by Aaron Klemz

Jun 18, 2012, 1:00 PM

Appeals court reverses decision prohibiting mega-tower next to BWCA

Monday morning, the Minnesota Court of Appeals reversed a 2011 district court case that enjoined AT&T from building a 450-foot cell phone tower visible from 10 Boundary Waters Canoe Area Wilderness lakes. In the unpublished opinion, the three-judge panel held the district court erred in concluding the proposed tower violated the Minnesota Environmental Rights Act (MERA) and lifted the injunction that prevented its construction.

Reacting to the decision, Paul Danicic, executive director of the Friends of the Boundary Waters Wilderness, stated “we are very disappointed that the Court of Appeals reversed the district court’s decision. We will review the ruling carefully before deciding our next legal steps. The Friends is undeterred and will continue to work vigorously to protect the scenic vistas of the Boundary Waters.”

In a 2010, Friends of the Boundary Waters Wilderness sued AT&T on the grounds that the proposed tower would infringe on the visual and esthetic resources of the BWCAW. At trial, they introduced evidence that the 450 foot mega-tower, lit at night because of Federal Aviation Administration rules, would be visible across a significant swath of the BWCAW. Additionally, they demonstrated there were less obtrusive alternatives such as a shorter, unlit tower that provided comparable coverage in the inhabited areas along Fernberg Road. After a four day trial, the district court agreed with Friends of the Boundary Waters Wilderness and issued an injunction in August 2011 against the mega-tower. AT&T appealed the decision, and the Minnesota Court of Appeals heard arguments in April.

The appeals court decision argues that “the district court erred in concluding that the proposed tower would have a materially adverse effect on the environment” and relies on a five part test from State by Schaller vs. County of Blue Earth (1997).

Arguing that the loss of scenic resources was not “severe,” the court accepted AT&T’s arguments that the tower would affect 10 of the 1,175 lakes in the Boundary Waters, and that these lakes were not “pristine wilderness.” Using this logic, the next intrusion on the viewshed of the Boundary Waters can be justified by the previous intrusion. The argument that these lakes aren’t “pristine” opens the door to creeping degradation of the wilderness. As Danicic said in reaction to the decision, “the Friends, including thousands of our members, firmly believe that a 450-foot tower with a flashing red light on top, which would be visible on several wilderness lakes up to 10 miles away, would indeed harm the wilderness experience for visitors. One of the hallmarks of the wilderness experience is getting away from signs of human impact.”

Even more incredibly, the court held there were no “long term adverse effects” from the construction of the mega-tower because “removal of the proposed tower … would immediately eliminate any adverse effect on scenic views in the BWCAW, thereby restoring the affected resource to its original condition.” Using this logic, virtually no intrusion on the scenic and esthetic resources of the wilderness could be prevented, as long as you could tear it down some day.

The court also makes the argument that expanding cell phone service in the BWCAW “may make the BWCAW accessible to more visitors…” and claims that this mitigates the “significan[ce]” of the impact on the resource. This is, as far as I can tell, unprecedented. It also flies in the face of the very nature of wilderness, and might actually endanger visitors who enter the wilderness unprepared and dependent on their cell phones to call for help.

In a Star Tribune article about the April Court of Appeals hearing, reporter Josephine Marcotty stated “any ruling is likely to be appealed to the Minnesota Supreme Court.” The choice to issue an unpublished ruling on this case is interesting. According to the Minnesota Courts website:

“Unpublished opinions are issued in cases that are less complicated, that involve legal issues that have already been decided in published opinions, or that will affect only the parties to that particular case. These opinions are usually shorter, do not contain extensive discussion of the facts, and are not generally relied on by other courts to the same degree as published opinions.”

It certainly seems like this is a complicated case that involves new interpretations of the limits of the MERA, and that will create precedent that will be relied on in the future. If it’s true that a “less pristine” wilderness area is entitled to less protection under the law, the risk is that creeping intrusion on the wilderness area creates a self-fulfilling prophesy of further intrusions. That means this case is likely destined for review by the Minnesota Supreme Court.

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