Another decision

[Celly]

From the Cook County Star, October 8, 2007
Another decision
on South Fowl Lakes
Rhonda Silence
United States District Judge John R. Tunheim issued a second opinion on September 28 regarding a proposed 2.2 mile snowmobile trail intended to connect McFarland and South Fowl lakes in Hovland. Judge Tunheim denied and granted claims and counter-claims brought by both the plaintiffs and defendendents and sent the US Forest Service back for further study of how the sound of snowmobiles on the trail would affect the adjacent Boundary Waters Canoe Area Wilderness (BWCAW).

Counts I and II brought forward by the plaintiffs, the Isaac Walton League of America, Wilderness Watch, Sierra Club Northstar Chapter and Northeastern Minnesotans for Wilderness alleged that the North and South Fowl Lakes are wilderness lakes and for that reason, snowmobiles and motor boats should be banned from use. Tunheim reiterated his earlier decision, issued August 31, 2007 which upheld the US Forest Service's assertion that the Fowl Lakes are not included within the BWCAW boundaries. Tunheim denied counts I and II.

Neither the plaintiffs or the defendant, the US Forest Service, joined by interveners Cook County, Conservationists with Common Sense, and Arrowhead Coalition for Multiple Use, received satisfaction on Count III, which was denied "without prejudice." The plaintiffs argued that the South Fowl Trail will project the sights and sounds of snowmobiles into the BWCAW, a violation of Section 4 of the Wilderness Act, which requires the USFS to preserve the wilderness character of the area. The defendants contend that there is no violation of the Wilderness Act because the proposed snowmobile trail is outside of the BWCAW.

Tunheim referred to a case regarding helicopter use near a wilderness in Wyoming, which resulted in a court decision that "abides no diminishment" of opportunities for solitude. However, Judge Tunheim wrote that another court decision, in Arkansas states 'that Congress does not intend that designation of protective perimeters or buffer zones around each wilderness area." Tunheim finally stated "the court holds that an agency's duty to preserve the wilderness character under Section 4 of the Wilderness Act may apply to agency activity that occurs outside of the boundaries of the wilderness area."

Tunheim went on to explain that in his opinion not all agency activity has an impact on a designated area's 'wilderness character.' He wrote, "Thus, the key question in determining whether agency action violates Section 4(b) is whether the action degrades the wilderness character of a designated wilderness area. He said to answer this question, the court must look at various factors, such as the nature of the activity, the existing character of the wilderness area, and if recreational use is already evident.

"In other words," wrote Tunheim, "where the agency activity does not increase or exacerbate the existing sound impact on the wilderness area such activity would not degrade the wilderness character of the area. On the other hand, agency activity that results in noise that is louder, more constant, more frequent, or of a different quality, is more likely to degrade the wilderness character from its present condition."

Tunheim said the court needed more data on this and asked that the Forest Service conduct an environmental impact statement assessing the impact of sound on the wilderness.

US Forest Service Gunflint Ranger Dennis Neitzke said the Forest Service was exploring options on just how this EIS could be done. "Obviously we just received the decision," he said in a phone interview. "So we haven't gone too far down the road. We're looking at some options, at what has been done in other areas. The Forest Service did a sound analysis on the Echo Trail project between Ely and Cook. We've contacted some folks at universities to see how it can be done."

Regardless of how it is done, the judge's request delays construction of the trail for at least another season. Neitzke said the Forest Service must publish a notice of intent to conduct the environmental impact statement in the Federal Register. There will then be a scoping period in which public input will be gathered before the environmental study is done. After the analysis a draft EIS document will be prepared and public comments accepted again. "The Federal Register requirements add six months alone," said Neitzke.
Count IV alleges that the construction of the South Fowl trail violates the National Forest Management Act because it adds 2.2 miles of new trail and thus harms the Canada lynx. The lynx has a competitive advantage over other wildlife in heavy snow-except when there is an overage of compacted trails. The Judge denied the count because he agreed that the Forest Service had conducted enough environmental assessment and because there is "no net gain." He said with the loss of the former 2.2 mile, the amount of trail ends up being the same.

Count V introduced three arguments by the plaintiffs that the USFS had violated the requirement for an Environmental Impact Statement. Judge Tunheim found that the USFS had conducted a thorough enough study on the impact on sensitive species and cumulative effects of the trail. However, Judge Tunheim agreed with the plaintiffs that the USFS needed to conduct further study on the impact of noise from the trail on the BWCAW. Tunheim ordered the Forest Service to "promptly prepare an EIS to evaluate more thoroughly the sound impact in the BWCAW, and to suspend further activity on the South Fowl trail pending completion of the study.

Finally, the 'Property Clause' introduced by interveners, CWCS and ACMU, to remove the motorboat limitations on the Fowl Lakes, was denied. CWCS and ACMU argued that since the Fowl Lakes were outside the BWCA boundaries, Congress did not have the authority to enact a motorboat size restriction. Tunheim disagreed.

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