January 25, 2024
Wilderness Stewardship Division Manager
National Park Service
1849 C Street NW, MS–2457
Washington, DC 20240
Subject: Evaluation and Authorization Procedures for Fixed Anchors and Fixed Equipment in National Park Service Wilderness Areas
Dear Mr. Semler:
I am writing on behalf of more than 2,500 members of the Coalition to Protect America’s National Parks (Coalition), who collectively represent more than 45,000 years of national park management experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. Among our members are former National Park Service directors, regional directors, superintendents, resource specialists, park rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
First, we appreciate the National Park Service’s (NPS) ongoing efforts to effectively manage and minimize the impacts of recreational activities, including climbing, in NPS wilderness areas. Given the many conflicting points of view on the use of fixed anchors in wilderness, we also understand the need to clarify NPS policy on such use.
In 2000, the U.S Forest Service convened a multi-agency, multi-stakeholder Negotiated Rulemaking committee to try to reach consensus on a proposed rule on the use of fixed anchors in federally-managed wilderness areas. Although the committee did not reach consensus on a proposed rule, there was general acceptance of the following key principles regarding the management of climbing in wilderness:
- Bolt-intensive climbing is incompatible with wilderness.
- Leave-no-trace or clean-climbing ethics should be integrated into a rule.
- After a climbing management plan is in place, the placement of a small number of bolts will be allowed to connect terrain.
- A [proposed] rule can be written with two different interpretations of the Wilderness Act. Fixed anchors could be considered installations but still be allowed in the wilderness.
Similar concepts were carried forward and expanded upon by NPS in its 2013 revision of Director’s Order 41 (DO41) and Reference Manual 41 (RM41), both on Wilderness Stewardship. The 2013 policy was a significant step forward in providing guidance to parks regarding Managing Climbing in Wilderness. These key principles included the following:
- The National Park Service recognizes that climbing is a legitimate and appropriate use of wilderness. Climbing has a history that predates the Wilderness Act, but wilderness is a unique resource that has overriding implications for all recreation uses, including climbing.
- “Clean climbing” techniques should be the norm in wilderness. This involves the use of temporary equipment and anchors that can be placed and removed without altering the environment (e.g., slings, cams, nuts, chocks, and stoppers).
- The use of motorized equipment (e.g., power drills) is prohibited by the Wilderness Act and federal regulation (36 CFR 2.12).
- Climbers are encouraged, and may be required, to adopt Leave No Trace principles and practices, to include packing out all trash and human waste when on or in the vicinity of climbing routes.
- Fixed anchors or fixed equipment should be rare in wilderness. Management strategies include the following:
- Authorization will be required for the placement of new fixed anchors or fixed equipment.
- Authorization may be required for the replacement of existing fixed anchors or fixed equipment.
- Authorization may be required for the removal of existing fixed anchors or fixed equipment.
The Coalition heartily supports the above principles and generally supports NPS efforts to minimize the impacts of recreational uses, such as climbing, on wilderness character. The primary change in the proposed revision of RM41 is that individual fixed anchors, including individual bolts, placed by recreational climbers would no longer be considered de minimis exceptions to the Wilderness Act. Moving forward, ALL fixed anchors placed by recreational climbers in wilderness would be considered “installations” that require a “minimum requirements analysis” (MRA) before any fixed anchor could be approved, installed, repaired, or replaced.
We will focus our comments below on the proposed MRA requirement, since it is the most significant change in the revised RM guidance.
- It is unclear what problem NPS is trying to address by imposing the MRA requirement on fixed anchors – We recognize that NPS is subject to ongoing political and stakeholder pressure to either strengthen or loosen or at least clarify respective park policies on fixed anchors in wilderness. However, it is difficult to provide constructive comments on the proposal without understanding what tangible problem, if any, that NPS is trying to address. Have there been significant levels of noncompliance with the 2013 RM41 fixed anchor guidance or a proliferation of unauthorized bolts in wilderness since then that warrants NPS imposing a rather tedious procedural requirement (i.e., the MRA process) on fixed anchor use now? Similarly, has legal precedent changed with regard to activities prohibited under Section 4(c) of the Wilderness Act? For example, have there been recent court ruling(s) or written DOI Solicitor’s opinion(s) that support or require the reversal of the NPS previous position regarding de minimis “violations” of 4(c) prohibitions with regard to individual fixed anchors?
