Top Line: The president could use authority granted long ago by Congress to significantly elevate the conservation status of large areas within the National Forest System.
Figure 1. Entrance to Ocala National Game Refuge, Florida, in 1969. Source: Wikipedia.
In 1916, for certain kinds of national forest lands (mostly) in the East—and then in 1934 for the rest of the national forests—Congress authorized the president to establish special areas for the protection of certain kinds of wildlife (game animals, game birds, and game fish). From Woodrow Wilson to Harry Truman, most presidents used this authority granted by Congress. Such authority is still on the statute books and could be revived by the current president to significantly elevate the conservation status of large areas within the National Forest System. No additional Act of Congress is required. If accompanied concurrently by an administrative mineral withdrawal, proclaiming national wildlife areas could contribute to the national goal of conserving 30 percent of nature by 2030 (30x30).
Figure 2. The Virginia Wilderness Committee is proposing the greater Big Levels area as a national scenic area. Source: Virginia Wilderness Committee.
Current Status of National Wildlife Areas
Today, nearly 1.3 million acres of national forest lands have been established—usually by presidential proclamation—as national wildlife areas (NWAs). The Forest Service lists twenty-one national game refuges and wildlife preserves in its official Land Areas of the National Forest System report. Note that although generically called NWAs in this report, no area actually goes by the name National Wildlife Area. Congress in authorizing and/or the president in proclaiming such areas have used a variety of names for the special protective areas. The final score (so far):
• 10 [place name] National Game Refuge
• 3 [place name] National Game Preserve
• 2 [place name] Game Refuge
• 2 National [place name] Wildlife Management Preserve
• 1 [place name] National Forest Wildlife Preserve
• 2 [place name] National Wildlife Preserve
• 1 [place name] Wildlife Preserve
All of these categories are on national forest lands, are for wildlife (at least a subset of wildlife), and are areas. Hence the generic term national wildlife areas (NWAs).
While in the past the presidential designation was given weight (Figure 3), these presidential designations are, unfortunately, mostly ignored today by the Forest Service. Nonetheless, the authority delegated by Congress to establish NWAs still exists and the president can use it to strengthen protections for native wildlife on the National Forest System.
Figure 3. Forest Service regulations and public information for the Pisgah National Game Preserve, 1917. Source: UNC Asheville Ramsey Library.
The Two Types of National Forest Lands
Due to historical circumstances, there are two types of national forest lands:
• those that were reserved from the public domain (owned by the federal government and then generally administered by the General Land Office of the Department of the Interior)
• those that were acquired from nonfederal owners, after generally having first left the federal public domain
The first national forests were all carved out of (reserved from) the public domain—those lands acquired by the federal government due to treaty, purchase from a foreign power, and/or conquest. These national forests were all in the “West,” meaning in this case all states west of the Mississippi, including all of Minnesota, but not Oklahoma, Louisiana, or Texas. Almost all of the western “public domain” forests were established by 1910.
The Weeks Law (aka the Weeks Act) of 1911 (16 USC 515) authorized the establishment of national forests in the eastern United States through acquisition of land from nonfederal owners if such land were deemed “necessary to the regulation of the flow of navigable streams or for the production of timber.” In 1916, Congress authorized the president to proclaim NWAs on any national forestlands that were acquired under the authority of the Weeks Act. At the time, this applied only to eastern national forests.
In 1934, Congress extended the authority of the president to proclaim national wildlife areas on national forestlands that were carved out of the public domain—but conditioned such on the approval of the legislature of any affected state. To date, no such state legislative approval has been granted.
In 1958, Congress extended Weeks Act status to all national forest lands that were “acquired” anywhere, even within the proclaimed boundaries of national forests that were generally “public domain” national forests. Those national forest lands that came from the public domain do not have Weeks Act status, which means a president cannot proclaim national wildlife areas on those lands without the approval of the affected state legislature.
The definitive source of whether a parcel of national forest land has “public domain” or “acquired” status is the Forest Service’s Automated Lands Program Land Status and Encumbrance viewer. This viewer can also display the boundaries of the various national wildlife areas.
Figure 4. The Sheep Mountain Game Refuge, Wyoming. Source: All Trails (Jessica Cole).
Congressional Authorizations: Forest-Specific and General
Between 1906 and 1948 Congress enacted a series of statutes (Table 1) intended to afford protection to certain kinds of wildlife on
· specific portions of or entire specific national forests that were generally reserved from the public domain,
· all national forest lands that were acquired (generally, but not exclusively in the East), and/or
· all national forest lands reserved from the public domain (the latter subject to the approval of the affected state legislature).
