Law360 Article: FCC Rules May Spur Legal Battles Between Tribes And Feds 4/30/2018

FCC Rules May Spur Legal Battles Between Tribes And Feds

Share us on:   By Andrew Westney

Law360 (April 27, 2018, 5:07 PM EDT) — A recent suit challenging the Federal Communications Commission’s rules exempting smaller infrastructure for 5G wireless networks from historic and environmental reviews could be the first of many, as tribes fight to limit wireless projects that threaten cultural properties and face the prospect of other federal agencies following the FCC’s lead by curbing tribal consultation to speed up economic development.

The FCC voted 3-2 along party lines on March 22 to approve new rules exempting small cell fixtures from reviews under the National Historic Preservation Act and the National Environmental Policy Act, saying that deploying the small cells needed for the next-generation 5G networks does not constitute a “federal undertaking” under the NHPA or a “major federal action” under NEPA that would require review.

The rules — touted by FCC Chair Ajit Pai as a much-needed step to eliminate regulatory burdens standing in the way of “better, faster, and cheaper mobile broadband for the American people” — has already drawn a proposed class action by the Crow Creek Tribe in South Dakota federal court claiming the FCC exceeded its authority in interpreting the NHPA.

But many more tribes and national tribal organizations are likely to get involved to combat not just the FCC’s effort to cut regulations but the potential for other federal agencies to try to reduce developers’ burden to consult with tribes, experts say.

“I think this is just the tip of the iceberg,” said Blackfeet Nation Deputy Tribal Historic Preservation Officer Virgil Edwards, whose tribe opposed the order. “If this is allowed to go through and they change the way they’re going to consult with Indian tribes on federal projects, this could go across the board with other federal agencies to circumvent the authority of tribal historic preservation offices to protect and preserve tribal cultural properties.”

Under Section 106 of the NHPA, federal agencies have to evaluate whether a project that rises to the level of a “federal undertaking” will impact historic properties, including through consultation with affected states and tribes.

Many tribes criticized the FCC’s proposed order in comments before the vote, saying it wrongly excluded small cells from the “undertaking” definition, and the National Congress of American Indians and the United South and Eastern Tribes Sovereignty Protection Fund both suggested they might bring legal action over the order if it were approved.

But wireless communications industry groups like CTIA and Competitive Carriers Association pushed back against the tribes’ opposition, with CTIA telling the FCC that the agency’s proposals “will advance the goal of facilitating broadband deployment without diminishing tribes’ ability to protect historic sites of cultural or religious significance.”

At its March 22 meeting, the FCC approved the order to curtail tribal review of projects off tribal lands, and also blocked tribes from charging fees to pay for NHPA reviews, another move that tribes contend will hamstring their historic preservation work.

At the meeting, FCC Commissioner Michael O’Rielly laid blame on “a small subset of tribes” he said had been able “to unnecessarily slow communications buildout and bring a bad name to the rest of the American tribes that really try to do good faith efforts to work with wireless providers.”

But the Blackfeet Nation’s Edwards said that with this order the FCC is “manipulating a federal mandate for consultation.” He added that Pai, as a Verizon veteran (Pai worked as an associate general counsel for the company from 2001 through 2003), typifies the current administration’s development-oriented approach to regulation.

“That’s how it’s been going, Trump has placed into opposition on this commission and in other areas people who are in the industry,” he said.

And the new rules threaten to upset a relationship that has actually been working well for tribes and industry both, as tribes have been kept informed of new projects that might involve Section 106 review under the FCC’s Tower Construction Notification System, according to RaeLynn A. Butler, the manager of the Historic and Cultural Preservation Department of the Muscogee (Creek) Nation in Oklahoma.

Now the FCC seems to be undermining that collaboration by ignoring the concerns about the new order from organizations representing hundreds of thousands of Native Americans, Butler said.

“It’s really hard for us to understand how we can have a good working relationship with the FCC in future,” she said.

For those in the wireless industry, the question becomes whether the regulatory efficiency promised by the revised process could actually slow down small cell expansion by making it more likely tribal cultural sites are disturbed and potentially exposing companies to related suits, experts say.

“The risk of disturbing a site or causing problems might in some cases very much outweigh the new rule,” according to J. Nathanael Watson, of counsel with Stoel Rives LLP in Seattle.

And while litigation against the FCC over its new rule is going on, “companies that value their relationships with tribes will probably want to consider complying with the spirit of the old rule while the litigation takes place,” Watson said.

The first such shot across the FCC’s bow came from the Crow Creek Sioux Tribe, which filed a complaint on April 24 seeking to represent federally recognized tribes in a proposed class action claiming the FCC overstepped its authority with the new rules — particularly its bid to “redefine the meaning of a federal undertaking under the NHPA.”

The definition of “undertaking” under Secton 106 of the NHPA may be the core issue for not just the Crow Creek Tribe’s suit, but any future litigation over the FCC’s order, experts say.

“Anytime there’s an undertaking there’s an obligation to consult, and the meaning of undertaking will be litigated, there’ll be a fight over that, and ultimately there are a lot of undertakings,” Watson said.

The possibility of classing less obtrusive projects, like the small cells in the FCC order, as failing to meet the “undertaking” standard may invite other federal agencies, such as the Bureau of Land Management or the U.S. Forest Service, to try to reduce developers’ obligation to consult under the NHPA, experts say.

Yet that may prove a difficult legal path, as FCC Commissioner Jessica Rosenworcel, who voted against the order, contended that it wrongly equated an undertaking under the NHPA with a “major federal undertaking” under the National Environmental Policy Act.

And the FCC’s order ignored that NHPA undertakings include any projects that are supported by federal funding, which the small cell buildout — reaching up to 800,000 over the next eight years — will likely rely on, she added.

“This decision does not clear the way for 5G. It does not make us 5G ready. It only guarantees that a messy series of legal challenges will follow in its wake,” Rosenworcel warned.

The Crow Creek suit is probably just the beginning for litigation over the FCC’s order, experts say, with a broader response from tribes and tribal organizations likely forthcoming.

That’s especially true because the costs of pursuing this kind of suit could be “astronomical,” according to Ann Berkley Rodgers, member of Chestnut Law Offices PC.

“You are looking at very well-heeled adversaries, and tribes need to combine their resources and their authority, that is the way it has to be approached,” said Rodgers, who represents several New Mexico pueblos in dealings with the FCC.

And the NHPA issues “could have repercussions well beyond the FCC, which is why I think there needs to be a concerted national response,” Rodgers said.

NCAI declined to comment on any potential litigation over the rule.

Representatives for the FCC did not respond to request for comment.

On Friday, the Crow Creek Tribe voluntarily dismissed its complaint without prejudice. The FCC order has yet to be published in the Federal Register, which is normally the cue for suits against pending rules, and counsel for the Crow Creek Tribe told Law360 earlier last week that they were prepared to refile the suit if necessary.

–Editing by Sarah Golin and Kelly Duncan.