Past, Present and Future of the Boundary Waters: A Lawyer’s Reflections on Land Rights, Resource Allocation and Wilderness Preservation

By Mary Margulis-Ohnuma
Policy Counsel, New York City Bar Association

Last fall, I called my 21-year-old daughter to tell her about a podcast I had just heard.[1] It described the Boundary Waters, a wilderness area in Northern Minnesota at the Canadian border made up of thousands of pristine lakes spanning over a million acres. “It’s only accessible by canoe,” I told her. “It’s stillness and solitude. It’s completely off the grid.”

“So,” she said, “when are we going?”

This past June, we made our way to Ely, Minnesota, a small town that serves as the gateway to the Boundary Waters Canoe Area Wilderness (BWCAW).[2] At the outfitters, we gathered our gear and learned how to hoist a canoe over our heads, how to read the map (there are no signs in the Boundary Waters to help with orientation), what a “rod” is (approximately one canoe length – the unit of measure for portages), how to hang a bear bag, and how to store our canoe so it would not drift away in the night. The next day, we packed our enormous rented portage packs with food and gear for six days and five nights, and we set out.

Although we had been warned ahead of time that “the only guarantee about weather in the Boundary Waters is that there will be weather,” we had six glorious days of clear skies. Most mornings, the lake surface was as still and clear as glass; when afternoon winds picked up, we struggled through choppy waves. We saw bald eagles soaring over the water, and two pairs of trumpeter swans gliding silently between small islands. We saw painted turtles sunning themselves on a log, and frogs hopping in the mud on shore. We saw loons diving for food, and heard them calling to each other at night over the echoing lakes. On more than one occasion, we weren’t quite sure where we were. And, as promised, we were off the grid – our cell phones didn’t work (except as cameras and flashlights). Each day, we paddled and portaged for four or five hours, then found a campsite, secured our canoe, set up our tent, and then swam in the cool lakes, read in our camp chairs overlooking the glinting vastness, and dipped up pots of water from the lakes to cook our dinner. At dusk, when the mosquitoes drove us into our tent for the evening, we played cards, talked, and fell asleep to the sounds of leaves rustling in the wind and lake water lapping at the shore.

The Boundary Waters is remarkably untouched. I have visited national parks and protected places all around the country, but this was something new to me. Even when hiking in the backcountry, trails, signage, open-sided shelters, and occasional logging or access roads remind us of human beings nearby. As we paddled through acres and acres of freshwater lakes, I kept thinking: What is this place? How did we get it? How long will it remain like this?

Past: The Boundary Waters Was Once Home to the Ojibwe

On the third day of our trip, we saw a series of pictographs painted in red-brown ochre on a cliff face along the shore. The images were like something out of a dream: an animal on the run, a human-shaped form with elongated arms and legs, a figure resembling two people in a canoe, an unidentifiable ovaloid shape, a handprint. I fought an urge to match my hand up to the ancient handprint on the wall, to connect for just a moment with the person who had left these marks years ago.

I have since learned that the area was once inhabited by the Ojibwe, a Native American people who settled in the region around Lake Superior four or five hundred years ago, and that these artifacts are their handiwork.[3] You can probably guess what happened to the Ojibwe. First the French, then the British, then the Americans came – drawn by the growing fur trade and abundant natural resources, including timber and minerals. Ultimately, through a series of treaties, the native people of the Great Lakes region ceded their lands (and waters) to the U.S. government.[4] Although they did so pursuant to treaties (with all the implications of fairness and agreement that such term implies), one can imagine the decision to leave these magical lakes was not entirely voluntary. In fact, in 1849, the Ojibwe went to Washington and begged President Zachary Taylor to let them stay on their lands, saying they did not understand that a treaty they signed in 1842 meant they had to leave. Their pleas fell on deaf ears. And in 1854, the Ojibwe signed a treaty ceding the last of their lands in Minnesota – including what is now the BWCAW – to the U.S. in return for reservations of land in Wisconsin.[5]

