Editorial: Court of Appeals has it wrongPublished 8:55am Monday, June 25, 2012
The three judges on the Minnesota Court of Appeals must not get it.
It ruled last Monday that a 450-foot cellphone tower with flashing lights can be built atop a 150-foot-high ridge 1.5 miles outside the protected Boundary Waters Wilderness and 7.5 miles east of Ely. The ruling overturned a Hennepin County District Court’s ruling that the tower would impact scenic views in the wilderness.
Looking into the ruling, judges bought into AT&T Mobility’s argument that the case was about safety and cellphone coverage. But the case was never about cellphone use. AT&T Mobility successfully changed the subject.
The case was about building a structure with respect to the surrounding environment. There were alternatives that achieved the same coverage with a shorter tower — a tower that doesn’t require lights and reaches merely 17 percent less of the coverage area. A map in the case shows that the 17 percent area in question is non-visited swampland.
Thus, the Minnesota Court of Appeals has approved flashing lights for a previously unharmed horizon so that a company can provide coverage to places customers don’t visit. This despite a state law — Minnesota Environmental Rights Act — that ever-so-plainly disallows “any conduct which materially adversely affects or is likely to materially adversely affect the environment.”
Minnesotans are known for being pragmatic, practical and nice. We don’t paint our houses ugly colors because we know it will upset our neighbors. It seems this tower is like the house with ugly paint. The owner must really have needed to make a point to push the matter this far.
The plaintiff in the case, The Friends of the Boundary Waters, has 60 days to appeal. We urge the Friends to appeal.
If the ruling is allowed to stand, it severely weakens the Minnesota Environmental Rights Act. Not only is the ruling offensive to the lawmakers who crafted the law in 1971, it is not the legal landscape we want to hand over to future Minnesotans if we want them also to defend our scenic landscapes.