Bobby tell you

about his situation today.

What I want to relay to this committee is my concern that government agencies are spinning out of control. The Bobby Unser

story you will hear today should never have happened. The other

stories you will hear today should never have happened. The selective enforcement and prosecution of our resource laws are not what

Senator Anderson intended or envisioned.

I will tell you what upsets me even more is when the cases are

brought to public attention, then a curious thing happens. All of a

sudden, mysterious stories start to appear in the news media questioning citizens that have been wronged by the government.

I don’t understand why responsible people in the Forest Service

or other agencies let situations like this get out of hand. Is that

what Reinventing Government is all about? Just ask yourself, if

this can happen to Bobby Unser, this can also happen to anyone

out there. We basically are at the mercy of local bureaucrats. It is

no wonder people have such a low opinion of government and its

leaders.

Perhaps we have reached the dumbing down of government, not

the downsizing of government. I sincerely hope that is not the case.

Mr. Schiff asked me to pass along his regrets for not being here

today. I am certain he would have had many good thoughts to add.

So thank you, Mr. Chairman and Mrs. Chenoweth.

Mr. HANSEN. Thank you, Mr. Skeen.

Joe Skeen has been very active in the Western Caucus and taking a very big interest in the issues in front of us.

Would you like to join us?

Mr. SKEEN. I will join you.

Mr. HANSEN. Rod Grams just walked in, Rod from Minnesota.

We are grateful to have you. He used to be a member of our body
6

until he defected and went to the House of Lords. And, Rod, we

would like to turn to you. We are honored that you would join us.

STATEMENT OF THE HON. ROD GRAMS, A U. S. SENATOR FROM

MINNESOTA

Senator GRAMS. Thank you, Mr. Chairman, Chairman

Chenoweth and other distinguished members of this panel. I appreciate the time to come and talk to you this morning. I commend

you for holding this very important oversight hearing and appreciate the opportunity to speak on wilderness before the panel

today.

Wilderness protection and management is often perceived as a

Western lands matter, but this issue is important within my home

State of Minnesota. Nearly every Minnesotan, including myself, is

proud of our State’s pristine wilderness area.

In both 1964 and 1978, Congress designated portions of northeastern Minnesota as one of our nation’s only lakeland-based Federal wilderness areas. First envisioned by Hubert Humphrey,

whom many regard as the father of the wilderness system, this was

to be a unique wilderness area, allowing for legitimate multiple

recreational uses.

Specifically in 1964, when Senator Humphrey first included the

Boundary Waters as part of the National Wilderness System, he

made a promise to the people of northeastern Minnesota, saying,

quote, ‘‘The wilderness bill will not ban motorboats.’’ It is safe to

say, without that commitment, this region would not be a wilderness area today.

In 1978, additional legislation was passed, making further enhancements such as a ban on logging and mining. The 1978 law

also limited recreational uses. For instance, motorboat users could

only enjoy 18 of the area’s 1,078 lakes. Today, we recognize this

one million acres as the Boundary Waters Canoe Area Wilderness.

Like many laws passed by Congress, the 1978 legislation was

well intended and had unforeseen consequences. Indeed, many segments within the law were justified, but other provisions imposed

significant economic and social costs in neighboring northeastern

Minnesota.

The debate over the 1978 law has become a symbol of the difference between what the role of government should be and what

it has become with many in northeastern Minnesota pointing to the

ongoing struggle to restore the rights of citizens to have reasonable

input and access into the cherished Boundary Waters.

Since 1978, the people have been subjected to ever-increasing forest regulation in the Boundary Waters. Many in the area have seen

their customs, cultures and traditions uprooted by Federal regulations which have shut them out of the land they have responsibly

cared for in the past and now continue to call home.

Definition changes and bans are just some of the administrative

changes that have twisted the original intent of the Boundary Waters legislation. Many point to what they believe are unfair permit

reductions, which effectively keep them out of the few motorized

lakes in the Boundary Waters. Even the Forest Service admits the

permit system needs some simplification. But even if the permit
7

system was reformed, it would not make a difference for those who

are less physically fortunate.

Perhaps the most egregious example of how the 1978 law has

been turned on its head is the court-mandated closure of three motorized portages which allowed the disabled, the elderly and those

with young families to enter into the wilderness area. Under the

legalistic trickery, radical environmentalists deceived the Congress

and the people of northern Minnesota into believing these portages

which connect motorized lakes would stay open. Unfortunately,

that was not the case after 1993, when the Federal Court of Appeals ruled in favor of shutting out those less fortunate.

Now the Forest Service justifies the Court’s action, saying accessibility is not being denied, but you can’t tell that to those who can

no longer access our public lands. For example, John Novak, a veteran from Ely, Minnesota, wrote me about his frustration with the

closing of the portage, saying, I quote, ‘‘I was good enough to go

into the armed services for our country for 3 years back in the

1940’s, but now that I am disabled, I am not good enough to get

into the Boundary Waters.’’

Another letter from a man named Joe Madden in Virginia, Minnesota, stated, ‘‘I went to visit the Boundary Waters with my

grandfather. We wanted to go fishing in Trout Lake, but we

couldn’t get there because we could not get my grandfather’s boat

over the portage. Please open it up so Grandfather and I can go

fishing.’’ A simple request.

The culmination of all these restrictions has had a dramatic impact on the nearby community of Ely, Minnesota. During one of the

Congressional hearings on this issue, the mayor of Ely spoke on

how class enrollments are down 50 percent since 1978. Minnesota

State Senator, Doug Johnson, who represents this area, stated how

massive amounts of State money have helped prop up the Ely community.

So, my distinguished colleagues, there can be heavy costs to wilderness, especially to those who live nearby, and that shouldn’t be

the case. And for this reason, Congressman Oberstar, the dean of

the Minnesota delegation, and I have introduced legislation in the

last Congress to help restore the commitments made in 1964 and

in 1978 and to give nearby communities a reasonable and legitimate voice in the Federal management process.

While our bill was effectively killed in the waning days of the

last Congress, I look forward to working once again on behalf of

legislation that will be aimed at restoring past recreational commitments.

I and many others have waited patiently while the mediation

team struggled to find a solution to the Minnesota wilderness question, and while this effort failed to resolve the major items of disagreement, the time to act will be soon in order to give the same

thing every American wants from our government—that is, accountability to the people.

Accountability means balancing the protection of our pristine wilderness, but balancing with the rights of people to legitimately

enjoy natural resources, restoring the promises made in the past,

and forming a partnership with the people to ensure those promises will be honored in the future. And it also means keeping the
8

Federal Government in check to guarantee it works for the best interests of the people and not just for a select few. And above all,

it means keeping our public lands truly available to the public.

We who love the Boundary Waters canoe area are working toward those goals. I strongly believe those goals are worthy of every

Federal wilderness area, and I would urge this panel to keep them

in mind as it pursues its oversight responsibilities and its legislative actions.

That concludes my testimony, so please save any of the hard

questions for those with me here today, who will be testifying later

on the issue. And again I want to commend you for your leadership

and your past help on this issue, and I look forward to working

with you once again in the future on this very important legislation.

Mr. HANSEN. We appreciate your spending time with us.

We will turn to our first panel.

Mr. VENTO. Mr. Chairman, is the Senator not subject to questioning?

Mr. HANSEN. The Ranking Member and I agreed prior to this we

would just have opening remarks from the three of us and those

folks.

Mr. VENTO. If I could have unanimous consent to speak for 2

minutes out of order.

Mr. HANSEN. Is there objection?

We are really in a hurry, and I have to get to an Ethics meeting,

so I would appreciate it if everyone would hold their questions for

now. I will give the gentleman 2 minutes.

STATEMENT OF HON. BRUCE F. VENTO, A U.S.

REPRESENTATIVE FROM MINNESOTA

Mr. VENTO. I just wanted to acknowledge, I wasn’t aware that

my colleague from Minnesota was going to be here to testify this

morning. I wanted to welcome him. I was surprised to see him

when I walked in. I would have been here in time to hear your entire statement, Senator, had I known.

But I would just like to point out, this hearing is one I have an

intense interest in and helped write the 1978 law; and indeed, as

the Senator knows, while there may only be 18 lakes, it is over 20

percent of the water surface. In fact, 25 percent that is open to motorized use, and while certainly the character of those that are able

to use the portages has changed in terms of size of the boats,

maybe, that can move across it, all the permits for moving boats

are going, so there are boats going across that portage.

And I would further point out, the 1978 law has been successful

in terms of the fact visitor days have increased from something like

1 million visitor days a year in the Boundary Waters to something

like 1.6 million. It is the most extensively used wilderness in the

eastern United States and obviously brings up all types of issues

in terms of motorized use and how we manage the wilderness. In

fact, most wildernesses do not have a permit system; we put that

in place because we understood this important resource could be

damaged.

I hope meditation works. I hope I can work with the Senator on

trying to resolve some of the outstanding differences, but I can as-
9

sure him we appreciate and respect his points of view, although I

think there are different points of view within our State, which obviously are strongly allied against some of the proposed changes

that were made.

So hopefully we can resolve it. I think mediation has helped. It

hasn’t resolved it, but it has helped; and I thank the Senator for

his presence and the Chairman for the opportunity to speak for 2

minutes.

Mr. HANSEN. Thank you. We appreciate the gentleman’s comment, and we move on to the purpose of this hearing.

We have Bobby Unser with us, a professional race car driver

from New Mexico; Ted Nugent, founder of Ted Nugent United

Sportsmen of America, from Michigan; and we are honored to have

former Senator Malcolm Wallop, Chairman of the Frontiers of

Freedom Institute from Arlington, Virginia; and Kathy StupakThrall, from Crooked Lake North Shore Association. We are grateful to all of you for being here.

And we also have Perry Pendley with us, and so we will—I

guess, if it is all right, we will start with you, Mr. Nugent, and we

will go right across. It is going to be a full hearing today, so we

don’t want to be tough on time, but if most of you could keep it

close to 5 minutes, I would appreciate it. And if you go over a little

bit, I understand.

This is the first panel. We are grateful to have you here. We

know of your many accomplishments, and we appreciate you taking

the time to come and spend some time with us.

So we are going to put that light on, and it will go green, yellow,

and red and when it gets red, if you can wrap up, we would like

you to wrap up. I don’t know how that works with race car drivers,

but I think the green light means go, and if we put a checkered

light up, you will know you won.

So Mr. Nugent, we will start with you.

STATEMENT OF TED NUGENT, PRESIDENT AND FOUNDER,

TED NUGENT’S UNITED SPORTSMEN OF AMERICA, JACKSON,

MICHIGAN

Mr. NUGENT. Thank you very much, Chairmen Hansen and

Chenoweth and my good neighbor, Mr. Kildee, in Michigan. It a

pleasure to make a statement before you to examine the implementation of the 1964 Wilderness Act on Forest Service and Bureau of

Land Management lands.

I come before you today as a father first, an American citizen,

a proud hunter and the founder of Ted Nugent, United Sportsmen

of America, with over 30,000 members since 1989. I am also on the

National Rifle Association’s Board of Directors, and I am the invited guest and a member of Native American Fish and Wildlife

Service and guest of the Lakota Indians and the Assiniboine and

Gravan Indian nations as a DARE officer teaching children that

got high on my adventure beyond the pavement instead of the poisons that oftentimes represent an alternative to them.

Although it is certainly a pleasure to be here today, far more importantly, I consider it my duty to represent the hearts and souls

of working-hard, playing-hard families across America, who I am

privileged to connect with, over the 30 years of touring and meet-
10

ing face to face at personal campfires and round table think tanks

about our great culture of connecting with mother Earth, via our

proud culture of responsible resource stewardship in our hunting,

fishing, trapping, multiuse great outdoors life-style and heritage

that is alive and well and growing in many areas of America today.

It is these mothers and fathers and sons and daughters who respond to a glowing duty deep in our hearts, via hands-on participation, shoulder to shoulder with Mother Nature as an inextricable

team player. It is the pulse of the truly environmentally aware

community of this Nation that nature without man is unnatural,

and the Wilderness Act is supposed to be an outline for truthful

cause-and-effect accountability, safeguarding the precious

wildlands from abuse, disregard in vandalism and the worst curse

of mankind, disassociation.

It is a growing concern that ignorance, based on willful citified

assumptions will extract caring people from the very reasoning and

monitoring function that wild access facilitates. It is no more abusive or unnatural for a family to walk a designated trail in pure

wilderness settings in modern, state-of-the-art hunting boots than

for migrating elk to cut trails in their instinctual activities. It is

no more offensive for a bull elk to trash young trees and wallow

violently, disrupting flora and fauna during his annual rutting actions than for a family to construct a small camp using aluminum

and Gortex supplies.

These wilderness relationships are powerful and essential for

families throughout the land, who I am again privileged to have a

dialog with on a daily basis throughout my career, who know that

the spirit, body and soul are renewed with every physics of spirituality and adventure beyond the pavement. The pulse I get in my

hundreds of meetings every year—I did over 100 concerts last year

and 179 concerts in 1995—and each night includes a meeting with

my membership and other conversation groups across the Nation.

Members of Ted Nugent, United Sportsmen of America, and as well

as thousands upon thousands of voices via my radio, television,

phone, fax, e-mail correspondence, as I did this morning from

Washington, D.C., from the Heritage Foundation, taking phone

calls across Michigan, that reflect hurt that a Federal Government

would deny these rights, angered that our heritage erodes accordingly, and fear that the land of the free and the home of the brave

may not be.

As Kenya reawakens in Africa to the essential monitoring process of human utility of their resources, they are now reimplementing hunting practices, because they saw that disassociating

the people from those elephants and rhinos and antelope caused

the demise of those very populations they abandoned, via nonmanagement.

I urge all who care about the long overdue upgrade of environmental awareness tear-down and assist in tearing down the walls

to wilderness in North America, welcoming We the People, encouraging young people to invest in the future of outdoor relationships,

a sound and harmonious relationship with Mother Nature and our

precious shared habitat with all living things for reasonable, beneficial utility. Even our beloved national parks management must

wake up to the original Native Americans’ Great Spirit and once
11

again guide the majestic elk, deer, bison, cougar, antelope, bear,

moose, sheep and goats back into the asset column through regulated practical harvest, filling the near empty coffers with the central management revenues. The majestic American buffalo does not

deserve to be a liability in this great land.

In conclusion, the Federal Government works for We the People,

and we are not happy. My time in the American wilderness literally saved my life from the evils and death of drug control abuse

in my rock and roll career because I refused throughout my life to

get high on poison, because the spirit of the wild taught me to wallow like my brother, the elk, in the sensual stimuli and spirituality,

as a blood brother to all things wild. After all, they named wildlife

after my career, and little is it known that cat scratch fever has

inspired many people to respect the American cougar.

I beg you to assist those of us who do care not to shut the door

on a generation of adventurers who seek this access, and that it is

our wilderness. We will manage it with care and affection, and we

want in.

I appreciate very much the opportunity to present this pulse, not

necessarily alone from the Nugent family, but from families across

this land who somehow have shared their concerns with me in

their frustration, not believing that they would be represented otherwise, and I thank you on behalf of all those people.

Mr. HANSEN. Thank you.

What we will do is, we will hear from the witnesses and we will

open it up for questions from the members. Is that all right with

everyone?

Mr. Unser, we will turn to you now, sir.

STATEMENT OF BOBBY UNSER, PROFESSIONAL RACE CAR

DRIVER, ALBUQUERQUE, NEW MEXICO

Mr. UNSER. Well, I don’t have anything written, but I thank everybody for letting me come. I think it is very nice and it is nice

that the people of the United States will see that our elected officials do care about what is happening out in the country.

My story starts with a nice day of snowmobiling. A friend of

mine—I have a ranch in northern New Mexico, a little town called

Chama. A friend of mine took off, snowmobiling, and we drove into

Colorado in the high country for a snowmobile ride, and it was the

first time he had ever been in those mountains, which I had been

in many times.

So we went up there, I unload the snowmobiles, a totally legal

place to be in the national forest, and teach him how to ride; and

we go up into some higher country and start climbing hills.

Am I too loud? OK. Sometimes I don’t hear too well, so I sometimes get too loud. But at any rate, started snowmobiling up there

and when we got up on top of these high hills we were climbing,

the wind came up, and we found ourselves in a ground blizzard.

We are really like up on top of the world.

Later on, if I have time, I will have a map and I can show somebody what it looks like up there.

But a ground blizzard comes up, not snow out of the sky, but

wind, 60 or 70 miles an hour, causing the new snow to blow. A

common thing in Cheyenne, Wyoming, people who come from that
12

part of the country know, you instantly go to a whiteout; so ultimately, we were trying to find our way out of that.

Robert, the guy that was with me, got his snowmobile stuck. He

had to stay very close to me because if he loses me or I lose him,

he is just going to die, it is just that simple. He doesn’t know anything about this part of the country or this part of life.

So after he got his docked, it kind of went off in the embankment

and he couldn’t get it out; and I said, ‘‘The heck with it, I will get

it another day,’’ got him behind my machine, which—mine was

ironically a brand-new sled, the brand spanking new trip on it.

As started happening, mine started giving problems in running.

I am trying to go along and find the edge of the mountain, so I can

look off and see a valley and discover where I am and, if necessary,

possibly get down off of this plateau where the snow is blowing so

hard. There is not anything I can do about it except that. Then my

machine starts quitting.

Well, we worked on the things from roughly like about 2 o’clock

in the afternoon. We started unloading snowmobiles about noon,

and we got up there about 1:00; we started working on the machine

about 2 o’clock, and this went on, I am shortening this up a whole

bunch for everybody—but this goes on until it becomes dark.

Now I am lost worse because of the way the machine—I get it

running for a little bit; it would run half a city block, maybe a

block, and it would quit again, and each time it got to where it was

harder to get started. We had taken the machine pretty much

apart, as I had quite a few tools with me, and both of us are good

mechanics, Robert as good as I am—holding the hood up, trying to

work in 60- or 70-mile-an-hour wind is not too easy to do.

Ultimately, it will not run anymore, darkness comes and literally, we are in trouble, no question about it. So I just take whatever we have on the snowmobile off in the form of emergency rations, which is a little fold-out saw and a compass. A compass

doesn’t do much good unless you kind of know where you start

from, incidentally.

But we start walking, and the main thing is, I have to go down

and I have to get out of this wind. So we start down as much as

we can. Wherever it goes down, it makes no difference, but the direction has to be down to get out of this wind because we can’t live

up there. For sure we would die if we stayed in the high country

in the wind in the blowing snow.

So I go down, and of course, it is darkness immediately; it gets

dark at 5 o’clock in the afternoon this time of year, which is December, December the 20th, to be exact, and so the only thing we

can do in order to survive that night is a snow cave. Robert had

lost one of—his left glove, so we only had my two gloves and his

right glove, so you can guess who had to dig the snow cave, so I

dug on the snow cave, Robert started cutting branches off the trees,

both for fire wood, in case the wind goes down, 60- to 70-mile-anhour wind. And that is in—at excess of 1,100 feet, you can’t build

a fire too easily, lack of oxygen, and wind, and the snowmobile had

little gasoline, so we had nothing to start a fire with.

So we build a cave. The cave works, Robert cut a lot of branches,

to lay both on the ground for him to sleep on. His uniform wasn’t
13

as good as mine. I had real good clothing on; he had new clothing,

but not as good as mine. I had new boots and everything going.

So, ultimately, we spent the night in the snow cave, didn’t freeze

to death, which, for sure, wasn’t very comfortable, didn’t get any

sleep and no gripes about that, but we got up at daylight the next

morning. I look at our tracks coming down. They were basically

covered up, but you could see them down in the trees, so we started

walking out.

I notice the light came on. I am sorry.

Mr. HANSEN. I will turn the light off. Go ahead.

Mr. UNSER. I will talk as fast as I can.

So at any rate, we make a determination and a decision to walk

out of where we were; and I could see the valley, I knew generally

where we were going. Eighteen hours of walking, we did in deep

snow with no provisions. I was sick, not knowing that I was sick,

had a virus, I vomited 20 to 30 times approximately, to the point

of where I was vomiting blood.

Robert had prepared to die; he didn’t think he was going to make

it. He wouldn’t eat the candy I had because he was sure that was

what made me sick. Ultimately, I made him eat the candy and

drink the water and also made him break some of the trail because

the deep snow was rough to walk in without snowshoes.

Eighteen hours later, we found a barn, called for help. The help

came up, and we went down and back to Chama and made it all

right that way. And then, of course, I was happy we lived, and everybody else seemed to be.

And what was it—it was like I lost an awful lot of weight—it was

16 days, I believe it was, later, I go to the national Forest Service

to say, just in case, that we were in the wilderness, don’t think we

weren’t, don’t know that we were. But I knew I needed to find my

snowmobile, to get it out of the mountains. I paid over $7,000 for

it, and it is brand-new. And so I went down there with the idea

of getting the snowmobile out, getting the letter of permission, in

case I had to go into the wilderness.

Instead, they met me with two officers from Colorado, and after

spending all day with them, or all afternoon with them, from approximately 12 or 1 o’clock in the afternoon until approximately

5:30, they, instead of helping me or giving me permission to go look

for my snowmobile, presented me with a citation, a ticket.

Now you must understand, I don’t know that I was in the wilderness, don’t think I was; they don’t know my snowmobile was in the

wilderness, they haven’t even seen me ride a snowmobile. They

don’t know I have done anything wrong; I certainly don’t think I

have.

I backtracked with their help. I described where I had been.

They had pictures. They determined from my description of me

backtracking with them, under the pretense they are helping me.

As soon as we finished with this, the lady police officer reaches

down under the table in her briefcase, pulls out a ticket, handing

it, says—this is it with a big smile—and said, if I hadn’t been

Bobby Unser, a celebrity, this would have just passed over and

then told me it was caused directly from—this is, honest to goodness, what happened—told me it was caused by the Sierra Club in

Washington getting hold of the Forest Service. And they were or-
14

dered that if they thought my snowmobile was in the wilderness,

to give me a ticket.

Now, it isn’t the American way to give somebody a citation or

ticket for somebody they hadn’t seen. In other words, nobody saw

me ride a snowmobile, just me and Robert are the only two human

beings that saw this happen, and I certainly didn’t start out on the

wilderness, as I will show you on the map later. I started off in a

totally legal place where thousands and thousands of people—I

have been snowmobiling up there. I would go snowmobiling without fear.

Another thing that is real important, real quick. There are no

marks on where the wilderness starts; even the people giving me

the citation, the police officers, didn’t know where the wilderness

starts. We get maps, they can’t tell you, they can’t describe it. They

assumed I knew and that I was in the wilderness knowingly, and

I was not; and if I was, I have been doing it for years and so has

everybody else up there, which is not true.

After we got the maps, we found out where the wilderness area

is—roughly, you can’t do it—of which Mr. Pendley has pictures. I

did videos, I did everything later on, of the area. There are no

signs; there are no marks.

Now, in a ranch in Colorado, if you want to post your ranch, the

State law says you have to post it every 150 feet. The wilderness

is underposted; there are no markings. And yet if I go onto your

posted ranch, I have to be prosecuted via the owner of the ranch.

In this particular case, the government is prosecuting me, obviously, for something they don’t even know that I did. They don’t

know—the newspapers and television—that I was even in the

mountains. They certainly don’t know I was on their pristine wilderness that they must think is theirs and not for my use.

Thank you, sir.

[The letter of Mr. Unser may be found at end of hearing.]

Mr. HANSEN. Thank you.

I get to exercise a prerogative of the Chair. I chair another meeting, it is called the Ethics Committee, so I am holding about 20

members, and I want to ask one question.

Did I hear you correctly that you got the ticket and the person

presenting the ticket to you stated that they had received information from the Sierra Club, and that because you are a celebrity,

that the Sierra Club demanded that you get a ticket? Did I hear

that correctly?

