Railroads and Indians Are Steamed at the FCC

A plan to stop train wrecks crashes into Native American rights
Rescue and recovery efforts after a Metrolink commuter train crashed into a freight train in Chatsworth, Calif., on Sept. 12, 2008 Photograph by Ted Soqui/Corbis

On Sept. 12, 2008, a Los Angeles commuter train collided with an oncoming freight train, killing 25 people and injuring more than 100. Federal investigators found the operator was texting while driving the train and ran a red signal—prompting Congress to pass a law requiring railroads that operate in the U.S. to install a warning system on all routes that carry passengers or certain hazardous materials. The technology will flash speed restrictions and approaching signals to the operator; it can also automatically slow or stop a speeding train. The government has given railroads until December 2015 to put transmitters on 23,000 locomotives and build antenna towers along 60,000 miles of track—a third of the country’s rail network. It’s estimated the massive undertaking will cost the industry $13.2 billion, and railroads face tens of thousands of dollars in fines for missing the deadline.

Yet in May construction abruptly halted when the Federal Communications Commission, which oversees the antennas, called “positive train control towers,” said railroads must first seek clearance from American Indian tribes—for fear that some of the structures might disturb sacred ground. The nation’s 565 tribes have sovereign powers, and among them is the right to review the construction of FCC-regulated towers anywhere in the U.S. that may affect cultural and historic sites, even outside tribal lands. Apparently neither the authors of the law nor the FCC realized until early this year that the towers were subject to tribal review. Now railroads, which have already erected more than 8,000 antennas, have been told that Indian tribes must approve each of the remaining 22,000.

Battery-backed solar panel; 25 to 65 feet tall
Courtesy Argenia Railway Technologies

“I was stunned, because I knew that we had been doing construction projects, putting in new terminals, new communications equipment, new tracks, new yards, for over 150 years,” says Ed Hamberger, chief executive officer of the Association of American Railroads, an industry lobbying group. Many of those projects, built on top of existing railroad infrastructure, didn’t involve digging deep into the ground. The government discovered in the spring that the 25- to 65-foot-tall antennas require foundations as deep as 15 feet, the agency said in a Sept. 27 statement. Since May, “there haven’t been any antennas installed in anyone’s network,” says Steve Forsberg, a spokesman for Burlington Northern Santa Fe. “That’s jeopardizing the deadline for all the railroads, including ours.”

Under the National Historic Preservation Act of 1966, the telecom industry routinely seeks tribal approval before building cell towers. The FCC maintains a website where companies can file an application for review by tribes with jurisdiction over a proposed location. The agency now requires railroads to do the same. “FCC staff have been hard at work streamlining the process in order to accommodate the very large number of towers railroads plan to build,” spokesman Neil Grace says in an e-mail.

Tribal leaders were also caught off guard when the FCC informed them they had to sign off on the antennas. They say it would be difficult to review all of them before the end of 2015, and show little enthusiasm for rushing to help the industry meet its deadline. “The potential’s there for burials, for sites of cultural and religious significance, for possible historic sites,” says Alan Downer, historic preservation officer for the Navajo Nation. “It would be nice to know beforehand, before anything gets destroyed.”

The FCC says the tribes could speed things along by approving towers in batches so one application would cover multiple sites. But it’s unclear whether they’ll agree to that. American Indian leaders can insist on searching the proposed sites for evidence of artifacts, no matter how long it takes. “Most cultural deposits are in the top several feet of soil,” says Ian Thompson, director of the Historic Preservation Department with the Choctaw Nation of Oklahoma. The third-largest U.S. tribe, with 210,000 members, the Choctaw reviewed about 400 cell towers in 2012. Thompson says hurrying railroad approvals would burden the tribe’s already swamped nine-person historic review staff, which includes archeologists, anthropologists, and technicians who operate ground-penetrating radar.

The railroads and the tribes together may try to push back the project’s deadline, arguing that Washington can’t expect them to make up for its poor planning. “Gee, golly, we have to do this,” says the Navajo’s Downer, parodying the government’s demands. “And you guys have to figure a way.”


    The bottom line: The FCC says railroads need Indian tribes’ consent to build thousands of antenna towers that keep trains on track.

    Before it's here, it's on the Bloomberg Terminal.