Petition — Mason v. United States

Supreme Court brief1977

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IN THE

SUPREME COURT OF THE UN BR ATTRA

October Term 19

_ — 79-313

RICHARD L. MASON, individually, and

A. MARCO TURK, Trustee of the Testa-

mentary Trust Under the Will of

Harry Turk, deceased,

Petitioners,

va.

UNITED STATES OF AMERICA; FEDERAL

COMMUNICATIONS COMMISSION; GTE SATELLITE

CORPORATION, a subsidiary of ERAL

TELEPHONE AND ELECTRONICS CORPORATION;

and AMERICAN TELEPHONE AND TELEGRAPH

COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERROLD A. FADEM

MICHAEL M. BERGER

GREGORY M. BERGMAN

of FADEM, BERGER, MCINTIRE

& NORTON

A Professional Corporation

501 Santa Monica Boulevard

Suite 600

P. O. Box 2148

Santa Monica, CA 90406

(213) 451-9951

Attorneys for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1977

No.

RICHARD L. MASON, individually, and

A. MARCO TURK, Trustee of the Testa-

mentary Trust Under the Will of

Harry Turk, deceased,

Petitioners,

vs.

UNITED STATES OF AMERICA; FEDERAL

COMMUNICATIONS COMMISSION; GTE SATELLITE

CORPORATION, a subsidiary of GENERAL

TELEPHONE AND ELECTRONICS CORPORATION;

and AMERICAN TELEPHONE AND TELEGRAPH

COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERROLD A. FADEM

MICHAEL M. BERGER

GREGORY M. BERGMAN

of FADEM, BERGER, MCINTIRE

& NORTON

A Professional Corporation

501 Santa Monica Boulevard

Suite 600

Pp. O. Box 2148

Santa Monica, CA 90406

(213) 451-9951

Attorneys for Petitioners

TOPICAL INDEX

TABLE OF AUTHORITIES

Opinion Below

Jurisdiction

Questions Presented For Review

Statutory Provisions

Statement Of The Case

REASONS FOR GRANTING THE WRIT

INTRODUCTION

NEPA REQUIRED THE FCC TO PRE-

PARE AN EIS BEFORE IT APPROVED

THE SATELLITE COMMUNICATIONS

SYSTEM

Page

FAILURE TO PREPARE AN EIS

INVALIDATES THE FCC APPROVAL

THE DISTRICT COURTS HAVE THE

POWER AND THE DUTY TO REVIEW

AND REMEDY VIOLATIONS OF NEPA

BY THE FCC

AN ACTION SEEKING COMPLIANCE

WITH NEPA BY THE FCC IS NOT

THE TYPE OF REVIEW OF A FINAL

AGENCY ORDER OR DECISION CON-

TEMPLATED BY 47 U.S.C. § 402

EVEN IF THIS WERE A REVIEW

OF AN AGENCY ORDER OR DECISION,

§ 402 DOES NOT APPLY BECAUSE

THIS IS A REVIEW OF AN FCC

DETERMINATION MADE UNDER

CHAPTER 6 OF TITLE 47

CONCLUSION

ii.

APPENDIX

"A"

"ee

Page

Non-published opinion of

the United States Court

of Appeals for the Ninth

Cireuit. No. 76-1558

Richard Mason, et al. v.

United States of America,

et al.

Statutor, Provisions

Judgment Dismissing Action

For Lack Of Subject Matter

Jurisdiction Under

Rule 12(b) (1)

United States District Court

Central District of

California

iii.

TABLE OF AUTHORITIES . . Cases Page

Cases Page FCC v. Columbia B. System (1940)

311 U.S. 132,

Abbott Laboratories v. Gardner 85 L.Ed. 87 30

(1967) 387 U.S. 136,

18 L.Bd.2d 681 26

Gage v. Commonwealth Edison

Company (N.D. Ill. 1972)

Calvert Cliff's Coord. Com. v. 356 F. Supp. 80 27

United States A.E. Com'n.

(D.C. Cir. 1971)

449 F.2d 1109 17, 18, 23 Getty Oil Company (Eastern

Operation) v. Ruckelshaus

(3rd Cir. 1972)

Citizens For Clear Air, Inc. 467 F.2d 349 28, 29

v. Corp. of Eng. U.S. Army

(S.D. N.Y. 1972)

349 F. Supp. 696 28 Groton, Town of v. Laird

(D. Conn. 1972)

353 F. Supp. 344 19

Citizens to Preserve Overton

Park v. Volpe (1971)

401 U.S. 402 19 Izaak Walton League of America

v. Schlesinger (D.D.C. 1971)

: . 337 F. Supp. 287 26, 27

Davis v. Morton

(lOth Cir. 1972)

469 F.2d 593 16 Manhattan General Equipment

Company v. Commissioner (1936)

297 U.S. 129,

Environmental Defense Fund v. 80 L.Ed. 528 35, 36

Hardin (D.D.C. 1971)

325 F. Supp. 1401 27

Nader v. Allegheny Airlines

(1976) U.S. __,

Farmer v. Carpenters (1977) 48 L.Ed.2d 643 27

U.S. ,

51 L.ed. 338 27

Network Project v. F.C.C.

(D.C. 1975)

511 F.2d 786 35

iv , Vv

Cases Page

The Louis Olsen

(9th Cir. 1893)

57 Fed. 845 38

Rankin v. Coleman

(E.D. N.C. 1975)

394 F. Supp. 647,

modified 401 F. Supp. 664 23

Romulus, City of v. County of

Wayne (E.D. Mich. 1975)

392 F. Supp. 578 23, 28

Save Our Sound Fisheries Ass'n.

v. Callaway (D.R.I. 1974)

387 F. Supp. 292 28

Sierra Club v. Coleman

(D.C.C. 1975)

405 F. Supp. 53 23

Sierra Club v. Morton

(N.D. Cal. 1975)

400 F. Supp. 610 23

United States v. Joseph G.

Moretti (5th Cir. 1973)

478 F.2d 418 19

United States v. SCRAP

(1973) 412 U.S. 669,

37 L.Ed.2d 254 29, 30

Statutes Page

Administration Procedure Act

5 U.S.C. § 701 4, 9, 19

5 U.S.C. § 702 +

5 U.S.C. § 703 +

5 U.S.C. § 704 4

5 U.S.C. § 706 4

28 U.S.C. § 1254 2

28 U.S.C. § 1291 10

Judiciary & Judicial Procedure

28 U.S.C. § 1331 5, 9, 19

Clean Air Act

42 U.S.C. § 1857-h5 5, 29

National Environmental Policy Act

42 U.S.C. § 4321 et seq. Be Se Be 8

42 U.S.C. § 4331 (b) 5, 8

42 U.S.C. § 4332(C) 5S, 45

vii

Statutes Page : IN THE

Wire or Radio Communication SUPREME COURT OF THE UNITED STATES

October Term 1977

47 U.S.C. § 151 Se She oa

No.

47 U.S.C. § 402 passim

RICHARD L. MASON, individually, and

47 U.S.C. § 402(a) (b) 5, 32 A. MARCO TURK, Trustee of the Testa-

mentary Trust Under the Will of

Harry Turk, deceased,

Communications Satellite System

Petitioners,

47 U.S.C. § 701 YS i, . vs.

UNITED STATES OF AMERICA; FEDERAL

47 U.S.C. § 701(d) 36 COMMUNICATIONS COMMISSION; GTE SATELLITE

CORPORATION, a subsidiary of GENERAL

47 U.S.C. § 702 5, 33, 38 TELEPHONE AND ELECTRONICS CORPORATION;

and AMERICAN TELEPHONE AND TELEGRAPH

47 U.S.C. § 721 (c) (7) 5, 33 COMPANY,

| Respondents.

47 U.S.C. § 741 5, 34

PETITION FOR WRIT OF CERTIORARI

Texts TO THE UNITED STATES COURT OF APPEALS

. ° FOR THE NINTH CIRCUIT

E. Dolgin and T. Guilbert,

Federal Environmental Law,

277 (1974) 23

Petitioners Richard L. Mason and A.

Miscellaneous Marco Turk, Trustee under the will of

Harry Turk, deceased, respectfully pray

4 Study on Federal Regulation,

"Delay in Regulatory Process" that a Writ of Certiorari issue to review

Senate Committee on Government 40 the decision of the United States Court

Affairs

of Appeals for the Ninth Circuit, in the

case at bench and, upon such review, the

Court of Appeals' decision be reversed

by an opinion which makes it clear that

viii F Be

Federal District Courts have jurisdiction

to review and correct violations of the

National Environmental Policy Act (42

U.S.C. §§ 4321 et seq.) which occur within

their districts.