Mr. UNSER. Absolutely, 100 percent. I could take a lie detector

test and I will offer it. I could take sodium pentothal and would

also offer that, that it, in fact, happened as I am saying—I am not

here to tell lies—physically said that in front of me in the room,

and said the Sierra Club called Washington. Washington told them

that if they determined that I was in the wilderness, write me a

ticket. Now, understand, they did not even see me ride a snowmobile.

Mr. HANSEN. Thank you. Unbelievable. Thank you for your interesting testimony.

Kathy Stupak-Thrall. We will turn to you for 5 minutes. Pull the

mike a little closer, please.

Ms. STUPAK-THRALL. I will pull the mike a little closer.
15

I would like to defer to Senator Malcolm Wallop, who has a prepared statement, I believe, to this incident; and then I will take the

5 minutes, if you don’t mind.

Mr. HANSEN. That is fine, if you would like to go in that order.

We are honored to have our distinguished colleague from the

Senate, who is now a civilian, with us again.

STATEMENT OF FORMER SENATOR MALCOLM WALLOP,

CHAIRMAN, FRONTIERS OF FREEDOM INSTITUTE, ARLINGTON, VIRGINIA

Senator WALLOP. Thank you, Mr. Chairman, and Chairman

Chenoweth. My name is Malcolm Wallop, retired Senator from Wyoming, and now Chairman of Frontiers of Freedom Institute, an organization dedicated to defending constitutional liberty. I might

add, because of the new rules of the House, that we not accept Federal grants, I am here today to introduce Mrs. Kathy Stupak-Thrall

to the committee and to supplement and reinforce her testimony.

My qualifications are, as a rancher at the foot of the Big Horn

National Forest, I have had a lifetime of personal experience with

the Forest Service, and as a Member of the Senate, I served on the

Energy and Natural Resources Committee for 16 years, where I

could view the whole range of Forest Service and other agencies’

conduct and behavior. I was in the Senate when the Michigan Wilderness Act of 1987 was considered and enacted.

A number of problems in managing wilderness areas have arisen

since passage of the Wilderness Act of 1964. In my view, the false

doctrine of nonmanagement, which amounts to little more than neglect, will ultimately produce in many designated wilderness areas

a great deal of environmental degradation. But other sorts of problems, involving people and their rights and interests have arisen,

as well, and it is to speak about one of these I am here today.

Members of the committee have no doubt heard, as I heard in

my years on the Energy Committee, many stories of outrageous

treatment of landowners and Federal land users by the land managing agencies. The case of Kathy Stupak-Thrall, the Gajewskis

and 1,100 private property owners on the shores of Crooked Lake

in Michigan’s Upper Peninsula is perhaps not the most outrageous,

but it brings into sharp relief several of the worst aspects of the

Federal agencies’ attitudes and approaches to wilderness management.

Let me begin with the Wilderness Act itself. The Congress made

it clear in the 1964 act, from the first paragraph on, that only federally owned lands will be designated as wilderness areas; further

prohibitions against roads and commercial enterprises are qualified

by the clause, quote, ‘‘subject to existing private rights.’’

The Forest Service itself elaborated on these points in its January of 1979 final environmental statement, quote, ‘‘first, non-Federal lands included within boundaries of an area classified as wilderness are not themselves classified.’’ And, secondly, quote, ‘‘Wilderness designation in itself imposes no restrictions on use of the

private land within or adjacent to wilderness.’’ Mr. Chairman, that

is the Act.

These principles were applied in the final management plan

adopted by the Ottawa National Forest just before enactment of
16

the Michigan Wilderness Act. The alternative that was eventually

adopted stated, quote, ‘‘The management areas identified on this

map and the management direction defined in the forest plan apply

to national forest lands only. They do not apply to any lands in

State, county, private, or other ownership.’’

The 1986 final environmental impact statement responded to

comments about how management of the Sylvania recreation area

as a primitive area would affect motor boat and other usage on several lakes, including Crooked Lake, by dismissing all such concerns. It said, quote, ‘‘Motor boat usage on Crooked, Big Bateau

and Devil’s Head Lakes would continue unless Congress specifically prohibits such use in the legislation, designating Sylvania as

wilderness. The Forest Service cannot regulate use of motors on

lakes; it can only regulate transportation of motors over national

systems land. If there is private land on the lake shore, motor

boats can continue to access the lakes through the land,’’ closed

quote.

Now this statement, Mr. Chairman, simply recognizes Michigan

State law, which holds that all riparian owners along a body of

water have rights in common to use that body of water. Thus, in

the case of Crooked Lake, most of the shoreline is part of the Ottawa National Forest, but thirteen private landowners also own

parcels along the lake and that means Crooked Lake itself is not

part of the Ottawa National Forest. Instead, Ottawa National Forest is one of several riparian owners that possesses rights in common to use the lake.

When Congress considered the Michigan Wilderness Act, I recalled that this situation was a matter of concern, and the bill, as

enacted, specifically addressed it. Section 5, titled Administration

of Wilderness Areas begins with the qualification, quote, ‘‘subject

to valid existing rights.’’ Section 7 states, quote, ‘‘Congress does not

intend that designation of wilderness areas in the State of Michigan lead to the creation of protective perimeters or buffer zones

around each wilderness area. The fact that nonwilderness activities

or uses can be seen or heard from areas within the wilderness shall

not, of itself, preclude such activities or uses up to the boundaries

of the wilderness.’’

To my mind these additional protections were useful but should

not have been necessary. The language of the Wilderness Act itself

and Michigan State law should have been sufficient to demarcate

the limits of Forest Service authority. But beginning in 1990, officials of the Ottawa Forest started to restrict customary use on

Crooked Lake by the landowners on the grounds that they were inconsistent with wilderness status. I first learned of their attempts

to outlaw motor fishing boats and sailboats that had been traditionally used on Crooked Lake when Mrs. Stupak-Thrall and Mrs.

Gajewski visited Energy and Natural Resources staff in 1991.

I will conclude, but there is one thing that I am saying, that

there is an outlandish deference being paid by the Federal judiciary to Federal agency regulations, and it is an enormous problem

which only Congress can confront at some point.

I am here today to suggest a more modest task. In this case, the

Forest Service has prohibited customary uses on Crooked Lake by

other riparian owners against the explicit intent of Congress. Con-
17

gress should spell out its intent one more time, but most importantly, the Congress should get the Ottawa National Forest employees to explain to it why they refuse to follow Michigan law,

Congress’s explicit intent and the intent and language of the Wilderness Act itself clearly written. Until the people who are Forest

Service employees are held accountable, the reckless disregard of

rights of the American public will continue. Thank you.

Mr. HANSEN. Thank you.

[The statement of Senator Wallop may be found at end of hearing.]

Mr. HANSEN. I am saddened. I have looked forward to this hearing for quite a while, but leadership has an Ethics Task Force

going on, and they are going to start voting in 5 minutes, and they

are waiting for me. I am going to turn the gavel over to the gentlewoman from Idaho, and I hope I can get back. This has been a fascinating hearing, and I am looking forward to hearing from other

witnesses.

With that, Chairman Chenoweth, you take the gavel, and I want

to thank all the witnesses who have been here, and those who will

testify today. It has been a fascinating hearing for many of us

working on legislation at this time.

Mrs. CHENOWETH. [Presiding.] Thank you, Chairman Hansen.

We will certainly miss you, but I know the heavy responsibilities

that you have chairing that Ethics Committee. So with regret, we

let you go today.

Senator Wallop, do you, in your long and distinguished career in

the Senate, do you remember any time when either the House or

the Senate gave over to the Sierra Club the right to drive public

policy on the Forest Service lands?

Senator WALLOP. No, Madam Chairman. I clearly do not. I find

it outrageous. I find it outrageous that they have that kind of reach

and that the Forest Service itself responds to those kinds of demands or any agency of government responds to those kinds of demands, whether they come from the Sierra Club or the Mountain

States Legal Foundation. The business of government is to follow

the law and not prescriptions of private and special interests.

Mrs. CHENOWETH. Thank you, Senator.

At this time, the Chair recognizes Kathy Stupak-Thrall, president of the Crooked Lake North Shore Association in Watersmeet,

Michigan. Mrs. Thrall.

STATEMENT OF KATHY STUPAK-THRALL, PRESIDENT, CROOKED LAKE NORTH SHORE ASSOCIATION, WATERSMEET,

MICHIGAN

Mrs. STUPAK-THRALL. Thank you. I most appreciate the ability to

be here today and testify before you and your committee members.

I am Kathy Stupak-Thrall. I am the third generation to live at

my home on Crooked Lake. I am the president of the North Shore

Association. We are dedicated to the personal freedom of private

property ownership. I have come before this committee to explain

the arrogant and outrageous behavior I have experienced these

past 7–1/2 years from the Forest Service. I will explain how the

Forest Service works beyond that which Congress directs; how they
18

designate private property ‘‘wilderness’’ through regulation, not

designation.

Did you put on display that picture?

I have on display here a picture of my Crooked Lake homesite.

You will also find a smaller picture in your file. This is an example

of what most of us recognize as the American dream, the pride of

private property ownership, a homesite tucked away in the woods

on the lake’s edge. This is my home. It has been in my family for

over 55 years. I am the third generation to fly the American flag

on the dock’s edge of Crooked Lake.

The outrageous factor here is that this flag-flying homesite is

called visually offensive by those who visit the neighboring Sylvania Wilderness. My small neighborhood and our private properties on the north shore of Crooked Lake are adjacent to and

intermingled with federally-owned Sylvania Wilderness.

This action of management by the Forest Service that empowers

wilderness management onto private property violated the direct

intent of Congress. It violates and usurps Michigan State law and

ignores the direction of the Ottawa National Forest Plan, as Senator Wallop has described earlier. All of these things were written

to protect State and private property rights from wilderness management.

Now, in designating Sylvania Wilderness, Congress relied on the

statements of the Forest Service to be truthful, and yet all the Forest Service responses in regard to wilderness designation within

that forest plan were later called a mistake by the forest supervisor. It all became very clear in 1990 that the statements of the

forest plan seemed to be a bait and switch tactic because the forest

supervisor called all those statements of the forest plan that protected the individual and private property rights and State rights—

he then called them a mistake and were not to be used in this

management planning process.

So, I contend that only one of two things happened here, that either those who prepared the 1986 forest plan lied to Members of

the Congress and the public in order to gain support for wilderness

designation, or the forest supervisor then lied to us in 1990 as to

the accuracy of the forest plan.

Now, in 1990, when the Forest Service began the planning process, one of the first items to be placed on the scoping board that

would be addressed from management was the surface regulation

of motorboats on Crooked Lake. It was made very clear by the Forest Service and the Sierra Club members who were present at that

time that our homesite was visually offensive, and although they

may have to tolerate our homes, although they did prefer condemnation, they were not going to tolerate our continued motorboat

usage of Crooked Lake. They explained that these activities did not

fit their value system. And these statements by the Sierra Club

were fortified and strengthened by the forest supervisor, who then

did call all these statements of the forest plan a mistake.

And their office, the Forest Service Office of General Counsel,

also protected the Forest Service by upholding those statements of

the forest supervisor by explaining that even if valid existing rights

language that is in the Michigan Wilderness Act applies to riparian

rights, they could still regulate us.
19

And so we understood that this began the plan of the Forest

Service to regulate non-Federal private property with wilderness

management. To press into public service private property for the

sake of wilderness values above that which Congress allowed, this

is beyond the scope of the authority of the Forest Service.

Now, this was also then further upheld and enforced by the attorney for the Forest Service in the courts of law. When he explained to a panel of judges, 14 judges, that when Congress wrote

the bill or the Michigan Wilderness Act, used the language ‘‘valid

existing rights,’’ that those Members of Congress did not understand what ‘‘valid existing rights’’ meant. I can’t believe that. I

don’t believe that Members of Congress do not understand what

they do. They understand what they write. I believe that you say

what you mean and mean what you say.

Now, I would tell you that this action by the Forest Service is

a major Federal action which must be answered to, because when

an agency delegates to itself the powers of Congress and then uses

those powers of Congress against the people by taking on the

power of the property clause and using that against the people,

against the direct intent of Congress, that then must be answered

for. They must be held accountable.

I find myself as a private citizen against a great pyramid of

power, and I just find it outrageous that the Forest Service is not

held responsible for their actions.

The truth is the Forest Service has layers and layers of staff and

attorneys that protect their rights, to explain themselves and justify their action, when I am just Kathy Stupak-Thrall, just an

American citizen standing against the pyramid of power from

Michigan to Milwaukee to Washington, D.C.

I ask you, members of this committee, to have the same courage

that it takes for an individual citizen to stand against this huge bureaucracy, that took me 7–1/2 years to get here today. I ask you

to have the courage to confront this bureaucratic agency, the Forest

Service. Make them answer individually and as an agency to their

actions.

Thank you for hearing me today.

Mrs. CHENOWETH. Thank you, Kathy Stupak-Thrall.

[The statement of Ms. Stupak-Thrall may be found at end of

hearing.]

Mrs. CHENOWETH. I want to remind the committee that we will

be limiting your questions individually to 5 minutes. I will open

with some questions, and then I will recognize Mr. Kildee, our

Ranking Minority Member.

I want to first ask Kathy.

Mrs. STUPAK-THRALL. Yes?

Mrs. CHENOWETH. And I noticed that Perry Pendley is here. And,

Perry, welcome to the panel. I noticed in a publication entitled

‘‘The Litigator’’ that your case ran through the Sixth Circuit Court

of Appeals.

Mrs. STUPAK-THRALL. Yes, it did.

Mrs. CHENOWETH. And that right before this was appealed to the

Supreme Court, that Governor Engler from Michigan entered your

case.

Mrs. STUPAK-THRALL. Yes, he did.
20

Mrs. CHENOWETH. Entered an amicus, and the Governor filed a

brief that stated that the actions of the lower court or the Sixth

Circuit Court of Appeals was an affront to the principles of federalism and to the protection of private property rights.

The Governor goes on to say that these rights have characterized

his own administration and his efforts to restore the proper constitutional balance of power between Michigan and the Federal

Government, and I think Governor Engler has said that very, very

well, and I am very pleased that that was reported in ‘‘The Litigator’’.

Mrs. STUPAK-THRALL. As I am as well.

It must be made clear, Madam Chairman, that Governor Engler

did not enter this case for Kathy Stupak-Thrall. The Governor entered this case to protect the sovereign rights of Michigan. All property rights against the State of Michigan have fallen prey to the

regulation of the Federal Government.

Mrs. CHENOWETH. And so by this action, not only have your

rights to have access and use of the surface waters been taken, but

the right of ownership by the State of Michigan.

Mrs. STUPAK-THRALL. That is correct.

Mrs. CHENOWETH. When that was specifically protected in the

wilderness bill.

Mrs. STUPAK-THRALL. That is correct.

Mrs. CHENOWETH. And, Senator Wallop, were you here when

that bill was passed?

Senator WALLOP. I was, Madam Chairman.

Mrs. CHENOWETH. But ‘‘valid existing rights’’ means to you exactly what?

Senator WALLOP. It means that the Congress, the State, and the

government all understand clearly, in their mind, those rights

which exist by law. The property rights of the individual citizens,

the riparian rights of the State of Michigan, and, in fact, the riparian right of the Ottawa Forest are all part of the same bundle of

rights. And the Forest Service has deemed, by itself, that it alone

possesses rights and essentially has said, the hell with the State

of Michigan and in particular the hell with all the people who own

property there.

Mrs. CHENOWETH. That is very chilling to me, a western Congressman, because it sets a precedent for water rights in the entire

Nation. And we in the West, as you well know, would not be able

to produce agricultural goods at all if we couldn’t use our precious

water.

Senator WALLOP. When this legislation was written, it being a

wilderness area and eastern one, it passed through only the Senate

Agriculture Committee. But I remember specifically the arguments

were being made that these rights that existed needed to be protected because those who were there were fearful that they were

going to be abused. The State of Michigan itself was fearful that

its rights were going to be abused. And this language should not

have had to be written into the law, but it was written into the law

specifically because of those anxieties.

As I pointed out in my remarks, had they only followed—been

willing to follow the Wilderness Act as it is written, this language

should have been superfluous. But it was put in there because peo-
21

ple were worried that what was going to happen is exactly what

did happen.

Mrs. CHENOWETH. Senator, this just brings to mind the fact that

I am authoring legislation that will limit the terms of office of Federal judges, when we see the Sixth Circuit Court of Appeals make

a decision like this that goes outside the clear intent of the legislation. And by the way, there will be hearings in May on judicial activism, and I have been pushing this ever since I got to the Congress.

I want to question you on one more thing. You made a very interesting statement at the close of your testimony, Senator, when you

said government officials should be held accountable for these

kinds of actions. Would you mind elaborating on that?

Senator WALLOP. Well, it is clear that the forest supervisor and

those who are managing this forest are not following their own forest plan, their own Environmental Impact Statement, their final

statement, the law of the land.

Now, what happens is that in the normal passage of these kinds

of things, we will invite the Forest Service to come in here and say

why is it that these events are taking place. And you will get some

high—maybe even the chief will come in here, and he will blather

on. But I am suggesting that you call here the forest supervisor

and the attorney that represented them, and others, to explain why

to this Congress—this committee—why it is they believe you don’t

know what the hell you were doing when you wrote ‘‘valid existing

rights’’; why it is they have taken it onto themselves to transgress

the law as it was written in the Wilderness Act, as it exists in

Michigan State law and as it exists in designating the Sylvania

Michigan Wilderness.

Mrs. CHENOWETH. Senator, I would also like to call the Sixth Circuit and ask them why in the world they could justify it.

Senator WALLOP. That would be a cheering event. But what I

think is important, really, is to have some people explain why it

is that they have such a dismal view of American citizens. This is

not about wilderness. This is about how people in government treat

people that they govern.

When we grew up, we all thought that government was the servant of the people. It now views itself as its master. And the problem that we are facing out there—in my last dozen years in the

Senate, I would go home to Wyoming and people tell me tales not

unlike the ones that Kathy Stupak-Thrall has just mentioned, or

Bobby Unser, and I would think, for God’s sake, we have got to go

do something. And they would say, Senator, don’t. I just wanted

you to know. But if you do something, they will get me.

And they can, because the mountain of regulations is so complete

that there is always something that they can do to deny a grazing

permit, a timber permit, an access of some kind or another. There

is a way that they can get you, even if you confront them on the

specific issue.

And when American citizens find themselves saying, I just wanted you to know, but don’t do anything because they will get me,

that is the wrong view of people to have of their government, and

yet it is a view that is driven by the behavior of that government.
22

Mrs. CHENOWETH. Thank you, Senator. And I, for the record, I

do want to clearly say that I agree with you entirely. The doctrine

of separation of powers is one that is highly respected by me as

well as expressed by you. Thank you very much.

And I would like to ask Mr. Nugent——

Mr. VENTO. Point of inquiry, Madam Chairman. Are we going to

operate under the 5-minute rule or—we have been going now for

8 minutes, plus your earlier question between the witnesses. I

mean, if we are under the 5-minute rule, it is fine with me. If we

are not, I would like to know so.

Mrs. CHENOWETH. We just had one Chairman leave, and the

Chairman is operating under the prerogatives of the Chairman

right now.

So, Mr. Nugent, I would like to simply ask you, if you had the

ability to state what you would like to see the wilderness policies

to be, could you let us know for the record the improvements you

would like to see made?

Mr. NUGENT. I am here just to represent an overview of, again,

people that I am privileged to have a dialog with across America

in my travels, that optimum, reasonable and proven access to wilderness-designated areas or areas that may be on the chopping

block, so to speak, to become wilderness areas be reviewed for maximum value based on hands-on participation in those areas.

My son and I went to Wyoming last year and rode 8 hours on

horseback into the Thoroughfare Wilderness area, and we wanted

a quality wilderness experience, but we used state-of-the-art Gortex

supplies and cooking utensils, and new saddles, and aluminum arrows and modern equipment that in actual application and function

is no different than a sinew-stringed Osage orange longbow with

cedar arrows from time before us.

And that if young people of this country that are currently being

ostracized and denied the welcome mat into this heritage of nature

relationship that is the answer to their dreams—young people are

looking for stimuli. They are looking for adventure. They are looking for challenge. They are looking for laughter and excitement.

And in my wonderful rock and roll career, I have found all of the

above, in your wildest dreams, beyond the pavement.

I would like to think that it is our responsibility to open the door

to, again, proven tread-lightly participation in wilderness areas, to

encourage young people to invest their time, energy, education and

finances into a continuing tradition of a hunting outdoor culture.

And it is only going to be optimized if it is attractive enough because of that quality experience that will be offered to them in

these millions and millions of acres of wilderness area.

I believe that the attrition rate in the outdoor conservation community is a direct result of our failure to offer these quality experiences in an increased fashion rather than in the decreased fashion

that is currently the modus operandi of the sporting community.

Mrs. CHENOWETH. Thank you, Mr. Nugent.

And the Chair now recognizes Mr. Kildee from Michigan.

Mr. KILDEE. Thank you very much, Madam Chair.

Michigan riparian laws state that if one owns lakefront property,

they are entitled to the use of the entire lake. But riparian laws
23

in Michigan do not state that they have the authority to use motorboats anywhere they please. That is very clear.

I was born in Michigan. I did write this law, so there are some

restrictions on that. Now, on that first bay where you had your

property, of course, you can use your motor boat. But when you go

into the further bays, you cannot use the motorboats under the

plan put in place by the Forest Service.

Now, the Michigan Wilderness Act in 1987 directs that Sylvania

be managed pursuant to the provisions of the Wilderness Act of

1964. In there it says that the Wilderness Act poses a general ban

on motorboat use within wilderness areas except for motorboat use

as already has been established. It may be permitted to continue

subject to such restrictions as the Secretary of Agriculture deems

desirable. It may be permitted to continue.

In the report language on the bill, which I helped write the report language, too, it says that motorboat use on these lakes may

be permitted to continue insofar as this does not conflict with or

adversely affect wilderness values. So you might object to the law,

but I think the Forest Service has read the law and are following

the law. Now, you may object to the law, and you can object then

because I was the chief sponsor of that bill, but I don’t think there

is any conflict.

I am convinced there is no conflict between Michigan riparian

laws, with which I am very familiar, helped write some of the new

riparian laws when I was in the State legislature, nor does it conflict—motorboat restrictions conflict with the law of 1987.

Mr. Nugent, in the 92,000 acres of wilderness area established

by the 1987 Wilderness Act, a person can enter on foot or on horseback to view the wonders of nature and commune with nature in

those 92,000 acres. What problem does that create?

Mr. NUGENT. Well, it limits access. For example, during a wonderful winter water wonderland snow country of Michigan in the

winter months, there should be no reason, in my estimation, why

a family couldn’t snowmobile and use a modern snowmobile machine to access this wilderness area because it will not leave any

scarring. It will not disrupt the areas. And, once again, if it is not

accessible this time of year via this modern equipment, the people

will end up at the mall.

Mr. KILDEE. We have 2.7 million acres up there. Why can’t we

take 92,000 acres and have it where there is no pollution or even

noise pollution; where people can enter in—my sons have gone up

there, and they enjoy—in the wintertime—and have enjoyed the

fact that you can commune with nature without even the noise pollution. There is another 2,700,000 acres where you can have snowmobiles. Why can’t we have 92,000 acres set aside where you can

have it just as it was when the Native Americans roamed up there?

Mr. NUGENT. As I am sure you and your family have witnessed,

Mr. Kildee, we have an attrition rate in the hunting activities in

many of the States of this Nation because of the erosion of the

quality of the outdoor experience, the old wives’ tale of a hunter behind every tree. If we don’t expand the availability of all of these

extensive tens of thousands of acres, in some instances millions of

acres, that are currently wilderness area, those young people will

not experience the quality experience; therefore they will pursue
24

the alternatives, thereby leaving the ranks of a conservation voice

that will vote for the safeguard of an overall quality outdoor experience, wilderness or otherwise. I believe that by opening up this

type of acreage to this type of activity, it expands the density factor—or reduces the density factor of the human activities, therefore

giving a more optimum quality experience in this outdoor setting.

