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 Title In RE Tennant

 Argued January 9, 2004                 Decided February 24, 2004

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      United States Court of Appeals

                 FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2004                  Decided February 24, 2004

                              No. 02-1060

                     IN RE:  JAMES  M. TENNANT,

                               PETITIONER

                On Petition for Writ of Mandamus

  Cary Berkeley Kaye, Supervising Attorney, argued the

cause as amicus curiae in favor of petitioner's position.  With

her on the briefs was Steven H. Goldblatt, Director of the

Appellate Litigation Program, Georgetown University Law

Center, appointed by the court.

  James M. Tennant,  pro se, Georgetown, S.C., was on the

briefs for petitioner.

  John E. Ingle, Deputy Associate General Counsel, Federal

Communications Commission, argued the cause for respon-

dent.   With him on the brief were Andrew C. Mergen and

Susan L. Pacholski, Attorneys, U.S. Department of Justice,

John A. Rogovin, General Counsel, Federal Communications

Commission, and Lisa E. Boehley, Counsel.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

 

                                2

  Stanley M. Gorinson argued the cause for respondents

Cingular Wireless LLC and Crown Castle International Corp.

With him on the brief were Stephen E. Baskin,  Judith L.

Harris, and Robert H. Jackson.

  James Emory Smith, Jr., Assistant Deputy Attorney Gen-

eral, Attorney General's Office of State of South Carolina,

was on the brief for respondent Rodger Stroup, State Histor-

ic Preservation Officer.

  Before:  SENTELLE, TATEL, and ROBERTS, Circuit Judges.

  Opinion for the Court filed by Circuit Judge ROBERTS.

  ROBERTS,  Circuit Judge:  James M. Tennant petitions this

court for a writ of mandamus, as well as declaratory and

injunctive relief, relating to an alleged breakdown of historic-

preservation procedures in the placement of a wireless com-

munications tower on land listed in the National Register of

Historic Places.  We find that we lack jurisdiction to grant

the requested relief, and so dismiss the petition.

                                I.

  The chain of events that led to this litigation began on June

23, 1995, when the Federal Communications Commission

granted BellSouth Corporation a license to provide cellular

telephone service in a geographic area that includes George-

town, South Carolina.  See In re Applications for A and B

Block Broadband Licenses, 11 F.C.C.R. 3229 (1995).          To

make use of its license, BellSouth built a network of commu-

nications towers in the area.  One of the towers was built in

1996 inside the boundaries of Hobcaw Barony, a tract of land

in Georgetown that had been included on the National Regis-

ter of Historic Places since 1994.

  Under Section 106 of the National Historic Preservation

Act, codified at 16 U.S.C. § 470f, federal agencies are obliged

to evaluate the effects of their activities on historic sites:

     The head of any TTT Federal department or independent

     agency having authority to license any undertaking shall,

     prior to the approval of the expenditure of any Federal

 

                                 3

     funds on the undertaking or prior to the issuance of any

     license, TTT take into account the effect of the undertak-

     ing on any district, site, building, structure, or object that

     is included in or eligible for inclusion in the National

     Register.

Regulations in place when the tower was built permitted a

federal agency to ``use the services of grantees, applicants,

consultants, or designees'' to carry out the agency's duties

under Section 106, but the agency remained ultimately re-

sponsible for compliance with the statute.              36 C.F.R.

§ 800.1(c)(1)(i) (1995).   During the Section 106 process, an

agency (or its designee) consults with a State Historic Preser-

vation Officer (SHPO) to determine whether a proposed

undertaking     will   affect   a   registered    site.    See   id.

§ 800.1(c)(1)(ii).1

   Alongside these regulations implementing the NHPA was a

set of FCC regulations promulgated under the National

Environmental Policy Act.        Under the NEPA regulations,

licensees planning to build facilities for which no separate

pre-construction authorization was required from the FCC

were charged with ``initially ascertain ing  whether the pro-

posed facility may have a significant environmental impact.''

