June 18, 2012 The Minnesota Court of Appeals today issued a decision in favor of AT&T and its bid to site a cellular telecommunications tower about 1.5 miles from the Boundary Waters Canoe Area (BWCA).  The BWCA, one of the first federally protected wilderness areas, consists of 1,175 lakes, hundreds of miles of streams and rivers, and surrounding forested areas.

The BWCA is protected under the federal Wilderness Act of 1964 and the Boundary Waters Act of 1978 and Minnesota law.  The Court of Appeals decision permits a 450-foot tall tower, supported by five sets of guy wires, with red and white blinking lights that would be operational 24 hours a day to increase visibility and comply with federal aviation requirements.  Lake County, Minnesota authorities approved AT&T’s conditional use permit application in July 2009.  The proposed tower is to be constructed near Ely, Minnesota.

The Minnesota Court of Appeals decision reverses an earlier Hennepin County District Court decision that enjoined construction of the proposed cellular telecommunications tower.  The Hennepin County District Court Judge Philip Bush determined that an environmental group, Friends of the Boundary Waters Wilderness, was entitled to relief under the Minnesota Environmental Rights Act (MERA), Minn. Stat. Ch. 116B, because the proposed tower would materially adversely affect the scenic and esthetic resources in the BWCA. The earlier court decision permitted an alternative 199-foot tower in the same area that was less visible from nearby BWCA lakes.

A three judge panel of the Minnesota Court of Appeals noted “that less than fifty percent of the proposed tower will be visible from less than one percent of the BWCAW’s 1,175 lakes, several of which have scenic views that include signs of human existence.”  The Court of Appeals observed that the district court made no findings as to what degree of visibility for the less-than one percent of the lakes reaches the “severe” threshold, that is, harsh or very serious.  Further, the Court of Appeals characterized the district court’s MERA analysis to be “subjective” and, therefore, inadequate to support the legal conclusion that the 450–foot tower had a “severe and adverse” effect on the resources subject to protection.  The Court of Appeals found that the tower as proposed would not have a “severe adverse effect on scenic and esthetic resources” in the Boundary Waters and reversed the district court’s decision enjoining construction of the tower.

A copy of the Minnesota Court of Appeals’ unpublished decision can be found at: http://www.mncourts.gov/opinions/coa/current/opa111725-061812.pdf.

Environmental groups, who have opposed the tower claiming it would have adverse impacts in the BWCA, are studying an appeal to the Minnesota Supreme Court.  AT&T, who argued the tower was needed to serve residents, visitors and public safety officers, says it will proceed with its tower construction plans.

Environmental law attorney Joseph Maternowski tracks practices at the Hessian & McKasy firm in Minneapolis in the areas of project siting, due diligence and environmental and natural resources law.   For more information on Joe’s background and practice, please visit his You Tube site and watch two videos at: http://www.youtube.com/watch?v=p1Ybc9Acm8k and http://www.youtube.com/watch?v=bJTDvveG0jY.

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