10/27/06

Guidelines

Determining the Need,Extent Necessary and Allocation of Use

for Commercial Services in Wilderness

Outline

I. Purpose and Need

Overview

Basis in Law

Basis in Agency Policy

- Bureau of Land management Policy

- Forest Service Policy

Relationship to Agency Planning

- National Forest Planning

Determining Need, Allocating Use and NEPA

Judicial Decisions

II. Definitions

III. Methodologies

Needs Assessment

Capacity determination, the extent necessary and allocation of use

IV. Process Template

Needs Assessment, Extent necessary and Allocation of Use Template

V. Examples

VI. References

VII. Appendix – Agency Strategies

FS 10 Year Wilderness Stewardship Challenge – Element 7

Note - For information on determining visitor use capacity see additional information onCapacity Determination for Visitor Use in Wilderness in the Visitor Use Management Toolbox at:

Guidelines

Determining the Need and Extent Necessary and Allocating Use

for Commercial Services in Wilderness

Note - The information presented here is suggested guidance based on existing law, regulation, and policy. It does not represent new policy.

I. Purpose and Need

Overview

The purpose of these guidelines is to provide a tool for understanding and implementing the intent of the Wilderness Act, National Forest Regulations, and Forest Service Policy related to determining the need and the extent necessary, and allocation of visitor use for commercial services (outfitters and guides) in wilderness. The basis for management of commercial services in wilderness is different than it may be for other lands because of the unique mandates in the Wilderness Act and because wilderness areas represent one side of the spectrum of multiple uses of the public lands. The procedures for determining need and the extent necessary and allocating use are not well defined and currently the agencies do not provide a national templates or specific criteria in national policy. Successful managers will employ a thoughtful, collaborative process and plan to monitor the results and adapt management actions as needed.

The Wilderness Act directly states that commercial services may be allowed in wilderness and provides the general criteria for determining appropriate types and amounts of operations to be considered for the recreation and other purposes of wilderness. The over-riding constraint on commercial services (and all types of visitor use) in wilderness is the mandate to preserve wilderness character. Human influences that impair wilderness character are to be minimized so that the natural conditions are protected, and the benefits of the wilderness resource (social, biological, and physical) are available to future generations. Decisions about commercial services in wilderness must consider potential benefits and effects to wilderness character as defined by the four statutory qualities of: undeveloped, natural, untrammeled, and outstanding opportunities for solitude or a primitive and unconfined type of recreation. Visitor use of wilderness (including commercial services) is part of what wilderness is all about and is compatible with all the other mandates of the Wilderness Act to the point where use and effects degrade the natural conditions or impair the character of the area. The need and extent necessary for commercial services in wilderness should therefore, be based on the public and management need and the capability of the wilderness to accommodate use consistent with the established desired condition.

Guidelines

Determining the Need and Extent Necessary and Allocating Use

for Commercial Services in Wilderness

Basis in Law

The Wilderness Act of 1964, Section 4(d)(6) states “Commercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.”

This is the provision in the law that allows an exception to the overall prohibition on commercial enterprise in wilderness. To get at the meaning of this provision the sentence needs to be broken down into its component parts as shown below (emphasis added).

“Commercial services may be performed…”

This language allows commercial services, and recreational purposes are specifically recognized. Note that the Act allows that such commercial services may occur, not that they must occur.

“…to the extent necessary…”

If a wilderness administering agency determines that commercial services are needed, the Act directs that they be limited “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes”. To comply with this direction in the Act, an administering agency should 1) document how the activities provided by commercial services are “proper” in wilderness; 2) determine the spatial and temporal scope of commercial services that will be allowed to provide such activities and what portion of recreation use will be provided by commercial services; and 3) document the recreation or other wilderness purpose achieved by the commercial service.

“…for activities which are proper for realizing the recreational or other wilderness purposes of the areas.”

The Act directs that administering agencies use achievement of the “recreational or other wilderness purposes” as the criteria for this determination of the need for commercial services.

