At the Tuesday, January 21, 2014 County Board meeting Assistant County Attorney Molly Hicken gave an update on the South Fowl snowmobile trail lawsuit in which the county, along with Conservationists with Common Sense (CWCS) of Ely and the Arrowhead Coalition for Multiple Use (ACMU), are interveners. The county and the nonprofit organizations have aligned themselves with the U.S. Forest Service in the lawsuit that followed the Forest Service’s plan to construct a 2.2-mile snowmobile trail between McFarland and South Fowl lakes.
Assistant County Attorney Hicken said she had corresponded with the county’s attorney in this matter, David Oberstar of Fryberger, Buchanan, Smith & Frederick of Duluth. Hicken explained that the plaintiffs who initiated litigation in 2006—the Izaak Walton League of America, Inc., Wilderness Watch of Missoula, Montana, Sierra Club Northstar Chapter and Northeastern Minnesotans for Wilderness—had submitted a request on August 30, 2013 to amend their original complaint.
The groups opposed to the snowmobile trail assert that the public was not given adequate opportunity to comment on the Forest Service’s “hybrid” or “adaptive management” proposal. The groups argue that then-Forest Service Superior National Forest Gunflint District Ranger Dennis Neitzke did not properly consider the impacts of his February 2006 decision to build “Alternative 2, North Route” with the caveat that if the trail was misused it would be closed and a different route would be constructed.
Hicken said, “Essentially what occurred is the court allowed an amendment to be filed. Basically that restarts the litigation.”
Hicken said Attorney Oberstar filed an answer to the complaint on behalf of Cook County and the nonprofits he represents (CWCS and ACMU) at a hearing. “There was a hearing that was brief, with no surprises. At the end of the hearing the judge put out a scheduling order—or deadlines. The bottom line is the submissions that come from Oberstar on behalf of the county will not be due until August,” said Hicken.
She explained that first the plaintiffs (Izaak Walton League and others) file, then the U.S. Forest Service files, then as interveners the county, CWCS and ACMU file.
Hicken said once all of the documents have been filed another hearing will be set, but she said it was unlikely that would happen before the end of 2014.
Hicken added, “If you have specific questions about the strengths of the intervener’s arguments, I encourage you to contact me.”
She noted that she had learned a lot about the matter in the last six weeks exchanging emails with Attorney Oberstar. She noted that Oberstar thought this was a renewal of the original argument. “He’s not concerned that the plaintiffs’ case is any stronger than the first time around,” said Hicken.
The Cook County Board of Commissioners has lent its support to the Forest Service’s attempt to construct a trail that closely resembles a trail it closed in 2003 with several motions and by hiring Attorney Oberstar to join the lawsuit.
The county has sided with a number of local residents, like the members of the Arrowhead Coalition for Multiple Use, who believe the snowmobile trail between the two Hovlandarea lakes should have been rerouted long ago. The U.S. Forest Service closed the trail in 2003 because it was found to be entering the Boundary Waters Canoe Area Wilderness (BWCAW) for a few hundred feet.
However, Ron Carlson, an ACMU board member, states that the trail, called the “Tilbury Trail” by the people who used it, predates the creation of the BWCAW and follows a logging road built by Grand Marais logger Verl Tilbury. The trail, according to U.S. Forest Service documents, is visible outside the BWCA. Carlson said when the Boundary Waters Act of 1978 was passed, the wilderness boundaries were changed and the trail was inadvertently included in the wilderness. No closure signs were posted though, until 2003.
Carlson said if the trail had been rerouted in 1978, in accordance with the Boundary Waters Act, none of the seemingly never-ending environmental studies and legal issues would be taking place now.
Also still pending is the court’s decision on whether or not the sound of snowmobiles on the proposed trail will negatively impact the BWCAW.
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