DEPARTMENT OF AGRICULTURE
UNITED STATES FOREST SERVICE
Before the Regional Forester
Southern Region
In re Appeal of the
Decision Notice and
Finding of No Significant Impact
For the Replacement of the
WLOS Television Tower on
Mount Pisgah, located on
National Forest lands in North Carolina
) Appeal No. __________WESTERN NORTH CAROLINA ALLIANCE
Bob Gale
70 Woodfin Place, Suite 326
Asheville, NC 28801
(828) 258-8737Appellant.
NOTICE OF APPEAL AND STATEMENT OF REASONS
Appeal Prepared By:
Douglas A. Ruley
Southern Environmental Law Center
31 College Place, Suite D-307
Asheville, NC 28801
(828) 285-9125ATTORNEY FOR THE APPELLANT
July 9, 2001
NOTICE OF APPEAL
Pursuant to 36 C.F.R. § 215.7, Appellant Western North Carolina Alliance (WNC Alliance) challenges the Decision Notice, Finding of No Significant Impact (FONSI), and Environmental Assessment (EA) for the proposal by WLOS television to replace the Mount Pisgah transmission tower on National Forest lands in North Carolina. This appeal supplements any other appeal WNC Alliance may join in.
The WNC Alliance is a non-profit membership organization located in Asheville. The WNC Alliance's primary goal is to protect and to preserve our natural land, water and air resources through education and public participation in policy decisions at all levels of business and government.
The existing WLOS transmission tower, and the proposed new tower, are located on top of Mount Pisgah adjacent to the Blue Ridge Parkway about 20 miles west of Asheville, NC. Mount Pisgah and the surrounding peaks and ridges are one of highest and most scenic areas on the Blue Ridge Parkway in western North Carolina. The area contains an inn and ***restaurant*** (the Pisgah Inn), campgrounds, and hiking and biking trails. Due its location, beauty, views, and other amenities, Mount Pisgah receives extremely heavy tourist and recreational use.
The existing WLOS transmission tower and related buildings, and the new tower challenged in this appeal, interrupt and degrade what otherwise would be almost unspoiled long range views and are an extremely inappropriate use of these lands. This tower originally was approved and the site leased back in 1954, long before NEPA existed or the current forest plan was adopted. The tower is termed a "necessary evil" by the administration of the Blue Ridge Parkway. However, since the tower must be replaced, it is time for the Forest Service, WLOS, the Parkway, and the public to engage in a process that considers relocating this tower to a less sensitive site and, according to the Parkway administration, "putting to rest the numerous complaints" they receive concerning the tower.
Yet, although explicitly requested to engage in this process and with offers of help from the Parkway administration, the Forest Service refused. Instead, the agency asserted that it had a ìlimited decision space,î Response to Public Comments p. 1, and made the extremely significant decision to allow construction of a new tower based on an 18-page EA and a FONSI. Among other deficiencies, these NEPA documents failed to address the long-term impacts of allowing the proposed tower reconstruction, failed to consider alternatives that involved relocation of the tower to an alternative site, and failed to disclose or address the likely impacts of allowing this reconstruction on the probable outcomes when the current permit expires in 2005, and WLOS seeks to renew it, and on the next revision of the Forest Plan, when the agency could change the designation of this site. The EA also failed to disclose or address that, under the current lease, the Forest Service could let the lease expire and proceed with tower relocation at no cost to the public, and also failed to address provisions of the lease and site plan which appear to contradict the decision. In sum, rather than engaging in a proper public process under NEPA and preparing an EIS for a decision which in practical effect will carry extremely significant visual, scenic, and recreational impacts for this wonderful and highly sensitive area for many decades into this new century, the Forest Service prepared an inadequate EA, swept the long-term impacts and issues under the rug, and reached an arbitrary decision in violation of NEPA and the Administrative Procedures Act.
The WNC Alliance and its members are very familiar with the existing WLOS television transmission tower, the surrounding National Forest, and the adjacent Blue Ridge Parkway. Members of the WNC Alliance use and appreciate these lands for their scenic beauty and for hiking, camping, mountain biking, bird and other wildlife watching, spiritual renewal, and other recreational and educational activities. The tower reconstruction challenged here directly and significantly will affect Appellant and its members because it will result in continued degradation of all of these values and uses.
