Judge hears arguments on South Fowl snowmobile trail

U.S. Forest Service Superior National Forest representatives were back in court on Monday, October 6, 2014 to defend the 2006 decision to construct the South Fowl snowmobile trail between McFarland and South Fowl lakes in Hovland. The organizations suing to block the trail argue that they did not have sufficient opportunity to comment on the Forest Services adaptive management plan.

Attorney Kristen Marttila, working pro bono for Lockridge Grindahl and Nauen, spoke for her clients the plaintiffs, Izaak Walton League of America, Inc., Wilderness Watch of Missoula, Montana, Sierra Club Northstar Chapter and Northeastern Minnesotans for Wilderness (NMW).

Marttila first addressed the concept of a buffer zone around the Boundary Waters Canoe Area Wilderness (BWCAW). She said the concern about a buffer zone was a red herring. She said her clients have never requested a buffer zone.

However, she added that the Forest Service cannot do anything it wants outside the wilderness. She said there are acceptable activities that would not disturb the character of the wilderness, such as a drinking fountain or a paved bicycle trail.

She said the plaintiffs are not saying people must tiptoe up to the edge of the wilderness. But, she added, If the defendants [the Forest Service] were successful, they could rim the wilderness with convenience stores.

Marttila argued that the sound of snowmobiles on the trail would significantly impact the wilderness. She stressed that according to the Forest Services own numbersits sound evaluationthe sound of a passing snowmobile was 2-4 times more than the natural ambient sound level.

Judge John Tunheim asked, How relative is the apparent lack of visitors to this area?

Marttila replied, Not at all relevant. She said there are vast areas of wilderness in the United States that one visits. However, the wilderness statute is intended to protect those areas.

The plaintiffs primary complaint stems from then-Gunflint Ranger Dennis Neitzkes 2006 decision to build the 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. Marttila said the environmental groups 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.

Forest Service responds

David Fuller, the U.S. Department of Justice attorney representing the Forest Service, gave a quick overview of the trail, including a slide showing the view of the bluff where the snowmobile trail would travel from below, next to the Royal River. Fuller pointed out to Judge Tunheim that it was unlikely anyone would be in that area in the winter since they could not camp on the open water of the unfrozen river.

Fuller responded to the concerns about sound with a slide showing existing sound conditions. He said the sound of snowmobiles on Little John Lake and South Fowl Lake, where they are legally allowed, is already heard in this area in decibels higher than what would be heard on the proposed trail.

He added that the wilderness area adjacent to the proposed trail is surrounded by non-wilderness land and that area of the BWCAW is designated by the Forest Service as one in which opportunities for solitude are moderate to low.

Finally, Fuller said the plaintiffs had opportunities to comment on the adaptive management proposal. He said the monitoring plan was in both the draft and final plan. He said the triggering conditions for closure of the trail were simple and straight-forward.

Fuller said the Forest Service has clearly stated, If there is illegal use, this trail would be obliterated and allowed to return to its natural character.

Cook County supports Forest Service plan

Attorney David Oberstar of Fryberger, Buchanan, Smith & Frederick of Duluth, representing Cook County, Conservationists with Common Sense (CWCS) of Ely and the Arrowhead Coalition for Multiple Use (ACMU) as interveners in the case also spoke.

Oberstar said the trail is very important to the people who live and recreate in this area. He said the current planwhich sends snowmobile traffic down a busy county road and down an icy hill with one-way trafficis unsafe.

Oberstar reiterated that there is already significant snowmobile traffic on McFarland, South Fowl and Little John lakes that can be heard in the adjacent wilderness area. He also noted that half of North and South Fowl lakes lay in Canada, where there are no restrictions on boat motor, chainsaw, or snowmobile noise. Oberstar said on the Canadian side of the lakes even planes are allowed to land on the water or ice.

Motorized sounds are obviously heard all year round in this area, said Oberstar.

Oberstar said the Forest Service took a hard look at Alternatives 2 and 4 and the monitoring conditions were available in Forest Service documents.

Oberstar ended his comments with an appeal to the judge to let the Forest Service construct the Alternative 2 route. If you do strike down the adaptive management proposal, please dont strike down the entire proposal, he said.

Judge finishes with a question

Judge Tunheim asked Marttila to assume for a moment that her clients agreed that Alternative 2 met the guidelines of the BWCA Act. He asked why the plaintiffs would not support having Alternative 4 as a back up.

Tunheim said, It would seem to me, Alternative 4, given that it is a significant distance from the BWCA, would be more acceptable to anyone concerned with wilderness character.

Marttila replied that her clients had taken the stance that the Forest Service should not reward recalcitrant users of an illegal trail.

Judge Tunheim thanked all of the parties for their arguments and said, The court is going to take the motions under advisement and will issue a judgment as soon as possible.

A long process

The October 6 hearing was the latest in a long series of public debate over the 2.2-mile snowmobile trail. Gunflint District Ranger Neitzke closed the trailknown to the area residents as the Tilbury Trailin 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. Environmental studies continued and in November 2005, the Sierra Club North Star Chapter requestedand was grantedmore time to comment.

On February 21, 2006 Ranger Neitzke issued his decision to build Alternative 2, which included the adaptive management proposal. In April 2006, the decision was appealed by Northeastern Minnesotans for Wilderness, Friends of Boundary Waters Canoe Area Wilderness, Sierra Club North Star, Minnesota Center for Environmental Advocacy, Wilderness Watch, and the Isaac Walton League.

The Forest Service reviewed the appeal and 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.

Since then there have been numerous court filings and appearances by all parties, with Izaak Walton League of America, Inc., Wilderness Watch of Missoula, Montana, Sierra Club Northstar Chapter and Northeastern Minnesotans for Wilderness (NMW) seeking to prevent construction of the trail.

Cook County, CWCS, ACMU, the Grand Portage Band of Lake Superior Chippewa and the Minnesota Department of Natural Resources have weighed in on the side of the Forest Service asking that the trail be constructed.

** Article published by Cook County News-Herald 10-24-14 **

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