On February 13, 2015, Judge John Tunheim issued a long-awaited opinion on the U.S. Forest Service 2006 decision to construct the South Fowl snowmobile trail between McFarland and South Fowl lakes in Hovland. Reached by phone after the ruling became public, Attorney David Oberstar said the ruling was “all in favor” of the U.S. Forest Service.
Oberstar, of Fryberger, Buchanan and Smith of Duluth, represented Cook County, the Arrowhead Coalition for Multiple Use (ACMU) and Conservationists with Common Sense (CSCS) as interveners in the lawsuit in support of the Forest Service snowmobile trail proposal. The county, ACMU and CWCS supported the development of Alternative 2, which most closely resembles the trail closed by the Forest Service in 2003, known by many local residents as the “Tilbury Trail.”
The plaintiffs seeking to block the trail were the Izaak Walton League of America, Inc.; Wilderness Watch of Missoula, Montana; Sierra Club Northstar Chapter; and Northeastern Minnesotans for Wilderness (NMW).
Judge finds adaptive management a “harmless error”
The plaintiffs’ primary complaint stemmed from then-Gunflint Ranger Dennis Neitzke’s 2006 decision to build the Forest Service’s Alternative 2 route with the caveat that if the trail were misused it would be closed and a different route (Alternative 4) would be constructed, an adaptive management decision.
Attorney Kristen Marttila, working pro bono for Lockridge Grindahl Nauen of Minneapolis, argued at an October 2014 hearing that the Forest Service had violated the NEPA Act because her clients were not given the opportunity to submit substantive comments on the wisdom of “joining these two action alternatives.” She said her clients had not been able to comment on the issues that could trigger closure of the trail.
Tunheim acknowledged that the Forest Service left out its “hybrid approach” in the final environmental analysis. However, Tunheim wrote that both of those alternatives had already been considered in great detail and he cited a number of cases in which adaptive management was used to the benefit of the agency by giving policymakers “the discretion to make more nuanced and complicated changes based on shifting conditions.” In fact, Tunheim wrote, the adaptive management approach is better for the plaintiffs, noting that having another alternative available as a backup route ensures that the Forest Service can quickly change to a less invasive route if that is deemed necessary.
For those reasons, Judge Tunheim ruled that the Forest Service decision to issue an adaptive management option was a “harmless error.”
As to the plaintiff ’s claim that the monitoring conditions were not comprehensive enough, Judge Tunheim said the conditions were quite clear. In the Forest Service record of decision, it states that the Forest Service will close the proposed trail if: the Forest Service or other entities wish to connect the area to other state trails; if the Forest Service is unable to keep OHVs off the Alternative 2 trail; if illegal incursions from Alternative 2 into the BWCAW start occurring; or if the snowmobile use of Alternative 2 exceeds the route’s capacity.
Tunheim summed up his ruling on adaptive management by writing, “In sum, the Court concludes that, as to the plaintiff ’s NEPA claim, the Forest Service’s actions were not arbitrary and capricious.”
Impact of sound on wilderness addressed
Judge Tunheim cited Section 4(b) of the 1964 Wilderness Act in his response to plaintiff ’s assertion that the sound of snowmobiles on the 2.2- mile trail would degrade the wilderness character. Tunheim wrote, “While the Wilderness Act’s protections plainly encompass activity that occurs outside a wilderness area—if that activity impacts the wilderness’s character—the Act does not bar agency activity simply because that activity has some effect on adjoining wilderness.
To determine whether an action “impermissibly degrades” the wilderness character of designated wilderness area, Tunheim said the court considered three factors: 1) the nature of the agency activity; 2) the existing character of the wilderness area; and 3) the extent to which the essential, natural characteristics of the wilderness area are changed by the agency activity in question.
Regarding the nature of the activity, Tunheim said the proposed trail is in the Superior National Forest, which is managed according to the Multiple Use Sustained Yield Act (MUSY), which states that national forests are to be managed for multiple uses, including “outdoor recreation.”
In addition, Tunheim cited the Boundary Waters Canoe Area Wilderness Act of 1978, which directs the Forest Service to “expedite and intensify the program of disbursed outdoor recreation development on the Superior National Forest outside the BWCAW, including consideration of “additional snowmobile trails, particularly those now planned or under construction.”
“Thus, the nature of the agency activity—creating a new snowmobile trail—is not inconsistent with the statutes that guide the management of this particular area, which contemplate balancing recreational uses with protecting wilderness character,” wrote Tunheim.
The second factor, the existing character of the wilderness area was also considered. Judge Tunheim noted that the impacted area is a “Semi-Primitive Non-Motorized” management area of the BWCAW and that it borders private land as well as non-wilderness public land. Tunheim noted that snowmobile sounds, as well as motor graders and trucks operating around McFarland Lake, can already be heard throughout the impacted wilderness area and visitors’ expectations for isolation and solitude should be “moderate to low.”
