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AT&T victory on cell phone tower invites further intrusions on wilderness

Appeals court’s narrowed review ignores good alternatives to a Foshay-sized eyesore.

Would a 450–foot tall cell phone tower improve this scene?

It’s not often any more that I feel an editorial coming on. But as I read last week’s unusually lame coverage of court approval for a skyscraping cell-phone tower at the edge of the Boundary Waters, the old urges reawakened.

And the stirrings only strengthened as I paged through screen after screen of citizen commentary, dominated in typical fashion by such flamingly moronic “points” as: 

Wilderness advocates are putting their taste in campsites ahead of public safety. Tourists from the metro want to deny their northwoods hosts the conveniences of life down here in the 612. The tree-huggers just hate cell phones, period. Maybe AT&T could please them by disguising the 450-foot tower as a tree, or rig it to blink its warning lights only when aircraft come into range….

Then I ran across 300 perfectly sensible words prepared by an editorialist at the Austin Daily Herald, who did the job about as well as it can be done. An excerpt:

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Americans have become inured to the presence of cell transmission towers everywhere they look, not least because most Americans treasure their cell phones more than they do the view out their windows. But building a tower on the edge of one of America’s premier wilderness areas, atop a hill where the tower’s blinking light is likely to be visible to paddlers in the BWCA, may be going just a bit too far. …

We don’t fault AT&T for pushing the issue to the appeals level after losing a lower court fight. Establishing the privilege to build cell towers where they are needed is clearly an important business consideration. Now, however, the point having been made, perhaps the phone company could win again by magnanimously finding another solution … . Surely there is some other tower location which, if not perfect, would meet the interests of everyone concerned.

Having the law and the right is one thing. Doing what is right is another. …

The facts of the matter

We’re all entitled to our own opinions, well- or ill-informed, but not to our own facts. And if you really want to understand this case, you need to look past the brief, he-said-she-said treatments from the Strib or the AP and at least scan the facts laid out last August in the Hennepin District Court ruling that blocked the 450-foot tower but allowed for a shorter, unlighted alternative.

There are 239 Findings of Fact in that document [PDF], including these notable examples:

  •  “… Virtually all of the increased [cell phone] coverage that the taller Proposed Tower would provide would be in uninhabited roadless areas which are either wooded or swamps. That increased coverage would not be of any meaningful benefit” to area residents or visitors. (Finding of Fact No. 209).
  • Estimates of a 450-foot tower’s visibility within the Boundary Waters Canoe Area Wilderness were prepared by a professional surveyor, whose testimony was found to be “thorough, competent, cautious, un-contradicted and persuasive” (No. 78) – and probably understated the number of lakes from which a 450-foot tower would be seen (No. 83).
  • At 450 feet, the tower favored by AT&T would be taller than the Foshay Tower in Minneapolis and also taller than 97 percent of the 400-plus towers that AT&T has put up in Minnesota (No. 17).
  • AT&T never considered a shorter tower as an alternative design for this location (No. 20), but did say that, if blocked from building the 450-footer, it would go ahead and build a 199-foot tower acceptable to wilderness advocates (No. 22). (Hedging its bets in court, AT&T in fact built the shorter tower and put it into service recently.)
  • Lake County, which approved the 450-footer, requires that cell phone towers built within two miles of its Lake Superior shoreline be 199 feet or shorter and unlighted (Nos. 189 and 190), to protect the viewshed so important to its tourism.
  • In approving the tower, the Lake County board acted without any viewshed analysis (No.  193) and on the basis of AT&T statements that the taller tower would deliver a 16-fold increase in coverage over a shorter tower, when in fact the advantage was more like 17 percent (No. 195).
  • During the trial, AT&T ran a profitability analysis on a proposed alternative suggested by wilderness advocates – two 199-foot, unlighted towers at sites away from the wilderness and already occupied by tall structures. The payback period was 63 months, just 3 months longer than AT&T’s guideline for going forward with a project (No. 17).
  • AT&T offered no comparable figures for the 450-footer, which was not analyzed on its own but only as part of an 18-tower project (No. 43).

It is worth perhaps a double underline that AT&T raised no challenges to the ruling’s factual foundation in appealing its conclusions.

Appeals court puts on blinders

And the Court of Appeals found no factual errors, either, in last week’s reversal. It simply rejected the trial judge’s weighting of the tower’s environmental impacts and substituted its own [PDF], concluding that they were too small to have “a materially adverse effect on the environment” of the BWCA.

BWCA tower locationProposed location of the BWCA cell phone tower

By narrowing its review to this single aspect, the appeals court spared itself the trouble of considering such pesky questions as whether one or two shorter towers wouldn’t serve AT&T and its customers just as well as a 450-footer, without any impact on the BWCA.

And in assessing the tower’s intrusiveness, it applied some logic that has troubling implications for the future.

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Looking at the 10 BWCA lakes from which the tower would be visible, the court found that other towers and cabins are visible from one lake, and that motorboats are permitted on parts of four. Given that these nonwilderness features are already present, it said, the impact of another blinking tower isn’t severe enough to warrant prohibition.

By that logic, the wilderness boundary becomes meaningless in terms of impacts from just beyond it – campers can already see a big, blinking cell phone tower from these 10 lakes, so what’s the harm if they  see another one? Or another two or three? Or hear the sounds of a mining operation?

Personal disclosure: For parts of 2007 and 2008 I was executive director at Friends of the Boundary Waters Wilderness, which has taken the lead in fighting the AT&T tower, but I’ve had no involvement in this litigation, which began under my successor, Paul Danicic.

Paul told me yesterday that Friends and its allies are still considering whether to appeal last week’s ruling. Here’s hoping they do.