Professors: Court erred on BWCA cell tower

  • Star Tribune
  • July 27, 2012 - 8:51 PM

Six law professors from four universities in two states said this week that the Minnesota Court of Appeals was wrong to allow a 450-foot cell phone tower on the edge of the Boundary Waters wilderness and asked the state Supreme Court to review the case.

The professors' petition indicates that the case is evolving into a broader dispute -- a critical test of the Minnesota Environmental Rights Act, one of the oldest and strongest environmental protection laws in the country.

"These interpretations are really important and something that the Supreme Court should take a look at," said Alexandra Klass, one of three environmental law professors from the University of Minnesota who signed the petition.

The Minnesota Supreme Court has not decided whether to hear the case, a long-running dispute between AT&T and Friends of the Boundary Waters Wilderness, a Minnesota advocacy group. But legal experts predict that it will.

Last month, the state Court of Appeals sided with AT&T. It overturned a district court judge who last year decided the tower near Ely would violate the environmental law known as MERA because it would damage the aesthetic value of the wilderness.

AT&T had other alternatives, including construction of one or more smaller towers that would not be visible from inside the BWCA, said Hennepin County District Judge Philip Bush.

But the Appeals Court overturned Bush's ruling, saying it was subjective and failed to weigh the severity of the effect on scenic views within the BWCA, which it said would be minor. It also said the effect would not be permanent, because the tower could be removed.

Friends of the Boundary Waters Wilderness appealed the decision to the Supreme Court last month, but AT&T said it agreed with the latest judgment.

"The larger tower would not have a material adverse effect on the Boundary Waters," AT&T spokesman Alexander Carey said in a statement. "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."

Small encroachments

The law professors, however, say the Appeals Court got it wrong. In addition to asking the Supreme Court to review the decision, the professors also asked for permission to file friend-of-the court papers outlining their arguments.

"The Court of Appeals says, in effect, that it's true you can see it,'s not that big a deal," said David Prince, an environmental law professor at the William Mitchell College of Law in St. Paul.

But the Legislature already made the judgment that even small encroachments matter when it passed the law in 1971, he argued. The law was written in part to protect natural resources against slow erosion from development, he said.

"It raises the question of how firmly to enforce a statute that, I think, pretty clearly says that protection of natural resources is of paramount importance," Prince said.

The scholars also said the court overstepped by supplanting its own judgment on the severity of the impact for that of the trial judge, who heard a week's worth of testimony on the case. "That's not the Appeals court's role," said Klass.

Early and influential

Minnesota was one of the first states to pass an environmental law of this type; the Legislature used a similar statute from Michigan as its model. Two of the professors who signed the petition are from Michigan; they said weakening the Minnesota law could eventually weaken theirs.

Both laws are unusual in that they allow citizens to sue on behalf of the state to protect natural resources from development, pollution or aesthetic harm. "The interest in protecting them belongs to the citizens of state," Prince said.

The first case filed under MERA in the 1970s, in fact, was against a state agency. The Minnesota Department of Transportation proposed putting a highway through a wetland, but the court ruled that convenience and cost were not enough reason to destroy the wetland, Prince said.

In another case, a radio tower near the BWCA was blocked because of aesthetic damage to wilderness views.

It is uncommon for half a dozen professors from several institutions to weigh in on a state law. "It may end up attracting national attention," said David Bryden, a retired professor of environmental law from the University of Minnesota.

Environmental groups, including the Parks and Trails Council of Minnesota and the Sierra Club, and a number of outfitters in Ely have also filed for permission to weigh in on the case if the Supreme Court agrees to hear it.

Josephine Marcotty • 612-673-7394

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