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Isle Royale Boaters Association
October 2000 Newsletter

In This Issue:

• NPS Stonewalling Ordered Stopped
• Judge Grants IRBA Motion Compelling Defendants to Answer Our Discovery Requests
• Finance Report
• IRBA Legislative Liaison Ticketed
• IRBA Fishing Lures - What’s Hot
• October Meeting in Duluth, MN

NPS Stonewalling Ordered Stopped
by Fred Bieti

In a recent fundraising letter to IRBA members we indicated to you that Federal Magistrate Judge Timothy Greely had ruled in IRBA’s favor and ordered the NPS to answer interrogatories produce documents being withheld since May of this year (see article below).

Now that the NPS has "complied" with the judge’s order the reasons for the NPS "stonewalling" have become very clear, confirming our suspicions.

First, we find that the NPS had been knowingly and deliberately holding back, under the guise of "Privileged Documents" the transcripts of the hearings by the Subcommittee on Parks and Recreation held in 1976 and 1973. These documents relate to the Legislation designating portions of Isle Royale a Wilderness Area, all public documents which clearly indicate the NPS has chosen to ignore that "Congressional Intent" in the recently adopted GMP. Statements taken from those "withheld" documents include:

Congressional Hearing Testimony - 1976
The statement of the Hon. Phillip E. Ruppe, United States Representative from the 11th Congressional District of the state of Michigan says:

It would also appear that the NPS withheld documents so as to prevent the IRBA from finding out about the fact that the NPS Director, at that time, confirmed the fact the waters of Lake Superior are open to navigation:

Congressional Hearing Testimony - 1973
June 4 & 5, 1973 - Hearings before the subcommittee on national parks and recreation of the committee on Interior and Insular Affairs, 93rd Congress, H.R. 4859 and H.R. 5462, Designation of Wilderness Areas, Part 2, Serial No. 93-5:

The Land Grab Issue
Documents pried loose by the judge’s order also confirm the "land grab" being attempted by the NPS, with the complicity of certain elite environmental groups. These released documents indicate that 1677 acres of Isle Royale lands were excluded from Wilderness designation in Congressman Ruppe’s final bill. These areas include, but are not limited to, Siskiwit Bay and McCargoe Cove. These areas are clearly designated nonwilderness. By redefining "zoning" these areas, i.e., removing the docks and implementing restrictions that reduce visitor use the NPS will claim these areas are no longer used, is there a chance to "grab" these areas and redefine them as candidates for "wilderness" designation?

That "Land Grab" is confirmed by GMP e-mails such as this:

It is a sad state of affairs citizen groups like IRBA must go to court to make the NPS bureaucrats keep their word and comply with Congressional intent. On the other hand, that right is precisely what makes this country great – and worth fighting for? For IRBA Congressional testimonies discussing more of the above issues go to http://www.isleroyale.org and click Congressional Testimony.

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Judge Grants IRBA Motion Compelling Defendants to Answer Our Discovery Requests
By Grant Merritt

On August 21, 2000, our attorney Grant Merritt argued before Federal Magistrate Judge Timothy P. Greeley in Federal Court in Marquette, MI that the National Park Service and the other defendants in our lawsuit had violated the law when they refused to answer the 25 interrogatory questions and 18 requests for documents. Fred and Betty Mae Bieti, Jim Markham, Tom Thornton and Grant's wife Marilynn were also present in the courtroom.

It did not take Judge Greeley long to decide that our motions were proper and that the defendants must be ordered to comply with our requests -- in other words, he decided in our favor from the bench. In the course of the oral argument Assistant U.S. District Attorney Glenda Gordon representing the defendants apologized to the Judge and "hoped this would not hurt her clients."

Just two days later on August 23rd, Judge Greeley supplemented his oral decision by issuing a formal written opinion that stated: "Clearly, the certification that the record is complete is inaccurate.... Since the record appears incomplete, discovery is appropriate. Discovery requests were made and no answers were served objecting to the interrogatories or to the request to produce.... I find that defendants have waived any objections to plaintiffs' discovery request, other than that certain documents may not exist."

We have now received detailed answers to our interrogatories and the documents that we requested.