The Southern Environmental Law Center, legal counsel to Appellant, is a regional non-profit organization working to conserve natural resources on public lands throughout the Southern Appalachians and in the Southeast generally.
STATEMENT OF REASONS
I. THE EA AND FONSI VIOLATE NEPA.
The primary inadequacy of the extremely brief EA is the total absence of consideration of the practical, long-term impacts of allowing the construction of a new television tower on Mount Pisgah and the resulting total avoidance of the most significant issue raised by the proposed new construction -- whether there should be such a tower on Mount Pisgah after the expiration of the current lease. The EA also failed adequately to disclose and address the terms of the existing lease and how these terms bear on the decision to permit the new construction.
A. The EA Is Inadequate For Its Failure To Address The Significant Issue Of The Long-Term, Practical Impacts Of Allowing Construction Of The New Tower On Mount Pisgah.
It is plain that the primary issue raised by the proposed new tower is whether such a significant and annoying visual obstruction should continue for the foreseeable future in this heavily visited and highly sensitive site next to the Blue Ridge Parkway, or whether, in view of the need for a new tower and the approaching end of the original lease term, the tower should be relocated to give unobstructed views of and from Mount Pisgah. At a minimum, the proposal demands full public participation in deciding whether there should be such a tower on Mount Pisgah for well into the future.Yet, the EA does not evaluate or consider these long-term issues at all, or even identify them as an issue. Nor does the EA recognize in any way that the decision being made will carry long-term, practical impacts or that this decision likely will determine the future of Mount Pisgah (scarred by a large television tower) for decades to come. In fact, the EA affirmatively refused to consider these long-term issues, in the form of refusing to address the potential for relocating the tower to a less sensitive site away from Mount Pisgah. According to the EA, "[t]he decision to allow WLOS to construct and maintain a communication site on Mt. Pisgah is outside of the scope of this decisionÖThe terms of the current permit allow WLOS to continue to operate the site until December 31, 2005." EA p. 8
These statements are transparent attempts to avoid the true significance of the decision being made and in no way justify a refusal to recognize and address the long-term implications of this decision. Of course WLOS already has permission to operate the existing tower, and they can continue operating that tower through 2005. However, these facts in no way require the construction of a new tower or determine that this new tower has to be on the same site as the old tower.
Later, in its Response to Public Comments, the Forest Service also asserted that relocation would not meet the purpose and need of the proposal. This assertion is patently false. The stated purpose and need is that, due to a FCC mandate, WLOS must begin transmitting digital TV by May 1, 2002 and that WLOS needs new, stronger tower to mount the necessary equipment. EA p. 5. There is nothing in this purpose and need that explains or justifies why this new tower must be exactly where the old one was, or justifies continuing the visual and other impacts on this sensitive site for many years to come, or justifies failing to recognize and address that, in allowing the construction of a new tower, the Forest Service likely is condemning Mount Pisgah to this tower intrusion for the long-term, foreseeable future.
Instead of treating the FCC mandate, the need for a new tower, and upcoming end of the existing permit as an opportunity truly to debate the future of Mount Pisgah, the Forest ***Service*** put the blinders on and predetermined this future by refusing to recognize or address either that (a) as of the end of 2005, this tower could be removed from Mount Pisgah at little dollar cost to the public and to the great benefit of the public in the visual, scenic, and recreational qualities of this premier location, WLOS Communications Use Lease pp 1, 5, and (b) by allowing the construction of a new tower, with its attendant expense, and in view of the added expense and wastefulness of building yet another tower, the agency was in effect making it extremely likely that the permit would be renewed and that an intrusive TV tower will remain on Mount Pisgah for many years.
This willful blindness violates NEPA. According to the NEPA regulations:Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, Ö The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequencesÖ.Federal agencies shall, to the fullest extent possible:Öemphasize real environmental issues and alternativesÖ.
40 C.F.R. 1500.1(b), (c); 1500.2 (b) (emphasis added). Consistent with these regulations, NEPA documents must take a ìhard lookî at the proposed action by setting forth sufficient information to enable the decisionmaker and the public to consider the probable environmental impacts and make a reasoned decision. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).The WLOS Tower EA failed these tests because it failed to consider or address the most significant issue raised by this proposal: whether such an intrusive TV tower is an appropriate use of this highly sensitive site over the long-term future. Accordingly, the Forest Service neither took a ìhard lookî at this proposal -- it barely took any look at all -- nor did it set forth the long-term environmental impacts in any way, thereby depriving the public and the decisonmaker of the most vital information needed to make a reasoned decision.