Opinion Below

The non-published opinion of the United

States Court of Appeals for the Ninth Cir-

cuit presented for review by this petition

is Richard Mason, et al. v. United States

of America, et al., 9th Cir. No. 76-1558.

A copy of the opinion is attached hereto

as Appendix "A".

Jurisdiction

The judgment of the United States Court

of Appeals sought to be reviewed was filed

and entered on May 27, 1977.

This Court's jurisdiction is pursuant

to 28 U.S.C. § 1254.

Questions Presented For Review

1. When a communications satellite sys-

tem, including three 120 foot high, dish-

shaped, solid surface antennae, each 103

feet in diameter is proposed to be built

in the Triunfo Pass area of the Santa

Monica Mountains, California, a rustic

area of natural beauty and tranquility:

(a) Can the Federal Communications

Commission (FCC) license the satellite

system without first preparing an En-

vironmental Impact Statement, as re-

quired by the National Environmental

Policy Act (42 U.S.C. §§ 4321 et seq.)

which is intended to insure considera-

tion of all adverse environmental ef-

fects before the project is begun?

(b) Is a suit challenging the fail-

ure of the FCC to prepare an Environ-

mental Impact Statement before it li-

censed the building of the antennae

within jurisdiction of the District

Court, in whose district the environ-

mental impact will be felt?

2. Assuming arguendo that the purpose

of the FCC jurisdictional review statute

(47 U.S.C. § 402) is to limit substantive

review of an FCC order or decision grant-

ing or denying a license to the District

of Columbia Court of Appeals does that

jurisdictional limitation apply to an

action seeking procedural compliance

with NEPA by the FCC?

3. Even if this were a review of an

FcC order or decision, does § 402 apply

where:

® This is a review of an FCC deter-

mination made under Chapter 6

of Title 47 dealing with communi-

cation satellites systems; and

@ section 402 by its own terms

applies only to Chapter 5 deter-

minations dealing with wire and

radio communication systems?

Statutory Provisions

The following statutory provisions

affect this petition. Each is reproduced

in full in Appendix “B" attached hereto:

Administrative Procedure Act

§ U.S.C. § 701

702

703

704

706

ee ee re

Judiciary and Judicial Procedure

28 U.S.C. § 1331

Clean Air Act

42 U.S.C. § 1857h-5

National Environmental Policy Act

42 U.S.C. § 4321

42 U.S.C. § 4331 (bd)

42 U.8.C. § 4332(C)

Wire or Radio Communication

47 U.S.C. § 151

47 U.S.C. § 402(a) (b)

Communications Satellite System

47 U.8.C. § 701

47 U.8.C. § 702

47 U.8.C. § 721 (ce) (7)

47 U.8.C. § 741

Statement Of The Case

This is an action brought by Richard

L. Mason and A. Marco Turk who are owners

of 280 acres of natural, unspoiled land

in Triunfo Pass, a sparsely populated

area located in the Santa Monica Mountains

in Los Angeles County, California. The

Santa Monica Mountains are a natural

scenic resource for the 8 million people

of the Los Angeles Metropolitan area,

Mr. Mason and Mr. Turk enjoy the

aesthetically pleasing beauty and recrea~-

tional uses of their property, which is

in the midst of a rural and recreational

setting of natural and visual beauty and

unique tranquility.

Mr. Mason and Mr. Turk (hereafter some~

times referred to as the Owners) want to

protect their property against the adverse

environmental impact of three 120 foot

high, dish-shaped, solid surface antennae,

each 103 feet in diameter. This is the

equivalent of three twelve story build-

ings and appurtenent structures.

On September 12, 1973, the FCC autho-~

rized the erection of the antennae towers

on property contiguous to the Owners’

property.

The antennae are part of a satellite

communications system proposed by respon-

dents General Telephone & Electronics

Corporation, GTE Satellite Corporation

and American Telephone & Telegraph Com-

pany (hereafter collectively called GTE).

The entire satellite communications sys-

tem which the Triunfo Pass antennae are

a part, consist of 3 satellites serviced

by 7 ground stations located across the

United States.

The FCC issuance of construction per-

mits and licenses for the Triunfo Pass

antennae constituted a major federal ac~-

tion with substantial potential environ-

mental impact.

NEPA, therefore requires, as a condi-

tion precedent to the FCC granting GTE's

application, the preparation of an Envi-

ronmental Impact Statement (EIS) which

fully presents and evaluates any neces~-

sity for the proposed project, the impact

of alternative actions, and the environ-

mental consequences of the proposed

project.

The FCC, however, failed to prepare

an EIS before approving GTE's project

and construction of the antennae.=/ The

FCC, by granting approval for construc-

tion without an EIS, violated NEPA.

Congress declared (42 U.S.C. § 4331 (b)]:

"[I)t is the continuing respon-

sibility of the Federal Government

to use all practicable means, con-

sistent with other essential con-

siderations of national policy, to

. « « (2) assure for all Americans

safe, healthful, productive, and

esthetically and culturally pleas-

ing surroundings; (3) attain the

widest range of beneficial uses of

the environment without degradation,

risk to health or safety, or other

undesirable and unintended conse-

quences; (4) preserve important

historic, cultural, and natural

aspects of our national heritage,

and maintain, wherever possible,

an environment which supports di-

versity and variety of individual

choice: ... ."

The Owners sought the protection of the

District Court (Central District of

California), in whose district the

l/ GTE has begun to build 3 antennae even

though the permit issued by the FCC

approved the building of only 2 antennae.

proposed antennae are to be erected, by

requesting that an order be issued requir-

ing the FcC to carry out its obligations

under NEPA before construction began.

The District Court has the power to

judge the FCC's failure to implement

NEPA, because the land suffering adverse

environmental impact is within the

Court's district.

Mason and Turk therefore moved the

District Court for a summary judgment

declaring the FCC permit invalid for

failure to comply with NEPA, and for an

injunction halting the construction of

the proposed project for failure to com-

ply with NEPA.

The District Court, however, dismissed

Mason's and Turk's action as beyond its

jurisdiction, 2/believing that jurisdiction

2/ The District Court's jurisdiction to

review the FCC's violation of NEPA

was based on the Administrative Procedure

Act, 5 U.8.C. §§ 701 et seq., the federal

question statute 28 U.S.C. § 1331 and

NEPA 42 U.S.C. §§ 4321 et seq.

A copy of the District Court's judg-

ment is attached hereto as Appendix “C".

resided solely in the Court of Appeals on aadie cammenicaticons) confers

for the District of Columbia. exclusive jurisdiction over a

communication satellite system

The Owners appealed the District notwithstanding that communica-

tion satellite systems are pro-

vided for in a different chapter

Court of Appeals for the Ninth Circuit. of 47 U.S.C. §§ 701 et seq.; and

Court's decision to the United States

The Owners sought an order of the Court e that therefore a violation of

of Appeals informing the District Court NEPA occurring in California by

the FCC can only be reviewed by

the Court of Appeals in

to review the FCC's violation of NEPA. Washington, D.C.

that it had the power and jurisdiction

The Court of Appeals, however,

affirmed the District Court's dismissal This holding is contrary to the power,

of Mason's and Turk's action for lack of and especial expertise, of local Federal

Distri urts t view

subject matter jurisdiction. rict Court Oo revi and correct

violations of NEPA where the violation

In a capsule, the Court of Appeals

1) occurs.

held: =

® 47 0.8.C. §$ 402 which limits at-

tacks on the merits of FCC orders

or decisions to the Courts of

Appeals precluded review of the

rcc's violation of NEPA in the

District Court in whose district

the violation occurred;

® 47 U.8.C. § 402 (which applies

only to FCC orders as to wire

3/ The jurisdiction of the Court of

~ Appeals to review the District Court

judgment is 28 U.S.C. § 1291. .

. ll.

10. .

REASONS FOR GRANTING THE WRIT

INTRODUCTION

In this case, Mr. Mason and Mr. Turk

seek compliance by the FCC with the

National Environmental Policy Act.

The decision of the Court of Appeals

is based on the assumption that the

Owners are attempting to review the

merits of the FCC's approval of GTE's

application. This assumption is wrong.

An attack for noncompliance with NEPA

(contrary to the Court of Appeals' deci-

sion) does not go to the merits of the

FCC's action, but rather to the FCC's

ability to act at all. All Federal

Courts are competent to review the FCC's

ability to legally act.

The FCC does not deny that it violated

the National Environmental Policy Act,

when it approved the building of three,

120 foot high, dish-shaped, solid sur-

face antennae, each 103 feet in diameter

in the Triunfo Pass area of the Santa

Monica Mountains, without first prepar-

ing an Environmental Impact Statement.

12.

Preparation of an EIS was a condition

precedent to FCC approval. The FCC does

not dispute the fact that its failure to

prepare an EIS invalidated its approval.