Mr. KILDEE. I think we have multiple use areas where you can

use snowmobiles, vast areas. Snowmobiling is a very big business

in Michigan and a very good recreational sport. We take 92,000

acres of the 2.7 and say, here, we are going to traverse that just

as the Native Americans, the Chippewa and the Ottawa, traversed

it over 100 years ago. What is wrong with that?

Mr. NUGENT. Ultimately there is nothing wrong with a balancing

Act as long as we have the best interest of introducing and welcoming a new generation to the outdoors. In my experience—and

I believe you have seen this in our State of Michigan, though it has

been reversed in the last 5 or 7 years, the getting old of the outdoor

community and the failure of new young people entering into the

outdoor recreational sports because of what people believe is a limited access.

Just for example, we have had quite an argument in Michigan

recently where on designated snowmobile trails mushers with sled

dogs were denied use of these trails. Now, certainly if an outdoor

experience is to be balanced for all multiple use, what is good for

a snowmobiler or hiker or a cross country skier should certainly be

available to a dog musher in a sled dog activity.

And I realize that is not directly responding to the separation of

wilderness limitations versus otherwise, but I believe that once

again the more acres that we open up to these activities, any reasonable tread-lightly, remain-on-designated-trail, responsible use

is, once again, going to be a welcome mat for new participation who

currently are declining those opportunities that seem to be limited

otherwise.

Mr. KILDEE. You are a bow hunter, and I know my brother—

older brother—was a bow hunter, and that is really going back to

like the early Americans, too.

I just think that 92,000 acres, to set those aside where you have

2.7 million forest acres up there, that 92,000 where you can’t use

snowmobiles is not imprudent. I think it is quite prudent. And

when I wrote this bill, I think I am a prudent legislator. I am one

who has hunted and fished throughout Michigan, but I think it is

important that we have certain areas where we can go back and

reflect as to how this land was when the Chippewas were bow

hunting.

Mr. NUGENT. Certainly, Mr. Kildee, but we also acknowledge, as

I was privileged to hunt alongside the great warriors of the Assiniboine and the Grilvat Indians in northern Montana a few years

back where I was honored with the invitation to hunt their ceremonious herd bull buffalo on their sacred hunting grounds, there are

many admirable activities of the Native American hunting culture

that we would adhere to today.

For example, the incredible experience of penetrating the majestic creatures of God’s defense mechanisms to get within bow range,

but certainly we wouldn’t want to return to the days where we
25

herded the animals over the cliff in a mass slaughter to the tribe.

So it is a matter of understanding those functions that optimize the

outdoor experience from the past in conjunction with the incredible

human population growth of today where we don’t shut the door to

young people.

In my correspondence, Mr. Kildee, the young people have said

they would like to go outdoors, but this State recreation area or

that State recreation area is loaded with people, and they would

like to see new areas open up. So I am responding, after walking

on these wonderful pieces of ground, that certainly their access increase would benefit the welcome mat for these new conservationists and new land appreciators.

Mr. KILDEE. Could I just ask one question to Mr. Unser?

Mrs. CHENOWETH. Yes. Let’s give Mr. Kildee another 2 minutes,

please.

Mr. KILDEE. I really appreciate it, Madam Chair.

Mr. Unser, you are quoted in the Denver Post as saying, I do

want the Forest Service to know that if there is any way I can hurt

them, I am going to do it. How do you intend to hurt the Forest

Service?

Mr. NUGENT. Hire me.

Mr. UNSER. Ted said: Hire him. I didn’t say that.

Mr. KILDEE. The Denver Post quotes you. The Denver Post is

wrong then, this quote?

Mr. UNSER. I would have to say, Mr. Congressman, that I have

been part of media all of my natural grown life. I have been misquoted many times.

Mr. KILDEE. I have, too.

Mr. UNSER. I don’t want to hurt the Forest Service. I want to

change things in the Forest Service.

I have spent a tremendous amount of time on this. A ticket such

as I got, by the record of what the court system has done in Colorado, amounts to $50 or $75. The National Forest Service tells everybody that it is going to cost me 6 months in jail and $5,000, and

I hardly see the correspondence between the two, the correlation

between the two.

But hurt the Forest Service? For sure I am mad. Absolutely, I

am mad, and I would tell anybody that. I am really upset. I have

been hurt. Before I would have been happy to do commercial spots,

charity things. I do it for many cancer organizations, many States,

cities, many things. I am most happy to do it, and I would have

done this for the Forest Service before. But they are really trying

to hurt me for no reason. I haven’t done anything wrong.

Mr. KILDEE. Well—thank you Madam Chair. I appreciate the indulgence.

Mr. PENDLEY. Chairman Chenoweth, could you indulge me to answer the question that the gentleman from Michigan asked but did

not get an answer on?

Mrs. CHENOWETH. With no objection. Is there any objection on

the part of the gentleman from Michigan?

STATEMENT OF PERRY PENDLEY, ESQ.

Mr. PENDLEY. What the Michigan Wilderness Act said was that

with regard to lakes that are surrounded on all sides by Forest
26

Service lands, that is where the Forest Service has its discretion

to regulate the motorboat use. However, Crooked Lake is a lake in

which the northern half of the lake is owned by private parties,

and the surface of Crooked Lake under Michigan law says that

every owner along the lake has an equal use of the surface of the

lake, whether it is the Forest Service or Kathy Stupak or the

Gajewskis as the owner, and has the right to use the entire surface

of the lake.

What the court held and the Forest Service maintained was that

the property clause of the Constitution, which says that Congress

has power over Federal land, the property clause may be interpreted such that it gives the Forest Service the power to regulate

private property if it affects Federal property.

Now the Supreme Court has specifically rejected this theory, but

this is the theory upon which the Forest Service has gone forward.

This was the theory that was accepted by 7 of the 14 members of

the Sixth Circuit Court of Appeals. So it was not on the basis that

the Congress decided to prohibit motorboat use. In fact, it was specifically permitted and authorized. That was the valid and existing

right that was protected.

The remarkable position of the Forest Service until the lower

court overturned it was that the valid existing rights didn’t apply

to property rights; it only applied to mining claims. That is how

askew and in conflict with the law the Forest Service is.

The update on where we are is we have gone back, after the Supreme Court declined to hear our case, to the district court on the

motorboat issue. The district court agrees with Kathy StupakThrall and the Gajewskis. It has enjoined the Forest Service from

enforcing its motorboat regulations, and we will go to trial next

month.

Mr. KILDEE. But——

Mrs. CHENOWETH. Mr. Kildee, if you wish to make a motion to

have another round of questioning, the Chair will entertain that at

the proper time. Now is not the proper time.

The Chair recognizes the gentleman from Tennessee, Mr. Duncan.

Mr. DUNCAN. Thank you, Madam Chairman.

I just got here, and so I didn’t get to hear the testimony of the

witnesses, so I am going to yield most of my time to Mr. Pombo.

But let me just say first briefly to Senator Wallop that I certainly

appreciate the small portion of the comments that he made that I

got to hear, because almost every single day I have a constituent

who calls or writes or who comes to see me who tells me about

some horrible arrogance of power or abuse of power by some Federal bureaucracy or some Federal agency, and I loved your words.

And they are so accurate today, unfortunately, that our servants

have become our rulers. And we have many good people within the

Federal Government, but we have far too many people who seem

to have forgotten that they are our employees and we are supposed

to be their bosses. And they are supposed to be public servants, not

rulers or dictators. And in too many ways in this country today we

seem to have ended up with a government that is of, by and for

the bureaucrats instead of of, by and for the people. That is why
27

so many people across this country are disgusted and fed up and

even at times angry toward the Federal Government.

Secondly, I spent 7–1/2 years as a circuit court judge in Tennessee before I came to Congress, and you are exactly right, Senator, when you say the outlandish difference now being paid by the

Federal judiciary to Federal agency regulations is an enormous

problem. I tell you why it happens: It is because it is the easy way

out. There are far too many Federal judges who will do almost anything to keep a case from going before a jury because they know

that the Federal Government would almost always lose if they

could get their case in front of a jury.

And thirdly, one thing I have noticed, and you can certainly

make any comments about this that you wish, but we have these

environmental extremists in this country today who have become

the new radicals, the new leftists, the new socialists, and we need

to realize how harmful these people are. They are destroying jobs,

they are driving up the costs of products of all types, they are really hurting the poor and working people of this country. They are

playing into the hands of extremely big business, but they are driving small farmers out of existence, they are driving small businesses out of existence, and I have noticed that almost all of these

people seem to come from wealthy families or wealthy backgrounds

and have sufficient money so that they are sort of insulated from

the harm of their policies.

But we need to start speaking out about this. We need to start

resisting this. Our forefathers did their jobs in protecting the freedom of this country, but if we sit around and allow these environmental extremists to socialize our country, what they really are

going to end up doing in the end is hurting our environment, because the worst polluters in the world have been the socialists and

communist countries, and we need not fall for that line in this

country.

If you have any comments, I would be happy to hear them; otherwise I will go to Mr. Pombo.

Senator WALLOP. Mr. Duncan, thank you both for the kind words

and understanding what it was that I was trying to get across. In

fact, I did quote the original Wilderness Act, and Mr. Kildee seems

to have forgotten that portion of it, which said that there are to be

no buffer zones. Wilderness was to be wilderness. This is not an argument about whether or not it exists. It does exist. It is in the

law. It is a question about whether or not the Forest Service, the

Government of the United States, will follow the law as it is written.

Now, your other point about the environmental extremists, they

are a very elitist group of people, and the thing that amuses me

the most about it is that they are possessed of a sort of view that

they are God’s chosen administrators to protect God’s creation on

Earth. And they have a sort of romantic view of nature that it can

be returned to some sort of static state. There will always be oldgrowth forest and new-growth forest, and that the old-growth forests won’t grow up and die and burn, and the new-growth forest

will grow, and there is going to be two of everything, and they will

all live and die, and nothing will change.
28

In other words, they believe in creationism. And yet if anyone

were to teach those people’s children creationism in school, they

would go crazy. But they do not believe in evolution because they

are trying to create a state in nature that doesn’t exist. There is

no static state in nature. They want it there. They want to rule it

there. It is a question of power, their power, and it is an inconsistency with them. That is the way they would have it. Thank you,

sir.

Mr. DUNCAN. Thank you.

You might be interested to know that in the last 40 years in my

State of Tennessee, the percentage of land in forest space has gone

up from 36 to 45 percent. And I read recently the Christian Science

Monitor that in the seven Northeastern States it has gone up even

more than that, so that now two-thirds of the Northeastern States

are now in forest land. And yet if you asked that question to almost

any school child in this country, do we have more land in forests

now than we did 40 or 50 years ago, I am sure that almost all of

them would say no because of the very distorted picture of what

is going on in this country that has been presented to the American

people.

But with those comments I will yield back to the Chairman.

Mrs. CHENOWETH. Thank you Mr. Duncan.

The Chair recognizes Mr. Vento.

Mr. VENTO. Mr. Nugent, I am trying to understand your statement. Is it your view—you are opposed to the Wilderness Act? You

think there is too much land designated as wilderness?

Mr. NUGENT. With limited access on that acreage, yes.

Mr. VENTO. Your concern is that the quality of hunting and

sports experience is diminished because of wilderness? Is that your

point?

Mr. NUGENT. Yes, I believe that what it does is it deters the desirability of new entry-level participants to seek that quality experience in more vast acreage so that the human density factor is not

an overwhelming consideration.

Mr. VENTO. You would have—I guess about 190 million acres of

forest and about 33 million is wilderness, about one out of six acres

a little more than that, and you would like to see that modified so

that it would not limit access with trucks, snowmobiles, whatever?

Is that your point?

Mr. NUGENT. No.

Mr. VENTO. What are you talking about in access?

Mr. NUGENT. I would say that access should be regulated, certainly. I use the example of snowmobiles. On a snow base, there

is no tracks or disruption of the topography via snowmobile use. I

wouldn’t open it up to scrambling or enduro races. The tread-lightly program that I am a member of is about staying on designated

trails.

Mr. VENTO. One of the problems is that there are snowmobile

trails that they banned dog sled teams from and cross country skiers. I do cross country skiing. There is a safety problem with putting cross country skiing and snowmobiles that are traveling 60

miles per hour on the same trails. Wouldn’t you grant that?

Mr. NUGENT. No, I would not. I have reviewed the statistics in

Michigan; and all the snowmobiles accidents, 90-plus percent, in-
29

volve drinking snowmobile operators; and I don’t believe there has

ever been a collision just between cross country skiers and snowmobile users.

Mr. VENTO. We are even talking about one-way snowmobile trails

in Minnesota because that represents a hazard. I don’t pretend to

be an expert on it, but I would think that separation here at least

might be sensible, even with dogs. I don’t know what the problem

is with dogs.

Mr. Unser, it is a little unusual to have someone that has a court

date set in June or something to come before the committee. Most

of us probably—I am sort of reluctant to ask any questions about

it, although I appreciate your willingness to talk about it. Normally, if you are contesting something in court, the last place you

want is to have it tried before a committee and make a judgment

on it.

Mr. UNSER. I have nothing to hide.

Mr. VENTO. It is a concern that I have. I mean, you don’t—you

are obviously coming here and suggesting that you actually were—

you didn’t know you were in a wilderness area?

Mr. UNSER. No, sir, I don’t believe I was in the wilderness area.

I know I didn’t ride my snowmobile in there when I had visibility.

Mr. VENTO. Do you think that snowmobiles ought to be able to

go in wilderness areas?

Mr. UNSER. My opinion, aside from my court case, yes. Snowmobiles do not hurt a wilderness area at all.

Mr. VENTO. It may not help your court case. I am not an attorney.

Mr. PENDLEY. But he is giving his opinion here——

Mr. VENTO. I didn’t ask you any questions. If I have a question,

I will refer to you.

Mr. Unser——

Mr. UNSER. I am just telling you snowmobiling doesn’t hurt anything underneath it. It rides on the snow. When it is melted, nobody other than the Good Lord would ever know that that snowmobile was there. I didn’t come here to sell that; but, at the same

token, I do believe that, sir.

Mr. VENTO. That is why I was asking you. That is exactly what

I was asking.

But the issue is, your suggestion is that is there something

wrong with the Sierra Club or any individual citizen pointing out

that somebody else made a mistake or that they violated a law? Do

you have any objection to that?

Mr. UNSER. One more time on that?

Mr. VENTO. Is there any objection to a citizen or a group, whether it be the Sierra Club or a sportsman group, pointing out that

you violated a law? Do you have any objection that?

Mr. UNSER. I guess I don’t understand. I am not objecting to anybody. I mean, I am just——

Mr. VENTO. You are saying that the penalty is so severe. Do you

know why you think the penalty is going to be this severe? Is that

simply the magnitude? You have no idea, for instance, if you are

found to have violated this Wilderness Act, what the imposition of

the penalty would be, do you?
30

Mr. UNSER. I know the history of people that have literally gone

into the wilderness snowmobiling and been caught. I know what

their penalties have been, and they have been $50 to $75. And I

am not griping about that. I can afford that.

Mr. VENTO. The thing is, you implied that it was going to be

$5,000 or 6 months in jail.

Mr. UNSER. That is what the Forest Service released.

Mr. VENTO. I think that is probably the magnitude of what can

be applied.

Mrs. Thrall, your area, is the area that you live in in wilderness?

Mr. UNSER. No, sir.

Mr. VENTO. Different witness. Mrs. Thrall?

Mrs. STUPAK-THRALL. Yes, my private property extends into the

wilderness. I am adjacent and intermingled with the wilderness.

Mr. VENTO. There is no objection to your use of the water surface

in your bay?

Mrs. STUPAK-THRALL. Michigan law states very clearly that you

cannot separate the waters and define a portion private from public.

Mr. VENTO. I understand your debate about Michigan law. I am

not asking that. I am asking whether or not you can use the water

surface in your bay?

Mrs. STUPAK-THRALL. The Forest Service has indicated that they

have designated a portion of the lake as wilderness and another

portion private, so that I can, in their view, use a small portion,

40 acres, as I see fit.

Mr. VENTO. I would point out that 94 percent of the area around

this lake is Forest Service land, much of it which has been declared

wilderness.

Mrs. STUPAK-THRALL. The land has been, but the lake wasn’t.

Mr. VENTO. Malcolm, I don’t know if you are recommending a

major rewrite of the Wilderness Act, but it looks like that is maybe

what is being proposed here.

Senator WALLOP. No, I am only asking that they follow the Wilderness Act. This is not the boundary. The boundary is the shoreline, not the lake.

Mr. VENTO. I understand this particular issue, Malcolm, and I

don’t know that it is inconsistent with any other decisions made in

any other court cases regarding it. I know there is a case regarding

the whole case law.

Mr. Chairman, when you have specific issues like this of wilderness issues before us, it is customary to have the professionals here

then to explain the other side of the case.

I don’t think we should be trying these cases. I don’t think there

is any need for us to do it. I appreciate, though, the witnesses who

have come; and, hopefully, we can get a kinder and friendlier and

a few more Forest Service people to do their job, would help in this

matter, rather than the constant reductions that they faced in the

1980’s.

Senator WALLOP. I agree with that, but it is a question of balance. When the Forest Service says that the reason they want to

take Mr. Unser so severely to task is because he is a celebrity—

they spent $100,000 looking for a snow machine.
31

Mr. VENTO. My time has expired, but I ask unanimous consent

to proceed for 1 additional minute.

Mrs. CHENOWETH. Without objection, so granted.

Mr. VENTO. Thank you.

I think it is troubling. I don’t think anyone should be made an

example. Certainly, I don’t think that a person as beloved as Mr.

Unser—with regards to his role and his status and so forth, it

would be a real mistake for the Forest Service to, in fact, do that.

So I think what the issue here, of course, is, is that none of us

would ask that we get any special treatment in any case either.

And I am sure he is not asking for that. And I think the severity

of what has been represented—talking about the maximum extent—I think at the end of the day, however this comes down, I understand it was a life crisis and so forth, and I think it is insensitive, and I would like them to look to not apply it in that instance

but rather to the violations that occur.

I think if Mr. Unser knows what the speed limit is, he wouldn’t

go in there. If you knew it was a wilderness area and it was a violation of law, you probably wouldn’t have done that; right?

Mr. UNSER. You are absolutely right, sir. I didn’t intend to go in.

I didn’t go in, and if I did, it was during an emergency.

Mr. VENTO. I would hope the end result would be that the penalty would fit the circumstance, rather than some sort of

aggravated——

Mr. UNSER. I am really not complaining about the fact that I

may go to jail for 6 months. I just don’t think that is going to happen. That is what the Forest Service releases in their——

Mr. VENTO. I don’t think that is going to happen either, Mr.

Unser.

Mr. PENDLEY. Madam Chairman, can I respond?

Mrs. CHENOWETH. Without objection, we will grant 15 seconds.

Mr. PENDLEY. Here is the position of the Forest Service with regard to what Kathy Thrall can do. The U.S. Attorney before the 6th

Circuit Court of Appeals said, the only right Kathy Thrall has with

regard to Crooked Lake is to drink the water out of the lake. That

is the Forest Service position.

Mr. VENTO. Why don’t we write to the Forest Service and have

them present their own positions rather than an adversary?

Mr. PENDLEY. I will give you the transcript, Madam Chairman.

Mrs. CHENOWETH. The comments of the gentleman are appreciated, and I would be happy to work with the Minority members

on having the Forest Service before this committee on a continuation of this issue. Thank you for your suggestion.

The Chair recognizes the gentleman from California, Mr. Pombo.

Mr. POMBO. Mr. Pendley, you just stated that you had a copy of

that and could provide it for the committee?

Mr. PENDLEY. Yes, sir. I will do so.

Mr. POMBO. I would appreciate it if you could supply that to the

committee so it could be a part of the official record.

[The information may be found at end of hearing.]

Mr. POMBO. Mr. Wallop, I know that throughout your career,

your previous career, you saw a number of pieces of wilderness legislation that came through this body and across—and one of the

things that has always come across to me in my brief time here is
32

that what we always do is we say that we are going to set aside

this land and that there is going to be an economic loss because

we are doing that. We are no longer going to extract natural resources out of those areas, so we admit that there is going to be

an economic loss. But the way that they make up for that is they

always say we are going to increase the recreational opportunities

that exist.

And we have heard people testify previously that they decrease

the number of recreational opportunities that exist. How does that

happen in the real world—I mean, after we pass the legislation

that says we are going to increase that, at the same time we are

decreasing recreational opportunities?

Senator WALLOP. Well, I have no doubt of the passion of people

who like wilderness. I myself do. Grew up in it long before it was

designated wilderness. I used to avail myself of it, camp in it and

run in it.

But one of the things that happens is there is a limited number

of people who are physically able to access wilderness. It takes a

good deal of wealth. It takes a good deal of wealth in order to be

able to procure the appropriate equipment, transportation to the

boundaries, the guides, if you will, to go in it. And the ordinary citizen, the ordinary Joe fisherman, picnicker, overnight camper, family recreationist can avail himself of the boundaries of wilderness,

providing he can get to them, but the rest of it is his, and it has

become crowded.

Mr. POMBO. Are you familiar with any wilderness area that allows motorboats within that wilderness area?

Senator WALLOP. No, I cannot cite one. I am not sure whether

they do or do not exist.

Mr. POMBO. I have never run across one in the time that I have

looked into it. I have never——

Senator WALLOP. I doubt that there are.

Mr. VENTO. Will the gentleman yield?

Mr. POMBO. Yes.

Mr. VENTO. The Boundary Waters Canoe Area does allow motorboats into the interface of the wilderness.

Mr. POMBO. Inside the wilderness?

Mr. VENTO. Yes.

Mr. POMBO. Are they not trying to take that out?

Mr. VENTO. There is a controversy about it. I don’t want to go

into it now on the gentleman’s time, but I would be happy to later.

Mr. POMBO. That is one of the things that strikes me about it,

is Mr. Nugent talks about the wilderness experience and being able

to go in and hunt and fish and experience that, but the law itself

restricts access into that wilderness area. And if we are trying to

preserve these areas, what exactly are we preserving them for? Is

it not so that we can enjoy them?

Senator WALLOP. Its application is truly laughable. You wonder

where Gilbert and Sullivan are when you need them.

Mrs. Chenoweth’s tale of how they sent the helicopter into the

Frank Church Wilderness to rescue a wolf but didn’t even bother

to go look for Mr. Unser when he was lost—and now we are spending $100,000 of Forest Service money—and they are always complaining that they are short funded—to hire helicopters to look for
33

a snow machine in the hopes of finding a transgression. I mean,

you know, sick wolves can require the intrusion into the wilderness

area by machinery, but not the life of a human? Something is really goofy about that kind of application.

I think what we are seeing is an instance of the Forest Service

believing that somehow or another the only unnatural event on the

face of this earth is man.

Mr. POMBO. Unfortunately. Mr. Unser, in light of what Chairman

Chenoweth talked about, were they actively looking for you while

you were lost in this area, whether it was in the wilderness area

or not? Were they actively searching for you?

Mr. UNSER. No, sir, there were rescue people that were looking.

Forest Service didn’t partake in any rescue deals whatsoever. They

do own snowmobiles that are equally as good as mine or——

Mr. POMBO. That was not very good. But they ran, though.

Mr. UNSER. I know that to be true, because I know the people

that work on them and—et cetera. And they could have known a

whole lot more about everything in the whole ordeal, but they

didn’t partake.

And it was 16 days later, which indicates that it is true what I

say, that they did receive pressure from some source like the Sierra

Club. Because why did they wait 16 days later into another year

and all of a sudden decide, wow, it is time to give Bobby Unser a

ticket, after the newspapers and all the television stations, more

than 100 million people saw all the news of my ordeal.

So after that is when they decided we must give this man a ticket. And it just became very obvious that it is a message from the

Sierra Club, don’t screw with our wilderness. Sad to say, but that

is the way everybody pretty much sees it.