Importantly, the 1854 Treaty provided that the native people retained the right to hunt, gather, and fish in the ceded territory. However, these retained rights were largely ignored for years, with Minnesotans and Wisconsinites arguing that it was unfair for Native Americans to have “special rights” in these areas.[6] Native people suffered generations of ill treatment and ever-increasing loss of access to their ancestral lands. Finally, in the 1960s and 1970s, with the rise of the civil rights movement, Native people around the country gained some momentum in reasserting their rights. To do so, they turned to the courts.[7]

In 1984, a member of the Grand Portage Reservation shot a moose and was given a citation by a Minnesota game warden for hunting outside the state season. The band brought a lawsuit in federal court in the District of Minnesota seeking a declaratory judgment that the 1854 Treaty reserved their right to hunt and fish in the ceded territory (including the BWCAW) unhampered by state regulation. Four years later, the parties entered into an out-of-court settlement confirming these usufructuary rights.[8]

Present: The Boundary Waters is a Federally Designated Wilderness Area

In 1926, the Boundary Waters Canoe Area Wilderness was set aside “to preserve its primitive character,” a decision that was subsequently solidified by the 1964 Wilderness Act and the Boundary Waters Canoe Area Wilderness Act of 1978.[9]

The 1964 Wilderness Act created the National Wilderness Preservation System, with the goal of preserving federally owned lands designated by Congress as “wilderness areas.”[10] According to the Act, wilderness is “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.”[11] The purpose of the law was to establish areas “administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use as wilderness.”[12]

Despite the federal protection the 1964 Act afforded, conflicts over use of the area persisted, particularly with respect to phasing out the timber industry and other prior uses of the land. In response, in 1978, President Jimmy Carter signed the Boundary Waters Canoe Area Wilderness Act.[13] The Act “specifically prohibits logging and provides direction to the Forest Service regarding level of motorized watercraft use, size of motors, quotas for use, motorized/mechanized portages, snowmobile use, location of resorts, and maintenance of dams.”[14]

Future: The Boundary Waters Is Threatened By Mining Interests 

On January 26, 2023, the Biden Administration announced a 20-year moratorium on mining in federal protected lands upstream of the BWCAW. The plan withdrew from mineral leasing some 225,504 acres of watershed in the Superior National Forest.[15] In signing the moratorium, Department of Interior Secretary Deb Haaland stated that the decision was made after scientific review, and discussions with local and tribal groups, which underscored the danger of irreparable harm that mining activities would cause: “Protecting a place like Boundary Waters is key to supporting the health of the watershed and its surrounding wildlife, upholding our Tribal trust and treaty responsibilities, and boosting the local recreation economy.”[16]

The decision effectively terminated Twin Metals Minnesota LLC’s bid to develop an underground copper and nickel mining operation in Ely. The company has sued to reinstate two federal mineral rights leases that have been cancelled, and the moratorium will likely lead to additional litigation. According to Twin Metals, the mineral deposits “are vital in meeting our nation’s goals to transition to a clean energy future, to create American jobs, to strengthen our national security and to bolster domestic supply chains,” and the mining project “plays a critical role in addressing all of these priorities.”[17]

Despite the 20-year federal mining moratorium on lands adjacent to the BWCAW, state and private lands are still vulnerable.[18] Moreover, the moratorium is not a permanent ban. Legislative proposals on both sides of the issue are being considered: U.S. Congresswoman Betty McCollum has introduced a bill to permanently protect the Boundary Waters,[19] and a Minnesota state bill – the Boundary Waters Permanent Protection Bill – would extend an existing state ban on mining in the BWCAW to also prohibit sulfide-ore copper mining on state-owned lands and ban the issuance of sulfide-ore copper mining permits, licenses, and leases within the Rainy River Headwaters portion of the Boundary Waters watershed.[20] On the other side, U.S. Representative Pete Stauber has introduced two bills to undo the federal mining moratorium and open the headwaters of the BWCAW to copper mining.[21]

*** 

Like many things that are scarce and precious, the Boundary Waters Canoe Area Wilderness has been, and continues to be, desired, fought over, and mired in legal battles. Whose ownership rights should prevail over this historically important homeland to Native peoples, where natural resources like timber and mineral deposits abound? Can we claim a commitment to clean energy while deliberately leaving vast stores of copper underground? How much risk to pristine natural landscapes can we tolerate in the name of progress? And can our laws protect us from ourselves and our human tendency to consume?

