Residents’ Lawsuit Alleges Cell Tower Developer Failed to “honestly and properly complete a federally mandated environmental review”

By B.N. Frank

A growing number of Americans – including Hollywood celebrities – don’t want 5G and/or 4G cell towers and antennas installed in or near their communities due to numerous risks associated with them (see 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16).  Some are filing lawsuits to stop installation, including in Arizona.

From Children’s Health Defense, The Defender:

Arizona Activists Take on AT&T Over Plans to Site Cell Tower Near Rare Desert Waterway and Ancestral Hopi Settlements

Arizona residents said construction of the 100-foot cell tower, near a kindergarten, wildlife sanctuary and ancestral Hopi settlements violates the National Environmental Policy Act.

By Suzanne Burdick, Ph.D.

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An AT&T cell tower developer wants to build a 100-foot cell tower on the edge of a rare desert waterway in rural Arizona, where residents say it would harm endangered wildlife and critical wetland habitats and obstruct the line-of-sight for ancestral Hopi mesa top settlements.

Local residents, including former cultural anthropologist Gillian Goslinga and Billy Harvey, director of a wildlife rehabilitation center, are working to ensure AT&T and Tilson Technology Management choose a more “responsible” placement for its tower — and they think their fight may set a precedent that could help other local communities to prevent similar wireless infrastructure invasions.

Goslinga and Harvey told The Defender they filed a case in 2022 with the Federal Communications Commission (FCC) alleging Tilson failed to honestly and properly complete a federally mandated environmental review for the project.

If they win, Tilson likely will be forced to find a different site for the proposed tower.

W. Scott McCollough, chief litigator for Children’s Health Defense (CHD) electromagnetic radiation (EMR) cases, told The Defender, “Although Children’s Health Defense is not formally participating in the case, we applaud and support the plaintiffs’ efforts.”

The National Environment Policy Act of 1969 (NEPA) and the National Historic Preservation Act of 1966 (NHPA) both legislate the quality of local human environments, according to Goslinga, who owns land about 2,500 feet north of the proposed tower.

“I believe we can unify and strategically rally behind those acts at the local level to control and thin out — if not stop — this telecom onslaught,” Goslinga said. “A coordinated national effort from all of us on the ground could potentially have a cumulative impact and maybe set one or more case precedents.”

Tilson proposed to put the tower in Cornville, a small town in what’s known as the Verde Valley of Arizona. Cornville is home to at least 21 endangered species — including golden eagles, which are of cultural and ancestral interest to some Native American tribes.

The Hopi Cultural Preservation Office and the Arizona State Historic Preservation Office filed letters of opposition to the tower.

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Stewart B. Koyiyumptewa, program manager of the Hopi Cultural Preservation Office, wrote:

“The Hopi Tribe has determined that the proposed tower would irreparably disturb critical viewshed and ancestral settlements of the Hopi Bear clan burial mounds found on either side of the proposed tower site.

“The proposed location is also on the Tribe’s ancestral Palatkwapi Trail system. Hopi ancestors took these trails in their migration from Mesoamerica to our current homelands in northeast Arizona.

“This trail continued to be used for trading and ceremony pilgrimages until the modern development and ownership of the property prevented access into these areas. Our relationship with this area continues today.”

Under NEPA law, federal agencies must consider the environmental impact of all federal projects. Because the FCC regulates their construction and grants permits for their use, wireless infrastructures are considered “federal projects,” and as such are subject to environmental impact review.

But the environmental review process, often not visible to the public, relies on an honor system, by which wireless infrastructure providers are trusted to complete the review on their own, McCollough said.

Harvey said, “The honor system does not work when the people involved have a financial interest in a particular outcome.”

McCollough agreed:

“Every project automatically requires at least an environmental evaluation under the FCC rules. It is just that most of the time they are not submitted to the FCC or disclosed to the public.

“They are filed only if the applicant must or chooses to file an antenna registration, and only if the public gets involved and asks for it.

“The debate then turns to whether the evaluation or other evidence indicates there may be a negative environmental impact. If so, then a more detailed ‘environmental assessment’ must be performed.”

He added, “The FCC then decides whether to issue a finding of no significant impact (FONSI). If it does a FONSI, the case is closed. If it does not make the FONSI, then a full-blown environmental impact study (EIS) is required.”