Mr. POMBO. So it is your opinion that they were going to make

an example of you?

Mr. UNSER. They said they were going to, sir. In other words,

they told me if I hadn’t been Bobby Unser, a celebrity, that it

wouldn’t have happened. It would have just passed over. Out of

their own mouths.

Mr. POMBO. They told you that?

Mr. UNSER. Yes, sir.

Mr. POMBO. I think I would agree with Mr. Vento on that one.

That is kind of stupid. Everybody did see and read about the case

and about what happened to you. It just seems like that would generate an immense amount of negative publicity for the Forest Service and serve the point of pointing out just how absurd some of

these rules and regulations really are.

Mr. UNSER. You know, Mr. Congressman, when they issued the

ticket, we had long talks about this. I told these two officers, I said,

first place, you did not see me do anything wrong. How do you give

somebody a ticket just based on the fact that you want him to have

one? They have to see you do something in order to give you a misdemeanor, according to law. They did not see that. I did not do

anything wrong.

But, more importantly, I told them, I said, this is liable to get

out to the press; and I said, you guys will lose the war. You cannot

possibly win this. It is an unjustified thing.
34

And then I looked at the ticket, and I saw on there—and he is

telling me such a minor ticket that it is and why don’t I just pay

it and don’t worry about it. And I looked at the ticket, and it said

I must appear. Not a question of paying somebody $75 to keep

them happy, but that I must appear.

That is going to publicly ridicule me and that way I would admit

that I was guilty. Not just giving them money because they wanted

it. I could not do something like that. It is not my way.

I got in my airplane the next day and went to Phoenix the next

day to do my job. While I was on the plane, they were in Denver,

the Forest Service having a press conference, saying that they were

going to charge Mr. Unser; and we are going to try to fine him

$5,000 and 6 months in jail for having a motor vehicle in the wilderness. They got caught with that. How did the machine get there

and is it there? Nobody knows.

Mr. POMBO. They have never found it?

Mr. UNSER. Well, I don’t know if they have. They claim that they

have not. So it is kind of like after the fact.

And then I am in Phoenix, and everybody is calling me. And it

was not me that went to the press, it was the Forest Service that

went to the press. So they started the war that Mr. Pendley is handling now.

Mr. POMBO. Unfortunately, my time has expired. Maybe we will

have opportunity for another round of questions. Thank you.

Mrs. CHENOWETH. Thank you, Mr. Pombo. The Chair now recognizes the gentleman from California, Mr. Doolittle.

Mr. DOOLITTLE. Mr. Unser, I find your story very compelling. Es- sentially, you were lost. You apparently have lost your new $7,000

snowmobile. Was the other machine yours as well?

Mr. UNSER. Yes, sir.

Mr. DOOLITTLE. Did they find that one?

Mr. UNSER. The rescue people brought that one out, sir.

Mr. DOOLITTLE. You lost your $7,000 machine. You nearly lost

your life. It must have been shocking indeed to find your government, that your President thinks is your friend, to have them

issuing you a citation for essentially innocent activity. Were you

shocked when that happened?

Mr. UNSER. I was more than shocked. That is a good way to put

it. I was in shock. In other words, not just shocked the way it

sounds, I was literally in shock. I mean—and when the lady handed me the ticket, I just told her—I said, I will not sign a ticket.

I am under the assumption—I have had speeding tickets for sure

all of my life. I am under the assumption that I must sign the ticket. I said, if it is jail, I said to them, let’s go to jail right now. I

will not sign something that I didn’t do.

Mr. DOOLITTLE. That is the spirit of the American Revolution. I

commend you for fighting it.

May I just inquire, what do you and your——

Mr. UNSER. The ticket, sir, was written before they ever established where we were.

Mr. DOOLITTLE. I think that is clear. What do you estimate this

legal defense will end up costing you when you go to trial in June?

Mr. UNSER. Many——

Mr. PENDLEY. May I?
35

Mr. UNSER. This is my attorney. Can he respond?

Mr. PENDLEY. Legal Foundation is a private public interest law

firm representing Mr. Unser for the reason that I think is clear,

based on the testimony.

If the Forest Service can engage in this kind of conduct with regard to Mr. Unser, there is nobody out there who is capable of responding. And they will do it to anyone and everyone, and there

are certain, very important legal issues involved here.

Is, for example, the presence in the wilderness, without an intent

to be present in the wilderness, is that a violation? Here, as Mr.

Unser has testified, there is no demarcation of where the boundary

is. If one is inside by accident or in the case of emergency or blizzard, is that a violation? It shouldn’t be a violation.

Every crime that we have in this country, practically, requires an

intent to commit the crime, and if there is no intent, then there is

no commitment of the crime, and——

Mr. DOOLITTLE. Let me just ask, is this an unresolved issue? I

mean, it comes as news to me that you can be held strictly liable

for presence in the wilderness, without reference to intent.

Mr. PENDLEY. That apparently is the Forest Service right now;

that is correct.

Mr. DOOLITTLE. But that has not actually been tested?

Mr. PENDLEY. That has yet to be resolved.

Sir, the reason I bring that up is because it is an important national legal issue, and that is why Mountain States has agreed to

represent Mr. Unser for free.

Mr. DOOLITTLE. Mr. Unser—it is free to Mr. Unser, but it is obviously costing the foundation. I am trying to get a sense of what

does a citizen who has the finger of Big Brother pointing at him

in the prosecution, what is that likely to cost?

Mr. UNSER. I have an attorney in Albuquerque, also, that represents me in this; and so far, we have spent in excess of $30,000

of his time, which is costing me.

Mr. DOOLITTLE. So that is $30,000 of his time, presumably that

much or more out of the Mountain States Legal Foundation, and

by the time you go to trial, you will have easily a $100,000 bill in

legal fees; is that safe to say?

Mr. UNSER. More than that, sir.

Mr. DOOLITTLE. This gives contemporary illustration to something our first President said, George Washington, ‘‘The government is not reason, it is not eloquence, it is force by fire, as a troublesome servant and a fearful master.’’

You, sir, had the courage and the willingness to basically fight

City Hall, so to speak, only in this case it is the Forest Service. We

will all benefit from that service you are performing, but I think—

it comes as news to me, certainly, I suspect the members of the

committee, that the Forest Service has taken out these kinds of positions.

Let me ask, in the time that I have remaining, Ms. Thrall, your

case, I guess, I heard someone say that seven judges of the 14 have

concluded that somehow the property clause can regulate private

property. Is that correct?

Ms. STUPAK-THRALL. That is correct, sir.
36

Mr. DOOLITTLE. So the other seven did not go along with that,

and apparently the Supreme Court has not accepted the appeal of

your case; is that correct?

Ms. STUPAK-THRALL. That is correct, sir, but we are proceeding

in the Federal District Court this May, on the motor boat issue specifically.

Mr. DOOLITTLE. Well, is there—I will ask you or anyone who

cares to answer, what is the situation? I am reading—I just read

a little summary of this situation that was your case where apparently the circuit court concluded the Forest Service and exercise of

police power, similar to that exercise, the State and local government; that surely has not been validated by the U.S. Supreme

Court, has it?

Mr. PENDLEY. Let me respond to that.

Ms. STUPAK-THRALL. May my attorney?

Mr. DOOLITTLE. Certainly.

Mr. PENDLEY. That is absolutely correct and, in fact, on the property clause question, the Supreme Court has specifically rejected

the Forest Service’s contention the property clause gives them

power over private property that affects Federal property.

Mr. DOOLITTLE. That is the basis on which they are attempting

to regulate.

Mr. PENDLEY. That is right. Here is the opinion of the Federal

District Court, that said, not only is it a property owner along here,

it is also a sovereign, and as a sovereign, it stands in the shoes of

the State of Michigan, which can regulate for health, safety and

welfare. Therefore, under the property clause, it can regulate for

other issues as well.

The Sixth Circuit Court of Appeals repudiated that opinion and

found it without merit and substituted its own judge for that opinion; and that opinion, too, was stricken, so we are back with the

District Court opinion that the Forest Service has that kind of

power. The irony here is, the Forest Service is standing in the

shoes of the State of Michigan, but ignoring Michigan law with respect to what those property rights are.

Mr. DOOLITTLE. I just want to clarify. I missed, was it a threejudge—was it a panel of the circuit that made this interpretation

about the property clause? Did you say that was then overturned

by the Federal Court?

Mr. PENDLEY. The district court first heard the case throughout

the Forest Service the contention that valid existing rights did not

apply to property, but then said the Forest Service can still regulate reasonable use. It went to a three-judge panel of the Sixth Circuit. The panel was unanimous in upholding the district court, but

for a different rationale.

We asked the Sixth Circuit to hear it, and in an unprecedented

action, in light of the fact it was a unanimous opinion, the Sixth

Circuit agreed to hear the case. All 14 heard the case, seven agreed

with the panel—interestingly, written by the author of the panel,

that judge, just judge—and then Judge Danny Boggs, who, interestingly enough, served on the Senate Natural Resources Committee at the time this was written, came to the conclusion that

this compromise with regard to valid existing rights was the

indispen-
37

sable ingredient that permitted the Michigan Wilderness Act to go

forward, and he held valid existing rights were protected.

And he made an interesting point that I think is important to a

question that was asked earlier, why this is a threat to wilderness.

It is a threat to wilderness because if these agreements made to

protect private property, careful balancing such as Congress engages in is repudiated and rejected by the Forest Service, I dare

say many Members of Congress cannot vote for forests knowing

these protections will be upheld.

Mr. DOOLITTLE. It sounds like the State is in a complete muddle.

Mr. PENDLEY. It is a muddle only with regard to a couple of holdings. The Supreme Court is very clear on the fact that the property

clause gives Congress power, only over Federal land, not private

property.

Mr. DOOLITTLE. Unfortunately, as a Member of Congress, it concerns me the next time I have one of these bills, and we are supposed to feel assured it contains the phrase ‘‘subject to valid existing rights.’’ I don’t take great comfort in that phrase.

Mr. PENDLEY. Congressman, it guarantees nothing.

Ms. CHENOWETH. The Chair will recognize for a second round of

questioning, the gentleman from California.

Mr. WALLOP. I wonder if I might be excused to attend a valid existing right. I have a new meeting.

Ms. CHENOWETH. Yes, Senator. Thank you for joining the panel.

Without objection, the Chair would like to ask Mr. Chris Cannon,

the gentleman from Utah, to join us on this panel.

Mr. CANNON. Thank you.

Ms. CHENOWETH. And we will call on you for questioning after

we call on Jim Gibbons, the gentleman from Nevada, for questioning.

Mr. GIBBONS. Thank you, Madam Chairman, for recognizing me

at this end of the dais here. I would like to assure these fine people, who have come all this way to talk to us in this committee,

that we are not here trying any case. We are a public hearing to

find out the problems that are existing with the application of the

current wilderness bills; and I appreciate your testimony here before us.

I presume that some members of this committee might think differently if we were here testifying about the problems of some social bill and how that application should be adjusted. Nonetheless,

what I would like to ask—of course, we have talked to Mr. Unser

earlier about his costs.

Mrs. Thrall, what have been your costs with regard to this problem that you have experienced with the Forest Service? Can you

tell us, in this committee?

Ms. STUPAK-THRALL. My costs have been immeasurable, as this

has taken 7–1/2 years from my life and my family’s life. In order

to participate fully to protect my private property, to participate in

the process with the Forest Service, I have had to separate myself

from the family business and family activities to take this issue on

full-time.

As Mr. Unser said, he spent 10 to 12 hours each day addressing

this issue, and that is correct. Anywhere from 8 to 12 hours each

day for 7–1/2 years, I have had to address this issue.
38

You must understand that when I as a individual am participating in the process with the Forest Service, I am not participating with a person of the Forest Service, I am participating

against a whole system, which goes—starts in Michigan and finally

finds itself here in Washington, D.C. I am trying to hold up this

huge pyramid that is trying to come down upon me. It has cost me

immeasurable amounts of dollars that I couldn’t even begin to

count.

Mr. GIBBONS. Now help me understand this issue. Crooked Lake

is primarily a lake used for recreation and has been in the past.

Is there public ramp access to this lake?

Ms. STUPAK-THRALL. There is a public access through the Federal boat landing, yes, sir. That was a boat landing that was installed in 1968. It replaced a very primitive-type access that was

used by the public alongside the county road. They had used that

access alongside the county road because it fell within the easement of the road where they were not then trespassing onto private

property.

Mr. GIBBONS. You received a ticket by the Forest Service for

some activity of having an open beer can. I don’t know what it was,

Coke can, or whatever it was in the boat. Was that given to you

on the water or on your private property?

Ms. STUPAK-THRALL. Both, actually. And the ticket was given to

my husband, not to Kathy Thrall, but to Ben Thrall, and I say

both, sir, because I am on my private property when I am in my

boat on the surface of Crooked Lake, or on the frozen surface when

I am on my snowmobile. Michigan law identifies the surface of

Crooked Lake as an extension of my riparian properties, and my

riparian rights to the water may not be separated or divisible from

my upland.

Mr. GIBBONS. Now the Forest Service provided that ticket?

Ms. STUPAK-THRALL. Yes, sir, they did.

Mr. GIBBONS. Do they have authorization to control activities on

the water in this lake?

Ms. STUPAK-THRALL. They have assumed it, sir.

Mr. GIBBONS. Their Environmental Impact Statement says the

Forest Service cannot regulate use of motorboats on a lake.

Ms. STUPAK-THRALL. I understand that is exactly what they have

said, sir, and they gave that response to the direct question, what

will happen to motorboat activity on the surface of Crooked Lake

should there be wilderness designation.

Now let’s also understand, we are asking the experts in wilderness management. The Forest Service is a recognizable expert in

the area of wilderness managements, so when you have a question

of wilderness, you go to the Forest Service.

We went to the Forest Service through the means of the Environmental Impact Statement, which is a legal document. They must,

by law, be accurate and scientific in their answer. They told us that

should there be wilderness designation, that motorboat activity on

the surface of the lake would continue if there is private access to

it, that they do not regulate motors on the surface of the lake. You

are correct.

Mr. GIBBONS. Thank you.

I have two questions, and first I would like, in this very short

time that I have remaining, Mr. Pendley, do you know of other in-
39

stances in the wilderness areas of this country where agencies of

the Federal Government have used motorized vehicles of one kind,

whether it is a helicopter, airplane, a tracked vehicle of some type,

to access wilderness areas? We have heard the story of the Chairman and the wolf. That would be one question, if you could help

this committee understand that.

The second goes to Mr. Unser. You brought this map. Following

that would you tell this committee what that meant, represents,

and what those red dots are? Thank you.

Mr. PENDLEY. I really don’t have an answer for you, Congressman, as to uses that the Federal Government has made of motorized vehicles. There is the one famous story, of course, of the New

Mexico wilderness in which a little Boy Scout was lost, and U.S.

Forest Service used a helicopter to help locate him, but then made

the decision not to rescue him on the site because they didn’t think

they could, and the next day they got permission to go in, and then

they did go in.

Mr. UNSER. Could I just relate to that a little bit about the Forest Service about a case I happen to know of where there were

some hunters in the same wilderness area, Congressman; that they

got stranded by an early snow, horses and men, and they wanted

to go in with snowmobiles and feed the horses so the horses

wouldn’t die. They allowed helicopters to go in and pick up the men

and get them out so they wouldn’t die. They were refused the

horses. They were just going to let the horses die away deep in that

wilderness.

Then a call was subsequently made to the Humane Society here

in Washington, D.C., and the rumor out in my part of the country

will tell you that within 15 to 30 minutes, there was an OK to haul

the hay in and get the horses out. They sledded some of them out

on hoods and stuff like that, but nonetheless they did allow it, and

some of my friends that I associate with commonly work for the

people that did this. They did allow it to go in and happen, but it

was not until the Humane Society was called here that it went to

the Forest Service and came back OK.

Mrs. CHENOWETH. Your time is up, and on my time, when we

have a second round of questioning, I would like for us to continue

with the question the gentleman from Nevada asked you about

your map. But right now the Chair recognizes Mr. Cannon for

questioning.

Mr. CANNON. Thank you, Madam Chair.

First let me say I deeply appreciate the fact you all would come

to this meeting here today. More than that I appreciate the fact

you are carrying on a difficult battle, each in a different way. I

think the government, by nature, is a matter of force. If we don’t

resist that force, we lose our rights, and property rights are very

important in that process.

Mr. Unser, do you—have you recovered your snowmobiles? Have

they ever been found, and were they found on Federal wilderness

property?

Mr. UNSER. One was recovered by a rescue crew and don’t know

where it was. Don’t think it was in the wilderness, but nobody really—there has been too many conflicting stories on where it was,

meaning there was a terrible blizzard going on, and the crew that
40

found it—I wasn’t there, you have to understand. I was walking

when this was all going on, but when the crew found the first

snowmobile, and the only one that has been found, they were in a

blizzard, almost didn’t get out themselves. They ended up coming

out late at night, and they were lost for a while and then tried to

follow my tracks going in. They were unable to do that. As far as

the wind blowing so hard, they can only pick up a track occasionally, and it appeared to them that I had been going around in circles, which is common, I guess, when you are lost.

So they found the snowmobile, took it part of the way out. The

next morning, this would be the morning that I had walked out,

and while I was in the hospital, this—a group had gone back and

retrieved the one snowmobile, and they don’t believe that it was

anywhere near where the Forest Service contends that it was,

and—which means it was probably out of the wilderness. And the

second snowmobile is—has never been found as far as we know.

Mr. CANNON. Was the first still operating when you abandoned

it; was it driven out or pulled out, and who comprised the group

that found it or was looking for you when you found it?

Mr. UNSER. The group that got it out would be friends of mine

that were part of the rescue group and part of my family. My

brother went in and my son and my daughter. They brought it out.

Mr. CANNON. They were the ones who brought it out.

Can you tell us a little bit about the organization of the group

that was looking for you; was it only family, did it include the local

search and rescue, did it include the Forest Service?

Mr. UNSER. It was Colorado Search and Rescue, New Mexico

Search and Rescue, and friends and people that know the country

a lot better than the Search and Rescue from the Chama area.

That is the town that is close up there that we live in.

Mr. CANNON. Were there any Forest Service search and rescue

types? Was there anyone from the Forest Services helping?

Mr. UNSER. 100 percent none.

Mr. CANNON. And when you abandoned the first snowmobile,

was it still operating?

Mr. UNSER. Yes, sir, it was still operating. But what had happened, my friend that was riding it, it was becoming a deficit rather than an asset, and when he got stuck, it was time for me to

leave that snowmobile and put him on behind me. I was on a new

snowmobile, and it really shouldn’t have given me problems, but it

did, and that is the one that is still up there. So I left it knowingly,

but not knowing I was going to have the other one break down.

Mr. CANNON. How long was it between the time you abandoned

the first snowmobile and the time you broke down on the second?

Mr. UNSER. Approximately—it got stuck, and I left it approximately 2:00 o’clock in the afternoon, and darkness comes at 5:00

up there, and that is when I abandoned the second snowmobile and

started walking.

Mr. CANNON. OK. Just one other question. When you were issued

a citation or violation, the notice of violation, whatever you call it,

what was the factual basis alleged for the violation? How did they

suggest that they knew you were in a wilderness?

Mr. UNSER. Only from taking maps and—remember, I am there

under the pretense, sir, that they are going to help me find my
41

snowmobile so I can go retrieve it and take it out of the mountains,

and I went through the Forest Service people in case that it was

in the wilderness. I don’t know where the wilderness is, I don’t

know where the boundaries are, but I went to get a letter, something saying for Bobby to be in there finding the snowmobile with

myself and my group.

So after I sat with the two police officers, they never told me I

was being investigated criminally or anything like that, we backtracked from where I walked out, and after we backtracked it up,

in all sincerity they determined my snowmobile, which is still lost,

must be in the wilderness by what I described. That is when the

lady reaches down under the table and pulls out a ticket, which

was the citation, and handed it to me.

Mr. CANNON. And on the citation itself, the citation, was it—did

it say on its face that they found you had been in the wilderness

based upon your statements, or was there another basis alleged?

Mr. UNSER. It is not based on anything, it is just merely they

made out one thing, operating a vehicle in the wilderness, but they

didn’t see the vehicle there. They still haven’t seen it, I haven’t

seen it, and I don’t know that to be true. So it was a ticket that

had to be a bad ticket to write because there is nothing that knowingly has happened.

Mr. CANNON. Thank you very much, Mr. Unser and the rest of

our panel.

Mrs. CHENOWETH. Thank you, Mr. Cannon.

Before I recognize the Members for a second round of questioning, I want to say this particular hearing and this panel, as

well as the panel members to come who will testify, have drawn

a lot of interest from all over the Nation, and I do want to recognize a distinguished visitor in our audience, Representative Dan

Mader from Lewiston, Idaho. He is serving on a national forest

task force, and I appreciate his interest in this hearing.

With that, I would like to continue my time of questioning, and

we will adhere very strictly to the 5-minute rule on this second

round of questioning. But I did want to ask Bob the answer to follow through on the question that Mr. Gibbons asked you, by explaining what the red marks are on this map. I think we can all

probably get a real good idea of what you went through by looking

at the map, and I assume that is a USGS quadrangle map.

Mr. UNSER. It is a national forest map. We purchased it from the

Forest Service office in Albuquerque. The stickers are on the back.

What this shows is the wilderness, if all of you can see it, is

marked in blue. Now this is not to be exactly correct because a

friend of mine made this up just so I could show Mr. Pendley and

such attorneys where I went, at least where I know that I went

that day. We unloaded over here at this red deal, which, all of this

country, all of this country is national forest, not wilderness, everything at the blue line, and we didn’t go on around with it because

it wasn’t important. That wasn’t the part in question. The part in

question would be this wilderness. Everything up in here would be

the authorized wilderness.

Mr. DOOLITTLE. Madam Chairman, can I inquire? I can’t see a

blue line from here. Is there a blue line up close that delineates-

-
42

Mr. UNSER. Can you see it coming around here? Can you see

that?

Mr. DOOLITTLE. Yes. Thanks.

Mr. UNSER. I know it is hard to see.

At any rate, right down here is where we unloaded our cars, and

this is always referred to as Red Lake. If you are going to tell

somebody you are going snowmobiling, you would say, we are going

to Red Lake or Dipping Lakes, meaning that is where you unload,

meaning that is where the trails head back in that direction.

But thousands of people snowmobile in this area, Jarosa Peak,

which is all this area right in here, very, very commonplace, and,

of course, a lot of snowmobiling in there, a lot of area to snowmobile, and there are no signs up in here to show where the wilderness starts.

I suppose over the years many thousands of people have been in

there, but even if you are snowmobiling, when you get on top, it

is really a rock. We call it a rock farm up there. The part that is

fun in snowmobiling is going up the hills, the rim road. When it

gets all full of snow, you can do some really nice climbing, which

is fun, but when you get up on top of this rim road, you are not

in the wilderness.

Now, honest to goodness, we didn’t know this until this incident

happened, and I have learned it since, but that is where I unloaded. We went up riding. This is where we climbed up and got

up to the top, and this is where our location was when the blizzard

happened.

Now the national forest officers claim that they found the first—

they didn’t find it—no, they said it was found way over there, a

place called Dipping Lakes. Now respectfully, I would like to point

out to everybody that lakes in the wintertime don’t exist. It is just

country full of snow. You can’t tell lakes from anything. There is

at least 100 lakes right here in the wilderness. I took pictures and

showed them to Mr. Pendley, and he can’t see one lake because it

is winter, and there is snow. So nobody goes riding at a lake or a

specific place, they just merely unload here. It is called Red Lake

or Dipping Lakes. And up here is where they snowmobile, and very

often you come right here down through Quemado Village Lake, a

giant lake. Nobody knows when they go past the lake because it

is frozen.

So that is where we were. Right there is the location, this red

sticker here, where the blizzard hit us. That is where we got disoriented and lost. And this is where we think that they found my

first snowmobile. We don’t know. My walking ended up over here.