“Given the Forest Plan’s characterization of this portion of the BWCAW, and the fact that snowmobiles and other motorized sounds are already audible throughout the affected wilderness, the construction of a new snowmobile trail is not in conflict with the existing character of wilderness and is not, by itself, enough to establish a Wilderness Act violation,” wrote Tunheim.
The third factor, wrote Tunheim, is whether the activity affects the wilderness area with sound that is similar in volume, duration, frequency and quality to the sound that already exists. Tunheim said this question was the “final and most dispositive factor.” He wrote, “The crux of the dispute is whether the project will impact the auditory characteristics of the wilderness to the extent that it violates the Wilderness Act.” Tunheim gave his reasoning why the Forest Service trail proposal did not result in a violation of the 1964 Wilderness Act in eight pages and closed by writing, “Indeed, in an area that has been surrounded by snowmobile and other motorized traffic since the time it was designated as wilderness, where there are few winter visitors and the expectation of solitude is slim, Alternative 2 does not amount to an impermissible degradation of the area’s wilderness character.”
Clear for trail clearing?
The News-Herald contacted Gunflint Ranger Nancy Larson to ask what was next. Ranger Larson said the Superior National Forest was glad to have a decision from the court. She said, “Gunflint Ranger District staff will be examining the details of the court decision and the South Fowl EIS to develop an action plan of items to implement the decision as intended.”
“In light of the time that has passed since this project was first developed, the Gunflint Ranger District recognizes interest in the trail being constructed as soon as possible. The action plan we will develop will likely identify opportunities for volunteers to contribute to trail construction,” said Larson, noting that because of local interest in the trail, she anticipates “a cadre of willing volunteers.”
Larson added, “We thank those that have engaged in this project and their interest in how the national forest is managed.”
Representing a group engaged in the process, Diane Greeley, secretary of the Arrowhead Coalition for Multiple Use said, “I agree with the judge’s decision due to the language of the 1978 Boundary Waters Act. This trail should have been built back in 1978.”
Greeley added, “One thing that people are forgetting— South Fowl is always referred to as a fishing lake. It isn’t just a great fishing lake; there is a lodge and cabins on both the U.S. and Canadian side of the lake. Those people need access.”
County Commissioner Frank Moe, who represents the Hovland area said, “The Forest Service made this plan over 10 years ago after having a public input process. They will finally be able to re-establish this historical connection. I’ve asked many people and everyone I talked to, who lived anywhere near the proposed trail, including in Grand Portage, was in strong support of the snowmobile trail. It’s time to build the trail.”
Moe said, “I am asking environmental groups, who have opposed the trail, to accept the court’s decision and move on to other, more pressing threats to the Boundary Waters Canoe Area.”
Speaking for the plaintiffs, Kevin Proescholdt of Wilderness Watch said, “We’re of course deeply disappointed. We had hoped he would rule the other way, obviously.
“He sort of agreed with us. He agreed that snowmobile noise would increase in the Royal River area, but just not enough to make a difference to him,” said Proescholdt in a phone interview on February 18.
Asked if trail construction could be delayed by a legal appeal, Gunflint Ranger Larson said, “We are unaware at this time on whether there will be an appeal of the decision by the litigants.”
Proescholdt said he didn’t know how the plaintiffs would proceed yet. “Our organizations haven’t made a decision yet whether or not to appeal. We are trying to set up a conference call with our attorney to discuss this.”
The county’s attorney David Oberstar said he felt an appeal is unlikely. “The plaintiffs could try to take it to the 8th Circuit Court of Appeals. You can always try. But it is unlikely there would be a different outcome. The judge was very thorough in his opinion.”
A long process
The February 13 decision was the latest in a long series of studies and hearings regarding the 2.2-mile snowmobile trail. Gunflint District Ranger Neitzke closed the trail—known to the area residents as the Tilbury Trail—in 2003 after it was brought to his attention that the trail, which had been used since the 1960s, encroached on the wilderness boundaries established in 1978.
Upon closure of the trail, Neitzke initiated plans to replace it. The first opportunity for public comment on trail planning was in July 2004. After much study, the Forest Service issued a decision in May 2006 to move ahead with the trail. Construction of the trail was delayed by the Cavity Lake wildfire and on August 17, 2006 a legal appeal was filed by the current plaintiffs. In 2008, the court sent the trail proposal back to the Forest Service for more in-depth sound analysis, which was completed in March 2013. Legal wrangling began with briefs and motions submitted by all parties until the October 6, 2014 hearing and finally, this week’s ruling.
The plaintiffs have 30 days to decide if they will appeal.
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