American Bird Conservancy v. FCC ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN BIRD CONSERVANCY; 
FOREST CONSERVATION COUNCIL;
CONSERVATION COUNCIL FOR
No. 06-15429
HAWAII,
Plaintiffs-Appellants,
 D.C. No.
CV-05-00461-DAE
v.
OPINION
FEDERAL COMMUNICATIONS
COMMISSION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
November 2, 2007—Honolulu, Hawaii
Filed October 6, 2008
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge O’Scannlain
14163
14166 AMERICAN BIRD CONSERVANCY v. FCC
COUNSEL
Steven Sugarman, Santa Fe, New Mexico, argued the cause
for the plaintiffs-appellants and filed the briefs; Alletta Belin,
Santa Fe, New Mexico, 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-
AMERICAN BIRD CONSERVANCY v. FCC 14167
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.
OPINION
O’SCANNLAIN, Circuit Judge:
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.
I
A
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 com-
munication 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.
14168 AMERICAN BIRD CONSERVANCY v. FCC
§ 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). Specifi-
cally, “a Federal agency shall consult with the Secretary [of
the Interior]” if an applicant for a permit or a license “has rea-
son to believe that an endangered species or a threatened spe-
cies 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 agen-
cy’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 “exclu-
sive” subject matter jurisdiction over actions to “enjoin, set
aside, annul, or suspend any order of the [Federal Communi-
cations] 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.
B
Between 1996 and 2001, operators of seven communica-
tions 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
AMERICAN BIRD CONSERVANCY v. FCC 14169
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 tow-
ers. 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 Com-
pliance” 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, Ameri-
can Bird threatened to file a citizen suit under § 1540(g) of the
ESA if the FCC’s administrative process produced an unsatis-
factory 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 pre-
pare “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 consulta-
tion 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 pro-
vision of the ESA. As in the administrative proceedings,
14170 AMERICAN BIRD CONSERVANCY v. FCC
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 juris-
diction, 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 there-
fore 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 sub-
ject matter jurisdiction. This timely appeal followed.
II
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?
A
[1] The “beginning point” of statutory interpretation “must
be the language of the statute.” Estate of Cowart v. Nicklos
AMERICAN BIRD CONSERVANCY v. FCC 14171
Drilling Co., 505 U.S. 469, 475 (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.
[2] 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 involv-
ing “station license[s].” 47 U.S.C. § 402(b)(1); see also id.§ 402(b)(6). We are satisfied that a “station license” is analo-
gous to a communications tower registration, and that the
tower registrations at issue here constitute “orders” within the
meaning of the Communications Act.
[3] 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 del-
egating to applicants its responsibilities under the ESA.
[4] We agree with the FCC. American Bird does not object
to the agency’s failure to consult in the abstract; rather, it
identifies seven discrete tower registrations that it alleges
14172 AMERICAN BIRD CONSERVANCY v. FCC
were not supported by adequate environmental investigation.
The tower registrations are therefore inextricably intertwined
with the FCC’s obligation to consult with the Secretary.
American Bird recognizes as much; in its notice of filing suit,
it stated that it would “file litigation to enforce [the ESA’s]
requirements should the FCC continue to authorize operation
of the subject structures in an unlawful manner” (emphasis
added). American Bird cannot elude the Communications
Act’s exclusive review provision by disguising its true objec-
tion to the tower registrations as a “failure to act” claim.1
[5] Our precedent confirms this conclusion. In analogous
contexts, we have concluded that a plaintiff may not escape
an exclusive avenue of judicial review through artful plead-
ing. California Save Our Streams Council, Inc. v. Yeutter, 887
F.2d 908 (9th Cir. 1989), for example, involved an allegation
that the Federal Energy Regulatory Commission (“FERC”)
failed to comply with a provision of the Federal Power Act
when it issued a license to a hydroelectric power company.
Though the Federal Power Act provides for “exclusive” juris-
diction in the courts of appeals for any claim based upon “an
order issued by the Commission,” 16 U.S.C. § 825l(b), the
plaintiffs instead brought suit in federal district court under 28
U.S.C. § 1331, which grants general federal question subject
matter jurisdiction to the district courts. As in this case, the
appellants sought to dress up their core challenge to a licens-
1
Incidentally, we are satisfied that the orders at issue here are “final.”
An order is final when it “mark[s] the consummation of the agency’s deci-
sionmaking process—it must not be of a merely tentative or interlocutory
nature.” Bennett v. Spear, 520 U.S. 154, 177 (1997) (internal quotation
marks and citations omitted). The issuance of a tower registration consti-
tutes the culmination of an administrative process that creates a legal right.
No further administrative proceedings remain. Cf. Reuters Ltd. v. FCC,
781 F.2d 946, 947 n.1 (D.C. Cir. 1986) (“[F]inal orders are not limited to
the last order issued in a proceeding, but to be final an order must impose
an obligation, deny a right or fix some legal relationship as a consumma-
tion of the administrative process.” (alteration in original) (internal quota-
tion marks and citations omitted)).
AMERICAN BIRD CONSERVANCY v. FCC 14173
ing decision as a failure to act claim instead. They contended
“that they [were] not attacking the licensing decision made by
FERC but instead [were] seeking review only of the . . . fail-
ure to follow the procedural and substantive steps outlined in
statutes outside the purview of power and energy regulation.”
Cal. Save Our Streams Council, 887 F.2d at 911.