The question must be addressed: if now is not the time to consider whether a TV tower should stay on Mount Pisgah into the long term, when is? In its Response to Public Comments, the agency raised two potential alternative times: when the current permit expires in 2005, or when the Forest Plan is revised, which might occur any time in the next decade. Response pp. 1-2. But, in that same response, the Forest Service further sets forth why neither of these alternative times meets NEPA or is even feasible. As to the first, according to the agency, the decision on renewal of the permit is not subject to public review, environmental documentation, or appeal. Response p. 2. As to the second, according to the agency, if WLOS were required to remove the tower pursuant to Forest Plan revision, the government would be required to compensate WLOS based on the initial cost of the tower less depreciation. Response p. 1. After the new tower is built, this required compensation likely will be quite large and a substantial disincentive to moving the tower. Thus, this latter response effectively admits that the present decision carries extremely significant long-term impacts which are not addressed in the current EA, and that the only time when these long-term impacts can be fully, openly, and objectively considered is now, when NEPA applies and the tower could be moved at little or no cost to the public by prohibiting new construction and then allowing the current permit to expire.
Even if Forest Service somehow is correct asserting that its ìdecision spaceî is limited and therefore it only can consider the two alternatives of ìyesî and ìno,î Response at 1 (i.e., the agency cannot consider relocation or other alternatives), NEPA unquestionably requires a full and fair discussion of the significant environmental impacts of these two alternatives. 40 C.F.R. 1502.1. The only way to provide this discussion would be to address the long-term impacts of this decision by explaining and discussing that the ìnoî alternative offers the possibility of permanent tower removal in the near future at little monetary cost to the public, while the ìyesî alternative effectively determines that the public will have to endure this intrusive and inappropriate television tower on the treasure that is Mount Pisgah for a very long time to come. The EA is a classic example of violating NEPA by sweeping this complex and troublesome issue under the rug. Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1479 (W.D. Wash. 1992), affíd sub. nom. Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993).
I.The Forest Service Should Have Prepared An EIS For This Decision.
An EIS must be prepared when "substantial questions are raised as to whether a projectÖmay cause significant degradation of some human environmental factor." Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (emphasis in original). In view of the long-term, practical implications and impacts of allowing the construction of a new tower, there is no doubt that this decision may cause such degradation, namely, it may and likely will affect the incredible visual, scenic, recreational, and aesthetic resources of this unique Parkway and surrounding public lands for many decades to come.The necessity of an EIS is reinforced by reference to the NEPA regulations, which give a list of factors to consider in determining ìsignificance.î At least two of these factors are extremely relevant to the WLOS tower decision:
* unique characteristics of the geographic area such as proximity to park lands, and* the degree to which the action represents a decision in principle about a future consideration.
40 C.F.R. 1508.27(b)(3) and (6). In this case, Mount Pisgah and the adjacent Blue Ridge Parkway are one of the jewels of our national park system. Moreover, any credible assessment of allowing the construction of a new tower must recognize that such an action represents a decision in principle about the future of Mount Pisgah, the future renewal of the WLOS permit, and the future forest plan revision. For these reasons, the Forest Service must prepare an EIS before making the very significant decision regarding the construction of a new tower on Mount Pisgah.
C. The Forest Service Should Have Considered Alternatives That Involved Relocation Of This Tower To A Less Sensitive Site And Alternative Tower Configurations.
