Lack of Public Notice & Meaningful Participation

In February 2010, Yellowstone’s newly-created Wireless Committee drew up a list of ten steps to be taken on the Lake cell tower application.  Public notice was at the heart of the process.  It called for the Park to issue a press release (to let the public “know what our process will be…”), hold public meetings, and place a notice in the Federal Register.  

Unfortunately, Yellowstone jettisoned much of its planned public notice – a failure made even more striking by the long, multi-year gestation period for this project:

No Federal Register Notice:  The Wireless Committee was especially adamant about publishing a notice in the Federal Register.  Meeting minutes from as early as October 2009 (before an application had even been received) state:  “The timeline for this project must take into account that a Federal Register notice for public comment must be published.” 

Then in August 2010 came word from NPS Headquarters that a Federal Register notice was a bad idea:  “Federal Register Notice should not be published as it is policy not law…” 

Next came the long wait as agency lawyers in D.C. and Denver considered the issue.  The Committee was insistent:  “If solicitor advises not to do the FRN [we] would request a letter from them explaining why FRN should not be done.  Committee believes the FRN should be done,” the Committee wrote in February 2011.

 

 

 

 

 

 

 

 

 

 

 

“For [Wireless Communications Facilities] that require a right-of-way permit (currently cellular communications towers and associated infrastructure), the park would issue a notice in the Federal Register… The public would have an opportunity to comment on the proposed tower and right-of-way permit.” (pp. 42-43)

Park officials eventually acknowledged that a Federal Register notice was indeed required, but then issued a “Categorical Exclusion” amending the 2009 FONSI requirement for such a notice because (as their lawyers had insisted) “alternatives, impacts, and mitigation measures were analyzed” in the Wireless Plan’s 2008-09 documents. This document is doubly dubious in that the Park could not have analyzed visual and other impacts of the Lake cell tower back in 2008-09 when they did not receive an application with the proposed height and location of the tower until 2012.

The October 2012 Press Release:  The Park used a press release in October 2012 to inform the public that an application for a cell tower at Lake had been received and was under review. Nine months had elapsed since they had received the application from Verizon. During the nine months, Park officials had consulted with the Wyoming State Historic Preservation Office (WY SHPO) about the Lake proposal and its possible effects on nearby historic districts and buildings, but no word had gone out to the public about this consultation, as required by law. 

In July 2012 when PEER learned of this serious exclusion of the public from the process, it wrote immediately to the NPS Regional Director to complain. 

It appears that the only thing our protest letter induced was the Park issuing a press release three months latter – nine months after it received Verizon’s application – to notify the public about the proposed project.

Public Opposition Ignored:  The majority of public comments received by the Park opposed Verizon’s proposal to build a new cell tower at Lake: 

• The Wireless Plan Environmental Assessment of 2008-09:  According to the Wireless Plan’s FONSI (pp. 15-16):  “The environmental assessment was made available for public review and comment during a 45-day period ending October 31, 2008… The majority of respondents’ comments… opposed cellular service being added at Lake,…”

• The 2012 Lake cell tower proposal (public comments restricted to Yellowstone’s proposal to “categorically exclude” the Lake cell tower from further public notice and review):  According to the Park’s summary:  “Correspondence opposing proposed action:  92; Correspondence supporting proposed action:  59”

Contrast the public’s opposition to the Lake cell tower (and its exclusion from the process for nine months in 2012) with the Park’s enthusiasm for the Verizon proposal when first received.  Wrote Dustin Sene of the Park’s Technology Services to Verizon’s contractor: 

“I will do whatever I can to help you out here.  The wireless committee was excited to get the SF-299 [the official form for cell tower proposals] and see this project getting under way…”

Park officials had strongly supported a cell tower at Lake for ten years.  Hence, their lack of interest in either engaging the public or taking into account what the public had to say made sense.