Arrowhead ACMU

The Arrowhead Coalition for Multiple Use (ACMU) was pleased to hear the long-awaited decision by Judge John R. Tunheim regarding the North and South Fowl Lakes in Cook County. On August 31, 2007, Judge Tunheim found that the Fowl lakes are outside of the Boundary Waters Canoe Area Wilderness (BWCAW). However, the decision answers only a portion of the legal questions surrounding the Hovland lakes and a proposed US Forest Service snowmobile trail reroute. Tunheim did not yet issue a ruling on the other facets of the lawsuit-whether or not the Forest Service performed due diligence in assessing potential adverse impacts on the BWCAW associated with the trail reroute and whether visual and auditory impacts associated with the trail justify a protective buffer around this portion of the BWCAW.

Nancy McReady, president of the Conservationists with Common Sense, who partnered with ACMU to intervene on behalf of the US Forest Service, said, "CWCS is very happy to hear that Judge Tunheim has decided the neither North or South Fowl Lakes are within the Boundary Waters. We remain optimistic that the summary judgment motions will 
also be decided in favor of the northern snowmobile route from McFarland Lake to the Fowls, as there is no buffer zone to the Boundary Waters. Nowhere in the 1978 BWCA Wilderness Act does it mention anything about restricting uses, timber management or construction outside of the wilderness to preserve the Boundary Waters' wilderness character. Hopefully the judge's decision will come soon and the trail can be constructed this fall."

Tunheim first heard arguments in the case in December 2006, with Attorney Kristen M. Gast of Fagre & Benson, representing the plaintiffs in this case which are the Izaak Walton League, the North Star Chapter of the Sierra Club, Wilderness Watch and the Northeastern Minnesotans for Wilderness. Gast claimed that the Fowl lakes are within the BWCAW, stating that the exclusion of the Fowl lakes from the written legal description of the BWCAW was an error by the USFS. She argued further that the original BWCA map maintained by the USFS is not the map intended to be used by the legislature in the BWCA Act. Consistent with her contention that the Fowl lakes are part of the BWCAW, Gast argued that completion of the proposed Tilbury Trail reroute will facilitate snowmobile use within the BWCAW. Gast also argued that because North and South Fowl lakes were within the BWCAW, the Forest Service was required to implement entry point quotas for the use of motorboats on the Fowl Lakes.

David Oberstar, of Fryberger, Buchanan, Smith & Frederick, represents the Arrowhead Coalition for Multiple Use and the Conservationists with Common Sense, as well as the Cook County Board of Commissioners, who are intervening on behalf of the Forest Service on this lawsuit. Oberstar agreed with the USFS assertion that the Fowl Lakes are excluded from the BWCAW and he further argued that motor size restrictions in effect on the Fowl lakes are in error and were not authorized by Congress as a part of the BWCA Act.

Representing the defendant U.S. Forest Service (USFS) was Pat Cangemi of the Department of Justice. Cangemi called forward Forest Service employee Barb Soderberg, who testified that the map in question "is the one presented to the US Forest Service following the BWCA legislation."

Soderberg's statement was cited in Judge Tunheim's decision, as strengthening the validity of the map. Referring to sections of the BWCA Act, the judge wrote that the Court "finds no uncertainty as to the congressional map" designated in the BWCA legislation because the title of the map "matches precisely" the statutory description in the legislation.

The judge also noted that the BWCAW boundaries have not been challenged for nearly 30 years. He said if the Forest Service had based its legal description and map on an incorrect version of a map, litigation over the BWCAW boundaries would have been brought forward long ago. He wrote, "To decide otherwise would also disturb a generation of settled expectations as to the proper boundaries of the BWCAW. For these reasons, and to resolve any remaining uncertainty as to the actual wilderness area, the court holds that the BWCAW boundaries are properly set forth in the legal description and 21 maps published by the Forest Service pursuant to § 3 of the BWCAW Act."
Judge Tunheim's decision does not decide the fate of the proposed snowmobile trail, however. The environmental groups argued that if the court found that the Fowl lakes are outside of the BWCAW that the proposed trail is located in a protective buffer area required to protect the BWCAW from potential visual and audible impacts.

Oberstar argued that the BWCAW is very unusual as a designated wilderness area in that its original design includes several lakes allowing motorized use. As a result, there is already some allowable visual and audible impact from motorized use within the BWCAW. Oberstar further argued that the impacts resulting from snowmobile use on the Tilbury Trail reroute located outside of the BWCA are so low as to be inconsequential. He stressed that Congress required that the areas surrounding the BWCA be managed for logging and other legitimate uses, such as snowmobile trails, and that a buffer zone around the BWCA to further protect it from potential intrusions was not required by the 1978 BWCA Act. Oberstar also noted the due diligence process followed by the USFS leading up to its decision approving the Tilbury Trail reroute.

Judge Tunheim gave no clue to what a further ruling would be or when it would be forthcoming. He wrote simply in a footnote in the 14-page document, "The court will rule on the parties' cross-motions for summary judgment in a separate order to be issued following this memorandum."

Cook County Attorney Tim Scannell said the county was pleased with the decision. He said, "It is a very narrow decision, but the statement of facts seems to support the county's original position. We will have to wait for another decision on the cross-motions for summary judgment-those issues are still up in the air. We are cautiously hopeful that we'll get a good decision on the other matters."

The trail at the center of litigation was called the Tilbury Trail by the snowmobilers who used it for decades and was dubbed the Royal Lake trail by the US Forest Service. The historic trail was closed by the Forest Service in 2002 when it was found to be encroaching on the BWCAW. In a 2003 county board meeting, Cook County commissioners requested that the Forest Service develop a replacement trail. At subsequent meetings, the Cook County board supported a Forest Service trail alternative, the "northern route." At the behest of area residents and ice fisherman who wanted the northern route because it is similar to the old Tilbury Trail-a narrow, winding, scenic, trail between McFarland and South Fowl Lakes-the county board passed motions supporting the 2 ½ mile northern route in July 2004, March 2005, and in September 2005.

The proposed northern route ultimately selected by the Forest Service begins at the existing Little John Lake parking lot. It crosses the Border Route Hiking Trail, the former Tilbury Trail, and moves southeast ascending to the ridge above the Royal River. It is there that it is closest to the BWCAW, approximately within 400 feet, however it is high above the BWCAW. The route follows the ridge away from the BWCAW in an east-southeast direction about 1.3 miles, then down-slope northeast to level ground and directly east to South Fowl Lake.