The 18 hours that I did ended up down here, which is to the north

and to the east. And the place where I spent the night would be

somewhere right in here.

There is a giant, giant, giant canyon here. I wish all of you could

see it, but I realize you are too far away. That canyon is something

like 600 feet down, according to the map. We slid down the snow

slide to get down there because it was the only place to see this

valley this way. This would be the Outer Alamosa Valley, and

when I was out of the wind and out of the blizzard, I could see

that, and I know a place called Quemado, that is the river that

comes out and comes down here. That is the Quemado River there.
43

I could see I needed to get down there because I knew that would

be a friend down there; in other words, buildings, people, stuff like

that. That took 18 hours of walking to.

Now, to this day, the Forest Service doesn’t know where my

other snowmobile is, and I don’t know where it is, but the Forest

Service managers, both the head people both in new Mexico and in

Colorado, released statements to the press all the time that Bobby

Unser is not going to get that snowmobile unless he takes it out

by hand or by horse.

Now in all due respect, if I am lost, and if the snowmobile did

end up, which the Forest Service thinks, a quarter mile into the

wilderness, of their statement, if it does ends up there, how am I

going to get the thing out? I didn’t intentionally go in there with

it, and in essence they are stealing it from me if they don’t let me

go in and take the thing out. I can’t get a horse up in there in the

winter to go get it, that is for sure, and come summertime, how

would I get the tools up there to disassemble it and take it out?

So in my opinion, they are stealing it if they find it there.

But what if they find that it isn’t there; what if they find it is

actually just outside the wilderness by 10 feet? Then look what

they have done to me. But no matter what, they don’t know where

it is any more than I do.

Mrs. CHENOWETH. Thank you, Mr. Unser. I very much appreciate

that answer and explanation.

The Chair now recognizes Mr. Kildee for 5 minutes.

Mr. KILDEE. Thank you very much, Madam Chair. While I have

a chance, I would like to thank the witnesses. I come to these hearings because we can learn things, and I really appreciate your involvement on this. I think basically the Michigan Wilderness bill

was a good bill. Matter of fact, you know, I take great pride in having put them together. I myself put the non-buffer language in the

bill, even though that was not in the organic after 1964. I put it

in. That would have been the policy, but after having hearings,

particularly in the Upper Peninsula, people raised questions about

that, and I said I will put it in the bill exactly, so we put it in

there.

But I am convinced, having read the law, that neither Federal

laws nor the State riparian right laws, with which I am also familiar, I am convinced it does not exclude the wilderness—the Forest

Service from excluding motorboats on the wilderness area of the

lake. You canoes the entire lake, Mrs. Thrall, and you canoes motorboats on the nonwilderness part of that lake, but on the wilderness part, you canoes, under the rules, only electrically powered

motors, but on the nonwilderness part of the lake, you can still use

motorboats.

I think that is a reasonable division between what is owned by

all the people of the United States, about 95 percent of the lake,

and what you have some rights on under riparian law, and you

own land on that part of the lake. I do know even people who are

in similar situations as yourself that there is a division.

I would like, Madam Chair, with consent, to include in the record

a letter from Thomas V. Church from Water Street, Michigan, who

is a cabin owner on Crooked Lake, and he feels basically the Forest

Service has, as you put it, walked a path between streams. Some
44

of the general public wanted no motors at all, some wanted restrictions. He feels they have reached a balance there, and so there is

a division even among the property owners. So I would like this for

the record.

Mrs. CHENOWETH. Without objection, so granted.

[The information may be found at end of hearing.]

Mr. KILDEE. And I have no further questions, but I would like

to thank the panel for its sincerity, enthusiasm, their input and

knowledge. It is helpful to the Congressman.

Mrs. CHENOWETH. Thank you, Mr. Kildee.

The Chair recognizes the gentleman from California, Mr. Pombo.

Mr. POMBO. Thank you, Madam Chairman.

Ms. Thrall, just so I understand how this is situated, did you say

that part of your property is within the wilderness area?

Ms. STUPAK-THRALL. Yes, sir. In fact, all of my private property

is within—well, I cannot say that. The wilderness boundary does

cross the lake, yes, at a certain point, and the Forest Service contends that a 40-acre parcel is outside the wilderness and is private,

and the remaining 560 acres then is wilderness. That is contrary

to Michigan law, where Michigan law does not allow fencing,

whether it be visible or invisible, of a lake surface, to divide public

from private rights. One riparian cannot fence off another riparian,

and, well, I would have some remarks for Mr. Kildee, but I would

save those for later.

Mr. POMBO. So your contention is that because you own lakefront

property, that you own rights on to the lake, riparian rights onto

the lake?

Ms. STUPAK-THRALL. The State of Michigan identifies those

rights, sir, yes, and the Court cases from Michigan from the Supreme Court have identified those rights, yes, sir.

Mr. POMBO. Do you feel that the value of your home has been

diminished or increased as a result of the wilderness?

Ms. STUPAK-THRALL. When my constitutional rights are diminished and my private property is not recognized as such, it is diminishing of my value, yes, and of my constitutional rights, yes.

Mr. POMBO. Do you feel it has restricted the use of your private

property for what has been determined as a greater public good or

a public policy?

Ms. STUPAK-THRALL. In fact, the courts have very clearly identified—and my attorney can correct me if I am wrong, but I believe

that the court has identified that these regulations placed on the

surface of Crooked Lake are not for even just the community of

Watersmeet. But for the general public at large of the United

States, am I correct, Mr. Pendley?

Mr. PENDLEY. That is correct.

Mr. Chairman, let me just add something. Under Michigan law,

a riparian, somebody who owns property along the lake, has the

right to use the entire surface of the lake subject to one condition,

the reasonable use of other riparians along the lake. Every opinion

written in this case does not disagree with the fact that this is private property, this is property that is owned both by the Forest

Service and by the Thralls and Gajewskis and the other 11 property owners. There is absolutely no dispute.
45

When Mr. Kildee talks about the wilderness portion, this is not

the wilderness portion, this is the private property portion, and

what the courts have said is under the property clause of the Constitution, the Forest Service can regulate this private property for

the national good because it affects Federal property, and that is

where the system just simply breaks down, because that is in conflict with the Supreme Court opinion, and I think it is in conflict

with what this Congress meant to do.

Mr. POMBO. I was just looking through the code on wilderness

areas, and one of the provisions is that there be no permanent improvement or human habitation of the area, that is pulled into

that; that the whole idea being that there not be any sign of

human beings within the wilderness, and yet you have a picture

of your house. How does that work?

Ms. STUPAK-THRALL. Well, as the wilderness user enters into the

Sylvania area, they come in off the recreational portion where the

boat landing is at, and they happen to see my homesite and the

homesites of my neighbors, and many of these wilderness users will

refer to us as visually offensive. But as they enter onto the surface

of Crooked Lake at that point of entry, they are entering onto the

surface of not only, from the Federal Government’s point of view,

their riparian rights, but also onto my riparian rights, a joint ownership of private property. And I must also remind you as well that

Forest Service land status ownership records, which are included

in my testimony, and letter from a Mr. Ken Myers from the Forest

Service office, regional office in Wisconsin, very clearly states that

these land status records are used to report to Congress what acres

they own as a Forest Service, and the Forest Service has broken

down the land acres, the upland acres from the water acres, and

they identify all upland acres as forest system lands, and they will

identify that there is a title held and PILT moneys are paid, PILT

moneys being payment in lieu of taxes.

Now when it comes to the water acres, they exclude those subsurface water acres and the surface water from Forest Service ownership. They say they are not forest system lands, no title held, no

moneys paid. So when it is convenient for them to not pay and return to the counties and the township PILT payments, they have

no ownership rights, but now when they want to regulate, they

suddenly have ownership rights and will not recognize private

property rights established by the State. They are given title to

their upland by the same entity I am given too, the State of Michigan. They are not willing to recognize State of Michigan laws when

it does not suit their needs.

Mr. POMBO. Madam Chairman, I know my time has run out, but

very quickly, looking at this picture that you gave us.

Ms. STUPAK-THRALL. Yes, sir.

Mr. POMBO. This is in viewpoint of the American flag, and everything is in view from the wilderness area.

Ms. STUPAK-THRALL. Yes, sir, it is. In fact, my property is the

only property that flies the American flag on the shores of Crooked

Lake. Not even the Federal Government.

Mr. POMBO. And what kind of comments have you received?

Ms. STUPAK-THRALL. I have had Sierra members sit across from

me, sitting no further than you are, saying my private property
46

and that of my neighbors is visually offensive, and they may have

to contend with my homesite, even though they prefer condemnation, but they will not tolerate my motorboat activity because it disturbs their quietude and their solitude. Regardless of what Congress directed in the language, a Federal land is only to be designated, not private property, and administration will be subject to

valid existing rights.

Mr. POMBO. Thank you very much.

Thank you, Madam Chairman.

Mrs. CHENOWETH. Thank you, Mr. Pombo.

The Chair recognizes the gentleman from Minnesota, Mr. Vento.

Mr. VENTO. It is the law, and it is my understanding of the law,

that, in fact, there is an exception with regards to motorized use

for administrative and safety and health purposes by the Forest

Service with regards to the Wilderness Act, and, in fact, it is in the

law. Apparently there is some misunderstanding or some argument

on the part of some here whether or not the Forest Service does

have such authority.

Ms. STUPAK-THRALL. May I respond to that, sir?

Mr. VENTO. Well, wait until I finish my question. I have a question, and I would like you to, certainly. But my point is in terms

of rescue operations, they certainly are. Whether or not they, in

fact, have the resources in all instances to send planes, helicopters

and other types of search parties out to use for lake and for safety

purposes, to, in fact, do that, is, of course, a relative question. We

know, for instance, land management agencies often are involved

in mountain rescues where people are taking risks in terms of

climbing mountains. It is an expensive proposition, obviously, but

life is affected.

One of the instances brought up by a witness commented about

a kid in a wilderness, and that, in fact, there was some limit or

some question about whether equipment should be used in order to

try and rescue that child. But it was found out upon reflection that,

in fact, part of the reason he was in the wilderness is because he

was apparently running away from home, or at least trying to

avoid authority from parents or from other sources.

So, as I said, I think that is why it is important when you have

allegations and statements made, that it is important to try and

have in place the land manager so they can have an intelligent discussion. If we are going to be considering arguments that are going

to take place before a court with regard to property rights, it is

probably a good idea to have the Forest Service speak for themselves with regards to—or the BLM, for that matter, to speak for

the wilderness themselves regarding the arguments, rather than

have them portrayed by others. I think that something that is lost

in translation. So these hearings end up being an interesting litany

of problems, but they are not necessarily helpful in terms of trying

to understand the Wilderness Act.

Ms. Thrall, do you have a comment with regards to the safety

and rescue operations and the use of motorized vehicles for that

purpose; do you have any response to that; do you have a comment

you want to make with regards to that?

Ms. STUPAK-THRALL. The comment that I had to your statements

on rescue and safety, all of those directions of management and
47

how there shall be rescue and safety operations, all of this is in direct relation to federally-owned lands. It is not directed to private

properties. Crooked Lake is and has been established not only by

State law, but also by recent court cases that it is private property.

Mr. VENTO. I appreciate your observation. My concern related to

the statements made by Mr. Unser and others concerning the public lands and the wilderness areas. I would also suggest many of

these arguments have something to do with wilderness, but they

have something to do, generally, with the Federal Government,

with the national forest land and the acts that predate the Wilderness Act. In fact, as I look at some of the testimony, it actually

takes issue with some of the issues with regards to water rights

and other matters. It seems to me to be a continuation of a long

debate that predates, in fact, the Wilderness Act in terms of the

Federal Government’s sovereignty and what its role is with regard

to States and with regards to private citizens and has little or

nothing—or little to do, really, with the Wilderness Act.

You may disagree with the application of it with regards to this

purpose, but I would point out that it has been used. There are

some aspects of Federal law in property rights and laws that, in

fact, do deal with whether it is applicable under the Mining Act,

whether it is applicable under easement, whether it is applicable

in terms of many other issues with regards to timber sales and

other acts that exist within the Forest Service of the BLM.

So this effort to talk about the nuances in terms of how it affects

wilderness is interesting and maybe the feeling is there should be

some change. For instance, I note that the Forest Service, in its Organic Act, has a right for Eminent Domain, it remains there with

regards to the Wilderness Act. It isn’t taken away by virtue of that.

In some cases, we may qualify it even, to not permit it to be used

in these instances. A lot of people in BLM land and in public land,

however, are concerned with trying to get along with the individuals who are there, but understanding there is a changing dynamic, as we learn more about the areas, the science of these

areas, these ecosystems; as we learn more about it, to apply and

try to manage them in an intelligent way, and that is an ongoing

process.

And I realize that it means change for all of us, change if we

want to attain certain goals. Clearly there are many that disagree

with those goals, and that is all right. You can be more against the

Wilderness Act. The question is if you don’t want to attain that

goal or have that type of land set aside for future generations, that

is a legitimate point of view. Or if you think of a different way to

accomplish that, that is OK. I am, frankly, trying to do the best

we can to invent laws that preserve them and rehabilitate them.

Thank you. I thank the witnesses.

Mrs. CHENOWETH. Thank you.

The Chair recognizes Mr. Doolittle.

Mr. DOOLITTLE. Thank you, Madam Chairman.

I agree with Mr. Kildee, you do learn things from these hearings.

One of the things I learned is that the Humane Society helps the

Sierra Club. Mr. Unser, if we could have an alleged interest within

the purview of the Humane Society, the Forest Service might actually have gone looking for you.
48

Mr. UNSER. I agree.

Mr. DOOLITTLE. Mr. Nugent, I think you raise an issue that probably should be the subject of hearings in and of itself, this issue

of providing more quality wilderness-type area for people to use,

because as I understand what you are saying, the available land

for hunting and fishing is becoming so overused that the experience

is really changing for people who wish to engage in that activity,

and apparently the vast designated wilderness areas that we have

are restricted in some ways for the hunting and fishing that you

like to engage in. Would you care to comment on that?

Mr. NUGENT. Well, I am very fortunate in my radio programs

and phone calls and meetings, hundreds of meetings a year, in

meetings with families, the parents desperately trying to encourage

young people to seek a conservation life-style, and I have seen over

and over again that the quality of their outing—and, of course, we

have to realize it is usually weekends for the vast majority of

American families—and the inaccessibility of some of these more

vast acreages that maybe are only accessible via horseback or on

foot literally cause these families to settle for oftentimes a crowded

experience, whereas expanding their recreation into off-limit areas,

opening it up, would further encourage these young people to do it

again. It is really quite as simple as that.

And when they call—I guess the best way I can put it is if I go

to a lake, and my son doesn’t see the bobber go down all afternoon,

I am going to have a tough time getting him to go fishing the next

time; whereas if we can open up some of the areas that currently—

because of their accessibility they are not going to get in there, and

in those larger tracts there is a better opportunity for a wildlife encounter, kill or no kill, game or no game taken, it is, in fact, the

spiritually uplifting experience of just encountering this exciting

wildlife beyond their schools and beyond their cities and beyond

their normal lives that will encourage them to come back.

And I don’t want anybody to confuse what this old guitar player

readily identifies, the difference between the rape of the hills and

a family walking or accessing a piece of—currently inaccessible

property, whether it is on a four-wheel drive recreational vehicle or

on a snowmobile. Certainly sticking to designated trails is once

again—to repeat part of my testimony earlier, a designated trail,

whether on foot, horseback, snowmobile or four-wheel drive, is no

more offensive to my eyesight and my view of this extremely precious and valuable wild ground resource than that of an area that

maybe was disrupted violently by two bull elk fighting. I like to see

people invigorated that way, and I believe as a member of the

Tread Lightly program that human tracks are no more offensive

than the wildlife tracks if we are conscientious, as I find the vast

majority of supporting people to be.

Mr. DOOLITTLE. Mr. Pendley, do you have an estimate off the top

of your head, an estimate of court costs and attorneys’ fee for this

7-year effort that Ms. Thrall has been waging? I think we ought

to have some sense of what it costs to defend a constitutional right.

Mr. PENDLEY. The best estimate I have heard for private attorneys is the cost of being to the Supreme Court and back is about

$500,000, and right now we have done all of that. We have gone

through a District Court, we have gone through a three-panel
49

Court of Appeals, we made a petition to the Supreme Court. I

mean, our petition costs just to print the record and make our petition to the Supreme Court was approximately $18,000.

Mr. DOOLITTLE. And you are not done yet. You are back in District Court.

Mr. PENDLEY. We are back in District Court with regard to the

motorboat issue, absolutely.

Congressman, one of the points that needs to be made is no one

here at this table disputes wilderness. No one says the Wilderness

Act was wrong. In fact, we all believe the Michigan Wilderness Act

was correct. Congress did everything humanly possible to protect

Kathy Thrall’s rights.

What we object to is the manner in which the Forest Service has

implemented it, has ignored the will of Congress, and the incredible cost to Kathy Thrall and her family, and the zero cost to bureaucrats who have done it. And this is the troubling thing: There

is absolutely no downside for the bureaucrat who wants to look the

other way when Congress has made a pronouncement, and there

is a terrible downside for people like Kathy and Ben Thrall.

Mr. DOOLITTLE. Thank you, and I thank all the witnesses for

their excellent testimony.

Mrs. CHENOWETH. Thank you.

Mr. Cannon is recognized for 5 minutes.

Mr. CANNON. Thank you.

Mr. Kildee has introduced a letter from someone in your area

there and talked about balance and balancing between a motorized

and unmotorized or electric motors on boats. Do you have any light

you could shed on the nature of that debate?

Ms. STUPAK-THRALL. Yes. Mr. Tom Church purchased property

on the shore of Crooked Lake in 1989. Mr. Church came into our

neighborhood unknowing to us—of course, it really didn’t make any

difference, we wouldn’t have stopped him from purchasing the

property. But he is a member of the Sierra Club, and they all vehemently support canoe effort only and will oppose all motorized use.

Mr. Church is the only riparian on the shoreline of Crooked Lake

that opposes the motorized use on Crooked Lake, yet he came and

purchased property on Crooked Lake when that motorized access

and accessibility to the entire surface of the lake had not yet been

challenged by the Forest Service. He knew that motorized activity

was there.

Mr. CANNON. So he is not exactly an impartial observer of a bureaucrat process?

Ms. STUPAK-THRALL. That is exactly right.

Mr. CANNON. I noticed in the picture of your cabin, you have a

flag prominently displayed. This may become an issue in a later

panel, but have you ever had any problem with people criticizing

the flag?

Ms. STUPAK-THRALL. Never before, not until it was February 22,

1990, when the Sierra member made that comment to me and

about 50 other people who were in the room that the properties of

Crooked Lake were visually offensive, and please do keep in mind,

my family and I have flown the flag on the edge of that dock since

1939.

Mr. CANNON. Was that directed to the flag or the whole setting?
50

Ms. STUPAK-THRALL. To the whole setting, sir.

Mr. CANNON. I suppose Mr. Unser has had the most pointed experience, but I think, Mr. Pendley, you probably had broader experience, so I direct the question to you, and other panelists may

want to respond.

You talked earlier about the cost of search and rescue. Clearly

in the new monument area, this is going to be a major problem because it is a vast area with tracks that go nowhere. In your experience do the managing agencies, the Federal agencies, have the resources to do significant search and rescue, or is that locally borne?

Mr. PENDLEY. I don’t have the expertise to comment on that. My

own experience in the State of Colorado, when we lost country skiers, that all the agencies have responded very, very well to those

kinds of emergencies, but I can’t comment with regard to whether

or not they have a sufficient budget to engage in that work.

Mr. CANNON. Thank you, Madam Chairman.

Mr. KILDEE. You mentioned the flag and somebody finding the

private property itself offensive?

Ms. STUPAK-THRALL. Yes, sir.

Mr. KILDEE. And I regret people saying things like that because

the Organic Law for Wilderness in 1964—and I put that language

back in the Michigan Wilderness bill saying that the Federal Government could not exercise the right of eminent domain for wilderness acquisition, and I am very sensitive, as you are, Kathy, to the

right of private property owners. You are one. But I made sure

after I had the hearings in the Upper Peninsula, particularly where

the people had some concerns that the exercise of our eminent domain, I put the language specifically in the Michigan Wilderness

bill that the Federal Government could not use the right of eminent domain to acquire private property. And I am glad I put that

in there. I think that is a very important part of the bill, and people can make offensive statements, and I would find it offensive

also that that person made that statement.

Ms. STUPAK-THRALL. I do find it offensive, and I find it further

offensive that the Forest Service continues to uphold and fortifies

those statements.

Mr. KILDEE. I will get into that, but I do think—I am trying to

write a balanced bill, and we write bills here on Capitol Hill, and

they are not perfect, but I did specifically, however, include language that we could not even use the right of eminent domain—

the Federal Government does have under the Constitution right of

eminent domain, but we put in that bill, acquisition and designation of wilderness, that they were forbidden to use the right of eminent domain, and I think that was a good provision of the bill, and

thank you very much, Ms. Thrall.

Mr. CANNON. May I say this: I appreciate the fact that Congress

and you put in the language that would limit that intrusion into

private property rights, and that is very important. I think the

issue here is what the Forest Service is doing with the language

that Congress produced.

Mr. POMBO. Would the gentleman yield for just a second?

We have successfully put that language in a number of different

places limiting the right of the government to use eminent domain

to acquire private property. But one of the things we found over
51

the past few years is because they can’t use condemnation, they

then use adverse condemnation and take it through regulation, because they can’t take it from an unwilling seller. So we are beginning to see cases, such as this one, where they take it through adverse condemnation and just take the property through their regulation, and that is one of the problems that we have been dealing

with over the past several years.

But I thank the gentleman for yielding.

Mr. CANNON. Thank you.

In the rest of my time, let me say, there is no place in America

for regulators to go around the law that way, and I think that is

what we are hearing the problem here really is.

Thank you, Madam Chairman.

Mrs. CHENOWETH. I want to thank the panel, and I want to

thank this committee. I think the questions were outstanding. We

did all learn a lot. This has been a very long and arduous panel,

3 hours, but thank you for your perseverance, and as a member

now of this government, I am looking forward to the day when we

can help correct some of those misjudgments on the part of some

of our people in the field.

Thank you all very much for your generosity.

The Chair now calls the second panel. The second panel will consist of Mr. Todd Indehar, president, Conservationists with Common

Sense, from Ely, Minnesota; and Richard Conti, waterhole coordinator, Society for the Conservation of the Bighorn Sheep, Eagle

Rock, California; David E. Brown, the executive director, America

Outdoors, Knoxville, Tennessee; Edward Baumunk, co-owner, BBJ

Mining, Tecopa, California.

Gentlemen, the Chair recognizes first Todd Indehar.

Mr. Indehar.

STATEMENT OF TODD INDEHAR, PRESIDENT,

CONSERVATIONISTS WITH COMMON SENSE

Mr. INDEHAR. Thank you.

Distinguished Chairman, members of the committee, thank you

for the opportunity to testify. I am president of Conservationists

with Common Sense, a grassroots, all-volunteer organization based

in Minnesota. We are dedicated to preserving public access to public lands, especially with Boundary Water Wilderness. We have

been involved since 1989, including two court actions, appeals, and

four congressional hearings relating to wilderness.

I will be blunt today. Forest Service wilderness policy is intellectually and morally bankrupt. Reinvention didn’t fix it. New ideas

must be tried, and they must be tried soon. Local people and wilderness users must be involved in any new plan. They alone bear

the brunt of these policies, yet they have no voice in the decisionmaking process. They have been ignored, but they have much to

share.

