Laura Erickson's For the Birds

Thursday, August 4, 2011

450-foot cell tower's potential impact on birds--Judge's ruling

Yesterday, Judge Philip Bush released his 58-page ruling against AT&T’s proposed 450-foot lighted cellular communications tower, which would have been visible deep into the Boundary Waters Canoe Area Wilderness. I testified on behalf of the Friends of the Boundary Waters regarding the potential impact on birds; Paul Kerlinger testified on behalf of AT&T. You can read Judge Bush's entire ruling here. Following is the section of his ruling regarding birds (pp29-32):
Effect on other Resources

157. According to the United States Fish and Wildlife Service ("FWS"), the construction of new communications towers "creates a potentially significant impact on migratory birds, especially some 350 species of night-migrating songbirds." (TX38.)

158. The FWS is the federal regulatory agency charged with the mission of protecting migratory birds pursuant to the Migratory Bird Treaty Act (MBTA) (16 U.S.C. §§ 703-712). (4/11/11 PM Erickson Tr. 140:16-23; TX38; TX186 ¶ 50.)

159. There are five primary factors that affect the magnitude of the risk to birds posed by a particular communications tower:
1) the height of the structure above the surrounding landscape;
2) whether the structure is lighted, and if so, the type of lighting employed;
3) the use of guy wires;
4) the location of the tower; and
5) the weather patterns in the area of the tower site. (4/11/11 PM Erickson Tr. 139:14-20; 4/13/11 AM Kerlinger Tr. 167:3-20, 169:7-14; TX186 ¶¶ 25-27.)

160. The importance of these five factors is confirmed by research studying avian mortality at communications towers and by the FWS. (4/11/11 PM Erickson Tr. 139:14-20; see TX38.)

161. The FWS instructs that "[l]ighted guy-wired towers taller than 199 feet above ground level (AGL), are particularly hazardous to migratory birds, especially night-migrating song birds." (TX1.)

162. In 2000, the FWS issued "Service Interim Guidelines For Recommendations On Communications Tower Siting, Construction, Operation, and Decommissioning," in order to instruct tower builders on reasonable steps that should be taken to increase good faith efforts to avoid "the take of migratory birds" and reduce the possibilities of prosecution under the MBTA.
(TX 38.)

163. In its Guidelines, the FWS recommends that towers be "no more than 199 feet above ground level," use construction techniques "which do not require guy wires," and be "unlighted." If lighting is used, "the use of solid red or pulsating red warning lights at night should be avoided." (TX38.)

164. With regard to location, in its Guidelines, the FWS states that towers "should not be sited in or near wetlands, other known bird concentration areas," "in known migratory or daily movement flyways, or in habitat of threatened or endangered species," and "should not be sited in areas with a high incidence of fog, mist, and low ceilings." (TX 38.)

165. The Proposed Tower is within one half mile of numerous wetlands. (TX 193.)

166. Hayes' report indicates that the weather around the Proposed Tower has significant incidents of fog mist and low ceilings. (TX 186 p. 11 and 21.)

167. The Proposed Tower fails to conform to each applicable FWS Guideline and deviates from the Guidelines, which increase the risk that the Proposed Tower will pose to migratory birds. (4/11/11 PM Erickson Tr. 142:4-145:15; TX 186 ¶¶ 53-62.)

168. The FWS Guidelines reflect "the best information available" and "are the most prudent and effective measures for avoiding bird strikes at towers." (TX 38; 4/13/11 AM Kerlinger Tr. 146:19-147:8, 174:13-175:11.) Defense expert Kerlinger disagrees with these Guidelines and has unsuccessfully tried to get the Guidelines changed. The Court accepts the Guidelines and does not accept Kerlinger's minority view that has not been adopted by the FWS.

169. All experts in this case and the FWS agree that night-migrating songbirds are the bird species most vulnerable to fatalities due to collisions with communications towers. (4/13/11 AM Kerlinger Tr. 145:14-17; TX272 at 5; TX 186 ¶ 33; TX 38.)

170. Of the thirty bird species with the highest number of recorded fatalities due to collisions with communications towers, twenty-eight of those species nest in the BWCAW. (4/11/11 PM Erickson Tr. 124:6-21.)

171. The peregrine falcon is a threatened species in Minnesota, see Minn. Admin. R. 6134.0200, subp. 2, and also migrates in and around the BWCAW. While peregrine falcons do not migrate at night, they do collide with guy wires. (TX 186 ¶ 47; 4/11/11 PM Erickson Tr. 144:3-13.)

172. The combination of the height of the Proposed Tower above the surrounding landscape; its use of guy wires; its use of red flashing beacon lighting at night; its location near wetlands, in a nesting area of twenty-eight of the thirty bird species most vulnerable to tower collisions; and a high incidence of fog in the site area of the Proposed Tower creates a significant threat to migratory birds. (TX 186 ¶¶ 41-49.)

173. Both Plaintiff and Defense avian wildlife experts agree that the 450-foot Proposed Tower will kill a number of birds. They disagree on how many will be killed.

174. Plaintiff s expert Ericson was unable to quantify the number of birds that would be killed by the Proposed Tower but it would "likely kill large numbers of migratory birds" (TX 186 p. 22.) FOOTNOTE 19

175. Defendants' expert Kerlinger testified that, at most, 48 birds a year would be killed by the Proposed Tower.(4/13/11 AM Kerlinger Tr. 121-123.). He is a private consultant who works and testifies exclusively for the wind and cell-tower industries. The Court does not find Kerlinger's opinions about very low probable bird mortality at the Proposed Tower to be credible.

176. Based on the testimony and the evidence presented, it is not possible for this Court to confidently quantify how many of which species of birds will be killed by the Proposed Tower.

177. Since this Court is analyzing the impact on birds under the Schaller factor of the effect on other natural resources it is not necessary to specifically quantify bird mortality from the Proposed Tower.

178. The Proposed Tower will have a significant negative consequential effect on avian wildlife.

FOOTNOTE 19 The Court does not find persuasive Erickson's later answer that she agreed with someone else's statement from Tower Committee meeting minutes that the Proposed Tower would kill thousands of birds over time.( 4/12/11 AM Erickson Tr. 22:13-23:7; TX 61.)

In his summation he mentions birds again on p 49:
Significant Effect on other Resources
25. The proposed Tower will kill avian wildlife including many protected migrating song birds and threatened peregrine falcons. It will have a negative effect on avian wildlife ("wildlife will be lost" Schaller, 563 N.W.2d at 265). Because it is difficult to determine how many birds will be killed by the Proposed Tower and equally difficult to determine how significant this
effect will be, this factor weighs against construction of the Proposed Tower but less strongly than other factors.