When the FCC failed to prepare an EIS,

it rendered itself incapable of evaluat-

ing adverse environmental impacts on the

Santa Monica Mountains.

Nevertheless, the Court of Appeals

agreed with the FCC that the District

Court, which is located where the impact

will be felt, is powerless to remedy the

FCC's disregard of NEPA.

NEPA was passed by Congress because

agencies, like the FCC, seem concerned

with their missions, and not the conse-

quences of their actions to the environ-

ment.

NEPA is a mandate for the Federal

agencies, but the FCC thumbed its nose at

the statute. The Court of Appeals' deci-

sion rewarded the FCC's disregard.

Conforming with NEPA is not only the

duty of the FCC. It is the business and

concern of the public in general, and in

particular persons such as Mason and

13.

Turk, who are directly affected by the

FCC's actions.

Relief for a violation of NEPA should

be available at the site where the viola-

tion affects people and property.

Federal district courts regularly

have taken jurisdiction over violations

of NEPA within their districts. To the

extent that the FCC has violated its

clear, nondiscretionary legal duty to

comply with NEPA, by not having an EIS,

availability of injunctive relief in the

District Court is needed to provide a

convenient forum to the injured persons.

14.

NEPA REQUIRED THE FCC TO PREPARE

AN EIS BEFORE IT APPROVED THE

SATELLITE COMMUNICATIONS SYSTEM

The FCC's approval of the Triunfo Pass

antennae and of the 6 other earth stations

in the United States, was invalid because

the FCC failed to first prepare and evalu-

ate an EIS. |

NEPA requires that an EIS be prepared

for every major Federal action which sig-

nificantly affects the human environment.

The FCC approval of the Triunfo Pass

antennae is such an action.

The EIS requirement is stated in

§ 102 of NEPA at 42 U.S.C. § 4332 at

paragraph (C). That statute requires

that every Federal agency:

"(C) Include in every recom-

mendation or report on proposals

for legislation and other major

federal actions significantly

affecting the quality of the human

environment, a detailed statement

by the responsible official on

"(i) any environmental

impact of the proposed action,

15.

"(ii) any adverse environ- -

mental effects which cannot be

avoided should the proposal be

implemented,

"(iii) alternatives to the

proposed action,

"(iv) the relationship

between local short-term uses

of man's environment and the

maintenance and enhancement of

long-term productivity, and

"(v) any irreversible and

irretrievable commitments of

resources which would be in-

volved in the proposed action

should it be implemented. .. .

(Emphasis added.)

In Davis v. Morton (10th Cir. 1972)

469 F.2d 593, 597 the Court defined major

Federal action:

"Appellees [Secretary of the

Interior et al.] concede that where

a federal license or permit is

involved, or where Congress possesses

and has utilized its plenary power

of regulation under the interstate

commerce clause or other constitu-

tional authority, federal approval

constitutes major federal action."

NEPA therefore, required the FCC to

prepare an EIS before it gave its approval

for construction of this satellite system.

16.

FAILURE TO PREPARE AN EIS INVALI-

DATES THE FCC APPROVAL

The U.S. Courts have determined that

failure to prepare an EIS invalidates a

major federal action which significantly

affects the human environment.

In Calvert Cliffs' Coord. Com. v.

United States A.E. Com'n. (D.C. Cir. 1971)

449 F.2d 1109, 1115, the District of

Columbia Circuit Court held the federal

agency action must be overturned where

there had been a failure to comply with

NEPA.

"We conclude, then, that Sec-

tion 102 of NEPA mandates a parti-

cular sort of careful and informed

decisionmaking process and creates

judicially enforceable duties.

The reviewing courts probably can-

not reverse a substantive decision

on its merits, under Section 10l,

unless it be shown that the actual

balance of costs and benefits that

was struck was arbitrary or clearly

gave insufficient weight to envi-

ronmental values. But if the

decision was reached procedurally

without individualized considera-

tion and balancing of environmen-

tal factors -- conducted fully

and in good faith -- it is the

17.

responsibility of the courts to

reverse. As one District Court has

said of Section 102 requirements:

‘It is hard to imagine a clearer

or stronger mandate to the courts. '"

(Emphasis added. )

The FCC granted GTE permission to

construct antennae at Triunfo Pass with-

out the benefit of an EIS. Thereby, the

FcC disabled itself from “individualized

consideration of environmental factors".

Calvert Cliffs Coord. Com, v. United

States A.E. Comm'n. (D.C. Cir. 1971)

449 F.2d 1109, 1115.

By its disregard of NEPA, the FCC was

unable to “balance environmental factors"

against the need for the antennae.

This self-crippling invalidates the

FCC's approval.

THE DISTRICT COURTS HAVE THE

POWER AND THE DUTY TO REVIEW

AND REMEDY VIOLATIONS OF NEPA

BY THE FCC

It is unfortunate that Federal regu-

latory agencies like the FCC sometimes

disregard NEPA in their efforts to “get

18.

their job done". For this reason, the

Federal district courts have exercised

their equitable powers to ensure that the

benefits of NEPA are not lost by the

people of this country.

Since 1969, when NEPA became law,

hundreds of cases have shown the necessity

of district court intervention to protect

the environment against zealous agency

action through NEPA enforcement. {/

In the case at bench, the FCC does

not dispute that it disregarded NEPA by

failure to prepare an EIS before it ap-

proved the construction of the 3 antennae

in the Triunfo Pass area of the Santa

Monica Mountains. Instead, the FCC

defends by saying only the Court of

Appeals for the District of Columbia has

jurisdiction to protect against FCC law

4/ The District Courts can review Federal

Agencies' noncompliance with NEPA

under the “Federal Question" Statute 28

U.S.C. § 1331 (Town of Groton v. Laird

[D. Conn. 1972] 3 F. pp. 344, ’

and under the “Administrative Procedure

Act", 5 U.S.C. §§ 701 et seq. (United

States v. Joseph G. Moretti (Sth Cir.

: ' ; tL to Pre-

serve Overton Park v. Volpe

19.

violation. The 9th Circuit Court of

Appeals was persuaded that the District

Court is impotent to remedy violation of

a clear, nondiscretionary, procedural duty

under NEPA.

If review of the merits of an FCC

decision were the issue, there could be

some rationality to sole jurisdiction

vesting in the District of Columbia Cir-

cuit, even though § 402 does not command

so for satellite systems.

But, instead, what is before this

Court is a dereliction of duty by failure

to prepare an EIS before blessing a mas~

sively environmentally degrading construc~

tion program.

Any district court can decide if an

EIS was, or was not, prepared.

Sensible work load distribution is at

stake at two levels:

® Why burden Courts of Appeals

with matters which district

courts are better equipped to

deal with, because of the fact

finding involved?

20.

® Secondly, the District of

Columbia Circuit Court is an

especially burdened tribunal.

Where its expertise improves

dispute resolution, demand use

of that expertise. However,

where that expertise is not

needed, letting any district

court with the project in its

geographic jurisdiction act,

makes more sense. This Court

may even have a selfish motiva-

tion in keeping the D.C. Cir-

cuit as free as possible to

thoughtfully screen matters

arising from Federal Agency

actions which seem probable

candidates for this Court's

over demanded attention.

Moreover, the district courts can

only enforce the law when violations are

called to their attention. Private liti-

gants perform an important function in so

doing. The combination of the 30 day

Statute of Limitation of § 402 to review

FCC action on the merit, and the economic

barrier in the cost and inconvenience of

21.

litigating a continent away from the

Owners' property, serve to encourage FCC

lawlessness, by insulating the FCC from

review. If the FCC is made aware that

injured persons are able to effectively

seek relief, the FCC will be encouraged

to obey the law, rather than breach it as

they have done here.

Other Courts have agreed with the

desirability of encouraging private en-

forcement.

"Our duty, in short, is to see

that important legislative purposes,

heralded in the halls of Congress,

are not lost or misdirected in the

vast hallways of the federal bureau-

cracy "hall

“Congress did not intend the Act

to be such a r tiger. indeed,

the rgquiremen of environmental

consideration ‘to the fullest extent

possible. sets a high standard for

e agencies, a 8 a ch must

rigorously enforced by the re-

viewing sourta.*

. 7 *

“laAnd) if the decision [of the agency]

was reached procedurally without

individualized consideration and

balancing of environmental factors

22.

- conducted fully and in good

faith - it is the responsibility

of the courts to reverse. As one

District Court has said of Section

102 requirements: ‘It is hard to

imagine a clearer or stronger man-

date to the Courts*.* sis

added.) Calvert Cliffs Coord.

Comm. v. United States A.E. Comm'n.

(1971 B.C. Cir.) 449 F.3d 1109,

llll, 1114, 1115 aaa numerous cases

following.

