‘More than a mere scintilla’ is not asking for much

Submitted by Austin Waisanen
Posted 1/14/25

Dear editor:

The editors of these pages last week bemoaned the “unintended consequences” of “recent” legislation like the Federal Communications Act of 1996, referring to …

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‘More than a mere scintilla’ is not asking for much

Posted

Dear editor:

The editors of these pages last week bemoaned the “unintended consequences” of “recent” legislation like the Federal Communications Act of 1996, referring to the new cell tower in Wapiti.

According to the editors, the 1996 law states that “basically, cell phone service is a utility and cannot be restricted.” Not to be nitpicky, but the law actually says no such thing. Rather than placing any prohibition on a local government’s ability to regulate the siting of cell towers, the law merely requires that local governments are able to support their decisions with “substantial evidence contained in a written record.” See 47 USC § 332(c)(7).

“Substantial evidence,” although it sounds meaty, is not exactly a demanding standard. It is far less than “proof beyond a reasonable doubt” or “clear and convincing” — some of the other familiar standards of proof. According to the Supreme Court, substantial evidence simply requires “more than a mere scintilla of evidence.”

Is it really an unwelcome consequence that our elected leaders would have to support their decisionmaking with more than a “mere scintilla of evidence?” And when they can’t, that property owners are allowed to use their land in productive ways? 

Beginning only several decades ago, state law has given local governments a shockingly broad grant of power to regulate the use and occupancy of land. Local governments’ use of this power is, in most cases, reviewed under the “rational basis” standard — a standard of review that is even less demanding than “substantial evidence” and is overwhelmingly deferential to government. 

Under “rational basis” review, the government doesn’t have to support its reasoning at all. The “rational” basis sufficient to support the government’s action could be one government attorneys came up with five minutes before entering the courtroom — or it could be a reason that is opposite and counterfactual to the one that actually motivated government decisionmakers. Like “harmony with surrounding land uses” — the claimed substantive reason for denying Horizon’s tower — rational basis is almost a standardless standard.

It’s not too much to ask that county regulators support their decisions with more than a mere scintilla of evidence. Similar state laws which apply to all uses of property would be a welcome check on local governments that are increasingly happy to subordinate one’s property rights to democratic approval and supply needed calcium to a judicial system that has lied dormant regarding certain fundamental rights since the New Deal, like the right to use property or earn a living.

Lastly, the editors also claim that a majority of the “community” opposed the tower and that they will now be “affected” by it. Who tallied the counts? Who counts as the community? Is it safe to assume that the thousands of Park County residents who didn’t oppose it, actually approve of it? Does it matter? How will this cell tower “affect” the community, anyway? Would its effect be similar to the effect Powell’s large water tower has on it? Asking for a friend. 

Austin Waisanen

Cody

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