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American Bird Conservancy v. Federal Communications Commission



Plaintiffs[1] (collectively American Bird) brought an action under the citizen-suit provision of the Endangered Species Act (ESA),[2] challenging a decision by the Federal Communications Commission (FCC) to issue licenses for seven communications towers in Hawaii. The United States District Court for the District of Hawaii dismissed the case for lack of subject matter jurisdiction and American Bird appealed. The Ninth Circuit affirmed, holding the court of appeals has exclusive subject matter jurisdiction over actions pertaining to FCC orders under the Communications Act[3] and the Hobbs Act[4].

Operators of seven communications towers in Hawaii submitted registration applications to the FCC between 1996 and 2001. During the registration process, all seven applicants answered “no” when asked if FCC’s grant of the application may have a significant environmental impact, a response that automatically ended the FCC inquiry into the environmental effects produced by the communications towers. The FCC granted all seven applications. In 2004, American Bird filed a “Petition for National Environmental Policy Act Compliance” with the FCC and a “Notice of Violations Under the Endangered Species Act” with the Secretary of the Interior, alleging the towers were killing two seabird species protected by the ESA: the Hawaiian petrel and the Newall’s shearwater. American Bird contended the FCC had failed to comply with its statutory obligation under the ESA to consult with the Secretary before granting the applications[5] and sought to compel the FCC to examine the issue more closely.

In addition to the administrative challenge, American Bird also filed suit against the FCC in district court under the citizen-suit provision of the ESA.[6] American Bird alleged the FCC had not complied with its ESA-mandated consultation duty when it granted the registrations and sought to enjoin the FCC from impermissibly delegating its ESA responsibilities by allowing tower operators to determine the effects of communications towers on threatened and endangered seabirds.

The Communications Act and the ESA provide different jurisdictional routes for parties seeking judicial review of agency actions. Accordingly, the FCC moved to dismiss the suit for lack of subject matter jurisdiction, arguing that American Bird was challenging an “order of the Commission” within the meaning of section 402 of the Communications Act,[7] which, in conjunction with section 2342 of the Hobbs Act,[8] vests the federal courts of appeals with exclusive subject matter jurisdiction over actions to “enjoin, set aside, annul, or suspend any order” of the FCC.[9] The FCC argued that this specific jurisdictional provision trumps the more general citizen-suit provision of the ESA, which grants district courts jurisdiction over suits by “any person . . . to enjoin any person, including the United States . . . who is alleged to be in violation” of the ESA.[10] The district court agreed with the FCC and dismissed the case, and American Bird appealed.

The issue presented to the Ninth Circuit was whether the district court had properly determined it lacked subject matter jurisdiction over American Bird’s claim under the citizen-suit provision of the ESA. The Ninth Circuit began its analysis by examining the language of the statutes. The Communications Act provides that any proceeding to “enjoin, set aside, annul, or suspend any order of the Commission . . . shall be brought as provided” by the Hobbs Act.[11] The Hobbs Act vests the courts of appeals with “exclusive jurisdiction” to review “all final orders of the Federal Communications Commission.”[12] Together these statutes require that any suit challenging a “final order” by the FCC must be brought in the appropriate federal court of appeals. The Ninth Circuit reasoned that a “license” is analogous to an “order” under the structure of the Communications Act and, similarly, a “station license” is sufficiently analogous to a communications tower registration. Consequently, challenges to the FCC’s issuance of tower registrations, as in the case of American Bird,[13] must be brought in the federal court of appeals.

American Bird did not characterize its claim as a challenge to a final order, attempting instead to cast the case as an objection to the FCC’s failure to act and thus elude the jurisdictional requirement of the Communications Act. The Ninth Circuit rejected this characterization, noting the tower registrations are inextricably intertwined with the FCC’s obligation to consult with the Secretary. The court cited two Ninth Circuit decisions that similarly declined to permit a plaintiff to bypass an exclusive avenue of judicial review through “artful” pleading.[14] In California Save Our Streams Council, Inc. v. Yeutter,[15] the Ninth Circuit had held that “when two jurisdictional statutes draw different routes of appeal, the well-established rule is to apply only the more specific legislation.”[16] In that case, plaintiffs challenged a licensing decision by the Federal Energy Regulatory Commission by filing suit in district court under the general federal question provision. However, because the Federal Power Act[17] provided for exclusive jurisdiction in the courts of appeals for any claim based upon “an order issued by the Commission,”[18] the case was dismissed. Similarly, in Turtle Island Restoration Network v. U.S. Department of Commerce (Turtle Island),[19] plaintiffs invoked the general federal question provision and the Administrative Procedure Act (APA)[20] in alleging violation of various federal environmental laws, despite the existence of an applicable jurisdictional provision in the Magnuson Act.[21] In concluding the district court correctly dismissed the complaint, the Ninth Circuit held that the plaintiff’s claims, though framed in terms of violations of the APA and environmental statutes, were actually challenges to the reopening of the fishery and thus were governed by the Magnuson Act.[22] Like the plaintiffs in California Save Our Streams Council and TurtleIsland, the Ninth Circuit concluded American Bird sought to bypass the regulatory process by characterizing its claims as a challenge to the FCC’s compliance with federal environmental laws rather than to the agency’s final order. The court thus held that, where one statute provides for exclusive jurisdiction in the courts of and the other for general jurisdiction in the district courts, jurisdiction is generally proper in the courts of appeal.

The Ninth Circuit next addressed American Bird’s contention that there are inconsistencies between the ESA’s citizen-suit provision and the exclusive review provisions of the Communications Act and Hobbs Act. Specifically, the ESA requires that a plaintiff must wait sixty days after giving notice of a violation before bringing suit, whereas the Communications Act requires that a plaintiff must bring suit within sixty days. The Ninth Circuit rejected this contention, noting that its decision would not foreclose future judicial review of the licensing issue. In other words, American Bird would be free to pursue its claims through the administrative process by first obtaining an adverse final order from the FCC and then challenging that order in a federal court of appeals.

In sum, the Ninth Circuit affirmed the district court judgment dismissing the case for lack of subject matter jurisdiction.

[1] Plaintiffs were the American Bird Conservancy, Forest Conservation Council, and Conservation Council for Hawaii.

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

[3] Communications Act of 1934, 47 U.S.C. §§ 151-614 (2006).

[4] Administrative Orders Review Act, 28 U.S.C. § 2342 (2006).

[5] 16 U.S.C. § 1536(a)(3) (2006) (providing that “a Federal agency shall consult with the Secretary” if an applicant for a permit or license “has reason to believe that an endangered species or a threatened species may be present in the area affected by his project”).

[6]Id. § 1540(g).

[7] 47 U.S.C. § 402(a) (2006) (establishing judicial review procedure for FCC orders).

[8] 28 U.S.C. § 2342 (2006) (vesting courts of appeals with “exclusive jurisdiction” to review all “final orders” of the FCC).

[9] 16 U.S.C. § 1540(g) (2006).


[11] 47 U.S.C. § 402(a) (2006).

[12] 28 U.S.C. § 2342 (2006).

[13] Am. Bird Conservancy v. Federal Commc’ns Comm’n, 545 F.3d 1190 (9th Cir. 2008).

[14]Id. at 1194.

[15] 887 F.2d 908 (9th Cir. 1989).

[16]Id. at 911.

[17] 16 U.S.C. §§ 792-825r (2006).

[18]Id. § 825l(b).

[19] 438 F.3d 937 (9th Cir. 2006).

[20] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[21] Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (2006).

[22]Turtle Island, 438 F.3d at 938.

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