Federal Court Orders Removal of Historic Fire Lookout in Washington State

Posted on: April 2nd, 2012 by Brian Turner 5 Comments

A federal judge has ordered that the Green Mountain Fire Lookout, originally built in the 1930s by the Civilian Conservation Corps, be removed from its perch on a remote mountain peak in Washington State.  Its crime? The Lookout is a man-made structure in a designated wilderness.  A small group of wilderness advocates have made it their mission to erase the imprint of human culture in wilderness areas, and the National Trust for Historic Preservation is pushing back.


The Green Mountain fire lookout. (Photo: Washington Trust for Historic Preservation)

Background

In 2011, Wilderness Watch sued the U.S. Forest Service for conducting repairs to the historic Green Mountain Lookout in Washington State’s Glacier Peak Wilderness. The group claimed that the agency violated the Wilderness Act by illegally maintaining a structure in wilderness contrary to that Act’s prohibition on any “structure or installation” in a designated wilderness area, regardless of whether it is historically significant.

Discussion Around the Case

On March 27, 2012, Judge John C. Coughenour of the U.S. District Court for the Western District of Washington granted Wilderness Watch’s Motion for Summary Judgment and issued an injunction requiring the Forest Service to remove the Lookout from its perch atop a remote mountain peak.

Civilian Conservation Corps built the Green Mountain Lookout in 1933, predating the area's formal designation as wilderness, and has been listed on the National Register of Historic Places for 25 years. The National Trust for Historic Preservation, Forest Fire Lookout Association, Washington Trust for Historic Preservation, and Darrington Historical Society participated as friends of the court in defense of the Forest Service’s repair action. Elaine Spencer of Graham & Dunn PC in Seattle, as well as Lisa Hemmer, a professor at the University of Maryland School of Law, provided generous representation to this coalition on pro bono basis.

First, the Forest Service defended its rehabilitation efforts by arguing that the National Historic Preservation Act of 1966, passed two years after the Wilderness Act, justified its actions. Section 110 of the NHPA imposes a duty on the Forest Service to preserve historic properties within its jurisdiction. The Forest Service argued that NHPA requires it to maintain the limited class of structures in wilderness, such as the Green Mountain Lookout, that are historic for the public benefit.

Judge Coughenour disagreed. While he acknowledged that both statutes apply to land management decisions in wilderness, the Judge found that the Wilderness Act is “outcome oriented,” whereas Section 110 of the NHPA has “an overwhelmingly procedural thrust.” He found that NHPA did not apply because “neither action nor inaction toward the Green Mountain lookout would have placed the Forest Service in violation of the NHPA, for the very reason that the NHPA itself does not compel any particular outcome.”


Inside the Glacier Peak Wilderness. (Photo: Pig Monkey on Flickr)

Second, the Forest Service claimed that the Wilderness Act itself required it to manage wilderness areas to promote their “historic value” and “historic use.” The Wilderness Act uses these terms not only to define recognized features in the wilderness, but also to help explain the Act’s public purpose. Further, in 1984 Congress passed the Washington State Wilderness Act which specifically references the purpose of the Act to “preserve scenic and historic resources.”

The 11th Circuit Court of Appeals had previously interpreted the term “historic use” in conjunction with other provisions of the Wilderness Act to refer to “natural, rather than man-made features.” Judge Coughenour found, in contrast, that the term is ambiguous, explaining that “deference is due to the Forest Service’s interpretation that historical use is a valid goal of the [Wilderness] Act.”

Nevertheless, the court found that even if historic use may be a valid goal in managing wilderness, the Forest Service was required to make a finding of “necessity” prior to authorizing an action that would preserve a man-made structure. While the Wilderness Act contains an explicit prohibition on “structure[s] or installation[s],” an exception exists provided the agency proves that maintenance or repair of a historic site is “‘necessary’ to meet the ‘minimum requirements’ for the administration of the area for the purpose of historical use.”

The court found that there was no “necessity” in preserving the Lookout in place, focusing solely on procedural errors. The extensive nature of the repair effort without proper analysis was the court’s greatest concern, especially where less intrusive alternatives were available to the Forest Service, such as relocation or natural deterioration and interpretation elsewhere. The court added that the Forest Service crossed a particular threshold when it authorized the use of helicopters to accomplish the repairs which is generally a prohibited use—unless “necessary”—such as occurred recently when the agency used helicopters to promote the recovery of wolves in an Idaho wilderness.


Wildlife in the Glacier Peak Wilderness. (Photo: rwike77 on Flickr)

The Court’s Decision

The court arrived at its most consequential, and controversial, decision in applying the drastic remedy of ordering the Forest Service to remove the Lookout from the wilderness entirely. Wilderness Watch sought this relief, arguing that permanent removal is the only remedy for those seeking to “experience the primeval character, solitude, and natural conditions associated with wilderness.”

