© 1999 Journal of Land Use and Environmental Law


On October 25, 1783, Thomas Jefferson stood on the heights overlooking the convergence of the Shenandoah and Potomac Rivers outside of modern day Harper's Ferry, West Virginia, on what is now the Appalachian Trail, and surveyed the view below. His description of the view appears in "Notes on the State of Virginia", first published in 1787:

Jefferson's comments marked the beginning of a growing recognition that the beauty of the American wilderness was "unmatched" in any other nation.[2] National pride grew as some Americans came to believe this beauty in nature gave them a "distinct moral advantage"[3] and helped separate the old world from the new.[4] Concerns about the preservation of natural areas with their "display of wonderful forms of nature, the ever-varying beauty of the rugged landscape, and the sublimity of the scenery"[5] would eventually inspire the nation's leaders to enact protective legislation in both the National Park Service Organic Act of 1916[6] and later the Wilderness Act of 1964.[7] Nearly eighty years after Yellowstone was set aside as the first national park, a similar but much less popular impetus also led to the formal recognition and protection of hiking trails, recreational footpaths, and their associated scenic corridors with the enactment of the National Trails System Act of 1968 (Trails Act).[8]

Today, the national trails system protects eight national scenic trails, nine national historic trails, and many national recreation trails throughout the United States. The legislation has proved to be only the first step in preserving the full range of recreational and environmental values the Trails Act was originally designed to protect. Like the protected lands of the national park system, the components of the national trails system are increasingly being subjected to monumental pressures and threats from outside their borders. The press of civilization, with its crowding, increased air and water pollution, and insatiable appetite for commercial development, threatens the integrity of the national parks and, to a greater extent, the national trails.

National parks are typically large contiguous land masses, with a protected core or central zone buffered from external pressures by the surrounding park lands.[9] A single large park has relatively few neighbors. Thus, the parks have been relatively successful in working with local governments and neighboring landowners to develop zoning and other land use controls for their mutual benefit.[10] In contrast, the units of the national trails system are thin ribbons of protected land surrounded by thousands of private property owners and local governments. By their very nature, there is little buffer land standing between the protected trail corridor and the encroachments just beyond its border. Federal land managers find engaging in consistent land management policies difficult because the trails have numerous and diverse neighboring landowners and because of the diverse geographical areas through which the trails pass. As such, the trails are extremely sensitive to incursions from the outside, and the solutions to these problems have become costly and politically difficult to resolve.

Where the components of the national trails system are concerned, these external threats to federal lands come into a sharper focus. As the lands surrounding the trail corridors become more valuable for uses other than farming, logging, and recreational pursuits, the pressures on the trail lands will become more intense. Most recently, these threats have been magnified with the enactment of the Telecommunications Act of 1996 (Telecommunications Act). [11] To meet the increased demand for wireless communications services throughout the nation, and to promote less expensive, more powerful and efficient technology, Congress enacted the Telecommunications Act to encourage the development of advanced telecommunications technologies and pave the way for a massive build-out of telecommunications infrastructure to support the new technology. Due to of the particular characteristics of the new wireless technology, the telecommunications industry has targeted the peaks and high mountain ridge lines through which national scenic trails naturally pass for the construction of telecommunications towers. The Telecommunications Act gives preference to the telecommunications industry in making decisions about where to site telecommunications facilities, while restricting the authority of local governments and federal land managers to regulate the placement of these facilities.

This Article will discuss the growing conflict between the telecommunications industry and the Federal Communications Commission (FCC), on the one hand, and the public land managers responsible for maintaining the national scenic trails, on the other. Part II of this Article will discuss the history, development, enactment, and implementation of the Trails Act. By focusing on the history of the trails system and the legislative history of the Trails Act, the Article will attempt to identify the values Congress intended to protect with its landmark legislation. In particular, this Article proposes to undertake a case study of the Appalachian Trail, the oldest continuous marked footpath in the United States and one of the first to receive federal protection. Part III will discuss the Telecommunications Act, the policies of the FCC in implementing the act, and the response of the telecommunications industry. Part III will also explore the conflict between the Telecommunications Act and the mission of the National Park Service (NPS or Park Service) concerning its land management decisions affecting the Appalachian Trail. Finally, Part IV will discuss the legal theories the NPS may be able to invoke to protect this resource and will suggest that the NPS may have an affirmative legal duty to take such actions as are necessary to protect the Appalachian Trail.


The establishment, protection, and management of the national trails from their inception to the present has undergone an evolution almost as dramatic as that which has affected the trails and their surrounding natural environments. As will be discussed in the following, the establishment of the national trails system, and the philosophies which govern the present-day management of the trails, are a product of natural history, practical experience, and extraordinary vision.

A. Early Establishment and Protection

The network of scenic and recreational footpaths the Trails Act eventually protected did not spring into existence by virtue of Congressional action. Rather, much of the present system predates the arrival of European settlers.[12] Originally used by Native Americans for hunting and trade, these rough foot trails extending up and down the east coast were transformed by the European settlers into more permanent transportation routes.[13] At their inception, trails served a very utilitarian purpose. Beginning in the late eighteenth century, however, Americans began looking at wilderness in a new perspective, recognizing that the "wild country" was no longer an obstacle to overcome,[14] and by the mid-nineteenth century they viewed the wilderness as a distinctive and valuable commodity in its own right.[15] In 1876, the Appalachian Mountain Club was formed in part to use the existing natural footpaths and to construct other paths to "explore the mountains of the Northeast and the adjacent regions, for both scientific and artistic purposes, and in general, to cultivate an interest in geographic studies."[16] Hiking and outdoor recreation became more popular with the growth of the conservation ethic in the early 1900s.[17]

One man had a broader vision for trails and their potential impact on society. Benton MacKaye, a regional planner and Harvard-educated forester who served in Gifford Pinchot's innovative United States Forest Service, visualized a single continuous wilderness trail stretching nearly 2,000 miles along the Appalachian mountain range.[18] In October 1921, MacKaye articulated his idea for the "Appalachian Trail" in an article published in the Journal of the American Institute of Architects entitled "An Appalachian Trail, A Project in Regional Planning."[19] The trail, MacKaye described, would be a "wilderness way through civilization . . . not a civilized way through the wilderness;"[20] a place where people could take refuge from the dehumanizing life in the city.[21] The trail would be a linear community where a wilderness traveler would be able "to see what you see."[22] Thus, from its inception, the Appalachian Trail was envisioned as encompassing values beyond those necessary to allow a traveler to walk from Georgia to Maine.[23]

Not long after MacKaye planted the seed, the trail began to grow. Much of the trail already existed as primitive footpaths. Building on what was already there, volunteers gathered to mark and cut the remaining sections necessary to connect Mount Washington in New Hampshire to Mount Mitchell in western North Carolina.[24] Over seven years, 500 miles of trail was formally established, and the entire trail was completed by 1937.[25] For many miles, the early trail traversed private land holdings, making management difficult.[26] Even where the trail was located on public lands, private development encroached upon its route.[27] The integrity of the trail depended on informal agreements with neighboring landowners.[28] This early tactic of using voluntary agreements with neighboring landowners would serve as a pattern for future land management policy but would ultimately prove inadequate to achieve permanent protection from the mounting pressures of civilization.

The Appalachian Trail Conference (ATC), a private not-for-profit governing body, was formed in 1925 to coordinate the maintenance and management of the trail.[29] At an annual ATC meeting in 1937, the NPS, which at that time had no formal affiliation with the trail, proposed protective right-of-way agreements between the ATC and federal and state land management agencies for those portions of the trail passing through public lands.[30] These agreements originally allowed for a one mile right-of-way on each side of the trail through federal lands and for one-half mile on each side of the trail through state lands.[31] Logging was permitted within two hundred feet of the trail, thus subordinating the trail's recreational and environmental significance to traditional uses.[32] Although the trail agreements did not shield the trail from the negative effects of local land use practices, they established two principles that would serve as the basis for future protection. First, the agreements clarified the federal and state governments' acknowledgement of public interest in the protection and perpetuation of the trail.[33] Secondly, the agreements confirmed the existence of a de facto partnership between the trail community and the public land agencies overseeing the trail lands.[34]

B. Legislative Protection

In the ensuing years, some members of Congress expressed interest in formally recognizing and protecting the Appalachian Trail through legislation.[35] However, none of the early proposals were seriously considered, and no further effort was made to formally protect wilderness trails until the 1960s. By then, the Appalachian Trail first began to feel the press of population growth and commercial development. Expansion forced relocation at several points along the trail route, and its path was diverted to accommodate development.[36] Much of the early private sector enthusiasm to protect the trail began to fade, largely due to the enormity of the restructuring task and the lack of necessary funding to keep up with the backlog of maintenance and administrative expenses.[37]

In 1964, Wisconsin Senator Gaylord Nelson unsuccessfully introduced a bill intended to gain congressional recognition of the Appalachian Trail by promoting federal cooperation with state, local, and nongovernmental interests in protecting the trail and authorizing limited federal participation in the location and perpetuation of the trail.[38] The following year, Senator Nelson proposed S. 2590, a more ambitious trail protection bill, seeking to establish a national system of trails. The bill directed the Secretaries of the Interior and Agriculture to establish hiking trails on federal lands under their administration and made available federal grants to support the planning and construction of the trail routes.[39] Nelson's second trails bill was passed, perhaps due to the public's growing awareness of the value of wilderness and natural resource protection.[40]

The National Trails System Act of 1968 was signed by President Johnson on October 2, 1968.[41] The Trails Act was based on a study conducted by the Department of Interior's Bureau of Outdoor Recreation, entitled "Trails for America," which concluded that the nation faced a "crisis in outdoor recreation"[42] and acknowledged that opportunities for Americans to enjoy outdoor recreational activities were limited.[43] The expressed purpose of the Trails Act was to establish and protect a system of hiking trails to "provide for the ever-increasing outdoor recreation needs of an expanding population" and "to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the open-air, outdoor areas . . . of the Nation."[44] The Trails Act designated the Appalachian Trail and the Pacific Crest Trail as the initial components of the system.[45] The Trails Act anticipated that the trails system would grow and that other trails would be granted protection as they were developed and proposed for inclusion in the system.[46]

The Trails Act designated three different types of trails for protection. The first type, "national recreation trails," were defined as hiking trails of shorter length and located near urban areas that would "provide a variety of outdoor recreation uses."[47] Recreation trails would provide urban populations a respite from life in the cities and would be nominated and selected for protection based on accessability rather than traditional wilderness values as the primary criteria. Secondly, "national historic trails" were those trails following routes of national historical significance.[48] These trails were designated primarily for the protection of historic values and not necessarily for their natural scenic splendor.[49] The last category of trails were the "national scenic trails." National scenic trails such as the Appalachian Trail were "extended trails so located as to provide for maximum outdoor recreation potential and for the conservation and enjoyment of nationally significant scenic, historic, natural, or cultural qualities of the areas through which such trails may pass."[50] Congressional emphasis on "nationally significant" scenic and natural values distinguishes the national scenic trails from the other types of trails created by the Trails Act. Thus, from the outset, the national scenic trails were set apart to provide something more than just a footpath, with Congress recognizing the importance of protecting their unique values.[51] Had Congress only intended to protect and preserve the purely recreational qualities trails might provide (e.g., accessibility, opportunity, and diversity of use), it would not have been necessary to create a separate class of trails designed to promote and protect significant scenic and natural qualities.[52]

During the first years of its existence, the Trails Act fell short of accomplishing all that its proponents had hoped. This shortfall was due in large measure to Congress' delegating to the states responsibility for acquiring and protecting trails lands.[53] Although federal land managing agencies were authorized to acquire necessary land through condemnation and purchase, as a practical matter limited funding constrained federal authority for land acquisition.[54] Furthermore, even when the federal agencies did have the funding to purchase valuable lands, the Trails Act limited condemnation authority to twenty-five acres for each mile of trail.[55] This authority allowed for the acquisition of a 200-foot wide trail corridor that would ultimately prove insufficient to protect the unique values of the trail and to rebuff encroaching urban expansion and commercial development.

Testimony regarding the progress of the Trails Act in the U.S. House of Representatives in 1977 revealed that the legislation had not averted the threats the Trails Act was designed to address.[56] During the oversight hearings, it became evident that the Trails Act had overestimated the states' abilities to develop and protect trail lands without the federal government's assistance.[57] Testimony presented to Congress indicated that the land along the Appalachian Trail route was being developed at an alarming rate and that in a great many areas adverse development was threatening the existence of the trail.[58] Concerned with the limited progress thus far, Congress enacted amendments to the Trails Act to magnify the federal government's role in protecting trail resources.[59]

Most importantly, the 1978 Amendments increased the authority of the Secretary of the Interior to condemn up to 125 acres of land per mile and allocated an additional $90 million for land acquisitions.[60] This expanded authority would allow the federal government to acquire a trail corridor of 1,000 feet in width, substantially larger than the 200-foot corridor allowed by the original Trails Act. Furthermore, the amendments established advisory councils charged with trails administration and required the Secretary of the Interior to develop comprehensive land management plans for the trails.[61]

The 1978 Amendments reaffirmed and emphasized the congressional objective of the Trails Act, namely providing protection for more than a series of simple trails that could be negotiated by foot.[62] The amendments, although focused primarily on the protection of the Appalachian Trail, signified congressional concern over protection of trail and wilderness values beyond the trail itself.[63] In the case of the Appalachian Trail, the Park Service, through the Secretary of the Interior, was given the financial and legal mandate to complete the acquisition of land necessary to protect trail values.[64] The Trails Act Amendments have effected a doubling of trail miles under federal protection, with only approximately 26 miles of trail remaining to be officially protected.[65]

C. Land and Resource Management

The management of the Appalachian Trail is governed by a patchwork of statutory law, private agreements, and voluntary cooperation. The Trails Act assigns primary management responsibility for the Appalachian Trail to the Department of the Interior, which administers the trail as a unit of the NPS.[66] As with other units under NPS jurisdiction, the standards governing the management of the Appalachian Trail are set forth in the National Park Service Organic Act of 1916.[67] The management similarities end there, however, as the NPS manages the Appalachian Trail unlike any other unit in the system. The trail's unique management structure is due in large part to the historical successes achieved by private organizations and volunteers while establishing and maintaining the early trail.

While the Trails Act delegated formal administration authority to the Department of the Interior, Congress also sought to perpetuate the tradition of volunteer assistance.[68] Section 11 of the Trails Act provides that "the Secretary of the Interior . . . and the head of any Federal agency administering Federal lands, are authorized to encourage volunteers and volunteer organizations to plan, develop, maintain, and manage, where appropriate, trails throughout the Nation."[69] The Trails Act contemplates that volunteer responsibilities may include planning, developing, maintaining or managing the trails, operating and supervising trail programs, building efforts, research projects, and educational opportunities.[70]

This Congressional preference to shift trail management responsibility to volunteer organizations has led to the delegation of general oversight responsibilities and day-to-day maintenance authority from the NPS to the ATC, which has local clubs and affiliates in each of the fourteen states bordering the trail.[71] The legal relationship between the NPS and the ATC is defined in a written agreement [72] entered into under the authority of the Trails Act.[73] The agreement delegates most of the on-the-ground decision-making responsibility to the ATC, but the NPS retains ultimate oversight and control, including all policy making and final decision-making authority with respect to macro-level issues affecting the trail.[74] As a practical matter, the agreement gives the ATC responsibility for maintaining and managing the trail outside of the proclaimed boundaries of national forests and existing units of the National Park system. Where the trail passes through federal lands, its management is coordinated by either the Forest Service or Park Service.[75]

The land and resource planning process, required by all units under NPS jurisdiction, makes clear the authority and control exercised by the federal government.[76] The NPS Organic Act directs the NPS to prepare "general management plans" for each of its park units.[77] General management plans are the basic planning documents that attempt to translate into words the mission of the NPS with respect to a particular unit, considering its unique resources, visitor requirements, and expansion or growth plans.[78] Although Congress neglected to make general management plans specifically binding on the Park Service, these plans provide a reviewing court with standards against which subsequent management actions may be judged and, therefore, do have an actual impact on management decisions.[79]

In addition to the general planning requirements embodied in the NPS Organic Act, the Trails Act separately provides for an additional level of planning to account for the unique differences between national trails and other units of the park system.[80] First, Congress recognized that Appalachian Trail management would involve a unique partnership between the federal government and those state and local governmental agencies and private groups sharing a common border with the trail along its entire length.[81] Second, unlike other units in the national park system, the length of the trail would bring it into contact with an almost unmanageable number of state, local and private landowners and would traverse a wide range of geographic, ecological and socioeconomic regions, presenting management challenges unlike those encountered in the more homogeneous parks.[82] Therefore, in order to accommodate the local and regional diversity of the trail territories, trail management would have to forego traditional planning processes in favor of a more cooperative management system.

Section 7(h) of the Trails Act addresses these concerns, providing that the responsible Secretary, in consultation with state and local governments and private organizations, shall prepare "a comprehensive plan for the acquisition, management, development and use of the trail."[83] The plan must contain "specific objectives and practices to be observed in the management of the trail, including the identification of all significant natural, historical, and cultural resources to be preserved."[84] In addition, the plan must address "details of anticipated cooperative agreements to be consummated with other entities" and plans for the protection of all trail lands or interests in lands.[85] Finally, the comprehensive plan must include "site-specific development plans including anticipated costs."[86]

Pursuant to this directive, in September 1981, the NPS adopted a Comprehensive Management Plan (Plan) for the Appalachian Trail.[87] While recognizing the value of a cooperative system of management, the Plan expresses a dominant management philosophy that would govern the entire trail, despite the decentralization of management authority to local organizations.[88] The Plan sets forth nine principles and policies that define the Trail's mission and constrain the actions of local management organizations.[89] Most importantly, the Plan provides that the "Appalachian Trail will be managed to favor those values which have been traditional as goals within the [Appalachian Trail] community."[90] The Plan further defines this policy statement as, for example, prohibiting commercial enterprises along the Trail and exercising care that the "primitive quality" of the Trail not be lost.[91] A second major policy directive calls for land management that will protect the Appalachian Trail's diverse character.[92] This directive does not mean that the Trail is open to commercial or other forms of development as a qualified "diverse use."[93] Instead, the directive emphasizes that diversity in land management policies is acceptable so long as it does not interfere with the Trail's primary mission.[94]

The Plan specifically identifies the importance of protecting and preserving the viewshed[95] along the Trail, stating that "open areas and vistas are a particularly pleasing element of the [Appalachian Trail]" and should be preserved.[96] To protect viewsheds and other unique aspects of the Trail environment, the Plan cites supportive zoning, conservation easements, and voluntary restraint on adjacent private lands as appropriate management tools.[97] Furthermore, to the extent that Trail values cannot be protected by cooperative or voluntary measures, the Plan states that incompatible activities shall be controlled by "enforcement of laws and Trail regulations."[98]

The management philosophy and guiding principles articulated in the Plan are important for several reasons. First, the Plan embodies an expression of the Park Service's and the public's collective expertise on how best to manage the Appalachian Trail to conform with its obligations under the Organic Act and the Trails Act. Second, the Plan is not merely advisory, but is legally binding on the NPS with respect to all trail management decisions. These trail management decisions are subject to judicial review as provided by the Administrative Procedures Act (APA).[99]

The Plan recognizes that growth and development continue to threaten the isolated and scenic character of the Appalachian Trail. The Plan states that "the presently wild or pastoral areas through which the Trail passes will be continuously under pressure [from] many kinds of development: recreational homes, ski areas, mining and industrial operations, communications facilities, highways, and energy projects."[100] In the past, the threats had been abated by federal acquisitions. However, the NPS could not foresee the enormity of the threats that would arise with the enactment of the Telecommunications Act of 1996, nor could it envision the complex solutions likely to be needed. These solutions may require the NPS to look beyond its traditional philosophy of seeking compromise and cooperation in resolving Trail issues.


The Telecommunications Act of 1996 was enacted by Congress to address the burgeoning demand for new telecommunications services.[101] In 1993, there were typically only two telecommunications carriers in any one service area, but by 1998, some urban areas were being served by as many as eight carriers.[102] The new telecommunications technology requires a greater concentration of cellular facilities to transmit signals than was required by the older technology.[103] Telecommunications facilities typically consist of a tower, which may reach heights of up to 1,000 feet, and an attached antenna to transmit the signal.[104] In addition, there may be an out-building to house equipment and an access road leading to the tower site.[105] The telecommunications industry anticipates constructing a grid of telecommunications towers one to two miles apart throughout the nation in order to effectively transmit signals to the growing number of consumers demanding universal access to instant communications.[106]

Industry analysts predict that at least 100,000 new towers will be needed in the next ten years to handle the growing demand for communications services.[107] In addition to the towers necessary to support new personal communications services, the introduction of high definition television (HDTV) will necessitate the construction of thousands of additional towers reaching heights of 2,000 feet and higher.[108] There telecommunications towers are constructed by private industry, with the approval of the federal government and, to a more limited extent, local governments.