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Finance Report
By John Kappler

Thus far the response to our call for help to bring the bank account back into the black has been very gratifying and appreciated. We have received $8,582 in new donations for the legal battle and $385 in new and current membership dues. While these contributions and dues were sufficient to bring the checking account into a black position, we still need those of you who have not participated to send in donations so we can cover current expenses plus repay the $10,000 loan we had to make last month. For our fiscal year beginning October 1, 1999, we have had the following results:

Based on the victory in Federal Court discussed elsewhere in this Newsletter, we should receive by court order a refund of all, or a portion of, the expenses associated with our attorney preparing the two motions and court hearing related to forcing the NPS to answer our interrogatories. However, we all know that the government works at a snail’s pace so we are uncertain as to how much of the bills will be approved by the judge for reimbursement and when we will finally receive payment.

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IRBA Legislative Liaison Ticketed
By Fred Bieti

On August 31, 2000, Fred Bieti was ticketed for "Use of permanently installed generator in area where prohibited" under Federal Law - 36 CFR 1.5 (a)(1).

In January, 2000 IRBA President Jim Markham messaged the Isle Royale National Park Superintendent asking what, if any, GMP actions would be implemented at Isle Royale. The Superintendent replied,

Remember, the GMP on page 37 states that if goals for "quiet" are not met, the NPS could create non-motorized areas through an amendment to the GMP.

In an effort to find out just what those "goals" for quiet are and test the authority of the NPS to implement such a restriction on "navigable waters," waters IRBA considers outside the jurisdiction of the NPS, some members decided to challenge the rule - at their own expense - thereby "fast tracking" the issue into Federal Court for an opinion. Legislative Liaison, Fred Bieti, P.E., after trying since June, and armed with his Radio Shack Model 33-2050 Sound Level Meter, was finally successful in receiving such NPS "recognition" and was ticketed on August 31, 2000. (More to come on the very interesting findings using the Sound Level Meter. Note that Fred is a P.E. - registered Professional Engineer - and quite familiar with the use of such instruments.)

Arraignment in front of Federal Magistrate Judge, Timothy Greeley is scheduled for October 19, and a tentative hearing date has been set for October 30.

The following is Mr. Bieti’s dissertation:

On August 31, 2000, at 1:55 PM two NPS Park Rangers approached our vessel, at Isle Royale National Park, while my wife and I were anchored in Duncan Bay, one of Lake Superior’s traditionally used, safe anchorages and issued us a ticket for "Use of permanently installed generator in area where prohibited." - 36 CFR 1.5 (a)(1).

The Ranger indicated we were within 1/4 mile of a campground and therefore in violation of the Park regulations which ban anchoring within the 1/4 mile distance with a generator running. Since the harbor is less than 1/2 mile wide where these traditional anchorages are located I noted that it is impossible to anchor more than 1/4 mile away since the campground used to determine the distance is located near the centerline of the harbor.

I thought, "Why would the NPS prohibit the use of a small, whisper quiet, permanently installed generator in an area where it is allowable to run two large marine propulsion engines totaling 700 horsepower? Where does the NPS get such authority to make such arbitrary decisions?"

As some of you may recall, on April 22, 1999, several IRBA representatives met with Superintendent Barnard regarding GMP issues, one of which was the use of on board generators. IRBA asked repeatedly for a definition of a "quiet" generator, i.e., a dB rating. The Superintendent, after a great deal of hesitation, responded by indicating that "quiet" means "not running." Also, recall the statement made in the Administrative record by the Chief ranger on banning generators: "We want to deal with it here so that we can draw a line in the sand as long as we've stirred up so much controversy anyway; if done in the GMP, we have the environmental side mobilized. Leaving such a critical issue to the WMP leaves open too great a risk that we wouldn't get as many non-generator docks as Doug and I believe we can in the GMP."

This past season the Isle Royale National Park Superintendent via fiat (a.k.a. the Superintendent’s Compendium) did issue the following ban which will, in fact, prevent many boating visitors from using traditional safe anchorage areas, shown in various cruising guides, at all, due to the fact that there is no possible way to safely anchor while observing the 1/4 mile rule, i.e., Duncan Bay, McCargoe Cove, Birch Island, Hay Bay, etc.

