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Environmental Law

: ESA Blawg

9th Circuit finds ESA lawsuit related to tower strikes cannot be used to avoid FCC's administrative process

By Keith Rizzardi

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American Bird Conservancy v. Federal Communications Commission, D.C. No. CV-05-00461-DAE (9th Cir. October 6, 2008)

SUMMARY: 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... Our holding today does not foreclose future judicial review of the licensing decisions at issue here. Nothing prevents American Bird from continuing to pursue its claims through the FCC’s administrative process, obtaining an adverse final order, and challenging that order in this court. 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.

American Bird Conservancy alleged that the towers were killing two threatened or endangered species of seabirds: the Hawaiian petrel (photo above from State of Hawaii) and the Newall’s shearwater.

KEITHINKING: This appellate decision, in the Ninth Circuit, coupled with a related ruling the D.C. Circuit (also posted in ESA blawg) suggests that the attempts to use the ESA as a litigation tool for these FCC decisions should soon end. For more resources, visit the related ESA blawg, or this FWS manuscript. For more on the opinion...

BACKGROUND: On April 9, 2004, American Bird Conservancy (“American Bird”), a nonprofit organization dedicated to “conserving 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... 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... 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... 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.

THE CORE OF THE DISPUTE: 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.

RULING: American Bird cannot elude the Communications Act’s exclusive review provision by disguising its true objection to the tower registrations as a “failure to act” claim. 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 pleading. See, California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908 (9th Cir. 1989), Turtle Island Restoration Network v. U.S. Department of Commerce, 438 F.3d 937 (9th Cir. 2006)... Like the plaintiffs in those cases, American Bird attempts to bypass Congress’ carefully constructed system of review and the FCC’s regulatory process by characterizing its suit as a challenge to the agency’s compliance 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.”

Full post as published by ESA Blawg on October 11, 2008 (boomark / email).