Friends of the Boundary Waters v. Robertson, Civ. No. 4-90-8.

• Decision Date: 01 August 1991
• Docket Number: Civ. No. 4-90-8.
• Citation: 770 F. Supp. 1385
• Parties: FRIENDS OF THE BOUNDARY WATERS WILDERNESS, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants, and City of Ely, et al., Intervenors-Defendants.
• Court: U.S. District Court — District of Minnesota

770 F. Supp. 1385

FRIENDS OF THE BOUNDARY WATERS WILDERNESS, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants and City of Ely, et al., Intervenors-Defendants.

Civ. No. 4-90-8.

United States District Court, D. Minnesota, Fourth Division.

August 1, 1991.

Richard A. Duncan, Brian B. O'Neill, Andrea M. Fike, Faegre & Benson, Minneapolis, for plaintiffs.

Allan D. Brock, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, D.C., and Robert M. Small, Asst. U.S. Atty., Minneapolis, Minn., for defendants Robertson and Madigan.

Kent Robert Holmberg, Defenbaugh Law Offices, Ely, Minn., for intervenors City of Ely and Conservationists with Common Sense, Inc.

Bennett A. Webster, Gamble & Davis, Des Moines, Iowa, and James C. Ohly, Doherty, Rumble & Butler, Minneapolis, Minn., for intervenors Wilderness Outfitters, Inc., and Hubachek.

ORDER

ROSENBAUM, District Judge.

How to protect; how to preserve; how to access wilderness? What and whose values are embodied in the concept of wilderness?

This matter is before the Court on cross motions for partial summary judgment. The immediate issue is whether there is an alternative to motorized portages at three locations in the Boundary Waters Canoe Area Wilderness (Boundary Waters or BWCAW). The parties agree that this portion of the action is ripe for summary judgment.¹ The Court concurs in this view.

Plaintiffs bring this action for declaratory and injunctive relief and for judicial review of final agency action under the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq. Jurisdiction is properly based upon 28 U.S.C. §§ 1331, 1361, and 2201.

By this motion, plaintiffs seek two forms of relief. They first request a declaration that defendants have acted illegally in allowing the continued operation of three motorized portages in the BWCAW and in permitting the existence of permanent structures within the BWCAW. Second, plaintiffs seek a permanent injunction barring the continued operation of those motorized portages and directing defendants to ensure elimination of permanent structures from the BWCAW. Plaintiffs also seek attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.

The plaintiffs are non-profit organizations which claim an interest in protecting, preserving, and enjoying the nation's wilderness areas, and the Boundary Waters in particular. The BWCAW, established in 1978, is a wilderness area of more than one million acres within the larger Superior National Forest in northern Minnesota.

Defendant F. Dale Robertson is the Chief of the United States Forest Service (Chief) and defendant Edward Madigan is the Secretary of Agriculture (Secretary).² Defendants are responsible for formulating and implementing management plans for the Superior National Forest. Intervenors City of Ely, Conservationists with Common Sense, Inc., Wilderness Outfitters, Inc., and F.B. Hubachek, Jr., were granted leave to intervene and defend against plaintiffs' claims concerning the motorized portages.³

Background and the "Nonfeasibility" Decision

The Wilderness Act, 16 U.S.C. § 1131, et seq., requires that protected areas be administered to maintain their wilderness character for future use and enjoyment. The Boundary Waters Canoe Area Wilderness Act of 1978 (BWCAW Act), Pub.L.No. 95-495, 92 Stat. 1649, designates the Boundary Waters as a wilderness to be administered in accordance with the Wilderness Act. Of particular interest here, the BWCAW Act directs the closure of the motorized portages from Sucker Lake to Basswood Lake (Prairie Portage), from Fall Lake to Basswood Lake (Four Mile Portage), and from Lake Vermilion to Trout Lake (Trout Lake Portage) after January 1, 1984, unless the Secretary determines that no feasible non-motorized means existed to transport boats between the involved lakes. BWCAW Act § 4(g).

Minnesota's vast northeastern "forestlakeland wilderness ecosystem" was formed by the timeless actions of nature during ages immemorial. Id. § 1. The BWCAW, on the other hand, was formed by the United States Congress in the crucible of the 1978 political season. The laws of nature shaped the wilderness; the lawmaking of Congress shaped the BWCAW.