Today I will describe several examples of what is happening to

American citizens at the hands of the arrogant and unaccountable

Forest Service and suggest several reforms for you to consider. My

first example involves Forest Service’s 1992 draft BWCAW management plan in which they tried to ban Scouts from the wilderness, youth groups of all types, families and others.
52

During the public task force process, which we participated in,

preservationists argued that Girl Scouts singing around a campfire

interfered with wilderness solitude, and the group of five canoes on

a lake was, quote, ‘‘visual pollution,’’ unquote. The youth groups, on

the other hand, spent months trying to explain why they needed

a group size of 10 to keep kids in the woods. Forest Service wanted

to cut it to six. The task force did reach a consensus to keep it to

10, but in a stunning display of arrogance, it consciously moved to

eradicate the youth groups from the Boundary Waters.

It angers me to this day they deliberately chose to do that, and

that is how I personally got involved in the issues because it personally impacted my family and their ability to recreate. Only after

months of appeals, $100,000 and a lot of bad press was the Forest

Service allowed to let the kids back in.

Another outrageous example took place on Memorial Day, 1995,

when 62-year-old Dr. Ed Pavek, he was a Korean War vet, were

flying an American flag over their boundary water camp site. Two

uniformed officers approached and told him to take the flag down

because, quote, ‘‘it didn’t go with the wilderness concept,’’ unquote.

The Forest Service then lied. They tried to cover it up. They came

up with several different versions of the story and tried to discredit

Dr. Pavek, and since then Dr. Pavek informs me he has been unable to obtain a permit to go to the Boundary Waters. Whether

that is a coincidence or on purpose, we don’t know.

Also, it is denying public access to the Boundary Waters due to

quota cuts and a dysfunctional system. The Duluth office, which

created the system, has done nothing to fix it for years. Forest

Service personnel are admitting forest permits that are being reserved and not used. Campsites are empty, but people cannot get

a permit. Something doesn’t add up.

The Wilderness Act states wilderness is to be used for quote, ‘‘the

enjoyment of the American people,’’ unquote. American people are

being denied this use because of an inefficient government agency.

It is clear the Forest Service needs this Congress’s help to fix this

problem.

In short, the Forest Service has been inefficient, unaccountable,

dishonest, nonresponsive to local and regional concerns, and too

easily influenced by Washington-based special interest groups.

They are becoming more centralized, while many institutions in

America and around the world are becoming less so. One-size-fitsall policy isn’t working in the Boundary Waters.

Here is what we recommend. First, we recommend that Congress

should immediately initiate studies of existing non-Federal managements structures that could be used as alternatives to Federal

management of wilderness. Congress should immediately initiate

pilot projects to test a wide spectrum of decentralized and private

conservation management structures for wilderness areas.

In conclusion, there are serious problems with this Government’s

management of the Boundary Water Wilderness and other wildernesses, too. People and wilderness are suffering. Decentralization

and privatization need to be tried. Of course, some people will

argue that private and local interests can’t be trusted, that they

would rape and destroy the wilderness. I have heard that many

times.
53

This is arrogant, illogical and fear-based. This disregards the

public attitude toward the environment, especially wilderness. It

also ignores the successful conservation record of local and State

governments and the spectacular record of private initiatives, such

as those of the Nature Conservancy, National Audubon Society and

others.

The voices of status quo and fear must be rejected. This Congress

must show leadership, creativity, compassion, and vision to save

our wilderness areas. Better management of the land means better

government for the people. Better government is smaller, less intrusive and closer to the people, which, in the end, means more

freedom and liberty for everyone. Thank you.

Mrs. CHENOWETH. Thank you, Mr. Indehar, for that testimony.

[The statement of Mr. Indehar may be found at end of hearing.]

Mrs. CHENOWETH. The Chair recognizes Richard Conti, the

waterhole coordinator for the Society for the Conservation of Bighorn Sheep.

Mr. Conti.

STATEMENT OF RICHARD A. CONTI, JR., WATERHOLE COORDINATOR, SOCIETY FOR THE CONSERVATION OF BIGHORN

SHEEP

Mr. CONTI. Thank you, Madam Chairman.

My name is Dick Conti. I represent the Society for the Conservation of Bighorn Sheep, a California nonprofit organization. Since

1969, this society has cooperated closely with the California Department of Fish and Game to implement the State’s Bighorn

sheep management plan. We help the DFG to construct, inspect

and maintain a desertwide series of man-made wildlife drinking

devices called guzzlers.

Since 1988, I have been the Society’s waterhole coordinator. I

consult with the DFG in their planning efforts to return Bighorn

sheep to their historic ranges throughout California. This program

has been very successful and has resulted in a doubling of the Nelson desert Bighorn sheep populations in our deserts.

For 25 years, the DFG, BLM and this society have cooperated

jointly to manage desert wildlife on public lands in California.

However, with the passage of the California Desert Protection Act,

much of our desert is now designated wilderness. The BLM is attempting to administer lands designated by the California Desert

Protection Act as it does most wilderness lands covered by the Wilderness Act of 1964. However, the authors of the act understood

this DFG program was beneficial to the resource, and they wanted

it to continue. They included language in the act that specifically

allows management activities to restore and maintain wildlife populations, and the act further states these activities shall include

the use of motorized vehicles by the appropriate State agencies.

The BLM Wilderness Division does not recognize this language

in the Act. A BLM wilderness specialist told the DFG and the society that any future request for guzzler development in wilderness

will require an Environmental Impact Statement, the paperwork

could take a year to complete, and their answer would still be no.

The Wilderness Division has made up their minds that no wildlife or guzzler development will take place in their wilderness.
54

BLM also consistently tried to deny or restrict the DFG’s motorized

vehicle access to wilderness areas for routine management purposes.

BLM has stated their major concern continues to be motorized

vehicle usage and wilderness. That may be their concern for the

general public who are now locked out of these public lands, but

for them to use that restriction with State agencies in the performance of their duties is intolerable and not in accordance with the

law written by Congress in the California Desert Protection Act.

Here are two examples of attempted restrictions by the BLM. In

mid–1995, a DFG biologist notified the Bureau he would enter the

Turtle Mountain Wilderness by motorized vehicle to retrieve a dead

Bighorn carcass. The BLM contended motorized access was not to

be used for this activity and dispatched a ranger to meet the biologist. The biologist argued the CDPA gave him authority to use a

motorized vehicle in wilderness and, using an existing road, he

drove 4 miles into the wilderness, retrieved the carcass, and drove

4 miles back to the wilderness boundary on the same road.

The ranger wrote an incident report, and the BLM wilderness

specialist advocated a ticket be issued for using a motor vehicle in

wilderness. No ticket was issued, but the BLM strongly protested

this motorized access to the DFG regional manager and has indicated the Bureau would determine when vehicle access was necessary for DFG activities.

Second item. On July 20, 1996, the DFG notified the BLM we

were going to replace a water storage tank at a big game guzzler

in the Sheephole Wilderness. The Bureau dispatched a ranger to

intercept the DFG because the notification letter did not specify

that we would be using motorized vehicles to access the wilderness

on an existing route. Before passage of the California Desert Protection Act, this route had been used for approximately 15 years to

access this guzzler for inspection and maintenance. The ranger told

arriving DFG employees no motor vehicle access had been approved by the BLM, and workers would have to walk to the guzzler, that is 10 miles round trip, in 114 degree July heat, up the

mountain, carrying tools, water and other essentials, an impossible

task without vehicle access.

After some debate, the ranger called the BLM area manager,

who then called the district office manager, who agreed to allow

one vehicle into the wilderness. Allowing only one vehicle to proceed under these weather conditions unnecessarily puts lives at

risk should the vehicle break down.

DFG wildlife management is also being curtailed in the National

Parks. Death Valley, Joshua Tree National Parks, and Mojave National Preserve have all refused to allow the use of motorized vehicles to inspect the guzzlers in their wilderness.

Motor vehicle access is essential to maintain these remote big

game guzzlers because after you have driven as far as possible, you

must hike the remainder of the way, sometimes 4 miles or more.

To not have vehicle access and be required to hike from the wilderness boundary to the guzzler can be physically impossible. In most

instances the terrain is so steep, even pack animals cannot get

there.
55

These guzzlers may be the only source of year-round water available to our wildlife because man has already impacted the land so

heavily. Any future wilderness legislation should be written to

more clearly entitle the appropriate State agencies to manage that

State’s wildlife, whether it be on BLM or park lands. I wish the

California Desert Protection Act could be so amended because our

wildlife will surely suffer if it is not.

Thank you.

Mrs. CHENOWETH. Thank you, Mr. Conti, for that very interesting testimony.

[The statement of Mr. Conti may be found at end of hearing.]

Mrs. CHENOWETH. The Chair recognizes David Brown from

America Outdoors.

Mr. Brown.

STATEMENT OF DAVID L. BROWN, EXECUTIVE DIRECTOR,

AMERICAN OUTDOORS

Mr. BROWN. Thank you, Madam Chairman. I appreciate this opportunity to provide you with the views of America Outdoors and

America’s outfitters and guides. America Outdoors and its affiliate

members represent more than 1,400 outfitting businesses operating

in 40 States. Members provide diverse recreational experiences to

the general public, including whitewater rafting, horse back trips,

fishing, canoeing and kayaking. They operate in a number of wilderness areas managed by the Bureau of Land Management and

the USDA Forest Service.

In the traditional sense, outfitters have been operating in wilderness since the days of Lewis and Clark. Outfitters in wilderness

predate many of the modern forms of wilderness recreation embraced by agency managers and the public. We recognize that wilderness outfitters must be extremely sensitive to the environment

and respect the rights of other users to operate successfully in wilderness.

At the outset, please let me say that in my discussions with outfitters in preparation of this testimony, there were many compliments to agency managers regarding their perspectives and

practices. Region I of the Forest Service is identified often by outfitters as a model for wilderness management.

On the other hand, many outfitters see alarming trends emerging that threaten the viability of quality outfitted services, and I

have four concerns I will briefly outline.

We believe a bias is emerging in many wilderness areas against

that segment of the public who wishes to experience wilderness

through outfitted services. This is manifested in revisions to managements plans, where party sizes and use levels are being reduced

to levels that are not viable for successful outfitter and guide operations. Often these reductions are not the result of resource impacts, because the same activities are not prohibited for self-guided

users.

Number two, in some wilderness areas, management appears to

be more dependent on the values of the resource manager than the

intent of Congress as established in the 1964 Act. In some areas

outfitters praise the cooperation received from managers, and in

others areas they are being forced out.
56

Number three, in some wilderness areas, use allocated to the

outfitted public is no more than 5 to 7 percent of overall use. This

use is tightly controlled and supervised; some might say micromanaged. We believe there are a number of wilderness areas where

managers spend a disproportionate amount of time and resources

managing outfitted use. Despite that low level of use, when cutbacks are called for, these managers often attempt to reduce or

eliminate opportunities for the outfitted public.

Number four, historical and traditional uses that were recognized

in wilderness designations should not be sacrificed once the ink is

dry. It is important to maintain the web of legitimate activities

that are culturally and historically significant that preexisted a

wilderness designation. If these areas qualified for wilderness with

those activities, then there is no reason they should not continue

if that use is managed appropriately.

In general, I share the view of many that maintaining recreation

opportunities for the use of and enjoyment of wilderness areas was

clearly a purpose of the Wilderness Act. I also believe this purpose

is being supplanted by another agenda in some areas. That agenda

is a revision of the purpose of wilderness from that intended by

Congress in the Wilderness Act.

Man has always been a part of wilderness. It is possible to protect and manage wilderness and maintain its natural character

without eliminating man and recreation. I believe the survival of

the wilderness system will depend on expanding the constituency

for wilderness and not on the alienation of those who have long

been a part of it.

I appreciate the opportunity to testify before this committee and

ask my testimony be submitted for the record.

Mrs. CHENOWETH. Thank you, Mr. Brown, that is very interesting testimony.

[The statement of Mr. Brown may be found at end of hearing.]

Mrs. CHENOWETH. The Chair now recognizes Mr. Baumunk, coowner of BBJ Mining.

Mr. Baumunk.

STATEMENT OF EDWARD T. BAUMUNK, CO-OWNER, BBJ

MINING; ACCOMPANIED BY GERALD HILLIER

Mr. BAUMUNK. Good afternoon, Madam Chairman. I thank you

for the opportunity to tell you about our 4-year authorization to a

45-year-old mine, in which misfortune has located it in the area

and made wilderness included in the national park in 1994.

I am Ed Baumunk of Tecopa, California. I have lived and worked

in and around mining in southern California for over 50 years. My

partner A.G. Jackson and I own Rainbow and Caliente Mines within the newly expanded Death Valley National Park. They lie within

the designated wilderness area despite existence of roads, past

mining activity.

The claims are actually in the Saddle Peak Hills close to State

Highway 127 between Baker and Shoshone, and not at all visible

from either Death Valley or the highway. A 1996 letter to Congressman Lewis from the Park Service describes them deep in the

park, and that is simply not true. We asked them, through Congressman Lewis, to be excluded from the park, and they refused.
57

We discovered this talc deposit in 1952. The mines have been in

operation during the periods when the value of the talc has been

sufficient to warrant the mining of the deposit. We built head

frames shown in the pictures in 1953 and 1956, and over the past

45 years, we have estimated that we removed 60,000 tons from the

mines. The main adit extends for over 1,400 feet into the mountain

and shows the continuity, size and extent of the ore body.

We were never too much aware of the work going on in the socalled Desert Plan and the Desert Bill. No one ever came and

talked to us about the various inventories and studies, nor notified

us that operation of our claims might even be in jeopardy. We filed

a plan of operation with BLM, with the Barstow BLM office, in

1993. They approved a minimum operation in July of 1994, allowing 100 tons per day of extraction.

This is only a start-up. We currently have purchase orders for

the possibility of 800 tons a day after start-up, increasing to 1,600

tons per day and leveling off at 2,000 tons a day. These quantities

would come entirely from the underground mine, with the material

being hauled off-site on a road system that has existed for many

years. At the current commercial value of $45, $50 a ton shipping

costs and up to $120 a ton refined, we are talking significant

money.

The value of the material would, I am told, generate a considerable boost to the economy in this remote area of San Bernardino

and Inyo Counties through employment and support factors related

to it.

We have been shown that the BLM, prior to 1992, did not think

the area should be wilderness. They prepared a Wilderness Report,

which was given to Congress in 1990. That document, which I have

with me, indicates why the area was not believed to be appropriate

for wilderness, but must have been ignored when Congress passed

the bill in 1994, putting our mines in wilderness. Attached is a

copy of this report.

Among statements in the section pertaining to our area, I call to

your attention, ‘‘The value of known and potential mineral...deposits were determined to be of greater significance than

the area’s value as wilderness.’’

‘‘Portions of the WSA have high potential for talc and moderate

potentials for silver, gold and copper. Past producing mines are located within the WSA. The evidence of surface disturbance still remains. There is one active operation within the WSA. There are 28

mining claims within the WSA on record with the BLM in 1987.’’

It goes on.

The access to our mine, and the mine itself, has always been

shown on the USGS and the Auto Club maps of the region. The

road was prominent enough that it formed the dividing line between two BLM study areas, 219 and 220. The Desert Bill authors

drew maps for the Desert Bill and ignored the road. The two units

were put together, or perhaps they knew about the road and wanted to make it more difficult for us to operate our mine.

This has now resulted in the Park Service closing our access road

or at least posting it for use by authorized vehicles only. Since then

they have not approved our mining plan. We are not sure whether

we are fully authorized, but we have still used the road and con-
58

tinue to do so. I guess verbally it is OK, but what about our contractors and our employees and our guests.

The road has now disappeared from the Triple A maps, in 1990

and 1995, which you can see there on the photograph board. Does

the Park Service think they can make us go away by giving them

the wrong information?

The Desert Act contains language protecting existing rights, and

in our minds this is the question that we have valid right, and the

government makes the determination. In 1995, we applied to Death

Valley for permission to mine because of the 100-tons-a-day operation by BLM. It was not enough to cover the currently proposed

development and demand. The Park Service has considered our application at a snail’s pace.

Mrs. CHENOWETH. Mr. Baumunk, I wanted to let you know that

your time is up. I would be glad to grant another 30 seconds if you

want to tie it up. Your entire statement will be entered as part of

the record, and we will have time to question you. Do you want to

take another 30 seconds to wrap it up?

Mr. BAUMUNK. We have our own problems, and we hear there

may be hundreds of those throughout the desert. Some of the big

miners got taken care of. There are many of these little mines,

many of which might not have been in regular operation, but which

have potential for reopening and are now being stopped by BLM

and the Park Service. Congress needs to fix our problem and take

a look at what they did in 1994 when they created all this wilderness without considering all the data on mining and mineral values.

Thank you.

Mrs. CHENOWETH. Thank you very much, sir. That was very informative.

[The statement of Mr. Baumunk may be found at end of hearing.]

Mrs. CHENOWETH. I wanted to ask Todd Indehar, you made some

very specific suggestions to the Congress, and I think very valuable, about studies and projects, but I wanted to take your testimony just a little bit further. You obviously disapproved of the Forest Service system of the boundary water, but I would like to get

on record, what would you think would be a better management

structure?

Mr. INDEHAR. Thank you.

Recently, the Forest Service has complained about budget cuts,

that it can’t manage it, for $1.4 million a year. I would just like

to offer in the spirit of humor, I will take the $1.4 and manage it

for them and see how it goes.

Mrs. CHENOWETH. It is duly noted.

Mr. INDEHAR. But seriously, how would I like to see it managed,

and other people in my organization, we would like to see it managed as proposed by Congressman Oberstar last year and Senator

Grams last year. We would like to see the Forest Service’s absolute

authority handcuffed a little bit. We would like to see them retain

ownership. We would like to see them also be forced to not only

take input from other levels of government—local, State, and tribal

governments—into their plans, but also to have those units of gov-
59

ernment have some say, have a vote and a voice on how the area

is managed.

And our reasoning is simple. The reason is the local people and

the wilderness users are the ones that bear the brunt of all the policy-making that comes out of here and all the decisions, and yet we

have the least voice, and I think that is absolutely upside down.

I think it is wrong zoning as such is being done from Washington,

D.C., and perhaps we wouldn’t be making this supposedly radical

suggestion if the Forest Service hadn’t been so inaccessible over the

years, but they have. It is kind of like the term limits or other

things. People get fed up, and you have to say you have to try

something new; what is happening now is not working.

We like the intergovernmental management approach that

brings the power down closer to the levels of people that are the

most impacted.

Mrs. CHENOWETH. Thank you very much.

Mr. Conti, what other wilderness restrictions have you encountered, question number one? Specifically what has been the response of the National Park Service to your work in the desert, and

can you talk about the deaths that occur in the Mojave Preserve

and whether the services applying the access provisions—what are

the services applying access provisions to their units?

Mr. CONTI. The reaction from the Parks has been a complete denial of any motorized vehicle access. In a first correspondence with

Death Valley National Park, I inquired about access along traditional routes we have used for years to access the guzzlers before

it became part of the park and part of designated wilderness. Not

only did they disallow motorized vehicles access, but their opening

comment to me was that if an inspection person were to go in to

open the valve to provide water to wildlife, that that would be an

artificial manipulation of the resource, and they would frown upon

that.

Joshua Tree National Monument several years ago proposed to

remove the water collection device at an existing big game guzzler

because it was an above-ground object, and they would like to remove man-made structures in the wilderness. I have made mention

we could mitigate that. We would be happy to go in and remove

the above-ground water collection system if we could put a system

underground of perforated pipe that would collect residue water in

the washes. Joshua Tree said, we will get back to you, and I found

out 2 weeks later they got another team of folks from somewhere

to remove the water collection device at an existing spring and guzzler.

In regards to the deaths in the Mojave National Preserve, it is

my understanding that there was some aerial study work being

done by a contract biologist for the Department of Fish and Game.

It was related to me they were not able to land in the wilderness

for some of their activities. Most of their activities did involve just

flying, but in all the other issues I have been involved, or any other

Fish and Game State employee, we would routinely land and check

out every guzzler in the immediate area where we were doing any

census or research. And at that point it is very hard to say, but

possibly if we had been able to land the helicopter and just rou-
60

tinely check the guzzlers in that area, we could have determined

the problem and saved the lives of upwards of 50 sheep.

Mrs. CHENOWETH. Thank you, Mr. Conti.

The Chair recognizes Mr. Kildee.

Mr. KILDEE. Thank you, Madam Chair. I have no questions, but

I want to thank the witnesses for their testimony.

Mrs. CHENOWETH. Thank you, Mr. Kildee.

The Chair recognizes Mr. Pombo.

Mr. POMBO. Thank you.

Mr. Conti, during the debate on the Desert Protection Act, I introduced an amendment which would have left open a number of

the roads, the historic roads throughout the area, and one of the

reasons that was brought to my attention during that entire debate

was exactly what you have testified here to today, that there were

a number of water guzzlers that had been established throughout

the years that acted as the only source of water for wildlife in the

desert during the summer months, and that it was imperative that

those be maintained. And during the debate on the Floor, I said

that without access into those areas, that there were a number of

them that would fall into disrepair, and what you are testifying to

today is that that is exactly what has happened, that there are a

number of guzzlers that have fallen into disrepair that are no

longer operating, and the result is that the wildlife has suffered in

the area because of that. How widespread has that become at this

point?

Mr. CONTI. At this point, I would say upwards of 25 percent of

the guzzlers are in danger of failure due to lack of access, particularly the five in Death Valley, three in Joshua Tree and six in the

Mojave Preserve. Some of them require very long four-wheel drives

and then additional lengthy hikes up the side of the mountain, because the sheep traditionally like the higher places, and access to

those being restricted—you have to understand when someone goes

in to inspect the guzzler, in their backpack they probably have two

gallons of water for the day, two 24-inch pipe wrenches, as well as

assorted valves or plumbing fittings, because if they run into something that happened over the winter, say a freeze break, they

would like to get that up and operating as soon as possible, and

with the length of hike required in many of these systems, it is

going to be increasingly difficult to maintain these systems.

Mr. POMBO. In your experience over the years of trying to protect

the wildlife in this area, do you think that there was any real reason to close down all of the access points into the desert?

Mr. CONTI. No, I don’t feel that that was a wise decision. Man

has impacted that desert heavily. It is really not a true wilderness

because there are so many mine roads and exploratory roads that

have been established there for the last hundred years.

Each system has, as it is built, in the environmental assessment,

a proposed route of access that, including the driving and hiking

areas is mentioned and described and adhered to, and with the

BLM we do have latitude, we are working with them, because in

title 1 of the bill covering the BLM lands, authorized access is allowed during the month of April and October for inspection.

That really isn’t enough inspection time to do the job. Preferably

we would like to go in every month to maintain these systems, but
61

the BLM has dictated that won’t be the case. Access for maintenance to those in the parks and preserve do not fall under paragraph F, the fish and wildlife amendment that was added to the

bill. At least that is how the parks and preserve are representing

it to us, and at this point they are refusing any vehicle access.

Mr. POMBO. What do you think is going to happen with the wildlife? I mean, are they migrating to a different area now as a result

of there not being water?

Mr. CONTI. Bighorn sheep in particular are a localized animal.

They will stick around the known water sources, and they are pretty much a homebody considering a mountain range or wilderness.

Rams will wander and change from range to range because—that

is becoming difficult also because we have so many highways and

roads out there, particularly the interstates, that are a barrier to

sheep migration or even a mixing of the gene pool, which is so important to a healthy herd, and the fragmentation of the resource

is so great that man has to go back and help correct some of the

situation.

Traditionally the water sources that were available to wildlife

have been used by miners, ranchers, farmers, groundwater pumping for the big cities, and they have lowered the water table or just

usurped the historic water sources, and our effort is to restore

water to historic ranges to augment wildlife populations.

Mr. POMBO. So if you don’t have access to do that, which is currently the case, and the sheep won’t migrate to another area, what

is going to happen?

Mr. CONTI. The sheep will perish, as will all the wildlife that depends on those guzzlers, including mule deer, bobcat, and fox and

reptiles. They are designed so all the wildlife can get a drink from

them.

Mr. POMBO. Isn’t that kind of contradictory with the stated purpose of establishing wilderness areas?

Mr. CONTI. I would think so, and I would think paragraph F of

the fish and wildlife amendment would have allowed us more access.

