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Bird Advocates Can’t Skip Administrative Procedure

SAN FRANCISCO (CN) - A bird advocacy group cannot bypass administrative procedure by challenging Hawaiian communication towers through the citizen-suit provision of the Endangered Species Act, the 9th Circuit ruled.

The American Bird Conservancy sued the Federal Communications Commission in 2004 over the alleged impact of seven cell phone towers in Maui and Kauai on two seabirds, the endangered Hawaiian petrel and the threatened Newall's shearwater. Under the FCC's permitting process, applicants on an initial questionnaire all checked a "no" box refuting harmful environmental impacts from their cell towers, which averted consultation with wildlife agencies.

The appeals court upheld the Hawaii district court's dismissal, saying that the American Bird Conservancy improperly tried to "dress up" its challenge to the FCC's licensing decision as a "failure-to-act" claim instead. The court wrote that while it sympathized with the group's protest over the "glacial" pace of the FCC's administrative process, "such impatience does not provide a ground to ignore Congress' carefully crafted system of judicial review."

The American Bird Conservancy must wait for an adverse order from the FCC's administrative process, and then bring its appeal to federal court, the 9th Circuit ruled. The court noted that the group did just that in 2002 regarding towers in the Gulf Coast region, which the D.C. Circuit eventually nixed in 2008.

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