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Serving Northern St. Louis County, Minnesota

Cisco netting

It’s time for the Forest Service to revisit the intent of the 1964 Wilderness Act

Posted 12/27/16

It appears that officials on the Superior National Forest are misreading the 1964 Wilderness Act as it pertains to commercial uses. At a minimum, the Forest Service is interpreting the law …

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Cisco netting

It’s time for the Forest Service to revisit the intent of the 1964 Wilderness Act

Posted

It appears that officials on the Superior National Forest are misreading the 1964 Wilderness Act as it pertains to commercial uses. At a minimum, the Forest Service is interpreting the law inconsistently.

Here’s what we know: Among other things, the 1964 act states, “there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act…”

The interpretation of what constitutes a “commercial enterprise,” has been left to the courts, and there are a handful of cases that have provided some guidance for federal regulators, but none of the cases we’ve reviewed suggest that netting ciscoes at Prairie Portage constitutes a violation of this provision of the Wilderness Act. Court cases are typically decided on the individual facts, and the facts in these previous cases are much different from the issues raised at Prairie Portage.

First, a caveat— this is a separate issue from the claim that ciscoes might have been caught across the border and brought into the U.S. improperly. We’ll leave that issue to be proven by law enforcement. For us, the issue is the Forest Service’s current misreading of the prohibition on commercial enterprises.

Two relatively recent court cases do help to clarify what constitutes a commercial enterprise. In the case of the Drake Bay Oyster Company, the Interior Department denied a longstanding permit for an oyster farming operation and associated restaurant in a newly-created federal wilderness in California.

This would seem a rather clear-cut case of a commercial enterprise. This didn’t involve simply harvesting oysters. The company farmed oysters and sold them at their own establishment within the wilderness. As legal advisors to the Forest Service have previously stated, a commercial enterprise, would be something like “a Walmart or a McDonalds.”

The second case, Alaska Wildlife Alliance v. Jensen, involved commercial salmon fishing in an Alaska wilderness area. The courts found that the commercial fishing constituted a “commercial enterprise,” but here the facts mattered. In their decision, the judges cited actual impacts to the wilderness and wilderness users, including the noise of large commercial vessels, dangerous wakes to kayakers exploring the wilderness bay in question, as well as trash and injuries to wildlife, such as sea lions, from the fishing operations.

It was such impacts that gave the wilderness advocates standing in court. If you can’t legitimately claim injury, you don’t have business in a civil courtroom.

In the case of cisco netting, who would profess harm? The netting is very small scale and takes place shortly before freeze-up, when the area in question is deserted. Despite decades of cisco netting at Prairie Portage, the Forest Service has apparently never received a single complaint. Indeed, the Forest Service didn’t even know about it until two years ago, when a DNR official contacted them about storing bait nets on the site, to reduce the risk of introducing invasive species on other nearby lakes.

Furthermore, netting ciscoes at Prairie Portage is perfectly legal, a fact that even Forest Service officials will acknowledge. The individuals conducting the bait harvest there are fully licensed and permitted by the state of Minnesota (yes, we checked) and it is the Minnesota DNR that sets the rules and regulations for the taking of fish and wildlife in state waters.

The only reason the Forest Service contends the activity is improper is because the ciscoes are being sold as bait, but that activity happens outside the wilderness on non-federal lands. What business is that of the Forest Service?

To make the situation even more ridiculous, consider this. As far as the Forest Service has determined, it’s legal to trap furbearers, like marten, fisher, beaver, or otter, in the Boundary Waters, even though the vast majority of those pelts are ultimately sold to commercial fur brokers. We don’t mention this to give the Forest Service ideas of another traditional activity to discourage, but to point out the utter inconsistency of their application of the law as it pertains to cisco netting.

We believe the Forest Service has an easy way to address this issue in a consistent manner. If the activity at issue is legal in the wilderness, what happens outside the wilderness should not be able to make it illegal.

In other words, you can harvest bait in the wilderness, but you can’t open a bait shop. You can trap in the wilderness, but you can’t run a mink ranch. You can take photos for commercial sale, but you can’t open a gallery on the Moose River portage.

As it stands today, the situation is ridiculous. You can pick blueberries in the wilderness, but if you sell a few quarts at a local farmers market, you’re suddenly subject to penalty. That’s absurd, and we don’t think that’s what Congress had in mind in 1964. And it shouldn’t be what the Forest Service enforces in 2017. It’s time to take another look. We think a little common sense is in order.