The BLM is being very restrictive, but when I twist their arm,

I usually can get some sort of results as an outside entity. The Department of Fish and Game has great difficulty at interagency cooperation, and eventually the systems will fail without maintenance from us, and the wildlife that depends on them will also perish.

Mr. POMBO. Thank you.

Mrs. CHENOWETH. The Chair recognizes Mr. Vento.

Mr. VENTO. Yes, Mr. Conti, I remember that the debate over the

California Wilderness Act, there was a provisions added, I didn’t

favor it, that provided for motorized access to deal with the guzzlers. You are suggesting to me that that is not being permitted?

Mr. CONTI. That is correct.

Mr. VENTO. One of the issues you raised is there was an aerial

survey that apparently located 50 Bighorn sheep that were dead,

but wasn’t that because one of the sheep fell into the water, and

there was actually a problem with poisoning?

Mr. CONTI. That was the consequence. A system—the person

that normally inspects that was under the impression that he—
62

well, he had no access to the wilderness, and the system managed

to go dry.

Mr. VENTO. Yes, I think it is important because we keep mixing

the park and wilderness in terms of Joshua Tree. But it is a real

dilemma, I might say, in terms of how we manage or how we try

to manage game in parks and/or wilderness, because for instance

around Camp David north of here, we got too many deer in the

park. We have too many Buffalo in Yellowstone. So there is a real

dilemma in terms of how you preserve and do this. And the Tetons,

they shoot the elk when they cross the line, you know, and shoot

the Buffalo when they go outside the park in Montana.

The issue in terms of wilderness is very often the Forest Service

today—not the BLM, I understand that—has the largest group of

mules right now in the Nation. They actually preserve the maintenance of that cultural and historic tradition of Americans. As a

Democrat, you might understand, I am sort of partial to mules and

have sometimes been associated with them in other ways, not quite

as affectionately, you might say. But I think in this particular

issue, while there is a problem here, I think we need to explore

that. So I don’t know if it is so much the law in this case, because

there is a specific provision as to how it is applied. Someone is

doing studies. Things are going to change, but it would have been

possible to use mules in that case, and of course we know from our

other advertisements, mules seem to have made it through that

type of terrain historically.

I have to, of course, recognize Mr. Indehar that is here as someone who we disagree pretty much on some of the boundary water

issues, to put it mildly. But I did want to see if we could get

through this today with a couple questions.

I know that Mr. Pavek you referred to in terms of the flag episode. I don’t know the details of that. I don’t know whether the

Wilderness Act really prevents or limits flying flags. I expect you

can have—I know one thing, in northern Minnesota one time when

we had an incident occur in a park, actually someone decided they

weren’t getting the right price for it, so they started to paint the

rocks and put up a giant plastic statue, trying to be as offensive

as possible, because, in fact, they weren’t getting what they wanted

in terms of price. At the end of the day, they got a better price,

and that solved the problem.

So I think there are limits in terms of what people can do. I

might say in this case I looked at that as sort of obnoxious behavior, but you have to bounce that off against what the Park Service

was offering the guy for the land. I must explain that, Todd, you

probably weren’t up there, you were living in Minneapolis then.

That is why I was picking on urban guys. I was wondering which

camp you consider yourself?

Mr. INDEHAR. I have seen it from both sides.

Mr. VENTO. But Mr. Pavek wasn’t able to get a permit. That is

important because a lot of wilderness areas don’t have a permit

system, and this is probably something alien to most of you. And

we set that up, that is working with Representative Burton, Chairman Burton, at that time, and others, we set up the permit system

because we realized there was a certain carrying capacity that this

area could absorb. This was the most extensively used wilderness
63

in the eastern United States. And, Todd, are there any type of limits? Do you think we should have some regulatory way to deal with

that, or do you think we ought to just take all the permits off?

Mr. INDEHAR. That is a good question. We see the reason for a

permit system in the Boundary Waters. The question is, if I could

answer your question, is not should there be a permit system, but

should it be a well-managed permit system, and should the levels

be set at levels that are reasonable for public access, and that is

the zone that we are discussing.

Mr. VENTO. I think the other side is you want to set it not just

where the access points are. We can always disagree about that,

too. The other issue is how much use can that area we all want

to protect—I guess how much use can it absorb?

That is the question, and this is a question we haven’t asked ourselves with regards to most areas. But this area, actually a million

acres, imagine, is used that extensively that we have to ask ourself

how much can it use.

There are all sorts of problems that arose with it. I really regret

the fact we ended up paying sort of the guinea pig in terms of this,

but, you know, I think it is important that the Forest Service not

discriminate against someone like Mr. Pavek. You point out in his

statement, he says he applied for a permit on July 4. Well, that is

one of the busiest times of the year, isn’t it, today, in terms of the

boundary waters?

Mr. INDEHAR. No, it is not. A lot of people stay home.

Mr. VENTO. One of the busiest times of the year.

Mr. INDEHAR. Of the whole year, but not of the summer months.

Mr. VENTO. I would assume it was. But he then points out he

did get a day permit by going to the resort, so that was not issued

by the Forest Service.

Mr. INDEHAR. There is no quota on the day permits. Anybody can

go in for a day.

Mr. VENTO. And then he said that there is some sort of anecdotal

information, that he didn’t see anyone else in Baswit, but that does

not demonstrate that there were permits available; is that right?

Mr. INDEHAR. In Dr. Pavek’s case that is probably right, anecdotal. I have right here, Congressman, examples of permits that

were supposed to be picked up and used by people that weren’t,

and we studied this and we found that depending on the type of

permit that you are talking about, motor, paddle, overnight, day,

between 20 to 50 percent of the permits that were reserved for

entry to the Boundary Waters were never picked up, never used,

and the vast majority of those because of Forest Service policy, we

call them ‘‘no shows’’ when somebody doesn’t show, are not put

back into the system.

Mr. VENTO. I agree that if the area can absorb that use, they

ought to be available to be used. I might point out when you are

talking about local use or local interest, something like 70 percent

of the users are from outside the area, so they should have a voice,

and they obviously do through me and through other Members of

this Congress.

Can I have consent to proceed for 2 additional minutes of questions?
64

Mrs. CHENOWETH. Without objection, each one of us will have an

additional 5 minutes, Mr. Vento.

Mr. Indehar, I am struck with your testimony about Mr. Pavek,

a veteran, who is unable to fly the flag, and I think this is carrying

policy to an absolutely ridiculous degree. This man fought for the

ability to fly the flag from sea to shining sea in America, and I

think it is very telling. It is an unfortunate example of how policy

has run awry, and I thank you very much for interjecting that into

your very interesting testimony.

Mr. INDEHAR. Thank you.

Mrs. CHENOWETH. Your ideas have been very good, and I look

forward to working with each and every one of you in the future.

Mr. Conti, I want to let you know the California Bighorn sheep

has been transplanted into the southern Idaho area. We cherish

them there, and we had the opportunity last year to transport into

five different States California Bighorn sheep. So I appreciate the

ability to work with your organization and the State of California

in helping to propagate the existence of this magnificent animal.

Mr. CONTI. Thank you.

Mrs. CHENOWETH. Mr. Baumunk, I am very interested in your

testimony. Can you tell the committee much more about the economic value of the claims that you were talking about, and when

National Park Service did their study, how much material did they

find in the claims?

Mr. BAUMUNK. In our mine we did a report stating that it is

more than adequate to mine, is 1,775 feet wide, a mile long, and

we just scratched the surface. Every time we go down 100 feet in

that mine, we have over 6 million tons of reserve, and they have

found 1,089,000 tons plus at the first level of our mine that we

have not mined out, and they only took in about a third of the ore

body, in fact even less than that, that they were looking at. They

just looked at what we had exposed in the tunnel that is 1,400 feet

long, back into the mountain.

Mrs. CHENOWETH. That 1,800,000 figure you used was raw ore?

Mr. BAUMUNK. Every time we have mined that, it’s more extensive. You can see by the pictures there.

Mrs. CHENOWETH. Can you tell us about the two wilderness

maps that you have up there? What do the colors mean, and why

is it that there is any problem with your mine in this area when

it was recognized the valid and existing rights would be preserved?

Mr. BAUMUNK. Well, we have a thank you note to Mr. Martin for

what he done against Rainbow Mine, put it in the wilderness.

Saddleback Hills were designated nonsuitable for wilderness twice

by the government, in 1980 and 1994 is the last time. Then 1992

they were all designated, not wilderness areas.

Mrs. CHENOWETH. To put it generally, sir, these are very interesting maps, and your mine has not only had its rights preserved,

but it is not inside the wilderness. Now apparently the problem is

then access, right?

Mr. BAUMUNK. We are in the wilderness area, according to the

park. We are showing the old boundary there on some of that and

the new boundary together. I would like to have Mr. Gerald Hillier

represent the maps and stuff. He can designate it better.

Mrs. CHENOWETH. This is the old mine up here.
65

Mr. BAUMUNK. Mr. Hillier will do that for you.

Mrs. CHENOWETH. I wonder if without objection Mr. Hillier could

answer the question.

Mr. HILLIER. Thank you, Mrs. Chairman. I am Gerald Hillier

and represent San Bernardino County.

The top map you are looking at is the old BLM study area, and

it shows areas 219 and 20, which are surveyed and determined to

be of higher mineral character. It is the area Mr. Baumunk referred to in the testimony as having the mining claims in them and

having them be not suitable for inclusion in the wilderness system;

represents what Congress finally passed and put that entire area

and ignored the road that was the boundary between 218, 219 and

220.

And, well, on the other map, the picture right there behind your

head shows that road, and it shows the Park Service post in the

middle of it, denying access to any but authorized vehicles, and

when Congress passed the 1994 act, that road ceased to exist.

Mrs. CHENOWETH. With the red post right in the middle of it,

right?

Mr. HILLIER. Yes, ma’am.

Mrs. CHENOWETH. Thank you very much. I see my time is up,

and the Chair yields to Mr. Kildee.

Mr. KILDEE. Thank you, Madam Chair.

I yield my time to Mr. Vento.

Mr. VENTO. I thank the gentleman for yielding to me. And, Mr.

Indehar, I have to leave for another activity, and I didn’t want to

run away without talking about the issue of this permit system and

the group size issue, which was a Forest Service recommendation

made in the early 1990’s. In your statements you imply that the

Boy Scout groups who are from the Boy Scout canoe area, they

weren’t barred, were they?

Mr. INDEHAR. No, my specific statement specifically said after months of appeals and $100,000 in costs and a lot of bad press, the

Forest Service was forced to allow the kids back in.

Mr. VENTO. Was that the rule and regulation procedure that you

are talking about?

Mr. INDEHAR. The administrative appeals process.

Mr. VENTO. The issue is that there were group size limitations

that you were talking about, is that not the case, group size limitations in the rules and guidelines that they were buzzing to change;

is that right?

Mr. INDEHAR. That is right.

Mr. VENTO. And they didn’t change them in the end.

Mr. INDEHAR. Yes, they did, and they limited the water craft, so

they effectively got a group size of eight.

Mr. VENTO. But they didn’t limit Boy Scouts, it was to all groups;

is that correct?

Mr. INDEHAR. Anybody who wanted to travel in a party greater

than six. But the reason I bring up the Boy Scouts and Girl Scouts

and church groups and the families is because we all participated

in the public task force process, which was supposed to be a consensus-based process. We went for months and explained the ramifications economically and socially on the groups. Everybody agreed

the group size of 10 was not causing a resource problem, it was a
66

social problem, and the task force recommended a group size of 10,

I have numerous supporting documents, yet the Forest Service

came back and said six. They chose consciously to ignore our input.

Mr. VENTO. They actually changed it to a higher number, but I

think there was a lot of controversy. The Forest Service has gone

the other way.

You talk in here about the motorized portages, and in that case

the word ‘‘feasible,’’ I would disagree with you as to whether or not

that is a well-understood term of art by any lawyer. I am not a

lawyer, but I think it is well-understood in terms of what it means,

applied no different in the Wilderness Act as in the whole host of

legal matters.

Mr. INDEHAR. I didn’t say that that was the—that was the lawyer of the preservationists that said that.

Mr. VENTO. But there is a representation that is not understood,

and I think it was understood as to what it meant, and, of course,

there is a disagreement about what is feasible. The Forest Service

agreed with the fact that the truck should continue to be used. On

the Supreme Court decision not to hear the case, the Court turned

it over.

Mr. INDEHAR. Right at a critical moment they bailed out and left

us hanging.

Mr. VENTO. Well, they turned it over, however you want to characterize it.

Mr. INDEHAR. That is what happened.

Mr. VENTO. They turned it over. They refused to hear the circuit

court decision, and that became final.

Mr. INDEHAR. No. Our group, the city of Ely and others, took the

case to the Supreme Court. We tried to get them to hear it. The

Forest Service decided not to take it to the next level and then

showed——

Mr. VENTO. The Forest Service actually was—there are times

they agreed with you and times when they don’t, and when they

don’t agree with you, you obviously are choosing to part company

with them; and when they do, you are not.

I would just point out one other statement in here, and it is a

quote from this book that you get into, but the characterization

that I object to, Todd, and I would just call your attention to it, is

a derogatory term in terms of referring to a former Member of Congress, and I would like you to take those words out of your statement. You are fully entitled to your own view, but I think representing that before this committee for someone that served is inappropriate.

Mr. INDEHAR. Why do you think it is an inaccurate characterization?

Mr. VENTO. I just think it is inaccurate. I would not be the first

to admit that my colleague obviously was not—you know, had consumed alcohol, but I don’t think that that in and of itself indicates—I think it is an inaccurate characterization.

Mr. INDEHAR. I stand by my characterization, and the costs that

that type of policy-making you are putting on thousands of

people——

Mr. VENTO. I am reclaiming my time. It is my time.

Mr. INDEHAR. I am sorry.
67

Mr. VENTO. You have had your time. The fact is that the law

that occurred in 1978 that was passed was passed with the support

of both Senator Muriel Humphrey and Wendell Anderson and Senators. It was passed with the support of the Governor at that point,

it was passed with the support of the six or seven Members of the

delegation, and to represent that this was simply the act of a Subcommittee Chairman who happened to be involved in some of the

negotiations, and to characterize it as you have here is, I think, inaccurate, inappropriate and unfair.

Mr. INDEHAR. I stand by my testimony.

Mr. VENTO. Thank you.

Thank you, Mr. Chairman.

Mrs. CHENOWETH. The Chair recognizes Mr. Pombo.

Mr. POMBO. Thank you.

Mr. Indehar, you made the statement in your opening statement,

in answer to the question, that you didn’t think it was fair to have

Washington, D.C., doing local zoning issues, and we have heard

that a number of times on pieces of different legislation. But the

response that we have always gotten from that kind of a statement

is that these assets belong to the people of the United States, and

that someone from New Jersey or Los Angeles should have every

right to dictate what decisions happen, in your particular case with

the Boundary Water. How do you respond to that kind of an argument?

Mr. INDEHAR. Without getting overly technical or philosophical,

I mean, what you are talking about is the public good argument

for the public provisions of wilderness, and I think other people

have written and spoken to that. The conclusion a lot of people

have drawn is the preservationists haven’t justified the fact that

many—you know, that everybody is supporting a benefit for a relatively small number of people who actually use wilderness; that

we are engaged in a massive transfer activity.

I would also say the average person in L.A. or Chicago or Minneapolis is probably a decent American that believes in fairness

and reasonableness, and if they really understood what burdens

people who live near these areas are under because of Federal policy, that they would agree, and they would try to seek some balance between preservation and fairness.

And that is the title of my talk, Towards a Humane and Effective

Policy. We have to put the people part of this wilderness back into

the equation. We need to start talking about it, particularly in my

area that was carved out of one of the most dense areas in any of

the whole wilderness preservation system. The social costs were

tremendous. The economic costs were tremendous. The people in

my community are still suffering from that, and nobody talks about

it, nobody acknowledges it, and I say, it is a small price that this

country could pay, this big public interest, the rest of the country

could pay to Grand Marais and Tower and the other small towns

to say what can we do for you that we can help ease this burden

a little bit and return just a bit of fairness back to you. That is all

we are asking for.

That is all we are asking for. We are not asking to do away with

the wilderness. We are asking for a small sense of human compassion and fairness.
68

Mr. POMBO. Because it is so widely used, that particular parcel,

that wilderness area, because it is so widely used, in hindsight

would it have been more appropriate that that be designated a national park or some other type of conservation status be bestowed

on that area other than wilderness? Because from what you are describing to me, it does not actually fit the requirements of the Wilderness Act.

Mr. INDEHAR. You are right. Half of the areas, half of the area,

500,000 acres, have been entirely logged, resorts, all types of developments, roads, et cetera——

Mr. POMBO. There is development within the area——

Mr. INDEHAR. There was. People’s resorts, cabins, homes, were

bought out, dragged onto the ice, burned and left to sink. If you go

scuba diving in some of our Boundary Waters today, you will go

down there and you will find refrigerators, stoves, washing machines, and whatever else was there when the Forest Service got

done littering the bottom of these lakes with this stuff.

But the first thing you said, if I could take a second here, there

is a myth that it is heavily used. They like to point out a million

recreational visitor days, but a visitor day is 8 hours in the wilderness by one person in a party. A more accurate way to look at it

is there are 25,000 permits issued for this million acre area over

a 5-month span of the year, and when you average that use out,

plus taken into account that anywhere from 20 to 40 percent of the

people that appear to be in the wilderness based on permit reservation numbers, aren’t actually getting in, you are finding a highly

underutilize region.

Mr. POMBO. How many people actually go into the wilderness

area annually, individual people?

Mr. INDEHAR. About 25,000 permits with an average group size

of four. So——

Mr. POMBO. One hundred thousand people——

Mr. INDEHAR. You are looking at 100,000, plus there is some disagreement about the level of day use, people going in to pick berries in the wilderness or paddling around on a lake. They are not

camping, building fires, portaging and doing that stuff. So essentially, the overnight 25,000 parties per year into a 5,000 square

mile area.

Mr. POMBO. You know, throughout the 4 years that I have been

back here, one of the things that I have tried to do and a number

of Members have tried to do is bring more local people into the decisionmaking process. When you establish a wilderness area or a

park or some other Federal action, that more local people be

brought in and allow to shape what it is going to look like and

what the use is going to be. And I think that the testimony that

we have heard from this panel, whether it is someone like Mr.

Conti that is obviously concerned about the wildlife in the desert

in California, whether it is someone like you who is a local activist,

so to speak, someone who has gotten involved in the local problem,

or Mr. Baumunk who has a right as a resource extractor from what

is Federal lands. And bringing in the group as they would sit at

this table, if you all represented the same wilderness area and you

actually sat down together and said, how do we protect the environment, how do we allow people to have access, how do we allow
69

some resource extraction from this area that does not disrupt the

other two, I think by doing that we would actually reach some kind

of a solution that everybody could live with.

The problem that we have run into, though, is that a lot of people are afraid to allow that to happen, because that takes too much

power away from Washington. And the decisions are no longer

made here; it is actually being made by real people who would have

to live with the results of that decision. And I don’t think that a

Member from Tracy, California, can legitimately dictate exactly

what the use of the Boundary Waters should be.

Mr. INDEHAR. I agree.

Mr. POMBO. And I think that you do need to bring local people

in. Because they have competing interests, competing desires, competing agendas, and most of the time that we have been able to do

this and actually bring local people in, they can find solutions, they

can find ways that we can all live with that meets the needs that

they want, and I think that on cases like this, this is really where

we need to move in that direction. But I thank the panel very

much for your testimony.

Mr. INDEHAR. Thank you.

Mrs. CHENOWETH. Testimony from this panel has been absolutely

outstanding, and Mr. Brown, I don’t know whether you should consider yourself fortunate or not for not being peppered by this panel

with the mood that we are in today.

But I do want to let you know that the four points that you made

in your testimony were outstanding, and I do want to work further

and I will be having a hearing on the impact of wilderness policy

on outfitters and guides. I hope Knoxville, Tennessee, isn’t too far

to come back. I know it is a sacrifice, but we are working together

to be able to craft and enforce better policy.

It is something—the issues that you brought out in your testimony are something I am keenly aware of in what is happening in

Idaho, and it is a complete distortion of what Senator Frank

Church, father of the 1964 Wilderness Act, who worked closely

with outfitters and guides across the Nation, and I have studied all

of the hearing testimony and the debate before Congress, as well

as the act and ramifications, and he would be so utterly surprised

to see what has happened to the outfitters and guides.

I thank you very much for your valuable testimony. And to all

of you members, or participants in this panel. Thank you very, very

much.

Mr. BAUMUNK. Thank you, ma’am.

Mrs. CHENOWETH. The Chair will recognize the final panel. The

Chair recognizes George Nickas, a Policy Coordinator of Wilderness

Watch in Missoula, Montana; and Darrell Knuffke, Western Regional Director of The Wilderness Society, International Falls.

Before we begin with the testimony of Mr. Nickas, I do want to

say that the Chair was open to having more people with your persuasion and the input that you could bring to this committee, but

it looks like you are going to be having to pack all these horses,

just the two of you, because only you were willing to come and offer

your point of view. But I thank you very much for sacrificing this

day and all the time it has taken to prepare for this.

The Chair now recognizes George Nickas for your testimony.
70

STATEMENT OF GEORGE NICKAS, POLICY COORDINATOR,

WILDERNESS WATCH

Mr. NICKAS. Chairman Chenoweth, Congressman Kildee, we appreciate your staying around to hear this testimony. I am George

Nickas, Policy Coordinator for Wilderness Watch. I appreciate the

opportunity to provide our views on the management of our Nation’s priceless wilderness heritage.

Wilderness Watch is a national organization whose focus is the

stewardship of lands within the national wilderness preservation

system. We consider ourselves strict constructionists of the Wilderness Act. We do not seek to limit any rights explicitly granted in

the law, nor do we attempt to find rights and privileges that don’t

exist in the legislation. Put another way, we believe the Wilderness

Act means what it says.

The president of our organization, Mr. Bill Worf, who is in attendance today, was the first head of wilderness management in

the U.S. Forest Service. Bill was a member of the task force that

drafted the regulations in 1964 that implemented the Wilderness

Act, and he directed the development of the Forest Service Manual

policy for the day-to-day management of wilderness on the national

forests. The regulations and policy remain largely intact, and that

is as it should be, since the intent of the Wilderness Act is remarkably clear.

The issues discussed today aren’t new. They were debated for 8

years leading to passage of the act, and in virtually every piece of

wilderness legislation passed since that time. The complaints you

have heard have nothing to do with overzealous managers or an

unworkable law. Instead, for the most part, they represent the simple truth that some folks don’t believe their personal use of the

land should be restricted by wilderness designation, or who in some

cases don’t believe they should be bound by the law or held accountable for their actions. If we decide to grant exceptions for

every special interest, we won’t have a wilderness system.

Wilderness management isn’t easy. As the pressures from an increasing population accompanied by growing mechanization come

to bear on the wilderness system, the need for strong leadership in

the agencies and the unequivocal support from Congress are essential. What is needed most of all is a commitment from the management agencies to adhere to the letter of the law and to insist that

wilderness users do likewise.

The wilderness systems face significant challenges. Let me note

just a few.

Wilderness ecosystems are being dramatically altered by the introduction of exotic plant and animal species. In some cases the introductions have been unintentional, as is the case with many of

the weeds that now proliferate along trails, at trail heads and other

human impact sites. Sometimes, exotics are intentionally introduced. This is true in the case of non-native game and fish species.

Commercial interests are being granted de facto private rights

through camp site reservations and are allowed to routinely violate

the Wilderness Act’s prohibition on structures and installations.

