These appeals arise from three consolidated cases involving multiple challenges to provisions of the Boundary Waters Canoe Area Wilderness Act of 1978, Pub.L.No. 95-495, 92 Stat. 1649 (BWCAW Act or the Act). On cross motions for summary judgment, the United States District Court for the District of Minnesota upheld all portions of the Act.1 National Association of Property Owners v. United States, 499 F. Supp. 1223 (D.Minn.1980). In this opinion, we will consider separately two groups of appeals. In Case No. 1, appellants allege that Congress unconstitutionally applied federal controls on the use of motorboats and snowmobiles to land and waters not owned by the United States. In Case No. 2, appellants assert that certain provisions of the legislation violate the Constitution and conflict with preexisting treaties and statutes.

The State of Minnesota, joined by the National Association of Property Owners (NAPO) and numerous individuals, businesses, and organizations,2 brought suit against the United States, challenging the constitutionality of the BWCAW Act as applied to lands and waters that the federal government does not own. A group of organizations concerned with the environmental and wilderness aspects of the boundary waters intervened in support of the United States.3

The challenged portion of the statute,4 section 4, prohibits the use of motorboats in the BWCAW in all but a small number of lakes. The Act also limits snowmobiles to two routes. The United States owns ninety percent of the land within the borders of the BWCAW area. The State of Minnesota, in addition to owning most of the remaining ten percent of the land, owns the beds of all the lakes and rivers within the BWCAW.

Appellants assert that Congress had no power to enact the motor vehicle restriction as applied to nonfederal lands and waters. We reject this contention and conclude that Congress, in passing this legislation, acted within its authority under the property clause of the United States Constitution and that such action did not contravene the tenth amendment of the Constitution. Accordingly, we affirm.I. Background.

The Boundary Waters Canoe Area Wilderness (BWCAW), a part of the Superior National Forest, consists of approximately 1,075,000 acres of land and waterways along the Minnesota-Canadian border. A sponsor of this legislation described the area in introducing the BWCAW Act on the House floor:

The Boundary Waters Canoe Area is the largest wilderness area east of the Rocky Mountains and the second largest in our wilderness system. It is our Nation's only lakeland canoe wilderness a network of more than 1,000 lakes linked by hundreds of miles of streams and short portages which served as the highway of fur traders who followed water routes pioneered by Sioux and Chippewa Indians. Despite extensive logging, the BWCA still contains 540,000 acres of virgin forests, by far the largest such area in the eastern United States.

This last remnant of the old "north-woods" is remarkable not only for its lakes and virgin forests, but also for its wildlife. * * * (M)any western wilderness areas lack such complete food chains. This natural ecosystem is a valuable educational and scientific resource; it has been the focal point of important research in wildlife behavior, forest ecology, nutrient cycles, lake systems, and vegetation history.

The BWCA is complemented on the Canadian side of our border by the Quetico Provincial Park of Ontario where commercial logging and nearly all motorized recreational activity are prohibited. Together, these areas encompass an area the size of Yellowstone National Park and constitute one of the finest wilderness areas on our continent. Not surprisingly, the BWCA is the most heavily used unit in the national wilderness system, drawing people from throughout the country who seek the solitude of a wilderness experience. (123 Cong.Rec. H621-22 (daily ed. Jan. 31, 1977), reprinted in Legislative History of the Boundary Waters Act of 1978, at 1-2.)

Beginning with the federal government's first reservation of forest land in 1902,5 up to the present, both the United States and the State of Minnesota have sought to protect the boundary waters area.6 Increasingly through the century, the governments have sought to preserve the primitive character of the area.7 These efforts resulted in the designation of the boundary waters as part of the national wilderness system established under the Wilderness Act of 1964, as amended, 16 U.S.C. §§ 1131-36 (1976).