The Forest Service countered that an injunction ordering the lookout be removed would not be in the public interest. The basis of Wilderness Watch’s allegation, however, was that too many members of the public wanted to visit the historic structure, leading to pedestrian traffic in the area. Ironically, the strong public support for preserving the Lookout provided a rationale for ordering its removal.

In siding with Wilderness Watch in ordering removal of the Lookout, the court found that the public interest in “maintaining wilderness character” trumps historic preservation given the “overarching purpose of the Wilderness Act.” The Judge stated that Congress would need to provide a specific exception for the lookout to save it in this case, as has happened with respect to other historic structures in wilderness.

The Decision's Potential Impact

The decision may have important consequences both in the manner in which wilderness is managed as well as the political feasibility of creating new wilderness areas in America. While the courts may interpret the Wilderness Act as having a rather ambitious goal of returning land to a pre-human state, the reality is that humans have shaped the land over thousands of years. Evidence of their lives in the wilderness enhances, rather than detracts, from our understanding of it. Congress may begin to find wilderness designations less palpable if it means denying locals the ability to see tangible reminders of their predecessors’ past.

For now, the fate of the Green Mountain Lookout appears to have been sealed barring a successful appeal or Congressional action that would save the site. There is a hint of a silver lining in the court’s decision, however. The court made an important acknowledgment, not reached in previous cases, that allows wilderness managing agencies at least some authority to interpret historic sites in wilderness provided they make a proper determination of “necessity.” Sophisticated wilderness managers now have a tool that will permit them to keep historic structures in their original location, though they may need to impose stricter conditions on the tools used to accomplish the repair.

Note: The formal case name is Wilderness Watch v. Iwamoto, No. C10-1797-JCC, 2012 U.S. Dist. LEXIS 42924 (W.D.Wash., Mar. 27, 2012).

The National Trust for Historic Preservation works to save America's historic places. Join us today to help protect the places that matter to you.

Brian Turner

Brian Turner

Brian Turner is an attorney in the National Trust's San Francisco Field Office. He is an enthusiastic advocate for the protection of the nation's cultural and natural heritage.

General

5 Responses

  1. Steven W Lindsey

    April 2, 2012

    It is about time for the Trust to start pushing back. It seems it have lost its will after Moe left the helm and Margaret Foster left. The new order of the Trust seemed more akin want to go along to get along. To not make waves. Like our commander-and-chief.

    This is a welcome change.

    Hon. Steven W Lindsey
    state rep
    Ches-3
    Keene, NH

  2. Mark Gutzman

    April 2, 2012

    Heritage resources are non-renewable as opposed to our natural environment. Once they are gone, they are gone. As I don’t have the transcript of the case, I don’t know if this argument was put forth, aside from the fact that the historic property was constructed 30 years before the Wilderness act. The court’s decision would most certainly cause as much short term disturbance as any repair, so this doesn’t make much sense. Removal to a new location would remove it from its context, so it might as well be allowed to deteriorate in place. It is sad that a few individuals can win a case against our national heritage without consensus of the entire populace.

  3. [Video] A Former Green Mountain Lookout Tells His Story - PreservationNation

    April 3, 2012

    […] we published a post about a recent legal case involving the old Green Mountain lookout building — a little shack from the 1930s on a remote mountaintop in Washington State’s Glacier […]

  4. Richard A. Boisvert

    April 5, 2012

    I certainly hope that the Trust will continue to fight this ruling. I can see a perverse interpretation that archaeological sites, including rock art and sacred Native American sites, can be removed. This could become a horrible unintended consequence that could create a free pass for looters or at least a legal smoke screen behind which they might hide.

  5. Reginald Thomson

    April 5, 2012

    Be careful what you fight for and against.

    At one time not that long ago, we had no areas designated as “wilderness”. Now we do, and it’s for the better. If the Forest Service and National Parks had not been created, many places special to humans and non-humans, would have been desecrated. I thank our parents for this, and our kids will thank us for continuing to protect and, where appropriate, expand these areas.

    In the case of Green Mountain, a decision was made to include it in within the wilderness area/category. If we think we made a mistake, then we should argue about that, not whether the whole idea of wilderness preservation should be gutted just because of one judge’s interpretation of the law (an interpretation which, from what I’ve read, sounds like it’s painfully correct.) It appears to me the Forest Service acted in a well-intentioned but rash manner. Personally, I’d like to see the lookout stay somehow, but my personal feelings shouldn’t dictate how a law is implemented.

    Lastly, I find it interesting that funds can be secured for reconstruction within a designated wilderness area, but many trails, bridges and roads not within wilderness areas go languishing for repair and replacement. If these facilities were better maintained and managed, then less people would feel the need to stretch their limits and go into wilderness areas. This was a poorly-executed management decision on the part of the Forest Service; the judge simply called them to task on it. There are fairly straightforward legal and political solutions to their mistake, ones that don’t diminish the goals of the Wildness Act of the National Historical Preservation Act. Hopefully the parties involved can move that direction.