Cell tower lawsuit: Working for wild horizons

April 2013 Update:

In early April 2013, AT&T announced that they had erected their 450-foot tower on the Fernberg Road near Ely. The Friends of the Boundary Waters Wilderness is disappointed that this unnecessarily disruptive tower has been built.

Map of Fernberg Road proposed cell tower

Map showing location of the cell tower and affected BWCAW lakes

The Friends of the Boundary Waters has consistently supported the right of area residents to access high-quality cellular phone signals. The best option for cellular service in this location was a 199-foot, unlit tower. This alternative would have provided the same quality of cellular phone service for residents as the 450-foot tower. As the Hennepin County District Court noted in its findings of fact, “virtually all of the increased coverage that the taller Proposed Tower would provide would be in uninhabited roadless areas which are either wooded or swamps. That increased coverage would not be of any meaningful benefit to the residents of the Fall Lake Fernberg Corridor area or to people using the lakes and rivers of the BWCAW.”

The Friends of the Boundary Waters Wilderness opposed this tower because of the visual impact that it will have on a wide swath of the BWCAW. Based on expert testimony, the District court found that the mega-tower will be visible from ten lakes in the BWCAW, while the Friends’ alternative of a 199-foot tower would not be visible from any of these locations.

AT&T claims that this tower is necessary for public safety in the Boundary Waters, but this claim is false. No area inhabited by people or regularly traveled in the Boundary Waters would be served by the mega-tower that would not also have been covered by a reasonable 199-foot tower. In fact, the district court found that “neither the 450-foot Proposed Tower nor a 199-foot alternative tower at the Proposed Tower Site would provide any significant increase in cell phone coverage in the overall BWCAW.” In addition, “there have been, on average, only about 16 emergency incidents in the entire 1.1 million acre BWCAW per year. With roughly 250,000 annual visitors that equates to 0.0006 emergency incidents per visitor.”

It’s important to note that the facts of the case outlined above have never been overturned. The Friends of the Boundary Waters won at the initial trial, which established these facts through extensive expert testimony and studies. The Minnesota Appeals Court reversed the district court decision based on a different interpretation of the law, not because they disagreed with the facts. The Minnesota Supreme Court declined to hear our appeal.

We intend to use this case to prevent other unnecessary and harmful intrusions on the wilderness from cell towers. Here’s what we’re doing:

First, we are documenting the impact that the tower has on the wilderness. This spring and summer, we’ll be gathering photographic evidence of the visual impact that the new tower has on the landscape to verify the work done by our surveyor during the trial. We also ask that if you visit this area of the Boundary Waters that you document and let us know of the impact the mega-tower has on your wilderness experience. This will help make the case that the visual impact of cell towers on wilderness isn’t a theoretical matter, but a real concern.

Second, we will work proactively with units of government to find better solutions to provide needed cell phone service for residents without harming the the very essence that makes the area so unique. We’ll monitor applications for cell towers near the BWCAW and get involved early in the process to make sure that all voices are heard as counties and local units of government make future decisions on cell towers.

August 2012 Update:

On June 18, 2012, the Minnesota Court of Appeals ruled in favor of AT&T’s proposed 450′ cell tower at the edge of the Boundary Waters Canoe Area Wilderness. In doing so, the appeals court overturned the district court’s decision, disagreeing that the tower would have a material adverse impact on the wilderness. Click here to read our statement on the ruling.

In July 2012, the Friends requested that the Minnesota Supreme Court review the appeals court decision. In August 2012, the Minnesota Supreme Court declined to hear the Friends’ appeal.

Further reading on appeal ruling and Supreme Court review:

Resources:

Imagine paddling and portaging hard all day through the wild canoe country along the Canadian border near Basswood Lake. You’ve worked hard to leave civilization behind and are rewarded by a beautiful campsite, not another person in sight. You start making dinner as the sun goes down, and then you look across the lake to the southern horizon.

There, you see the unmistakable blinking red lights of a cell phone tower, high above the tree-tops. It is a jarring sight and it rips you out of the wilderness and back to what Sigurd Olson called the “land of concrete and steel.”

To prevent such an impairment of the wilderness experience for thousands of wilderness visitors, the Friends filed a lawsuit on June 22, 2010 against AT&T Mobility to stop the construction of a 450-foot telecommunications tower 15 miles east of Ely on the Fernberg Road.

AT&T’s proposed tower would be located on an elevated ridge within two miles of the Boundary Waters. Because of the elevation of the site, the tower would loom approximately 600 feet above the surrounding wilderness landscape. It would be illuminated day and night with strobe and beacon lighting, and be visible for miles inside the wilderness area on several popular lakes, including Basswood, Fall, Ella Hall, Wood, and South Farm Lakes.

The Friends does not oppose expansion of cell service to the area that local residents have been asking for. We understand the need and would like the tower builders to examine alternative methods to providing service without affecting the BWCAW.

In April 2011, the Friends, represented by a pro bono legal team from Robins Kaplan Miller & Ciresi, argued on behalf of the wilderness during a four-day trial in Hennepin County District Court. In August, the Court ruled in our favor, stopping the proposed tower while specifically allowing the 199-foot tower.

The campaign continues

Our work is not yet over on this issue. In October 2011, AT&T filed an appeal of the ruling. Their appeal seeks to not only turn over the ruling, but represents a broad assault on long-standing environmental protections in Minnesota. If successful, their appeal could open the door to such visual intrusions in beautiful Minnesota landmarks, such as our state parks, the St. Croix National Scenic Riverway, and Voyageurs National Park.

In June 2011, the Minnesota Court of Appeals overturned the district court ruling, siding with AT&T that the proposed tower would not have a material adverse effect on the BWCAW. We are currently examining our options for next steps, but are resolved to work to protect the Boundary Waters’ wild horizons.

News:

Selected Media Coverage:

http://www.friends-bwca.org/news/2010/06/lawsuit-filed-to-protect-boundary-waters-from-visual-impact-of-cell-phone-tower/

Lawsuit filed to protect Boundary Waters from visual impact of cell phone tower