Friends or Foes of the Boundary Waters?

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Wednesday, April 25, 2001907
Volume 18, Issue 4

Environmental lawsuits sap U.S.F.S. wilderness maintenance budgets

Are environmentalists’ lawsuits helping or hurting the Boundary Waters?

It’s a question that is on the minds of Superior National Forest officials these days as they face the financial repercussions of legal decisions they say are stripping scarce resources from their wilderness budget, undermining maintenance work, and leaving many wilderness restoration projects on hold.

Concern has been building on the Superior in recent months as officials there have been hit with two new lawsuits, over the new forest management plan and a controversial snowmobile trail near South Fowl Lake, at a time when they’re still trying to resolve the longstanding legal skirmish over motor quotas on several lake chains in the wilderness.

While many environmentalists fervently believe that such suits help protect the wilderness, Forest Service officials say many of the agency’s legal expenses come straight from the Superior’s wilderness budget— money that would otherwise pay for the kind of on-the-ground maintenance and restoration work that everyone seems to agree is badly needed in the nation’s most heavily-visited wilderness area.

“When you start figuring out what that means in terms of hiring wilderness rangers or buying fire grates or latrines, it has a huge impact,” said Barb Soderberg, public affairs officer for the Superior National Forest.

That impact will be felt on the ground this summer, according to Steve Schug, who oversees each summer’s crop of new wilderness rangers on the BWCAW’s east side. Those rangers are mostly college students, who spend the warmer months repairing overused portages, restoring eroding wilderness campsites, replacing full and broken latrines, and educating visitors to the wilderness.

Last year, Schug was able to hire a dozen of these rangers, but this year, he says, “we’ll be lucky to field six.” He said crews on the west half of the BWCAW will see similar cuts in summer staffing.

Those cuts in hired staff will also impact the number of volunteer workers in the wilderness, according to the Superior’s wilderness coordinator Duane Lula. “We can’t send them out by themselves,” he said. “If you take the person out of the back of the canoe, you have to take the volunteer out of the front of the canoe.”

While Schug said he hopes to be able to complete the most critical needs in the wilderness, despite the cuts, he said restoration work that had been scheduled probably won’t get done.

Plaintiffs say they don’t consider costs

The environmental representatives contacted for this story all acknowledged they don’t weigh the costs to the Forest Service when deciding whether or not to file suit against an agency decision. That’s the short answer, anyway, according to Carolyn Sampson, board chairman for the Friends of the Boundary Waters. “The long answer is that before we get to a decision on a lawsuit, there are a number of things that have happened first.” According to Sampson, that includes regular meetings with Superior National Forest officials, like Forest Supervisor Jim Sanders and others, to press the Friends’ case on a wide range of issues. She said the Friends and the Forest Service see eye to eye on many topics, but in those handful of cases where they differ her organization will exhaust other forms of appeal, such as public comments and administrative appeals, before considering legal action. “We’re required by law to exhaust all these other means, so by the time it gets to a lawsuit, we have been discussing the issue for years in many cases.” She said those discussions rarely make headlines, while the lawsuits invariably do.

Brad Sagen, the new board chairman of Northeastern Minnesotans for Wilderness, said it isn’t his organization’s job to consider costs of lawsuits— indeed, he called the question “absurd.” “It strikes me as arrogant to say that you can’t follow through on the activities of your agency because of court costs,” said Sagen, who lives in Ely. NMW is one of the plaintiffs in a lawsuit challenging the Forest Service’s decision to allow construction of a snowmobile trail at South Fowl Lake, on the edge of the BWCAW.

Sagen and others put the onus on the Forest Service and the Bush administration if legal costs are crimping the agency’s ability to protect the wilderness. “The reason for these suits is that the Forest Service in many cases is failing to follow federal law,” said Sagen. “Environmental groups and their attorneys have won a number of these suits because the Forest Service has been arbitrary and capricious in their decision-making.”

Darrell Knuffke, a former Friends board member who now serves as the group’s interim policy director, makes the same point. “If they are so concerned about their budget, they should be more careful in their decisionmaking.”

Superior National Forest Supervisor Jim Sanders said officials on the Superior are used to the criticism that comes with managing one of the most treasured natural resources in the country. “We’ve been in court continuously on this forest since 1949,” he notes, and said he doesn’t expect that to change any time soon. “Lawsuits are part of our process. I don’t throw barbs at it— it’s our system and it’s better than how many other countries handle things,” he said.

Sanders said he takes his job very seriously and doesn’t add up the courtroom wins and losses. “This isn’t a game to see who wins and loses. It’s a question of how I provide the leadership for this public resource.”

