Fowl Lakes lawsuit continues
Another hearing was held in Minneapolis District Court on Friday, January 19, 2007, to hear further arguments in the lawsuit regarding a snowmobile trail reroute in the Hovland area. The lawsuit has become as much about Boundary Waters Canoe Area Wilderness (BWCAW) boundaries as it is about the proposed construction of a snowmobile trail.
The major point of contention in the lawsuit is the apparent contradiction between the legislative record regarding creation of the wilderness boundaries and what was ultimately published in the U.S. Federal Register. Also being contested by the Izaak Walton League, Wilderness Watch, Sierra Club North Star Chapter, and Northeastern Minnesotans for Wilderness, is the validity of a map of the wilderness boundaries produced by the US Forest Service at its first appearance in court on December 21, 2006.
Kristen M. Gast of Faegre & Benson, attorney for those groups, wrote to Judge John R. Tunheim, submitting a challenge to the map on December22. Gast stated that the large format map produced in court “is not the map that Congress considered when it designated the Boundary Waters wilderness, nor is it the map Congress referred to in Section 3 of the BWCAW Act.”
Gast produced a copy of the map pictured on page 255 of the legislative history, stating that the map, when viewed up close, includes the South and North Fowl Lakes within the black wilderness boundary line, on the eastern edge of the wilderness area. Gast said this map was attached to a senate report, the last iteration in the legislative history of the boundary map that was before Congress prior to the passage of the BWCAW Act. Gast also states that the legislative history contains 25 references to North and South Fowl Lakes as wilderness lakes.
Patricia Cangemi, of the US Department of Justice, representing the US Forest Service, responded by stating “Plaintiffs’ attempts to throw into doubt the boundary issue do not change the fact that the official map and boundary was prepared and filed over 27 years ago and filed in the Federal Register.”
Cangemi produced a declaration from Barbara A. Soderberg, who was employed by the US Forest Service when the original map was made available for public comment, was published in the Federal Register, and was filed with Congress. Under penalty of perjury, Soderberg declared that the map presented to the court on December 21, 2006 is the one presented to the Forest Service following the BWCAW legislation. Soderberg said, “I have had this map in my possession since late 1978 or early 1979.”
Soderberg further declared that the map referred to by Kristen Gast is one printed on page 255 of the Legislative History, and that map was not referenced by the Act or provided to the Forest Service for use in preparation of the Official Map and Boundary Description.
Cangemi said, “This illustrates the problem with many “other” maps and why the legal maps are so important, not only now, 27 years after, but also in 1978 when they were put together with opportunity for viewing and public comment. This is part of the process of filing them with Congress and then printing in the Federal Register. Relying on any other map that has not followed the very same process of formal filing is inappropriate and illegal in terms of the 1978 Act.”
David Oberstar, of Fryberger, Buchanan, Smith & Frederick, represents Cook County as well as the Arrowhead Coalition for Multiple Use and the Conservationists with Common Sense, who are intervening on behalf of the Forest Service on this lawsuit. Oberstar also responded to the claim that the large map presented in court does not accurately represent the boundaries of the BWCAW. Oberstar said the argument ignores two points. “First, the map referenced by plaintiffs is only 8-inches in size and lacks sufficient detail to be able to discern the boundary near North and South Fowl Lake.”
Oberstar secondly referred to the contentious history of the Boundary Waters. He said if error had been made in 1978, the parties involved in the negotiations would have immediately noticed a mistake. “Plaintiffs’ arguments with respect to this issue are simply not supported by logic,” wrote Oberstar.
Judge Tunheim is reviewing the latest round of arguments and a written order will eventually be issued by the court.