In addition to the above specific direction on commercial services, the manager must make every decision regarding wilderness stewardship within the overall direction for wilderness management as provided by Section 4(b):

“ Except as otherwise provided in this Act, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”

The Wilderness Act of 1964 provides additional definition of what wilderness is and direction for management that is relevant to the commercial services discussion. Wilderness is as a place that:

  • provides “…for the American people of present and future generations the benefits of an enduring resource of wilderness.”
  • “…shall be administered for the use and enjoyment of the American people in such a manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character…”
  • “…is protected and managed so as to preserve its natural conditions…”
  • “…has outstanding opportunities for solitude or a primitive and unconfined type of recreation…”

Guidelines

Determining the Need and Extent Necessary and Allocating Use

for Commercial Services in Wilderness

Basis in Agency Policy

Bureau of Land Management Policy

BLM Manual 8560.08.B.3 Limits to Use. There is a limit to the extent to which such uses as recreation and education may take place within wilderness, because the Wilderness Act also says that they must occur in a manner so as to leave the wilderness unimpaired for future use and enjoyment as wilderness. Provision may be made for recreational, scenic, scientific, educational, conservation, and historical use of wilderness areas in ways that do nor jeopardize the conditions of naturalness, the opportunities for solitude or a primitive and unconfined type of recreation, or the special features that existed at the time an area was designated wilderness by congress. All public use will be administered to ensure that the wilderness resource is kept unimpaired.

BLM Manual 8560.08.B.5. Use capacity. Use capacity (recreational, historic, educational, etc.) based on social and ecological elements, will be established for each wilderness area, and will be considered in determining how much use to allow.

BLM Manual 8560.14.C. Use Capacity. The use capacity of the wilderness area must be determined, and managers use this capacity to anticipate and avert degradation of the area’s wilderness character and as a basis for mitigating the impacts caused by various uses.

BLM Manual 8560.15.I. Commercial Services. Commercial services such as those provided by packers, outfitters, and guides may be provided within wilderness areas to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the area.

BLM Manual 8560.31. Recreation and Visitor Use. The wilderness resource will be dominant in all management decisions where a choice must be made between preservation of wilderness character and visitor use. There are places and times within wilderness where unique values may require that recreation and visitor use activities be restricted or entirely prohibited in order to preserve an enduring resource of wilderness. The highest priority among various kinds of visitor use will be accorded those activities which are most dependent upon the wilderness environment and cannot be reasonably accommodated outside of wilderness, and lest effect the wilderness environment. Consider the ability of the wilderness resource to sustain visitor use without loss or degradation of the wilderness resource itself. Carrying capacity (social, biological, and physical) may vary widely within and between wilderness areas due to variations in types and amounts of use, resource characteristics, and the capabilities of the resources to sustain different types and amounts of uses. The leading management tool and document to consider these factors and set guidelines for managing visitor use will be the Wilderness Management Plan. These plans describe the level at which an area is able to absorb use and impacts and describe measures needed to protect wilderness values.

BLM Manual 8560.31.B.3.d. Outfitter Camps.

(1) The Wilderness Management Plan must carefully analyze the role of the outfitter-guide in a particular wilderness. Some wilderness areas may not be particularly suited to this kind of service due to size, shape, location, etc., or to the objectives for management of a particular wilderness. Also, the visitor-use capacity of the wilderness as well as public needs must be considered in making a decision to permit or not permit outfitter-guide services. If allowed, these services must be planned and administered to meet public needs while maintaining the wilderness resource. Operations must be so administered as to be harmonious with those of wilderness visitors who do not employ such services.

(2) Outfitter-guide camps must be located off the primary trails or scenic spur trails and at sufficient distance from attractions to avoid conflicts with other visitors. The BLM selects the location of outfitter-guide campsites as necessary to protect wilderness resources and the wilderness experience of other visitors. Outfitter-guides operate under special recreation permits, which include stipulations for management of the use. The Wilderness Management Plan evaluates the need for temporary caches not involving erecting structures and designates their locations, if caches are to be approved.

Guidelines

Determining the Need and Extent Necessary and Allocating Use

for Commercial Services in Wilderness

Basis in Agency Policy

Forest Service Policy

In wilderness, determining the extent to which commercial services are necessary is closely related to determining the capacity for all recreation visitor use. It includes determining the capabilities of the social, biological, and physical components of the wilderness resource to accommodate use without impairment of the wilderness character.

Currently, Forest Service Wilderness Management Regulations and Policy do not define what is meant by ‘the extent necessary’ and do not prescribe a method for determining the amount of commercial services needed or how to allocate a portion of the overall visitor use capacity.

The following excerpts from Forest Service Policy represent the current direction on management of outfitter-guide operations in wilderness. Forest Service policy can be found at:

2320.6 - The Wilderness Management Model and the Wilderness Act

Where a choice must be made between wilderness values and visitor or any other activity, preserving the wilderness resource is the overriding value. Economy, convenience, commercial value, and comfort are not standards of management or use of wilderness. Because uses and values on each area vary, management and administration must be tailored to each area. Even so, all wilderness areas are part of one National Wilderness Preservation System and their management must be consistent with the Wilderness Act and their establishing legislation.