Sanders said he does what he can to reach out to the public and the various interest groups whenever a decision is made. “I try to be out there, meeting with people from the beginning and throughout our analysis, in a way that will help us make a good, reasonable decision.” Sometimes, however, that’s a very difficult task, in part because federal law can sometimes be maddeningly complex or unclear. Sanders cites the Chain of Lakes issue as a case in point. Part of the problem in that case is that the Forest Service doesn’t have good motor use statistics from the 1970s, so when the agency was tasked with setting new motor quotas for several lake chains, based on 1970s motor usage, virtually any number they picked would have been difficult to justify legally. The Forest Service reached out to environmental groups and others in hopes of finding a reasonable middle ground, but had little success. “No one came up with better information to help us with that,” said Sanders. And while the court ruled against the Forest Service in the case, and has since directed the agency to develop new quota numbers, Sanders said the court provided no guidance on how to do that. “The frustration is that there was disagreement with our decision, but there’s still no solution,” he said.

Environmental representatives agree that federal laws are often ambiguous, but say they are fulfilling their role by pushing for interpretations that favor wilderness protection. “Sometimes the right answer, in order to fulfill our mission, is to sue,” said Sampson.

Environmentalists’ legal successes can be costly

While the Forest Service faces lawsuits from a variety of interest groups, such as the timber industry, as well as pro-motor organizations like Conservationists With Common Sense, the lawsuits filed by environmental groups are typically more costly, because environmental groups tend to win in court.

Federal law typically allows plaintiffs against the government to recover their attorneys’ fees if courts find in their favor on any portion of a federal lawsuit, and over the past ten years, the Superior has paid out nearly $300,000 from its wilderness budget in such court-ordered judgements resulting from environmentalists’ lawsuits. One of the biggest judgements came in 2006, when the court ordered payment of $90,000 in fees to the Faegre and Benson law firm, which has represented environmental groups like Friends of the Boundary Waters and the Sierra Club in a string of lawsuits over management of the BWCAW and the Superior National Forest.

That comes on top of the Superior’s own legal costs, some of which are also charged to the BWCAW budget.

Those costs can be substantial in many cases. According to Soderberg, the Superior has paid out $43,000 to a contractor so far just to make copies of their forest plan documents for a lawsuit filed by a coalition of environmental groups, including the Friends, NMW, Defenders of Wildlife and the Sierra Club’s Northstar chapter. While that bill won’t come out of the wilderness budget, the $3,000 the agency spent on copies for the South Fowl lawsuit will.

“Of course it’s hard to tally all the man hours and other personnel costs involved,” said Soderberg. “There are substantial resources put into it, which takes away from all the other tasks we should be focused on.”

The Superior National Forest receives about $1.5 million a year to maintain the 1.1 million-acre BWCAW, funding which comes both from federal appropriations as well as the receipts from a recently-instituted user fee. The vast majority of those dollars pay for fixed costs, things like salaries for permanent employees, office rent, phones, and travel.

In a normal year, the amount of discretionary funding available to pay for wilderness crews is relatively small. While exact figures aren’t available, the Superior spent in the neighborhood of $240,000 last year to hire temporary wilderness rangers. This year, that’s been cut to $135,000, in large part due to ongoing litigation costs.

Sanders said such costs have an inevitable effect on the work his agency can accomplish on the ground. “It dwindles the resources we have available, and it’s a real impact. We have limited resources both in people, dollars and time and have to manage that carefully,” he said.

Both Knuffke and Sagen questioned the use of wilderness dollars to pay for legal settlements. “That’s news to me,” said Knuffke. “If true, it strikes me as an utterly bizarre thing that seeks to provide a perverse kind of restraint on advocates.” Sagen called it “inappropriate” to tap scarce wilderness funds to pay legal costs.

But Sanders said such accounting is the norm in government and he said it’s a matter of accountability. “It helps us make sure that we think these things through.”

Declining federal resources for


If the Superior’s wilderness budget is hurting, environmental representatives say the Bush White House should take much of the blame. Sagen notes that the administration has been cutting allocations for many environmental protections, as it focuses federal spending on homeland security and wars in Iraq and Afghanistan. He said the reduction in wilderness funding from Washington is the biggest reason for the cutbacks in wilderness maintenance efforts.

“My budget was healthier in the previous administration,” acknowledges Sanders, but he said ongoing budget deficits and the nation’s changing priorities in the wake of the 9/11 attacks mean the Superior isn’t likely to see any significant funding increases in the foreseeable future. All of which makes the financial hits resulting from lawsuits that much harder to take. “That kind of money out of our budget is getting more and more critical,” said Soderberg, who noted that funding continues to decline, even as the needs increase. While a mid-1990s agency analysis found it would take $3 million a year to manage the BWCAW to Forest Service standards, the agency is currently operating with a budget less than half that. “And that doesn’t account for inflation,” notes Soderberg.

Is there a better way?

Even among those who agree with the goals of groups like the Friends, you’ll find those who don’t always agree with their methods. John Roth believes that litigation and confrontation have played too big a role in the environmental movement and when he took the helm as executive director for the Friends last March, he had hoped to turn the organization toward what he saw as a more constructive path. “I felt we should be working with the Forest Service, not against them,” he said. Roth, who has a cabin in the Ely area, took that approach even further, as he met with some of the Friends’ most ardent opponents, groups like Conservationists With Common Sense, in what he called a good-faith effort to find common ground.