Proposed tower 700 feet from kindergarten, 250 feet from wildlife rehabilitation center

The Defender interviewed Goslinga and Harvey about their ongoing legal battle to force AT&T and Tilson to undertake an EIS.

Harvey founded the Runnin’ W Wildlife Center, an animal sanctuary in Cornville that rehabilitates native birds and mammals.

He and Goslinga believe the proposed tower would have adverse effects on local animals and young children by subjecting them to increased levels of wireless radiation.

“They [AT&T and Tilson] are trying to put it 250 feet from our rehabilitation pens for rescued wildlife,” Harvey told The Defender, “700 feet from a preschool and kindergarten, about 1,000 feet from a public park and down in a bowl-type valley.”

Goslinga said, “Among its many and serious adverse impacts, the proposed tower would stand 10 stories high, right up against canyon ridges where wildlife lives and at the heart of a local ‘chain of sites’ of Pueblo mesa top ruins connected by the ancient Hopi Palatkwapi Trail system.”

Harvey is sure similar telecom projects are underway across the country and “most people don’t realize they have rights under NEPA.”

According to Harvey, the problem is that the “telecommunication companies’ lawyers and PR firms try to intimidate, mislead and discourage any opposition.”

County erroneously claims telecom company was ‘in full compliance’ with FCC regulations

“Telecom knows local governments are also in the dark about NEPA,” Goslinga said, “so they do as they please, taking advantage of thoughtless zoning.”

Despite Goslinga and Harvey warning county authorities that Tilson was trying to evade its NHPA and NEPA responsibilities, county officials on Feb. 2, 2022, granted Tilson a wireless permit, and declared the project was in full compliance with all FCC regulations.

Just weeks later, documents obtained via a Freedom of Information Act (FOIA) request revealed no evidence that Tilson’s project was in compliance with NEPA or NHPA at the FCC, confirming Goslinga and Harvey’s concerns.

Tilson had not even filed a tower registration application, Goslinga said.

Goslinga said she immediately requested an environmental review at the FCC, and pointed out that the proposed tower placement triggered seven of nine NEPA criteria, including impacts on American Indian historical properties and tribal religious sites.

“The FCC agreed with us and in April 2022, directed Tilson to carry out a preliminary NEPA/NHPA screening to determine if further environmental review was indeed necessary,” Goslinga said.

Telecom company publishes notice 54 miles away from local community

The FCC requires telecommunications infrastructure developers to publish a notice in a local newspaper informing the public of a planned project and inviting residents to submit environmental review requests.

In March 2022, before the FCC directed Tilson to carry out a preliminary NEPA/NHPA screening, Tilson did publish the required public notice — but used a newspaper 54 miles away from Cornville, in Prescott, Arizona, “so no one would see it and therefore everybody would miss the 30-day window for public requests for environmental review with the FCC,” Goslinga said.

After Goslinga and Harvey brought this to the agency’s attention, the FCC agreed the company failed to meet the legal requirements of local notice and ordered Tilson to reopen a 30-day window for public requests for environmental review.

During the new window, five additional residents filed requests for environmental reviews and hundreds of residents signed multiple petitions detailing the adverse effects of the proposed placement of the tower, Goslinga said.

Goslinga said that rather than resolving their wireless coverage problems, the proposed tower is estimated to “waste 55-60% of its coverage on public lands void of human habitation.” Harvey added, “It doesn’t even get to our dead zones.”

“This project is not about what’s good for Cornville residents,” Goslinga said. “It’s about AT&T getting a strategic toe-hold in this region.”

Telecom company’s ‘self-exonerating’ NEPA report an ‘abomination’

Tilson in July 2022 filed its NEPA screening report with the FCC, in which the company claimed no further environmental assessment was necessary because the project would have no “significant environmental effect.”

Formally, Tilson’s NEPA review is called a “NEPA Screening Report,” but it also includes an NHPA Section 106 historical review.

Goslinga said she was shocked to learn that all telecom developers are deputized by the FCC to carry out their own NEPA self-reviews following FCC national programmatic agreements.

“This is an astonishing conflict of interest and Tilson has presumed again and again that the FCC would okay their claims of findings of no adverse impacts just because they say so,” she said.

