To hear oral arguements go to: www.ca8.uscourts.gov On the left hand side of the page you will see a section that says ORAL ARGUEMENTS. Click on this and enter case 07-3689. This should allow you to hear for yourself what actually took place in the court room.
Rhonda Silence – Cook County Star – October 2008
Thirty years after the passage of the 1978 Boundary Waters Canoe Area Wilderness Act, the boundaries of the wilderness were once again disputed in a hearing at the 8th Circuit Court of Appeals in Minneapolis. The boundary dispute arose as the result of a lawsuit filed in 2007 by several groups opposed to a proposed US Forest Service reroute of a snowmobile trail between McFarland and South Fowl Lakes in the Hovland area.
US Forest Service plans to construct the South Fowl snowmobile access were halted by a lawsuit filed by plaintiffs Sierra Club North Star Chapter, Wilderness Watch and Northeastern Minnesotans for Wilderness. Cook County, the Conservationists with Common Sense of Ely and the Arrowhead Coalition for Multiple Use of Grand Marais joined the lawsuit as interveners, supporting the Forest Service’s trail reroute. Also involved with the lawsuit is the Grand Portage Band of Lake Superior Chippewa and the State of Minnesota, which filed Amicus, or Friend of the Court briefs, lending support to the US Forest Service position.
On Thursday, October 16, 2008, Attorney Brian O’Neill of Fagre & Benson, Inc., representing the plaintiffs, argued against construction of the trail because it would lead to South Fowl Lake, which O’Neill argued is within the wilderness boundary and thereby not open to snowmobiles—or to unrestricted motor boat usage.
US Forest Service maps show the North and South Fowl Lakes outside of the wilderness boundary line, however, O’Neill argued that since the lakes within the Boundary Waters which allow 10 hp motor uses are colored pink on the Forest Service maps, both North and South Fowl Lakes must be within the wilderness as they too are colored pink. O’Neill said plaintiffs were suing to enforce wilderness restrictions on North and South Fowl Lakes just as they are on other Boundary Waters lakes. O’Neill further argued that the two lakes were wilderness lakes because the Wilderness Act lists them in Section 4 of the Act as lakes with motor restriction.
Judges hearing the 8th Circuit appeal were James Loken, Kermit Bye and Lavenski Smith. Judge Loken asked for clarification of snowmobile use around the two lakes. He noted that under the plaintiffs’ theory of the law, since the shoreline is not wilderness, snowmobilers could drive all around the lake shore, but not across the ice.
Also questioned was whether the claims were barred by the statute of limitations, since almost 30 years have elapsed from passage of the Act and publication of the map showing the boundary. O’Neill said up until 2005, “everyone assumed North and South Fowl were within the Boundary Waters.” He cited a case that listed all the lakes in the Act subject to motor restrictions, including North and South Fowl Lakes.
Robert Oakley, from the US Department of Justice, representing the U.S. Forest Service, disputed O’Neill’s statement, citing an earlier brief from another Fagre & Benson attorney and a 2005 letter from Forest Service Supervisor James Sanders. Oakley said the documents demonstrate that the lakes were not managed as wilderness and that the plaintiffs have known that since 1978. Finally, Oakley said, snowmobiling has been occurring on the lakes for many years.
David Oberstar, from the law firm of Fryberger, Buchanan, Smith & Frederick in Duluth, argued on behalf of the interveners. Oberstar said the plaintiffs’ claim that North and South Fowl Lakes are within the wilderness generates very strong feelings in northeastern Minnesota, pointing to the State of Minnesota and Grand Portage Band amicus briefs, and Cook County’s support of the Forest Service.
“A generation of people has accessed their private property on North and South Fowl Lakes and they’ve done so with motorized vehicles,” said Oberstar. “These lakes have never been designated as wilderness lakes, and they have reasonably relied on having access to their land over these years,” said Oberstar.
Oberstar added that half the lakes are controlled by Canada. “They can land floatplanes on the Canadian side of the lakes, they have full motorized use, full snowmobile use,” said Oberstar. “They’re basically regular, recreational lakes.”
Oberstar acknowledged that Congress has the power to regulate non-wilderness land, but there had to be a “nexus” between the restriction and the need to protect the wilderness. Since South Fowl lies so far from the wilderness boundary, Oberstar argued that the horsepower limit serves no reasonable purpose. The nearest wilderness is on the northwest edge of North Fowl Lake. With the nearby Canadian recreational use, the 10 hp limit doesn’t limit the noise already existing on the lake. So, he said, the horsepower limit does not protect wilderness values.
“In my opinion,” said Oberstar, “In regulating North and South Fowl Lake, Congress went too far. No nexus exists to justify the regulation….”
In O’Neill’s two-minute rebuttal, he reiterated that North and South Fowl Lakes were properly regulated.
At the end of the hearing, Judge Loken asked about the 2007 ruling by U.S. District Court Judge John Tunheim that the Forest Service should have conducted additional analysis on the impact of sound on the wilderness from the proposed snowmobile trail. O’Neill said the Forest Service didn’t prepare a proper sound impact analysis.
Judge Loken said, “Maybe I’ve been naïve. I thought the Wilderness Act meant we conserve wilderness. But the District Court’s analysis strikes me that what we’re protecting is the few people with the skills and financial resources to be there.”
Loken asked if there was another aspect to the sound analysis other than if people in the wilderness can hear snowmobiles. O’Neill said wilderness was established for quietude and solitude. “In wildness is the salvation of the world,” said O’Neill.
The conflict started in 2002, when the Forest Service closed a snowmobile trail which had been used to travel from McFarland to South Fowl Lake, after it was determined to be within the wilderness. On February 21, 2006, the Forest Service issued a decision to build an alternative route. In August 2006, the plaintiffs filed the lawsuit protesting the reroute and Judge Tunheim first heard arguments in the case in December 2006. A decision from the 8th Circuit Court is expected in early 2009.
To hear the oral arguements go to: www.ca8.uscourts.gov On the left hand side of the page, you will see a section that says ORAL ARGUEMENTS. Click on this and enter case #07-3689. This should allow you to hear for yourself what actually took place in the court room.