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
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 defendant14166 AMERICAN BIRD CONSERVANCY v. FCC
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 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 wildlife. 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.

AMERICAN BIRD CONSERVANCY v. FCC 14167
§ 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.

B

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

14168 AMERICAN BIRD CONSERVANCY v. 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 CONSERVANCY v. FCC 14169
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.

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

14170 AMERICAN BIRD CONSERVANCY v. FCC
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 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. 

[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 delegating 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

AMERICAN BIRD CONSERVANCY v. FCC 14171
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 objection 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 pleading. 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” jurisdiction 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 licens1

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 decisionmaking 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 constitutes 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 consummation of the administrative process.” (alteration in original) (internal quotation marks and citations omitted)). 

14172 AMERICAN BIRD CONSERVANCY v. FCC
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 . . . failure 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 limits 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 legislation.” Id. To hold otherwise would “render nugatory [Congress’] 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 Restoration 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 concluded that the district court correctly dismissed the complaint: “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 . . . challenge[s] to the reopening of the Fishery.’ ”

2 Turtle Island, 438

F.3d at 938 (alterations in original). 

2American 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:

AMERICAN BIRD CONSERVANCY v. FCC 14173
[6] The reasoning of California Save Our Streams and Turtle Island is instructive. 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.” 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 generally 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 provisions 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 registrations unlawful. Like the actual claim at issue in Turtle Island, American Bird’s challenge therefore is to a concrete, discrete “order.” 

3American Bird suggests that the lack of an agency record renders this

case unfit for review. The proper remedy for an inadequate record, however, 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. 

14174 AMERICAN BIRD CONSERVANCY v. FCC
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 registration applications were granted, American Bird argues that “review is unavailable under Section 402(a) even though the

structure of the ESA indicates that the FCC’s failure to comply 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 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.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). 

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