Telecommunications carriers paid $20 billion to the FCC for the right to use the high frequency spectrum to transmit the new telecommunications signals.[109] Under this system, licansees are issued a blanket license for an entire market area, and the licensee then has the right to construct its telecommunications infrastructure anywhere within that area.[110] Depending on the height of a proposed tower structure, the licensee must also register with the FCC each individual tower constructed within its market area.[111]

The telecommunications industry believed the substantial prices paid for these rights warranted the federal government's assistance in getting the system up and running.[112] Consequently, the FCC ordered a rapid build-out of telecommunications facilities so that carriers would be able to recover their costs as soon as possible.[113] Section 704 of the Telecommunications Act facilitates the expeditious introduction of telecommunications services by curtailing local government authority to regulate or prohibit placement of telecommunications infrastructure within their jurisdictions.[114] Section 704 prohibits a local zoning authority from unreasonably discriminating among providers of functionally equivalent services.[115] Under this section, at least one court has held that a zoning authority unreasonably discriminates if it denies a tower siting request in a district where other towers have been approved under the same regulatory standards, without any reason given for the discriminatory treatment.[116] In addition, the Telecommunications Act prohibits local governments from adopting regulations that "prohibit or have the effect of prohibiting the provision of personal wireless services."[117] This standard forbids local jurisdictions from enacting permanent bans or moratoria on the provision of wireless services in a community.[118] Finally, section 704 requires that any rejection of a tower application be based upon substantial evidence.[119]

The courts have been inconsistent when defining the threshold level of substantial evidence required to support the denial of a tower application, especially where the tower siting is rejected for aesthetic reasons.[120] The FCC, in a recent rule making, has proposed that wireless carriers be relieved from complying with local standards in obtaining suitable tower sites.[121] Furthermore, the Telecommunications Act recognizes that industry may have to site telecommunications facilities on federal lands in order to accomplish the goal of providing universal access to telecommunications services to all Americans.[122] Consistent with the Telecommunications Act's policy of swift implementation of telecommunications facilities nationwide, section 704(c) provides that:

In enacting section 704(c), Congress sought "to make available to the maximum extent possible the use of federal government property" for siting telecommunications facilities.[124] The House Committee on Commerce conceded that certain uses of federal property would not be suitable for telecommunications facilities, stating that the use of "the Washington Monument, Yellowstone National Park or a pristine wildlife sanctuary, while perhaps prime sites for an antenna and other facilities, are not appropriate and the use of them would be contrary to environmental, conservation, and public safety laws . . . ."[125] Thus, the legislative history indicates that the build-out of telecommunications facilities would be permissible on federal lands, so long as the placement of the antennas on federal property does not contravene any other "environmental, conservation or public safety laws."[126]

An Executive Memorandum issued by the White House directed the General Services Administration (GSA) to promulgate rules for siting telecommunications facilities on federal property.[127] The memorandum supported the use of federal lands for the "rapid construction" and "efficient and timely implementation of such new technologies and the concomitant infrastructure build-out" of the nation's wireless communications network.[128] The guidelines developed by GSA were to be consistent with, among other factors, environmental and aesthetic concerns, the protection of natural resources, national park and wilderness values, protection of National Wildlife Refuge systems, and subject to "any Federal requirements promulgated by the agency managing the facility."[129] The memorandum did not purport to "give the siting of [telecommunications] antennas priority over other authorized uses of Federal buildings or land."[130] Despite encouraging the rapid deployment of a telecommunications network, the Executive Memorandum, consistent with congressional concerns, acknowledged that in certain circumstances, environmental and aesthetic values may take precedence over the unrestrained growth of telecommunications infrastructure.[131]

The GSA regulations implementing the Executive Memorandum provide that each agency must determine the extent and programmatic impact of placing commercial telecommuni-cations antennas on their properties.[132] Furthermore, these regulations require federal agencies to review their policies and procedures for allowing commercial use of their property and to modify them as necessary to assure that they fully support the siting of antenna facilities.[133] When evaluating a siting request from industry, each agency must consider environmental and historic preservation issues, including, among other factors, public health and safety concerns, aesthetics, protection of natural and cultural resources, and compliance with the National Environmental Policy Act and any internal agency policies.[134] Each agency has the discretion to reject inappropriate siting requests to assure adequate federal property protection. In cases where antenna siting requests are denied, the service providers are granted the right to appeal the decision to a higher level of agency authority.[135]

It was not long before the telecommunications industry's continued expansion would come into conflict with the preservationist mandate of the NPS. In one instance, the telecommunications industry sought to situate several telecommunications towers adjacent to, and within the viewshed of, the Blue Ridge Parkway.[136] The park's superintendent urged twenty-nine communities bordering the parkway to reject tower siting requests that would negatively affect the park's viewshed.[137] The NPS's stance was motivated by its policy that "cellular towers are a visually intrusive and nonconforming use to national parks."[138]

As a result of the NPS's "stonewalling," industry representatives criticized the Park Service in a letter to the President, alleging that "federal agencies [were] either ignoring the [presidential] order or actively engaging in dilatory tactics."[139] In response, the President ordered the Park Service to accommodate the telecommunications industry.[140] The NPS issued guidance to assist park managers in processing applications to site telecommunications facilities on park property.[141] The NPS interpreted the executive memorandum as leaving very little room for the denial of a request to site a telecommunications facility on or near national scenic trails.[142] The NPS's interpretation was based on the memorandum's requirement that the Park Service prove that a particular telecommunications tower would "cause an unavoidable conflict with the agency's mission or current or planned use of the property" before it could deny a siting request.[143] Thus, although the NPS's mission is clearly stated in the Organic Act, the Trails Act, and the general management plan for a particular park, and the Telecommunications Act itself contemplates the incompatibility of communications facilities with certain natural resource values, the pressures exerted by the telecommunications industry thus far have caused the NPS to question the value of its goals.

To date, the NPS and the Appalachian Trail community have effectively resisted industry's efforts to construct telecommuni-cations towers within the confines of the park's boundaries. However, they will not likely enjoy as much success in protecting the trail from more pervasive effects of the Telecommunications Act. Since along much of its route the trail corridor ranges from 250 to 1000 feet, there is relatively little federal land upon which telecommunications facilities can be situated. Furthermore, because industry recognizes that a proposal to site a telecommunications facility directly on Park Service property would likely raise a public outcry, industry has instead looked to the vast local and private land holdings that surround the trail.[144] However, the telecommunications facilities sited immediately outside the park's boundaries present an even greater threat to the integrity of the trail, due to the immense number of telecommunications towers that may be sited within the trail's viewshed and because the NPS's authority and political will to regulate threats of such widespread proportions is questionable.


The Appalachian Trail has yet to feel the full impact of the Telecommunications Act. Although there have been minor skirmishes between industry and federal land managers, the Telecommunications Act is still relatively new and the build-out of telecommunications facilities on a wide scale is only now just beginning.[145] Yet it is not difficult to foresee the inevitable conflict just over the horizon. As natural areas increasingly become the unwilling neighbors of encroaching development, it may no longer be practical to define the land managers' authority as strictly limited to the physical boundaries of the public land they administer. Instead, as development grows closer, impacts and intrusions once viewed as inconsequential have become magnified.

In the meantime, the NPS, through the Appalachian Trail Conference and other national trails organizations, has worked toward successfully resolving some tower siting issues in an amicable fashion.[146] An agreement has been proposed that would encourage telecommunications companies to notify the governing trail organization of a tower siting planned within the trail's viewshed.[147] Early notification would allow trail organizations and the NPS to offer comments during the planning process to more effectively influence the siting decision.

Proposals like this one are clearly the first steps in easing the growing tension between the telecommunications industry and the trail community. However, agreements like the one mentioned would not impose any legally enforceable commitments on industry. Instead, the duty to notify trails organizations prior to siting a tower within the trail's viewshed would ostensibly be a voluntary one, not subject to FCC oversight and enforcement.[148] For example, in a particularly difficult case, where it may be in industry's best interest to construct a tower within the trail's viewshed, it is likely that industry would ignore the voluntary notice procedures and construct the telecommunications tower irrespective of the wishes of the trail community.[149] Beyond mutual cooperation, the continued protection of the trails will depend on other legally enforceable alternatives to restrict the siting of telecommunications towers within the viewshed of the scenic trails.

A. National Park Service Organic Act

The NPS Organic Act was enacted in 1916 to "promote and regulate the use of the Federal areas known as national parks, monuments, and reservations."[150] In carrying out this goal, the NPS was instructed "[t]o promote and regulate the use of the Federal areas known as national parks . . . by such means and measures as conform to the fundamental purpose of the said parks . . . which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."[151] The Organic Act singles out the national parks' scenic resources as among those resources with such fundamental importance to the mission of the park system that they are worthy of protection by "such means and measures so as to keep them unimpaired for the enjoyment of future generations."[152] Those scenic resources, such as mountain vistas, uninterrupted stretches of wilderness, and cascading waterfalls, that are wholly contained within a park's boundary are inarguably subject to the Park Service's preservationist mandate.

More troubling, however, are those scenic resources whose focal point may be located just beyond the park's formal boundary line. Since these scenic resources emanate from a source outside of the park's environs, one may argue that under the Organic Act these resources are not subject to the Park Service's protective authority.[153] Other commentators, however, have suggested that aesthetic and visual resources located outside a park's boundaries are subject to Park Service regulation.[154] This perspective relies on the common understanding of the term "use" in section 1 of the Organic Act, allowing the NPS to regulate the use of the parks to promote the twin aims of preservation and enjoyment of the resources.[155] If the "use" is located within the confines of the park, then it may be regulated.[156] For uses such as hiking, nature study, and conservation of plants and wildlife, there is little doubt that these uses are subject to regulation because they all occur inside the park itself. Similarly, where a scenic view encompasses a far off vista which may not lie within the park's formal boundaries, one may argue that the use is located within the park if the user is physically located in the park. The visual resource that the park visitor enjoys is a use occurring within the park's confines.[157] Therefore, under this interpretation of the Organic Act, the NPS would have the authority to regulate transboundary obstructions that have the potential of degrading a park visitor's visual experience.

According to this interpretation, the NPS would have the legal authority to regulate the siting of wireless towers outside the trail's property lines but within the viewshed of the Appalachian Trail. These towers create a visual intrusion on a fundamental resource value which the NPS is obligated to protect under the Organic Act.[158] Even where the telecommunications towers are located outside the boundaries of the protected trail corridor, their very size and composition tend to dominate the landscape and seize the attention of the trail user, and so the effect of placing a telecommunications structure next to the trail can completely destroy a central reason for the trail's existence.

The national scenic trails are not merely footpaths designed to transport foot travelers from one location to another. The drafters of the Trails Act recognized that the width of a footpath may not be sufficient to protect all trail values and therefore additional acquisitions would be required to meet the purposes for which the trail was established.[159] Indeed, Congress recognized the unique character of the trail by granting it protection under the Trails Act, and placing its unique values under the care of the Park Service.[160]

To be sure, the Trails Act did not purport to give to the NPS the unbridled authority to restrict development anywhere within the viewshed of the trail. The original Senate bill referred to maintaining the primeval character of the trail, as originally envisioned by its founders.[161] In a subsequent draft, the word "primeval" was replaced with the term "natural" to describe the desired park environment.[162] In the debate that took place on the Senate floor, Senator Aiken inquired as to the meaning of this revision.[163] Senator Jackson responded that "'natural' is, I would think, pretty much synonymous with 'primeval.' 'Primeval,' one might say, means even older and a better description of the oldest possible state."[164] Senator Aiken pushed for further clarification: "Primeval means just as God left it?"[165] Senator Jackson agreed. And "natural," Senator Aiken continued, "means about as the last man that operated there left it?"[166] Senator Jackson responded that "perhaps" that was the proper understanding of the amendment.[167] Thus, the Trails Act was not meant to be a wilderness protection act.

More instructively, however, Senator Jackson stated that a "natural" condition would not prevent development such as "ski trails or ski runs" but was intended to mean that the trail not move into "commercial and industrial type developments."[168] In contrast, the Trails Act would not necessarily prohibit logging operations, resort hotels and ski resorts which were more in harmony with the fundamental purposes of the scenic trails. Senator Aiken then asked whether the Trails Act would create a "scenic easement" that would prohibit logging or other operations on a distant slope within the view of the trail.[169] Senator Jackson answered no, not if they were on a "distant" slope.[170] Senator Aiken then got to the heart of the matter: "If a new ski slope or area were contemplated near a trail, would the promoters of the ski area be in violation of the law?"[171] Senator Jackson responded that it would not be a per se violation of the Trails Act for "a trail [to go] by or near a ski resort."[172] Thus, it would be within the land manager's discretionary authority to determine whether an economic activity proposed near the trail was incompatible with the trail and thus in violation of the Trails Act. [173]

The colloquy on the Senate floor can be interpreted in various ways. First, at face value, it appears that the Senate intended not to grant the federal government a "scenic easement" to protect the viewshed along the trail. Such a reading, however, assumes too much. The senators distinguished uses that would be compatible with the trail experience, such as ski runs, logging, and resort lodging. When correctly implemented, these uses are not necessarily incompatible with the trail's purpose. Other uses, such as "commercial and industrial type developments," would be completely out of character with the trail and were not viewed as compatible with the trail environment. Secondly, Senator Jackson's remarks reflected a hesitancy to draw clear lines separating compatible and incompatible land uses near the trail. Jackson's solution left these discretionary decisions to the land management agency charged with protecting the trail. In any event, Jackson acknowledged that, in some cases, federal regulatory authority may reach beyond the confines of the trail boundary to prevent incompatible uses that take place near the trail.[174]

In order to protect trail values, the Park Service has determined that telecommunications towers constructed within one mile of the trail's centerline have the potential to negatively affect trail values.[175] This position appears to be a legitimate interpretation of the Trails Act and its legislative history. While the Trails Act did not intend to confer a scenic easement to protect the trail's scenic views, it did intend to vest some discretionary authority in the land managers to protect this unique resource.[176] Moreover, unlike ski runs and logging operations, it is much more difficult to reconcile the presence of a two hundred-foot tall telecommunications tower with the surrounding natural environment. In general, these towers are designed to be conspicuous, rising above the surrounding land forms and dominating the landscape. These types of physical intrusions go beyond the compatible uses cited in the legislative history and were not likely encompassed within Congress' understanding of those uses that could be harmonized with the national scenic trails.[177]

Even if the Organic Act and the Trails Act, when interpreted together, are not viewed as conferring upon the Park Service sufficient authority to regulate transboundary threats to the Appalachian Trail such as those posed by telecommunications towers, the Redwoods Amendments,[178] enacted by Congress in 1978, offer an additional source of regulatory authority. The enactment of the Redwoods Amendments was a well-aimed response from Congress to target the problems the NPS faced with threats that arose outside the borders of Redwoods National Park in California.[179] Congress created Redwoods National Park in 1968, dedicating nearly 58,000 acres for the protection of the resident coastal redwoods, Sequoia Sempervirens.[180] Most of the land upon which the redwoods grew was privately owned and was being used for timber production.[181] In establishing the park, the federal government had to acquire park land from private owners, some of whom were more willing to sell than others.[182] The resulting park boundary was gerrymandered so as to include several of the tallest groves of redwoods.[183] This resulted in a jagged boundary line, exposing many areas of the park to external pressures from three sides instead of one or two.[184] The threats came primarily from privately owned timber companies that continued to harvest timber on the adjacent private lands.[185] These timber cuts destabilized the ecosystem, generating silt that polluted the park's waterways.[186] The timbering also led to erosion of stream banks and the earth supporting the root systems of the massive redwoods, raising concerns about the trees' continued survival.[187]

The threats to the redwoods resulted in a series of lawsuits initiated by the Sierra Club, alleging that the Secretary of the Interior, through the Park Service, had an affirmative duty to protect the park's resources from those threats arising outside the park's boundaries.[188] In these cases, known collectively as the Sierra Club cases,[189] the court held that the Secretary had the substantive authority and a duty under the Organic Act to take affirmative actions as were reasonably necessary to protect the park from external threats by, for example, acquiring surrounding lands to serve as a buffer.[190] The court found such authority in the "trust" relationship existing between the Secretary of the Interior and the public lands that he was charged with preserving, obligating him to protect and conserve "the scenery and the natural and historic objects and the wild life" in the parks.[191] More importantly, the court determined that the duty to preserve the parks from external threats arose from the Organic Act itself.[192] Ultimately, the court recognized that the Secretary's authority was inadequate to fully address the external threats affecting the park.[193] The court held that:

In response, Congress enacted the amendments to the Organic Act, informally referred to as the Redwoods Amendments,[195] to clarify the scope of the Park Service's land management authority under the Organic Act. The pertinent portion of the Redwoods Amendments reads as follows:

This ambiguous sounding amendment was intended to clarify that the Park Service has the management authority, and in fact a management duty, to take those actions necessary to protect the integrity of park values, including threats arising beyond a park's boundaries.[197] This meaning is supported by the legislative history, which states that "[T]his restatement of these highest principles of management is also intended to serve as the basis for any judicial resolution of competing private and public values and interests in the areas surrounding Redwoods National Park and other areas of the National Park System."[198]

Thus, the Secretary of the Interior is required to conduct management activities in a manner that does not permit destruction of park values, irrespective of whether the threats are internal or external to the park boundaries.[199] The Secretary's protective duty appears to be mandatory, absolutely prohibiting the Park Service from performing its administrative functions in derogation of the values of the Organic Act. The Redwoods Amendments also require the Park Service to act affirmatively, by adopting necessary regulations or taking appropriate management actions to preserve park values threatened by incompatible activities.[200]

The Redwoods Amendments would also require the Park Service to preserve those values specifically protected by Congress in the legislation creating a particular park.[201] In the case of the Appalachian Trail, the Trails Act sought to protect a wide range of values associated with the hiking experience, including scenic views.[202] While the legislative history suggests that Congress did not intend an unlimited preservationist mandate, the history does evidence Congress's concern for protecting the trail from scattered visual intrusions from outside the park.[203]

Moreover, in its Management Plan for the Appalachian Trail, the Park Service has interpreted the Organic Act and the Trails Act as requiring the protection of, among other values, the scenic views from the trail.[204] The Management Plan recognizes that visual resources are an integral part of the scenic trails system and are required by statute to be preserved and protected.[205] One may argue that the Redwoods Amendments require that the Park Service take all necessary actions to regulate intrusions on park visitors' visual experience. These actions would include the promulgation of regulations that would, for example, require Park Service involvement in all antenna siting decisions contemplated within one mile from the trail's centerline. Certainly, under traditional principles of judicial review governing agency decisionmaking,[206] such an interpretation would not only be a permissible one, but would arguably be required to discharge the Park Service's duties under the Organic Act.[207]

An example of such a regulatory provision might simply be to require the FCC to give the Park Service written notice upon receiving an application from a telecommunications carrier to construct a tower within one mile of the trail corridor. Under such a regulation, no action could be taken with respect to the tower construction for ninety days, during which time the Park Service would have the opportunity to prepare a visual impact assessment of the proposed tower and suggest alternatives to mitigate impacts on the viewshed. Finally, an appropriate regulation might also require the FCC, along with an industry representative, to meet with the NPS to consider the effects of the siting decision on nearby scenic trails and to identify any proposed alternatives. If the location of the proposed tower is inconsistent with the primary values the Park Service is mandated to protect, then tower construction would not be able to proceed absent mitigation. As discussed later in this Article, mitigatory measures are nearly always available to reduce the overall visual or environmental impacts of siting a telecommuni-cations tower.[208] This process could be coordinated with the environ-mental analysis required under the National Environmental Policy Act and therefore would not necessarily add additional layers of bureaucracy, inefficiency, or expense.[209]

B. Property Clause

Clearly, the NPS has the authority to actively regulate placement of a telecommunications tower within the boundaries of the trail corridor itself. However, the NPS's authority to reach beyond its borders and prohibit conduct on adjacent private or public lands is more problematic.[210] Historically, the courts have recognized that the Property Clause of the United States Constitution gives Congress nearly absolute authority to manage the lands owned by the United States.[211] The Property Clause declares that "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."[212] In the early case of Camfield v. United States, the Supreme Court held that Congress could prohibit the erection of a fence on private property if the effect would be to block access to adjacent federal lands.[213] The Court reasoned that the federal government's power to manage its lands is "analogous to the police power of the several States, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case."[214]

Thus, though the object of the regulation occurred on private property, it was a valid subject of federal control because the measure was designed to protect rights associated with federal property. Later, in United States v. Alford, the Supreme Court again upheld congressional regulation of private property to protect the public lands.[215] The act in question prohibited leaving a fire unextinguished "in or near" any national forest.[216] The law was challenged on the grounds that Congress lacked the authority to regulate land use decisions on non-federal lands.[217] In upholding congressional authority, the Court held that "[t]he danger depends upon the nearness of the fire, not upon the ownership of the land where it is built . . . . The statute is constitutional. Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests."[218] Absent from both the Alford and Camfield cases, however, was any explicit reference to the Property Clause as the source of congressional authority to regulate non-federal land.

