Conservationists With Common Sense (CWCS)

South Fowl Hearing

by Nancy McReady

The 8th Circuit Court of Appeals on Thursday, October 16 heard arguments concerning the South Fowl Lake - McFarland Lake snowmobile trail proposed by the Forest Service. Plaintiffs Sierra Club, Wilderness Watch and Northeastern Minnesotans for Wilderness, sued the Forest Service in 2007 to halt construction of the trail. Plaintiffs, in addition to challenging the trail, claimed that North and South Fowl Lakes were actually designated as wilderness by Congress in the BWCA Wilderness Act.

Cook County, Conservationists with Common Sense and the Arrowhead Coalition for Multiple Use intervened in the lawsuit.

In 2007, the U.S. District Court, Judge John Tunheim, ruled that the Forest Service should have conducted additional analysis on the impact of sound from the proposed snowmobile trail. Judge Tunheim also rejected plaintiffs’ claim that North and South Fowl Lakes are within the wilderness. His decision was appealed to the 8th Circuit Court of Appeals.

Almost thirty years to the day of the passage of the 1978 BWCA Wilderness Act, the case was heard before the United States Court of Appeals for the 8th Circuit by Judges James Loken – appointed by George H. Bush, Kermit Bye – appointed by Bill Clinton and Lavenski Smith – appointed by George W. Bush.

Plaintiffs’ attorney, Brian O’Neill with the firm of Faegre & Benson, 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.

Even though both North and South Fowl are clearly outside of the Boundary Waters Wilderness boundary, O’Neill continued to argue that the two lakes were wilderness lakes because the BWCA Wilderness Act lists them in Section 4 of the Act as lakes with motor restriction.

Judge Loken discussed snowmobile use around the two lakes. Under plaintiffs’ theory of the law, since the shoreline is not wilderness, snowmobilers could drive all around the lake shore, but not across the ice.

The Judge also asked about what happens to the people who reasonably relied on the map to make private property improvements on South Fowl Lake and the impact on the devaluation of resort and property if more restrictions were enforced. O’Neill said there was no reason for the court to consider that issue.

Another issue raised was whether the plaintiffs’ claims were barred by the statute of limitations, since for almost 30 years have elapsed from passage of the Act and publication of the map showing the boundary before any question was raised about the wilderness boundary. O’Neill said up until 2005, everyone assumed North and South Fowl were within the Boundary Waters. He cited the 1981 case of Minnesota v. Block that listed all the lakes in the Act subject to motor restrictions, including North and South Fowl Lakes.

Judge Bye brought up the 1979 letter Representative Burton wrote dated several months after passage of the Act that addressed the concerns of the 10 hp limit on North and South Fowl Lakes. Burton wrote: “The wilderness boundary, as finally drawn, follows the west shore of these two lakes, excluding their waters from the designated wilderness, yet the Act names these two lakes among those on which the 10 horsepower motor limitation applies, even though all of the other listed lakes and rivers are partially or entirely within the wilderness. This apparent inconsistency was not an accident.” O’Neill said the Burton letter was not part of the legislative history and should not be considered by the court.

Robert Oakley, from the Department of Justice, represented the U.S. Forest Service and spoke in opposition to plaintiffs’ claims. Oakley disputed O’Neill’s statement that until 2005 there were rules or regulations of the Forest Service treating the two lakes as wilderness. He quoted a brief filed by O’Neill’s associate stating that “the Forest Service has not enforced and is still not enforcing the snowmobiling ban and motorboat quotas on the Fowl Lakes. Oakley also discussed a 2005 letter written by Forest Service Supervisor James Sanders in which Sanders stated, “I want to make it clear, that we have not, and do not intend a plan to change the policy on the possession of motors within the Boundary Waters Wilderness.” Oakley said that the Plaintiffs have known since 1978 that these lakes were not managed as wilderness.

Oakley added that material filed by attorney David Oberstar and the two amicus briefs submitted by the State of Minnesota and the Grand Portage Band showed that these lakes have been consistently treated by the Forest Service as having horsepower restrictions, but having no other wilderness restrictions. Further, snowmobiling has been occurring on the lakes for many years.

Judge Bye asked what authority would justify these restrictions on non-wilderness areas like North and South Fowl Lakes. Oakley referred to the Block case and replied that under the Property Clause, Congress could insulate the wilderness area by imposing horsepower restrictions on lakes adjacent to or very near the wilderness area to further the wilderness values.

Oakley said the statute of limitations should bar plaintiffs’ claim to make North and South Fowl wilderness. “Snowmobilers have been on those lakes since before 1978, after 1978, after 1980 when the Forest Service put out its maps,” said Oakley. The legal description was published in the Federal Register. The maps and legal description both showed the lakes are not in the wilderness. Oakley also mentioned that O’Neill represented parties in the Block case in 1981. He said O’Neill has clients that use these lakes and he knew that snowmobiles were in use back in 1981. This issue wasn’t raised in Block, and cannot be raised now after almost 30 years.

The Judge then questioned Oakley on issues raised by the intervenors in Oberstar’s written brief. The intervenors are appealing the decision of Judge Tunheim to require an EIS on the issue of snowmobile sound impacts on the BWCA from the proposed snowmobile trail. Plaintiffs and the Forest Service took the position that this issue was not appealable. Judge Loken stated that he believes at least a portion of the decision is appealable.

Oberstar, from the law firm of Fryberger, Buchanan, Smith & Frederick in Duluth, argued on behalf of Cook County, Conservationist with Common Sense and Arrowhead Coalition for Multiple Use. Oberstar said the plaintiffs’ claim that North and South Fowl Lakes are within the wilderness generates very strong feelings in northeastern Minnesota. The State of Minnesota and Grand Portage Band filed amicus briefs, and the Cook County board took action to get involved in this lawsuit and express their opposition to plaintiffs’ position.

“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.” Oberstar said the only practical access to their property in the winter was by snowmobile.

When asked why the two lakes were listed in Section 4 of the 1978 BWCA Wilderness Act, Oberstar said he thought it was a drafting error, and Chairman Burton wrote the letter to address the issue in an effort to avoid reopening the Act to correct the mistake. Reopening the Act would create a risk of rearguing other provisions in the Act.

Oberstar described the current conditions on North and South Fowl Lakes. He said 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 said 100% of the land enclosing South Fowl Lake is non-federal land, not wilderness. He referenced the Block case which stated that Congress does have the power to regulate non-federal land, but there had to be a nexus between the restriction and the need to protect the federal land. Since South Fowl lies so far from the wilderness boundary, the horsepower limit serves no reasonable purpose on that lake. 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, 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 of non-federal land.

In O’Neill’s two-minute rebuttal, he claimed that the Block case has already held that North and South Fowl Lakes were properly regulated.

Judge Loken said the map is incontestable, and shows the lakes outside the wilderness boundary. He also asked about the Forest Service analysis of the snowmobile sound issue. O’Neill said the Forest Service didn’t prepare a proper sound impact analysis. Loken questioned the District Court decision on the sound issue. “Maybe I’ve been naive,” said Judge Loken. “I thought the Wilderness Act meant we conserve wilderness.  But the District Court’s analysis strikes me what we’re protecting is the few people with the skills and financial resources to be there.” He asked if there was another aspect to the sound analysis other than if people in the wilderness can hear the snowmobiles. O’Neill said no.

“The purpose that wilderness was established was for quietude and solitude” said O’Neill. “In wildness is the salvation of the world.”

A decision from the 8th Circuit Court is expected in early 2009.