The principles governing enforcement

of NEPA by the U.S. district courts are

now familiar. 3/

The Court of Appeals, however, in

this case, allowed the District Court to

evade its responsibility under NEPA. e/

5/ The Federal District Courts have been

vigorous in reviewing agency compli-

ance with NEPA and in requiring strict

procedural wow (See Sierra Club

v. Coleman [D.C.C. 1975] 405 F. Supp. 53,

56; City of Romulus v. County of Wayne

[E.D. iG h. 1975) 392 F. Supp. S78. S84,

597; Sierra Club v. Morton [N.D. Cal.

1975) 400 F. 3 S10, 648; Rankin v.

Coleman [E.D. N.C. 1975) 394 F. Supp. 647,

657, modified 401 F. Supp. 664.)

6/ Agency non-compliance has required

the courts to become the principal

enforcers of NEPA. (E. Dolgin and T.

Guilbert, Pederal Environmental Law, 277

[1974] .)

23.

If the judgment of dismissal here is

permitted to stand, major irreversible

harm will be done to a unique scenic

resource, while at the same time, future

agency scoffing at NEPA will be encour-

aged.

AN ACTION SEEKING COMPLIANCE WITH

NEPA BY THE FCC IS NOT THE TYPE OF

REVIEW OF A FINAL AGENCY ORDER OR

DECISION CONTEMPLATED BY 47 U.S.C.

§ 402

The court below mistakenly rejected

the Owners’ position that this action did

not challenge an order of the FCC on its

merits. The Owners were instead trying

to enforce the mandate of NEPA.

The Court of Appeals felt that if it

allowed the district court to exercise

jurisdiction over the FCC's violation of

NEPA, it would subvert the intention of

Congress: that there be a centralized

and expedited review procedure of FCC

construction permit decisions in the

District of Columbia Court of Appeals to

prevent the FCC from being subjected to

24. .

the risk of different standards on review

among the circuits.

Mason and Turk believe, however, that

the purpose of the FCC jurisdictional

review statute (47 U.S.C. § 402), which

limits review of an FCC order or decision

granting or denying a license to the

District of Columbia Court of Appeals,

does not apply to a procedural compliance

with NEPA by the FCC.

The drafters of 47 U.S.C. § 402 were

concerned with insuring uniformity of

judicial review of the merits of FCC

orders and decisions. They did so by

placing all such review on the merits in

one court.

But, the compliance with NEPA is a

condition precedent to FCC action. Thus,

an attack for non-compliance with NEPA

does not go to the merits of the FCC's

action, but rather to the FCC's ability

to act at all. All district courts are

competent to review the FCC's compliance

with nepa._/

7/ Congress could not have intended for

47 U.S.C. § 402 to preclude review of

an FCC violation of NEPA. Section 402 was

enacted in 1934, while NEPA was enacted in

1969. 25

The Court of Appeals wraps its argu-

ments®/ in the blanket of uniformity of

decision, but does not say how ordering

the FCC to comply with NEPA will inter-

fere with “uniformity of decision".

There is no interference with uniformity

by telling the FCC it has failed to com-

ply with NEPA.

In this case, where failure to comply

with NEPA is the issue, expert considera-

tion of the matter by the FCC (or the

District of Columbia Circuit Court) is

not required. The purpose of § 402 was

to insure uniformity of review concern-

ing the merits of granting or denying

FCC licenses. In this case, however,

the District Court is merely being asked

to determine whether the FCC has complied

with the procedural requirements of NEPA.

In Izaak Walton League of America v.

Schlesinger (D.D.C. 1971) 337 F. Supp.

8/ The Court of Appeal disregarded the

~ principle enunciated in Abbott Labor-

atories v. Gardner (1967) 387 U.S. 136,

18 L.Ed.2d 681: that courts should

restrict access to judicial review only

upon a showing of “clear and corvincing

evidence" of a contrary legislative in-

tent.

26.

287, 291, the distinction between an

agency order or decision, and a violation

of NEPA was set forth:2/

"Plaintiffs are not requesting

review of the granting or denying

of a license. They request this

[District] Court to direct the AEC

to comply with a specific statutory

mandate [NEPA]. In this regard

the [District] Court does have

jurisdiction to consider the

issues presented, namely, whether

there has been a violation of a

clear, non-discretionary, legal

duty." (Emphasis added.)

Accord: Gage v. Commonwealth Edison

Company (N.D. Ill. 1972) 356

F. Supp. 80, 83;

Environmental Defense Fund v.

Hardin (D.D.C. 1971) 325

F. Supp. 1401, 1407.

9/ A case analogous to the question of

judicial review of agency action to

that at bench is Nader v. Allegheny Air-

lines (1976) ___ U.S. , 48 L.Ed.2d 643,

where this Court held that the CAB did not

have to review the Airline practice of

overbooking, before a District Court could

determine if common law fraud exists. The

Court found that this was not the type of

technical question of fact uniquely within

the CAB expertise.

See also:

Citizens For Clear Air, Inc. v.

Corp. of Eng. U.S. Army (S.D.N.Y.

1972) 349 F. Supp. 696, 703;

City of Romulus v. County of Wayne

TE.D. Mich. 1975) 392 F. Supp.

578, 584.

Getty Oil Company (Eastern Operation)

v. Ruckelshaus (3rd Cir. 1972) 467 F.2d

349, relied on by the Court of Appeals,

28.

rather than justifying its opinion, in-

stead shows the difference between the

kind of case reviewable under § 402, and

the case at bench. 22/ In Getty and cases

under § 402, the merits of an agency's

decision is at issue. This is shown by

the Court's determination that,

"Getty's argument against enforce-

ment requires a determination by

the Court whether the regulation

[promulgated under the Clean Air

Act] is unnecessary, unreasonable

Or capricious." (467 F.2d at 356.)

Furthermore, the Court of Appeals'

reliance on United States v. SCRAP (1973)

412 U.S. 669, 37 L.Ed.2d 254, demonstrates

a misunderstanding of Mason's and Turk's

complaint.

10/ In Getty § 307 of the Clean Air Act

(42 U.S.C. § 1857h-5) was the rele-

vant statute. The purpose of the Clean

Air Act is to control and prevent air

pollution. The judicial review provi-

sions of the Clean Air Act are similar to

47 U.S.C. § 402. Section 307 provides

for review by the Court of Appeals for

the District of Columbia of all air qual-

ity standards promulgated by the EPA which

are challenged on their merits after re-

view by the Administrator cf the EPA.

29.

The Owners are not saying that NEPA

suspends § 402. To the contrary, the

Owners believe that NEPA and § 402 work

in harmony, as violation of NEPA by the

FCC is not a decision within the scope

of § 402.

In SCRAP, the student group challenged

the I.C.C.'s decision to uphold a tempo-

rary rate change imposed by the railroads.

The grounds of the attack were that NEPA

applied to rate setting. The Supreme

Court in SCRAP held that NEPA did not

apply to I.C.C.'s rate setting. The

question was not whether the I.C.C. had

complied with NEPA.

Section 4o2tl/ has nothing to do with

NEPA, or this case.

1l1/ It is indisputable that not all FCC

actions fall within the review provi-

sions of § 402 and review of the District

of Columbia Circuit. (See, e.g., FCC v.

Columbia B. System [1940] 311 U.S. 132,

85 L.Ed. 87.)

EVEN IF THIS WERE A REVIEW OF

AN AGENCY ORDER OR DECISION,

§ 402 DOES NOT APPLY BECAUSE

THIS IS A REVIEW OF AN FCC

DETERMINATION MADE UNDER

CHAPTER 6 OF TITLE 47

Mr. Mason and Mr. Turk believe that

the District Court's jurisdiction under

NEPA is clear. This action is not a

review of an FCC order within the mean-

ing of the 47 U.S.C. § 402 exclusive

District of Columbia jurisdiction.

Nonetheless, assuming arguendo that

the District Court were reviewing an

order of the FCC, § 402 does not apply.

Section 402 relates to review of FCC

orders except those dealing with communi-

cation satellite systems. Section 402

applies to Chapter 5, by its plain words

(47 U.S.C. §§ 151 et seq.) not to

Chapter 6 which governs satellite sys-

tems (47 U.S.C. §§ 701 et seq.).

Section 402, which was the section

accepted by the Courts as controlling

below, is included in subchapter IV of

Chapter 5, which is entitled Procedural

31.

and Administrative Provisions. Sub-

chapter IV deals with enforcement of

Chapter 5. Section 402 is, by its terms,

limited in its application to interests

covered under Chapter 5.

Section 402 (part of Chapter 5) reads,

in part:

"(a) Any proceeding to enjoin,

set aside, annul, or suspend any

order of the Commission under this

chapter (except those appealable

under subsection (b) of this sec-

tion) shall be brought as provided

by and in the manner prescribed in

Chapter 19A of Title 5.

