Fowl Lakes Arguments Heard in Court
There were no signs regarding Boundary Waters Canoe Area Wilderness (BWCAW) boundaries near North or South Fowl lakes until the fall of 2006, when the US Forest Service erected this sign on the shoreline of North Fowl lake.
U.S. District Judge John R. Tunheim heard arguments regarding the Hovland area North and South Fowl Lakes and the Tilbury snowmobile trail reroute on Thursday, December 21 in Minneapolis. Parties to the lawsuit presented arguments on several levels. The first point of contention surrounds the classification of North and South Fowl Lakes (the Fowl lakes) as lakes within or outside of the Boundary Waters Canoe Area (BWCA). The ultimate classification of the Fowl lakes has a direct bearing on the Tilbury snowmobile trail reroute, a reroute designed to serve winter users of the Fowl lakes, since snowmobile use is not permissible within the BWCA. A second point involved the extent to which the U.S. Forest Service had performed adequate due diligence regarding its assessment of any potential adverse impacts on the BWCA associated with the proposed trail reroute. The significance of the perceived visual and auditory impacts associated with the proposed trail reroute on BWCA users and the justification for a protective buffer around this portion of the BWCA was a third point of contention. Attorney Kristen M. Gast was the primary representative for the plaintiffs in this case which include the Izaak Walton League, the North Star Chapter of the Sierra Club, Wilderness Watch and the Northeastern Minnesotans for Wilderness. Representing the defendant U.S. Forest Service (USFS) was Pat Cangemi of the Department of Justice. In support of the defendant, attorney David R. Oberstar represented the interests of Cook County and two other groups, the Conservationists With Common Sense (CWCS) and the Arrowhead Coalition for Multiple Use (ACMU). Also present on behalf of the USFS was Forest Service Supervisor James Sanders and Gunflint Ranger Dennis R. Neitzke. Neitzke has been central to USFS efforts to develop a balanced resolution to the Tilbury Trail reroute issue.
Cangemi was first to address the court asserting that the plaintiffs argument favoring inclusion of the Fowl lakes in the BWCA was false and that plaintiffs are bringing suit solely because they are not pleased with the Tilbury Trail reroute proposed by the USFS. Cangemi argued that USFS maps showing the boundaries of the BWCA not including the Fowl lakes were created by the USFS in 1978 and were recorded in the Federal Register making them an official part of the BWCA Act passed by the U.S. Congress. The original BWCA map has been maintained as required by the BWCA Act in the Superior National Forest Supervisor's office. The map was later displayed to the court as evidence. It was further argued that the BWCA boundaries shown by the USFS map were confirmed by Judge Miles Lord in 1978 with an affidavit by Miron L. Heinselman, a founding member of the Friends of the Boundary Waters and co-author of the book Troubled Waters, who was directly involved in the negotiations of BWCA boundaries.
Cangemi said that Ranger Neitzke conducted an exhaustive process to study the potential impacts of trail reroute alternatives involving all interested parties. USFS protocols were followed and the USFS fulfilled its obligation to protect the wilderness nature of the area.
Judge Tunheim noted that noise intrusion is a key consideration and questioned Cangemi about an earlier case known as “Big Grass” where noise was a central issue. Cangemi noted differences between Big Grass and the case currently before the court, and reiterated that the USFS followed all required procedures to consider the impact of potential noise in its trail reroute recommendation. In the Big Grass case, the wilderness surrounded the area in question, whereas the South Fowl project area is at the wilderness’ edge.
Oberstar added that the BWCA 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 BWCA. Oberstar’s 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 further stated 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.
Oberstar went on to state that a second trail reroute alternative considered by the USFS (favored by the plaintiffs) has significant safety concerns.
Pointing out what he feels is an apparent inconsistency, Oberstar concluded by requesting that the court lift the existing motor size restrictions on the Fowl lakes since the lakes are not within the BWCA. The Fowl lakes are included in the text of the 1978 BWCA Act under motor restricted lakes. It is a point of contention as to whether or not that designation by the Act translates into an automatic inclusion of the Fowl lakes as part of the BWCA or if the boundaries established by the USFS in 1978 and published in the federal register are predominant.
Oberstar cited Sec. 4(c) of the BWCA Act which states: “the use of motorboats is prohibited within the wilderness designated by this Act, and that portion within the wilderness of all lakes, which are partly within the wilderness, except for the following…” The Act then lists all of the lakes. Of all the lakes listed in Sec. 4(c), North and South Fowl Lakes are the only ones not included by the USFS within the wilderness. All others are entirely or partially within the wilderness. Oberstar said as such, North and South Fowl Lakes have not required motorboat quotas or the enforced banning of snowmobile use.
Oberstar argued that motor size restrictions in effect on the Fowl lakes give the false impression that the two lakes fall within the BWCA. He argued that the motor size restrictions placed in effect by the USFS are in error and were not authorized by Congress for the Fowl lakes as a part of the BWCA Act.
Claiming that the Fowl lakes are within the BWCA, plaintiff’s attorney Gast showed various other USFS maps to the court to make her point. She argued that exclusion of the Fowl lakes from the written legal description of the BWCA was an error by the USFS. Gast went on to argue further that the original BWCA map maintained by the USFS (noted above) is irrelevant. Consistent with her contention that the Fowl lakes are part of the BWCA, Gast argued that completion of the proposed Tilbury Trail reroute will facilitate snowmobile use within the BWCA and that this is not permissible. When questioned by Judge Tunheim about the notion of a protective buffer zone around the BWCA, Gast acknowledged that there are no firm buffer zone boundaries specified for the BWCA but that buffer zones should be based on a judgment of the potential impacts of surrounding activities.
In the event that the court finds the Fowl lakes outside of the BWCA, plaintiffs additionally argue that the proposed trail is located in a protective buffer area required to protect the BWCA from potential visual and audible impacts. Judge Tunheim challenged both sides with regard to the relevance of various portions of the 1978 BWCA Act. He also raised a number of questions regarding the applicability of decisions in previous similar cases.
Defense presented photos of the proposed Tilbury Trail reroute as viewed from within the BWCA and argued that the visible impacts would be minimal. Plaintiffs turned that argument around, noting that foliage shown in Defense’s photos would not be present during the winter season when the snowmobile trail would be in use thus increasing its visible impact from the BWCA. Defense had earlier noted that winter use of the affected portion of the BWCA by non-motorized users is so low that, for all practical purposes, there wouldn’t be anyone around to potentially see or hear snowmobiles on the proposed trail reroute (located some 700 feet outside the BWCA). Both sides concluding remarks reiterated earlier positions. Judge Tunheim announced that a written order would be issued by the court but did not provide a timeframe by when his decision would be published.