ELY— What constitutes commercial use of a federal wilderness?
That is one of the complex issues raised by the recent raids on Ely bait dealers by federal law enforcement officers. While the raids themselves were done under the authority of a century-old law known as the Lacey Act, which was passed by Congress to protect wildlife from cross-border smuggling, they have reignited the long simmering debate over commercial use of the Boundary Waters Canoe Area Wilderness.
Federal officials allege that the individuals involved harvested ciscoes across the border in Canada. But regardless of any such cross-border incursions, which have yet to be proven, Forest Service officials say commercial harvest of ciscoes at Prairie Portage, located within the BWCAW, is not allowed under the federal Wilderness Act.
That’s been a sticking point for the past couple years, when the Forest Service first found out that the harvest, which has gone on for decades, was even happening. “We found out, because the DNR asked about storing nets at Prairie Portage,” said District Ranger Gus Smith, with the Superior’s Kawishiwi district. DNR officials were worried that the nets, which the bait harvesters were using in Basswood Lake, where spiny waterfleas are known to exist, could spread the invasive pest into other lakes on the return trip from Prairie Portage. The revelation prompted Forest Service officials to consider whether the bait harvest was allowed under the prohibition on most commercial activity within the wilderness. At the time, Superior Forest Supervisor Brenda Halter determined that the Forest Service was obligated by law to prohibit the harvest.
Yet, under pressure from Congressman Rick Nolan and Sen. Amy Klobuchar, the Forest Service agreed to not enforce the rule through the end of 2015. This past summer, the two lawmakers asked for another exemption for this year’s harvest, which typically takes place in late October or early November, when the ciscoes come into the shallows to spawn.
“We told them they’ve been asking us to break the law,” said Smith “We asked them to consider not asking us to break the law anymore, or to work to change the law,” he added. “Without a change, I have no discretion here.”
Even so, it wasn’t the U.S. Forest Service that conducted the raid on bait shops in Ely earlier this month. It was federal law enforcement officials from the Fish and Wildlife Service, apparently working under the authority of the Lacey Act. Smith said he had no knowledge of the raid or of the four-year investigation that reportedly led to the enforcement action. But the incident once again raised the controversy over the ongoing cisco harvest.
Commercial use can be a fine line
While court rulings have generally sided with federal regulators on commercial uses in wilderness areas in the past, each case presents its own set of facts upon which any decision can hinge. A well-known case of a clash between the Wilderness Act and a commercial operation eventually led to the closure of the Drake Bay Oyster Company, a longstanding oyster harvesting operation and retail outlet located in the Point Reyes Wilderness in California.
In that instance, the Department of the Interior declined to renew a permit for the business, since operating an oyster harvesting business to supply a retail facility located within the wilderness boundary was prohibited activity. The shop and business closed doors in 2014 after a lengthy legal battle.
When it comes to cisco harvest at Prairie Portage, however, no Forest Service permit is required. The Boundary Waters Wilderness Act makes it clear that jurisdiction over fish and wildlife remains with the state Department of Natural Resources, which has issued licenses and permits to the individuals involved in the bait harvest at Prairie Portage. According to Sean Sisler, who oversees bait licensing and permitting for the DNR, those permits give the holders the right to harvest bait in any Minnesota water body that they can legally access.
In effect, acknowledges Smith, the harvest of ciscoes at Prairie Portage is perfectly legal. It’s the sale of those ciscoes to bait shops in Ely that turns a legal activity into a violation of the ban on commercial use of the wilderness.
Smith notes that there are obvious exceptions to the ban on commercial activity. Outfitters, guides, and towboat operators are allowed because the wilderness act grants an exception to commercial activity “to the extent necessary to serve recreation.”
Even so, the lines aren’t always clear. Earlier this year, Smith contended with complaints from a Fall Lake township supervisor who argued that anti-copper-nickel mining activists Dave and Amy Freeman were violating the commercial ban by posting pictures and reports of their year-long wilderness excursion online. Some of those photos and reports included images of outdoor gear that sponsors had donated, which some argued constituted advertising.
Smith had initially suggested the Freemans might have violated the ban, but later determined otherwise. “It’s fairly philosophical at times,” said Smith.
What makes the cisco case more challenging is that the commercial activity in question (the sale of the ciscoes to bait shops) takes place outside the wilderness.