The Wilderness Act of 1964 prohibited use of motorized vehicles in any national wilderness area. That Act, however, provided a specific exception for the Boundary Waters Canoe Area:Other provisions of this chapter to the contrary notwithstanding, the management of the Boundary Waters Canoe Area * * * shall be in accordance with regulations established by the Secretary of Agriculture in accordance with the general purpose of maintaining, without unnecessary restrictions on other uses, including that of timber, the primitive character of the area, particularly in the vicinity of lakes, streams, and portages: Provided, That nothing in this chapter shall preclude the continuance within the area of any already established use of motorboats. (16 U.S.C. § 1133(d)(5) (1976).)8

In response to the confusion and litigation generated by the proviso, as well as in reaction to threatened deterioration of the wilderness from excessive use, Congress enacted the Boundary Waters Canoe Area Wilderness Act of 1978. At issue here are portions of section 4 of the Act, the provision barring the use of motorized craft in all but designated portions of the wilderness.9 Section 4(c) limits motorboat use to designated lakes and rivers, allowing a maximum of either ten or twenty-five horsepower motors on these waters. Section 4(e) permits certain limited mechanized portages. Section 4(e) restricts the use of snowmobiles to two designated trails.10 With these exceptions, the Act as construed by the federal government and by the district court, prohibits all other motorized transportation on land and water falling within the external boundaries of the wilderness area.11

The boundaries of the BWCAW circumscribe a total surface area of approximately 1,080,300 acres 920,000 acres of land and 160,000 of water. The United States owns approximately 792,000 acres of land surface, while the State of Minnesota owns approximately 121,000 acres of land,12 in addition to the beds under the 160,000 acres of navigable water. See National Association of Property Owners v. United States, supra, 499 F.Supp. at 1253. Congress recognized that Minnesota would retain jurisdiction over the waters, but provided that the State could not regulate in a manner less stringent than that mandated by the Act.13

Minnesota brought this action14 against the United States on December 27, 1979, challenging the application of section 4 to land and waterways under state jurisdiction that fall within the boundaries of the BWCAW. The district court rejected the State's claim, holding that section 4, as applied to nonfederal property, constituted a valid exercise of Congress' legislative power under the property clause of the United States Constitution. National Association of Property Owners v. United States, supra. 499 F.Supp. at 1261.

On appeal, Minnesota and the intervening plaintiffs renew their assertions (1) that Congress acted in excess of its authority under the property clause by curtailing the use of motor-powered boats and other motorized vehicles on lands and waters not owned by the United States; and (2) that the tenth amendment of the United States Constitution bars the application of section 4 to "state-owned" lands and waters.15

II. Property Clause.

The property clause provides: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *." U.S.Const. art. IV, § 3, cl. 2. In a recent unanimous decision, the Supreme Court upheld an expansive reading of Congress' power under the property clause. See Kleppe v. New Mexico, 426 U.S. 529, 96 S. Ct. 2285, 49 L. Ed. 2d 34 (1976).16 The Court concluded that

the Clause, in broad terms, gives Congress the power to determine what are "needful" rules "respecting" the public lands. * * * And while the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that "(t)he power over the public lands thus entrusted to Congress is without limitations." (Id. at 539, 96 S. Ct. at 2291.)

With this guidance, we must decide the question left open in Kleppe the scope of Congress' property clause power as applied to activity occurring off federal land. Without defining the limits of the power, the Court in Kleppe, relying on its decision in Camfield v. United States, 167 U.S. 518, 17 S. Ct. 864, 42 L. Ed. 260 (1897), acknowledged that "it is clear the regulations under the Property Clause may have some effect on private lands not otherwise under federal control." 426 U.S. at 546, 96 S.Ct. at 2295. In Camfield, the Court concluded that Congress possessed the power to control conduct occurring off federal property through its "power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed solely to (the public lands') own protection." Camfield v. United States, supra, 167 U.S. at 526, 17 S. Ct. at 867.17

Under this authority to protect public land, Congress' power must extend to regulation of conduct on or off the public land that would threaten the designated purpose of federal lands.18 Congress clearly has the power to dedicate federal land for particular purposes. As a necessary incident of that power, Congress must have the ability to insure that these lands be protected against interference with their intended purposes. As the Supreme Court has stated, under the property clause "(Congress) may sanction some uses and prohibit others, and may forbid interference with such as are sanctioned." McKelvey v. United States, 260 U.S. 353, 359, 43 S. Ct. 132, 135, 67 L. Ed. 301 (1922) (emphasis added).