At least for now, however, the BWCAW remains a protected wilderness of immaculate waters, spectacular wildlife, and wonderous quietude. Gazing out across a darkening lake and looking up at the stars, we can dream of our past, present, and future in this fragile and enduring landscape.

The views expressed in this article are the author’s and not necessarily those of the City Bar.

[1] https://www.newyorker.com/podcast/the-new-yorker-radio-hour/a-trip-to-the-boundary-waters.

[2] To visit the BWCAW in high season (May 1 through September 30), you must reserve a permit in advance at https://www.recreation.gov/. There are only a limited number of permits, and the permit allows entry into the BWCAW on a specific day. After looking at our calendars, my daughter and I realized we had only a 10-day window of overlap when we could both go. When I checked on January 26, the permits for June 15 (our first choice date) were already sold out. I quickly bought a permit for the following day.

[3] Michael Furtman, “Magic on the Rocks: Canoe Country Pictographs,” Birch Portage Press (Duluth, MN), 2000, at 16-17, 28. The Ojibwe are also sometimes referred to as the Chippewa, and prefer to call themselves the Anishinabe.

[4] “Ojibwe,” Milwaukee Public Museum, https://www.mpm.edu/index.php/content/wirp/ICW-51.

[5] See id. Once they moved to those reservations, the Ojibwe were unable to sustain themselves through traditional hunting and gathering, and declined into poverty. Some ended up working as lumberjacks for white-owned lumber companies; and much of the Ojibwe reservation lands ended up being sold to lumber companies. “On some reservations, over 90% of the land passed into White hands.”

[6] “Retained Rights Under the 1854 Treaty,” Friends of the Boundary Waters, https://www.friends-bwca.org/bwca-land-acknowledgement/#:~:text=Under%20the%201854%20Treaty%2C%20members,never%20relinquished%20by%20Native%20people.

[7] See id.

[8] See id. See also Douglas P. Thompson, “The Right to Hunt and Fish Therein: Understanding Chippewa Treaty Rights in Minnesota’s 1854 Ceded Territory,” pp. 17-19 (2017, 2020), https://www.1854treatyauthority.org/images/ToHuntandFish.updated2020.pdf. The memorandum of agreement memorializing the settlement provides a framework for regulating commercial harvest, fishing, hunting, trapping, and wild rice gathering, including provisions for enforcement and negotiation of disputes, and has been incorporated into Minnesota State Law (97A.157 1854 Treaty Area Agreement) (see https://www.revisor.mn.gov/statutes/cite/97A.157#:~:text=The%20purpose%20of%20this%20section,1854%2C%20treaty%20between%20the%20Lake). An inter-tribal commission, the 1854 Treaty Authority, manages the exercise of these rights. As a general matter, tribal rights to harvest from these lands and waters are limited to the same opportunities as those afforded to state-licensed users. See Thompson, supra.

[9] “Boundary Waters Canoe Area Wilderness Overview and History,” United States Forest Service, https://www.fs.usda.gov/detail/superior/specialplaces/?cid=stelprdb5203434#:~:text=This%20area%20was%20set%20aside,with%20subsequent%20legislation%20in%201978.

[10] Wilderness Act, https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd719753.pdf.

[11] Id.

[12] Id.

