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United Keetoowah Band of Cherokee Indians in Oklahoma v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

August 9, 2019

United Keetoowah Band of Cherokee Indians in Oklahoma, individually and on behalf of all other Native American Indian Tribes and Tribal Organizations, et al., Petitioners
Federal Communications Commission and United States of America, Respondents National Association of Tribal Historic Preservation Officers, et al., Intervenors

          Argued March 15, 2019

          On Petitions for Review of an Order of the Federal Communications Commission

          Stephen Díaz Gavin argued the cause for petitioners United Keetoowah Band of Cherokee Indians in Oklahoma, et al., and supporting intervenors. With him on the briefs were J. Scott Sypolt, Joel D. Bertocchi, Joseph H. Webster, F. Michael Willis, Andrew Jay Schwartzman, James T. Graves, and Elizabeth S. Merritt. Angela J. Campbell entered an appearance.

          Sharon Buccino argued the cause for petitioner Natural Resources Defense Council and intervenor Edward B. Myers. With her on the briefs was Edward B. Myers.

          Natalie A. Landreth argued the cause for petitioners Blackfeet Tribe, et al. With her on the briefs were Wesley J. Furlong, Joel West Williams, Troy A. Eid, Jennifer H. Weddle, and Heather D. Thompson.

          Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, U.S. Department of Justice, Eric A. Grant, Deputy Assistant Attorney General, Andrew C. Mergen and Allen M. Brabender, Attorneys, Thomas M. Johnson Jr., General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and C. Grey Pash Jr., Counsel. Jonathan H. Laskin and Robert B. Nicholson, Attorneys, U.S. Department of Justice, and Richard K. Welch, Deputy Associate General Counsel, Federal Communications Commission, entered appearances.

          Joshua Turner argued the cause for intervenors in support of respondents. With him on the brief were Christopher J. Wright and E. Austin Bonner.

          Before: Tatel and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.



         Cellular wireless services, including telephone and other forms of wireless data transmission, depend on facilities that transmit their radio signals on bands of electromagnetic spectrum. The Federal Communications Commission (FCC or Commission) has exclusive control over the spectrum, and wireless providers must obtain licenses from the FCC to transmit. Wireless service in the United States has mostly depended on large, "macrocell" radio towers to transmit cell signal, but companies offering the next generation of wireless service-known as 5G-are in the process of shifting to transmission via hundreds of thousands of densely spaced small wireless facilities, or "small cells." As part of an effort to expedite the rollout of 5G service, the Commission has removed some regulatory requirements for the construction of wireless facilities. These petitions challenge one of the FCC's orders paring back such regulations, In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (Second Report & Order) (Order), FCC 18-30, 2018 WL 1559856 (F.C.C.) (Mar. 30, 2018).

         The Order exempted most small cell construction from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA). Together, these reviews assess the effects of new construction on, among other things, sites of religious and cultural importance to federally recognized Indian Tribes. The Order also effectively reduced Tribes' role in reviewing proposed construction of macrocell towers and other wireless facilities that remain subject to cultural and environmental review.

         Three groups of petitioners challenge the Order as violating the NHPA, NEPA, and the Administrative Procedure Act on several grounds: that its elimination of historic-preservation and environmental review of small cell construction was arbitrary and capricious, an unjustified policy reversal, and contrary to the NHPA and NEPA; that the changes to Tribes' role in reviewing new construction was arbitrary and capricious; that the Commission arbitrarily and capriciously failed to engage in meaningful consultations with Tribes in promulgating the Order; and that the Order itself required NEPA review.

         We grant in part the petitions for review because the Order does not justify the Commission's determination that it was not in the public interest to require review of small cell deployments. In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction. The Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order's deregulation of small cells is thus arbitrary and capricious. We do not reach the alternative objections to the elimination of review on small cell construction. We deny the petitions for review on the remaining grounds.


         I. Statutory and Regulatory Background

         A. National Historic Preservation Act (NHPA)

         Congress enacted the NHPA to "foster conditions under which our modern society and our historic property can exist in productive harmony" and "contribute to the preservation of nonfederally owned historic property and give maximum encouragement to organizations and individuals undertaking preservation by private means." 54 U.S.C. § 300101(1), (4). As part of that mission, NHPA's Section 106 requires federal agencies to "take into account the effect of" their "undertaking[s] on any historic property." Id. § 306108.