Despite a Federal court ruling that this policy violates the act, the

Forest Service continues to sanction this practice in a number of

wildernesses.
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Snowmobiles have become a major source of wilderness violations. The statistics are staggering. It is estimated there are thousands of violations in the Boundary Waters Canoe Area Wilderness

each year. Last year, there were 472 violations confirmed in the

Absaroka-Beartooth Wilderness, only 7 perpetrators were caught

and cited. Significant trespass problems exist in other wilderness

areas, in Colorado, Oregon, Montana, Utah, Wyoming, and California. Even with a strong law enforcement effort, it is extremely

difficult to catch most violators. Severe penalties are a necessary

deterrent when the risk of getting caught is so low.

Wilderness Watch applauds those wilderness managers who have

had the courage and conviction to prosecute those who willfully violate the law. We also support and are participating in efforts to

promote responsible riding and winter safety messages. We are

convinced, however, that all the education in the world will do little

to solve the problem without a strong law enforcement effort.

In some wildernesses, aircraft overflights and landings have increased to the point where wilderness values are nonexistent in

some places in some times of the year. Yet there is very little regulation or monitoring of this use, nor is there any effort to assess

the impacts of this use on wilderness visitors or wildlife.

Wilderness use is increasing while the number of wilderness

rangers declines. Recreation use has increased continuously since

the passage of the Wilderness Act. In the 54 original national forest wildernesses, visitation in 1994 was 86 percent higher than in

1965. It doesn’t seem like very many people are being excluded.

Clearly, Americans love their wilderness system and will continue

to seek out its benefits in record numbers.

At the same time record numbers are entering wilderness, the

management agencies seem to be downsizing their seasonal wilderness ranger staffs. These rangers are the backbone of the wilderness protection effort. While the wilderness budget for the Forest

Service has decreased for each of the past 2 years, the downsizing

can’t be explained by reduced budgets alone.

Looking at a longer time line indicates that the amount of money

spent on wilderness management doubled, after inflation, between

1987 and 1996. The bureaucracy is intact but the rangers are gone

and with them the first line of wilderness defense.

Americans are rightly proud of their wilderness heritage and the

commitment they have made to secure it for future generations.

Congress must see to it that the wilderness system is given the attention it deserves from land managers. Congress must also see to

it that those managers who work to preserve the sanctity of wilderness and uphold the strict guidance in the Wilderness Act get the

support they need. Thank you.

Mrs. CHENOWETH. Thank you, Mr. Nickas.

[The statement of Mr. Nickas may be found at end of hearing.]

Mrs. CHENOWETH. The Chair now recognizes Mr. Knuffke.

STATEMENT OF DARRELL KNUFFKE, WESTERN REGIONAL

DIRECTOR, THE WILDERNESS SOCIETY

Mr. KNUFFKE. Thank you, ma’am. Members of the panel, thank

you for giving us the opportunity to be here today.
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My name is Darrell Knuffke. I am the Western Outreach Director for The Wilderness Society, and we represent 320,000 members

across the country.

After hearing the first panel, I believe I should quickly say I am

an avid hunter and an avid angler, and I was last on a snow machine 3 weeks ago going ice fishing.

We are here today to talk about wilderness and how we manage

these special places. I think that discussion needs a context, and

the context must be the national wilderness preservation system.

And I would like to make three points about that.

The national wilderness preservation system is the national

treasure protecting some of the most rugged and beautiful landscapes as well as some of the most intact and productive biological

systems left on the planet. Americans are drawn to our wilderness

areas, many of which are fragile and can be damaged if they are

not managed carefully and sensibly, protected from motorized use

and other threats.

Third, the protection of our wilderness resources for the ‘‘American people of present and future generations,’’ those last words

from the Wilderness Act itself, will require strong, consistent enforcement applied fairly and equally to all persons regardless of

rank or status.

It was 50 years ago this year that Aldo Leopold was completing

work on his Sand County Almanac. That work has shaped a half

century of conservation thought in this country. It was Sand County Almanac that gave us what we have come to call the land ethic.

In one essay, entitled, ‘‘The Ecological Conscience,’’ Leopold said

this to us: ‘‘A thing is right only when it tends to preserve the integrity, stability and beauty of the community, and the community

includes the soil, waters, fauna and flora as well as the people.’’

The highest expression of that ideal in our mind is the national

wilderness preservation system.

For all its apparent size and ruggedness, our wild land resource

is a fragile one, the threats to it are many and varied, and our own

love of wilderness and eagerness to use it are very near the top of

that list. Wilderness popularity grows, and by that I mean both the

number of Americans who support the idea of wilderness as well

as those who choose to directly use the wilderness.

It is worth noting that we are here today at least partly in response to events that involve people going into their wilderness

areas, perhaps inadvertently and ill-equipped, perhaps ill-advised

or even illegally, but make no mistake, they were drawn to their

wilderness; millions of Americans are.

It is also true that some don’t love wilderness, think we have too

much set aside and don’t want more of it, and they also argue occasionally that wilderness is somehow antipeople. When the Congress

passed the Wilderness Act of 1964, it didn’t think so and we don’t,

either. The Congress explained its decision in 1964 using these

words, ‘‘to secure for the American people of present and future

generations the benefits of an enduring resource of wilderness.’’

Wilderness, then, is for people, for us as an idea to embrace and

use, but wilderness is not first and only for direct human use, and

when we enter it we must do so on its terms, not ours, and in ways

to protect and respect two things very specifically. The first is the
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integrity of the wilderness itself, and the second is the ability of everybody else who wants to go there to have what we call a wilderness experience.

At the threshold, then, wilderness is a place without motors, deliberately and specifically without motors, but not slavishly without

motors, not insanely and insensitively without motors. When

human health and safety are at issue, that ideal must stand aside,

and it does. There is sufficient flexibility in the Wilderness Act to

allow this, sufficient flexibility in the agency’s regulations to implement it, and I think it is worth noting, particularly on the heels

of Mr. Unser’s testimony, Mrs. Chenoweth, that the issue is not

whether the Forest Service permitted a motorized search for Mr.

Unser and his friend. It did so without delay.

The question in that case is whether or not Mr. Unser was in a

wilderness area, with a motorized vehicle, deliberately or inadvertently. I think that is the issue. Unfortunately, I think we are hearing only one side of that, because the Forest Service is somewhat

constrained because the issue is now before a Federal magistrate.

So what we know of it we know anecdotally, from press reports,

we have Mr. Unser’s account and it was a harrowing story, no

doubt about that. I grew up in Colorado. I know something about

mountain winters. I think the fear was real, the danger was real.

We are glad he came out. The question is how did he go in.

I would be happy to answer questions, if I can.

Mrs. CHENOWETH. Thank you. Thank you very much for that

good testimony, and I agree with you, I think we will just wait and

see what the court comes up with.

[The statement of Mr. Knuffke may be found at end of hearing.]

Mrs. CHENOWETH. I noticed in the wilderness preservation, the

Wilderness Act of 1964, it does exclude emergencies from the strict

concepts of wilderness management or nonmanagement, and while

the Unser story is dramatic, yes, and it made a point, my concern

has been that there have been other incidents such as a Boy Scout

who was lost and apparently ran away from home and got into mischief, but even though he ran away from home and was in mischief

in the wilderness, his life is as valuable as any other human

being’s. I was appalled that the helicopter could not land and bring

that boy back to his parents.

So as I listened very carefully to both of your testimony, I think

that there are many areas that we can agree on in trying to focus

the public policy implementation that we are both concerned about,

and I want to personally thank you for your patience and perseverance in this 4-plus hour hearing so far. Thank you very much.

Mr. Nickas, you have come all the way from Missoula, Montana.

Tell me what you feel. Did you serve in the armed forces at all?

Mr. NICKAS. No, I didn’t.

Mrs. CHENOWETH. And that really doesn’t make any difference to

the substance in this hearing, but I did wonder about what your

feelings would be with regard to a veteran being allowed to display

the American flag. How would you feel about that personally?

Mr. NICKAS. I would feel the same for a veteran as anybody else

who wanted to display the American flag. I don’t know about the

particulars in that instance, it may be that the flag was being used

in a way or flown in a way that interfered with others’ wilderness
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experience. I can envision a huge flag sitting on the edge of a lake,

and the other people who came to that lake perhaps came to the

wilderness in order to get away from the sights and sounds of other

people, and there was a concern that it might be interfering with

other people’s use.

There are programs called Leave No Trace and Soft Paths, and

there are educational programs for wilderness users, and they talk

about things like even trying to get away from buying brightly colored backpack equipment, because you get up in an alpine basin,

and a bright green tent across the basin is seen by everybody. Most

people want to go to the wilderness to get away. They want to be

with the people they go with and don’t want to encounter other

groups. So you have to be sensitive to that when you are in the wilderness. And it may have been it was being done in a very insensitive manner.

I am sure if he was displaying a little American flag or had an

American flag on his backpack or shoulder or something like that,

I doubt there would be any issue involved here. So let’s find out

more about that one.

Mrs. CHENOWETH. Thank you, Mr. Nickas.

Do you agree that there should be a lot more common sense involved in any situations where life may be in danger or someone

has been injured about giving an exemption to motorized vehicles

to go in and do rescue?

Mr. NICKAS. My experience has been that the agencies have been

extremely liberal in allowing the use of motorized equipment in the

case of emergencies in the wilderness.

Mrs. CHENOWETH. How do you feel about the use of motorized

equipment to rescue, say, a gray wolf?

Mr. NICKAS. The Wilderness Act allows for the use of motorized

equipment when it is the minimum necessary for the administration of the area as wilderness. In the case of preserving an endangered species, you probably have Endangered Species Act issues as

well, and in fact it might be justifiable. But I would have to know

a little bit more about the specific case.

I would have to say in every case it would not be the right thing

to do to be flying helicopters or taking other motorized equipment

into wilderness to rescue an injured animal.

Mrs. CHENOWETH. Mr. Knuffke, you mentioned, both of you mentioned, the use of law enforcement inside the wilderness. Could you

elaborate on that for the record, please?

Mr. KNUFFKE. I am sorry, ma’am. I didn’t hear the question.

Mrs. CHENOWETH. You both in your testimony mentioned law enforcement activities inside the wilderness to make sure the values

established under the act are maintained. Could you elaborate on

that for the record?

Mr. KNUFFKE. Sure. By its definition, ma’am, wilderness is rugged, remote, in some cases big, in other cases not so big. We don’t

fence it. We can’t always have signs posted around the perimeter.

So a lot of an individual’s responsibility toward wilderness begins

with knowing where it is.

We can never afford to have enough rangers on the ground. As

George said, we are having fewer these days, not more. Nor do I

suggest that we should. Absent our ability to contact folks as they
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might head into a wilderness, I think we have to be very careful

to cite violations when we catch them, and I think that may have

been at work in the Forest Service thinking in the case of Mr.

Unser’s situation. But again, I know no more about that than what

I heard this morning and what I read in the papers about it.

I think that we have to appreciate these rules, respect these

rules for the same reasons that, as I mentioned in my prepared

statement, that able-bodied drivers are very careful not to park in

disabled parking spaces even though they happen to be unoccupied

at the moment. The fact is that if we occupy them improperly,

those who have a greater need cannot. So we do that. So we sit at

stop lights on deserted streets late at night and wait for them to

turn green, even though no one is there. It is respect for the law.

We cannot possibly patrol wildernesses as thoroughly as I have

suggested. If I did indeed, I apologize for that suggestion.

Mrs. CHENOWETH. Thank you. The Chair recognizes Mr. Kildee.

Mr. KILDEE. Thank you, Madam Chair.

The present wilderness law permits the use of vehicles to go in

for emergency purposes and to rescue people in difficulty, it is part

of the Organic Act of 1964, and we generally put it into the specific

wilderness, so it is there. Sometimes they might not feel the dangers and be aware of it but it is in the law and the Congress’ intent

that exceptions should be made, particularly when human life or

other emergencies are taking place.

Let me ask both of you, gentlemen, if you could, do you have an

opinion on the regulations which the Forest Service put on Crooked

Lake in Sylvania in Michigan, regulations regarding the use of

motor boats?

Mr. KNUFFKE. I do, and my understanding of that too, Congressman, is somewhat different than what I thought I heard this morning. And it is that those private landowners there, whose property

rights matter, should matter to us all, are not being told they cannot bring boats, not even being told that they cannot bring motor

boats. They are being told to remain consistent with the Wilderness

Act they must use electric motors and observe some no-wake speed.

So they still have access to the lake.

I guess they are also being told that they are not allowed to use

sailboats by the Forest Service regulations. Sailboats have been defined as mechanical devices, and another concern there is the visual profile. That, I think, speaks to the Forest Service’s proper concern for the experience of others using that wilderness, while still

trying to balance that against private property owners’ continued

rights in that place.

Mr. NICKAS. If I could just add to that, I agree with what Darrell

said. My understanding is that when the Forest Service was contemplating regulations of motorized use in that area, that by and

large, the public asked that there be no motors allowed on Crooked

Lake in the wilderness, and the Forest Service, to meet the concerns of the people who wanted to use motors, went ahead and allowed some motors to be used. So we hear a lot of talk about what

local people want and those kinds of things, and it appeared in this

case they didn’t want the use of motors on Crooked Lake, but they

are being allowed nonetheless.
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Mr. KILDEE. It would seem that there may be some distinction

between where the entire lake—I am just wondering out loud—the

entire lake is owned, all the lake or part of the lake is owned by

the Federal Government and it is a more difficult situation when

only part of the lake is shrouded by wilderness area. So I am sure

that requires discussion with the other landholders and property

holders in the area there. But I am sure we have areas where there

are lakes totally shrouded by wilderness areas where the Federal

Government has exercised its right to exclude motor craft.

Mr. KNUFFKE. That is correct, Congressman. The only exception

that I know, and we have heard that is the Boundary Waters

Canoe Area in Minnesota, and we often refer to that wilderness in

two different ways, one as the Nation’s most popular, given the

magnitude of use, and, second, our most motorized wilderness.

Those are a contradiction in terms, but those were bargains that

were struck in——

Mr. KILDEE. But that was put in the legislative language.

Mr. KNUFFKE. That is correct.

Mr. KILDEE. In the act when it was enacted by Congress.

Mr. KNUFFKE. But I personally know of no other situations

where you have a lake wholly within a wilderness area that is public land where motorists are permitted.

Mr. KILDEE. Thank you very much, gentlemen.

Mrs. CHENOWETH. Thank you, Mr. Kildee. The Chair now recognizes Mr. Pombo.

Mr. POMBO. Thank you.

As the Chair rightfully pointed out, when we talk about bringing

local people in to help make these decisions and to help draft what

it will look like, there is a difference between doing that when you

have private property owners that are involved and when you are

talking about all Federal land. And I think that he rightfully pointed out that in this particular case, there is a difference.

In this case, you were dealing with a lake that is partially privately owned and partially federally owned, and in other cases, it

may be all Federal ownership, all public ownership, and in that

case, you do have to rely on local people and what their opinions

are. But when you are dealing with private property owners, you

have a different level that you have to obtain and that is to protect

the property rights of those who are involved. And I didn’t want

that to be misunderstood as exactly what the difference is between

those two.

In terms of testimony we heard earlier dealing with the California desert and the big horn sheep and the other wildlife in that

area, knowing that access to those guzzlers in their remote area is

the way it is, I am sure both of you are aware of that particular

situation.

Would you in that case allow responsible individuals to have access into that wilderness area to take care of those?

Mr. KNUFFKE. Mr. Pombo, I think I would allow that if it were

for me to say, only with the greatest reluctance and only to use a

term that George used a moment ago, the minimum tool. If there

is no other feasible way to do it, then we can talk about that. If

there are other alternatives, then I would rather not talk about motors in the wilderness. And some of that comes from an experience.
77

While I have explicitly—while I enthusiastically support our public

land managers, I would mention an example in southwestern Colorado.

We had a landslide there and it was on a trail, a rockfall more

correctly, on a trail used fairly heavily by horsebackers, and the

repositioning of the rocks posed a hazard and the Forest Service

was mindful of that and wanted it out of there.

The land manager in that case resorted first to dynamite, which

did not strike me as the minimum tool under the definition. We

wondered why perhaps using a few more humans we couldn’t go

in there with single jacks and sledgehammers, the way old miners

did, and bust them up and move them on down the slope. So my

experience has been that Federal land managers have been perhaps too eager to resort to motorized intrusions in the land instead

of slower, more time consuming alternatives to motors.

Mr. NICKAS. I would add to that that I think maybe sometimes

we need to step back just a little bit from the supposed issue in

front of us, whether or not they should be using motorized access,

and ask whether or not those guzzlers are really appropriate in

many instances.

My experience is a lot of times people come in proposing different

sorts of wildlife habitat manipulation activities, simply to enhance

a certain wildlife population. The Wilderness Act talks about wilderness being areas where earth and its community of life are

untrammeled by man, retaining its primeval character and influence which is protected and managed so as to preserve its natural

conditions.

Oftentimes, the whole purpose of things like that is to trammel

the land, try to modify, to try to make that wilderness something

we think it ought to be, rather than what it is. So I think that

sometimes we have to sit back and say if we need to violate the

basic tenet of the act against motorized use, maybe the activity

itself needs to be brought into consideration.

Now, the earlier witness raised some good issues surrounding

sometimes their native water sources have been usurped by other

activities, but maybe we should look at those other activities. We

are talking about a very, very, very small percentage of the land

base in this country that has been set aside. And some of those

areas, we need to give up our insistence of humans to dominate

that land and dictate what species exist and at what levels. So I

would say in that case, and I am not familiar with the specific instances, we need to look real hard whether guzzlers are the right

thing or——

Mr. POMBO. Not referencing that specific case but in general,

then would it—what you are saying is, and in that case, it is not

a good case because you are talking about an area that has had

heavy human involvement for over a century, so you can’t say that

this wilderness area is natural. It is natural in its current state,

but it is not the way it would have been if man had never been

on this earth. There is a huge difference there. But in other wilderness areas, are you saying that we ought to just leave the area

alone and whatever lives, lives, and what dies, dies, and that is

natural so we are just going to allow it to happen?
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Mr. NICKAS. That is basically what the Wilderness Act says. As

Howard Zahnisev said, we need to learn to be guardians, not gardeners. And so, yeah, generally, what lives, lives, and what dies,

dies, in wilderness areas.

Mr. POMBO. Let me put this, and I understand my time has expired, but let me put this in a little bit different context, in terms

of endangered species, and this was mentioned a little bit earlier

with the gray wolf. What about the unnatural activity that occurs

under the Endangered Species Act as a result of man’s desire to

not allow a species to become extinct or to slip into being more endangered than it currently is? Would that also fall into that category that you are talking about in terms of wilderness?

Mr. NICKAS. Well, the regulations that currently exist speak to

endangered species and they allow for the introduction or reintroduction of endangered species into habitats where they existed

prior to designation.

Mr. POMBO. But that is unnatural, so would that not be contradictory to the intent of the Wilderness Act as you just described

it?

Mr. NICKAS. Well, you can—the intent of the act is that the areas

will be managed to preserve their natural conditions. And I think

if you are restoring an extirpated species to the wilderness, then

what you are doing is working to preserve the natural conditions.

How you do that, Darrell mentioned the minimum pool sorts of

tests and things like that. I think those all have to be part of the

decision. There are also things in the regulations that talk about

if wildernesses are needed for these kinds of efforts, they can be

used, but suggest that other places be looked to for more manipulative types of activities that are required in some cases. So I think

when you look at the act and look at the regulations dealing with

endangered species, they work pretty well right now.

Mr. POMBO. Well, Madam Chairman, I think we all strive for

consistency, and these issues that we are dealing with right now

are oftentimes very difficult for us to deal with from Washington

and, you know, when we look at the underlying reasons why we

have wilderness areas, the intent of man when it comes to endangered species, I think we have conflicting needs when it happens

that way, and, you know, if the Fish and Wildlife Service wants to

go in to fix the guzzlers, if it is the fact that it is this other group

that wants to come in and fix them, that makes it bad. And I think

when we look at a number of these issues, it becomes more difficult.

I appreciate your testimony, and like the Chairman, I apologize

for the long wait that both of you had today, but thank you.

Mr. KNUFFKE. Mr. Pombo, if I may, in response to one of your

comments, I would be as quick to criticize the Fish and Wildlife

Service for casually invading the wilderness as I would their giving

permission to someone else to do it. We think that those rules

ought to stand pretty firmly against every casual use of motors.

Mr. POMBO. Even if they are reintroducing gray wolves into the

wilderness area.

Mr. KNUFFKE. Well, it seems to me the decision not to go in to

snatch out that gray wolf was a decision by the land manager. And

I think you mentioned the unhappy incident, ma’am, in New Mex-
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ico with the Boy Scout. The folks on the ground nearest this young

man found him to be OK, and generally well equipped, which was

certainly not the case with Mr. Unser. He was capable of taking

care of himself and they got him out without mishap. I don’t know

about the wolf. That may be a less fortunate ending. It is difficult.

When we give land managers authority, that involves human errors and gives us the right to second guess them and makes their

job difficult. But I prefer to leave it to them, reserving my right to

criticize.

Mrs. CHENOWETH. Thank you, Mr. Knuffke.

I just wanted to ask one more question. It seems to me that because life itself is a dynamic, in and of itself, and that our wilderness system is dynamic because of the life and death cycle not only

of the animal species but also the plant species there, I have always wanted to ask you, how can we preserve those systems based

on the natural dynamics of life and death, inside and outside the

wilderness? Could you help me out there?

Mr. KNUFFKE. Ma’am, I will do my best. It is not an easy question, you might as well ask me to explain the universe.

I think what we strive for in the Wilderness Act is to set aside

places sufficiently varied and to let the natural processes that you

describe occur with the least possible interference by humans and

manipulation by humans. That does not mean that we don’t use

motors in there to rescue people who have got themselves into trouble and for a variety of other reasons, and we really can’t in significant ways defend our wilderness areas, we are discovering, against

the impact of air pollution that may originate 1,000 miles away.

But to the extent possible, I think it is an ideal toward which we

must strive, recognizing the limits of our abilities and our own imperfection.

Mrs. CHENOWETH. Thank you, Mr. Knuffke.

Mr. Nickas, did you have a comment?

Mr. NICKAS. Well, yes. I just wanted to say what we are doing

in wilderness is trying to let those natural systems operate, and we

don’t always know where that is going to take us. We don’t always

know what is going to happen, but that is the beauty of wilderness,

that is the laboratory of wilderness, that is the wildness of wilderness. So that is the best we can do is let those systems operate and

we will see what happens.

Mrs. CHENOWETH. Thank you very much.

Mr. KNUFFKE. Ma’am, could I impose on the committee for one

comment having to do with the comment you made in your opening

statement, your concern about wilderness and whether or not it is

accessible by folks with disabilities. That is a question we have all

thought quite a bit about and, that is, through Chairman Hansen’s

leadership several years ago, the President’s council, National

Council on Disability, undertook a study of precisely that question,

and subcontracted the study to an organization called Wilderness

Inquiry. The findings of that report were that by a whopping margin, about 75 percent, disabled Americans don’t want anything

done in wilderness in the name of accessibility that will damage

what wilderness is. Folks who bother to go in there with wheelchairs, which are fully allowable, go there for the same reasons the

rest of us do and they want it to stay that way.
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I would be happy to submit that study to the committee, if you

would like.

Mrs. CHENOWETH. Without objection, I would be very interested

in that. So ordered.

[The information may be found at end of hearing.]

Mrs. CHENOWETH. Mr. Kildee, did you have any other comments

or questions?

Mr. KILDEE. Just a comment. I think you have conducted this

hearing with good control and great courtesy, and I very much appreciate it.

Mrs. CHENOWETH. Well, thank you.

I want to thank the final panel, boy, you have endured a lot. Mr.

Knuffke, you have endured my mispronunciation of your name, and

I want to say, you ought to see how they mangle Chenoweth sometimes, accidentally and on purpose. Thank you, and I hope you can

catch up on your lunch. This meeting is adjourned.

I do want to say, by the way, for the record, the record will remain open for 10 days should you wish to supplement your testimony. Thank you.

[Whereupon, at 2:43 p.m., the Subcommittee was adjourned; and

the following was submitted for the record:]
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