This court has previously held that Congress, under the property clause, could prohibit hunting on waters within the boundaries of the Voyagers National Park in Minnesota, even though the waters were subject to state jurisdiction. United States v. Brown, 552 F.2d 817, 821 (8th Cir.), cert. denied, 431 U.S. 949, 97 S. Ct. 2666, 53 L. Ed. 2d 266 (1977). In Brown, the purpose of the challenged regulations extended beyond the mere protection of the federal land from physical harm. This court, in effect, affirmed the district court's approval of the regulations as necessary because "hunting on the waters in the park could 'significantly interfere with the use of the park and the purposes for which it was established.' " Id. at 822 (emphasis added).19

Having established that Congress may regulate conduct off federal land that interferes with the designated purpose of that land, we must determine whether Congress acted within this power in restricting the use of motorboats and other motor vehicles in the BWCAW. In reviewing the appropriateness of particular regulations, "we must remain mindful that, while courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the judgment of Congress." Kleppe v. New Mexico, supra, 426 U.S. at 536, 96 S. Ct. at 2290. Accord, United States v. San Francisco, 310 U.S. 16, 29-30, 60 S. Ct. 749, 756, 84 L. Ed. 1050 (1940); United States v. Brown, supra, 552 F.2d at 822. Thus, if Congress enacted the motorized use restrictions to protect the fundamental purpose for which the BWCAW had been reserved, and if the restrictions in section 4 reasonably relate to that end, we must conclude that Congress acted within its constitutional prerogative.

Congress passed the BWCAW Act with the clear intent of insuring that the area would remain as wilderness and could be enjoyed as such.20 Specifically concerning the motor use regulations, Congressman Fraser, in introducing the 1978 Act, stated:

The bill has four major thrusts. First, and most important, it seeks to end those activities that threaten the integrity of the BWCA's wilderness character by expressly prohibiting the following uses:

Recreational uses of motorized watercraft and snowmobiles * * *.

(123 Cong.Rec. H621 (daily ed. Jan. 31, 1977), reprinted in Legislative History of the Boundary Waters Act of 1978, at 1.)

Congress based its conclusions on certain statutory findings:

SECTION 1. The Congress finds that it is necessary and desirable to provide for the protection, enhancement, and preservation of the natural values of the lakes, waterways, and associated forested areas known (before the date of enactment of this Act) as the Boundary Waters Canoe Area, and for the orderly management of public use and enjoyment of that area as wilderness, and of certain contiguous lands and waters, while at the same time protecting the special qualities of the area as a natural forest-lakeland wilderness ecosystem of major esthetic, cultural, scientific, recreational and educational value to the Nation. (92 Stat. 1649.)

Hearings and other evidence provided ample support for Congress' finding that use of motorboats and snowmobiles must be limited in order to preserve the area as a wilderness. Testimony established that the sight, smell, and sound of motorized vehicles seriously marred the wilderness experience of canoeists, hikers, and skiers and threatened to destroy the integrity of the wilderness.21

As a result of considerable testimony and debate and a series of compromises, Congress enacted section 4 in an attempt to accommodate all interests, determining the extent of motorized use the area might tolerate without serious threat to its wilderness values.22

The motor use restrictions form only a small part of an elaborate system of regulation considered necessary to preserve the BWCAW as a wilderness.23 The United States owns close to ninety percent of the land surrounding the waters at issue. Congress concluded that motorized vehicles significantly interfere with the use of the wilderness by canoeists, hikers, and skiers and that restricted motorized use would enhance and preserve the wilderness values of the area. From the evidence presented, Congress could rationally reach these conclusions. We hold, therefore, that Congress acted within its power under the Constitution to pass needful regulations respecting public lands.24

III. Tenth Amendment.

Appellants assert that application of the motorized use restrictions to land and waters under state jurisdiction violates the limitation on Congress' power imposed by the tenth amendment.25 We hold that the amendment presents no such bar.

