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In re Tennant

February 24, 2004

IN RE: JAMES M. TENNANT, PETITIONER


Before: Sentelle, Tatel, and Roberts, Circuit Judges.

The opinion of the court was delivered by: Roberts, Circuit Judge

Argued January 9, 2004

On Petition for Writ of Mandamus

James M. Tennant petitions this court for a writ of mandamus, as well as declaratory and injunctive relief, relating to an alleged breakdown of historicpreservation procedures in the placement of a wireless communications tower on land listed in the National Register of Historic Places. We find that we lack jurisdiction to grant the requested relief, and so dismiss the petition.

I.

The chain of events that led to this litigation began on June 23, 1995, when the Federal Communications Commission granted BellSouth Corporation a license to provide cellular telephone service in a geographic area that includes Georgetown, South Carolina. See In re Applications for A and B Block Broadband Licenses, 11 F.C.C.R. 3229 (1995). To make use of its license, BellSouth built a network of communications towers in the area. One of the towers was built in 1996 inside the boundaries of Hobcaw Barony, a tract of land in Georgetown that had been included on the National Register of Historic Places since 1994.

Under Section 106 of the National Historic Preservation Act, codified at 16 U.S.C. § 470f, federal agencies are obliged to evaluate the effects of their activities on historic sites:

The head of any ... Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, ... take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.

Regulations in place when the tower was built permitted a federal agency to "use the services of grantees, applicants, consultants, or designees" to carry out the agency's duties under Section 106, but the agency remained ultimately responsible for compliance with the statute. 36 C.F.R. § 800.1(c)(1)(i) (1995). During the Section 106 process, an agency (or its designee) consults with a State Historic Preservation Officer (SHPO) to determine whether a proposed undertaking will affect a registered site. See id. § 800.1(c)(1)(ii). *fn1
Alongside these regulations implementing the NHPA was a set of FCC regulations promulgated under the National Environmental Policy Act. Under the NEPA regulations, licensees planning to build facilities for which no separate pre-construction authorization was required from the FCC were charged with "initially ascertain[ing] whether the proposed facility may have a significant environmental impact." 47 C.F.R. § 1.1312(a) (1995). A significant environmental impact was defined to include an effect on a site listed in the National Register. Id. § 1.1307(a)(4). If such an effect was possible, the license applicant was required to prepare an environmental assessment and file it with the FCC for a determination of whether the proposed facility would in fact have that effect. Id. §§ 1.1308(a)-(b), 1.1312(b). If the FCC reached a finding of no significant impact, no further examination of environmental effects was required. Id. § 1.1308(d).

BellSouth contacted the SHPO in South Carolina before building the Hobcaw tower, stating that "[n]o known National Register of Historic Places (NRHP)-eligible or -listed sites are located within" the proposed tower site. Letter from R.S. Webb & Assocs. to Nancy Brock, South Carolina State Historic Preservation Office (Sept. 3, 1996). The letter provided a specific description of the location of the proposed tower, stating that the site was "inside the northern boundary fence of the Hobcaw Barony Complex." Id. Apparently overlooking this clue that a protected site could be affected, the SHPO replied to BellSouth that the Hobcaw tower "should have no effect on any properties included in or eligible for inclusion in" the National Register. Letter from Brock to Sheila Burns, R.S. Webb & Assocs. (Sept. 10, 1996). It appears that no environmental assessment was prepared --under the applicable NEPA regulations, the requirement for one would only have been triggered by a possible effect on a registered site*fn2 -- and the FCC thus had no occasion to consider the issue of significant impact through its NEPA process. As for the NHPA Section 106 process, it seems that the FCC itself did not make a formal evaluation of the effects of the Hobcaw tower, apparently relying on the applicant: BellSouth's license was issued before the tower sites were chosen, and there is no evidence that the FCC was involved in evaluating environmental considerations after BellSouth selected the Hobcaw site.

Tennant, a resident of Georgetown, noticed the 185-foot tower and raised his concerns about it with BellSouth shortly after it was built. See Pet. ¶ 24. He then wrote to the federal Advisory Council on Historic Preservation to call its attention to "a failure of the Section 106 process" involving the construction of the tower inside Hobcaw Barony. Letter from Tennant to Don L. Klima, ACHP (Dec. 1, 1998), at 1 (December 1998 Letter). Tennant's letter ended by asking the ACHP and other individuals who were copied on the letter -- including the then-Chairman of the FCC -- to "collectively ensure that the required Section 106 review process is triggered when required by law." Id. at 3.

In a second letter to the ACHP in February 1999, Tennant formally asked the Council to examine any FCC findings under Section 106 in relation to the Hobcaw tower. Letter from Tennant to Martha Catlin, ACHP (Feb. 11, 1999). The Council promptly contacted the FCC and asked for information on how the Section 106 process was conducted when the Hobcaw tower was proposed. Letter from Klima to Cathy Seidel, FCC (Feb. 19, 1999). Hearing nothing from the FCC, the ACHP renewed its request for information in July 1999, and the FCC finally responded in January 2000. Pointing to its NEPA rules, the Commission said that it "delegate[s] to ...license applicants the responsibility of gathering the information necessary to determine potential environmental effects of proposed ... towers." Letter from Rose Crellin, FCC, to Klima (Jan. 3, 2000), at 1. BellSouth did not file an environmental assessment, the FCC explained, because "neither the SHPO nor [the] licensee identified any significant effects on historic properties." Id. The FCC had "relied upon these determinations." Id. In a reply to the FCC, the ACHP asked for the environmental impact documentation that BellSouth had assembled. Letter from Klima to Seidel (Feb. 4, 2000).

Two years later, the ACHP still had not completed its inquiry into the FCC's compliance with Section 106 in the matter of BellSouth's Hobcaw tower, and Tennant had learned that the South Carolina SHPO -- apparently relying on its earlier determination regarding the BellSouth tower --had approved the construction of a second tower to be built alongside the existing one, also inside Hobcaw Barony. See Letter from Brock to Sarah Fick, Historic Preservation Consultants (Jan. 29, 2001) ("It does not appear ... that Hobcaw Barony or any properties ...


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