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Spirit Mountain
The Great Land and Water Conservation Fund Debate (and other matters!)
Past Spirit Mtn News, Fact Sheets, DNT Editorials, Etc.
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Current News!
7/24/02 Wisconsin Anishinabe Bands Weigh in on Spirit Mountain In what could be one of the most significant events in the ongoing debate, Wisconsin Chippewa (Anishinabe) bands have now appeared twice before the city council, expressing their concerns over development at Spirit Mountain, a place considered sacred to these people. At least one band, the Lac du Flambeau, has passed a resolution in opposition, and other bands are meeting and working on similar courses, as well as involving their attorneys. This is significant because the LWCF is federal law, and a conversion request is considered a federal action. The National Park Service -- which has the final say in whether the conversion will be allowed -- is bound by several laws or executive orders to protect Native American sacred sites. The League is grateful for the interest and assistance by these bands, and hopes that these new allies will help us to protect what is sacred to the Anishinabe, and important to us as a conservation group. 7/24/02 State Attorney General Mike Hatch Applies Pressure on Behalf of Mayor Doty In an effort to aid his old buddy, Duluth Mayor Gary Doty, Minnesota Attorney General Mike Hatch has reportedly been applying pressure on Minnesota Department of Natural Resources Commissioner Allen Garber to aid the City in its request for a "conversion" at Spirit Mountain. A conversion request is necessary because the Land and Water Conservation Fund does not allow private development or buildings on lands under its protection. Commissioner Garber (see letter below) had sternly warned the City that this conversion would not be easy, and that because his agency was getting mixed messages from the two branches of Duluth city government, he had told his staff to suspend work on the conversion request. That recently ended when the good old boy network allowed Doty to get Hatch to come down on Garber. This is just another example of the type of political insider pressure that has been used to advance this ill advised project from the very beginning. While the League still hopes that the DNR and NPS will adhere to the letter and spirit of the LWCF, it is clear that efforts are underway to "streamline" the process for the proponents of this land grab. Stay tuned.
July 8, 2002 City Council Rejects Work Permits (Again) -- Mayor expected to veto
February 8, 2002
(For an analysis of this development, go HERE) February
8, 2002 Russ
Stewart, Councilor Dear
Councilor Stewart, This
is to inform you that the Department of Natural Resources has
suspended action on the request for an authorized conversion of the
lands associated with the Mountain Villas and the proposed hotel and
golf complex. At
the beginning of this process, I asked my staff to pursue two goals: 1.
Follow the law, rules and guidelines associated with the Land
and Water Conservation Fund Program (L&WCF) 2.
Work,
within the parameters of the L&WCF program, to address the
interests and needs of the City of Duluth as expressed by its elected
leaders and city staff. The
project is obviously a very controversial one for the city and it is
no longer clear to the DNR what the interests and needs of the city
are. We have received and observed conflicting messages from elected
leaders and staff. October 23, the City sent a letter to DNR formally requesting conversion
on behalf of the City and the Spirit Mountain Recreation Authority. November 16, the City sent a follow-up letter at the
mandate of the City Council indicating that the request was limited to
the “city administration” and the Authority. December 17, the City Council voted to reject a
resolution (01-0685R) authorizing the acquisition of the
land…authorizing the settlement of compliance issues with the
Department of Natural Resources. December 19, the City Attorney’s office sent maps
and a request to respond to boundaries for the same replacement
proposal. December 24, the DNR requested clarification of this
issue from the city. January 25, the Mayor sent a letter requesting that
the DNR continue to work with the city. January 29, the DNR responded to the request. January 30, Councilor Russell Stewart sent a letter
stating “…the city council rejected the proposed land swap in no
uncertain terms”…resolution 01-0685…”Thus the council has
considered the administration’s proposal and has clearly stated that
it does not favor this approach.” A
review of the video from the December 17th City council
meeting has revealed the degree of division concerning the proposal
among the city’s leaders. While the city asserts that the Mayor, as
authorized by the city charter, has a right to pursue proposals, the
DNR must assert its right to require that such proposals have the
demonstrated support of the city’s elected leaders from both
branches. In
situations like these, it is the DNR’s job to carefully listen to a
city’s request and then respond, within the guidelines of the
L&WCF. From the very beginning, however, my staff stated that
conversion is a complex and time consumptive process. It is never a
given that the process will result in authorization from the DNR or
the National Park Service. But we indicated that if your city wished
to pursue it, we would carefully listen. We have listened and what we
have heard is mixed messages. The
City of Duluth has a current violation at the Spirit Mountain
Recreation Area, the Mountain Villas. The DNR is willing to work with
the city on this violation but, at this point in time, not in context
with the proposed hotel and golf course. Please
understand that until Duluth City leaders find a way to address the
conflicting interests associated with the current proposal that ties
the Villas to the proposed hotel and golf course, it is no longer
appropriated for the DNR to put staff time into this proposal. I am,
therefore, suspending further action on the request until the City of
Duluth makes it clear that there is an agreement among city leadership
that a conversion request for the Spirit Mountain hotel and golf
course development project is the desire of both branches (Mayor and
City Council). Please
contact Joe Kurcinka (651-296-4789) if you have questions or comments
concerning this notification. Sincerely, c.c.
