American Bird Conservancy v. F.C.C., 06-15429.
| Decision Date | 06 October 2008 |
| Docket Number | No. 06-15429.,06-15429. |
| Citation | 545 F.3d 1190 |
| Parties | AMERICAN BIRD CONSERVANCY; Forest Conservation Council; Conservation Council for Hawaii, Plaintiffs-Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven Sugarman, Santa Fe, NM, argued the cause for the plaintiffs-appellants and filed the briefs; Alletta Belin, Santa Fe, NM, Paul H. Achitoff and Isaac H. Morikawe, Earthjustice, were on the briefs.
Michael T. Gray, Attorney, U.S. Department of Justice, Washington, D.C., argued the cause for the defendant-appellee and filed the brief; Sue Ellen Wooldridge, Assistant Attorney General, Kristen Byrnes Floom and Lisa E. Jones, Attorneys, U.S. Department of Justice, were on the brief.
Appeal from the United States District Court for the District of Hawaii; David A Ezra, District Judge, Presiding. D.C. No. CV-05-00461-DAE.
Before: DIARMUID F. O'SCANNLAIN, A. WALLACE TASHIMA, and MILAN D. SMITH, JR., Circuit Judges.
We must decide whether an environmental group may employ the citizen-suit provision of the Endangered Species Act to challenge a Federal Communications Commission decision to issue licenses for seven communications towers in Hawaii.
Congress enacted the Communications Act in 1934, 47 U.S.C. § 151 et seq., at the dawn of the radio age. The Act created the Federal Communications Commission ("FCC"), which was charged with ensuring the availability of "a rapid, efficient, Nation-wide, and world-wide wire and radio communication service ... at reasonable charges." 47 U.S.C. § 151. As part of its responsibilities, the FCC was given the authority to "grant construction permits and station licenses" to owners of radio towers upon written application. Id. § 308(a).
The FCC's authority, like that of all federal agencies, is cabined by the Endangered Species Act of 1973 ("ESA"), which is designed to protect endangered and threatened wild life. As part of this mandate, the ESA requires all federal agencies to ensure that "any action authorized ... by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). To that end, the ESA "imposes a procedural consultation duty whenever a federal action may affect an ESA-listed species." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 790 (9th Cir.2005). Specifically, "a Federal agency shall consult with the Secretary [of the Interior]" if an applicant for a permit or a license "has reason to believe that an endangered species or a threatened species may be present in the area affected by his project." 16 U.S.C. § 1536(a)(3). After consultation, the Secretary must provide a written opinion "detailing how the agency action affects the species or its critical habitat." Id. § 1536(b)(3)(A).
The Communications Act and the Endangered Species Act provide separate avenues to obtain judicial review of an agency's failure to comply with its statutory obligations. Section 402(a) of the Communications Act and the Hobbs Act, 28 U.S.C. § 2342, vest the federal courts of appeals with "exclusive" subject matter jurisdiction over actions to "enjoin, set aside, annul, or suspend any order of the [Federal Communications] Commission." 47 U.S.C. § 402(a); see also 28 U.S.C. § 2342. A claim under these provisions must be brought "within 60 days after" the entry of the order. 28 U.S.C. § 2344. In contrast, the citizen-suit provision of the ESA grants the district courts subject matter jurisdiction over suits by "any person ... to enjoin any person, including the United States ... who is alleged to be in violation of any provision [of the ESA]." 16 U.S.C. § 1540(g). Before filing suit under this provision, the plaintiff must give "written notice of the violation" to the Secretary and wait sixty days. Id. § 1540(g)(2)(A)(i). These two jurisdictional provisions form the core of this appeal.
Between 1996 and 2001, operators of seven communications towers on the Hawaiian islands of Kaua'i and Hawai'i submitted registration applications to the FCC. As part of the registration process, the applicants filled out a standard FCC questionnaire that asked whether a "Commission grant of this application may have a significant environmental impact." A "yes" answer would trigger further investigation. A "no" answer would automatically end the FCC's inquiry into the environmental effects produced by the communications towers. All seven applicants answered "no." The FCC granted all seven applications without further inquiry.