Right to Appeal

"(b) Appeals may be taken from

decisions and orders of the Commis-

sion to the United States Court of

Appeals for the District of Colum-

bia in any of the following cases:

. . ." (Emphasis added.)

This case concerns the construction

of a satellite communications ground

station at Triunfo Pass.

FCC jurisdiction as to satellite com-

munication ground stations is estab-

lished by Chapter 6.

32.

Section 702 of Chapter 6 defines the

species of installation with which we are

are here concerned:

"(2) the term satellite terminal

station refers to a complex of

communication equipment located

on the earth's surface, opera-

tionally connected with one or

more terrestrial communication

systems, and capable of trans-

mitting telecommunications to or

receiving telecommunications from

a communications satellite system.”

The authority by which the FCC can ap-

prove the building of the satellite com-

munication ground station is also in

Chapter 6 in § 721 (c) (7).

Chapter 5 - which contains § 402 - is

entitled "Wire or Radio Communication".

Chapter 6 is entitled "Communication

Satellite System".

The Court of Appeals did not answer

the question of why, if Congress had

intended communication satellite systems

to have the same scope of review as wire

and radio communication systems, it did

not add the sections of Chapter 6 (47

U.S.C. §§ 701 et seq.) to Chapter 5

(47 U.S.C. §§ 151 et seq.), or change

33.

§ 402 to refer to Chapter 6. Either way,

Congress could have granted the D.C.

Circuit exclusive jurisdiction if that

was the Congressional intent.

But Congress intended satellite com-

munication systems to be differently

treated, and stated its intent with

emphasis when it provided,

“Whenever the application of the

provisions of this chapter [6]

shall be inconsistent with the

application of the provisions

of the Communications Act [chapter

5] the provisions of this chapter

shall govern." (47 U.S.C. § 741).

The site of review of FCC actions as

to satellite systems is not set forth in

Chapter 6. It is thereby inconsistent

with Chapter 5's exclusive jurisdiction.

By § 741 it is under general jurisdic-

tional rules, rather than Chapter 5's

exclusive siting.

As the Court of Appeals notes, Chapter

6 acknowledges the existence of Chapter

5 by referring to Chapter 5. So what?

More importantly, since Chapter 6 makes

clear Congress's awareness of Chapter 5,

the non-grant of exclusive jurisdiction

34.

becomes emphasized.

The Court of Appeals relies on Network

Project v. F.C.C. (D.C. Cir. 1975) 511

F.2d 786, for the proposition that § 402

(b) applies to review of Chapter 6 -

earth satellite station - matters. How-

ever, in Network, the issue of propriety

of review of Chapter 6 orders under § 402

was neither raised nor litigated. The

case, thus, provides no assistance in

answering the question of exclusive site

of jurisdiction versus general rule of

multi-site of jurisdiction.

The Court of Appeals points out that

the FCC itself has determined that review

of questions dealing with the domestic

satellite system are governed by Chapter

5 and not Chapter 6. But the FCC's erro-

neous finding does not disable this Court

from correcting the FCC's error. As this

Court succinctly put it in Manhattan Gen-

eral Equipment Company v. Commissioner

(1936) 297 U.S. 129, 134, 80 L.Ed. 528:

"The power of an administrative

officer or board to administer a

federal statute and to prescribe

rules and regulations to that end

35.

is not the power to make law - for

no such power can be delegated by

Congress - but the power to adopt

regulations to carry into effect

the will of Congress as expressed

by the statute. A regulation which

does not do this, but operates to

create a rule out of harmony with

the statute, is a mere nullity."

The FCC's interpretation, accepted by

the Court of Appeals, would nullify the

distinction expressly established by

Congress between wire and radio communica-

tion systems (Chapter 5) and satellite

communication systems (Chapter 6). It is

thus beyond the FCC's power and, in the

words of this Court in Manhattan, supra,

- « « a mere nullity."

Next the Court of Appeals states that

Chapter 6 only applies to international

systems of communication satellites. On

the contrary, § 701(d) of Chapter 6

states: 12/

"It is not the intent of Congress

by this Act to preclude the use of

the communications satellite for

domestic communication services

12/ With respect, the Court of Appeals

noted this Section, but disregarded

its meaning.

36.

where consistent with the provisions

of this Act nor to preclude creation

of additional communications satel-

lite systems."

The Court of Appeals concluded (with-

out supporting authority), that the FCC's

authority over domestic satellite communi-

cation systems flow from the 1934 Act.

How?!?

Satellite communication systems did

not exist - except in science fiction -

in 1934. How the 1934 Act gave jurisdic-

tion over domestic satellite facilities

that did not exist when the Act was

passed is not understood by the Owners.

That kind of superhuman Congressional

prescience is to be hoped for, but more

often, an all too human Congress seems

to have found it hard to deal even with

visible problems much less those not yet

envisioned.

The Court of Appeals fell into its

error because it mistakenly believed that

the general definition of a "radio", in

Chapter 5, controlled over the different

classification of satellite systems. To

reach this error, the court had to ignore

the specific definition contained in

37.

Chapter 6 of a “satellite communications

ground station” which is contained in

§ 702 subpart 2 of Chapter 6. The more

recent, and the more specific statute

controls over the general by the rules

of statutory construction. (See The

Louis Olsen [9th Cir. 1893] 57 Fed. 845.)

Congress has separated the wire from

satellite installations. That deliber-

ate Congressional separation deserves

recognition by the Courts.

CONCLUSION

The FCC violated its procedural non-

discretionary obligations under NEPA by

failing to prepare and study an EIS

before considering whether to issue GTE

a permit to build its earth satellite

station in Triunfo Pass.

Congress intended NEPA to be enforced.

District Courts throughout the country

have, for years, exercised their powers

to accomplish compliance with the Con-

gressional NEPA mandate.

38.

Mr. Mason and Mr. Turk went to their

District Court to correct the FCC failure

because of the environmental havoc up on

the Santa Monica Mountains.

The courts below, however, accepted

the self-disabling argument, that there

is only one court competent to restrain

FCC's lawless obstruction of justice.

That court requires a $375.00 airline

ticket, 2 days of travel, and the expense

of a Washington hotel room for each court

appearance. If there be a sincere desire

to lower the cost of litigation, so real

peopie can have remedies when they are

wronged, this FCC “boot strap" hurdle

and trap of one court with jurisdiction,

deserves rejection.

The nation needs thoughtful considera-

tion of environmental costs in approval

of federal actions. Availability of cost

affordable remedies to the citizenry will

discourage governmental law breakers.

No technical expertise is required to

know if the FCC must prepare an EIS

39.

before taking action. 23/ All district

courts possess that ability. They rou-

tinely exercise it with respect to all

other federal agencies.

Mr. Mason and Mr. Turk ask this Court

to inform the courts below that their

voluntary disablement and shift of work

load to the District of Columbia was

erroneous.

WHEREFORE, the Owners pray that a Writ

of Certiorari issue, so the salutory pur-

poses of NEPA may be more reliably

achieved.

Respectfully submitted,

JERROLD M. FADEM

MICHAEL M. BERGER

GREGORY M. BERGMAN

of FADEM, BERGER, McINTIRE

& NORTON

A Professional Corporation

By MICHAEL M. BERGER

Attorneys for Petitioners

13/ Acknowledging the rationale for cen-

~ tralization of decision making be

where there is expertise, recent Senate

investigations [4 Study on Federal Regula-

tion, "Delay in Regulatory Process", Senate

Committee on Government Affairs] raises a

question as to whether FCC expertise is

theoretical or real.

40.

APPENDIX

eae

FILED MAY 27 1977

EMIL E. MELFI, JR.

CLERK, U.S. COURT OF

APPEALS

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD L. MASON, and

A. MARCO TURK, Trustee NO. 76-1558

under the Will of HARRY TURK,

Deceased, MEMORANDUM

Plaintiffs-Appellants,

Vv.

UNITED STATES OF AMERICA;

FEDERAL COMMUNICATIONS COMMISSION;

GTE SATELLITE CORPORATION, ETC.;

GENERAL TELEPHONE AND ELECTRONICS

CORPORATION, and AMERICAN TELEPHONE

AND TELEGRAPH COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

Central District of California

Before: CARTER, GOODWIN, and SNEED,

Circuit Judges.

Plaintiffs appeal from the district

court's dismissal of their action, for

lack of subject matter jurisdiction.

Their complaint challenged the Federal

Communications Commission (FCC) approval

A-l.

of a domestic communications satellite

system facility on the ground that the

agency failed to comply with the National

Environmental Policy Act (NEPA).

The appeal presents the issue whether

the district court had jurisdiction to

hear a collateral challenge to NEPA com-

pliance by the FCC:despite the provisions

of 47 U.S.C. § 402 limiting attacks on

FCC final orders to the Courts of Appeals.