Roth, an attorney himself, said he’s concerned about the political costs of litigation as well as the financial costs, both to the Friends as well as the Forest Service. “I didn’t think we should be bringing suit over relatively minor issues,” he said. “What concerns me about that approach, is that it turns away moderate, reasonable people. People that we need.”

Roth’s concerns reflect an ongoing debate within the environmental movement, as many activists worry that the movement has lost much of the public support it once enjoyed, which has diminished its political influence.

While Roth may have sought to ruffle fewer feathers among the public at large, he ruffled a few too many within the Friends’ organization and he was fired in October, barely six months into the job. While some Friends’ board members resigned over the termination, Roth said the predominant faction on the board took a different view from his. “There is a faction on the board that feels the Forest Service should only do what the Friends want,” he said.

Sampson said Roth’s termination did not reflect a split within the organization. “There’s no signal there,” she said. “His termination had nothing to do with the Friends’ overall strategy.”

Bill Hansen, a wilderness canoe outfitter and former board chair of Northeastern Minnesotans for Wilderness, says he liked Roth’s more positive approach. “The cliche is to sell the dream, not the nightmare, and that’s where I agreed with John. We need to start pushing what’s good about the wilderness and how it helps the economy.”

Hansen has long sought to build consensus on wilderness issues. He was an active participant in the federal mediation effort over the BWCAW, set up by the late Sen. Paul Wellstone, and he had attempted to craft a motorized portage compromise which would have expanded the wilderness by about 80,000 acres in exchange for reopening two of the portages. Hansen was deeply disappointed when the Friends ultimately wouldn’t sign on to the deal. Those truck portages were eventually reopened anyway when Congress changed the 1978 wilderness law, and proved a case where a legal victory for the Friends ultimately turned into a political defeat.

Hansen, who no longer serves on the NMW board, said he had urged board members against filing suit over the proposed South Fowl snowmobile trail, a lawsuit that NMW did eventually join along with two other environmental organizations. “The world becomes too nasty a place if you try to solve all these issues through litigation,” said Hansen. “We need to consider mediation and other methods to resolve these things. I still think that the mediation effort, as flawed as it was, was a positive excercise.”

Roth said lawsuits focus attention on relatively minor issues, like truck portages, snowmobile trails, and motor quotas, and often divert environmentalists’ energies from far more important battles. “Right now, there are so many enormous challenges, like global warming. We need to come together to fight these battles, and that means working with the Forest Service, the state, and local communities.”

Representatives of environmental groups say they do work with the Forest Service and other agencies all the time. “I believe the Forest Service is doing good work and we agree with most of the decisions they make. It really comes down to just a small number of decisions that we differ on,” said NMW’s Sagen.

Sampson said the Friends regularly partners with the Forest Service on projects, such as a recently produced brochure on exotic and invasive plant species, as well as a video on low impact camping that most canoeists view prior to entering the wilderness. Sampson said her organization spent in excess of $50,000 producing those projects. “Lawsuits are one aspect of our relationship with the Forest Service, but it’s probably the smallest one,” she said.

But Sampson said lawsuits make headlines, unlike the bulk of her organization’s work, which is typically far more cooperative towards the Forest Service. “Lawsuits get the press,” agreed Knuffke. “We don’t issue a press release when we’ve decided not to sue,” he said.

Sampson said that may give the public a false impression of how often the Friends actually file suit. “Maybe we should be looking at how to improve our public image. In our 30 year history, we have a lot of good things to talk about. Maybe we need to work on getting that story out.”

While Soderberg agrees that groups like the Friends contribute to various projects and often work constructively with the Forest Service, she said those efforts can be undermined by lawsuits. She noted that the Friends had recently contacted Soderberg about another video project they had planned to work on together, but Soderberg told the group the agency doesn’t have the time or the money to pursue it. “You’ve got to have people to work on it. Right now, the folks who would take the lead on it are tied up on lawsuits.”

All sides claim love for the wilderness

Soderberg, who served as wilderness coordinator on the Superior for many years, has worked closely with organizations of both sides of the wilderness divide. She says the strong feelings that people have for the wilderness have fueled the ongoing controversies. “People feel passionate about the resources on all sides,” she said, and she says that includes many people within the Forest Service— people who went into natural resources management because of their dedication to protecting wild lands.

Sagen agrees that many Forest Service employees are dedicated, but says his own group’s dedication to the wilderness means sometimes it can’t go along with a Forest Service decision— and he said environmentalists’ legal victories are helping the wilderness. “The lawsuits that have been filed to date, they have proven on the whole meritorious and the judgements rendered have improved the quality of the Boundary Waters and the Boundary Waters experience.”

But those perceived gains come at a price, says Sanders, and the frustration many in the agency are voicing reflects their own dedication to the wilderness “My employees here have a passion for protecting the Boundary Waters and when anything diverts them from that mission, like a lawsuit, you’re going to hear about it,” said Sanders.