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CNSP, Inc. v. United States Forest Service

United States District Court, D. New Mexico

September 6, 2018

CNSP, INC., Plaintiff,
v.
UNITED STATES FOREST SERVICE; THOMAS TIDWELL; JAMES MELONAS, Defendants.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Federal Defendants' Motion to Dismiss and Memorandum in Support (Doc. 14), filed December 22, 2017. In this Motion, Defendants seek dismissal, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, of Plaintiff's Complaint for Declaratory Judgment and Other Relief (Doc. 1), filed August 9, 2017. Also before the Court are Plaintiff's Response to Federal Defendants' Motion to Dismiss (Doc. 17), filed January 11, 2018; and Federal Defendants' Reply in Support of Motion to Dismiss (Doc. 20), filed February 1, 2018. The undersigned, [1] having considered the parties' submissions, the record, and the relevant law, finds that Federal Defendants' Motion to Dismiss and Memorandum in Support is well taken, and recommends that it be GRANTED.

         I. Background

         Plaintiff CNSP, Inc. is a New Mexico Corporation and a State Regulated Competitive Local Exchange Carrier. (Doc. 1 at 3.) Defendant, the United States Forest Service is a federal agency within the United States Department of Agriculture charged with managing the National Forest System lands. (Doc. 1 at 2.) Defendant Thomas Tidwell, sued in his official capacity, is Chief of the United States Forest Service; and Defendant James Melonas, also sued in his official capacity, is the Santa Fe National Forest Supervisor. (Doc. 1 at 3.)

         Tesuque Peak is a mountain in the Santa Fe National Forest. (Doc. 1-1 at 2.) Tesuque Radio Company (TRC) has telecommunications facilities on Tesuque Peak in an area called the “Tesuque Peak Communications Site.” (Doc. 1 at 2; Doc. 1-1 at 2.) Plaintiff has telecommunications equipment on the Tesuque Peak Communications site pursuant to a lease agreement with TRC. (Doc. 1 at 2.) On June 15, 2017, after TRC increased its leasing fees, Plaintiff, through its president, Albert Catanach, requested authorization from the Forest Service to place new telecommunications facilities, including a 30 foot mini tower and telecommunications hut, on Tesuque Peak. (Doc. 1 at 2; Doc. 1-1 at 2.) In a July 7, 2017, letter signed by Forest Supervisor James Melonas, the Forest Service denied Plaintiff's request. (Doc. 1-1 at 2.)

         In his July 7, 2017, letter, Mr. Melonas advised Mr. Catanach that Plaintiff's request was being denied “[b]ecause it does not meet requirements to maximize joint use of existing electronic site facilities and creation of a new communications site on the forest is not authorized in the current Forest Plan.” (Doc. 1-1 at 2.) In substantive part, Mr. Melonas continued:

Tesuque Radio Company (TRC) is the only facility owner/manager at the Tesuque Peak Communications Site authorized to lease to commercial entities such as your company. This right to own and manage the exclusive commercial facility on the mountain was competed for through a Prospectus process in 1984. TRC acquired the facilities and associated lease in 1991. The site management plan and TRC's lease require that the leaseholder co-locate and house other tenants within their authorized infrastructure. TRC's infrastructure would have to have reached full capacity before any new/additional infrastructure could be considered. These requirements are intended to prevent a proliferation of towers and structures, thereby protecting natural resource values such as Visual Quality Objectives for the mountain and adjoining Wilderness Area.
New infrastructure would require formal establishment of a new communications site, situated some distance from the existing site to minimize interference, competition, and visual quality issues. Because a new site is not authorized in the current Forest Plan this would require new environmental analysis and a Forest Plan amendment to accomplish. The processing costs associated with this analysis are borne by the proponent. Just as TRC's predecessor did, interested parties would have to compete for the right to develop new/expanded facilities. The original proponent is not guaranteed to benefit from this competition.
Denial of unsolicited proposals is not subject to administrative appeal under 36 CFR part 215 or part 251, subpart C., and does not constitute a proposed action pursuant to 36 CFR 251.54(e)(6) and the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321-4347).

(Doc. 1-1 at 2.)

