REGIONAL- Two legal actions are in play currently in a lawsuit that seeks to curtail the use of towboats in the Boundary Waters. The first, a lawsuit filed by Wilderness Watch in February, ruffled feathers among outfitters who utilize towboats to bring their customers into the wilderness faster. Now, the threat of a preliminary injunction, that would ban towboats this summer, appears to already be harming local businesses.
At the April 25 meeting of the Ely Economic Development Agency, whose voting members included the entire Ely City Council, Mayor Heidi Omerza reported she had recently received communication from three Ely-based outfitters who reported that “customers are canceling trips” into the BWCAW. She also reported she had knowledge of the same thing happening to “10 to 11 other outfitters in the area,” including some out of Grand Marais who provide services for the Moose Lake entry point into the wilderness.
Preliminary injunction
The immediate threat to towboat activity is a motion for a preliminary injunction filed on Feb. 13, which asked for a ban on tows while the main Wilderness Watch lawsuit makes its way through the court system.
As of May 2, U.S. District Judge Nancy E. Brasel had not ruled on that motion. She held a nearly two-hour hearing on March 29 to listen to arguments for and against the proposed injunction.
The court records state “The Court will schedule a status conference prior to issuing the order after the parties have met and conferred regarding negotiations regarding the lack of limit (or perceived limit) on towboat use.” That conference has yet to be scheduled, leaving area outfitters out on a limb regarding whether they can operate their tow services this season.
The lawsuit
The root of the current towboat controversy is the lawsuit itself, filed on Feb. 3, which argues that the U.S. Forest Service is in violation of multiple laws and regulations regarding towboats in the BWCAW. According to the initial complaint from Wilderness Watch, the environmental watchdog organization asked the court to:
 Disallow “permitting any motorized use beyond the statutory cap and the quotas set out in the Forest Service’s wilderness management planning provisions” currently in force. This demand is based on Wilderness Watch’s allegation that the Forest Service is in violation of U.S. law and its own regulations for motorboat permits.
 Disallow authorizing any commercial towboat entries until the agency can demonstrate full compliance with the Wilderness Act, the Boundary Waters Canoe Area Wilderness Act, the National Forest Management Act (which mandates compliance with Forest Plans), and the Administrative Procedure Act (APA).” This demand specifically targets the commercial towboats operated by outfitters servicing the BWCAW.
 Issue “an order requiring the Forest Service to create and implement a permitting process for commercial towboat operations that will ensure clarity, accountability, and compliance with the law.” This demand reflects the argument made by Wilderness Watch that the current permitting and towboat reporting used by the Forest Service are insufficient, inadequate, and not in compliance with current laws, regulations, and the settlement terms of the organization’s 2015 lawsuit against the Forest Service regarding towboats.
The May 2017 settlement terms of the 2015 lawsuit stipulated that the Forest Service had 30 months to assess and correct the number of permitted trips by towboats within the BWCAW. Wilderness Watch argued in their current complaint that five years have now passed and that the Forest Service has failed to carry out that assessment and correction. Wilderness Watch goes further, alleging that since the settlement, the towboat usage has actually gotten worse.
Background
The Wilderness Watch complaint has its foundation in the BWCAW Act of 1978, which prohibited motorboats in the BWCAW except for on specific lakes which the act named. On those lakes, the act established a cap on motorboats. It further directed the U.S. Dept. of Agriculture, which includes the Forest Service, to determine what that cap should be based on “the average actual annual motorboat use of the calendar years 1976, 1977, and 1978 for each lake.” The act further called for motorboat use to be phased out for a portion of those lakes.
In 1981, the NFS established a quota at 14,925, stating “All quotas are in numbers of permits.” As Wilderness Watch stated in its current lawsuit, that number reflects quotas before motorboat use was phased out for a portion of the lakes. Wilderness Watch argues the post-phase-out number should be 12,201. In addition, the quotas were established for each lake, so dropping the number of permits for one lake would not allow increasing permits on another.
The Forest Service issued a 1986 BWCAW management plan that allowed motorboat usage up to the quotas determined in 1981. According to the current complaint, this level of usage degraded the wilderness experience intended for the BWCAW. As a result, “following an administrative settlement,” the Forest Service issued a new plan in 1993 which capped motorboat usage as 75 percent of the 1981 quota.
The 1993 plan also has specific provisions which, among other things, require towboat operators to obtain a special use permit and limit the number of towboats to the number of boats, trips, current operators, and specific lakes in effect in 1992.
The Wilderness Watch complaint goes on to note that the Wilderness Act states that a federal agency managing a wilderness area may only permit commercial services “to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.”
The lawsuit is not the first to argue that the Forest Service does not appropriately regulate motorboat and towboat usage in the BWCAW. The current litigation contends that the agency has failed to live up to the terms of the 2017 settlement of the 2015 lawsuit. The request for a preliminary injunction banning all towboat usage is what has raised the ire of commercial outfitters whose businesses rely on providing towboat services.
Forest Service rebuttal
The exact nature of the Forest Service’s response to the latest complaint is not yet known. The Forest Service, on April 6, requested an extension of time to file its response. Wilderness Watch filed a motion appealing the extension on April 6, which the court denied. The extension was granted on April 7. The court gave the Forest Service until May 8 to file its reply to the lawsuit.
Until the Forest Service files its rebuttal and until the court makes a decision on the pending preliminary injunction, the 2023 season for the outfitters providing tow services will remain up in the air.