The BWCAW is situated in northeastern Minnesota, along the United States/Canadian border. It consists of some 1,075,500 acres of nearly virgin lakes, waterways, and forested areas. Id. § 3. Over one thousand lakes lie within its borders. The use of motorboats is prohibited on all but a few of these lakes. Id. § 4(c)(1)-(4). Motorboats are permitted on the five lakes served by the portages at issue here. The BWCAW Act not only restricts the use of motorboats, it almost completely bars mechanized portages. Id. § 4(i). The Act, however, specifically reserves for future consideration the use of motor vehicles to transport watercraft over the portages from Sucker Lake to Basswood Lake, from Fall Lake to Basswood Lake, and from Lake Vermilion to Trout Lake, after January 1, 1984.⁴ Id. § 4(g). As to these particular portages, the BWCAW Act provides that:

Nothing in this Act shall be deemed to require the termination of the existing operation of motor vehicles to assist in the transport of boats across the portages from Sucker Lake to Basswood Lake, from Fall Lake to Basswood Lake, and from Lake Vermilion to Trout Lake, during the period ending January 1, 1984. Following said date, unless the Secretary determines that there is no feasible nonmotorized means of transporting boats across the portages to reach the lakes previously served by the portages listed above, he shall terminate all such motorized use of each portage listed above.

Id. (emphasis supplied). It is the emphasized portion of § 4(g) which underlies this action.

In compliance with § 4(g)'s mandate, the Forest Service considered the feasibility of using portage wheels as an alternative to motorized portages.⁵ Personnel from the Forest Service tried to cross the one-half mile Prairie Portage with a loaded motorboat on portage wheels. They were unsuccessful in their attempt. Admin.Rec.Item 1 (app. F).

Based upon a memorandum documenting the unsuccessful Prairie Portage attempt, the Forest Service, on behalf of the Secretary, determined that there was no feasible nonmotorized means of transporting boats across the portages listed in § 4(g). Admin.Rec.Item 1. As a result, the Forest Service determined that the motorized portages were to be maintained. This conclusion was then incorporated into the land and resource management plan for the Superior National Forest.⁶ Admin.Rec.Item 3. The plan was approved by the Regional Forester on June 6, 1986. Admin.Rec.Item 4.

Plaintiffs filed their administrative appeal of the plan on June 26, 1986, challenging, inter alia, the decision to continue motorized portages. Admin.Rec.Item 5. As part of their statement of reasons, dated August 27, 1986, appellants submitted a videotape which showed that three of their members had successfully traversed each of the three portages by means of portage wheels. Admin.Rec.Items 38, 38(a).

Following a December, 1987, hearing, the Chief issued a further decision concerning motorized transport across the portages. In this decision letter, dated March 10, 1989, the Chief's office determined that the "no feasibility" finding must be revisited. Admin.Rec.Item 320. The decision directed that the Regional Forester immediately halt motorized portages at the Four Mile and Trout Lake sites. The Regional Forester was instructed to conduct further studies to determine the feasibility of using nonmotorized means to traverse the three portages. Id. According to the plaintiffs, this instruction prompted a contact from the office of Representative Oberstar (D-Minn.), who represents the district encompassing the BWCAW. Plaintiffs assert that the congressman called in protest of the portage closures. Plaintiffs' Memorandum in Support of Partial Summary Judgment Re: Motorized Portages, 11-13 (Dec. 20, 1990). See also Amended Complaint ¶ 25. Presumably based, at least partially, on this input, on April 20, 1989, the Chief deferred the March 10, 1989, closure decision and ordered that the two motorized portages remain open pending completion of the portage study. Admin.Rec.Item 327.

Thereafter, in July and September, 1989, Forest Service personnel were organized into one, two, and three person portage teams of both genders and various ages. These teams, using boats and loads of differing weights, conducted another study of the feasibility of portage wheels as an alternative to motorized transport at the Prairie, Four Mile, and Trout Lake portages. Admin.Rec.Item 346.

After receiving the resulting portage report, the Chief issued his decision, dated October 11, 1989, determining that "nonmotorized means of transporting boats at these sites ... are not feasible. Motorized portages in these locations therefore need not terminate."⁷ Admin.Rec.Item 347. This determination of nonfeasibility constitutes final agency action on the administrative claims with regard to the portage issue and is the decision which is challenged in this case.

The Parties' Positions

Plaintiffs argue that the Chief's decision constitutes agency action "not in accordance with law" and must be set aside under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The plaintiffs advance three arguments. Plaintiffs first claim that the defendants' failure to end motorized use of the three portages violates the BWCAW Act. Premised on their view of Supreme Court precedent and the legislative history of the BWCAW Act, plaintiffs claim that "feasible" means "possible." They then assert that there exists a feasible nonmotorized means of transport — the use of portage wheels. It is the plaintiffs' position that portage wheels satisfy the § 4(g) requirement and mandate the elimination of mechanized portages at all three sites. Plaintiffs next argue that the Chief's decision violates...