Charles Andresen, Chair, Spirit Mountain Recreation Authority
January 1, 2002
January 1, 2002 Joe
Kurcinka Dear
Mr. Kurcinka, Yesterday,
December 31, 2001, Duluth Mayor Gary Doty vetoed the Duluth City
Council’s rejection of the work permits for the proposed golf course
and condominium/hotel project at Spirit Mountain. As you are well
aware, this project lies on Land and Water Conservation Fund (LWCF)
protected lands, and as proposed, is illegal under this law. At
his press conference, the mayor acknowledged that the project was in
violation of the LWCF, yet chose to advance the project anyway, and
claimed that the city council (which had cited the LWCF compliance
issues as the main reason for denying the work permits) had
insufficient reason to withhold the permits. This, despite the fact
that Commissioner Garber had sent a clear, succinct message on
December 14 to the mayor outlining the facts of the situation, and the
consequences of non-compliance. The developers (on TV news) were
reported as saying now that they had these city work permits, it would
facilitate obtaining remaining permits (state and federal), and they
hoped to begin work on the project this spring. That
an elected official would have such a cavalier attitude toward
compliance with the law is troubling, and I bring it to your attention
because, so far, the DNR has seen the mayor as the “voice of
Duluth.” Yet the DNR, in this instance, is also the gatekeeper for
the sanctity of the LWCF. The Izaak Walton League views the DNR as an
ally in the protection and fair and legal application of the LWCF.
While the mayor and his staff give lip service to the compliance
issues, clearly they are willing to advance this project in spite of
the fact that in its present form it can not comply, despite the fact
that the “villa” issues are still unresolved, and against the
wishes of the city council. It
remains to be seen what the city council will now do. They may attempt
to overturn the mayor’s veto. It is also unclear whether or not the
mayor vetoed the city council’s rejection of the proposed “land
swap” (conversion request). Regardless
of what happens here in Duluth, the League respectfully requests:
In closing, I’d
also like to ask for the following information: ·
How does the DNR (or NPS)
determine which branch of local government speaks for a city when the
branches of that unit of government are so clearly divided, and how
did the DNR determine, in this instance, that it was the mayor of
Duluth?
We had hoped that
the city council’s rejection of the permits would clarify the LWCF
issue in that, once the compliance issues were resolved – and if
they were resolved in favor of the project – the developers could
have easily returned at that point and obtained the work permits.
However, the mayor has clouded the waters, and appears to be using the
work permits as a fulcrum to lever additional state and federal
permits, and a favorable LWCF decision. It is truly
unfortunate that the DNR, and the LWCF, have been caught up in this
maneuvering. It is no secret that the League has been opposed to this
project because of environmental issues – but it should also be no
secret that because of our long history with the LWCF, we also view
strict adherence to, and fair, legal application of this law, equally
important, no matter the outcome of this particular project. Although
we are not suggesting that the DNR has done otherwise in the past, we
are again urging you to be especially diligent in enforcing the law in
this instance. It seems clear that there are many project supporters
who see the law, and the city’s obligation to it, as a nuisance they
will try to dance around. Thank you for your
time, and we look forward to your reply to our questions. Sincerely, Michael Furtman Cc: Allen Garber
Dear Councilor Stenberg (Rob),
I just wanted to follow up with you on the votes last night at the
Duluth City Council meeting on Spirit Mountain, and to refute a
misstatement made by James Balogh, the developer's environmental
"expert."
First, I'm not writing to criticize your votes. I know that you vote
based on what you believe is best for the city. I have no qualms at
all with that. We must all pursue our convictions.
