By approving a cell tower at Old Faithful, Yellowstone officials:
- Ignored the clearly-stated view of Congress that use of Yellowstone National Park for a cell tower would be "contrary to environmental, conservation, and public safety laws";
- Flouted the directive of Congress that the public be able to "participate fully and comment on" any proposal for a telecommunications facility in a national park;
- Failed to comply with at least three Federal laws (the National Environmental Policy Act; the National Historic Preservation Act; and the National Park Service Organic Act); and
- Disregarded the National Park Service's own comprehensive procedures and policies on wireless facilities that had been drafted with public input.
Here are the specifics:
1. Violation of Duty to Conserve the Scenery (the NPS Organic Act of 1916)
The first obligation of the National Park Service is to "conserve the scenery" and leave each park "unimpaired." How is the Old Faithful cell tower, visible from throughout much of the Historic District (as the park admits in the Environmental Assessment), consistent with this mandate?
Old Faithful is the symbolic heart of the National Park System. If a tower can be placed within sight of that precious icon, is there any square inch of American soil that is off-limits?
2. Flouting the Instructions of Congress
The Congressional committee that added the cell tower provision to the Telecommunications Act made clear that they did not want any cell towers built in Yellowstone National Park, and certainly not one so clearly visible in the scenic heart of the park.
Section 704(c) of the Telecommunications Act of 1996 opened the door to cell towers on Federal lands by directing that procedures be drafted "by which Federal departments and agencies might make Federal lands available for the placement of new telecommunication services." Section 704(c) was offered as an amendment to the House bill by Rep. Scott Klug (R-WI) and approved by voice vote on May 17, 1995. Exactly what was intended by Rep. Klug (and the rest of the Republican majority on the Commerce Committee) was made clear when the Committee issued its report on the bill (H.R. 1555) in July 1995. Here's what they said:
"The Committee recognizes, for example, that use of the Washington Monument, Yellowstone National Park or a pristine wildlife sanctuary, while perhaps prime sites for an antenna and other facilities, are not appropriate and use of them would be contrary to environmental, conservation, and public safety laws."
These are the words of the Committee that added the cell tower provision to the bill, and they cannot be ignored. No other statements about the provision were made. The Committee was saying that they supported the idea of cell towers on some Federal lands, but did not want them everywhere, and specifically not in Yellowstone National Park.
Given this specific mention of Yellowstone National Park in the legislative history of the Telecommunications Act, Yellowstone officials should have rejected any proposal for a tower at Old Faithful. Instead, they chose to proceed, and did so in a manner that unlawfully excluded the public.
3. Shutting Out the Public
Congress directed the National Park Service (and other agencies) to ensure maximum public involvement with cell tower proposals, but with the Old Faithful cell tower proposal, there was essentially no public involvement at all.
In the Conference report on FY 1997 Interior Department appropriations (H.R. 3610), Congress made clear how important public involvement would be in deciding where to place telecommunications facilities on Federal land:
"The Fish and Wildlife Service, the National Park Service and the Forest Service should promulgate rules which ensure that the public has the opportunity to participate fully and comment on the issuing of permits, rights-of-way or easements for any telecommunications facility placed in any unit of the National Refuge System, the National Park System or the National Forest System."
The Park Service complied with this Congressional directive by enacting Director's Order 53A (December 1997) and Reference Manual 53Wireless Telecommunication Facilities (July 1999), but these orders and guidelines were ignored by Yellowstone officials, in the following ways:
- There was no Federal Register notice at the application stage: Park officials were required (under Director's Order #53A) to place a notice in the Federal Register in June 1998 when they received an application for a cell tower at Old Faithful. A Federal Register notice was drafted for Superintendent Finley's signature, but was never submitted for publication.
- There was no Federal Register notice or newspaper notification when the Environmental Assessment was completed: The Park Service's own manual provides specific instructions on how to proceed with a proposal for a cell tower (see RM53Wireless Telecommunication Facilities). At the Environmental Assessment stage, a notice must be placed in the Federal Register and notices placed in newspapers, but these provisions were also ignored. Just one member of the public found out about the EA, and submitted comments against the tower.
- There was little or no effort to reach possible opponents: Yellowstone officials ignored their own NEPA Compliance Guideline (NPS-12). That document requires officials to determine "the best method to reach the affected public, with emphasis placed on interested groups and individuals, including those likely to be opposed to one or more alternatives." There is no evidence that the park made any attempt to reach groups and individuals "likely to be opposed" to a cell tower at Old Faithful, though it would have been easy for them to do so.
Total public involvement on the Old Faithful cell tower proposal: 1 comment received (plus four from government agencies). Contrast this with the public involvement in Yellowstone's snowmobile controversy: 300,000+ comments received by park officials.
4. Violation of the National Historic Preservation Act
Park officials were required to consult with Wyoming's State Historic Preservation Office, and did so in 1999. Here's the proposal State officials approved: "... a monopole tower at a height of not more than ten feet above the existing tree tops. The tower would be camouflaged to appear in texture and color as the surrounding burned tree snags. The color of the two antenna mounted on the tower would be of the same color as the monopole..."
The tower that was built does not come close to conforming to the approved proposal. What exists today at Old Faithful is a stark, silvery pole (plus antennas) clearly visible from much of the historic district. The structure is not shielded by existing trees at all (there are hardly any trees standing), and no attempt has been made to camouflage the tower or the antennas in any way (texture or color).
There are also three antennas now, not the two called for in the proposal.
Wyoming historic preservation officials agree. On January 7, 2004, Judy K. Wolf, the Review and Compliance Program Manager of Wyoming SHPO, wrote to Yellowstone Superintendent Suzanne Lewis that the tower is an "incompatible structure" and "quite visible from the historic district." She added that its presence within the viewshed had created "a very noticeable adverse effect to this district." Wolf asked Superintendent Lewis to "give consideration to what can be done to reduce or eliminate this adverse effect."