A federal judge has ordered the Park County Commission to approve a cellphone service company's request to build a 195-foot tower just outside Yellowstone National Park, and do it by Friday.
Instead, the county appealed Wednesday to the 10th Circuit Court of Appeals.
U.S. District Court Judge Alan B. Johnson filed the order last week, concluding an 18-month lawsuit by Horizon Tower Limited LLC against Park County over the county’s February 2023 decision to deny the company’s application to build the tower near the town of Wapiti.
Cellphone coverage in the Wapiti area is dead or spotty.
Horizon came to the county for approval to build the tower last year, after conducting a search for a placement that would remedy the service gap. The company executed a lease agreement Aug. 15, 2022, with local woman Tamara Young on her 30-acre parcel off of North Fork Highway, court document say.
The Park County Planning and Zoning Commission held a public hearing and reviewed Horizon’s application. The commission decided to deny the permit because Horizon “did not adequately demonstrate that the (tower) would be ‘in harmony and compatible with surrounding land uses and with the neighborhood,’” Johnson’s order relates.
Also, the county noted, Horizon didn’t show that its tower wouldn’t create a substantial adverse impact on nearby properties.
The county presented a summary of comments Wapiti Valley residents made in opposition to the project, and a note that more than 300 landowners in the Wapiti area, or more than 65% of the landowners, signed a petition opposing the tower.
Horizon Fires Back
Horizon fired back with its March 2023 lawsuit invoking the Telecommunications Act of 1996, which limits the control of local governments over land-use approvals for telecommunications facilities.
It doesn’t abolish local control. But it lets service companies overcome local restrictions by showing that a local board is preventing it from closing a service gap, and that its proposed manner of closing that gap is the “least intrusive means of doing so.”
Johnson judged the case early in Horizon’s favor. His Oct. 4 order commands the Park County Commission to approve Horizon’s build permit within seven days, or by Friday.
Johnson’s order says the county didn’t show any alternative, less-intrusive method of its own for closing the service gap, and that the county didn’t aptly counter Horizon’s argument that it could pass the least-intrusive-means test.
Upward, Then
Rather than issue the permits, the county appealed Wednesday to the 10th Circuit Court of Appeals.
It also asked Johnson to pause his order temporarily pending the outcome of that appeal.
“With all due respect to the honor, integrity, and authority of this Court ... the pending appeal is likely to succeed,” reads the county’s request for a stay.
The U.S. Supreme Court expressly left open one of the key legal factors in this case, the request says.
Also, the county argued, the appeals court will probably disagree that Horizon showed it’s proposing the least intrusive means of closing the service gap, when its stated objective was to extend coverage as far east and west as possible along Highway 14, says the county’s request.
“There is a threat of irreparable harm” if Johnson doesn’t pause his order, the request continues, in the form of the construction of “a 195-(foot) monopole tower that mars the most traveled route in their County, one of the most beautiful scenescapes in North America.”
Yellowstone tourists and Wapiti residents have been just fine without cellphone coverage in that area for their entire lives, and no one will suffer harm by a few more months without service while the appeal is argued, the request adds.
As of Thursday at noon, Johnson had not filed an answer to the county’s request for a pause.
Clair McFarland can be reached at clair@cowboystatedaily.com.