• August 5, 2011

New Minnesota Litigator Contributor, Sara Peterson, posts the following about the BWCA/ATT case (previously covered on ML here):

On Wednesday, Hennepin County District Court Judge Phillip Bush issued his highly anticipated decision in State of Minnesota, by Friends of the Boundary Waters Wilderness v. AT&T Mobility, LLC, Case No. 27-CV-10-15150 (Aug. 3, 2011) (hereinafter “FBWW”).  The decision finds that AT&T’s proposed construction of a lighted 450-foot tall cell phone tower within 1.5 miles of the Boundary Waters would cause pollution, impairment or destruction of a protectable natural resource in violation of the Minnesota Environmental Rights Act, Minn. Stat. §§ 116B.01 et seq. (“MERA”).  The court’s order permanently enjoins AT&T from constructing the proposed 450-foot tower, while noting that construction of an unlighted 199-foot cell tower would be permissible.

The decision also demonstrates the power that Minnesota citizens can wield by acting as private attorneys general under MERA, if they can find a way to foot the bill for litigation costs.  More details on the case after the jump…

Some highlights from the FBWW findings of fact:

–          Scenic View Impairment: AT&T’s proposed tower would have been taller than 97% of the 410 other towers constructed in Minnesota by AT&T contractor American Tower.  FBWW at 4, ¶ 17. It would have been visible from eight miles away in daylight and from over ten miles away at night.  Id. at 5, ¶ 77.  The court found that it would have materially impaired the scenic view from all ten BWCAW locations (lakes located within 5 mi.) studied in the plaintiff’s viewshed analysis.  Id. at 14-28.

–          Extent of Cell Phone Coverage Improvement: During Lake County’s conditional use permit proceedings regarding the proposed tower, AT&T provided incorrect statistics to the County, suggesting that the 450-foot tower would provide cell coverage for an area 16 times larger than the area covered by a 199-foot tower.  FBWW at 34-35, ¶194.  The court found that the actual improvement in coverage provided by the 450-foot tower was 17%, not 1600%.  Id. at 35, ¶195.  Further, the “increased coverage would not be of any meaningful benefit to the residents of the . . . area or to people using the lakes and rivers of the BWCAW” because it primarily covered uninhabited roadless areas that are either wooded or swamps.  Id. at 38, ¶209.

–          Financial Impact on AT&T: AT&T estimated its return on investment for the 450-foot tower would occur after 38 months, FBWW at 36, ¶203, while its return on investment for the 199-foot tower would occur after 63 months.  Id. at 41, ¶ 217 .   AT&T’s profit target for return on investment in cell towers is 60 months.  Id.

Based on its findings of fact, and utilizing the five factors set forth in State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 267 (Minn. 1997), the court analyzed whether the proposed tower would materially adversely affect the natural resource at issue, thus violating MERA.  It found that:

(1)    visibility of the proposed tower and its flashing lights would adversely, materially and significantly impair the scenic view and aesthetic resources of the BWCAW;

(2)    the BWCAW has special historical significance for many Minnesotans and others;

(3)    the affected natural resource is not replaceable;

(4)    the proposed tower would have a significant negative consequential effect on other resources, specifically on avian wildlife; and

(5)    the affected resources are finite and limited, are not increasing, and will decrease over time unless protected.

FBWW at 46-52.  The court thus determined that the proposed tower would materially and adversely affect the resource at issue and violate MERA.  Id. It also rejected AT&T’s affirmative defenses, finding:

–          the proposed tower is not “required for the promotion of public health, safety and welfare,”  there is a feasible and prudent alternative in the 199-foot tower, and defendants’ argument that the 450-foot tower is needed for emergency cell-phone coverage within the BWCAW “is unpersuasive;” and

–          plaintiff’s MERA claim is not preempted by federal law, as it is not a zoning law or decision and does not prohibit or have the effect of prohibiting provision of personal wireless services. Id. at 52-55.

From my perspective, Judge Bush’s decision to permanently enjoin AT&T’s proposed 450-foot tower is well-reasoned and well-supported by his findings of fact and conclusions of law.  It also illustrates the power that citizens can wield acting as private attorneys general under MERA.  While the standards for obtaining relief under MERA are substantial, they are often attainable.  The basic elements of a MERA claim are fairly straightforward: (1) the existence of a “protectable natural resource;” Minn. Stat. §116B.02, Subd. 4, and (2) “pollution, impairment or destruction” of that resource, which exists where a defendant’s conduct “materially, adversely affects or is likely to materially adversely affect the environment.”  Minn. Stat. §116B.02, Subd. 5.  Plaintiffs’ rights to pursue a MERA claim are in addition to any administrative rights or remedies they may have.   State ex rel. Swan Lake Area Wildlife Ass’n v. Nicollet County Bd. of County Com’rs, 711 N.W.2d 522 (Minn. Ct. App. 2006).  Defendants’ primary affirmative defense is that there is no “feasible and prudent alternative” to the proposed action, which can be difficult to prove in many circumstances, as it was here.

Perhaps the most significant barrier to MERA claims:  there is no provision entitling successful plaintiffs to recover attorneys’ fees.  By contrast, two other states with similar environmental rights acts, Michigan and Connecticut, both give courts discretion to award reasonable attorneys’ fees to successful plaintiffs. See Conn. Gen. Stat. § 22a-18(e); Mich. Comp. Laws Ann. § 324.20135(5).  A bill introduced in the Minnesota House in 2006,  Minn. H.F. 4158 (2006), would have allowed awards of costs to successful MERA plaintiffs, but the bill did not move beyond its introduction.  I would expect a similar legislative outcome if the bill were re-introduced in the foreseeable future, given our current political climate.

In sum, this week’s decision in the Boundary Waters case was a resounding MERA victory for environmentalists.  It demonstrates what a powerful tool a MERA claim can be when sufficient litigation resources can be corralled.  For better or worse, however, use of that tool is likely to remain significantly limited in Minnesota due to the lack of an attorneys’ fees provision in the MERA statute.

Leave a Reply

Your email address will not be published. Required fields are marked *