In Hodel v. Virginia Surface Mining & Reclamation Association, Inc., --- U.S. ----, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981) (hereinafter Virginia Surface Mining), the Supreme Court articulated the test to be applied to tenth amendment challenges brought under the rationale of National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976).26 The Court, in holding that environmental regulations of surface mining did not interfere with state police power, stated that a tenth amendment claim must satisfy three requirements:

First, there must be a showing that the challenged statute regulates the "States as States." Second, the federal regulation must address matters that are indisputably "attributes of state sovereignty." And, third, it must be apparent that the States' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional functions." (Hodel v. Virginia Surface Mining & Reclamation Association, Inc., supra, 101 S.Ct. at 2366 (citations omitted).)

Appellants' challenge under the tenth amendment cannot be sustained. The restrictions on motorboats and snowmobiles do not regulate "States as States," thus appellants' claim fails to satisfy the first requirement of the Virginia Surface Mining test.

between congressional regulation of private persons and businesses "necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside," and federal regulation "directed not to private citizens, but to the States as States(.)" As to the former, we found no Tenth Amendment impediment to congressional action. (Id. at 2365 (citations omitted).)

The restrictions at issue here regulate the activities of private individuals. In prohibiting motorized vehicles in the BWCAW, Congress acted to regulate private conduct both on and off federal land, as necessary to protect that federal land.

The State argues that the motorized use restrictions interfere with its traditional role of regulating the waterways within the boundary waters.27 The Supreme Court rejected a similar argument in Virginia Surface Mining and affirmed Congress' power under the commerce clause to displace the state's traditional police power of regulating land use. As the Court stated,

(a)lthough such congressional enactments obviously curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result. (Id. at 2367.)

The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers. * * * It would therefore be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. (Id. at 2368.)

Appellants argue that the state "ownership" of the waters28 distinguishes this case from the typical one. The state, however, does not "own" the water within its borders in the same manner as it owns the land under those waters. Rather, as an aspect of sovereignty, the state has the power to control the use of those waters for the benefit of the public.29 This authority, like any other state police power, however, must yield to any valid exercise of federal power.

To a significant degree, Congress recognized and demonstrated its respect for state sovereignty throughout the Act.30 Section 15, especially, permits the state to exercise its traditional jurisdiction over the waters as long as state regulation is not less strict than federal regulation.

We conclude that the statute withstands the National League of Cities/Virginia Surface Mining test. The restrictions on the use of motorboats and snowmobiles regulate only private conduct, and not the state itself. The state retains broad jurisdiction over conduct occurring on state lands and waterways. We conclude, therefore, that the tenth amendment presents no bar to these restrictions.

In case two, we consider appeals from two consolidated lawsuits brought by the National Association of Property Owners (NAPO) against the United States and the Secretary of Agriculture.31 NAPO was joined, in part, by a group of local individuals and organizations,32 Campbell's Cabins and Trading Post, Ltd., and the Lac La Croix Indian Band, as well as the State of Minnesota as intervenor. The Sierra Club intervenors joined in support of the United States.33

The factual history of the Boundary Waters Canoe Area and the 1978 Act has been detailed in case one. The legal issues on appeal will be divided according to appellants' three primary contentions. First, appellants allege that section 5 of the Act, which gives the United States a right of first refusal in certain property in the area, violates the takings clause and the due process clause of the fifth amendment. Second, appellants allege that, as applied to waters along the international border, the Act conflicts with two treaties between the United States and Canada, and that, by its own terms, the Act cannot be enforced. Third, appellants assert that the Act cannot be implemented until the Secretary of Agriculture files an environmental impact statement. We conclude that appellants' claims cannot be sustained, and, therefore, we affirm.

I. Section 5 Challenge.

Under section 534 of the BWCAW Act the United States has specific obligations and rights concerning lands in or near the boundary waters. Section 5(a) provides that resort operators on designated lakes may require the federal government to purchase their resorts for the fair market value. Section 5(c) grants the United States the right of first refusal on all other property riparian to the lakes listed in section 5(a), once the United States has purchased a resort under the terms of that section.