Congress authorized the president to proclaim NWAs on certain portions of the (Grand Cañon, now) Kaibab (AZ), Black Hills (SD), Medicine Bow (WY), and Custer (SD) National Forests. Congress enacted separate statutes authorizing the president to proclaim national game refuges anywhere on the Ozark (MO), Ocala (FL), Ouachita (AR), and Francis Marion (SC) National Forests.
Figure 5. White Rock Mountain in the Black Mountain National Game Refuge. Source: NaturalAtlas.com.
In addition to the specific authorities granted by Congress to the president to proclaim NWAs in portions or all of certain national forests, the president has general authority to proclaim NWAs under two statutes, referred to earlier:
· Acquired lands: The Act of August 11, 1916
· Reserved public domain lands: The Act of March 10, 1934
To establish NWAs on reserved public domain lands (most of the West), the concurrence of the legislature of the affected state is required, which is a real buzz kill in several states.
Only once, in 1926, did Congress directly establish a national wildlife area—the Tahquitz National Game Preserve on the San Bernardino National Forest—without requiring a presidential proclamation to achieve it.
The congressional authorities variously define the purposes of national wildlife areas to further the conservation of animals, fish, and/or birds. Often—but not always—“animals,” “fish,” and “birds” are modified by “game.”
The congressional authority applicable to acquired national forest lands that authorizes the president to proclaim NWAs says such areas are “set aside for the protection of game animals, birds, or fish” (16 USC 683). It goes on to specify that “it shall be unlawful for any person to hunt, catch, trap, willfully disturb or kill any kind of game animal, game or nongame bird, or fish.”
The congressional authority applicable to public domain national forest lands that authorizes the president to proclaim NWAs (with the approval of the affected state legislature) says such areas are for the conservation of “game birds, game animals, and fish” (16 USC 694). Read in context of the entire provision, the provision clearly means all fish, not just fish that are “game” species.
Presidential Proclamations
The parade of presidential proclamations is summarized in Table 2.
Figure 6. Haw Creek Falls in the Haw Creek National Game Refuge. Source: Arklahoma Hiker © CC 3.0.
Using the National Wildlife Area Authority in the Twenty-First Century
All national forest lands, currently 188,448,309 acres—and including national grasslands, which total another 3,382,626 acres—are eligible to have NWAs proclaimed within them by the president. Depending upon the provenance of the national forest land in question, the acquiescence of the state legislature of an affected state may or may not be required. To determine definitively whether particular national lands of most interest to you are reserved from the public domain or acquired lands, please refer to “The Two Types of National Forest Lands” above.
Though the authority to proclaim national wildlife areas has not been used since 1948, it is still valid based on the Acts of Congress of 1916 and 1934 and is awaiting a visionary administration to use it to elevate the conservation status of tens of millions of acres of national forest lands. By executive order, the president should direct the secretary of agriculture to take these three steps:
1. Promulgate an administrative rule to establish national wildlife areas in the National Forest System.
2. Recommend to the president new or expanded NWAs to be proclaimed.
3. Promptly request—from the secretary of the interior—withdrawal of NWAs from mineral exploitation for the maximum period allowed by law.
Figure 7. Part of the Sylamore Experimental Forest overlaps with the Livingston National Game Refuge. Source: Forest Service.
The establishment of additional national wildlife areas (NWAs) within the National Forest System can do much to conserve biological diversity, protect watersheds and water quality, and store and sequester carbon. An NWA designation would further most statutory multiple uses (16 USC 528): water, wildlife, and recreation. It would reduce others that are harmful to fish and wildlife: logging and livestock grazing. Of course, the establishment of new and expanded NWAs would not affect logging and grazing outside of their boundaries.
Figure 8. Big John Dick Mountain in the Noontootly National Game Refuge. Source: NaturalAtlas.com.
For More Information
• Kerr, Andy. 2022. Presidential Authority to Proclaim National Wildlife Areas Within the National Forest System. Larch Occasional Paper #27. The Larch Company, Ashland, OR, and Washington, DC.
• USDA Forest Service. Automated Lands Program Land Status and Encumbrance viewer (website).
Bottom Line: If the administrative rule confers adequate protections to conserve biological diversity—and if an administrative mineral withdrawal accompanies proclamation of new NWAs—then new NWAs should count toward the national goal of conserving 30 percent of the land by 2030.