Subsequently, in Kleppe v. New Mexico,[219] the Supreme Court clarified the basis for its jurisprudence authorizing Congress to regulate non-federal lands.[220] At issue in Kleppe was the Wild Free-Roaming Horses and Burros Act of 1971, enacted to protect "all unbranded and unclaimed horses and burros on public lands of the United States" from "capture, branding, harassment, or death."[221] Under the Act, if horses or burros "stray from Public lands onto privately owned land, the owners of such land may inform the nearest Federal marshal or agent of the Secretary [of the Interior], who shall arrange to have the animals removed."[222] A state livestock board proceeded to round up and attempt to sell nineteen unbranded burros that strayed off federal lands.[223] The Bureau of Land Management asserted jurisdiction over the burros and demanded that the animals be returned to public lands.[224] The State of New Mexico sued, alleging that the Wild Free-Roaming Horses and Burros Act was unconstitutional.[225]

Not surprisingly, the Supreme Court upheld the constitutionality of the Act.[226] Relying on Camfield and Alford, the Court reasoned that the Property Clause gives Congress the complete power to make all needful rules respecting public lands, even though the particular congressional action is not intended to protect the public lands from damage.[227]In Camfield and Alford, the actions which took place on private land directly threatened the value of the adjacent federal lands. In contrast, the Wild Free-Roaming Horses and Burros Act did not attempt to protect the well-being of federal lands themselves, but was aimed at protecting wild animals that could not be considered federal property. The Court's message was clear; the Property Clause was broad enough to reach beyond the territorial limits of federal property and regulate wildlife integral to the federal lands. The Court in Kleppe concluded that the power conferred on Congress under the Property Clause was without limitations.[228] The Kleppe holding has been applied repeatedly by the lower courts to affirm congressional control over activities occurring on non-federal property that would affect federal land.[229]

More important to Appalachian Trail management, however, is whether the NPS and other federal land management agencies can exercise regulatory control over conduct occurring on non-federal lands without specific authorization from Congress. The care and management of the Appalachian Trail has been entrusted by Congress to the NPS, and it follows that Congress also intended to bestow upon the NPS the full constitutional authority to manage and protect the trail lands. The courts have, in other circumstances, upheld the authority of federal agencies to regulate private activity on non-federal land to protect federal interests. For instance, in United States v. Lindsey, the Ninth Circuit upheld a Forest Service regulation that prohibited the building of a fire on state land within the boundaries of Hells Canyon National Recreation Area.[230] The court held that it was "well established" that the Property Clause "grants to the United States power to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property or navigable waters."[231] In United States v. Arbo, the court upheld a Forest Service inspection of a private mining claim on state land adjacent to a National Forest.[232] The court in Arbo held that the actions of the Forest Service were reasonably necessary to protect adjacent federal property, and thus were valid under the Property Clause.[233] Likewise, in United States v. Stephenson, the Fourth Circuit upheld the actions of the NPS in prohibiting bear hunting on non-NPS lands adjacent to the Great Smoky Mountains National Park.[234] The court in Stephenson held that "Congress created national parks in order to conserve the scenery and the natural and historic objects and the wildlife therein . . . ."[235] The court reasoned that "[w]ere [they] to hold that NPS cannot enforce Park [regulations] on the [lands adjacent to the Park], hunters could easily circumvent the protections for Park wildlife . . . . This would frustrate the purpose for which the national park system was established."[236] These cases are significant because they acknowledge that federal agencies may exercise land management authority under the Property Clause that has been lawfully delegated to the agencies by Congress.

The NPS has not been eager to wield its protective authority by regulating the potential visual impacts resulting from the construction of telecommunications towers close to the trail corridor.[237] Nevertheless, authority does exist for the NPS to take affirmative steps to discourage the construction of telecommunications facilities within the trail's viewshed. The protection of visual and aesthetic values are central to the mission of the Appalachian Trail. Like the NPS's protection of wildlife values found to be integral to the NPS's mission in Stephenson, the NPS has the authority under the Property Clause to regulate external threats to the physical, as well as the aesthetic, integrity of the trail.

The legislative history of the Trails Act illustrates that the primary aim of the statute was not simply to protect a narrow pathway that could be traversed by foot, but instead was designed to protect a full panoply of trail values, including wilderness, aesthetics, recreation, and scenic views.[238] In comments made on the Senate floor during the proposed 1978 Amendments to the Trails Act, Senator Durkin stressed that the trail was to be something more than "a path from a group of second homes to a roadside fast food stand."[239] The 1978 Amendments were urgently needed for "this historic trail . . . to remain what it has been, and what its founders meant it to be—a wilderness trail from Maine to Georgia."[240] Thus, the elements of the trail worthy of protection were no different from those values the NPS is charged with upholding under its Organic Act. Arguably then, encroachments to scenic and aesthetic values that interfere with the trail experience may be regulated by the NPS under the Property Clause, even in the absence of an explicit congressional directive to do so. Indeed, the NPS may have the affirmative duty to take those actions necessary to protect the values Congress thought it had preserved in 1978.

C. National Environmental Policy Act

The National Environmental Policy Act[241] (NEPA) has become an integral part of the federal land use management and planning process. Section 101 of NEPA declares a national policy of assuring "[a]esthetically and culturally pleasing surroundings" and of preserving "important historic, cultural and natural aspects of our national heritage."[242] In light of the "profound influences of population growth [and] high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances," Congress sought to "create and maintain conditions under which man and nature can exist in productive harmony."[243] To implement this policy, NEPA requires that an "agency, in reaching its decision, will have available, and will carefully consider detailed information concerning significant environmental impacts."[244] Although "NEPA establishes environmental quality as a substantive goal," it does not mandate any particular result, but simply prescribes the necessary process.[245] Nevertheless, by undertaking a detailed and thorough analysis of the environmental consequences of a particular decision, NEPA is "almost certain to affect the agency's substantive decision."[246] This result can be attributed, in part, to NEPA's other primary function - information to the public.[247] With the knowledge that its decisionmaking process will be subject to public scrutiny, NEPA may encourage an agency to make decisions based on environmental factors which they would not otherwisebe inclined to consider.

NEPA applies only to those proposals for major federal action that significantly affect the human environment.[248] The courts have held that proposed actions that would have an effect on the aesthetic qualities of the natural environment may constitute a significant effect on the human environment so as to require NEPA compliance.[249] Often, however, aesthetic values are imprecise and difficult to quantify because they are evaluated without a supporting scientific foundation or are not measured with explicit criteria.[250] Nevertheless, the Council of Environmental Quality regulations require consideration of aesthetic values in the environmental review process.[251] When measuring a proposal's effects, federal agencies must consider "direct" and "indirect" impacts on the aesthetic environment.[252] Also, in determining the significance of an aesthetic impact, an agency must consider the overall context of the proposal including, for example, the "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, [or] park lands."[253] Thus, even though aesthetics are difficult to quantify, that difficulty does not allow an agency to evade NEPA's requirements when evaluating aesthetic values.

Federal projects that would obstruct natural scenic views have been held to require NEPA compliance.[254] This requirement may apply with greater force if scenic views were considered to be a "resource" protected by the NPS under the Organic Act. Certainly the protection of aesthetic values is at the core of the national park movement and the protection of scenic views would be integral to protecting the full range of aesthetic values.[255] Thus, under existing jurisprudence, an agency could reasonably interpret NEPA as requiring an environmental analysis before siting an FCC-licensed telecommunications tower within a national scenic trail's viewshed.[256]

The FCC, on the other hand, has been reluctant to concede that the placement of a telecommunications facility within the one-mile corridor of a national scenic trail would impact the environment so as to trigger its NEPA obligations.[257] The FCC first promulgated its NEPA regulations in 1974. In the original rule making, the FCC identified certain classes of FCC-permitted activities that would require the preparation of an Environmental Assessment (EA) under NEPA.[258] These activities included the construction of certain antenna towers, satellite earth stations, or communications facilities located in or affecting wilderness areas, wildlife preserves, places listed on the National Register of Historic Places, and areas recognized either nationally or locally for their special scenic or recreational value.[259] The FCC's initial rules specifically recognized the negative effects an improperly sited telecommunications tower could have on scenic views and sought to address these issues in the NEPA process.[260]

The FCC has since revised its NEPA implementation rules and removed the special protections provided for scenic and recreational areas.[261] Under its revised rules, the FCC has determined that aesthetic concerns will not generally require the agency to comply with NEPA.[262] Instead, in Rule 1.1307, the FCC has identified only eight circumstances that would trigger NEPA compliance.[263] These circumstances include the siting of tele-communications towers (1) within the boundaries of designated wilderness areas; (2) within designated wildlife preserves; (3) in areas with endangered species or critical habitats; (4) that may affect historical sites as listed in the National Register of Historic Places; (5) in Indian religious sites; (6) on 100 year flood plains; (7) that involve significant changes in surface features; or (8) that use high intensity white lights in residential neighborhoods.[264] To the extent that a specific activity is not listed in Rule 1.1307, it is the FCC's position that all such other actions are "categorically excluded" from NEPA compliance.[265] For other types of projects that may have a potential impact on the environment, the FCC contends that its NEPA obligations are satisfied by providing a "safety valve" provision whereby interested persons can petition the FCC on a case-by-case basis.[266] If the FCC determines that the environmental impacts are significant, it may require the preparation of an EA. The FCC has cautioned, however, that this residual category is to be invoked only in "extraordinary circumstances."[267]

In its current NEPA rules, the FCC decided to drop the automatic protection for scenic, natural, and wilderness areas that would be negatively affected by telecommunications towers because commentators protested that the definition of aesthetic and scenic values was "unduly vague." [268] In addition, the FCC found that "aesthetic concerns may more appropriately be resolved by state, regional or local land use authorities."[269] While this may be true in many other situations, as has been discussed earlier,[270] the Telecommunications Act of 1996 does not accord local land use authorities a traditional degree of latitude in regulating land uses, such as the siting of telecommunications towers, within their jurisdictions.[271] Furthermore, the negative effects of siting a tower adjacent to a trail corridor may fall disproportionately upon the trail lands rather than on the local community. In such circumstances, the local land use agency is not likely to adequately represent the interests of the agency managing the trail.[272] For instance, with respect to a tower proposed to be sited adjacent to the Appalachian Trail, the Park Service would consider the cumulative impacts of antenna intrusions along the entire trail and the effects that the Telecommunications Act would have on the national interests embodied in the Trails Act. Local land use planning bodies would likely have more parochial concerns. Consequently, the FCC's NEPA implementation rules and the local land use decision-making process are likely to prove inadequate in addressing the potential pressures placed on the trail throughout its length.

The question, then, is whether the FCC's categorical exclusion regulations are lawful. In general, the decision whether to adopt a categorical exclusion requires that the agency determine in advance the environmental significance of its actions. This analysis is similar to the significance determination agencies make when they decide whether to prepare an Environmental Impact Statement (EIS).[273] If the agency finds that the proposed action would not present a significant effect on the human environment, such that an EA would not be required, it may be categorically excluded.[274] Categorical exclusions are inappropriate where an action has cumulative impacts, where it presents unique or unknown risks, or where the action is controversial.[275]

Several potential problems exist with respect to the FCC's NEPA regulations as applied to the infrastructure build-out contemplated in the Telecommunications Act. First, the FCC has not simply excluded from NEPA certain actions "which do not individually or cumulatively have a significant effect on the human environment."[276] The FCC's categorical exclusion regulations exclude all agency actions except for those that fall into the enumerated list of actions that do trigger NEPA.[277] Thus, under its own regulations, the FCC must take a hard look at environmental impacts only in those limited circumstances identified in the rule. The environmental impacts of any other type of agency action, including those having a significant impact on the environment but which are not identified in the FCC's NEPA regulations, need FCC consideration only if brought to the agency's attention by individual petition under the "safety valve" provision.[278] This provision, in effect, shifts the burden of NEPA compliance from the agency to the public. The use of categorical exclusions by agencies is not intended to provide an exemption from NEPA compliance but is merely an administrative tool to avoid paperwork for those actions without significant environmental impacts.[279] Clearly, the aesthetic and visual impacts caused by the construction of a network of telecommunications towers within the trail's viewshed will significantly detract from the trail experience, and thus should require uniform NEPA compliance.[280]

Secondly, a single telecommunications tower erected in the vicinity of the trail may arguably have a de minimis impact on a particular section of the trail. However, a single telecommunications tower is functionless without a network of similar towers situated nearby to transmit the radio signal over long distances. As previ-ously discussed,[281] the infrastructure requirements necessary to support the new telecommunications system will require the con-struction of a nationwide grid of towers separated by distances of no more than one to two miles. The cumulative impacts of this infra-structure build-out along the entire trail will have a pervasive impact on trail values. Segmenting a large or cumulative project into smaller individual components so as to obviate the significance of NEPA impacts is unlawful.[282] Similarly, it is of equally questionable validity for the agency to attempt to shield itself from its NEPA obligations by claiming the benefit of a categorical exclusion based on an artificial analysis of each separate component of a project rather than consider the environmental effects of the project as a whole.[283]

Lastly, aesthetics, including viewsheds, are a resource that the Park Service is charged with protecting under the Organic Act.[284] Like wildlife, land, habitat, and recreational uses, the visual resource is of critical importance to the integrity of the national park system. While the FCC may view the aesthetic impacts of telecommuni-cations towers as "unduly vague,"[285] from the Park Service's perspective telecommunications towers have the potential to destroy visual resources which the Park Service is commissioned with protecting and preserving. In fact, federal land managers have developed a method to objectively quantify impacts to visual resources.[286] For instance, the Forest Service's Visual Management System classifies landscapes by character, type, variety, class, and sensitivity level.[287] The Appalachian Trail, because of its designation as a National Scenic Trail, is accorded a "sensitivity level 1," the highest sensitivity rating, susceptible to the lowest amount of intrusion.[288] In addition, visual impacts are analyzed from various distance zones, including a "visual foreground" ranging from one-fourth to one-half mile from the trail, followed by a middle-ground zone extending out to five miles, and a background zone beyond five miles from the trail's centerline.[289] The analysis under the Visual Management System yields a "Visual Quality Objective" that determines the acceptable degree of alteration to the natural landscape.[290] This system provides a scientific method for inventory-ing scenic viewsheds, thereby enabling federal land managers to quantify the amount of harm to these unique resources.

Even though the categorical exclusion may relieve the FCC from NEPA compliance for projects having only incidental aesthetic effects, the FCC has entertained individual petitions to comply with NEPA on a case-by-case basis.[291] In these cases, the FCC has ordinarily deferred the determination of whether NEPA compliance is required to the agency that has particular expertise in evaluating the potential environmental impacts.[292] For actions relating to the Appalachian Trail, the NPS would be the expert agency. Nevertheless, the FCC has been unwilling to accord the NPS significant deference in determining whether and to what extent NEPA compliance would be necessary in siting telecommunications towers adjacent to the Appalachian Trail.[293] In fact, the FCC has wholly co-opted the decision about whether to engage in NEPA analysis, without regard to the expectations of the NPS.[294]

If the NPS were accorded deference, it would likely conclude that NEPA compliance would be necessary for the entire telecommunications network as it affects the Appalachian Trail. NEPA would therefore arguably require the FCC to prepare a comprehensive EIS addressing the cumulative visual and aesthetic impacts of the telecommunications infrastructure on the trail and its users.[295] A comprehensive EIS would prove valuable and necessary; through an EIS, the agency could analyze the visual, aesthetic, and environmental impacts of the telecommunications network throughout its length and could then propose reasonable alternatives to mitigate the cumulative impacts on the trail corridor.[296] In addition, NEPA would also require the FCC to engage in site-specific EISs regarding the localized environmental effects of each individual tower within the trail's viewshed.[297] The site-specific EISs would enable the FCC, the NPS, and local governmental agencies to engage in a micro-level analysis of siting determinations and explore ways to minimize local impacts of telecommunications towers. To avoid repetitious analysis and to maximize efficiency, the FCC could "tier" its NEPA analysis so that the broader programmatic analysis could be incorporated by reference into later, more site-specific EISs.[298]

It is uniformly accepted that NEPA imposes only procedural requirements upon federal agencies.[299] While NEPA does not require that agencies reach any particular substantive result in their decision-making process, it is designed to ensure that an agency's decisions have been made with recognition of proper environmental concerns.[300] Equally important, NEPA informs the public about the decision-making process, equipping it with information needed to ensure that agencies take a hard look at relevant environmental factors.[301] However, NEPA may also result in some measurable substantive benefits to the trail environment were it properly applied and its policies analyzed. First, the specter of having to comply with NEPA would cause the telecommunications industry to carefully consider whether the benefits of siting a tower near the trail would offset the costs of conducting NEPA analysis. If the costs would be too great, industry may find that it makes more economic sense to site the tower elsewhere. Furthermore, NEPA may have some substantive effect where the FCC proposes to take mitigatory measures in advance to avoid the threshold "significance" of the environmental impacts.[302] For instance, a tower proposed within the viewshed of the trail could be disguised as a tree, located at a greater distance from the trail's centerline, or the transmitter could be co-located on an existing tower structure, thereby avoiding many of the negative effects on the trail's viewshed. Here, the FCC would pre-pare a mitigative finding of no significant impact (FONSI), thereby avoiding comprehensive NEPA analysis, while providing substan-tive protection to the trail's aesthetic environment.

D. Endangered Species Act

The Appalachian Trail corridor passes through some of the most species diverse habitat in the world. More species of trees grow in the Great Smoky Mountains than in all of northern Europe.[303] The array of flowering plants, trees, insects, and other wildlife is greater than in almost any other place on earth, aside from the tropical rainforests of South America.[304] In recognition of this rich diversity, the NPS, along with the U.S. Forest Service, and other state, local, and private organizations are conducting a natural heritage inven-tory of the Appalachian Trail corridor.[305] The purpose of the inventory, in its beginning stages now, is to "track the status of rare plants, animals and natural communities located along the Appalachian Trail, which will in turn help preserve the ecological diversity of the Trail corridor and the lands through which the Trail passes."[306] Due to its unique location "atop the Appalachian Mountain chain and because much of the corridor is relatively untouched, [the] Appalachian Trail lands contain many comparatively small, isolated populations of threatened, endangered or rare plants and animals."[307] Many of these rare species of flora and fauna are protected by the Endangered Species Act (ESA)[308] and therefore are entitled to special protection from activities that would diminish their numbers.[309]

As preliminarily revealed by the natural heritage inventories, the Appalachian Trail corridor contains 384 sites where endangered or threatened plant or animal species may be found.[310] Within those sites, the Park Service has identified 1,503 separate occurrences of endangered or threatened species.[311] Among others, the Ap-palachian region is home to the following threatened or endangered species: the Carolina flying squirrel, the Virginia northern flying squirrel, the St. Francis butterfly, the Virginia big-eared bat, the Roan Mountain bluet, and hundreds of other birds, amphibians, reptiles, clams, insects, and flowering and nonflowering plants.[312] Many of these species may be imperiled by the widespread build-out of telecommunications facilities along the trail. The goal of the natural resources inventory is to inform land management agencies along the trail of the existence of endangered species and their habitats and to recommend management initiatives to ensure the continued sur-vival of these species.[313]

In particular, telecommunications towers pose a significant threat to several endangered avian species, such as the Kirtland's warbler and the Berwick's wren.[314] The Kirtland's warbler, dendroica kirtlandii,[315] does not make the Appalachians its permanent home but relies on the Appalachians when making its annual migration from its summer range in the jack pine forests of northern Michigan to the Bahama Islands.[316] During its annual migration, the species traverses the Appalachian mountains in the northern Georgia-southern North Carolina region.[317] This region has the highest density of tele-communications towers over 200 feet than any other area of the United States.[318] Although no scientific studies have proven the correlation, the survival of the Kirtland's warbler species is believed by some to be imperiled by the density of telecommunications towers in this region.[319] This theory is supported by numerous studies conducted at other tower sites demonstrating the sus-ceptibility of the warbler as a species to fatal collisions with tele-communications towers.[320] Unless telecommunications towers are sited with environmental factors in mind, ornithologists believe that the unrestrained expansion of telecommunications services could jeopardize the continued existence of species such as the Kirtland's warbler.[321]

Similarly, several endangered species of salamanders, including the Cheat Mountain salamander[322] and the Shenandoah salamander,[323] occupy small ranges in the Appalachians, frequently confined to isolated mountain tops.[324] For instance, the Shenandoah salamander inhabits the relatively dry, rocky talus slopes above 800 meters on three mountain tops in the Shenandoah National Park.[325] Since telecommunications towers are frequently located on mountain peaks, these structures would appear to pose a similar threat to the survival of these rare salamander species. The individual home range of several of these salamander species is as small as three square feet, thus making them extremely dependant on specific habitat conditions.[326] Habitat destruction resulting from the con-struction of electrical transmission towers and power line corridors has been implicated in the dramatic decline of these salamander species.[327] Furthermore, the use of herbicides along power lines' rights-of-way may have a toxic effect on salamander populations, further compromising their chance for survival.[328]

The ESA was designed in part to prevent the continued loss of endangered species which would result if man's technological advances, such as those presented by the expansion of tele-communications services, were permitted to grow unchecked by other values.[329] Congress recognized that "[man] and his technology [have] continued at an ever-increasing rate to disrupt the natural ecosystem . . . . [resulting] in a dramatic rise in the number and severity of the threats faced by the world's wildlife."[330] The check on federal agency authority proposed by Congress is embodied in section 7 of the ESA, requiring the "Secretaries and the heads of all other Federal departments and agencies to use their authorities in order to carry out programs for the protection of species, and . . . requires that those agencies take the necessary action that will not jeopardize the continuing existence of endangered species."[331] In-deed, ESA prohibitions were not limited to those agencies whose primary mission was the protection of the environment or natural resources, but were intended to apply equally to all federal agencies, irrespective of whether conservation was consistent with an agency's primary purposes.[332] Thus, even though many agencies such as the FCC have no institutional experience with environmental protection or species conservation, they must adhere to the ESA mandates. In fact, species conservation may be contradictory to an agency's mission, but Congress has clearly articulated a policy that species preservation must take priority over the "primary missions" of all federal agencies.[333]

To date, the FCC has evidenced little concern for the impacts of telecommunications structures on endangered species.[334] While Congress has indicated that the efficient and timely implementation of new telecommunications technologies and infrastructure build-out is a national priority,[335] to the extent that these priorities conflict with the ESA, it is clear that the FCC is required to conform its mandate under the Telecommunications Act with the ESA.

