When the government of Park County, Wyoming, lost its legal battle to keep a 195-foot cellphone tower out of a small, woodsy community just outside of Yellowstone National Park, it asked for more time to appeal before being ordered to authorize the tower’s construction.
The 10th Circuit Court of appeals denied that request Friday, saying the Park County Commission must issue a permit to Horizon Tower LLC, as the lower court ordered — even as Park County continues to fight the issue on appeal.
The higher court will sometimes pause a lower court’s order during the losing party’s appeal, but only after considering four major factors:
• Whether the party asking for the pause (Park County in this case) has shown that it is likely to win the case.
• Whether the party will be “irreparably injured” without that pause.
• Whether the pause would substantially injure others involved in the case.
• Where the public interest lies.
“Considering all the factors, we are not persuaded that Park County has carried its ‘burden of showing that the circumstances justify an exercise of (our) discretion,’” wrote 10th Circuit Judges Harris Hartz and Paul Kelly Jr. in their order denying the pause.
Court documents in this case indicate that at least 65% of the landowners in the contested area around Wapiti, Wyoming, oppose the construction of a 195-foot cellphone tower in their dead-zone haven. So it is possible that the factor of “public interest” did not weigh heavily in the judges’ ultimate decision.
But the judges did not say which factors were strongest in producing their decision.
Previously …
Earlier this month, U.S. District Court Judge Alan B. Johnson ordered Park County to authorize Horizon Tower’s project in the Wapiti area. The tower is to be built on a private homeowner’s 30-acre parcel off North Fork Highway. The homeowner executed a lease with Horizon two years ago, court documents say.
Johnson handed the cellphone tower company the win because of the Telecommunications Act of 1996, which limits the control of local governments over land-use approvals for telecommunications facilities.
Clair McFarland can be reached at clair@cowboystatedaily.com.
