Rimon’s Stephen Diaz Gavin Argues in DC Circuit Court of Appeals in the United Keetoowah, et al. vs. F.C.C. Case

Rimon partner, Stephen Diaz Gavin, argued on behalf of Native American tribes against the federal government in the US Court of Appeals for the DC Circuit.

Stephen represented a consortium of Indian Tribes, including the Crow Creek Tribe and the Omaha Tribe of Nebraska, arguing that the court should overturn rules adopted by the Federal Communications Commission in March 2018, which pose a grave threat to Tribes’ ability to protect irreplaceable elements of Tribal culture, sacred sites, and ceremonies that are essential to Tribes’ cultural survival.

As noted in the Law360 article referenced below, the Tribes have argued that under the National Historic Preservation Act (NHPA), geographic area licenses issued by the FCC for cellular service constitute “undertakings.” This requires the FCC to consider the impact of construction of cellular antenna sites on sites of cultural importance to the Tribes. By eliminating so-called “small cell wireless” facilities from NHPA review, the new rules will permit tens of thousands of antenna structures as tall as 50 feet – the equivalent of a 5-story building – to be erected on ancestral Tribal lands without even giving Tribes notice of the new construction.  As Mr. Gavin noted before the court, the rules ignore the federal responsibility to ensure the antenna towers do not lead to harmful impacts.

In their briefs, the Tribes noted that the FCC’s decision raised important questions of administrative law, arguing that the FCC is entitled to no deference under the longstanding “Chevron doctrine” because the agency that Congress directed to administer the NHPA is the Advisory Council for Historic Preservation, not the FCC.

Following oral argument, the case is now submitted and under consideration by the D.C Circuit.

Click here to view the article

You can listen to the argument here

About Stephen: 
Stephen Díaz Gavin combines legal acumen and litigation experience with public policy advocacy skills to help a diverse range of clients, both international and domestic, in dealing with legal and policy issues facing them in the United States and overseas.
Stephen specializes in international litigation and arbitration, including sovereign representation. Read his full biography here