I do want to criticize you, however, on one point, because quite
frankly Rob, you surprised me last night. One of the things I always
thought I knew about you was that you were fair. However, your
comments last night (while you questioned Balogh) that cast
aspersions on the abilities of the Carol Reschke, the DNR forest
ecologist who prepared the agency's old growth assessment, were
uncalled for. Your winking and nodding with Balogh, and comments
that you, he and others understood the failings of this report
(and thus, of the public servant that prepared it), was really a
low blow. You did not -- nor did Balogh -- factually
dispute any particular point in the report. Instead you quite
publicly insinuated that her report was sub-par, yet gave
no reasons. Although it is not my place to demand an apology, I
suggest to you that you owe one to Ms. Reschke.
That you would question the performance of the MN DNR is
particularly interesting because you accepted everything that Balogh
said as accurate, when in fact, he made a grievous misstatement. You
didn't bother to ask me questions about the DNR temperature
data, even though I was the one who presented it, but you clearly
had it planned to let Balogh dispute it. Maybe that's because
you are so impressed with him (after all, you seemed particularly
enamored of him because HE wrote a book) and you stated how lucky we
are to have an expert of his caliber in the city. For the record,
I've written eight books on ecology, including one on the ecology of
trout.
As to the validity of Balogh's statements, you need to know that
when he stated that there was only one temperature collection
point in the tributary to Stewart Creek and that it is located
south (downstream) of the proposed golf course site, he was
wrong. Attached to this email is a digital photo I snapped
this morning of the map sent to me last week by the MN DNR. It
clearly shows that in recent years, there have been two data
collectors in the tributary. One is immediately downstream of
the proposed west nine holes, but was removed after compiling data
through 1998. The other is just west of the Russel Road, at the
north end of the property (I've marked them with red arrows). The
more northerly site has produced readings for the last two years.
Incredible as it may seem that the developer's expert didn't know
that this sensor has been in place for two years, it was even
more incredulous that he minimized the importance of the data
collected by the sensor he did acknowledge existed. Hydrologists
term the area in which the flow originates the recharge area;
where it erupts in the stream bed (or seeps, or springs) it is
called the discharge area, or groundwater outcrops.
That the water arrived at this sensor from within the area
of the proposed west nine holes, yet remained consistently cool,
actually confirms the importance of this upstream reach and
surrounding uplands to the system. Balogh should know this, and yet inferred
that because of the sensor's location, it's findings weren't
significant! In reality, in 1998, this location remained in the
optimal range for growth and survival of brook trout 79% of the
time, and never climbed to the point where it would stress trout or
cause mortality.
For the record, the other sensor (the one Balogh was
unaware of, and is located at tributary mile 0.5) took 2736
hourly readings from 6/13 to 10/4, 2001. In 2001, the data from the recorder
revealed water temperatures between 51.8 and 60.9 degrees F (the
optimal range for growth and survival of brook trout) 73% of the
time. At NO TIME did the temperatures enter the
range of thermal stress for brook trout. At NO TIME
did the temperatures reach the tolerable limit for brook trout. The
consistency of temperature also means that at no time was the sensor
exposed to air (in other words, it was always immersed in water). A
call to Area Fisheries Supervisor Deserae Hendrickson at the DNR
Fisheries office in French River this morning confirmed
that they can tell when a sensor has been exposed to air. They
are confident that these readings are accurate, and that yes, the
upstream thermometer actually does exist.
None of us have ever maintained that this tributary is a trout
stream. Nor have we said that parts of it don't appear dry at times.
However, the sensors prove that there is cool flow -- though it may
arrive at a sensor's location either above or below ground. But
the important point is that the consistency of temperature can
only happen if there IS flow. This tributary's significance is
not as trout habitat, but as a conduit to deliver cool water
downstream. It makes little difference whether the water flows on
the surface all the time, or sometimes disappears in places through fractures
or gravel (giving the appearance of a dry creek bed) on its way
to benefit trout habitat. No one who was truly an expert in stream
ecology would even question this.
I think we all know that the future of this project is much in
doubt. However, if the proponents continue to pursue it, the above
information will be important for you and other councilors to
understand. Considering the credibility you lent Balogh's
statements, and the considerable importance of this data should the
project continue, I am sure that you will want to make a public
correction at the next city council meeting. The good news is that
if this data becomes significant again, triggered by the
environmental review that would arise from the re-emergence of a
conversion request, that it will be experts at the MN DNR and
NPS who will be the ones to review it. I doubt that they would have the
same difficulty interpreting the data or referencing maps.