Goslinga called the “self-exonerating” screening report “an abomination, packed with misrepresentations, convenient omissions, language manipulation and cherry-picking of statutes and expert agency guidance received to favor their desired outcome: a determination of no impact.”

“They [the report’s writers] went so far as to omit to disclose the site’s immediate surroundings of Pueblo ruins on forms in the Tribal Historic Preservation Office and State Historic Preservation Office (SHPO) notification system,” she added.

“If all these NEPA reports could be gotten via FOIAs and cross-verified,” Goslinga said, “I’m sure there could be grounds for a class action suit showing a serious pattern of FCC negligence in implementing their NEPA obligations, even procedurally, via these deputized cell tower developers.”

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Goslinga and Harvey in October 2022 filed a response to Tilson’s report in which they documented the “certain, likely and potential” environmental effects on natural and historic resources and the corresponding NEPA and NHPA statutes, Goslinga said.

They also argued that Tilson’s consultants exceeded their legal authority when they determined — “unilaterally without consultation with the Hopi Tribe or Arizona SHPO” — that the proposed site was not of national historical significance.

The FCC, in an internal email to all parties, responded by directing Tilson to resubmit their Section 106 — after first consulting with members of the Hopi tribe to determine an accurate area of visual impacts from the proposed tower — and giving Tilson the option to take up the question of eligibility with the National Register of Historic Places.

“The companies are not following the peer review data and are using our environment and our families as guinea pigs without our consent for their own experiment and profit,” Harvey said.

“Our environment is the one thing we should want to save for future generations,” Harvey said, adding, “not to mention it would be a good idea to protect your future generations from being bombarded by the radiation these towers emit.”

According to Harvey, telecommunication macro towers should not be placed within two miles of waterways in order to protect nests and migratory birds. “This should be followed not just in Arizona — where water is a biological connectivity zone — but across the whole country.”

The U.S. Fish & Wildlife Service Migratory Bird Program in 2021 suggested similar guidelines on tower placement to developers.

Without a mandatory buffer zone, Harvey said, irreversible environmental damage will occur, resulting in “dead zones and fragmenting where the biological density occurs” that may lead to “mass die-offs of what are common species, as well as threatened species that use little enclaves to still hang onto existence.”

‘A game of chess … combined with a marathon’

Goslinga and Harvey continue to communicate with the FCC on behalf of their case.

Most recently, Goslinga submitted an email to the FCC about how Tilson violated an FCC directive to not begin its building process without a NEPA and NHPA clearance or FONSI.

Harvey said that if he and Goslinga win their case with the FCC, it “would set a precedent to help people in other communities to turn the tide in their favor and help set a standard as these companies dump their garbage on the landscape.”

“It’s a game of chess it seems, combined with a marathon run. The FCC has also not moved on the substantive issues, maybe thinking we’ll drop out soon enough,” Goslinga said. “We haven’t.”

Harvey also said he would like to see “the FCC and the telecommunication companies start following the guidelines in place with stricter consequences and accountability, including fines enforced on the companies.”

Goslinga hopes for robust grassroots campaign led by citizens “putting out our own PR antidotes to the powerful PR of Big Wireless.” She said:

“T-Mobile ads right now show radiation microwaves as happy pink circles blessing everybody they touch — people break out in great big smiles as soon as they are annointed and get energized — but this is the exact opposite of what happens instantly and/or cumulatively.

People experience fatigue, restlessness, poor sleep, decreased oxygenation, brain fog, headaches, cancers and reproductive harm.”

Goslinga hopes citizens also will step up their activism by demanding environmental reviews for proposed telecommunication infrastructure projects in their area.

“But,” she cautioned, “we must stay clear of being billed as frightened hysterics. The opposition wants our emotionalism. It’s easy to play us off when they can portray us as hysterical nutcases making ‘much ado about nothing.’”

Suzanne Burdick, Ph.D., is a reporter and researcher for The Defender based in Fairfield, Iowa. She holds a Ph.D. in Communication Studies from the University of Texas at Austin (2021), and a master’s degree in communication and leadership from Gonzaga University (2015). Her scholarship has been published in Health Communication. She has taught at various academic institutions in the United States and is fluent in Spanish.

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Republishing Guidelines

In 2021, a federal court ruled in favor of petitioners who sued the FCC for NOT updating wireless radiation guidelines since 1996.  Two years later – the agency has still done nothing to address this.

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