NAPO, the Local Appellants, and the State of Minnesota appeal the district court's decision upholding section 5(c) of the Act. Specifically, the parties assert (1) that section 5(c) represents an unconstitutional taking of property without just compensation; (2) that section 5(c) constitutes an unconstitutional delegation of legislative authority to private citizens; and (3) that section 5(c) should be read to apply only to land within the external boundaries of the BWCAW.35

A. Fifth Amendment Taking.

Appellants assert that section 5(c), by establishing in the federal government a right of first refusal on designated property, constitutes a "taking" of property without just compensation. The Local Appellants claim that the statute in and of itself creates a cloud on the title of any property affected, and that the one hundred-day waiting period especially serves to diminish the value of the land by deterring potential buyers. Minnesota argues that the statute automatically creates an option in real property and, therefore, "takes" private property without compensation.

The Supreme Court recently reiterated its reluctance to rule on a challenge to the constitutionality of a statute on its face, particularly a claim alleging an unconstitutional taking of property. Hodel v. Virginia Surface Mining and Reclamation Association, --- U.S. ----, ---- - ----, 101 S. Ct. 2352, 2369-70, 69 L. Ed. 2d 1 (1981). The Court stated:

"(T)his Court has generally 'been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the 'taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors such as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government action that have particular significance." Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S. Ct. 383, 390, 62 L. Ed. 2d 332 (1979) (citations omitted).

These "ad hoc, factual inquiries" must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances. (Id. at 2370.)

Like the Court in Virginia Surface Mining, we have before us no challenges to the actual application of section 5(c) to particular parcels of land.36 We may consider, therefore, only whether section 5(c) on its face constitutes an unconstitutional taking. Relying on the Supreme Court's opinion in Andrus v. Allard, 444 U.S. 51, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979), we conclude that it does not.

In Allard, plaintiffs challenged the Secretary of the Interior's interpretation of the Eagle Protection Act and the Migratory Bird Treaty Act, which applied the Acts' prohibitions to birds lawfully captured prior to the effective dates of the Acts. Specifically, the regulations at issue stated that birds, their parts, eggs, or nests lawfully acquired "may not be imported, exported, purchased, sold, traded, bartered, or offered for purchase, sale, trade or barter * * *." Id. at 54, 100 S.Ct. at 321. The Supreme Court recognized that this regulation could substantially affect the value of this property and its potential for profit, but concluded that compensation was not necessarily required. The Court held that "the simple prohibition of the sale of lawfully acquired property in this case does not effect a taking," id. at 67-68, 100 S.Ct. at 328 (emphasis added), reasoning:

The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full "bundle" of property rights, the destruction of one "strand" of the bundle is not a taking, because the aggregate must be viewed in its entirety. (Id. at 65-66, 100 S. Ct. at 327.)

In our view, the mere conditioning of the sale of property, as done with section 5, similarly cannot rise to the level of a taking. Even if some diminution in value results from the passage of section 5(c), any affect on the landowner's aggregate property rights would be minimal. Section 5(c) does not interfere with the owner's use or enjoyment of his property; it does not compel the surrender of the land or any portion thereof; it does not affect the owner's ability to give his property or to transfer it in any manner to members of his immediate family. Section 5(c) may affect slightly an owner's ability to alienate property, but it has little effect on even that "strand" in the bundle of property rights.37 We hold, therefore, that section 5(c), on its face, does not unlawfully take property in violation of the fifth amendment.38

B. Unconstitutional Delegation.

NAPO and Minnesota assert that section 5(c) constitutes an unconstitutional delegation of legislative authority to a private individual. They argue that, because the right of first refusal arises only after a resort owner demands that his land be purchased under section 5(a), Congress unlawfully delegated legislative power to resort owners. We reject this assertion.