         Both "historic property" and "undertaking" have specific meanings under the statute. Historic properties include myriad monuments, buildings, and sites of historic importance, including "[p]roperty of traditional religious and cultural importance to an Indian tribe." Id. §§ 302706, 300308. Insofar as Tribal heritage is concerned, the Section 106 process requires federal agencies to "consult with any Indian tribe . . . that attaches religious and cultural significance to" a historic property potentially affected by a federal undertaking. Id. §§ 302706, 306102. To count as "historic," such properties need not be on Tribal land; in fact, they "are commonly located outside Tribal lands and may include Tribal burial grounds, land vistas, and other sites that Tribal Nations . . . regard as sacred or otherwise culturally significant." Order ¶ 97. Only a federal "undertaking," not a state or purely private one, triggers the Section 106 Tribal consultation process. A federal "undertaking," as relevant here, is "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including . . . those requiring a Federal permit, license, or approval." 54 U.S.C. § 300320. We have construed the statute to mean that, for an action to be a federal undertaking, "only a 'Federal permit, license or approval' is required," not necessarily federal funding. CTIA-Wireless Ass'n v. FCC, 466 F.3d 105, 112 (D.C. Cir. 2006).

         The Section 106 process requires that an agency "consider the impacts of its undertaking" and consult various parties, not that it necessarily "engage in any particular preservation activities." Id. at 107 (quoting Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir. 2000)). The NHPA established an independent agency, the Advisory Council on Historic Preservation (Advisory Council), 54 U.S.C. § 304101, which is responsible for promulgating regulations "to govern the implementation of" Section 106, id. § 304108(a). Agencies must consult with the Advisory Council, State Historic Preservation Officers, and Tribal Historic Preservation Officers, the last of which adopt the responsibilities of State Historic Preservation Officers on Tribal lands. 54 U.S.C. §§ 302303, 302702; 36 C.F.R. §§ 800.3(c), 800.16(v)-(w) (defining State and Tribal Historic Preservation Officers).

         The Advisory Council's regulations authorize the use of alternatives to the ordinary Section 106 procedures, called "programmatic agreements." 36 C.F.R. § 800.14(b). The Commission develops programmatic agreements in consultation with the Advisory Council, Tribes, and other interested parties, "to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings" in certain circumstances, such as when "effects on historic properties are similar and repetitive" or "effects on historic properties cannot be fully determined prior to approval of an undertaking." Id. § 800.14(1)(i)-(ii). Tribes' views must be taken into account where the agreement "has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe." Id. § 800.14(b)(1)(i), (f). For instance, the Commission has consulted with Tribes to use programmatic agreements to exclude from individualized review entire categories of undertakings that are unlikely to affect historic properties. See In re Nationwide Programmatic Agreement Regarding the Section 106 [NHPA] Review Process (Section 106 Agreement), 20 FCC Rcd. 1073, 1075 ¶ 2 (2004).

         B. National Environmental Policy Act (NEPA)

         Congress enacted NEPA to "encourage productive and enjoyable harmony between man and his environment" and "promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man," among other purposes. 42 U.S.C. § 4321. Like the NHPA, NEPA mandates a review process that "does not dictate particular decisional outcomes, but 'merely prohibits uninformed-rather than unwise-agency action.'" Sierra Club v. U.S. Army Corps of Eng'rs, 803 F.3d 31, 37 (D.C. Cir. 2015) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)).

         All "major Federal actions significantly affecting the quality of the human environment" trigger environmental review under NEPA, just as federal "undertakings" trigger historic preservation review under the NHPA. 42 U.S.C. § 4332(C). Major federal actions "include[] actions . . . which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18. Under the Commission's procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct a preliminary Environmental Assessment to help the Commission determine whether "the proposal will have a significant environmental impact upon the quality of the human environment," and so perhaps necessitate a more detailed Environmental Impact Statement. 47 C.F.R. § 1.1308; see also 40 C.F.R. § 1508.9. If, after reviewing the Environmental Assessment, the Commission determines that the action will not have a significant environmental impact, it will make a "finding of no significant impact" and process the application "without further documentation of environmental effect." 47 C.F.R. § 1.1308(d).

         NEPA also has an analogue to the NHPA's Advisory Council. In enacting NEPA, Congress established the Council on Environmental Quality, in the Executive Office of the President, to oversee implementation of NEPA across the entire federal government. 42 U.S.C. §§ 4342, 4344. With the endorsement of the Council on Environmental Quality and by following a series of mandated procedures, agencies can establish "categorical exclusions" for federal actions that require neither an Environmental Assessment nor an Environmental Impact Statement. 40 C.F.R. § 1508.4. Categorical exclusions are appropriate for "a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency." Id. "Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review." Council on Environmental Quality, Memorandum for Heads of Federal Dep'ts and Agencies: Establishing, Applying & Revising Categorical Exclusions under [NEPA] (Categorical Exclusion Memo) 2 (2010).

         C. Legal Framework for Wireless Infrastructure

         The Communications Act of 1934 established the FCC to make available a "rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges." 47 U.S.C. § 151. In licensing use of the spectrum, the Commission is tasked with promoting "the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays," id. ยง 309, and ...

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