The district court held that the

plaintiffs had standing but that 47 U.S.C.

§ 402(b) limits challenges to FCC con-

struction permits to the Court of Appeals

for the District of Columbia Circuit.

The action was therefore dismissed for

lack of subject matter jurisdiction.

47 U.S.C. § 402 expressly limits pro-

ceedings to “enjoin, set aside, annul, or

suspend" an order under Chapter 5 of the

Communications Act of 1934 to the Courts

of Appeals. See also 28 U.S.C. § 2342.

Some orders may be reviewed only in the

D.C. Circuit. 47 U.S.C. §402(b). But

whether or not this is such an order,

§ 402 clearly ousts district courts of

jurisdiction over challenges to FCC

A=-2.

orders. Cf. United States v. SCRAP, 412

U.S. 669 (1973).

The plaintiffs argue that the ground

site construction permit was issued under

the Communications Satellite Act of 1962,

47 U.S.C. § 701 et seg., and that there-

fore the limitations of § 402 do not pre-

clude district court subject matter

jurisdiction over challenges to such

orders. They argue that the 1934 Act

could not cover domestic satellite systems

because they were unheard of in 1934. It

should be noted that the FCC believes its

authority over domestic satellite systems

flows from the 1934 Act. See 22 F.C.C.2d

86, 128-33.

Although the legislative history of

the Act is silent on the point, the lan-

guage of the 1934 Act covers the inter-

state or foreign "transmission of energy

by radio." 47 U.S.C. § 152(a). This

language is broad enough to encompass

domestic satellite communications systems.

Moreover, the 1962 Act created a global

communications system. It was thus

addressed to international, not domestic,

satellite communications. 47 U.S.C.

§ 701. The only reference in the 1962

A-3.

Act to domestic communications is the

declaration of policy that Congress did

not intend to preclude use of the global

system for domestic communications

services “where consistent with the pro-

visions of [the 1962 Act]."

We conclude that the FCC's authority

Over domestic satellite communications

systems flows from the 1934 Act and that

§ 402 requires review in the Courts of

Appeals, not in the district courts.

This view finds support in Network

Project v. F.C.C., 5ll F.2d 786 (D.C. Cir.

1975) where the D.C. Circuit reviewed,

under § 402(b), orders of the FCC author-

izing construction of domestic satellite

communications facilities.

Nothing in NEPA altered this juris-

dictional limitation. In fact, the

Supreme Court has noted that "NEPA was

not intended to repeal by implication

any other statute." United States v.

SCRAP, supra at 694. Thus, the exclusive

jurisdiction in the Courts of Appeals to

hear challenges to FCC orders remains.

NEPA did not "sub silentio revive judi-

cial power that had been explicitly

eliminated by Congress." United States

A-4.

v. SCRAP, supra at 696.

Nor did the Administrative Procedure

Act, 5 U.S.C.°§ 706 (APA) extend juris-

diction of the district courts to cases

not otherwise within their competence.

wvetty Oil Co. v. Ruckelshaus, 467 F.2d

349, 356 (3 Cir. 1972), cert. denied,

409 U.S. 1125 (1973). Plaintiffs were

entitled to appeal to the Court of Appeals

for the District of Columbia Circuit

within thirty days of the issuance of the

permit. 47 U.S.C. §§ 402(b) (5) and (6),

402(c). Their failure to utilize the

exclusive review procedures prescribed

by Congress should not now be excused by

allowing a collateral attack on the order

of the FCC in the district court simply

because they attack the order under NEPA

rather than under policies squarely

within FCC expertise.

In a similar context, albeit pre-NEPA,

this court said that "Congress intended

that all attacks on cease and desist

orders of the Commission, on whatever

ground, must be by appeal to the District

of Columbia Circuit under [47 U.S.C.]

§ 402(b)(7)." Valley Vision, Inc. v.

F.C.C., 399 F.2d 511, 514 (9 Cir. 1968).

A-5.

The same may be said of § 402(b) (6) pro-

viding for review, at the behest of

"aggrieved" persons, of FCC construction

permits. The statute provides a central-

ized and expedited review procedure and

prevents the FCC from being subjected to

different standards on review of its

construction permit decisions.

The judgment is AFFIRMED.

APPENDIX B

5 u.S.C. § 701. Application; definitions

(a) This chapter applies, according

to the provisions thereof, except to the

extent that --

(1) statutes preclude judicial

review; or

(2) agency action is committed to

agency discretion by law.

(b) For the purpose of this chapter --

(1) “agency” means each authority

of the Government of the United States

whether or not it is within or subject

to review by another agency, but does

not include --

(A) the Congress;

(B) the courts of the United

States;

territories or possessions of

the United States:

(D) the government of the Dis-

trict of Columbia;

(E) agencies composed of rep-

resentatives of the parties or

of representatives of organiza-

tions of the parties to the dis-

putes determined by them;

(F) courts martial and military

commissions;

(G) military authority exer-

cised in the field in time of

war or in occupied territory; or

(H) functions conferred by

sections 1738, 1739, 1743, and

B-l,

1744 of title 12; chapter 2 of

title 41; or sections 1622,

1844, 1891-1902, and former

section 1641(b) (2), of title 50,

appendix; and

(2)"Person", "rule", "order",

"license", “sanction", "relief", and

"agency action" have the meanings

given them by section 55l of this

title.

5 U.S.C. § 702. Right of review

A person suffering legal wrong because

of agency action, or adversely affected

or aggrieved by agency action within the

meaning of a relevant statute, is entitled

to judicial review thereof. An action in

a court of the United States seeking

relief other than money damages and stat-

ing a claim that an agency or an officer

or employee thereof acted or failed to

act in an official capacity or under

color of legal authority shall not be

dismissed nor relief therein be denied

on the ground that it is against the

United States or that the United States

is an indispensable party. The United

States may be named as a defendant in any

such action, and a judgment or decree may

be entered against the United States:

Provided, That any mandatory or injunc-

tive decree shall specify the Federal

officer or officers (by naue or by title),

and their successors in office, personally

responsible for compliance. Nothing

herein (1) affects other limitations on

judicial review or the power or duty of

B-2.

the court to dismiss any action or deny

relief on any other appropriate legal or

equitable ground; or (2) confers authority

to grant relief if any other statute that

grants consent to suit expressly or im-

pliedly forbids the relief which is sought.

5 U.S.C. § 703. Form and venue of

proceeding

The form of proceeding for judicial

review is the special statutory review

proceeding relevant to the subject matter

in a court specified by statute or, in

the absence or inadequacy thereof, any

applicable form of legal action, includ-

ing actions for declaratory judgments or

writs of prohibitory or mandatory injunc-

tion or habeas corpus, in a court of com-

petent jurisdiction. If no special statu-

tory review proceeding is applicable, the

action for judicial review may be brought

against the United States, the agency by

its official title, or the appropriate

officer. Except to the extent that prior,

adequate, and exclusive opportunity for

judicial review is provided by law, agency

action is subject to judicial review in

civil or criminal proceedings for judicial

enforcement.

5 u.S.C. § 704. Actions reviewable

Agency action made reviewable by

statute and final agency action for which

there is no other adequate remedy in a

court are subject to judicial review. A

B-3.

preliminary, procedural or intermediate

agency action or ruling not directly re-

viewable is subject to review on the re-

view of the final agency action. Except

as otherwise expressly required by

statute, agency action otherwise final

is final for the purposes of this sec-

tion whether or not there has been pre-

sented or determined an application for

a declaratory order, for any form of re-

consideration, or, unless the agency

otherwise requires by rule and provides

that the action meanwhile is inoperative,

for an appeal to superior agency author-

ity.

5 U.S.C. § 706. Scope of review

To the extent necessary to decision

and when presented, the reviewing court

shall decide all relevant questions of

law, interpret constitutional and statu-

tory provisions, and determine the mean-

ing or applicability of the terms of an

agency action. The reviewing court shall-

(1) compel agency action unlaw-

fully withheld or unreasonably

delayed; and

(2) hold unlawful and set aside

agency action, findings, and conclu-

sions found to be -

(A) arbitrary, capricious, an

abuse of discretion, or otherwise

not in accordance with law;

(B) contrary to constitutional

right, power, privilege, or

immunity;

B-4.

diction, authority, or limitations,

or short of statutory right;

(D) without observance of pro-

cedure required by law;

(E) unsupported by substantial

evidence in a case subject to sec-

‘sions 556 and 557 of this title or

otherwise reviewed on the record

of an agency hearing provided by

statute; or

(F) unwarranted by the facts to

the extent that the facts are sub-

ject to trial de novo by the review-

ing court.