1. Applicability of Section 7(a)(2) of the ESA

Telecommunications services, and the equipment and infrastructure necessary to support those services, are constructed by private industry. Decisions about where to site telecommunications towers are made by private industry according to customer needs. Therefore, section 7 of the ESA, which constrains federal agency action, may initially appear to be of questionable value in protecting endangered species from the harmful effects of privately constructed telecommunications towers. However, as discussed earlier in this Article,[336] the federal government is significantly involved in the process of telecommunications tower design and placement.

Section 7(a)(2) of the ESA requires all federal agencies to "insure that any action authorized, funded, or carried out by the agencies is not likely to jeopardize the continued existence of any endangered species or . . . result in the destruction or adverse modification of [the] habitat of such species."[337] The U.S. Fish and Wildlife Service (USFWS), the agency responsible for implementing the ESA, has defined agency "action" as "all activities or programs of any kind authorized, funded or carried out, in whole or in part, by Federal agencies . . . . Examples include, but are not limited to . . . the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid."[338] Thus, Congress chose to apply section 7(a)(2) to private parties engaged in certain relationships with the federal government. In those cases, the acts of the private party are inseparable from those of the federal agency and become "agency action" for purposes of the ESA.[339]

The relationship between the FCC and the telecommuni-cations industry is intertwined at several levels. First, on the most general level, the FCC auctioned license rights to telecommuni-cations companies to make use of a high frequency spectrum over which telecommunications signals could be transmitted.[340] The license granted by the FCC to industry authorizes telecommuni-cations carriers to offer exclusive communications services to customers within that particular geographical area.[341] If the issuance of a particular license would jeopardize the continued existence of an endangered species or modify its habitat, the FCC's initial licensing decision would likely be subject to section 7 of the ESA.[342] Secondly, on a more specific level, once a license is issued and a telecommuni-cations company desires to recapture the licensing fees by selling services to the public, industry must first construct the necessary infrastructure. As previously discussed,[343] each telecommunications tower must be registered with the FCC prior to construction.[344] Thus, the FCC's registration of a particular telecommunications tower may also trigger section 7 of the ESA if that particular tower has may jeopardize the continued existence of an endangered species or modify its critical habitat. Each of the foregoing activities will require the FCC to consult with the U.S. Fish and Wildlife Service (USFWS). However, because in each case the scope of the FCC's licensing and permitting functions is different, the scope of the corresponding duty to consult will differ depending on the potential impact of the agency action.[345]

Actions taken by federal agencies are governed by the substantive and procedural provisions of section 7 of the ESA. Section 7 prohibits federal agencies from taking any action that would likely jeopardize the continued existence of a threatened or endangered species or that would adversely modify its critical habitat.[346] Section 7 of the ESA will play a preeminent role because the focus of this Article is on the consultation process as a means of causing the FCC and telecommunications industry to consider the environmental implications of tower siting decisions,. However, section 9 of the ESA, which applies to private parties such as the telecommunications industry, should not be overlooked as a means of protecting endangered species, and its implications will also be addressed.[347]

Section 7 imposes a multi-step process on federal agencies such as the FCC to ensure that the protections of the ESA are carefully considered by the agency and incorporated into its decision-making process.[348] First, the FCC must inquire of USFWS whether any threatened or endangered species "may be present" in the area of the proposed action.[349] If USFWS indicates threatened or endangered species are present in the area of the proposed action, the FCC must prepare a "biological assessment" to determine whether any such species are "likely to be affected" by the action.[350] If the action agency determines in the biological assessment that a threatened or endangered species "is likely to be affected," the agency must formally consult with USFWS.[351] As a result of the formal consultation, the USFWS is required to issue a biological opinion based on the "best scientific and commercial data available."[352]

If the biological opinion concludes that the FCC's proposed action would jeopardize[353] the species or destroy or adversely modify critical habitats, then the USFWS must suggest reasonable and prudent alternatives that would avoid jeopardy to a species or prevent the adverse modification of its habitat.[354] If the USFWS concludes that the agency action will not violate section 7, then it may still require that certain reasonable and prudent measures be adopted to minimize the impact of the agency's action.[355] The consultation process acts as a brake on agency action. During the period of consultation, and prior to the USFWS's determination that the agency's proposed action will not violate section 7 or that reasonable and prudent alternatives are available to the proposed action, the action agency is precluded from making "any irreversible or irretrievable commitment of resources" to the project.[356]

a. Consultation Under Section 7

The cornerstone of section 7 is the consultation process. "The purpose of the consultation requirements . . . is to allow [the action] agency to avail itself of 'the expertise of [the USFWS] in assessing the impact of the proposed project' . . . ."[357] Furthermore, the process allows agencies to identify potential conflicts between the project proposed by the action agency, especially in those circumstances where the agency does not have the expertise to foresee potential conflicts on its own.[358] Although the consultation process is not an end in itself, in most cases it requires the agency to consciously reflect on the environmental consequences of its proposed actions and to consider the potentially harmful effects its proposed actions would have on endangered species.[359] By forcing the agency to consider factors that lie outside of its organic statutory mandate, the consultation process is designed to prevent hastily conceived projects that may have unintended, yet severe, consequences on endangered species.

The ESA consultation process is aimed at precisely the types of uninformed and single-minded projects such as those being proposed and implemented by the FCC and the telecommunications industry. While the FCC does have a mandate to assist industry in getting the new technology on line as soon as possible, the ESA prevents the FCC from making these decisions without considering the consequences to endangered species. Admittedly, it is difficult to correlate the data about the harmful consequences of telecommuni-cations facilities on avian species generally to particular types of endangered species, such as the Kirtland's warbler. However, the ESA does not permit the FCC to use this information gap as a justification for ignoring the probable consequences to particular endangered species. Although the information and research on the effects of telecommunications towers on endangered populations are in their infancy, it is clear that telecommunications towers may pose a threat to some migratory bird populations. Therefore, when it can be determined that endangered species inhabit or migrate through an area where a telecommunications tower has been proposed, then at the very least the ESA process has been triggered, and the FCC is obligated to initiate the section 7 process. In the alternative, in those cases where the USFWS is aware that endangered species may be affected by the FCC's actions, it has a corresponding duty to protect that species and initiate the section 7 procedures by providing written notice to the FCC.[360]

b. Scope of Consultation Under Section 7

As a matter of daily practice, the FCC's focus is on facilitating the development and implementation of technology to enhance and improve the nation's telecommunications capabilities. The FCC is not in the environmental protection business. While some have challenged telecommunications tower siting decisions based on the ESA, these matters have typically been disposed of through the FCC's administrative process, ordinarily in favor of the applicant with little consideration given to the substance and procedural requirements of the ESA.[361] However, under section 7 of the ESA, the FCC must consult with USFWS in those circumstances where threatened or endangered species may be jeopardized or critical habitats destroyed by construction of a telecommunications tower or system of towers. The scope of the FCC's obligation to consult arguably extends beyond the piecemeal evaluation of individual tower siting determinations,and may include the duty to consult on a more programmatic basis.

Because the FCC issues licenses to telecommunications carriers to provide services on a geographical basis, the initial licensing decision may trigger a duty to consult the USFWS regarding the cumulative effects of the permitted telecommuni-cations network on endangered species within that geographical area. Programmatic consultation recognizes that agency action should be evaluated early in the planning stage, where the cumu-lative impacts of the entire project may be examined.[362] If this consultation reveals potential negative impacts on a listed species, mitigatory action may be taken early in the process to reduce probable harmful effects.[363] Courts have acknowledged the duty of federal agencies to engage in programmatic consultation at the planning stage where, for example, specific land management plans[364] or mineral leases[365] have been approved in advance of more localized development activities, such as timbering or exploration, which would inevitably occur in the future. The same standard would appear to govern the FCC's telecommunications licensing decisions within specific geographical areas.

The proper time to evaluate the impacts of a telecommuni-cations build-out within a particular geographic area is at the earliest stage of the process where the FCC's decisions may "have an on-going and long-lasting effect even after adoption."[366] Logically, this evaluation should occur at the time the FCC issues a license to a tele-communications carrier. Early evaluation would enable the FCC to review the carrier's tower siting schematic and determine how the towers will cumulatively impact endangered species. Although the actual tower siting plan may ultimately deviate from the proposal, early evaluation would allow the FCC to make rational judgments about how the proposed tower siting pattern may affect endangered species.[367] With early evaluation, the FCC could determine where the towers would be fundamentally incompatible with endangered species habitat or migratory routes. Furthermore, the ESA's requirement that consultation be based on the best available data would impose a duty on the FCC to be fully informed at the early stages of the decision-making process.[368] The lack of concrete information or exact science would not obviate the FCC's need to look at the potential impacts on endangered species in the area; instead, it would be sufficient for the FCC to rely on potential impacts and projected effects.[369]

In the past, the FCC has resisted programmatic review of the environmental consequences of communications towers.[370] How-ever, at the initial licensing stage the FCC could more effectively determine the effect that telecommunications towers may have on the overall populations of endangered species such as the Kirtland's warbler or the Shenandoah salamander. While species such as the Kirtland's warbler generally follow migratory corridors, their flight path cannot be precisely predicted. Examining tower siting decisions on a broad basis, the FCC would have a better grasp of the threats posed to species that traditionally migrate through or inhabit portions of entire geographic regions.

Furthermore, conducting a programmatic review may be less costly for industry. Evaluating impacts on endangered species in advance, rather than on a piecemeal basis, would better allow the telecommunications industry to predict its costs and avoid the possibility of needing to relocate towers when a project-by-project analysis reveals an ESA conflict. Evaluation early in the process would also allow the FCC to identify important habitat, biological resources, and geographical features that may be critical to the continued health of an endangered species. For example, it is well documented that warblers as a genus migrate at very low altitudes.[371] Therefore, in the warbler's migratory route, antennas should not be located on mountain tops or higher elevations.[372] During this early period of evaluation, the FCC and its licensees would be prohibited from initiating construction of any telecommunications infra-structure until impacts may be defined.[373]

A programmatic impact analysis is a necessary component of the consultation process between the FCC and USFWS; however, by itself a programmatic analysis would not be sufficient to ensure com-pliance with the ESA. In Cabinet Mountains Wilderness v. Peterson,[374] the Court of Appeals for the District of Columbia upheld a Forest Service and USFWS consultation regarding a four-year exploratory drilling proposal for copper and silver exploration in a Nevada wilderness area inhabited by certain endangered species.[375] The court limited its review to the four-year exploration plan but stated that "[a]ny future proposals . . . to conduct drilling activities in the Cabinet Mountains area will require further scrutiny under NEPA and the ESA."[376] Thus, while the FCC's programmatic consultation would enable it to predict cumulative impacts, programmatic consultations are often based on incomplete information as to location, scope, and timing of future activities.[377] When more specific information becomes available, the FCC has an obligation to make a more accurate impact assessment for various post licensing activities.[378]

The rational point in time for the FCC to re-evaluate the impacts of individual towers on endangered species is at the site-specific permitting stage. Before any tower may be constructed, a telecommunications company must acquire an FCC permit.[379] At the site-specific permitting stage, the telecommunications industry has more concrete data about a tower's location and physical characteristics, such as its height, whether guy wires are necessary, or whether it will be a solid structure or steel latticework frame. In addition, at this stage of permitting the agencies have more specific data on the particular endangered species affected by the tower and how the species' habitat needs may impact the siting decision.

The project-level analysis need not duplicate the factors con-sidered at the programmatic level.[380] Instead, the site-specific con-sultation may simply incorporate the findings of the programmatic evaluation and supplement those findings to reflect the new data and more precise information obtained since the programmatic consultation.[381] The proposed action may go forward if the indi-vidual tower consultation reveals that its construction will not jeopardize the continued existence of an endangered species.[382] If the site-specific consultation and resultant biological opinion indicate probable jeopardy to a listed endangered species, then construction of the specific tower is prohibited, absent the existence of reasonable and prudent construction alternatives.[383] In most cases, alternatives will exist that will mitigate the harmful effects caused to endangered species, and the tower construction may proceed with only minor alterations.

c. Mitigation and Reasonable and Prudent Alternatives

Science overwhelmingly shares the conservation communi-ty's concerns about the threats that telecommunications towers pose to migratory bird species.[384] While there is little scientific evidence of effects of telecommunications towers on endangered species, it is rational to conclude from the existing evidence that certain endangered species are at risk.[385] Nevertheless, the scientific com-munity is hopeful that steps can be taken to avoid or minimize impacts on endangered species while allowing companies to meet the demand for telecommunications services without significant interruption.[386]

However, the FCC has not cooperated with the conservation community in seeking to obtain a workable solution to the environmental problems communications towers pose. The FCC and telecommunications industry have raised the stakes by charac-terizing the debate in terms of environmental protection versus access to telecommunications services.[387] In fact, a sensible reso-lution of these issues will not necessarily require a choice between the convenience of wireless technologies and the health of en-dangered species. Instead, the conservation community, through protections provided by the ESA, is simply seeking to accommodate the FCC's goals with other important values. In fact, if the choice were between endangered species protection and communications towers, the result is clear: the Endangered Species Act admits of no exceptions nor bends to considerations of cost-benefit analysis.[388] Fortunately, like many attempts to discredit initiatives to protect the environment, the FCC has presented a false choice.

A number of alternatives and mitigation measures could avert possible conflict between endangered species and tele-communications towers. The first is to ensure that siting decisions are made not only with signal coverage and other technological con-siderations in mind, but also with full knowledge of the effects on endangered species and their habitats. With this information, the telecommunications industry will be able to site towers outside of primary flyways and species habitats.[389] One available alternative is the use of co-location in positioning transmission equipment. Co-location reduces the total number of towers by requiring communi-cations companies to situate more than one antenna or transmission device on a single tower.[390] Often, a carrier will lease space on a tower owned by another carrier and use the existing structure in lieu of erecting a new one. Reducing the number of towers obstructing migratory corridors will significantly diminish habitat loss and migratory interference.[391]

Clustering antennas in high concentration areas, referred to as "antenna farms," may be a less satisfactory option for reducing impacts on endangered species.[392] Adding another tower will con-tribute a relatively insignificant additional threat to endangered species occupying surrounding land because the area is already degraded with towers. Clustering would be an adequate solution if existing antenna farms were exempt from review under the ESA. However, the ESA does not exempt existing structures from its prohibitions on harming endangered species.[393] Therefore, assuming the ESA could be used to dismantle existing antenna farms, this option may not be a viable long-term solution.

Another mitigatory measure that will reduce the impacts on endangered bird species is to reduce the use of guy wires to support tower structures. Birds frequently become tangled in the web of steel cables reinforcing antenna towers. Current research indicates that potential impacts may be reduced by placing the supporting cables parallel to migratory flow where possible.[394] Also, researchers are currently studying the effectiveness of attaching neon yellow and orange balls to the guy wires as deterrents, using triangular shaped markers on the guy wires, or using isotope markers to deter bird strikes.[395] Another possibility may be to design towers in a way that obviates the need for supporting guy wires.[396]

The most likely cause of bird collisions with antenna towers is warning lights placed on the towers. FAA regulations require that all tower structures over 200 feet in height have adequate warning lights.[397] The type of lighting used is an important factor in attracting birds to telecommunications towers. Red or white lighting is often used, either in a constant beam or a flashing strobe.[398] Birds are attracted in greater numbers by constant beams of white light.[399] The use of red strobe lighting and lower intensity light sources tends to draw fewer birds into the antenna's orbit.[400] The use of auditory signals in conjunction with flashing lights may also be effective deterrents.[401] However, because birds' behavioral strategy is to "sidestep" predators at the last moment, lights may not work as a warning device because the birds' avoidance response may send them crashing into the outlying guy wires.[402]

The measures necessary to mitigate the effects of tele-communications towers on endangered salamander populations are somewhat different. Since these salamanders' habitats are so isolated and frequently occur on mountain tops, for the salamanders' survival it is critical that siting decisions be sensitive to their habitat requirements. Frequently, a tower may be sited on an adjacent peak that does not serve as critical habitat for a salamander population. Co-location may also be used to minimize impacts and concentrate development at pre-existing towers. Finally, the use of herbicides to control unwanted vegetation at tower sites could be eliminated and other forms of vegetation management employed that would have more benign effects on surrounding habitats.

Other mitigation techniques include incorporating antennas into existing structures such as church steeples and water towers, creating natural buffer zones around telecommunications structures, and disguising smaller antennas as trees, so that they blend into the surrounding forest canopy. A great deal of further research and study must be conducted on the siting of telecommunications towers and their effects on endangered species. However, the current lack of scientific precision does not relieve federal agencies of their obligation to comply with the ESA consultation provisions.[403]

2. Applicability of Section 7(a)(1) of the ESA

Less understood, but also potentially useful in prompting the FCC to engage in consultation, is section 7(a)(1) of the ESA. This section provides the following "All other federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species."[404] On its face, section 7(a)(1) imposes an affirmative duty on all federal agencies to engage in species conservation programs. Interestingly, this provision stands in stark contrast to the remainder of section 7, which is prohibitory in nature, requiring only that agencies refrain from jeopardizing the continued existence of endangered species or destroying their critical habitat. All of the procedural mechanisms of section 7 are designed to enforce section 7(a)(2)'s prohibitions against federal agencies. There is no corresponding enforcement scheme to implement the directives of section 7(a)(1). The lack of statutory precision in defining the duties of section 7(a)(1) leaves it overlooked as an independent source of species protection.[405]

However, in cases such as Sierra Club v. Glickman,[406] the courts have shown some willingness to apply section 7(a)(1) according to its plain meaning, thereby giving teeth to the otherwise vague obligations of this section of the ESA. In Glickman, the Fifth Circuit held that the United States Department of Agriculture (USDA), which had regulatory authority over certain issues of water quality and water usage in the Edwards aquifer, had an affirmative obligation to adopt programs to conserve endangered species inhabiting the aquifer.[407] The court also held that the USDA had an obligation to consult with USFWS regarding its development of such conservation programs.[408] The court reasoned that Congress clearly evidenced its intent that agencies use "all methods and procedures which are necessary to bring any endangered species . . . to the point at which the measures provided pursuant to this chapter are no longer necessary."[409] The duty to conserve was not an accident of legislative drafting; rather, it was a theme running throughout the ESA.[410]

The duty to consult under section 7(a)(1) is species-specific and is required on a case-by-case basis.[411] The court in Glickman rejected the notion that section 7(a)(1) imposed only a generalized duty on all federal agencies to consult with USFWS on how agency activities would affect all endangered species as a whole.[412]

The species-specific duty to consult under section 7(a)(1) could be applied to the FCC's tower siting decisions. Arguably, section 7(a)(1) requires the FCC to consult with the USFWS in developing programs to conserve species such as the Kirtland's warbler and Shenandoah salamander. Under section 7(a)(1), the FCC is required to exercise greater foresight in analyzing the effects of telecommunications towers on species' health and in developing affirmative conservation programs to ensure that the ESA's purposes are fulfilled despite the FCC's own contradictory mission.[413] Section 7(a)(1) presents some promising opportunities to regulate tower siting decisions. Most importantly, the FCC is freed of difficult in-terpretations concerning the extent of its involvement in private activities, the scope of its consultation obligation, and determining whether there is jeopardy to a listed species. Section 7(a)(1) imposes a duty to consult and develop conservation plans irrespective of the traditional limitations of section 7(a)(2).[414] This consultation require-ment could have significant benefits for endangered species whose health would be an ongoing consideration during every stage of the agency's decision-making process.[415]

3. The Implications of Section 9 of the ESA

Section 9 of the ESA, which applies to private parties, prohibits any person subject to the jurisdiction of the United States from "taking" any threatened or endangered species.[416] The term "take" under section 9 has been interpreted broadly to include any action that will "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" any such species.[417] The term "harm" within the definition of "take" has been further expanded by regulatory interpretation to include "[s]ignificant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."[418] The definition of harm has not been precisely defined by the courts.[419] Beyond prohibiting the taking of endangered species, section 9 may be a useful tool in persuading the FCC to comply with its obligations to consult under section 7.

The process of authorizing and constructing telecommuni-cations towers and associated facilities is a combination of federal agency action and private initiative. When a federal agency, such as the FCC, complies with its obligations under section 7 and receives authorization from USFWS to proceed with the project, then section 7(o) of the ESA provides that any taking under section 9 shall not be prohibited.[420] Thus, once the requirements of section 7 are met, section 9 no longer operates as an independent constraint on the project.[421] This provision reflects the ESA policy that someone must consider the adverse effects of a project, and if the federal government fails to fulfill its obligations under section 7, then the burden will fall on the telecommunications industry pursuant to section 9.