This portion of Forest Service policy indicates two key concepts of wilderness management related to outfitters and guides:

1)The dominant decision criteria for management of any activity in wilderness is preservation of the wilderness resource (character).

2)Providing for commercial value and visitor comfort (opportunities for outfitters and guides to operate in wilderness, the profitability of commercial operations, or comforts and convenience desired by some visitors) is not the standard by which managers will make decisions in wilderness. In other words, the existence of a commercial opportunity or visitor demand for comforts in wilderness does not, by itself, support the need for commercial operations in wilderness. However, even though the profitability of commercial operations cannot be a criterion for the need or extent of commercial services, where there is a wilderness based need for a commercial use, the FS must work to meet the needs of the desirable commercial use, including the need for profit.

2323.1 - Management of Recreation

2323.11 - Objectives

1. Provide, consistent with management of the area as wilderness, opportunities for public use, enjoyment, and understanding of the wilderness, through experiences that depend upon a wilderness setting.

2. Provide outstanding opportunities for solitude or a primitive and unconfined type of recreation.

2323.12 - Policy

1. Maximize visitor freedom within the wilderness. Minimize direct controls and restrictions. Apply controls only when they are essential for protection of the wilderness resource and after indirect measures have failed.

2. Use information, interpretation, and education as the primary tools for management of wilderness visitors.

3. Manage for recreation activities that are dependent on the wilderness environment so that a minimum of adaptations within wilderness are necessary to accommodate recreation.

4. Consistent with management as wilderness, permit outfitter/guide operations where they are necessary to help segments of the public use and enjoy wilderness areas for recreational or other wilderness purposes.

The above excerpts from Forest Service policy implement the Wilderness Act, subsequent legislation, and regulations by interpreting the legal direction. For outfitter and guide operations, several points can be made:

1)Recreation activities, including those provided by outfitters and guides, are appropriate in wilderness only if they are wilderness dependent. By inference, non-wilderness dependent activities may be provided for or may be experienced elsewhere on the national forest.

2)The FS policy refers to “wilderness experience” and “wilderness setting” (2323.11, 2323.12 #3) to define what wilderness dependent means. In practice, wilderness managers typically interpret “wilderness dependent” to mean activities dependent on the wilderness resource (as defined in the 1964 Act, Sections 2 (a) and (c)).

3)Recreation should not be defined as wilderness dependent if it can occur in any setting that has certain attributes (glaciated peaks, unroaded areas for endurance run routes, etc.), which are not part of the wilderness resource as defined by the 1964 Act. The term ‘wilderness dependent’ is tied to the wilderness resource, not to any specific recreational activity or recreational setting simply because they can occurwithin wilderness.

4) The criteria for considering whether to permit outfitter and guide operations in wilderness is that they “are necessary for activities which are proper for realizing the recreational or other wilderness purposes” of the Act.

2323.13g - Outfitter and Guide Operations. Address the need for and role of outfitters in the forest plan. The plan must address the type, number, and amount of recreation use that is to be allocated to outfitters. Ensure that outfitters provide their service to the public in a manner that is compatible with use by other wilderness visitors and that maintains the wilderness resource.

The above excerpt from Forest Service policy explains what managers are to define as part of a needs assessment and where it is to be documented. This task is typically accomplished through an ‘Outfitter and Guide Needs Assessment’. The needs assessment forms the basis for a possible amendment to the current forest plan. For example, the needs assessment could trigger the need for a change in forest plan direction if it indicates that there is a reason to change in the level of commercial activity allowed in a wilderness.

The purpose of the ‘Needs Assessment’ is to determine if there is a public need for outfitter-guide services and if outfitters and guides could help acheive wilderness management objectives(if they “are necessary for activities which are proper for realizing the recreational or other wilderness purposes” of the Act). If so, criteria are established for permitting existing and/or new outfitter and guide operations. The criteria must not only be responsive to public need for activities dependent on the wilderness resource but also conform to the purposes of wilderness. Common criteria include, but are not limited to, items like safety of visitors, education of visitors, furnishing equipment, expertise, or method of access necessary for visitors to experience wilderness, assisting with volunteer service trips,or research and scientific activities.

If a visitor use capacity estimate (see FSM 23231.14) has not been completed for the wilderness, it must be done and utilized, along with the needs assessment, to make determination on the amount of visitor use capacity to be allocated to outfitters and guides.

2323.14 - Visitor Management. Plan and manage public use of wilderness in such a manner that preserves the wilderness character of the area. Provide for the limiting and distribution of visitor use according to periodic estimates of capacity in the forest plan. Visitor management direction for protecting wildlife and fish resources is in FSM 2323.3 and FSH 2309.19.