In that sense, it’s virtually identical to trapping, which is an allowed activity within the Boundary Waters wilderness, according to Sue Duffy, wilderness and recreation program manager for the Superior National Forest. Virtually all trappers trap for the commercial fur market, so the pelts they obtain within the wilderness are being sold to fur dealers, just as the controversial ciscoes are sold to bait dealers. “It’s not an issue we’ve ever addressed,” acknowledged Duffy.
The tussle over ciscoes raises questions about all kinds of small-scale activities that could come under scrutiny if the Forest Service chooses to take a hard line. Pick a few gallons of blueberries in the Boundary Waters and you’re just fine. Sell a few quarts of your berries at a farmers market or to the local grocer and suddenly you’re an outlaw. Duffy acknowledges that would be consistent with the Forest Service’s current reading of the wilderness act.
As usual, the Forest Service is caught in the middle, taking flak from all sides in the wilderness debate, and that makes the agency particularly cautious as it approaches such issues. Smith notes that the agency is currently in a lawsuit filed by Wilderness Watch that seeks to end the use of towboats on the Moose Lake chain of lakes. “We have to be very careful with commercial activities right now,” Smith said, although he acknowledged that environmental groups have yet to weigh in on the issue. “Their silence makes me a little nervous,” said Smith.
At the same time, Smith said he recognizes that the impact of the cisco harvest on the wilderness, or wilderness values, is probably negligible. At that time of year, Prairie Portage is closed for the season and canoe traffic through the portage is rare to non-existent. And Prairie Portage is already an intrusion, of sorts, in the wilderness, with a truck portage, vehicles, and several buildings, including a Canadian Customs office. “In terms of a wilderness intrusion, it’s not a huge thing,” acknowledges Smith. “But the wilderness act doesn’t want us to look at those kind of tradeoffs.”
Eighth District Congressman Rick Nolan’s office is currently working on a possible amendment to the Boundary Waters Wilderness Act, which would help to clarify the issue. “The draft legislation Mr. Nolan’s team has been working on would amend Section 14 (State Jurisdiction over Fish & Wildlife) of Public Law 95-495 as such: SEC. 14. Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the State with respect to fish and wildlife including commercial bait harvest of cisco (Coregonus artedi), in the wilderness and the mining protection area.” That’s according to Nolan spokesperson Samantha Bisogno.
Nolan had hoped to reach accommodation for an administrative solution, said Bisogno, “however, after dialogue with bait industry stakeholders and the Forest Service (well before the federal raid) it appeared as though legislation to effectively codify the long-standing cisco harvest on the American side of Prairie Portage would be necessary.”
But Smith isn’t sure that the language, as currently proposed by the Congressman, resolves the issue. He said the Forest Service doesn’t dispute the right of the state to regulate fish and wildlife. It’s the commercial activity that creates the conflict with the wilderness act, he notes. Bisogno said Nolan’s legislative staff is still pursuing the issue and that final language remains a work in progress.
Why it matters
Cisco are found in plenty of lakes in northern Minnesota. So why is the Prairie Portage harvest such a big deal? It turns out, it’s because the site consistently hosts a large spawning run of a bait-sized cisco that is hard to find elsewhere in Minnesota. “We call them a kind of dwarf cisco,” said Edie Evarts, the DNR’s Tower area fisheries manager. She said most mature ciscoes, also known as tullibees, are much larger and are harvested for human consumption. Under state law, fish sold as bait can’t exceed seven inches in length, and ciscoes that small typically aren’t mature enough to gather for spawning, which is the only time that harvesters can expect to net large numbers of the fish.
And the ciscoes are popular bait, particularly for ice anglers, who use them for both lake trout and northern pike.
Jim Maki, whose Great Outdoors Bait Shop in Ely was one of those raided by U.S. Fish and Wildlife Service officers, said the ciscoes are particularly popular with lake trout anglers. “In the winter, they probably represent a majority of our business,” he said. “That’s been the case for 34-35 years,” he said.
Maki, who has helped with the cisco harvest in the past, says he’s familiar with where the harvest takes place. “It’s on the American side,” he insists. While some press reports suggest that the Fish and Wildlife Service has video of netting in Canadian waters in past years, Maki said he’d like to see proof the ciscoes he bought in 2016 were caught in Canada. “Otherwise, I want my fish back,” he said.