As background, de minimis means “of a trifling consequence and a matter that is so small that the court does not wish to even consider it.” There is no requirement for an exception to be explicitly written into the law for the de minimis concept to apply. For example, NPS and other federal agencies have long used the de minimis concept with regard to the 4(c) prohibitions of things like cameras with motor drives, which are obviously motorized equipment, as well as for cross country skis and oar-powered vessels (e.g., rafts, dories, etc.), which are arguably mechanical means of transport. As we understand it, the de minimis concept is generally understood to have served as the basis of the 2013 policy on fixed anchors, which provided for very limited (i.e., de minimis) bolting to connect terrain while generally prohibiting extensively bolted sport climbing routes in wilderness.
NPS’s change in position regarding climbing or potentially other recreational activities that cause de minimis impacts to wilderness character, without providing an adequate explanation of the reason(s) for the change, strikes us as an invitation to legal challenge of the policy based on the arbitrary and capricious standard in Section 706(2)(A) of the Administrative Procedures Act (APA). It is not that the change in policy is necessarily incorrect; it simply is not explained well enough to seem well reasoned and not arbitrary and capricious.
Recommendation # 1: Lacking a good explanation as to why NPS thinks the MRA procedure is necessary to authorize individual fixed anchor placement, it is difficult to understand what NPS hopes to gain by imposing this new requirement. We can think of no equivalent MRA requirement for any other recreational activity conducted by park visitors that is allowed in NPS wilderness; and we can think of several downsides of the proposal which are described later in this letter. We therefore recommend that NPS add an explanation to the document as to why NPS believes the proposed action is necessary and appropriate and to identify what concern(s), if any, that NPS is trying to address through this requirement. Along with identifying the concern(s) prompting the proposed new policy, we recommend that NPS also consider alternative methods of addressing them which may be more efficient to implement than the proposed MRA requirement.
We also recommend that NPS provide a sound explanation as to why it has now adopted the legal position that “there is no de minimis exception to the Wilderness Act’s prohibition on installations.” If NPS has not done so already, we strongly recommend that NPS seek a written Solicitor’s opinion regarding the NPS interpretation that there is no latitude for de minimis exceptions under Section 4(c) of the Act. If there can be no exceptions under de minimis, does that mean that other current exceptions (e.g., motor driven cameras, oar powered vessels, etc.) are also no longer legal without an MRA? Lastly, the opinion should consider whether it is legally appropriate for NPS to use the MRA process to authorize activities conducted by park visitors that are otherwise in conflict with the Section 4 (c) prohibitions.
- We question the appropriateness of NPS using the MRA process to authorize activities by the public that otherwise conflict with the Wilderness Act’s Section 4(c) prohibitions – As described in Section 4(c) of the Act, “minimum requirements” apply specifically to “the administration of the area for the purpose of the Act.” It is generally understood that the MRA process applies only to the actions of the agencies administering wilderness, rather than to wilderness recreational activities conducted by the public. This understanding is reflected in Section 7.2 of DO41, which states, in part:
Fixed anchors or fixed equipment should be rare in wilderness. Authorization will be required for the placement of new fixed anchors or fixed equipment…The authorization process to be followed will be established at the park level and will be based on a consideration of resource issues (including the wilderness resource) and recreation opportunities. Authorization may be issued programmatically within the Wilderness Stewardship Plan or other activity-level plan, or specifically on a case-by-case basis, such as through a permit system… Proposals for the placement of fixed anchors or fixed equipment for the administrative purpose of facilitating future rescue operations must be evaluated through a MRA. (Emphasis added)
In other words, under DO41 the MRA process applies only to the agency’s installation of fixed anchors to facilitate search and rescue operations. While imperfect, applying the de minimis concept to allow a limited number of fixed anchors installed by the public at least makes common sense compared to the NPS rationalization in the proposed policy that authorizing publicly installed fixed anchors via the MRA process is somehow “necessary for the administration of wilderness.”
We do recognize that the current policy has its shortcomings. In our view what has been sorely lacking in the existing policy is practical guidance to help parks determine how many fixed anchors, if any, are “of a trifling consequence” with regard to any particular wilderness climbing route or area. In other words, what is the threshold number of fixed anchors that would exceed the de minimis level and should therefore be prohibited?
In essence, the proposed policy would impose a questionable procedural requirement (the MRA, which as stated above, applies to administrative, not public, actions) rather than addressing the underlying planning issue that wilderness climbing management guidelines, including fixed anchor guidelines, should be provided in a park’s wilderness stewardship plan. The current version of RM41 on Managing Climbing in Wilderness provides the following:
A park’s Wilderness Stewardship Plan or other activity-level plan will outline appropriate management actions to minimize or mitigate adverse impacts. Management actions may include limiting use, temporarily or permanently closing all or a portion of a wilderness area to climbing or specific climbing practices, and/or establishing fixed anchor or fixed equipment regulations, when required to protect wilderness resources or character… Fixed anchors or fixed equipment may be appropriate, but must be closely managed under the direction of an approved plan… The requirement for authorization will be effected through a park’s Wilderness Stewardship Plan, or other activity-level plan, approved by the park superintendent. The authorization process to be followed for the placement, replacement or removal of fixed anchors or fixed equipment will also be established at the park level and will be based on the consideration of resource issues (including the wilderness resource) and recreation opportunities. (Emphasis added)
Dismissing the de minimis concept with little explanation and replacing it with the proposed MRA requirement in the proposed policy appears to be a stop-gap procedure that falls short of addressing the underlying planning requirement that climbing management and related fixed anchor policies must be outlined in a park’s wilderness stewardship plan. Furthermore, the proposed case-by-case MRA approach for approving new fixed anchors provides no overarching criteria or strategy for managing and minimizing fixed anchors in wilderness in total, which could lead to unacceptable cumulative impacts based on a “death by a thousand cuts” scenario.
Recommendation # 2: Consistent with the current NPS policy for Managing Climbing in Wilderness, we strongly recommend that “wilderness climbing parks” (e.g., YOSE, JOTR, ROMO, NOCA, etc.) amend their respective wilderness stewardship plans by adding an appendix that would function as a local programmatic policy regarding the use of fixed anchors in each respective park’s wilderness. Taking this a step further, parks such as Yosemite (YOSE) and Joshua Tree (JOTR), with numerous “wilderness” climbing routes situated at the interface between designated wilderness and relatively busy “frontcountry” areas, should consider a zoning strategy for authorizing, limiting, or prohibiting new fixed anchors in wilderness. For example, in YOSE popular “big wall” climbs abutting Yosemite Valley could allow for limited approval of new or replacement fixed anchors to provide protection where needed to connect terrain that is otherwise protectable using removable climbing protection (e.g., where a climbing route crosses featureless sections of rock between crack systems). However, in more remote and pristine wilderness settings, the installation of new fixed anchors could or should be prohibited. We recommend that NPS allow parks a grace period of up to 18-24 months to amend their respective wilderness stewardship plans by preparing a programmatic fixed anchor policy section or appendix. During the grace period, parks should be allowed to continue implementing their existing fixed anchor policies as long as, in the judgment of the respective park superintendent, that policy has been effective in managing and limiting the impacts of fixed anchors in wilderness.
- Similarly, we are concerned that the NPS proposal to use the MRA procedure to authorize park visitors to install fixed anchors in wilderness will establish a harmful precedent inviting other user groups to request that NPS use the MRA process to authorize other recreational activities in wilderness, such as the use of bicycles, which are currently prohibited – To be frank, based on the precedent the proposed policy would create, NPS should anticipate other user groups (such as mountain biking advocates) to pursue the use of MRAs to grant exceptions for their preferred backcountry activities as well.
Recommendation # 3: Similar to Recommendation #1 above, we recommend that NPS seek a written Solicitor’s opinion regarding the proposed use of the MRA process to authorize visitor-conducted activities, such as the installation of fixed anchors, in wilderness that are otherwise prohibited under Section (4c). To avoid “unintended consequences,” it is critical that the NPS proposed use of MRAs has a legally defensible basis because it is very likely to be challenged.
- The proposed individual MRA requirement is likely to create a significant additional workload for park wilderness staffs to implement – The RM revision provides that parks must complete an MRA in order to approve any future installation, repair, or replacement of fixed anchors. It includes the options of a park preparing a programmatic MRA (in essence, by developing a standing park policy on the use of fixed anchors) or an individual MRA on each and every fixed anchor request. A primary concern would be if busy climbing parks do not prepare a programmatic MRA, then respective park wilderness staff could be faced with a substantial new workload of preparing individual MRAs whenever a climber requests a permit to authorize, install, repair, or replace fixed anchor(s) on a particular climbing route, if needed. The issuance of individual MRAs is not a practical, long-term approach because it could necessitate park wilderness staff spending a considerable amount of desk time preparing MRAs, leaving limited staff in the field to actually monitor and enforce wilderness regulations. Furthermore, the individual MRA process (i.e., NPS approving each and every fixed anchor installation) may create the impression that NPS has “approved” specific fixed anchors and specific climbing routes containing those approved fixed anchors, which increases the perception of increased NPS responsibility and liability for the quality of those fixed anchor placements.
Based on the procedures described in the revised RM, it is difficult to imagine an MRA process to approve installation of fixed anchors, such as bolts, on a case-by-case (i.e., individual) basis that would be efficient enough for wilderness staff to make timely and appropriate on-the-spot MRA determinations. If the process is not efficient enough to approve permits at the time they are requested, then it is also difficult to imagine climbers waiting days or weeks to get their permit(s) approved simply because they identified the possibility of installing a fixed anchor, if needed, during a wilderness climb. Lastly, the proposed case-by-case approach for approving new fixed anchors provides no overarching criteria or strategy for managing and minimizing the totality of fixed anchors in wilderness and could lead to unacceptable cumulative impacts based on a “death by a thousand cuts” scenario.
Recommendation # 4: Similar to the recommendation under Comment # 2 above, we strongly recommend that “wilderness climbing parks” (e.g., YOSE, JOTR, ROMO, NOCA) add an appendix to their respective wilderness stewardship plans that would function as a programmatic policy regarding the use of fixed anchors in that particular park’s wilderness. Establishing a programmatic policy (not an MRA) would reduce the case-by-case workload on wilderness staff and presumably provide park-specific criteria as to how fixed anchors will be managed and minimized in the respective parks.
- Draft RM41 Section 6, Liability Considerations – This section of the revised RM describes a substantial workload of actions and measures that parks should consider to mitigate risks related to fixed anchors. These tasks include the following:
- Develop a climbing management plan that includes a practical and reasonable plan for review and management of fixed anchors.
- Warnings or advisories that the NPS does not install climbing bolts and users should confirm any bolt’s fitness for use before using it are highly recommended. Appropriate locations include website, any distributed printed material relating to climbing, at trailheads, or communication signs inside the park near climbing areas.
- Where periodic inspection by NPS staff is not practical, consider other methods such as a implementing a climber reporting system for potentially problematic fixed anchors. This method would ideally include a plan for documenting resolution of reports.
- When appropriate, implement temporary or permanent closures of climbing routes or areas, or approve a reroute of a particular climbing route.
- Work with climbing groups or individual climbers to replace or remove fixed anchors.
- Use climbing groups or individual climbers through the Volunteer in Parks Program to help monitor and manage fixed anchors.
- Use GIS technology to document locations and manage fixed anchors.
The first two bullets listed above are fundamental to effective management and the third bullet, in effect a hazard reporting system, seems reasonable. However, the level of specificity and amount of NPS staff involvement needed to implement in some of the remaining actions, especially those related to inspecting, monitoring, or mapping (e.g., via GIS technology) fixed anchors in situ, only serve to elevate, rather than lessen, NPS responsibility and liability for managing and monitoring fixed anchors in wilderness. At popular “climbing parks” such as Yosemite or Joshua Tree, which have hundreds if not thousands of climbing routes, these actions would create an unrealistic workload for wilderness staff, while shifting the perception of responsibility for fixed anchors away from climbers who install them over to the NPS.
Recommendation # 5: We recommend that NPS reduce the level of detail in bullets 4-7 in this section and, instead, emphasize the following:
Although NPS may “authorize” the installation of fixed anchors by individuals for recreational climbing purposes, NPS does not install fixed anchors for recreational use nor does NPS routinely inspect or verify the quality and safety of fixed anchors installed by recreational climbers. Thus NPS “approval” of a fixed anchor is simply an authorization, not a certification of its quality. Climbers are ultimately responsible for evaluating the adequacy of fixed anchors before deciding to use them or not.
- Draft RM41 Appendix A: The Wilderness Use Permit Application for Fixed Anchors and Fixed Equipment seem to re-open the door for the use of power drills in wilderness – The application form allows individuals to request the use of power drills to install fixed anchors in wilderness, which suggests that NPS is now considering allowing such use again. Since the 2013 revision of DO# 41 and RM # 41, it has been NPS policy that the use of power drills by recreational climbers to install bolts in wilderness is prohibited. For example, see section 7.2 of DO41, which states: “The use of motorized equipment (e.g. power drills) is prohibited by the Wilderness Act and NPS regulations (36 CFR 2.12).” We are strongly opposed to the use of power drills by recreational climbers to install bolts on wilderness climbs, not only because it is a clearly prohibited activity under the 4(c) prohibitions, but also because it may encourage and facilitate increased or unnecessary bolting.
Recommendation # 6: We urge NPS to delete the option of using power drills from the wilderness permit fixed anchor application form.
In general, we support NPS’s longstanding recognition that “climbing is a legitimate and appropriate use of wilderness.” We also support the intent of the draft policy on fixed anchors, which is to limit the use and minimize the impacts of fixed anchors in wilderness. We strongly agree with the provision in 2013 DO41 Section 7.2 that states: “[a]ny climbing use or related activity must be restricted or prohibited when its occurrence, continuation, or expansion would result in unacceptable impacts to wilderness resources or character, or interfere significantly with the experience of other park visitors.” This is especially true for the installation of bolts or other fixed anchors on wilderness climbs.
While we support the intent of the proposed policy, the plain language of the Wilderness Act indicates the minimum requirements provision (and therefore the MRA process) applies to agency (not public) actions related to the administration of a wilderness area. As a result, we are very concerned that the proposed use of the MRA process to authorize the public to install fixed anchors in wilderness will set a harmful precedent that other user groups will try to exploit. If NPS establishes this new precedent, it is predictable that other user groups, such as mountain biking advocates, will seek to further their particular interests in conducting recreational activities in wilderness that are otherwise prohibited under Section 4(c) of the Act.
In closing, we appreciate the opportunity to comment on this important policy proposal.
Phil Francis, Jr.
Chair of the Executive Council
Coalition to Protect America’s National Parks
2 Massachusetts Ave NE, Unit 77436
Washington, DC 20013
cc: Frank Lands, Deputy Director, Operations, National Park Service