On April 9, 2004, American Bird Conservancy ("American Bird"), a nonprofit organization dedicated to "conserv[ing] native wild birds and their habitats throughout the Americas," filed a "Petition for National Environmental Policy Act Compliance" with the FCC. American Bird alleged that the towers were killing two threatened or endangered species of seabirds: the Hawaiian petrel and the Newall's shearwater. It contended that the FCC had failed to comply with its statutory obligation to consult with the Secretary of the Interior before registering the towers. In a "Notice of Violations Under the Endangered Species Act" filed simultaneously with the Secretary, American Bird threatened to file a citizen suit under § 1540(g) of the ESA if the FCC's administrative process produced an unsatisfactory result.
On May 3, 2004, the FCC responded to American Bird's petition by "requesting [from the tower owners] an updated, current list of threatened and endangered species for each of the tower sites." The FCC also asked the tower owners to prepare "biological assessments" and to transmit them both to the FCC and to the Fish and Wildlife Service ("FWS"). The FWS subsequently requested that the FCC initiate formal consultation with the tower owners. As of this writing, the FCC had not yet commenced such consultation, but had encouraged the development of a proposal for programmatic consultation.
While the administrative process was pending, American Bird brought suit in the United States District Court for the District of Hawaii against the FCC under the citizen-suit provision of the ESA. As in the administrative proceedings, American Bird contended that the FCC had not complied with its statutory obligation to consult with the Secretary of the Interior when it granted the registration applications for the seven communications towers. In addition, American Bird argued that "the FCC impermissibly delegated to licensees, applicants, and tower companies its responsibility under ... the Endangered Species Act." American Bird sought to "[e]njoin [the FCC] from delegating full responsibility for determining the extent to which communication towers may affect threatened and endangered species to tower owners."
The FCC moved to dismiss for lack of subject matter jurisdiction, arguing that American Bird was challenging an "order of the Commission" within the meaning of § 402(a) of the Communications Act and that the court of appeals therefore had exclusive jurisdiction over the action. According to the FCC, the specific jurisdictional provision contained in the Communications Act "trumps" the more general citizen-suit provision of the ESA.
The district court agreed with the FCC, concluding that American Bird's claim fell within the terms of § 402(a) of the Communications Act and § 2342 of the Hobbs Act. Because those statutes provide for "exclusive" review in the courts of appeals, the district court dismissed the action for lack of subject matter jurisdiction. This timely appeal followed.
We have a narrow question to decide: did the district court have subject matter jurisdiction over American Bird's claim under the citizen-suit provision of the Endangered Species Act?
The "beginning point" of statutory interpretation "must be the language of the statute." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). The Communications Act provides that "[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the Commission ... shall be brought as provided [by the Hobbs Act]." 47 U.S.C. § 402(a) (emphasis added). The Hobbs Act, in turn, vests the courts of appeals with "exclusive jurisdiction" to review "all final orders of the Federal Communications Commission." 28 U.S.C. § 2342. Read together, the two statutes plainly require that any suit challenging a "final order" made by the FCC must be brought in the appropriate federal court of appeals.
The structure of the Communications Act confirms that a "license" may constitute an "order." Section 402(a), which generally funnels challenges to the courts of appeals, exempts from its requirements those orders appealable under § 402(b), which lists nine categories which may be challenged in the United States Court of Appeals for the District of Columbia. One of the categories listed in § 402(b) includes cases involving "station license[s]." 47 U.S.C. § 402(b)(1); see also id. § 402(b)(6). We are satisfied that a "station license" is analogous to a communications tower registration, and that the tower registrations at issue here constitute "orders" within the meaning of the Communications Act.
American Bird, however, carefully disclaims any intent to challenge the tower registrations themselves; instead, it attempts to cast this case as an objection solely to the FCC's failure to consult with the Secretary before granting the tower registrations. American Bird thus characterizes this case as involving a "failure to act" claim rather than a challenge to a "final order." In response, the FCC contends that despite American Bird's artful pleading, its core objections are to the tower registrations themselves and to the FCC's policy of delegating to applicants its responsibilities under the ESA.
We agree with the FCC. American Bird does not object to the...
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