Feel free to share the map photo. The entire report is available
simply by calling Supervisor Hendrickson at the DNR Fisheries
office in French River (723-4680).
Mike Furtman
City Council Comments – Spirit Mtn. –
12/17/01 My name is Michael Furtman, and I’m here to
speak on behalf of the McCabe Chapter of the Izaak Walton League of
America regarding Spirit Mountain. Specifically, we urge you to deny approval of the
work permits and to reject the proposed “conversion” or land swap. As you know, the project as designed has been
ruled by the DNR as illegal under federal law because, for many
reasons, it does not comply with the Land and Water Conservation Fund
guidelines. The Commissioner of the DNR, Allen Garber, took
the unusual step of writing to the Mayor last week to clearly state
that: “although the city has initiated
actions in an attempt to address these issues, all materials have not
been received and consequently NO DECISIONS HAVE BEEN MADE BY THE DNR
OR NPS. As of today’s date (12/14) NO ISSUES HAVE BEEN RESOLVED.” Those issues are:
As you can see, this project is a long way from
complying with the law. As an example, the environmental review must
include ALL known environmental information, and be broader than the
EAW the developer completed two years ago. This means it must include the information of the
DNR’s own Forest Ecologist that the Planning Commission ignored. The
DNR tells me this information will be critical to the review. It will also have to include the recently
completed two years of stream monitoring data, collected hourly by
electronic data collectors that has proven what we’ve maintained and
which contradicts the developer’s expert’s modeling – that this
tributary has never run dry, and is a significant source of cold water
to Stewart Creek. The federal environmental review also requires a
complete analysis of alternative uses for the site – something that
has never been done, and which will take time to complete. I know we’re not here to discuss environmental
information. I present this only to show that the outcome of the new
environmental review could very well come to different conclusions
than the EAW done by the developer. Garber’s letter also clearly warned the city
that by advancing this project the city risks “becoming
responsible for replacement of all the land occupied and impacted by
the entire project.” The city also risks losing all future grants –
a tool that you must preserve for future Duluthians to use. Duluth is
second only to St. Paul in receipt and use of these monies, and has
two grants pending. Although I know you’re being told by the
administration that this lease is binding, the courts have already
ruled that it is not. In her ruling on the Spirit Mountain lawsuit a
year ago, Judge Heater Sweetland wrote on page 11: "The lease is
not binding; it merely protects Spirit Ridge from losing In other words, the developers have no grounds to
sue because the court has already ruled the lease is not binding. But
if you DO grant the permits, and should the project not be able to go
forward because of LWCF, the developer WILL have grounds to sue. As to whether or not denying these work permits
is arbitrary and capricious, we would suggest that should the
developer sue the city, the judge would surely back your decision to
deny the permits because the city can not knowingly issue work permits
for a project that has already been ruled to be in violation of
federal law. The truly arbitrary and capricious action would be to
grant permits for a project that is in violation of the law. Granting work permits for a project that may not come to pass, or may look significantly different if all these issues are resolved, is premature. It also increases the city legal liability – not decreases it. As for the land swap, it is paramount that the
council reject this now. The purpose of the LWCF is to ADD to the public
land base. While technically the developer’s land will become city
property, it will immediately be leased back to the developer, who
will control its future use. If the city is truly interested in a
“win-win” solution, it would look for replacement land that would
actually return some of the uses and values that will be lost to the
public if the golf course is built – not substitute land that will
become the very thing that they are opposing. This, in our opinion, is
an affront to the spirit of the LWCF. Conversion requests must be judged by the same
standards as new grant requests. In other words, would this conversion
stand the scrutiny of the NPS if were requesting federal funds to buy
this land and build this project? The answer is clearly “no.”
Chapter 660.5.4A(2) of the LWCF Grants Manual states that a
project should be considered “questionable, elaborate, or
borderline” with respect to the basic intent of the Act if
participation is limited “by a facility’s single purpose, short
season, cost of equipment, fee for participation or its limited
accessibility to the general public.” Since the proposed “swap” land will become a
part of the golf course, they are limited “by a single purpose”
“short season” “cost of equipment” and “fee for
participation.” A more viable – and likely to be approved
conversion “swap” would not be hindered by these limitations. For all of these reasons, we urge you to deny the
work permits, and reject this conversion request. Thank you for your time.
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MN
DNR Tells City it has