In making the foregoing determinations,

the court shall review the whole record

or those parts of it cited by a party,

and due account shall be taken of the

rule of prejudicial error.

28 U.S.C. § 1331. Federal question;

amount in controversy;

costs

(a) The district courts shall have

original jurisdiction of all civil ac-

tions wherein the matter in controversy

exceeds the sum or value of $10,000, ex-

clusive of interest and costs, and arises

under the Constitution, laws, or treaties

of the United States except that no such

sum or value shall be required in any

such action brought against the United

States, any agency thereof, or any offi-

cer or employee thereof in his official

capacity.

B-5.

(b) Except when express provision

therefore is otherwise made in a statute

of the United States, where the plain-

tiff is finally adjudged to be entitled

to recover less than the sum or value of

$10,000, computed without regard to any

setoff or counterclaim to which the de-

fendant may be adjudged to be entitled,

and exclusive of interests and costs,

the district court may deny costs to the

plaintiff and in addition, may impose

costs on the plaintiff.

42 U.S.C. § 1857h-5. Administrative pro-

ceedings and judi-

cial review

(a) (1) In connection with any deter-

mination under section 1857c-5(f) of this

title or section 1857f-1(b) (5) of this

title, or for purposes of obtaining in-

formation under section 1857f-1(b) (4) or

1857£-6c(c) (3) of this title, the Admini-

strator may issue subpenas for the atten-

dance and testimony of witnesses and the

production of relevant papers, books,

and documents, and he may administer

oaths. Except for emission data, upon

a showing satisfactory to the Administra-

tor by such owner or operator that such

papers, books, documents, or information

or particular part thereof, if made pub-

lic, would divulge trade secrets or se-

cret processes of such owner or operator,

the Administrator shall consider such .

record, report, or information or particu-

lar portion thereof confidential in ac-

cordance with the purposes of section

1905 of Title 18, except that such paper,

B-6.

book, document, or information may be dis-

closed to other officers, employees, or

authorized representatives of the United

States concerned with carrying out this

chapter, to persons carrying out the

National Academy of Sciences' study and

investigation provided for in section

1857f-1l(c) of this title, or when rele-

vant in any proceeding under this chapter.

Witnesses summoned shall be paid the same

fees and mileage that are paid witnesses

in the courts of the United States. In

case of contumacy or refusal to obey a

subpena served upon any person under this

subparagraph, the district court of the

United States for any district in which

such person is found or resides or trans-

acts business, upon application by the

United States and after notice to such

person, shall have jurisdiction to issue

an order requiring such person to appear

and give testimony before the Administra-

tor to appear and produce papers, books,

and documents before the Administrator,

or both, and any failure to obey such

order of the court may be punished by

such court as a contempt thereof.

(b) (1) A petition for review of action

of the Administrator in promulgating any

national primary or secondary ambient air

quality standard, any emission standard

under section 1857c-7 of this title, any

standard of performance under section

1857c-6 of this title, any standard under

section 1857f-1 of this title (other than

a standard required to be prescribed under

section 1857f-l1(b) (1) of this title),

any determination under section 1857

f-l1(b) (5) of this title, any control or

prohibition under section 1857f-6c of this

title, or any standard under section 1857

f-9 of this title may be filed only in

the United States Court of Appeals for

the District of Columbia. A petition for

review of the Administrator's action in

approving or promulgating any implementa-

tion plan under section 1857c-5 of this

title or section 1857c-6(d) of this title,

or his action under section 1857c-10(c) (2)

(A), (B), or (C) of this title or under

regulations thereunder, may be filed only

in the United States Court of Appeals for

the appropriate circuit. Any such peti-

tion shall be filed within 30 days from

the date of such promulgation, approval,

or action, or after such date if such pe-

tition is based solely on grounds arising

after such 30th day.

(2) Action of the Administrator with

respect to which review could have been

obtained under paragraph (1) shall not be

subject to judicial review in civil or

criminal proceedings for enforcement.

review is sought of a determination under

this chapter required to be made on the

record after notice and opportunity for

hearing, if any party applies to the court

for leave to adduce additional evidence,

and shows to the satisfaction of the court

that such additional evidence is material

and that there were reasonable grounds

for the failure to adduce such evidence in

the proceeding before the Administrator,

the court may order such additional evi-

dence (and evidence in rebuttal thereof)

B-8.

to be taken before the Administrator, in

such manner and upon such terms and con-

ditions as to the court may deem proper.

The Administrator may modify his findings

as to the facts, or make new findings,

by reason of the additional evidence so

taken and he shall file such modified

or new findings, and his recommendation,

if any, for the modification or setting

aside of his original determination,

with the return of such additional evi-

dence.

42 U.S.C. § 4321. Congressional declara-

tion of purpose

The purposes of this chapter are: To

declare a national policy which will en-

courage productive and enjoyable harmony

between man and his environment; to pro-

mote efforts which will prevent or elimi-

nate damage to the environment and bios-

phere and stimulate the health and wel-

fare of man; to enrich the understanding

of the ecological systems and natural re-

sources important to the Nation; and to

establish a Council on Environmental

Quality.

42 U.S.C. § 4331 Congressional dec]ara-

tion of national envi-

ronmental policy

(b) In order to carry out the policy

set forth in this chapter, it is the con-

tinuing responsibility of the Federal

Government to use all practicable means,

consistent with other essential considera-

tions of national pelicy, to improve and

B-9.

The Congress authorizes and directs

that, to the fullest extent possible:

(1) the policies, regulations, and public

coordinate Federal plans, functions, pro-

grams, and resources to the end that the

Nation may -

(1) fulfill the responsibilities of

each generation as trustee of the en-

vironment for succeeding generations;

(2) assure for all Americans safe,

healthful, productive, and estheti-

cally and culturally pleasing surround-

ings;

(3) attain the widest range of bene-

ficial uses of the environment without

degradation, risk to health or safety,

or other undesirable and unintended

consequences;

(4) preserve important historic,

cultural, and natural aspects of our

national heritage, and maintain,

wherever possible, an environment

which supports diversity and variety

of individual choice;

(5) achieve a balance between popu-

lation and resource use which will per-

mit high standards of living and a

wide sharing of life's amenities; and

(6) enhance the quality of renew-

able resources and approach the maxi-

mum attainable recycling of depletable

resources.

42 U.S.C. § 4332(C) Cooperation of agen-

cies; reports; avail-

ability of information;

recommendations; in-

ternational and na-

tional coordination

of efforts

B-10.

laws of the United States shall be inter-

preted and administered in accordance

with the policies set forth in this chap-

ter, and (2) all agencies of the Federal

Government shall -

tion or report on proposals for legis-

lation and other major Federal actions

Significantly affecting the quality of

the human environment, a detailed state-

ment by the responsible official on -

‘ij) the environmental impact of

the proposed action,

(ii) any adverse environmental

effects which cannot be avoided

should the proposal be implemented,

(iii) alternatives to the pro-

posed action,

(iv) the relationship between

local short-term uses of man's en-

vironment and the maintenance and

enhancement of long-term produc-

tivity, and

(v) any irreversible and irre-

trievable commitments of resources

which would be involved in the pro-

posed action should it be imple-

mented.

Prior to making any detailed statement,

the responsible Federal official shall

consult with and obtain the comments of

any Federal agency which has jurisdic-

tion by law or special expertise with

respect to any environmental impact in-

volved. Copies of such statement and

B-1ll.

the comments and views of the appropriate

Federal,State, and local agencies, which

are authorized to develop and enforce

environmental standards, shall be made

available to the President, the Council

on Environmental Quality and to the

public as provided by section 552 of

Title 5, and shall accompany the proposal

through the existing agency review

processes;

47 U.S.C. § 151. Purposes of chapter;

Federal Communications

Commission created

For the purpose of regulating inter-

state and foreign commerce in communica-

tion by wire and radio so as to make

available, so far as possible, to all the

people of the United States a rapid, effi-

cient, Nation-wide, and world-wide wire

and radio communication service with ade-

quate facilities at reasonable charges,

for the purpose of the national defense,

for the purpose of promoting safety of

life and property through the use of wire

and radio communication, and for the pur-

pose of securing a more effective execu-

tion of this policy by centralizing auth-

ority heretofore granted by law to several

agencies and by granting additional auth-

ority with respect to interstate and for-

eign commerce in wire and radio communi-

cation, there is created a commission to

be known as the “Federal Communications

Commission", which shall be constituted

as hereinafter provided, and which shall

execute and enforce the provisions of

this chapter.

47 U.S.C. § 402(a) (b). Judicial review of

Commission's orders

and decisions -

Procedure

(a) Any proceeding to enjoin, set

aside, annul, or suspend any order of the

Commission under this chapter (except

those appealable under subsection (b) of

this section) shall be brought as provided

B-13.

by and in the manner prescribed in chap-

ter 19A of Title 5.