The case law relied on by appellants does not support their position. In those cases, private individuals possessed the power to limit owners' use of their own property. For example, in Eubank v. Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156 (1912), under the challenged ordinance, owners of two-thirds of the property in an area, at their discretion and without standards, could set the building line for the rest of the property in their area. The Court invalidated the regulation, because

(o)ne set of owners determine(s) not only the extent of use but the kind of use which another set of owners may make of their property. * * * The statute and ordinance (confer) the power on some property holders to virtually control and dispose of the proper rights of others * * *. (Id. at 143, 33 S. Ct. at 77.)39

Section 5 grants no power to one set of landowners to control either the extent or kind of use that others may make of their own property. Rather, Congress legitimately established a property regulation, the right of first refusal, and merely delayed its implementation until the occurrence of a contingency that Congress determined would make the regulation necessary. See Currin v. Wallace, 306 U.S. 1, 16, 59 S. Ct. 379, 387, 83 L. Ed. 441 (1939). Congress itself established the restrictions affecting the property and gave no one discretionary power over neighboring landowners. Resort owners may choose whether to require the government to buy them out, but this right relates only to the resort owners' property. We conclude, therefore, that Congress delegated no legislative power to private individuals.

C. Application to Lands External to the BWCAW.

Minnesota asserts that section 5(c), when properly construed, should apply only to lands within the boundaries of the BWCAW. Such an interpretation, however, conflicts with plain language of the statute. Section 5(c) applies to any privately owned property on lakes listed in 5(a), making no distinction between land inside or outside of the BWCAW. Further, two of the lakes mentioned Jasper Lake and Ojibway lie entirely outside the BWCAW boundaries, so that their inclusion in section 5(c) necessarily implies that Congress intended the section to apply to lands outside the boundary waters area.

The State maintains that the plain language should be construed to apply to property only within the BWCAW because Congress provided no authorization to acquire land outside the boundary waters area. Minnesota argues that, because 5(c) contains no authorization to acquire lands, reference must be made to section 7(d)(1), which limits acquisition to land within the BWCAW. We believe, however, that section 5(c) when read with section 5(d), which authorizes funds to acquire lands as provided by section 5, grants independent authority to acquire property.40 Thus, we conclude that section 5(c) applies to all lands riparian to the lakes listed in 5(a), whether inside or outside the boundaries of the BWCAW.

II. Canadian-United States Treaties.

The Local Appellants assert that section 4 of the Act, limiting the use of snowmobiles and motorboats in the BWCAW, cannot be enforced on the waters along the international boundary because the restrictions conflict with two treaties between the United States and Canada, the Webster-Ashburton Treaty of 1842, 8 Stat. 572, and the Root-Bryce Treaty of 1909 (Boundary Waters Treaty), 36 Stat. 2448. The Lac La Croix Indian Band and Campbell's Cabins and Trading Post, Ltd., also raise the conflict between the motor use restrictions and the Root-Bryce Treaty.

Appellants assert that both Treaties, by guaranteeing that the border waterways remain "free and open," grant individuals the right to engage in commerce in those waters and that the limit on motorboat use interferes with this right by preventing individuals from engaging in commerce. They argue that the restrictions cannot be applied to the waters along the international boundary because section 17 of the Act41 operates as a saving clause, in effect voiding any section of the Act that conflicts with any treaty. The district court held that the provisions of the BWCAW Act are consistent with both treaties.42 National Association of Property Owners v. United States, supra, 499 F.Supp. at 1251, 1272. We agree.

A. The Webster-Ashburton Treaty.

The Local Appellants assert rights arising from article II of the Webster-Ashburton Treaty:

It being understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the citizens and subjects of both countries. (8 Stat. 574.)This section, however, does not preclude the governments of both Canada and the United States from enacting reasonable regulations affecting commerce along the waterways, as long as the regulations apply equally to citizens of both countries. As the Assistant Secretary of State wrote in response to questions about the effect of the Treaty on the Act,

(w)e believe that the intent of the "free and open" provision for these waters was to ensure that this important route remained open, on an equal basis, to the nations of both countries. It would not be correct, however, to interpret "free and open" so broadly as to prohibit either United States or Canadian authorities from imposing any limitation upon the manner in which such waterways and portages may be used. In agreeing to free and open use of these waterways and portages, neither party intended to relinquish its sovereign role of imposing statutory limitations on behavior which would not be in the best interest of the respective country. (National Association of Property Owners v. United States, supra, 499 F.Supp. at 1234.)43

Looking to the restrictions at issue, we conclude that they fall within the United States' retained sovereign power to regulate conduct on the waterways.