         Based on the Forest Service's denial of its request to place telecommunications facilities on Tesuque Peak, Plaintiff filed the present lawsuit. (Doc. 1.) Plaintiff raises three claims. In its “First Cause of Action” Plaintiff claims that by denying its request, Defendants violated 47 U.S.C. Section 253, a provision of the Telecommunications Act that bars states and localities from effectively prohibiting any entity from providing any interstate or intrastate telecommunications service. (Doc. 1 at 6-8.) In its “Second Cause of Action” Plaintiff claims in denying its request, Defendants violated 47 U.S.C. Section 332(c)(7)(B), a provision of the Telecommunications Act that bars state and local governments or instrumentalities thereof from unreasonably discriminating among providers of functionally equivalent services; and from prohibiting, or effectively prohibiting the provision of personal wireless services. (Doc. 1 at 8-11.) In its “Third Cause of Action” Plaintiff claims that in denying its request without first requiring Plaintiff to complete Standard Form 299 as part of Plaintiff's application, Defendants violated 47 U.S.C. Section 1455(b), a provision of the Spectrum Act pursuant to which federal agencies (such as the Forest Service) may grant an easement, right-of-way, or a lease to install, construct, modify or maintain a communications facility installation, and requiring the agency to develop and use a standard form for applications therefor. (Doc. 1 at 11-13; see Doc. 20 at 12.)

         Defendants argue that Plaintiff's claims should be dismissed for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because Plaintiff's First and Second Causes of Action do not arise under federal law, and because Plaintiff lacks standing to pursue its Third Cause of Action. (Doc. 14 at 11-16, 21-25) Defendants argue, in the alternative, that each of Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. (Doc. 14 at 13-21.) Also in the alternative, Defendants argue that the procedures and remedies sought by Plaintiff-namely, a jury trial, compensatory damages, and an order enjoining Defendants from prohibiting its access to the Tesuque Peak Communications site and an order granting Plaintiff's request to construct a telecommunications facility on that site-are not available as a matter of law and, therefore, if Plaintiff's Causes of Action are not dismissed, the relief requested by Plaintiff should be denied. (Doc. 14 at 25-29.)

         For the reasons that follow, I recommend that the Presiding Judge grant Defendants' Motion to Dismiss on the ground that the Court lacks subject-matter jurisdiction over Plaintiff's claims. Because I recommend that this matter be dismissed for lack of subject-matter jurisdiction, I do not address Defendant's alternative arguments.

         II. Discussion

         A. Law Governing Subject Matter Jurisdiction

         It is the Plaintiff's burden to establish subject-matter jurisdiction. Fed.R.Civ.P. 8(a)(1); Blume v. Los Angeles Superior Courts, 731 Fed.Appx. 829, 829 (10th Cir. 2018). Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to defend against any claim on the ground that the Court does not have subject-matter jurisdiction over a claim. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). Issues relating to the Court's subject matter jurisdiction are of primary concern, and should be resolved before the Court considers the merits of a claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (emphasizing that the Court cannot proceed at all in any cause without jurisdiction, which issue must be settled before the merits of an action are addressed).

         “[A] federal court may adjudicate a case only if there is both constitutional and statutory authority for federal jurisdiction.” Erwin Chemerinsky, Federal Jurisdiction § 5.1 (Sixth ed. 2012). “Constitutional authority derives from Article III of the Constitution, which provides for federal judicial power over nine categories of ‘cases' and ‘controversies'” including, of relevance here, the power to decide all cases arising under the laws of the United States. Id. Statutory authority for federal jurisdiction derives from Congress, which is vested with the power to determine the jurisdiction of federal district courts. Id. “Many federal statutes concerning specific topics contain provisions allowing federal court subject matter jurisdiction over matters arising under them.” Id. Others are quite broad, including for example and of particular relevance here, 28 U.S.C. Section 1331, in which Congress granted federal district courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” Chemerinsky, supra, §5.1.

         Defendants' Motion raises issues implicating both Constitutional and statutory jurisdiction over this matter. Because Plaintiff's subject-matter jurisdiction argument presents a “facial attack, ” the Court accepts the allegations in Plaintiff's Complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (A facial ...


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