BWCA cellphone tower fight is back in court
- Article by: JOSEPHINE MARCOTTY
- Star Tribune
- April 5, 2012 - 9:44 AM
For decades, a state law has granted any citizen the right to sue to protect Minnesota's natural resources from pollution, development and even a distant visual blemish on a scenic vista.
Now, in a case with major implications for development around publicly owned natural areas, the Minnesota Court of Appeals will decide how that law applies to a cellphone tower that has been proposed on the edge of the Boundary Waters Canoe Area Wilderness (BWCA).
A three-judge panel in St. Paul heard arguments on Wednesday in a lawsuit that has touched on public-safety issues, land development, the rights of local governments and the aesthetics of a blinking red beacon on the edge of the wilderness.
"This is a significant case," said Sara Peterson, an attorney who practices environmental law and teaches at the University of Minnesota. "It drives to the heart of what we as Minnesotans revere in our natural resources."
The suit was filed in 2010 to challenge a proposed 450-foot cellphone tower -- the height of the Foshay Tower -- that AT&T wanted to build east of Ely and 1 1/2 miles outside of the BWCA. The suit was brought by the Friends of the Boundary Waters Canoe Area, a nonprofit that advocates protection of the million acres of lakes and forest, the most visited federal wilderness area in the nation. It sued under the rarely used Minnesota Environmental Rights Act.
Lake County officials had approved the AT&T tower because they hoped to improve cellphone service in the area and because a nearby corridor of land along Fernberg Road is prime for development, according to court documents and testimony.
AT&T argued that the tower and its blinking red light would be seen from only 1 percent of the million-acre wilderness and that it was crucial to ensure public safety and provide cellphone service.
"We feel strongly that this is a public-safety issue and that the facility the county approved is needed to best serve and protect the safety of residents and visitors," AT&T said in a statement this week.
But from its position on a 150-foot ridge, the tower would be visible up to eight miles away during daytime and up to 10 miles away at night, according to court filings. It would be clearly seen from 10 lakes in the BWCA's most popular area, according to attorneys for Friends of the BWCA. Moreover, they argued, AT&T didn't need such a tall tower. A 199-foot tower could not be seen inside the wilderness area and would provide service to an area only 17 percent smaller, much of it inside the BWCA, they said.
Hennepin County District Judge Philip Bush ruled last year that the tower would violate the Minnesota Environmental Rights Act, a law passed in the early 1970s to protect the state's natural resources against pollution, impairment or destruction.
Compared to similar laws in the dozen or so other states that have them, Minnesota's law is unusual because it also protects the "scenic and aesthetic resources" of natural resources owned by any government entity.
"The affected natural resource -- broad scenic views with no visible signs of man -- is not replaceable," Bush wrote in his decision.
However, he said, AT&T could build the smaller tower, which is now under construction.
AT&T appealed, expanding the scope of the case to the point that it could affect development and scenic views across the state -- from Voyageurs National Park to the St. Croix National Scenic Riverway to Whitewater State Park.
"If you can't protect our most scenic resource from this, then we are headed in a bad direction," said Kevin Reuther, an attorney for Minnesota Center for Environmental Advocacy, a nonprofit law firm that filed written arguments supporting the Friends of the BWCA.
The case's tensions were clear in questions the judges posed on Wednesday.
"Banning towers anywhere within [sight] of the BWCA -- is that what this is intended to do?" asked Judge Larry Stauber.
"The facts of every case will be different," said Thomas Mahlum, the attorney for Friends of the BWCA.
Much of the discussion focused on the coverage difference between a shorter and a taller tower. Judge Michelle Larkin said a diagram showing the difference "was compelling."
Without adequate cellphone coverage, "the residents would be relegated to a second-class existence," said AT&T attorney Hans German, although he agreed under questioning that most of the residents have land lines as well.
"Lake County is very interested in this service," he said.
The judges have 90 days to make a decision, though any ruling is likely to be appealed to the Minnesota Supreme Court.
"It is a great test of this statute," Peterson said.
Josephine Marcotty • 612-673-7394
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