Since the process of complying with section 9 and receiving a permit under section 10 may be an expensive proposition for industry and result in substantial liability, it is in the best interests of the telecommunication industry to encourage the FCC to engage in its consultation obligations under section 7. Consultation by the FCC and issuance by the USFWS of a no jeopardy opinion and/or an incidental take permit allowing an agency to proceed with a project relieves industry of its obligation to independently comply with section 9 of the ESA.

Section 7's consultation provisions have no application to the section 9 process. Therefore, if the FCC chooses not to comply with its duties under section 7, the opportunity for programmatic consultation is lost, and ESA compliance may be satisfied on an individual, tower-by-tower basis. Significant environmental protection is surrendered in the process. Section 7 consultation forces the FCC to deliberate about the environmental consequences of its actions, and the resulting delay provides the FCC with the opportunity to contemplate its corresponding duties under NEPA.[422] The result is an increased awareness of, and sensitivity to, environmental impacts as well as solutions that avoid, minimize, and mitigate those impacts on a regional basis. Furthermore, through the NEPA process, the FCC is afforded the opportunity to consider the effects of its siting determinations on other resource management statutes as well. Both the Migratory Bird Treaty Act[423] and the Bald and Golden Eagle Protection Act[424] may supplement the protections afforded to certain bird species, and through the NEPA process the FCC will have time to consider these acts prior to any final siting determination. A much less satisfactory alternative may be after-the-fact enforcement of these statutes by means of private lawsuits filed after the towers have been erected and some damage already inflicted.

E. Migratory Bird Treaty Act

One of the primary goals of the Trails Act was to provide an extended wilderness pathway to allow individuals to escape from the pressures of civilization.[425] Long, uninterrupted stretches of trail are valuable for other reasons as well, one of the most important of which is ecosystem preservation. Proponents of the Trails Act felt that the trails would "provide numerous environmental benefits, including protection of wildlife habitats, timber resources and watersheds."[426] For example, the Appalachian mountain chain serves as a primary flyway for migratory birds traveling from the northern reaches of the United States and Canada to winter habitats in Central and South America.[427] The Appalachians are favored as a migratory route because the mountains are oriented north to south, bridging more than 2,000 miles from Newfoundland to Alabama.[428] Moreover, the mountains present an almost continuous chain of unbroken habitat, so that migrants do not have to contend with wide areas of open valley.[429] Finally, the Appalachian's central ridge and valley province provide a continuous series of parallel, evenly spaced hills and ridge tops that facilitate favorable wind patterns and guide the birds during flight.[430] Among the travelers frequenting the Appalachian flyway are sharp-shined hawks, golden eagles, saw-whet owls, loons, tundra swans, pine grosbeaks and red-breasted nuthatches, various species of warblers, and a number of other common migratory birds.[431]

In recent years, human development, including cellular and communications towers, has invaded the migratory pathway. Many peaks along the Appalachian Trail have lost their natural character, instead more closely resembling large pin cushions.[432] The proliferation of telecommunications facilities has caused more than aesthetic and scenic degradation. Studies have indicated that cellular towers and antennas built on ridges and mountaintops have become obstacles for migrating birds.[433] One recent study indicated that between 1957 and 1994 a single 1,000 foot television tower caused the death of 121,560 migrating birds, representing 123 species.[434] With the increased number of cellular towers anticipated as a result of the Telecommunications Act, it has been estimated that annual tower kills in North America will soon exceed five million birds per year.[435]

Thus, while aesthetic impacts on trails values may be too "vague" to warrant the FCC's taking a hard look at the environmental consequences of its actions, more tangible evidence exists of environmental damage caused by cellular towers. These more tangible environmental impacts may make cellular tower siting decisions more susceptible to regulation. For instance, the Migratory Bird Treaty Act (MBTA)[436] may provide a source of regulatory authority for controlling the tower siting along the trail while incidentally benefiting viewshed protection as well.

The MBTA was originally enacted to implement the provisions of a 1916 convention between the United States and Great Britain, the purpose of which was to save birds "from indiscriminate slaughter and [to insure] the preservation of such migratory birds."[437] In addition, the MBTA has served to implement other similar treaties with Mexico, Japan and the Soviet Union to protect migratory birds that "[c]onstitute a natural resource of great value for recreational, aesthetic, scientific and economic purposes . . . ."[438] While the primary focus of the MBTA was to prevent the destruction of migratory birds by illegal hunting, the Act has been applied in other contexts as well.

The MBTA provides that "it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, at-tempt to take, capture or kill, possess, . . . any migratory bird . . . "[439] The MBTA applies to nearly all birds indigenous to North America, including such common varieties as the wren, robin, crow, oriole, sparrow, warbler, blackbird and grackle.[440]

The courts have been willing to use the MBTA to limit some land use practices that cause harm to migratory birds. In United States v. Corbin Farm Service, the court held that a supplier's spraying of a toxic pesticide that resulted in the death of 1,000 birds violated the MBTA.[441] In reaching its decision, the Corbin court held that the MBTA prohibited activities other than hunting that would result in the death of migratory birds and that the defendant need not have a specific intent to kill a bird before being subject to the Act.[442] Simil-arly, in United States v. FMC Corp., the Second Circuit affirmed the criminal conviction of a corporation for violating the MBTA after the company released toxic chemicals from its pesticide manufacturing plant into a wastewater pond, killing migratory waterfowl.[443] The court held that the defendant was liable even though the toxic release was accidental and unintentional.[444]

Most recently, in United States v. Moon Lake Elec. Ass'n, Inc., a Colorado district court held that a rural electric cooperative was liable under the MBTA where its electrical transmission towers caused the deaths of migratory bird species.[445] The court disagreed with the electric company's contention that the MBTA applies only to physical conduct associated with hunting and poaching migratory birds.[446] Instead, the court held that the electric cooperative may be prosecuted under the MBTA because it was a foreseeable consequence that birds would be killed where the transmission facilities were erected without using available mitigatory measures that could have prevented the injuries.[447] The Moon Lake case is particularly apt to migratory bird deaths caused by telecommunications towers, which structurally resemble the electrical transmission towers found to violate the MBTA in Moon Lake.

The MBTA is a strict liability statute. As evidenced in the Corbin Farm Service, FMC Corp. and Moon Lake cases, the Department of the Interior, which is responsible for enforcing the MBTA, "considers strict liability under the statute to support an 'important public policy behind protecting migratory birds.'"[448] However, the case law has been less clear in applying the MBTA to constrain the actions of the federal government itself.

In Sierra Club v. United States Department of Agriculture, the court held that the MBTA prohibited the U.S. Forest Service from logging during the nesting season of resident migratory birds where birds would be killed by the logging.[449] Subsequently, in Sierra Club v. Martin, the court, relying on the rationale of Sierra Club v. United States Department of Agriculture, preliminarily enjoined logging operations in the Chattahoochee and Oconee National Forests in Georgia because the logging would interfere with the nesting season of certain migrating birds.[450] The court found "that a taking or killing does not occur simply because of habitat destruction or modification."[451] The court distinguished this case, however, and held that a killing of migratory birds was caused by defendants' logging activities during the critical nesting season.[452] Thus, activities that directly result in the deaths of migrating birds are prohibited by the MBTA, regardless of whether the activity was intended to harm the birds. However, the Martin case was reversed on appeal.[453] The Eleventh Circuit reasoned that the MBTA lacked any expression of Congressional intent that the word "person" in the MBTA included the federal government.[454] Thus, while the unpublished Seventh Circuit decision in Sierra Club v. United States Department of Agriculture remains a valid statement of the law, there is no remaining vitality in the assertion that the MBTA imposes liability on the actions of the federal government itself.

Nevertheless, the MBTA is still a formidable barrier to the unrestrained build-out of telecommunications towers along the Appalachian Trail. The construction of telecommunications towers by private industry along migratory corridors would undoubtedly result in the deaths of migratory bird populations. If the telecommunications industry continues to pursue its goals and at the same time disregard the significant environmental consequences of its actions, it may be exposed to liability under the MBTA pursuant to the logic of FMC Corp., Corbin Farm Service, and Moon Lake. Furthermore, while the application of the MBTA to federal agencies has been discredited by recent case law, at the very least the potential harm to migratory birds should spur the FCC and the telecommuni-cations industry to undertake meaningful environmental analysis of tower siting decisions under NEPA. The tangible harm to wildlife more clearly implicates the FCC's obligations under NEPA and, therefore, arguably requires the FCC to conduct a comprehensive environmental evaluation of projects in each region where tower construction would interfere with bird migration patterns.


The Appalachian Trail was conceived as a refuge from the modern world. At the time of its initial construction and designation, the spreading growth of urbanization could be viewed from many points along the trail's route. Certainly trail architects did not unrealistically assume that society would stop advancing, and, to the contrary, the early trail proponents intended that the trail exist in harmony with its surrounding environment. However, neither the founders of the Appalachian Trail nor the sponsors of the Trails Act could foresee the extent of the impacts the trail would experience as a result of rapid technological advancement. To the extent that the public policies embodied in the Telecommunications Act are accorded greater significance than those protected by the Trails Act and other environmental statutes, then not only is the national trails system in danger of failing in its mission, but the entire national park system is likewise in jeopardy of falling prey to similar economic cost-benefit analysis. However, the objectives of the Trails Act and the National Park Service Organic Act all demand much more of the government in deciding how the nation's resources should be used.


[*] Attorney, Ohio Environmental Protection Agency; LL.M., The George Washington University Law School, 1999; J.D., The Ohio State University College of Law, 1991; B.A., Miami University, 1984. The author would like to thank Andrew Hyman, counsel to the Appalachian Trail Conference, for sharing his knowledge and ideas about this topic and for his valuable comments and suggestions on earlier drafts of this Article. The author would also like to thank his wife, Judi, for her never-ending encouragement and support.

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[1] THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 19 (William Peden ed., Univ. of N.C. Press 1954) (1787). Return to text.


[3] See NASH, supra note 2, at 69. Return to text.

[4] See id. Return to text.


[6] National Park Service Organic Act, Ch. 408, 39 Stat. 535 (1916) (codified as amended at 16 U.S.C. §§ 1, 2-4 (1994)). Return to text.

[7] Wilderness Act, Pub. L. No. 88-577, 78 Stat. 890 (1964) (codified as amended at 16 U.S.C. §§ 1131-36 (1994)). Return to text.

[8] National Trails System Act, Pub. L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. §§ 1241-51 (1994)). Return to text.

[9] See Peter Dykstra, Defining the Mother Lode: Yellowstone National Park v. The New World Mine, 24 ECOLOGY L.Q. 299, 306 (1997). Return to text.

[10] See id. Return to text.

[11] Telecommunications Act, Pub. L. No. 104-104, § 1a, 110 Stat. 56, (1996) (codified as amended in scattered sections of 47 U.S.C. (Supp. III 1997)). Return to text.

[12] See ZASLOWSKY & WATKINS, supra note 5, at 253. Return to text.

[13] See id. Return to text.

[14] See NASH, supra note 2, at 67. Return to text.

[15] See id. Return to text.

[16] ZASLOWSKY & WATKINS, supra note 5, at 255. Return to text.

[17] See id. The ethos of conservation derived from the ideas and writings of Henry David Thoreau, John Muir, Robert Marshall and Aldo Leopold, among others. See IAN MARSHALL, STORY LINE: EXPLORING THE LITERATURE OF THE APPALACHIAN TRAIL 7 (1998). Return to text.

[18] See Donald Dale Jackson, The Long Way 'Round: The National Scenic Trails System and How it Grew, WILDERNESS 17 (Summer 1988). Return to text.

[19] Benton MacKaye, An Appalachian Trail: A Project in Regional Planning, 9 J. AM. INST. ARCH. 325 (1921). Return to text.

[20] ZASLOWSKY & WATKINS, supra note 5, at 257 (MacKaye saw the trail as a footpath and "not a road."). Return to text.


[22] MARSHALL, supra note 17, at 228. This phrase has been interpreted by scholars to mean "seeing not just the tangible objects you can actually see but seeing as comprehending, seeing how everything fits together here, belongs here, in this particular place, with this particular climate and geology and supporting these particular kinds of plant and animal life." Id. Return to text.

[23] See ZASLOWSKY & WATKINS, supra note 5, at 257. Return to text.

[24] See id. Return to text.

[25] See id. Return to text.

[26] See id. Return to text.

[27] See id. Return to text.

[28] See ZASLOWSKY & WATKINS, supra note 5, at 257. Return to text.

[29] See id.; see also TRAILS FOR AMERICA, supra note 21, at 33. Return to text.

[30] See ZASLOWSKY & WATKINS, supra note 5, at 258. Return to text.

[31] See Jackson, supra note 18, at 19. Return to text.

[32] See id. Return to text.

[33] See id. Return to text.

[34] See id. Return to text.

[35] See id. In 1945, Pennsylvania Congressman Daniel Hoch introduced legislation for a "national system of foot trails." See id. This bill, H.R. 2142, would have amended the Federal Highway Act of 1944 by providing for construction and maintenance of a system of trails extending over 10,000 miles, which were to be managed by the Forest Service and funded by annual appropriations of $50,000. See id. The bill specifically referred to the Appalachian Trail as its inspiration and sought to protect the "wilderness values" of the trail routes, a very ambitious proposition for its time. See id. The bill was opposed by the Roosevelt administration and died in committee. See id. at 19-20. In 1963, Senator Jennings Randolph introduced S. 1147 for the development of roads and trails in National Forests, but no action was ever taken on the bill. See TRAILS FOR AMERICA, supra note 21, at 19. Return to text.

[36] Development forced the relocation of the trail's southern terminus from Mount Oglethorpe, Georgia twenty miles north to Springer Mountain, Georgia. See Jackson, supra note 18, at 20. Just north of the Shenandoah National Park in Virginia, the trail was diverted onto public highways for twenty-five miles. See TRAILS FOR AMERICA, supra note 21, at 19. Return to text.


[38] See TRAILS FOR AMERICA , supra note 21, at 20, citing, S. 622, 88th Cong. (1964). Return to text.

[39] See id. Return to text.

[40] The contours of the environmental landscape had been altered by the Wilderness Act of 1964, 16 U.S.C. §§ 1131-36, the Land and Water Conservation Fund Act of 1965, 16 U.S.C. §§ 4601-11 and the National Wildlife Refuge System Administration Act of 1964, 16 U.S.C. § 688dd, which collectively recognized the value of the nation's resources for recreation and preservation. Return to text.

[41] Pub. L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. §§ 1241-51 (1994)). Return to text.

[42] TRAILS FOR AMERICA, supra note 21, at 19. Return to text.

[43] See H.R. REP. NO. 1631, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 3856. Return to text.

[44] 16 U.S.C. § 1241(a) (1994). Return to text.

[45] See id. § 1241(b). Return to text.

[46] See id. Return to text.

[47] Id. § 1242(a)(1). Return to text.

[48] Id. § 1242(a)(3). Return to text.

[49] See 16 U.S.C. § 1242(a)(3). Return to text.

[50] Id. § 1242(a)(2). Return to text.

[51] See Comments of Gaylord Nelson, Trails Across America, reprinted in 115 CONG. REC. 16404-405 (daily ed. June 18, 1969) (Scenic trails meant to protect "old trails, rich in natural splendor or deeply woven into the nation's history . . . before all of them are obliterated by the impact of our industrial society."). Return to text.

[52] See H.R. REP. NO. 1631, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 3856, 3857 (basic aim of recreational trails is to provide the greatest outdoor recreation potential, while a goal of the scenic trails is to provide protection of outdoor values). Return to text.

[53] See ZASLOWSKY & WATKINS, supra note 5, at 262. Return to text.

[54] See 16 U.S.C. § 1246(g) (1994) (authorizing the Secretary to "utilize condemnation proceedings without the consent of the owner to acquire private lands or interests therein . . . in cases where, in his judgment, all reasonable efforts to acquire such lands or interests therein by negotiation have failed, and in such cases he shall acquire only such title as, in his judgment, is reasonably necessary to provide passage across such lands . . . ."). Return to text.

[55] See Pub. L. No. 90-543, § 7(g), 82 Stat. 919, 924 (1968), as amended by, Pub. L. No. 95-248, § 1(14), 92 Stat. 159, 160 (1978) (codified as amended at 16 U.S.C § 1246(g) (1999)).

[56] See Oversight of the National Trails System Act of 1968: Hearings before the Subcommittee on National Parks and Recreation of the House Committee on Interior and Insular Affairs, 94th Cong., 2d Sess. 18 (1977). Return to text.

[57] See id. Return to text.

[58] See id.; see also Appalachian Trail Amendments: Hearing on S. 2066 and H.R. 8803 before the Subcommittee on Parks and Recreation of the Committee on Energy and Natural Resources, 95th Cong., 1st Sess. 1 (1978). Return to text.

[59] See id. Return to text.

[60] See Pub. L. No. 95-248, 92 Stat. 159 (1978) (codified as amended in scattered sections of 16 U.S.C. (1994)). Return to text.

[61] See Pub. L. No. 95-625, § 551, 92 Stat. 3467, 3511-17 (1978) (codified as amended at 16 U.S.C. §§ 1244(d) and (e) (Supp. III 1997)). Return to text.

[62] See S. REP. NO. 95-636, at 3 (1978), reprinted in 1978 U.S.C.C.A.N. 457 (amendments necessary to preserve the "hiking experience" even though the footpath itself had already been established.). Return to text.

[63] See, e.g., 123 CONG. REC. 27945 (daily ed. Sept. 7, 1977) (Senator Mathias, commenting that the Appalachian Trail was to be a haven from urban sprawl from the east coast, and the Trails Act was intended to create a solid greenbelt corridor protected from fragmentation and incompatible uses); 115 CONG. REC. 16404, 16404 (daily ed. June 18, 1969) (Senator Mondale, remarking that green open spaces were rapidly gobbled up by highways, buildings and parking lots, and that action needed to be taken to protect the Appalachian Trail and other national trails.). Return to text.

[64] See Pub. L. No. 95-248, 92 Stat. 159 (1978) (codified as amended in scattered sections of 16 U.S.C. (1994)). Return to text.

[65] See Appalachian Trail Conference, Countdown, 60 APPALACHIAN TRAILWAY NEWS 6 (May/June 1999). In 1998, Congress appropriated an additional $15.1 million to complete the protection of the remaining 26.6 miles (9,708 acres) of unprotected trail. See id.; see also Memorandum of the United States Department of the Interior Regarding the Progress Report on the Acquisition of Lands for the Appalachian Trail (Aug. 20, 1998) (on file with author). Return to text.

[66] See 16 U.S.C. § 1244(a)(1) (1994). Return to text.

[67] See 16 U.S.C.A. §§ 1-4 (West 1985 & Supp. 1999). Return to text.

[68] See 16 U.S.C. §§ 1244(a)(1), 1250 (a)(1) (1994). Return to text.

[69] Id. § 1250(a)(1). Return to text.

[70] See id. § 1250(b). Return to text.

[71] See Brian B. King and Judy Jenner, Radford '99: Embracing the Challenge, 60 APPALACHIAN TRAILWAY NEWS 12-15 (Sept./Oct. 1999). Return to text.

[72] See Memorandum of Understanding Appalachian National Scenic Trail, opened for signature Oct. 23, 1987 [hereinafter Memorandum of Understanding]. Return to text.

[73] See 16 U.S.C. § 1250(a) (1994). Return to text.

[74] See Memorandum of Understanding, supra note 72, at 4. Return to text.

[75] The trail passes through six national park units, eight national forests, and several wilderness areas along its 2,000 mile route, each prescribing different land management standards. See King & Jenner, supra note 71 at 15; see also John S. Davis, The National Trails System Act and the Use of Protective Federal Zoning, 10 HARV. ENVTL. L. REV. 189, 201 (1986). Return to text.

[76] See Memorandum of Understanding, supra note 72, at 4. Return to text.

[77] See 16 U.S.C. §§ 1a-7(b). Return to text.

[78] See id. Return to text.

[79] See, e.g., George Cameron Coggins, The Developing Law of Land Use Planning on the Federal Lands, 61 U. COLO. L. REV. 307, 309 (1990); Lindsey Kate Shaw, Land Use Planning at the National Parks: Canyonlands National Park and Off-Road Vehicles, 68 U. COLO. L. REV. 795, 806 (1997). But see Town of Beverly Shores v. Lujan, 736 F. Supp. 934, 940 n.6 (N.D. Ind. 1989) (management plan provides no law for an appellate court to apply and so cannot be enforced). Return to text.

[80] See 16 U.S.C. § 1250(a) (1994). Return to text.

[81] See id. § 1250(a)(1) (providing authority to the head of any federal agency managing federal lands to enter into partnerships with "volunteer organizations to plan, develop, maintain, and manage . . . trails throughout the Nation."). Return to text.

[82] See id. Return to text.

[83] Id. § 1244(e). Return to text.

[84] Id. § 1244(e)(1). Return to text.

[85] 16 U.S.C. §§ 1244(e)(1), (2). Return to text.

[86] Id. § 1244(e)(3). Return to text.


[88] See id. at 5. Return to text.

[89] See id. at 5-8. Return to text.

[90] Id. at 5. Return to text.

[91] See id. at 6. Return to text.

[92] See COMPREHENSIVE PLAN, supra note 87, at 6. Return to text.

[93] See id. Return to text.

