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Appeals Court Splits BWCAW Motorboat Case

Posted on: Thursday, 16 February 2006, 06:00 CST

By John Myers, Duluth News-Tribune, Minn.

Feb. 16--The 8th Circuit U.S. Court of Appeals on Wednesday issued a mixed ruling on how many motorboats should be allowed on some lakes in the Boundary Waters Canoe Area Wilderness.

The decision backs environmentalists' claims that the U.S. Forest Service acted wrongly in 2002 when it increased motor permits from 2,376 to 6,892 annually on three lake chains on the edge of the BWCAW.

But the appeals court also backed the Forest Service and local resorters and cabin owners when it ruled that the Forest Service has the right to change the permit levels from those set when the BWCAW was created.

In the end, it appears the Superior National Forest, which manages the BWCAW, will have to come up with a new way to figure the number of motor permits available on the Moose-Newfound-Sucker, Birch-Farm and Saganaga-Gull Lake-Sea Gull River chains of lakes.

The lakes are on the edge of the wilderness and are among the few BWCAW lakes where motors still are allowed.

Before 2002, cabin and resort owners on those lakes received an exemption from regulations requiring permits for all motorboat use -- not just for their lakes, but also for all the connected lakes on the chain. But environmental groups sued, and won, saying the landowners should not be exempted from needing permits on other lakes and that motor levels must be set at pre-1978 levels based on the 1978 BWCAW legislation in Congress.

The Forest Service ended the exemptions, but then raised the number of permits to reduce competition and ensure landowners always would have access to other lakes connected to their own.

In 2004, a federal judge said the Forest Service didn't have the right to do that. Now, the appeals court said the agency has the right, but needs to use a new method, said David Oberstar, attorney for resort and homeowners groups that back the Forest Service in the case.

"The appeals court is saying they do have the right to change the numbers, but they're sending the Forest Service back to the table to figure out a better way to come up with the number of permits," Oberstar said. "That's going to be difficult because it requires the Forest Service to figure out what the (motor) use was on those lakes before 1978."

Oberstar said the decision is a victory for his clients because it allows the Forest Service to factor in use by cabin owners and resorts before 1978 when it determines what the motor use was on the lakes before that year.

Environmentalists also claimed victory. Becky Rom, attorney for Friends of the Boundary Waters Wilderness, said the appeals court clearly disagreed with how the Forest Service came up with its higher permit numbers, calling the agency's action "arbitrary and capricious."

Rom said the real motor use when all users are figured was much closer to 2,376 permits per year than 6,892.

"This decision is a victory for the wilderness. The Forest Service now clearly must go back and refigure its permit number to a realistic average (of motor use) from 1976, 1977 and 1978," Rom said. "There's simply no evidence to support that kind of inflated motor use."

The appeals court ordered the Forest Service to work with all groups involved in the lawsuit when refiguring the permit level.

The plaintiffs also include the Sierra Club North Star Chapter, Superior Wilderness Action Network, American Lands Alliance, Minnesota Canoe Association, American Canoe Association and Minnesotans for Responsible Recreation.

Groups intervening in the case to support the Forest Service decision include the Ely Outfitters Association, Gunflint Trail Outfitters Association and Seagull-Saganaga Homeowners Association.

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Copyright (c) 2006, Duluth News-Tribune, Minn.

Distributed by Knight Ridder/Tribune Business News.

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Source: Duluth News-Tribune (Duluth, Minn.)

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