[13] Specifically, the 1978 Act sought to:

(1) provide for the protection and management of fish and wildlife of the wilderness so as to enhance public enjoyment and appreciation of the unique biotic resources of the region, (2) protect and enhance the natural values and environmental quality of the lakes, streams, shorelines and associated forest areas of the wilderness, (3) maintain high water quality in such areas, (4) minimize to the maximum extent possible, the environmental impacts associated with mineral development affecting such areas, (5) prevent further road and commercial development and restore natural conditions to existing temporary roads, and (6) provide for the orderly and equitable transition from motorized recreational uses on those lakes, streams, and portages in the wilderness where such mechanized uses are to phased out under the provisions of this Act.

Boundary Waters Canoe Area Wilderness Act, https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd568083.pdf.

[14] “Boundary Waters Canoe Area Overview and History,” United States Forest Service, https://www.fs.usda.gov/detail/superior/specialplaces/?cid=stelprdb5203434#:~:text=This%20area%20was%20set%20aside,with%20subsequent%20legislation%20in%201978. Various industries continued to fight for use of the land. In 1993, following years of litigation, the US Forest Service established the first BWCAW Management Plan. And management of the wilderness area was later integrated into the Superior National Forest Land and Resource Management Plan of 2004. The 2004 plan is “strategic in nature, with an emphasis on ecological, social, and economic sustainability over the long-term.” As the Forest Service website describes: “[i]n managing wilderness, the Forest Service does not simply set aside land and leave it alone. As the agency steward, the Forest Service will continue to actively manage the BWCAW to monitor and protect wilderness character, guided by the BWCAW Act, along with the national Wilderness Act and Forest Plan, and with input from engaged citizens today and for many tomorrows.” See id; see also “Planning: Superior National Forest Land and Resource Management Plan,” United States Forest Service, https://www.fs.usda.gov/main/superior/landmanagement/planning.

[15] See “Public Land Order No. 7917 for Withdrawal of Federal Lands; Cook, Lake, and Saint Louis Counties, MN,”  https://www.blm.gov/sites/default/files/docs/2023-01/PLO%207917_Signed%20Notice_1.26.23.pdf; see also “Biden-Harris Administration Protects Boundary Waters Area Watershed,” Press Release, U.S. Department of the Interior, Jan. 26, 2023, https://www.doi.gov/pressreleases/biden-harris-administration-protects-boundary-waters-area-watershed.

[16] See Lisa Friedman, “Biden Administration Sets a Mining Ban in Boundary Waters Wilderness,” New York Times, Jan. 26, 2023, https://www.nytimes.com/2023/01/26/climate/mining-ban-boundary-waters-copper.html. The BWCAW supports a $540 million annual outdoor tourism industry.

[17] See id.

[18] Sam Chadwick, “The Boundary Waters Wilderness is Still At Risk,” Save the Boundary Waters, Feb. 14, 2023, https://www.savetheboundarywaters.org/boundary-waters-wilderness-still-risk.

[19] “Tell Congress to Protect the Boundary Waters,” Save the Boundary Waters, https://www.savetheboundarywaters.org/mcCollumBill23_MN; see also “Boundary Waters Wilderness Protection and Pollution Prevention Act,” https://www.congress.gov/bill/118th-congress/house-bill/668?q=%7B%22search%22%3A%5B%22boundary+waters%22%5D%7D&s=1&r=1.

[20] Libby London, “Boundary Waters Permanent Protection Bill introduced in Minnesota House and Senate by chief authors Senator Kelly Morrison and Representative Sandra Feist,” Save the Boundary Waters, Jan. 12, 2023, https://www.savetheboundarywaters.org/boundary-waters-permanent-protection-bill-introduced-minnesota-house-and-senate-chief-authors.; see also Boundary Waters Permanent Protection Bill (S.F. 167/H.F. 329), https://www.revisor.mn.gov/bills/bill.php?b=House&f=HF0329&ssn=0&y=2023.

[21] See H. Con. Res. 34 (https://www.congress.gov/118/bills/hconres34/BILLS-118hconres34ih.pdf); H.R. 3195 (https://www.congress.gov/bill/118th-congress/house-bill/3195/text).