Right to appeal

(b) Appeals may be taken from deci-

sions and orders of the Commission to the

United States Court of Appeals for the

District of Columbia in any of the fol-

lowing cases:

(1) By any applicant for a con-

struction permit or station license,

whose application is denied by the

Commission.

(2) By any applicant for the

renewal or modification of any such

instrument of authorization whose

application is denied by the Commis-

sion.

(3) By any party to an application

for authority to transfer, assign, or

dispose of any such instrument of

authorization, or any rights there-

under, whose application is denied

by the Commission.

(4) By any applicant for the

permit required by section 325 of

this title whose application has

been denied by the Commission, or

by any permittee under said section

whose permit has been revoked by the

Commission.

(6) By any other person who is

aggrieved or whose interests are ad-

versely affected by any order of the

Commission granting or denying any

application described in paragraphs

(1)-(4) of this subsection.

(7) By any person upon whom an

order to cease and desist has been

served under section 312 of this

title.

(8) By any radio operator whose

license has been suspended by the

Commission.

47 U.S.C. § 701. Congressional declara-

tion of policy and

purpose

(a) The Congress declares that it is

the policy of the United States to esta-

blish, in conjunction and in cooperation

with other countries, as expeditiously as

practicable a commercial communications

satellite system, as part of an improved

global communications network, which will

be responsive to public needs and national

objectives, which will serve the communi-

cation needs of the United States and

other countries, and which will contribute

to world peace and understanding.

(b) The new and expanded telecommuni-

(5) By the holder of any construc-

tion permit or station license which

has been modified or revoked by the

Commission.

B-14.

cation services are to be made available

as promptly as possible and are to be

extended to provide global coverage at

the earliest practicable date. In effec-

tuating this program, care and attention

B-15.

will be directed toward providing such

services to economically less developed

countries and areas as well as those more

highly developed, toward efficient and

economical use of the electromagnetic

frequency spectrum, and toward the reflec-

tion of the benefits of this new techno-

logy in both quality of services and

charges for such services.

velopment and to provide for the widest

possible participation by private enter-

prise, United States participation in the

global system shall be in the form of a

private corporation, subject to appropri-

ate governmental regulation. It is the

intent of Congress that all authorized

users shall have nondiscriminatory access

to the system; that maximum competition

be maintained in the provision of equip-

ment and services utilized by the system;

that the corporation created under this

chapter be so organized and operated as

to maintain and strengthen competition

in the provision of communications

services to the public; and that the

activities of the corporation created

under this chapter and of the persons or

companies participating in the ownership

of the corporation shall be consistent

with the Federal antitrust laws.

(d) It is not the intent of Congress

by this chapter to preclude the use of

the communications satellite system for

domestic communication services where

consistent with the provisions of this

chapter nor to preclude the creation of

additional communications satellite sys-

tems, if required to meet unique govern-

mental needs or if otherwise required in

B-16.

the national interest. Pub.L. 87-624,

Title I, § 102, Aug. 31, 1962, 76 Stat.

419.

47 U.S.C. § 702. Definitions

As used in this chapter, and unless the

context otherwise requires --

(1) the term "communications satel-

lite system" refers to a system of com-

munications satellites in space whose

purpose is to relay telecommunication

information between satellite terminal

stations, together with such associated

equipment and facilities for tracking,

guidance, control, and command functions

as are not part of the generalized

launching, tracking, control, and command

facilities for all space purposes;

(2) the term “satellite terminal

station" refers to a complex of ‘communi-

cation equipment located on the earth's

surface, operationally connected with

one or more terrestrial communication

systems, and capable of transmitting

telecommunications to or receiving tele-

communications from a communications

satellite system.

(3) the term “communications satel-

lite" means an earth satellite which is

intentionally used to relay telecommuni-

cations information;

(4) the term "associated equipment

and facilities" refers to facilities

other than satellite terminal stations

B-17.

and communications satellites, to be con-

structed and operated for the primary

purpose of a communications satellite

system, whether for administration and

management, for research and development,

or for direct support of space operations;

(5) the term “research and develop-

ment" refers to the conception, design,

and first creation of experimental or

prototype operational devices for the

operation of a communications satel-

lite system, including the assembly of

separate components into a working whole,

as distinguished from the term "produc-

tion," which relates to the construction

of such devices to fixed specifications

compatible with repetitive duplication

for operational applications; and

(6) the term "telecommunication”

means any transmission, emissicn or

reception of signs, signals, writings,

images, and sounds or intelligence of

any nature by wire, radio, optical, or

other electromagnetic systems.

(7) the term “communications common

carrier" has the same meaning as the

term “common carrier" has when used in

the Communications Act of 1934, as

amended, and in addition includes, but

only for purposes of sections 733 and

734 of this title, any individual, part-

nership, association, joint-stock

company, trust, corporation, or other

entity which owns or controls directly

or indirectly, or is under direct or

indirect common control with, any such

carrier; and the term “authorized

carrier", except as otherwise provided

for purposes of section 734 of this title

B-18.

by section 734(b)(1) of this title, means

a communications common carrier which has

been authorized by the Federal Communica-

tions Commission under the Communications

Act of 1934, as amended, to provide ser-

vices by means of communications satel-

lites;

(8) the term "corporation" means the

corporation authorized by subchapter III

of this chapter.

(9) the term "Administration" means

the National Aeronautics and Space Admin-

istration; and

(10)the term "Commission" means the

Federal Communications Commission.

47 U.S.C. § 721(c) (7). Implementation of

policy

In order to achieve the objectives and to

Carry out the purposes of this chapter --

Commission, in its administration of the

Communications Act of 1934, as amended,

and as supplemented by this chapter,

shall--

(7) grant appropriate authorizations

for the construction and operation of

each satellite terminal station, either

to the corporation or to one or more

authorized carriers or to the corporation

and one or more such carriers jointly, as

will best serve the public interest, con-

venience, and necessity. In determining

the public interest, convenience, and

necessity the Commission shall authorize

B-19.

the construction and operation of such

stations by communications common carriers

or the corporation, without preference to

either;

47 U.S.C. § 741. Common carrier status

of corporation; laws

applicable to corpora-

tion; common carrier

activity; conflict of

laws

The corporation shall be deemed to be

a common carrier within the meaning of

section 3(h) of the Communications Act

of 1934, as amended, and as such shall

be fully subject to the provisions of

title II and title III of that Act. The

provision of satellite terminal station

facilities by one communication common

carrier to one or more other communica-

tions common carriers shall be deemed to

be a common carrier activity fully sub-

ject to the Communications Act. When-

ever the application of the provisions of

this chapter shall be inconsistent with

the application of the provisions of the

Communications Act, the provisions of

this chapter shall govern. Pub.L. 87-624,

Title IV, § 401, Aug. 31, 1962, 76 Stat.

426.

APPENDIX are

FILED NOV 21 1975

CLERK, U.S. DISTRICT

COURT

CENTRAL DISTRICT OF

CALIFORNIA

ENTERED NOV 25 1975

CLERK U.S. DISTRICT

COURT

CENTRAL DISTRICT OF

CALIFORNIA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

RICHARD L. MASON, NO. CV 75-2260-IH

et al, JUDGMENT DISMISSING

Plaintiffs, ACTION FOR LACK OF

SUBJECT MATTER

JURISDICTION UNDER

UNITED STATES OF RULE 12(b) (1)

AMERICA, et al,

Defendants.

Vv.

This Order is made pursuant to two

separate Defendants’ motions which were

originally heard and argued September 22,

1975, and further briefed thereafter and

further heard and argued November 17,

1975. Said motions are motion of federal

Defendants, i.e., United States of

America and Federal Communications

Commission, filed September 5, 1975, to

dismiss the action, and motion of

C-1

Defendants GTE Satellite Corporation and .

General Telephone and Electronics

Corporation for judgment on the plead-

ings filed September 5, 1975 (which

motion was treated by the Court as a

motion to dismiss the action for lack of

standing and for lack of subject matter

jurisdiction). The remaining Defendant,

American Telephone and Telegraph Company,

jOined in both said motions and was

deemed to have the benefit thereof.

Pursuant to a minute order denying

said motions on ground of lack of stand-

ing but granting said motions for lack

of subject matter jurisdiction, and for

the reasons enunciated in a transcript

filed contemporaneously herewith,

“IT IS ORDERED AS FOLLOWS:

1. ~Plaintiffs shall take nothing by

their action. Judgment is entered

against Plaintiffs and in favor of each

Defendant with costs of $ °

2. The Clerk shall transmit a copy

of this Judgment together with a copy

of the said minute order to counsel for

all parties.

DATED:

November 20, 1975.

/s/ IRVING HILL, Judge

United States District Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.