BY BRITTNEY BENNETT
WASHINGTON, D.C. – In a win for the United Keetoowah Band of Cherokee Indians, the U.S. Court of Appeals for the District of Columbia ruled August 9 that the Federal Communications Commission must uphold tribal consultation requirements for small 5G cell tower deployments.
“Not only is this a victory for our tribe, but it’s a victory for all tribes and American Indians across the nation,” said UKB Chief Joe Bunch. “For us, it’s a tremendous ruling. It ensures that our ancestors remains will be kept and the environment will remain intact as well. We will continue to fight for ancestors and our historical remains and sites to move our tribe forward.”
UKB, along with more than 20 other joining tribes, gave oral arguments against the FCC on March 15, 2019 in Washington D.C. after officials say the agency attempted to “exclude” tribal consultation requirements on its 5G projects.
The case specifically asked the courts to halt the FCC’s Wireless Infrastructure Streamlining Order, which was passed with a 3-2 FCC vote in September 2018.
In the order, the FCC ruled it could deploy thousands of cellular wireless antennae for 5G capabilities across the U.S. without meeting tribal consultation review requirements because the projects were not defined as “undertakings” under the National Historic Preservation Act or “major Federal actions” under the National Environmental Policy Act.
NHPA was enacted in 1966 to preserve historical and archaeological sites in the U.S. if they were located in construction sites. NEPA was enacted in 1970 and requires federal agencies to determine any environmental effects that could happen as a result of a proposed project.
The FCC argued these types of reviews by tribes, commonly known as Section 106 reviews, “would impede the advance of 5G networks and that its costs outweighed any benefits.”
It also justified bypassing NHPA and NEPA regulations because 5G antennae are less than 200 feet in height, won’t be located near an airport and their construction is not subject to the agency’s “limited approval authority.” The agency cited that the “small” nature of the projects “appears to render them inherently unlikely to trigger environmental and historic preservation concerns.”
The appeals court did not agree, calling the deregulation “arbitrary and capricious” because it “did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible.” Instead, the FCC “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.”
The opinion states that “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.”
However the ruling does prohibit tribes from asking for upfront fees before initiating the Section 106 process, which FCC entities had been doing before the ruling. Instead, fees charged by a tribe must be made after the process begins.
The ruling also shortens the time that tribes have to respond to Tower Construction Notification System notifications.
Regardless, Scott Sypolt with Akerman LLP, who argued on behalf of UKB, called the case a “critical win.”
“As the lead litigating attorney in this case, it was a complex battle but a critical win for all of Indian Country,” he said. “It is critical to all of Indian Country because this decision unequivocally decides that federal agencies must consult with Indian Tribes on a sovereign nation to sovereign nation platform. This gives tribes leverage regarding their notification rights and tribal participation as it relates to the FCC, but the decision has a far-reaching impact on the future relations tribes will have with other federal agencies as well.”
It is unclear as of press time if the ruling was retroactive in respect to any consulting fees for projects that had yet to be paid to tribes before the case made its way into court.
“When we consulted we sent a crew of qualified people out, so we were earning our money. It made a tremendous economic impact on our tribe,” said UKB Assistant Chief Jamie Thompson, who has also been heavily involved in the case. “Therefore, I hope that these inspections can be retroactive because we have documented every one that came through since this case started and since our funding was shut off. We’ve completed them, we just haven’t been paid for them.”
Unpaid consulting fees are also a priority for Bunch.
“Certainly, that’s early on in the game and we’re just reviewing the opinion. What we hope is that this means everything will be retroactive, as we’ve been making consulting reviews, we’ve been billing and charging so that we can gain that resource to continue to do this program for our tribe,” he said.
Bunch also extended his gratitude to the UKB Tribal Council for their support throughout the process.
“I thank the Council for their unwavering fortitude and for their approval to take this measure on. We are always stronger together.”
To view the full opinion, visit https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf.