Allagash Waterway Case Study

Natural ResourcesSpring, 2007

North of Mount Katahdin and west of the towns of Aroostook County, in one of the wildest parts of Maine, lies the Allagash Waterway. Since Henry David Thoreau visited in the mid-19th century, the Allagash has been hailed for its remoteness and beauty and has been a popular destination for wilderness canoeing.

For years, however, the Allagash hasn’t been entirely wild. The land lining the waterway is state-owned, but most land in the watershed is private, and logging companies continue to harvest timber from the region. Local residents use the logging roads to access snowmobile trails, hunting areas, and, through eleven access points dispersed throughout the region, the

waterway itself. As in many wild areas in the United States, the diversity of uses has led to conflict between those who would promote and those who would exclude motorized access.

You now are caught up in that conflict. The Maine Legislature is considering a bill that would require the Maine Bureau of Parks and Land to permanently maintain the existing access points along the Allagash River.1 You have been asked to advise a legislator about whether the proposed legislation is (a) legal and (b) good policy.

Initially, these struck you as easy questions. The access points already exist and are popular. The lands along the Allagash are state-owned, so you assumed there would be little question about the state’s legal authority to manage those lands as it saw fit. But several environmental and wilderness canoeing organizations are adamantly opposed. They claim that the access points are already degrading the wilderness experience that the Allagash should offer—an experience, they point out, that is not available anywhere else in the eastern United States. They contend that all but two of those access points should have been removed already, and that requiring those access points to become permanent will further damage a core part of Maine’s natural heritage.

The environmental groups also argue that the proposed legislation would be unconstitutional. In 1968, the United States Congress passed the Wild and Scenic Rivers Act (WSRA), which established of requirements for protecting certain designated rivers. The WSRA specifically refers to the Allagash, which Maine had already taken steps to protect, and contemporary correspondence suggests that Maine Senator Muskie anticipated that the Allagash would be included as a state-administered river within the federal system. In 1970, Maine Governor Kenneth Curtis formally asked for the Allagash to be listed as a “wild” river. The Secretary of the Interior agreed to the listing, and the Allagash became part of the Wild and Scenic Rivers system. The environmental groups argue that the WRSA therefore governs state management of the Allagash, and that making the motorized access points permanent would be inconsistent with both the letter and the spirit of the act. Citing the Supremacy Clause of the United States Constitution, they claim that the proposed state legislation therefore would be preempted.

Access advocates and the bill’s sponsors dispute these arguments. They contend that the WRSA evinces no intent to regulate state land use, and that even if it did, making the access points permanent would not violate the WSRA’s mandates. They also argue that closing the access points would be foolish policy. The number of wilderness canoeists in the Allagash is decreasing, they point out, while demand for recreational day use is growing, and a 2003 state-sponsored study suggested that the canoeists who still do visit the Allagash are quite happy with their experiences. Moreover, the day-use demand is primarily local, while many wilderness canoeists come from farther away. Day-use access also is cheaper; many people can afford to drive into an access point on a weekend, but few can afford to take two weeks off for a wilderness canoe trip. To limit access to the Allagash, they argue, would therefore be elitist, undemocratic, and unnecessary.

1 In fact, the Maine Legislature already has enacted this legislation, and it is currently being challenged in federal district court. But for purposes of this exercise, I want you to assume the legislation has not yet passed.

What advice will you give? Before deciding, you should review the following exhibits (all of which are important, but I suggest you particularly focus upon the WSRA and the 2006 Maine legislation):

A. Allagash River Waterway Map

B. Letter from Senator Edmund S. Muskie to Senator Henry M. Jackson, June 8, 1965

C. An Act Creating the Allagash Wilderness Waterway (1966)

D. The Wild and Scenic Rivers Act (1968)

E. Letter from Kenneth M. Curtis to Walter J. Hickel, April 10, 1970

F. Letter from Kenneth M. Curtis to Walter J. Hickel, May 4, 1970

G. Maine State Park and Recreation Commission, The Allagash Wilderness Waterway, April, 1970

H. Beth Daley, Maine’s Allagash: A river wild, or is it?. Boston Globe, November 28, 2000.

I. John J. Daigle, Allagash Wilderness Waterway Visitor Survey, April 2004 (executive summary only)

J. An Act to Make Adjustments to the Allagash Wilderness Waterway