[94] See id. at 6. For instance, if the Trail passes through designated Wilderness Areas, it must be managed in accordance with the Wilderness Act, and when it passes through Forest Service property, it will be managed for multiple use, as long as multiple use management does not conflict with the values of the trail. See 16 U.S.C. § 1600. Return to text.

[95] See Petition by Appalachian Trail Conference to Federal Communications Commission, The National Environmental Policy Act and the Placement of Telecommunications Facilities Near National Scenic Trails, at 2 n. 11 (Apr. 21, 1998) (on file with author). The term "viewshed . . . refers to all points which could be connected by a straight line to [a] person['s eye], without intersecting the Earth's surface." Id.; see also 16 U.S.C. § 460vv-b(c) (1994) (protecting viewshed of Winding Stair Mountain Recreation and Wilderness Area); 16 U.S.C. § 90c-1(a) (1994) (protecting viewshed of North Cascades National Park); CAL. PUB. RES. CODE § 5907(e)(5) (West Supp. 1999) ($25 million authorized for protection of critical viewshed along Big Sur coast); 20 ILL. COMP. STAT. 3905/1005 (West. Supp. 1999) (Alton Lake Parkway Corridor); NEV. REV. STAT. ANN. § 376A.010 (Michie 1993) (concerning taxes applicable to development of open spaces and protected viewsheds); N.Y. ENVTL. CONSERV. LAW § 44-0113 (15) (McKinney 1997) (protection of viewsheds along Hudson Valley Greenway). Return to text.

[96] COMPREHENSIVE PLAN, supra note 87, at 6. Return to text.

[97] See id. "The Trail values to be perpetuated include more than a narrow footpath, and the scheme for protecting these values must thus be broader than simple ownership of land." Id. at 27. Return to text.

[98] Id. at 7. In addition to the Plan, each local managing organization is required to prepare local management plans to describe the tasks, assess each organization's contributions to management, assign responsibilities and provide standard procedures to identify site-specific actions needed on a localized level. Return to text.

[99] See, e.g., Conservation Law Found., Inc. v. Secretary of the Interior, 864 F.2d 954, 957 (1st Cir. 1989) (APA establishes the standard of judicial review for agency actions); Sierra Club v. Lujan, 716 F. Supp. 1289, 1293 (D. Ariz. 1989) (NPS must adhere to its management plan unless its policies are waived by the Department of the Interior). See also GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 912-13 (3d ed. 1993). Return to text.

[100] COMPREHENSIVE PLAN, supra note 87, at 25. Return to text.

[101] See Telecommunications Act, Pub. L. No. 104-104, § 1a , 110 Stat. 56 (1996) (codified as amended in scattered sections of 47 U.S.C. (Supp. III 1997)). Return to text.

[102] See Robert B. Foster et al., An Analysis of Facility Siting Issues Under Section 704 of the Telecommunications Act of 1996, 30 URB. LAW. 729 (1998). Return to text.

[103] See Mary Margaret Sloan, New in Your Neighborhood: 2,000 foot TV Towers, AM. HIKER (Feb. 1998). Return to text.

[104] See id. Currently, there are approximately 75,000 telecommunications towers in the United States that are more than two hundred feet in height. See Scott Weidensaul, Tower Lights Can Fatally Attract Migratory Songbirds, THE PHILADELPHIA INQUIRER, July 27, 1998 (visited Mar. 21, 1999) . Return to text.

[105] See Sloan, supra note 103. Return to text.

[106] See id. Return to text.

[107] See id. Return to text.

[108] See id. As a point of reference, the Empire State Building in New York City is only 1,414 feet tall, including its 164-foot antenna tower. See THE WORLD ALMANAC AND BOOK OF FACTS 699 (1997). Return to text.

[109] See id. Return to text.

[110] See Fact Sheet on New National Wireless Tower Siting Policies, Wireless Telecommunications Bureau, 1996 FCC Lexis 2142 (Apr. 23, 1996). The FCC used Rand McNally definitions to determine market areas for licensing purposes. Return to text.

[111] See, e.g., 47 C.F.R. § 17.4 (1998) (governing registration of antenna structures), 47 C.F.R. § 24.55 (1999) (governing the registration of personal communication services structures). See also Federal Communications Commission, Antenna Structure Registration (visited May 25, 1999) . Return to text.

[112] See Foster et al., supra note 102, at 730. Return to text.

[113] See id. The Conference Report explained that the act was to "provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans . . . ." H.R. CONF. REP. NO. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. Return to text.

[114] See 47 U.S.C. § 332(c)(7)(b) (Supp. III 1997). However, some courts have interpreted Section 332 (c)(7)(b) more expansively. Recently, in 360 Communications Co. v. Board of Supervisors, 50 F. Supp. 2d 551, 563 (W.D. Va. 1999), the court held that where a local government's denial of an application to site a telecommunications tower leaves the applicant "no reasonable alternatives to the application site" then the denial would amount to an unlawful prohibition of wireless services. In 360 Communications, the telecommunications company proposed to construct a transmission tower on Dudley Mountain. See id. at 553. The tower would protrude above the surrounding forest canopy, interrupting the unbroken mountain skyline, and would aesthetically degrade the existing environment. See id. at 555. Nevertheless, the court held that "there are a limited number of geographic areas where the only reasonable and effective site for a cellular tower is a mountain top." Id. at 562. In such a case, the Telecommunications Act requires that the permit application be approved even though it may be located on a site "highly prized by the public for [its] natural beauty." Id. The court's expansive interpretation of the federal government's authority under the Telecommunications Act, giving permission to supersede local land use decision-making, is akin to federal preemption of local land use regulations. See, e.g., Lucas v. Planning Bd., 7 F. Supp. 2d 310 (S.D.N.Y. 1998) (finding that "[a]lthough the Telecommunications Act does not completely preempt the authority of state and local governments to make decisions regarding the placement of wireless communications facilities within their borders," citing BellSouth Mobility, Inc. v. Gwinnett Co., 944 F. Supp. 923, 927 (N.D. Ga. 1996), it quite clearly preempts any state regulations "which conflict with its provisions," citing Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 50 (D. Mass. 1997)). Return to text.

[115] See 47 U.S.C. § 332(C)(7)(B)(i)(I) (Supp. III 1997). Return to text.

[116] See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 744 (C.D. Ill. 1997). Return to text.

[117] 47 U.S.C. § 332(c)(7)(B)(i)(II). Return to text.

[118] See Sprint Spectrum L.P. v. Town of Farmington, No. 3:97 CV 863, 1997 U.S. Dist. LEXIS 15832 at *18 (D. Conn. Oct. 6, 1997). In 360 Communications Co. v. Board of Supervisors, 50 F. Supp. 2d 551, 563 (W.D. Va. 1999), the court held that Albemarle County improperly prohibited wireless service by requiring that antenna towers be located downslope from the highest elevations in the county where they would not break the skyline. The court's decision was based on its finding that wireless services would effectively be prohibited if the county's rejection of a wireless application would deprive the wireless company of "reasonable alternatives" that would enable it to provide a "high level" of service. Id. at 563. Return to text.

[119] See 47 U.S.C. § 332(c)(7)(B)(iii). Return to text.

[120] See Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999) (noting that "[c]ourts have split as to the weight to be afforded to constituent testimony on aesthetics."). Compare OmniPoint Corp. v. Zoning Hearing Bd., 20 F. Supp. 2d 875, 880 (E.D. Pa. 1998) (stating that unsubstantiated personal opinions and "generalized concerns . . . about aesthetic and visual impacts on the neighborhood do not amount to substantial evidence"), aff'd, 181 F.3d 403 (3d Cir. 1999), with AT & T Wireless PCS, Inc. v. Virginia Beach, 155 F.3d 423, 430 (4th Cir. 1998) (observing that aesthetic concerns of community members could constitute "compelling" evidence for legislative bodies). As a consequence of these different interpretations, local jurisdictions are left in a quandary about their authority to restrict or regulate the siting of telecommunications towers. The willingness of the courts to restrict the ability of local governments to regulate telecommunications towers for aesthetic reasons is curious, because the legislative history of the Telecommunications Act explicitly states that localities were to be provided "flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a residential district." H.R. CONF. REP. NO. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222. Return to text.

[121] On September 7, 1997, the FCC issued a Notice of Proposed Rule Making (the "NPRM") which sought to streamline the build-out of telecommunications facilities by giving broadcast companies the power to preempt state and local zoning ordinances. Proposed Rule: Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities, 62 Fed. Reg. 46,241 (Sept. 2, 1997). Several environmental organizations, including the National Audubon Society, have challenged the NPRM arguing that the FCC's proposed regulations require it to consider the environmental implications of the rule making under NEPA. Supplemental Proposed Rule: Preemption of State and Local Zoning and Land Use Retrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities, 63 Fed. Reg. 13,610 (Mar. 20, 1998). Return to text.

[122] See Telecommunications Act, Pub. L. No. 104-104, § 1a , 110 Stat. 56 (1996) (codified as amended at 47 U.S.C. § 332 (Supp. III 1997)). Return to text.

[123] Id. Return to text.

[124] H.R. REP. NO. 104-204, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 62. Return to text.

[125] Id.; see also S. REP. NO. 104-230, at 223 (1996) ("With respect to the availability of Federal property for the use of wireless telecommunications infrastructure sites under section 704(c), the conferees generally adopt the House provisions."). The House version provided that the FCC was to be charged with developing procedures to make federal lands available to the telecommunications industry. See id. This statement was subsequently revised by the Conference Committee to grant to the "President or his designee" the right to develop procedures for the siting of telecommunications facilities on federal lands. See id. Return to text.

[126] H.R. REP. NO. 104-204, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 62. Return to text.

[127] Memorandum on Mobile Services Antennas, WEEKLY COMP. PRES. DOC. 1424 (Aug. 10, 1995). Return to text.

[128] Id. Return to text.

[129] Id. at 1425. Return to text.

[130] Id. Return to text.

[131] See id. Return to text.

[132] See Notice of Bulletin, General Services Administration, Placement of Commercial Antennas on Federal Property, 62 Fed. Reg. 32,611-615 (1997). Return to text.

[133] See id. Return to text.

[134] See id. Return to text.

[135] See id. Return to text.

[136] See Edward Warner, Park Service Promising Cooperation With Carriers, WIRELESS WEEK (Dec. 9, 1996). Return to text.

[137] See id. Return to text.

[138] Id. Return to text.

[139] Id. Return to text.

[140] Interview with Rita Hennessy, Assistant Director, National Park Service, Appalachian Trail Project Office (Sept. 25, 1998). Return to text.

[141] See id. Return to text.

[142] See id.; see also Director, National Park Service, Order No. 53A: Wireless Communications (Dec. 1, 1997) (on file with author); National Park Service Guidelines, 63 Fed. Reg. 10,243 (Mar. 2, 1999) and 63 Fed. Reg. 44,274 (Apr. 18, 1999). Return to text.

[143] National Park Service Guidelines, 63 Fed. Reg. 10,243 (Mar. 2, 1999) and 63 Fed. Reg. 44,274 (Apr. 18, 1999). Return to text.

[144] See Interview with Rita Hennessy, supra note 140. Return to text.

[145] See, e.g., Eugene L. Meyer, More Than a Walk in the Park, WASH. POST, Oct. 16, 1998, at N39; Park Service Won't Oppose Antennas, WASH. POST, Mar. 4, 1999, at B03; Doug Abrahms, Antennas Barred in Rock Creek Park, WASH. TIMES, Apr. 11, 1998, at C10; Not in Rock Creek Park, WASH. POST, Mar. 1, 1998, at C08. Return to text.

[146] See Resolution, Siting of Wireless Telecommunications Facilities Near National Scenic Trails, by, between and among the Cellular Telecommunications Industry Association, the Personal Communications Industry Association, the Appalachian Trail Conference, the Continental Divide Trail Alliance, the Florida Trail Association, the Ice Age Park and Trail Foundation, the North Country Trail Association, and the Pacific Crest Trail Association (on file with author). Return to text.

[147] See id. Return to text.

[148] See id. Section II.A. of the agreement provides that if industry "proposes to site a wireless telecommunications facility within one mile of a National Scenic Trail, then the applicant will voluntarily notify the [trail organization] . . . no later than five business days after filing its application with" the local governmental authorities. Id. It is the position of the ATC that this duty is not purely voluntary but would be enforceable in court. Cf. United States v. Orozco, 160 F.3d 1309 (11th Cir. 1998) (obligation that defendant "will voluntarily appear" to give testimony pursuant to a plea agreement is enforceable); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090 (1991) (defendant's obligation in plea agreement to voluntarily submit to a lie detector test is enforceable); Mayhue's Super Liquor Stores v. Hodgson, 464 F.2d 1196 (5th Cir. 1972), cert. denied, 409 U.S. 1108 (1973). Return to text.

[149] See Interview with Rita Hennessy, supra note 140. Return to text.

[150] 16 U.S.C. § 1 (1994). Return to text.

[151] Id. (emphasis added). Return to text.

[152] Id. Return to text.

[153] The academic community has not agreed on the extent or existence of the Park Service's authority to protect the parks from transboundary threats. Professor Keiter has stated that while the Secretary may have a "duty" to protect the parks from external threats, it is unclear whether he has the necessary "authority" to fulfill his duty. See Robert B. Keiter, On Protecting the National Parks From the External Threats Dilemma, 20 LAND & WATER L. REV. 355, 370 (1985). Professor Coggins, on the other hand, questions whether the Secretary even has the authority to remedy transboundary threats. See George Cameron Coggins, Protecting The Wildlife Resources of National Parks From External Threats, 22 LAND & WATER L. REV. 1, 16-17 (1987). Finally, Professor Lockhart, with whom this author substantially agrees, argues that the Secretary may, in fact, have the duty and authority to address external threats. See William J. Lockhart, External Threats to our National Parks: An Argument for Substantive Protection, 16 STAN. ENVTL. L. J. 3, 61-73 (1997). Return to text.

[154] See, e.g., Lockhart, supra note 153 at 64-65. Return to text.

[155] See id. at 65. Return to text.

[156] See id. Return to text.

[157] See id. According to Professor Lockhart, the Organic Act's nonimpairment standard applies to the two fundamental purposes protected by the Act: the duty to "conserve" resources and the duty to provide for the "enjoyment" of those resources. Thus, the statute is "explicit that the 'enjoyment' protected is of those 'unimpaired' resources." Id. at 64-65, n.205. Return to text.

[158] See id. Return to text.

[159] See H.R. REP. NO. 1631, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 3856. Return to text.

[160] One of the principle purposes for conferring special protection to the trail was to prevent "scattered intrusions" to the "integrity and values" of the trail. See H.R. REP. NO. 1631, at 5 (1968), reprinted in, 1968 U.S.C.C.A.N. 3857. Return to text.

[161] See 114 CONG. REC. 19,454, 19,455 (July 1, 1968). Return to text.

[162] See id. Return to text.

[163] See id. Return to text.

[164] Id. Return to text.

[165] Id. Return to text.

[166] 114 CONG. REC. 19,454, 19,455 (July 1, 1968). Return to text.

[167] See id. Return to text.

[168] Id. Return to text.

[169] See id. Return to text.

[170] See id. Return to text.

[171] 114 CONG. REC. 19,454, 19,454 (July 1, 1968) (emphasis added). Return to text.

[172] Id. Return to text.

[173] See id. Return to text.

[174] The Senate did not clearly articulate the scope of the term "near the trail" when considering the extent of the Park Service's regulatory authority over development activities occurring outside of the protected trail corridor. It is clear, however, that there would be some limit to the Park Service's authority. Senator Aiken asked: "when the national forests lease the right to operate a ski run or something in a forest area, I have had people living several miles away object to the Secretary granting such right, because they would not like to look over across the valley—at least one who wrote me was [seven] miles away—and see activity on that slope. In other words, they do not like to see people working for a living; that disgusts some of them in some way." Id. at 19,455. Senator Jackson assured the Senator from Vermont that the Park Service's authority could not be used to regulate activities occurring seven miles from the park's border. See id. Return to text.

[175] See Petition by Appalachian Trail Conference to FCC, The National Environmental Policy Act and the Placement of Telecommunications Facilities Near National Scenic Trails (Apr. 21, 1998) (on file with author). The one mile figure was derived from similar regulations governing viewshed protection and standards adopted by the telecommunications industry itself. See, e.g., Fauquier County, Va., Ordinance § 11-102(3)(b)(14) (1999) (applications for towers situated within one mile of a designated historic district or property listed on the National Register of Historic Places must undergo specific review procedures.); Haywood County, N.C., Ord. Art. 3, § 6 (1998) (applications for telecommunications towers situated within one mile of the Great Smoky Mountains National Park, the Appalachian Trail, or the Blue Ridge Parkway must be filed with the appropriate federal land manager for review); Lehigh Valley Planning Commission, Sample Regulation for the Processing of Applications for Commercial Communications Towers and Antennas (visited May 25, 1999) (an applicant desiring to site a tower within one mile of the Appalachian Trail must notify the Appalachian Trail Conference and relevant federal land manager). See also Chamblee, Ga., Ord. § 18-156 (1998); Crestview, Fla., Ord. § 102-133; Holyoke, Mass., Ord. § 6-6 (1998); Morrow, Ga., Ord. § 9-6-7 (1999); Model Wireless Communications Ordinance Framework (Apr. 15, 1997) (visited May 25, 1999) (Telecommunications industry agreed that antenna towers should be discouraged if they are "within one mile of an existing support tower" in order to preserve "community character.") Many local ordinances may be found at (visited Oct. 29, 1999). Return to text.

[176] See Report of Committee on Interior and Insular Affairs (Oct. 21, 1978) accompanying H.R. 8803, amending the National Trails Act to protect substantial scenic value of trail. Return to text.

[177] See id.; see also 16 U.S.C. § 1246(c) (stating that "[n]ational scenic . . . trails may contain campsites, shelters, and related-public-use facilities. Other uses along the trail, which will not substantially interfere with the nature and purposes of the trail, may be permitted by the Secretary charged with the administration of the trail. Reasonable efforts . . . shall be made to avoid activities incompatible with the purposes for which such trails were established."). Return to text.

[178] Pub. L. No. 95-250, Title I, § 101(b), 92 Stat. 166 (1978) (codified as amended at 16 U.S.C. § 1a-1 (1994)). Return to text.

[179] See id. Return to text.

[180] See 16 U.S.C. § 79 (1994). Return to text.

[181] See COGGINS ET AL., supra note 99, at 979. Return to text.

[182] See id. Return to text.

[183] See id. Return to text.

[184] See id. Return to text.

[185] See id. Return to text.

[186] See COGGINS ET AL., supra note 99, at 979. Return to text.

[187] See id. Return to text.

[188] The Sierra Club cases were three separate decisions issued at different times during the course of a single lawsuit. Sierra Club v. Department of the Interior, 424 F. Supp. 172 (N.D. Cal. 1976); Sierra Club v. Department of the Interior, 398 F. Supp. 284 (N.D. Cal. 1975); Sierra Club v. Department of the Interior, 376 F. Supp. 90 (N.D. Cal. 1974). [hereinafter Sierra Club cases]. Return to text.

[189] See Sierra Club cases, supra note 188. Return to text.

[190] See Sierra Club cases, supra note 188. Return to text.

[191] Sierra Club v. Department of the Interior, 376 F. Supp. 90, 93 (N.D. Cal. 1974). Return to text.

[192] See id. Return to text.

[193] See Sierra Club v. Department of the Interior, 424 F. Supp. 172, 175 (N.D. Cal. 1976). Return to text.

[194] Id. Return to text.

[195] The Redwoods Amendments, Pub. L. No. 95-250, Title I, § 101(b), 92 Stat. 166 (1978) (codified as amended at 16 U.S.C. § 1a-1 (1994)). The familiar name for these amendments is not intended to suggest that they apply exclusively to Redwoods National Park. Instead, these amendments apply to all units of the national park system equally. The legislative history states that, pursuant to the Redwoods Amendments, the Secretary "is to afford the highest standard of protection and care to the natural resources within Redwoods National Park and the National Park System." S. REP. NO. 95-528, at 114 (1977). Return to text.

[196] 16 U.S.C. § 1a-1 (1994). Return to text.

[197] See S. REP. NO. 95-528, at 7-8 (1977). Return to text.

[198] Id. Return to text.

[199] See Lockhart, supra note 153, at 67-68; see also Dunn McCampbell Royalty Interest, Inc. v. National Park Serv., 964 F. Supp. 1125 (S.D. Tex. 1995) (§1a-1 requires the Park Service to promulgate regulations to achieve purposes of Organic Act). Return to text.

[200] 16 U.S.C. §1a-1. Return to text.

[201] See, e.g., Bear Lodge Multiple Use Ass'n v. Babbitt, 176 F.3d 814 (9th Cir. 1999) (Under 16 U.S.C. § 1a-1 the Park Service must protect those values for which Devil's Tower National Monument was established by Presidential Proclamation, No. 458, 34 Stat. 3236, 3237 (Sept. 24, 1906)). Return to text.

[202] See 114 CONG. REC. 19,454 (July 1, 1968). Return to text.

[203] See id. Return to text.

[204] See COMPREHENSIVE PLAN, supra note 87, at 25. Return to text.

[205] See id. Return to text.