We are influenced by Canada's and the United States' determination of their powers under the Treaty. As the Supreme Court has explained, where ambiguities exist in a treaty "it is appropriate that we should look to the practical construction which has been placed upon it." Pigeon River Improvement, Slide and Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 158, 54 S. Ct. 361, 366, 78 L. Ed. 695 (1934).44 By enacting section 17 of the Act along with section 4, Congress clearly indicated its belief that the Webster-Ashburton Treaty did not inhibit its power to preclude motor use along the international boundary.45 Canada, as well, through the Province of Ontario, similarly banned motor use of the waterways along much of the border, indicating its view that the Treaty permits each party to evenhandedly restrict use of motorboats on their side of the border.

This practical interpretation, given by the parties to the Treaty, is a reasonable one. We conclude, therefore, that the Webster-Ashburton Treaty does not conflict with section 4 of the BWCAW Act.

B. Root-Bryce Treaty.

Appellants make a similar argument with respect to the Boundary Waters Treaty of 1909. Article I of the Root-Bryce Treaty provides:

The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries.46 (36 Stat. 2449.)

Appellants argue that the Treaty, by guaranteeing that the waters "shall forever continue free and open for the purposes of commerce * * *," provides an independent guarantee of free and open navigation, beyond insuring nondiscriminatory regulation. Assuming that such a guarantee exists, we nonetheless conclude that the motor use restrictions fall within Congress' retained power to regulate commerce along the boundary waters.

As with the Webster-Ashburton Treaty, Congress had the 1909 Treaty before it and enacted section 4 along with section 17, indicating its belief that the Act fell within its power to regulate commerce in a manner "not inconsistent with the privilege of free navigation" guaranteed by the Treaty. Ontario, as well, by banning motor use on its border waterways, indicated its interpretation of the 1909 Treaty as not prohibiting such regulation. We cannot find such a construction arbitrary or unreasonable.

The Treaty allows sovereign states the flexibility to reasonably regulate commerce along the international borders. Although neither may completely close down intercourse between the countries, each has a wide latitude in regulating conduct in the area. Construing the action of Congress in 1978 in harmony with the Treaty of 1909, we conclude that the motor use restrictions fell within the United States' power, retained under the Treaty, to pass regulations consistent with free navigation.

III. Environmental Impact Statement.

NAPO asserts that the district court erred in failing to enjoin the implementation of sections 4 and 5 until the Secretary of Agriculture files an Environmental Impact Statement (EIS) as required under section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C) (1976). The district court concluded that the Secretary need not file an EIS.

NAPO's argument rests on a basic misconception about the events necessary to trigger the requirements of NEPA. Section 102(2)(C) mandates that

all agencies of the Federal Government shall

(C) include (an EIS) in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment * * *. (42 U.S.C. § 4332(2)(C).)

For an EIS to be required, some future federal action, on which an EIS may have some effect, must be anticipated. The motorboat restrictions, however, do not contemplate any such action. These regulations automatically went into effect on January 1, 1979, by force of the Act itself. The Secretary had no discretion or power to circumscribe, delay, or expand the motorboat restrictions. Because the Secretary has no discretion to act, no purpose can be served by requiring him to prepare an EIS, which is designed to insure that decisionmakers fully consider the environmental impact of a contemplated action. See State of South Dakota v. Andrus, 614 F.2d 1190, 1193 (8th Cir.), cert. denied, --- U.S. ----, 101 S. Ct. 80, 66 L. Ed. 2d 24 (1980). See also Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S. Ct. 2335, 2337, 60 L. Ed. 2d 943 (1979); Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1300 (8th Cir. 1976) (en banc), cert. denied, 430 U.S. 922, 97 S. Ct. 1340, 51 L. Ed. 2d 601 (1977).

NAPO, in reality, challenges the Act itself. The passage of an act of Congress, however, does not create an obligation to prepare an EIS, despite any significant environmental impact resulting from the legislation. NAPO would have the court impose an EIS requirement on Congress itself. Congress has not imposed such an obligation. We have no power to do so.47

Affirmed.