NEPA unequivocally requires the Forest Service to consider all reasonable alternatives to the proposed action. 42 U.S.C. § 4332 (2)(C)(iii) and (E). Alternatives are the "heart" of the NEPA documentation because adequate alternatives are required to make a reasoned choice. 40 C.F.R. § 1502.14(a); City of Tenakee Springs v. Clough, 915 F.2d 1308, 1310 (9th Cir. 1990). NEPA documents are rendered inadequate by the existence of a viable but unexamined alternative, even if that alternative would require legislative action to be implemented. Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir. 1987), rev'd on other grounds sub. nom. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).In light of these standards, the Forest Service erred badly in refusing to consider alternative site locations. Even though WLOS currently holds a permit to operate the site, EA pp. 8, 11, this in no way requires the Forest Service to allow the construction of a new tower or prohibits the agency from looking for or otherwise considering alternative sites. Indeed, for purposes of argument, even if the agency had to terminate the permit or propose a forest plan amendment to consider alternative sites, these alternatives still would be reasonable and the agency required to consider them. See Tenakee Springs, 915 F.2d at 1312 (requiring Forest Service to consider alternative of terminating a long-term timber contract).
Even if the Forest Service legally can refuse to consider alternative sites, there is no justification for failing to consider alternative tower configurations, primarily a much shorter tower, that would be less visually intrusive. The EA provides no explanation for why this tower must be 274 feet tall and no less; indeed, another deficiency in the EA is that the issue of tower height and configuration is not addressed at all.
D. The Forest Service Failed To Disclose, Explain, Or Analyze Adequately Relevant Provisions Of The Existing Lease.
Another significant defect in the EA is its failure to mention or discuss the existing lease and its bearing on the decision to be made. Several of the lease provisions are highly relevant this decision and extremely useful to public understanding, including:1) the termination provisions. According to the lease, it terminates at one minute after midnight on 12/31/2005, by operation of law. Lease p. 1. Once the lease is terminated, the Forest Service has no further obligation to WLOS, and WLOS must remove its equipment from the site. Lease p. 5. Thus, if the Forest Service allowed the lease to terminate in 2005, in short order there would be no tower on Mount Pisgah and the public would bear no expense;
2) the revocation and compensation provisions. According to the lease, it may be revoked in the discretion of the Forest Service when in the public interest. If so revoked, the Lessee shall be compensated based on the initial cost of the improvements to the lease, less depreciation over the life of the improvements as declared by Lesseeís federal tax amortization schedules. Thus, the Forest Service plainly may revoke the lease immediately in the public interest, and neither the lease nor the permit justify the agencyís refusal to consider alternative sites. The EAís representations to the contrary are false and misleading. Moreover, absent the construction of a new tower, the compensation due under this revocation likely would be negligible, as surely the Lessee has substantially depreciated the initial cost of the improvements ***The*** Forest Serviceís statement in its Response to Public Comments that the Lessee estimates the value of the facility at $10 million dollars is irrelevant and misleading, as it gives the impression that that is the sum that would be due on revocation, when the lease explicitly states otherwise.
3) the site plan prohibition on new construction. The electronic site classification, incorporated into the site plan and lease, provides that, while further sharing of the existing facility may be allowed, ì[n]o additional construction or expansion shall be permitted on this site.î Thus, the site plan and lease appear to prohibit the construction of a new tower. To call the new tower a ìmodificationî of the existing tower is an exercise in semantic legerdemain which cannot withstand scrutiny.
The failure to disclose, discuss, or analyze adequately any of the lease provisions violated NEPA.
II. THE INADEQUATE EA AND THE FAILURE TO CONSIDER RELEVANT FACTORS RENDERS THE DECISION NOTICE ARBITRARY AND CAPRICIOUS.
The Forest Serviceís approval of the new tower on Mount Pisgah is arbitrary and capricious if the agency failed to consider the relevant factors or failed to consider an important aspect of the problem. Motor Vehicle Manufacturerís Assín v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983). As demonstrated above, the Forest Service failed to consider an extremely important aspect of this issue -- the long-term impacts of its decision on the visual, scenic, and recreational qualities of Mount Pisgah and the Blue Ridge Parkway. The deficient analysis in the truncated EA does not rationally support allowing a new tower to be built.
REQUEST FOR RELIEF AND REQUEST FOR STAY
The Forest Service should withdraw the Decision Notice for the construction of the new WLOS television tower on Mount Pisgah and prepare an Environmental Impact Statement which adequately considers and analyzes the long-term impacts of allowing this new tower construction and which considers alternative locations. The Appellant requests a stay of the Decision Notice for the duration of this appeal and for any other period ***appropriate*** under 36 C.F.R. § 215.
Date: Signed for Appellant
___________ ________________________________
Douglas A. Ruley
Attorney