We rejected that contention, noting that “appellants seek,
through careful pleading, to avoid the strict jurisdictional lim-
its imposed by Congress.” Id. We concluded that “when two
jurisdictional statutes draw different routes of appeal, the
well-established rule is to apply only the more specific legis-
lation.” Id. To hold otherwise would “render nugatory [Con-
gress’] carefully crafted scheme of review.” Id. (internal
quotation marks omitted). Accordingly, we concluded that the
district court lacked jurisdiction to hear the suit.
We reached a similar conclusion in Turtle Island Restora-
tion Network v. U.S. Department of Commerce, 438 F.3d 937(9th Cir. 2006). There, the National Marine Fisheries Service
(“NMFS”) re-opened a portion of a Hawaiian fishery that had
previously been closed. Although the Magnuson Act provides
jurisdiction over challenges to “regulations which implement
a fishery management plan,” 16 U.S.C. § 1855(f)(2), the
plaintiffs instead invoked 28 U.S.C. § 1331 (federal question),
28 U.S.C. § 2201-02 (declaratory judgment and further relief),
and 5 U.S.C. § 706 (Administrative Procedure Act), alleging
violations of various federal environmental laws. We con-
cluded that the district court correctly dismissed the com-
plaint: “We agree with the district court that Turtle Island’s
claims, though ‘framed . . . in terms of violations of the APA
[and environmental statutes]’ were ‘in actuality . . . chal-
lenge[s] to the reopening of the Fishery.’ ”2 Turtle Island, 438
F.3d at 938 (alterations in original).
2
American Bird identifies dicta in Turtle Island suggesting that some
“failure to act” claims may be brought under the citizen-suit provision of
the ESA. Specifically, American Bird points to the following language:
14174 AMERICAN BIRD CONSERVANCY v. FCC
[6] The reasoning of California Save Our Streams and Tur-
tle Island is instructive. Like the plaintiffs in those cases,
American Bird attempts to bypass Congress’ carefully con-
structed system of review and the FCC’s regulatory process
by characterizing its suit as a challenge to the agency’s com-
pliance with federal environmental laws rather than to the
agency’s ultimate order. We cannot allow American Bird,
“through careful pleading, to avoid the strict jurisdictional
limits imposed by Congress.” Cal. Save Our Streams Council,
887 F.2d at 911.3 In any event, where one statute provides for
exclusive jurisdiction in the courts of appeals and the other for
general jurisdiction in the district courts, jurisdiction is gener-
ally proper in the courts of appeals. See Nw. Res. Info. Ctr.,
Inc. v. Nat’l Marine Fisheries Serv., 25 F.3d 872, 875 (9th
Cir. 1994).
B
American Bird also sees a “critical inconsistency” between
the ESA’s citizen-suit provision and the exclusive review pro-
visions of the Communications Act and the Hobbs Act. Spe-
“[T]he regulatory challenge limitation would not encompass claims that
NMFS failed to reinitiate consultation when the taking specified in the
Incidental Take Statement is exceeded or a new species is listed or new
information reveals effects of the action that may affect listed species . . .
to an extent not previously considered in the biological opinion.” Turtle
Island, 438 F.3d at 949 (alteration in original) (internal quotation marks
and citation omitted). This case, however, does not involve a “fail[ure] to
reinitiate consultation” or to consider new information. Rather, American
Bird alleges that the FCC’s past failure to consult rendered the tower reg-
istrations unlawful. Like the actual claim at issue in Turtle Island, Ameri-
can Bird’s challenge therefore is to a concrete, discrete “order.”
3
American Bird suggests that the lack of an agency record renders this
case unfit for review. The proper remedy for an inadequate record, how-
ever, is to remand to the agency for further factfinding. See FCC v. ITT
World Comm’ns, Inc., 466 U.S. 463, 469 (1984). We also note that the
administrative process that American Bird has initiated will presumably
result in a record reviewable by this court.
AMERICAN BIRD CONSERVANCY v. FCC 14175
cifically, American Bird points out that a plaintiff must wait
sixty days before suing under the ESA, but must bring suit
within sixty days when suing under the Communications Act.
Because more than sixty days have passed since the registra-
tion applications were granted, American Bird argues that “re-
view is unavailable under Section 402(a) even though the
structure of the ESA indicates that the FCC’s failure to com-
ply with its ESA duties is cognizable in court.”
The alleged inconsistency is an illusion. Our holding today
does not foreclose future judicial review of the licensing deci-
sions at issue here. Nothing prevents American Bird from
continuing to pursue its claims through the FCC’s administra-
tive process, obtaining an adverse final order, and challenging
that order in this court.4 While we sympathize with American
Bird’s complaint that the FCC’s administrative process moves
at a “glacial” pace, such impatience does not provide a ground
to ignore Congress’ carefully crafted system of judicial
review.
III
Accordingly, the district court’s judgment dismissing
American Bird’s action for lack of subject matter jurisdiction
is
AFFIRMED.
4
Indeed, American Bird has proven that it knows how to use the FCC’s
administrative process. In 2002, American Bird filed a petition with the
FCC formally requesting that the FCC consult with the appropriate agency
regarding towers in the Gulf Coast region. In 2005, the FCC issued an
order denying in part, dismissing in part, and deferring in part American
Bird’s claims. In February 2008 the United States Court of Appeals for the
District of Columbia Circuit vacated the FCC’s order, bringing American
Bird’s claims to a successful conclusion. American Bird Conservancy, Inc.
v. FCC, 516 F.3d 1027 (D.C. Cir. 2008).