Cell tower near BWCA gets OK from appeals court

Appeals court ruling has scenic implications for BWCA visitors.

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Boundary Waters Canoe Area Wilderness

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A 450-foot blinking cellphone tower will not significantly affect the scenic value of the Boundary Waters Canoe Area (BWCA), the Minnesota Court of Appeals ruled Monday in a decision that some analysts said could be a serious blow to a state law that protects the views in Minnesota's most beautiful places.

The long-awaited decision, reversing a lower court decision from last year, said AT&T could proceed with the tower, replacing a 199-foot structure it just completed on the edge of the wilderness near Ely. AT&T will begin construction immediately, spokesman Alex Carey said.

"We're pleased with the ruling," Carey said in a prepared statement. "We agree with the Court of Appeals that the larger tower would not have a material adverse effect on the Boundary Waters. On the contrary, we believe the limited impact of the tower is greatly outweighed by the benefits -- including health and safety benefits -- of the improved service it will provide residents and visitors."

Officials for Friends of the BWCA, the environmental nonprofit that filed suit to stop the tower in 2010, said they have not decided whether to appeal the decision to the Minnesota Supreme Court.

"This case potentially raises questions about more than one cell tower," said Paul Danicic, the group's executive director. "This compromises Minnesota's ability to protect its scenic vistas."

Kevin Reuther, an attorney for the nonprofit law firm Minnesota Center for Environmental Advocacy, said he was puzzled by the decision. The judges rejected the opinion of the lower court because it was subjective, but then inserted their own opinion by stating that the effect was not severe enough to justify intervention, he said.

"It eviscerates the scenic and aesthetic resource protection from the Environmental Rights Act," he said. "That's very disappointing."

Scholar puzzled

Some environmental law scholars said they, too, were puzzled by the court's reasoning and said they hoped the case would go to the Minnesota Supreme Court.

Brad Karkkainen, a professor of environmental law at the University of Minnesota, said the Appeals Court ignored the long-term effect of its decision on future development around the state's natural areas. He also said the court relied on a legal standard established in a case involving pollution rather than scenic value.

"We would all be well served to get clarification as to the scope of that precedent and as to whether this case was rightly decided," he said.

The case has been controversial from the outset, and decisions at every stage have been regarded as significant because they pit the reach of development -- and public safety -- against the aesthetic value of beautiful, wild vistas.

Friends of the BWCA filed suit under the Minnesota Environmental Rights Act after Lake County approved construction of the 450-foot tower, which will rise at the end of Fernberg Road on the western edge of the BWCA.

Permanent loss?

During a week-long trial last year, attorneys for Friends of the BWCA argued that the tower and its blinking red light would violate the state law that protects the state's natural resources -- including their aesthetic value -- and was an affront to the people seeking a wilderness experience. Moreover, they said, AT&T had other alternatives, including construction of one or more smaller towers that would not be seen from inside the BWCA but would provide almost the same level of coverage.

AT&T argued the tower would be seen only from a few places inside the BWCA, and that it was vital for public safety and cellphone service for those inside and outside the BWCA.

Last August, Hennepin County District Judge Philip Bush ruled against the taller tower, even though it would be visible at night from only 10 spots within the wilderness. But, he said, the telecommunications company could build a smaller one that would not be visible.

"The affected natural resource, broad scenic views with no visible signs of man, is not replaceable," Bush said. The smaller tower would provide only 17 percent less coverage, he said. But AT&T disputed that finding in its appeal, saying it provides 113 percent less coverage, the equivalent of 72 square miles.

But the Court of Appeals Monday said the earlier decision was wrong because it was subjective and it did not weigh the severity of the effect on scenic views from within the BWCA. It also said the effect would not be permanent because the tower could be removed.

Friends of the BWCA has 60 days to ask for review.

Josephine Marcotty • 612-673-7394

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