[206] See Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). Chevron sets forth a two-part test for a reviewing court to apply to determine whether an agency's regulation is faithful to its organic statute. Id. First, if Congress has directly addressed the precise issue the agency has construed in its regulation, then the agency is bound by Congress' expressed intent. Id. Secondly, if Congress has not spoken to the precise question at issue, then the agency's interpretation of the statute, as expressed in its regulations, will be upheld as long as the interpretation is a permissible one. Id. The Chevron doctrine is based on the principle that the courts should defer to an agency's expertise when construing its organic statute. Id. Return to text.

[207] See id. Return to text.

[208] See infra, notes 381-400 and accompanying text. Return to text.

[209] See infra, notes 240-301 and accompanying text. Return to text.

[210] See generally Joseph Sax, Helpless Giants: The National Parks and the Regulation of Private Lands, 75 MICH. L. REV. 239 (1976); Lockhart, supra note 153 and accompanying text. Return to text.

[211] See Hunt v. United States, 278 U.S. 96 (1928); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917); Light v. United States, 220 U.S. 523 (1911). Return to text.

[212] U.S. CONST. art. IV, § 3, cl.2. Return to text.

[213] See Camfield v. United States, 167 U.S. 518, 525 (1897). Return to text.

[214] Id. Return to text.

[215] See United States v. Alford, 274 U.S. 264 (1927). Return to text.

[216] See id. at 266. Return to text.

[217] See id. Return to text.

[218] Id. at 267. Return to text.

[219] 426 U.S. 529 (1976). Return to text.

[220] See id. Return to text.

[221] Wild Free-Roaming Horses and Burros Act, Pub. L. No. 92-195, 85 Stat. 649 (1971) (codified as amended at 16 U.S.C. §§ 1331-40 (1994)). Return to text.

[222] Id. § 1334. Return to text.

[223] See Kleppe, 426 U.S. at 533-34. Return to text.

[224] See id. at 534. Return to text.

[225] See id. Return to text.

[226] See id. at 535. Return to text.

[227] See id. Return to text.

[228] See Kleppe, 426 U.S. at 536, citing United States v. San Francisco, 310 U.S. 16, 29 (1940); see also California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581 (1987) (stating that Congress has plenary power under the Property Clause). Return to text.

[229] See Minnesota v. Block, 660 F.2d 1240 (8th Cir. 1981), cert. denied, 455 U.S. 1007 (1982); United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979); United States v. Brown, 552 F.2d 817 (8th Cir. 1977), cert. denied, 431 U.S. 949 (1977); Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir. 1995), reh'g, en banc, granted, vacated (6th Cir. 1996). But see Marla E. Mansfield, A Primer of Public Land Law, 68 WASH. L. REV. 801 (1993) (asserting that Kleppe concerned federal regulatory authority over nonfederal public lands, not private lands). Return to text.

[230] See United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979). Return to text.

[231] Id. at 6. Return to text.

[232] See United States v. Arbo, 691 F.2d 862 (9th Cir. 1982). Return to text.

[233] See id. at 866. Return to text.

[234] See United States v. Stephenson, 29 F.3d 162 (4th Cir. 1994). Return to text.

[235] Id. at 165. Return to text.

[236] Id.; see also Free Enterprise Canoe Renters Ass'n v. Watt, 549 F. Supp. 252 (E.D. Mo. 1982) (NPS could prohibit the use of state roads for canoe pickups by renters who lacked a NPS permit), aff'd, 711 F.2d 852 (8th Cir. 1983). Return to text.

[237] See Interview with Pamela Underhill, Director, Appalachian Trail Project Office, National Park Service (Sept. 25, 1998). Return to text.

[238] See 124 CONG. REC. 4217 (daily ed. Feb. 22, 1978) (statement of Sen. Durkin). Return to text.

[239] Id. Return to text.

[240] Id.; see also H.R. REP. NO. 95-734, 95th Cong, 1st Sess. (1977) (The Trails Act was intended to "insure that long-distance, high-quality trails with substantial recreation and scenic potential were afforded Federal recognition and protection." The Trails Act was designed to protect the "hiking experience" and to insure the existence of a trail corridor "wide enough to protect trail values.") Return to text.

[241] Pub. L. No. 91-190, Title 1, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4331-35 (1994)). Return to text.

[242] 42 U.S.C. § 4331(b) (1994); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). Return to text.

[243] 42 U.S.C. § 4331. Return to text.

[244] Pub. L. No. 91-190, 83 Stat. 855 (1970) (codified as amended at 42 U.S.C. §§ 4321-35 (1994)). Return to text.

[245] Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). Return to text.

[246] Robertson, 490 U.S. at 350. Return to text.

[247] See id. Return to text.

[248] See 42 U.S.C. § 4332(C), which states that all agencies of the Federal Government shall "include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement" regarding the environmental impacts and alternatives. To clarify the issue of timing for complying with NEPA, CEQ has defined the term "proposal." 40 C.F.R. § 1508.23 (1998). A "'proposal' exists at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated." Id. Return to text.

[249] See, e.g., LaFlamme v. Federal Energy Regulatory Comm'n, 842 F.2d 1063 (9th Cir. 1988), on reh'g amended, 852 F.2d 389 (9th Cir. 1988); Maryland-Nat'l Capital Park & Planning Comm'n v. United States Postal Serv., 487 F.2d 1029 (D.C. Cir.1973). Return to text.

[250] See Robert B. Keiter, NEPA and the Emerging Concept of Ecosystem Management on the Public Lands, 25 LAND & WATER L. REV. 43, 58 (1990). Return to text.

[251] See 40 C.F.R. § 1508.8(b) (1998). Return to text.

[252] See id. Return to text.

[253] 40 C.F.R. § 1508.27(b)(3) (1998); see also Keiter, supra note 250, at 58. Return to text.

[254] See Goose Hollow Foothills League v. Romney, 334 F. Supp. 877 (D. Or. 1971). Return to text.

[255] See, e.g., A. RUNTE, NATIONAL PARKS: THE AMERICAN EXPERIENCE 2 (2d ed. 1987); La Flamme v. Federal Energy Reg. Comm'n, 852 F.2d 389 (9th Cir. 1988) (regarding power projects' effect on visual resources in natural areas); Maryland Conserv. Council v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986) (regarding construction of highway through state park); Scenic Hudson Preserv. Conf. v. Federal Power Comm'n, 453 F.2d 463 (2d Cir. 1971) (Oakes, J., dissenting) (regarding highway affecting scenic views in Palasades Interstate Park). But see Mt. Lookout-Mt. Nebo Property Protection Ass'n v. Federal Energy Reg. Comm'n, 143 F.3d 165 (4th Cir. 1998) (holding no NEPA compliance where FERC determined that transmission lines would have only minor adverse impact on scenic views of Gauley River National Recreation Area). Return to text.

[256] See, e.g., Western Radio Serv. Co., Inc. v. Glickman, 123 F.3d 1189 (9th Cir. 1997) (NEPA may be implicated where telecommunications tower has negative affects on aesthetic values of surrounding national forest). Return to text.

[257] In fact, the FCC has assigned to its licensees the initial responsibility for determining whether NEPA compliance is necessary. See 47 C.F.R. §§ 1.1307-8, 1.1311-12 (1999). The FCC is required to independently review its licensees' decisions, including EA's, and if appropriate, solicit the views of other experts and affected federal agencies and interested parties to determine whether proposed facilities will have significant environmental effects. See 47 C.F.R. §§ 1.1307(c) and 1.1308 (1999). If the FCC determines that a proposed facility will have significant environmental effects, then it is required to inform the applicant or licensee and the applicant or licensee is afforded an opportunity to "reduce, minimize or eliminate" the environmental problems. 47 C.F.R. § 1.1309 (1999). If the environmental problems remain, then the FCC is required to conduct further environmental review by preparing an environmental impact statement (EIS). See 47 C.F.R. § 1.1314-19 (1999). Thus, the FCC's NEPA process relies substantially on the judgement of its licensees in determining whether a project presents a significant environmental effect. Licensees often are motivated by interests other than environmental protection, and therefore, predictably, frequently conclude that proposed projects do not warrant full NEPA review. Were the FCC diligently supervising its licensees' NEPA determinations, there would be a check against self-interested decision-making. Unfortunately, federal land management agencies are growing frustrated with the FCC's lack of involvement in coordinating the entire NEPA process. See Correspondence from John M. Hefner, Field Supervisor, United States Department of the Interior, Fish and Wildlife Service to 360 Communications (Apr. 23, 1998) (on file with author); Internal Memorandum from Ron Singer, United States Department of the Interior, Fish and Wildlife Service (Mar. 9, 1998) (on file with author). The result is that environmental compliance under NEPA is being subordinated to business and other interests. Return to text.

[258] See In the Matter of Implementation of the National Environmental Policy Act of 1969, Report and Order, F.C.C. 97-1042, 49 F.C.C.2d 1313 (1974). Return to text.

[259] See id. Return to text.

[260] See id. ¶¶ 28, 32, and 37. Return to text.

[261] See Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Report and Order, F.C.C. 85-626, ¶¶ 11-13 (1986). Return to text.

[262] See id. Return to text.

[263] See id. Return to text.

[264] See id. Return to text.

[265] Id. at ¶ 6. For instance, the Commission stated in its rule making that "if a proposed facility is within close proximity to a sensitive area, such as a wilderness preserve, but is not located within that area so as to come within § 1.1307, the action is categorically excluded." Id. Return to text.

[266] See Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Summary of Final Rule, 51 Fed. Reg. 14999 (Apr. 22, 1986). Return to text.

[267] 40 C.F.R. § 1508.4 (1998). Return to text.

[268] Federal Communications Commission, Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Report and Order, F.C.C. 85-626, ¶ 11. Return to text.

[269] Id. at ¶ 12; In the Matter of Implementation of the National Environmental Policy Act of 1969, Report and Order, F.C.C. 97-1042, 49 F.C.C.2d 1313 (1974), which explained the following:

Where local land use authorities have authorized the use of a site for communications facilities, we think that the Commission's role under NEPA should be narrowly construed. In such circumstances, we will proceed with caution and with due respect for the role and qualifications of local authorities. Deference will be accorded to their rulings and their views, particularly in matters of aesthetics and when the record demonstrates that environmental issues have been given full and fair consideration.

Id. at 1329. Return to text.

[270] See supra notes 95-98 and accompanying text. Return to text.

[271] See id.; see also Implementation of the National Environmental Policy Act of 1969, 49 F.C.C.2d 1313, 1329 (stating that because state or local authorities are not required to comply with NEPA's mandates, "their approval of a project cannot be accepted as conclusive and does not absolve the Commission of its statutory responsibilities."). Return to text.

[272] See Objections by Carroll County Trails Association, Opinion, F.C.C. 72-1121, 38 F.C.C.2d 1013, 1014 (1972), which states the following:

There appear to be no public parks or significant historical sites in the area [of a proposed telecommunications tower]. In considering the esthetic aspects of environmental matters, we believe the Commission must, to a significant extent, evaluate the impact of the proposed construction in relation to the national or widespread public interests, and not as a body for the appeal of local zoning decisions concerning only a very localized interest.

Id. Return to text.

[273] See DANIEL R. MANDELKER, NEPA LAW AND LITIGATION, § 7.04(2) (1998). Return to text.

[274] See 40 C.F.R. § 1508.4 (1998). Return to text.

[275] See Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986) (holding exception to categorical exclusion because environmentally controversial and environmental effects uncertain); see also Restore: North Woods v. United States Dep't of Agric., 968 F. Supp. 168 (D. Vt. 1997) (finding land exchange with substantial change in use); Fund for Animals v. Espy, 814 F. Supp. 142 (D.D.C. 1993) (finding agency merely cited categorical exclusion regulation after complaint filed); Mississippi ex rel. Moore v. Marsh, 710 F. Supp. 1488 (D. Miss. 1989); Greenpeace U.S.A. v. Evans, 688 F. Supp. 579 (D. Wash. 1987) (holding action controversial). Return to text.

[276] 40 C.F.R. § 1508.4 (1998). Return to text.

[277] See Amendment of Environmental Rules in Response to New Regulations Issued by the Council on Environmental Quality, Report and Order, F.C.C. 85-626, ¶¶ 11-13 (1986). Return to text.

[278] See id. Return to text.

[279] See, e.g., Dinah Bear, NEPA at 19: A Primer on an "Old" Law with Solutions to New Problems, 19 ENVTL. L. REP. 10060, 10063 (1989); Washington Trails Ass'n v. United States Forest Serv., 935 F. Supp. 1117 (W.D. Wash. 1996) (holding categorical exclusions should be interpreted narrowly because of Congress' expressed intent that agencies comply with NEPA to the "fullest extent possible."). See also 42 U.S.C. § 4332 (1999) (stating "[t]he Congress authorizes and directs that, to the fullest extent possible . . . the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter."). Return to text.

[280] It is important to consider the context of the particular siting decision. The significance of the impact on the environment must be determined by comparing the impact of the action to the environmental baseline. The baseline is the condition of the environment prior to the time that the action is commenced. See MANDELKER, supra note 273, at § 8.06[4][a]. If the baseline is unspoiled, the impact of a new project on the existing environment would have dramatic effects. See id. Return to text.

[281] See supra notes 274-80 and accompanying text. Return to text.

[282] See, e.g., New Jersey v. Long Island Power Auth., 30 F.3d 403 (9th Cir. 1994); Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60 (D.C. Cir. 1987). The term "significantly affecting . . . the human environment" as used in 42 U.S.C. § 4332 (2)(C) requires a consideration of both context and intensity. "Context" means that "the significance of an action must be analyzed in several different contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality," including the particular setting of the proposed action. 40 C.F.R. § 1508.27(a) (1998). "Intensity" refers to the severity of the impact, which will vary depending on the "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas." Id. § 1508.27(b)(3). Return to text.

[283] See, e.g., Conservation Law Found. of New England v. United States Dep't of the Air Force, No. 87-1871-K, 1987 U.S. Dist. LEXIS 15149 (D. Mass. Nov. 23, 1987) (cumulative impacts of radio towers); Kleppe v. Sierra Club, 427 U.S. 390 (1976) (when several proposals will have a cumulative or synergistic environmental impact, their environmental consequences must be considered together). See also Heartwood, Inc. v. United States, No. 98-CV-4289-JPG, slip op. (S.D. Ill. Sept. 29, 1999), where the court held that if a particular type of project might pose cumulative impacts, those impacts must be considered before the agency's adoption of a categorical exclusion for that particular class of projects. The Agency cannot rely upon the "extraordinary circumstances" exception to the categorical exclusion, 40 C.F.R. § 1508.4, to analyze the cumulative impacts on a case-by-case basis after the categorical exclusion is promulgated. Id. Rather, categorical exclusions are inappropriate for projects where cumulative impacts are likely. Id. Return to text.

[284] See Lockhart, supra note 153, at 64-65. Return to text.

[285] See National Park Service, Environmental Assessment for the Protection of the Appalachian National Scenic Trail Across Saddleback Mountain, Franklin County, Maine, 3-5 (June 1999). Return to text.

[286] See id. Return to text.

[287] See id. The Visual Management System is published in USDA Forest Service Handbook No. 701, Landscape Aesthetics: A Handbook for Scenery Management. This Visual Management System has been used by the Forest Service "for more than [thirty] years and is widely accepted by other governmental agencies." Id. Return to text.

[288] See id. at 3-6. Return to text.

[289] See id. Return to text.

[290] National Park Service, Environmental Assessment, supra note 285. The Visual Quality Objectives may range as follows: (1) "Preservation," which is ordinarily applied only to designated wilderness and allows only for ecological changes, (2) "Retention" which allows management activities that are not visually evident and which "only repeat form, line, color, and texture that are frequently found in the landscape"; (3) "Partial Retention" allows for "management activities that remain visually subordinate to the characteristic landscape. Activities should repeat form, line, color and texture common to the characteristic landscape but changes in their qualities should remain visually subordinate to the characteristic landscape"; (4) "Modification" allows for activities that "dominate the landscape. However, changes to vegetation and landform should borrow from the established natural form, line, color and texture so completely that the visual characteristics are similar to the surrounding area"; and (5) "Maximum Modification" where management activities are permitted to dominate the landscape irrespective of aesthetics. Id. at 3-6-3-7. Return to text.

[291] See, e.g., Leelanau, Mich., Applications for Licenses in the Private Land Mobile and Operational Fixed Microwave Radio Serv., 9 F.C.C. Rcd. 6901 (Nov. 4, 1994) (FCC deferred to interpretation of National NPS with respect to tower affecting Sleeping Bear Dunes National Lakeshore); Application of Weigel Broadcasting Company to Modify the Authorized Facilities of WDJT-TV, Milwaukee, Wisc., 11 F.C.C. Rcd. 17202 (May 17, 1996) (FCC deferred to opinion of Army Corps of Engineers and U.S. Fish and Wildlife Service regarding the construction of tower near a floodplain). Return to text.

[292] See supra note 291. Return to text.

[293] See Interview with Rita Hennessy, supra note 140. Return to text.

[294] See id.; see also Internal Memorandum from Ron Singer, Department of the Interior, Fish and Wildlife Service, Division of Refuges (Mar. 9, 1998) (on file with author) (FCC has attempted to bypass NEPA responsibilities with respect to the siting of telecommunications towers that may affect National Wildlife Refuges). Return to text.

[295] See, e.g., Foundation on Economic Trends v. Lyng, 817 F.2d 882 (D.C. Cir. 1987); National Wildlife Fed'n v. Benn, 491 F. Supp. 1234, 1251 (S.D. N.Y. 1980); National Resources Defense Council v. Hodel, 435 F. Supp. 590, 598-602 (D. Or. 1977), aff'd sub nom., National Resources Defense Council v. Munro, 626 F.2d 134 (9th Cir. 1980). Return to text.

[296] See Jon C. Cooper, Broad Programmatic, Policy and Planning Assessments Under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations, 11 PACE ENVTL. L. REV. 89 (1993). Return to text.

[297] See Kleppe v. Sierra Club, 427 U.S. 390 (1976). The obligation to conduct NEPA analysis on each individual tower would be triggered by the FCC's requirement that each tower must be registered with the FCC prior to construction. See supra note 111. See also 40 C.F.R. § 1508.18 (1998); Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996) (" [I]f a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute a major federal action . . . ."); Jones v. Gordon, 792 F.2d 821, 827-29 (9th Cir. 1986); Astoria v. Hodel, 595 F.2d 467, 478 (9th Cir. 1979). Return to text.

[298] See 40 C.F.R. § 1508.28 (1998), which states that "'[t]iering' refers to the coverage of general matters in broader environmental impact statements . . . with subsequent narrower statements or environmental analyses . . . incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared." See No GWEN Alliance, Inc. v. Aldridge, 855 F.2d 1380 (9th Cir. 1988) (The Air Force issued generic environmental assessment for an entire network of radio towers and a site specific environmental assessment for each particular tower location). Return to text.

[299] See Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978). Return to text.

[300] See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). Return to text.

[301] See id. Return to text.

[302] See, e.g., Neighbors v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998) (holding that Forest Services' description of mitigating measures it would impose to offset damage that proposed timber sale would cause to red band trout habitat was insufficient under NEPA.); Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th Cir. 1993) (holding that no EIS was necessary); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir. 1985) (holding that no EIS was necessary); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir. 1982) (holding that no EIS was necessary). Return to text.


[304] See id. Return to text.

[305] See Kent Schwarzkopf, Appalachian Trail Natural Heritage Inventory and Monitoring Program (Apr. 1999) (on file with author). Return to text.

[306] Id. The Natural Heritage Inventory is limited to the identification of threatened and endangered species occurring on federal lands within the Appalachian Trail corridor. Id. Similar studies of private lands adjacent to the trail corridor have not been conducted; this is important, because in most cases, telecommunications towers are sited adjacent to the trail corridor. Id. For the purposes of this Article, it is assumed that the species which inhabit the trail corridor also inhabit adjacent private, non-federal lands. Id. Return to text.

[307] Id. Return to text.

[308] Pub. L. No. 93-205, 81 Stat. 884 (1973) (codified as amended at 16 U.S.C. §§ 1531-43 (1994)). Return to text.

[309] See id. Return to text.

[310] See Schwarzkopf, supra note 305. Return to text.

[311] See id. To date, the natural heritage inventories have been completed for the trail corridor in the states of Pennsylvania, New Hampshire, Vermont, Connecticut, North Carolina, Virginia, Tennessee, West Virginia, Maine, and Massachusetts. See id. It is anticipated that the inventory in the state of Georgia will be completed by November, 1999, and the inventories for the states of New York, New Jersey, and Maryland are expected to be completed by 2000. Id. Return to text.

[312] See, e.g., U.S. Fish and Wildlife Service, Listed Threatened and Endangered Species by Lead Region, (updated June 4, 1999), ; Letter from Kent Schwarzkopf, Natural Resource Specialist, National Park Service to James J. Vinch (June 10, 1999) (on file with author) (citing the following endangered, threatened, or rare species along the Appalachian Trail as identified by the Natural Heritage Inventory: Fraser's fir (Abies fraseri), piratebush (Buckleya distichophylla), variable sedge (Carex polymorpha), long stalked holly (Ilex collina), Kankakee globe mallow (Iliamina remota), Peregrine falcon (Falco peregrinus), Mountain avens (Geum peckii), Alpine bittercress (Cardamine bellidifolla), and Boot's rattlesnake root (Prenanthes booti)). Return to text.

[313] See Schwarzkopf, supra note 305. Return to text.

