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Serving Northern St. Louis County, Minnesota

CELL TOWER DISPUTE

Legal experts weigh-in on cell tower case

Tom Klein
Posted 8/3/12

REGIONAL – Six law professors from four universities say the Minnesota Court of Appeals erred in approving construction of a 450-foot cell-phone tower on the edge of the Boundary Waters wilderness …

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CELL TOWER DISPUTE

Legal experts weigh-in on cell tower case

Posted

REGIONAL – Six law professors from four universities say the Minnesota Court of Appeals erred in approving construction of a 450-foot cell-phone tower on the edge of the Boundary Waters wilderness and have asked the state Supreme Court to review the case.

In addition, the professors asked permission to file a friend-of-the-court brief outlining their arguments.

The Friends of the Boundary Waters has already filed an appeal, but the Minnesota Supreme Court has not yet decided whether to hear the case. Most legal experts predict that it will.

Last month, the state Court of Appeals sided with AT&T when the court overturned a district court judge who decided the tower near Ely would violate the environmental law known as MERA (Minnesota Environ-mental Rights Act) because it would damage the aesthetic value of the BWCAW.

AT&T had other alternatives, including construction of one or more smaller towers that would not be visible from inside the Boundary Waters Canoe Area Wilderness, said Hennepin County District Judge Philip Bush.

But the Appeals Court overturned Bush’s ruling, calling it subjective and saying it failed to weigh the severity of the effect on scenic views within the BWCAW, which it said would be minor. The court also said the effect would not be permanent because the tower could be removed.

AT&T hailed the decision. “The larger tower would not have a material adverse effect on the Boundary Waters,” AT&T spokesman Alexander Carey said in a statement. “On the contrary, we believe the limited impact of the tower is greatly outweighed by the benefits — including health and safety benefits — of the improved service it will provide residents and visitors.”

The law professors, however, say the Appeals Court got it wrong.

“The Court of Appeals says, in effect, that it’s true you can see it, but it’s not that big of a deal,” said David Prince, an environmental law professor at the William Mitchell College of Law in St. Paul.

The Legislature already decided that even small encroachments matter when it passed the law in 1971, according to Prince. The law was written in part to protect natural resources against slow erosion from development, he said.

“It raises the question of how firmly to enforce a statute that, I think, pretty clearly says that protection of natural resources is of paramount importance,” said Prince.

The law professors also argue that the court overstepped by supplanting its own judgment on the severity of the impact for that of the trial judge, who heard a week’s worth of testimony on the case.

Minnesota was one of the first states to pass an environmental law of this type, modeling the legislation after a similar statute in Michigan. Two of the professors who signed the petition are from Michigan; they said weakening the Minnesota law could eventually weaken theirs.

It is uncommon for half a dozen professors from several institutions to weigh in on a state law and could bring the case national attention.

Environmental groups, including the Parks and Trails Council of Minnesota and the Sierra Club, and a number of outfitters in Ely have also filed permission to weigh in on the case if the Supreme Court agrees to hear it.

Cell tower, AT&T, Fall Lake