That prohibitive Superintendent’s dictate reads as follows:

The following text is taken directly from that Compendium: (edited for brevity)

I would point out here that the development of the Park Compendium must comply with certain requirements:

D. Development of the Requirements of the Superintendent's Compendium

As outlined above, the NPS has broad authority and responsibility to determine what types of uses and activities are appropriate in any particular National Park System area. The requirements of the Superintendent's Compendium are developed through an analysis and determination process. The decision criteria used during this process are:

• Is the use or activity consistent with the NPS Organic Act and NPS policy?
• Is the use or activity consistent with and compatible to the park's enabling legislation, management objectives, and corresponding management plans?
• Will the use or activity damage the park's protected natural and cultural resources and other protected values?
• Will the use or activity disturb or be in conflict with wildlife, vegetation, and environmental protection actions and values?
• Will the use or activity conflict with or be incompatible with traditional park uses and activities?
• Will the use or activity compromise employee or public safety?

Upon review of Section D, above, it would appear that the NPS fails to follow its own administrative guidelines and did not comply with many of the "Requirements of the Superintendent's Compendium". Where does the NPS get such authority to make such arbitrary decisions? We’ll find out – but IRBA needs your help to do it. Please support the IRBA with a contribution today.

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IRBA Fishing Lures - What’s Hot
By Dave Hand

Well, for most of us that fish the waters of Lake Superior around Isle Royale, another season has quickly come to an end. This past year many of us had the opportunity to use the fishing lures which our association sells as a promotional fund raising effort to support the ongoing law suit against the National Park Service. The lures are supplied by Creative Touch Tackle and the owners are David Dueland and Mickey Litwin both from the Duluth area. As I stated in a newsletter earlier this year, David and Mickey are constantly experimenting with different spoon designs and colors that they feel are the best for catching trout and salmon in the Lake Superior waters of Isle Royale. This past spring we received about 50 different varieties and colors of lures for our promotion. The bright colors, sparkle and color-combinations on many of the lures are so eye-catching that one would want to hang on their Christmas tree instead of using them for fishing. I think that was the intent of at least a dozen big lakers that decided that the 10-lb test line I was using was worth breaking instead of just being caught, photographed with a bunch of smiling fishermen, weighed and released. Anyway, here is a brief report I received from several of our members (including myself) that successfully used the IRBA lures.

The first report I received was from member Don Hannula of Lake Linden, MI who is retired and has plenty of time to fish. Don’s first report was from a fishing trip in mid May. He called me and said he caught 20 of 22 fish on the "fire tiger" lure (N4-11 or N3-11). Later Don reported that on Memorial weekend, Don caught 17 out of 21 fish on the same lure and on Labor Day, fishing in the fog and waves, he caught 7 of 7 on the same lure. The fire tiger lure works for Don.

During the IRBA annual island meeting, several members reported success using the yellow needle-nosed lure with red spots (N4-24). In fact, one member reported that a huge laker broke the hook off the lure. My boat had much success with this lure. In fact, during the first week in August, my fishing crew and I caught and released 147 lakers (with the exception of 10 fish that went in the frying pan). Thirty-nine of those fish were caught on this lure. Mickey Litwin also reported that on the last evening of his fishing trip to the island, he caught 9 dandy redfin lakers and 5 were caught on this same lure (N4-24).

It seems as though the hottest IRBA lures for the island this season were the fire-tiger lure (N4-11 or N3-11) and the yellow needle-nose lure with red spots (N4-24). We still have those lures in stock if you would like to purchase them. In the next few months we hope to post pictures of the lures and their numbers on the web so you can pick and choose the ones you want. The lures cost $ 5.00 each of which $ 2.50 goes to the legal fund. If you would like to purchase some lures please send in your order to IRBA P.O. Box 97, Houghton, MI. 49931 and we will promptly fill your order.

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October Meeting Scheduled in Duluth, MN
By Dave Hand

The next monthly IRBA meeting will be held at the Holiday Inn in Duluth, MN on October 25th 2000 at 7:00pm. This meeting is intended to inform the members on the west end of Lake Superior of the present IRBA activities and gives them an opportunity to provide valuable input to the organization. Hope to see you there!

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