[314] See Interview with Bill Evans, Ph.D., Cornell University Department of Ornithology (Feb. 12, 1998). Return to text.

[315] The Kirtland's warbler is listed at 50 C.F.R. § 17.11 (1998). Return to text.

[316] See United States Forest Service, Working Together to Save a Special Bird, (visited Mar. 21, 1999) . Return to text.

[317] See id. Return to text.

[318] See Interview with Bill Evans, Ph.D., supra note 314; see also Weidensaul, supra note 104 (The Kirtland's Warbler must migrate through North Carolina, which has more than 1,500 towers, including 66 that are more than 800 feet high.). Return to text.

[319] See Weidensaul, supra note 104. Return to text.

[320] See, e.g., LESLEY J. EVANS OGDEN, COLLISION COURSE: THE HAZARDS OF LIGHTED STRUCTURES AND WINDOWS TO MIGRATORY BIRDS, REPORT OF THE WORLD WILDLIFE FUND App. 1 at 38-46 (Sept. 1996); John L. Trapp, U.S. Fish and Wildlife Service Office of Migratory Bird Management, Bird Kills at Towers and Other Man-Made Structures: An Annotated Partial Bibliography (1960-1998). Return to text.

[321] See Interview with Bill Evans, Ph.D., supra note 314. Scientists are not exactly certain how and why birds are drawn to communications towers, but it is believed that they are attracted by the flashing lights on the structures, become disoriented, and collide with the steel structure or the web of supporting guy wires. See id. Telecommunications towers pose a particular threat to migratory song birds, such as the Kirtland's warbler, which tend to fly at low altitudes across mountain passes and fly principally at night using the stars for navigation. See id. Coincidentally, telecommunications towers tend to be clustered along mountain ridge tops, where the higher altitude expands signal coverage. See id. Migratory birds use mountains, such as the Appalachians, as flyways to guide them in their long journeys to and from their tropical wintering grounds. See id. Structures located at key points along these migratory routes represent a greater hazard than those towers located elsewhere. See id. Studies have indicated that, in the eastern United States alone, between 2 and 5 million birds are killed each year in collisions with telecommunications structures. See OGDEN, supra note 318 at 4-8, 19-24. Return to text.

[322] The Cheat Mountain salamander is listed at 50 C.F.R. § 17.11 (1998). Return to text.

[323] The Shenandoah salamander is listed at 50 C.F.R. § 17.11 (1998). Return to text.


[325] See, e.g., Judy Jacobs, Shenandoah Salamander Recovery Plan, United States Fish and Wildlife Service (1994); SCOTT WEIDENSAUL, MOUNTAINS OF THE HEART: A NATURAL HISTORY OF THE APPALACHIANS 41 (1994); Thomas K. Pauley, Cheat Mountain Salamander Recovery Plan: Technical/Agency Draft, United States Fish and Wildlife Service (1991). Similarly, the Cheat Mountain salamander lives at elevations of 3,000 feet and is usually confined to a limited band of less than two hundred feet in vertical rise. Id. Return to text.

[326] See WEIDENSAUL, supra note 325, at 42. Return to text.

[327] See id. at 41-42. Return to text.

[328] See Jacobs, supra note 325, at 10. Return to text.

[329] See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 176-77 (1977). Return to text.

[330] Hearings on Endangered Species Before a Subcommittee of the House Committee on Merchant Marine and Fisheries, 93d Cong., 1st Sess., 202 (1973) (statement of Assistant Secretary of the Interior), cited in Tennessee Valley Auth., 437 U.S. at 176. Return to text.

[331] Id. Return to text.

[332] See Tennessee Valley Auth., 437 U.S. at 181-85. Return to text.

[333] See id. at 185. Return to text.

[334] See Internal Memorandum from Ron Singer, Department of the Interior, Fish and Wildlife Service, Division of Refuges (Mar. 9, 1998) (on file with author). Return to text.

[335] See H.R. CONF. REP. NO. 104-458, 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124 ("[T]he managers of the House and Senate [intend] to provide for a pro-competitive, de-regulatory, national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans."). Return to text.

[336] See supra notes 109-13 and accompanying text. Return to text.

[337] Endangered Species Act of 1973 § 7, 16 U.S.C. § 1536(a)(2) (1994). Return to text.

[338] 50 C.F.R. § 402.02 (1998). Return to text.

[339] See, e.g., Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir. 1995) (finding right-of-way agreement negotiated between private party and Bureau of Land Management (BLM) after enactment of ESA would constitute agency action); O'Neill v. United States, 50 F.3d 677, 680-81 (9th Cir. 1995) (finding ESA applies to a water service contract between private party and federal government), cert. denied, 516 U.S. 1028 (1995); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1053-56 (9th Cir. 1994) (finding ESA applies to forest management plans), cert. denied, 514 U.S. 1082 (1995); Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998) (finding water service contracts between BLM and private party implicated ESA), cert. denied, 119 S.Ct. 1754 (1999); Conner v. Burford, 848 F.2d 1441, 1452 (9th Cir. 1988) (finding proposed sale of oil and gas leases by Forest Service pursuant to Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq., triggered ESA), cert. denied, 489 U.S. 1012 (1989). See also 50 C.F.R. § 402.03 (1998), which restricts the types of agency actions that will trigger the ESA to those "actions in which there is discretionary Federal involvement or control." Thus, where the federal government has no discretion to approve or deny a permit or license, such as is the case when the federal government issues a patent under the Mining Act of 1872, then section 7 would not be implicated. See COGGINS ET AL., supra note 99, at 813-14. Return to text.

[340] See Foster et al., supra note 102, at 729. Return to text.

[341] See id. Return to text.

[342] See id. Return to text.

[343] See discussion supra Part III. Return to text.

[344] See 47 C.F.R. § 17.4 (1998). Return to text.

[345] The scope of the FCC's duty to consult under section 7 will be explored in more detail later. See infra Part IV(D)(1)(b). Return to text.

[346] See 16 U.S.C. § 1536(a)(2) (1998). Return to text.

[347] See infra Part IV(D)(3). Return to text.

[348] See § 1536(c)(1). Return to text.

[349] Id.; see also Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985) (describing substantive and procedural obligations of federal agencies under section 7). Return to text.

[350] § 1536(c)(1); see also Thomas, 753 F.2d at 763. The biological assessment may be part of an environmental assessment or environmental impact statement prepared by the FCC to comply with NEPA. Id. Return to text.

[351] See § 1536(a)(2), (c)(1). "Any possible effect, whether beneficial, benign, adverse or of undetermined character . . . " will trigger consultation. 50 C.F.R. § 402.14(a) (1998) Return to text.

[352] 16 U.S.C. § 1536(a)(2). Return to text.

[353] Jeopardy is defined as engaging "in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02 (1999). It is important to note that "jeopardy" is a completely separate standard from the prohibition of "take" in section 9. A single section 9 taking should not necessarily result in section 7 liability; however, multiple "takings" may rise to the level of harm necessary to "jeopardize" the health of the entire species. See Sierra Club v. Yeutter, 926 F.2d 429, 439 n.16 (5th Cir. 1991). Return to text.

[354] See 16 U.S.C § 1536(b)(3)(A) (1994). Return to text.

[355] See id. § 1536(b)(4). Return to text.

[356] Id. § 1536(d). Return to text.

[357] Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076, 1084 n.8 (E.D. Ky. 1998) (citation omitted). Return to text.

[358] See Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1, 17 (1996). Return to text.

[359] See Lone Rock Timber Co. v. United States Dep't of Interior, 842 F. Supp. 433, 440 (D. Or. 1994). Return to text.

[360] See 50 C.F.R. § 402.14(a) (1999). When the USFWS requests the action agency to enter into consultation, it is required to "forward to [that] agency a written explanation of the basis for the request." Id. The USFWS has recognized that telecommunications towers present a threat to threatened and endangered migratory bird species. See id. However, because the telecommunications boom is a relatively recent phenomenon, the USFWS is just beginning to study the effects and potential solutions. See Summary of Meeting of USFWS, Migratory Bird Conservation and Communications Towers: Avoiding and Minimizing Conflicts (Nov. 17, 1998) [hereinafter USFWS Meeting] (on file with author). Return to text.

[361] See, e.g., Twenver, Inc., 65 Rad. Reg. 2d (P & F) 607 (1988) (no ESA section 7 arguments submitted in opposition to tower relocation plan); Caloosa Television Corp., 2 F.C.C. Rcd. 3656 (1988); WMNN (AM), File No. BMP-940802DA (FCC refused to consult with USFWS regarding effects of tower on Bald Eagle populations). But see County of Leelanau, 9 F.C.C. Rcd. 6901, 6902 (1994) (FCC complied with ESA concerning effects of tower on Piping Plover, Bald Eagle, and Peregrine Falcon). Return to text.

[362] See, e.g., Arthur D. Smith, Programmatic Consultation Under the Endangered Species Act: An Anatomy of the Salmon Habitat Litigation, 11 J. ENVTL. L. & LITIG. 247 (1996); Peter Van Tuyn & Christine Everett, The Endangered Species Act and Federal Programmatic Land and Resource Management: Consultation Fact or Fiction, 13 PUB. LAND L. REV. 99 (1992). Return to text.

[363] See Smith, supra note 362, at 263. Return to text.

[364] See Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1056 (9th Cir. 1994) (requiring consultation by National Forest Service on Land and Resource Management Plan in advance of individual logging determinations in order to protect Chinook salmon); Lane County Audubon Soc'y v. Jamison, 958 F.2d 290, 295 (9th Cir. 1992) (finding programmatic consultation on BLM timber plan necessary to protect Spotted Owl). Return to text.

[365] See, e.g., Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988) (finding ESA consultation on oil and gas leases covering one million acres of national forest land must take place at the planning stage to consider impacts of full field development on endangered bald eagle, gray wolf, peregrine falcon, and grizzly bear), cert. denied, 489 U.S. 1012 (1988); North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980) (holding all possible ramifications of agency decision must be considered to issue oil and gas lease). Return to text.

[366] Pacific Rivers Council, 30 F.3d at 1053. Return to text.

[367] See Conner, 848 F.2d at 1450. Return to text.

[368] See id. Return to text.

[369] See id.; see also Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1052 (1st Cir. 1982) (EPA required to prepare "real time simulation" studies of effects of oil spills on endangered species, even though it would only be an informed estimate). Return to text.

[370] See USFWS Meeting, supra note 360. Return to text.

[371] See Weidensaul, supra note 104. Return to text.

[372] See USFWS Meeting, supra note 360. Return to text.

[373] See 16 U.S.C. § 1536(d) (1994). Return to text.

[374] 685 F.2d 678, 687 (D.C. Cir. 1982). Return to text.

[375] See id. Return to text.

[376] Id. Return to text.

[377] See North Slope Borough v. Andrus, 642 F.2d at 589, 610-11 (D.C. Cir. 1980). Return to text.

[378] See Conner v. Burford, 848 F.2d 1441, 1462 (9th Cir. 1988). Return to text.

[379] See Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir. 1995) (finding further consultation is appropriate at each stage where agency has discretion to influence private action). Return to text.

[380] See Smith, supra note 362, at 267. Return to text.

[381] See 50 C.F.R. § 402.14(k) (1999) (authorizing consultation on the basis of incremental steps). Return to text.

[382] See id. § 402.14(k)(1). Return to text.

[383] See id. Return to text.

[384] See OGDEN, supra note 320, app. 1; see also MICHAEL L. AVERY ET AL., U.S. DEP'T OF THE INTERIOR, AVIAN MORTALITY AT MAN MADE STRUCTURES: AN ANNOTATED BIBLIOGRAPHY (1980); R.C. Banks, Human Related Mortality of Birds in the United States, U.S. Fish and Wildlife Service, Special Scientific Report on Wildlife No. 215 (1979); R.D. WEIR, ANNOTATED BIBLIOGRAPHY OF BIRD KILLS AT MAN- MADE OBSTACLES: A REVIEW OF THE STATE OF THE ART AND SOLUTIONS, CANADIAN DEP'T OF FISHERIES AND THE ENVIRONMENT (1976); Towerkill Website, (visited Mar. 21, 1999) (website provides a summary of research on avian mortality at towers). Return to text.

[385] See Interview with Bill Evans, Ph.D., supra note 314. Studies indicate that all types of warbler species, including the endangered Kirtland's warbler, may be at a higher level of risk because they migrate at altitudes of less than 500 feet, which makes them susceptible to tower collisions. See USFWS Meeting, supra note 358. Return to text.

[386] See Interview with Bill Evans, Ph.D., supra note 314. Return to text.

[387] See The Siting of Telecommunications Antennas in National Parks: Hearings Before the Subcomm. on Telecommunications, Trade, and Consumer Protection of the House Comm. on Commerce, 145 Cong. Rec. D96-01 (Feb. 3, 1999) (statement of Maureen Finnerty). Return to text.

[388] See Tennessee Valley Auth.v. Hill, 437 U.S 153, 188 (1978) (stating agencies must afford first priority to conserving endangered species and there are no "hardship" exemptions to this mandate). Return to text.

[389] See USFWS Meeting, supra note 360, at 8-9 (proposing the use of radar technology to identify migratory patterns which "may aid us in the advisement of communications towers placement to reduce impacts to birds."). Return to text.

[390] See id. at 6; see also Kreines & Kreines, Inc., Siting Criteria for Personal Wireless Service Facilities (on file with author). Return to text.

[391] See USFWS Meeting, supra note 360, at 8-9. Return to text.

[392] See id. at 6. Return to text.

[393] See Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995). Because the FCC arguably has no discretion to regulate existing towers once the initial permitting decision is made, section 7 of the ESA may not be applicable to existing towers. However, section 9 of the ESA allows the government to halt private activity that is reasonably certain to result in a "taking." See Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 787-88 (9th Cir. 1995). Return to text.

[394] See USFWS Meeting, supra note 360, at 10-11. Return to text.

[395] See id. Return to text.

[396] See id. Return to text.

[397] See 47 C.F.R. § 17.7 (1998). Return to text.

[398] See OGDEN, supra note 320, at 27-31 Return to text.

[399] See id. Return to text.

[400] See id. Pilots have difficulty seeing red lights and instead prefer white lights, which are more visible. See USFWS Meeting, supra note 360, at 10. Return to text.

[401] See OGDEN, supra note 320, at 29. Return to text.

[402] See USFWS Meeting, supra note 360, at 11. Return to text.

[403] See Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988). Return to text.

[404] 16 U.S.C. § 1536(a)(1) (1994). Return to text.

[405] See J.B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107, 1110 (1995). Return to text.

[406] 156 F.3d 606 (5th Cir. 1998). Return to text.

[407] See id. at 617. Return to text.

[408] See id. at 616. Return to text.

[409] Id. at 615, citing 16 U.S.C. § 1532(2). Return to text.

[410] See Sierra Club v. Glickman, 156 F.3d 606; see also 16 U.S.C. § 1531(b) (Purposes of the ESA are to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . ." and to "[p]rovide a program for the conservation of . . . species."). Return to text.

[411] See Sierra Club v. Glickman, 156 F.3d at 615. Return to text.

[412] See id. Return to text.

[413] See Ruhl, supra note 405, at 1122-23. Return to text.

[414] See id. Return to text.

[415] See id. Return to text.

[416] See 16 U.S.C.A. § 1538(a)(1)(B) (1999). Return to text.

[417] Id. § 1532(19). Return to text.

[418] 50 C.F.R. § 17.3 (1998); see also Babbitt v. Sweet Home Chapter, 115 S.Ct. 2407, 2410 (1995). Return to text.

[419] See Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F. Supp. 2d 529, 537-38 (D.V. 1998) (finding evidence of causal relationship between the habitat modification and actual harm to species required to support an infraction); Coastside Habitat Coalition v. Prime Properties, Inc., No. C97-4025, 1998 WL 231024 (N.D. Cal. 1998). Return to text.

[420] See 16 U.S.C.A. § 1536(o)(2) (1999). Return to text.

[421] See Ramsey v. Kantor, 96 F.3d 434, 441-42 (9th Cir. 1996). Return to text.

[422] See National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 855 (1970) (codified as amended at 42 U.S.C. §§ 4321-35 (1994)). Return to text.

[423] See 16 U.S.C.A. §§ 703-12 (1999). Return to text.

[424] See 16 U.S.C.A. §§ 668-68d (1999). Return to text.

[425] See 123 CONG. REC. 27944 (Sept. 7, 1977) (stating "[t]he trail was intended as a 'back to nature' respite for the many urban dwellers who wanted to find mental peace and time to think, away from the hurried pace and noise of city life."); see also Jackson, supra note 18, at 18. Return to text.

[426] John S. Davis, The National Trails System Act and the Use of Protective Federal Zoning, 10 HARV. ENVTL. L. REV. 189, 193, citing, Nationwide System of Trails: Hearings on S.827 Before the Senate Comm. on Interior and Insular Affairs, 90th Cong., 1st Sess. 55 (1967). Return to text.

[427] See WEIDENSAUL, supra note 325, at 27-29. Return to text.

[428] See id. Return to text.

[429] See id. Return to text.

[430] See id. Return to text.

[431] See id. Return to text.

[432] See, e.g., Katy Hillenmeyer, County Aims to Tighten Cell Tower Law, ASHEVILLE CITIZEN-TIMES, Mar. 24, 1999, at A1; Kathy Brister, Share and Share Alike: The Solution to Tower Proliferation, KNOXVILLE NEWS SENT., Oct. 22, 1998, at C1; Marlon Manuel, Cobb Tower Approval Could Be First of Many, THE ATLANTA J. & ATLANTA CONST., July 9, 1997, at 04B. Return to text.

[433] See OGDEN, supra note 320; see also Bill Evans & Cynthia Melcher, Bird Mortality at Communications Towers, 33 J. OF THE COLO. FIELD ORNITH. 48 (1999). Return to text.

[434] See Audubon Reports, Why Birds Hate Seinfeld, (visited Oct. 15, 1998) . Return to text.

[435] See id.; see also Crawford, R.L., Bird Casualties at Leon County, Florida TV Tower: A Twenty-Five Year Migration Study, Bull. Tall Timbers Res. Sta. 22 (1981); John L. Trapp, U.S. Fish and Wildlife Service Office of Migratory Bird Management, Bird Kills at Towers and Other Man-Made Structures: An Annotated Partial Bibliography (1960-1998). Return to text.

[436] Ch. 128, 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703-11 (1994). Return to text.

[437] The Convention Between the United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Can., 39 Stat. 1702, T.S. No. 628 (protecting three classes of birds: "migratory game birds," "migratory insectivorous birds," and "other migratory nongame birds."). Return to text.

[438] The Convention Between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311, T.S. No. 912; see also The Convention Between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment, Mar. 4, 1972, U.S.-Jap., 25 U.S.T. 3329, 3331, T.I.A.S. No. 7990; The Convention Between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, Oct. 13, 1978, U.S.-U.S.S.R., 29 U.S.T. 4647. Return to text.

[439] 16 U.S.C. § 703. A "taking" has been defined by the Department of the Interior to include "pursue, hunt, shoot, wound, kill, trap, capture or collect." 50 C.F.R. § 10.12 (1999). Return to text.

[440] See 50 C.F.R. § 10.13; see also United States v. Van Fossen, 899 F.2d 636, 637 (7th Cir. 1990) (noting that the MBTA applies to common birds). Return to text.

[441] See United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal. 1978). Return to text.

[442] See id. Return to text.

[443] See id. Return to text.

[444] See United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978). Return to text.

[445] See United States v. Moon Lake Elec. Ass'n, Inc., 45 F. Supp. 2d 1070 (D. Colo. 1999). Return to text.

[446] See id. Return to text.

[447] See id. at 1085. The court concluded that its holding would not produce a result that would offend reason and common sense. See id. The defendant questioned whether constructing an office building, driving an automobile, piloting an airplane or living in a residential dwelling with a picture window would not result in liability under the MBTA if birds were killed as an incidental consequence. See id. The court held that the "death of a protected bird is not a probable consequence" of any of these activities, and therefore its holding should not lead to absurd results. Id. Return to text.

[448] Erin C. Perkins, Migratory Birds and Multiple Use Management: Using the Migratory Bird Treaty Act to Rejuvenate America's Environmental Policy, 92 NW. U. L. REV. 817, 845 (1998), citing FMC Corp., 572 F.2d at 908. But see Benjamin Means, Note: Prohibiting Conduct, Not Consequences: The Limited Reach of the Migratory Bird Treaty Act, 97 MICH. L. REV. 823, 830-32 (1998) (contending that statutory language and legislative history of MBTA limits act to migratory bird deaths caused by hunting). Return to text.

[449] See Sierra Club v. United States Dep't of Agric., No. 94-CV-4061-JPG (S.D. Ill. 1995), aff'd, 116 F.3d 1482 (7th Cir. 1997). Return to text.

[450] Sierra Club v. Martin, 933 F. Supp. 1559, 1564 (N.D. Ga. 1996). Return to text.

[451] Id. Return to text.

[452] See id. But see Mahler v. United States, 927 F. Supp. 1559, 1579 (S.D. Ind. 1996) (stating that "Congress did not intend the MBTA to be applied to any and all human activity that may result in unintended and accidental deaths of migratory birds."). Return to text.

[453] See Sierra Club v. Martin, 933 F. Supp. at 1564-65. Return to text.

[454] See Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997). Return to text.