47 C.F.R. § 1.1312(a) (1995).        A significant environmental

impact was defined to include an effect on a site listed in the

National Register.  Id. § 1.1307(a)(4).  If such an effect was

possible, the license applicant was required to prepare an

environmental assessment and file it with the FCC for a

determination of whether the proposed facility would in fact

have that effect.  Id. §§ 1.1308(a)­(b), 1.1312(b).  If the FCC

  1  Respondents Cingular Wireless LLC and Crown Castle Inter-

national Corporation argue that the construction of the tower was

not an ``undertaking'' under the NHPA because the tower was

neither federally licensed (the FCC does not issue site-specific

construction permits) nor federally funded.  Final Opp. of Cingular

and Crown Castle at 14­17 (citing National Mining Ass'n v.

Fowler, 324 F.3d 752, 759­60 (D.C. Cir. 2003)).     In light of our

disposition of this case on jurisdictional grounds, we do not reach

this argument and express no opinion on it.

 

                                  4

reached a finding of no significant impact, no further exami-

nation    of   environmental      effects   was   required.    Id.

§ 1.1308(d).

   BellSouth contacted the SHPO in South Carolina before

building the Hobcaw tower, stating that `` n o known National

Register of Historic Places (NRHP)-eligible or -listed sites

are located within'' the proposed tower site.        Letter from

R.S. Webb & Assocs. to Nancy Brock, South Carolina State

Historic Preservation Office (Sept. 3, 1996).  The letter pro-

vided a specific description of the location of the proposed

tower, stating that the site was ``inside the northern boundary

fence of the Hobcaw Barony Complex.''            Id.  Apparently

overlooking this clue that a protected site could be affected,

the SHPO replied to BellSouth that the Hobcaw tower

``should have no effect on any properties included in or

eligible for inclusion in'' the National Register.  Letter from

Brock to Sheila Burns, R.S. Webb & Assocs. (Sept. 10, 1996).

It appears that no environmental assessment was prepared --

under the applicable NEPA regulations, the requirement for

one would only have been triggered by a possible effect on a

registered site2 -- and the FCC thus had no occasion to

consider the issue of significant impact through its NEPA

process.  As for the NHPA Section 106 process, it seems that

the FCC itself did not make a formal evaluation of the effects

of the Hobcaw tower, apparently relying on the applicant:

BellSouth's license was issued before the tower sites were

chosen, and there is no evidence that the FCC was involved in

evaluating environmental considerations after BellSouth se-

lected the Hobcaw site.

   Tennant, a resident of Georgetown, noticed the 185­foot

tower and raised his concerns about it with BellSouth shortly

after it was built.     See Pet. ¶ 24.    He then wrote to the

federal Advisory Council on Historic Preservation to call its

attention to ``a failure of the Section 106 process'' involving

   2  The regulations expressly invite licensees such as BellSouth

to rely on the determinations of SHPOs in establishing whether an

environmental assessment is required for a proposed facility.  See

47 C.F.R. §  1.1307(a)(4) note (1995).

 

                                5

the construction of the tower inside Hobcaw Barony.  Letter

from Tennant to Don L. Klima, ACHP (Dec. 1, 1998), at 1

(December 1998 Letter).  Tennant's letter ended by asking

the ACHP and other individuals who were copied on the

letter -- including the then-Chairman of the FCC -- to

``collectively ensure that the required Section 106 review

process is triggered when required by law.''   Id. at 3.

   In a second letter to the ACHP in February 1999, Tennant

formally asked the Council to examine any FCC findings

under Section 106 in relation to the Hobcaw tower.  Letter

from Tennant to Martha Catlin, ACHP (Feb. 11, 1999).  The

Council promptly contacted the FCC and asked for informa-

tion on how the Section 106 process was conducted when the

Hobcaw tower was proposed.        Letter from Klima to Cathy

Seidel, FCC (Feb. 19, 1999).  Hearing nothing from the FCC,

the ACHP renewed its request for information in July 1999,

and the FCC finally responded in January 2000.  Pointing to

its NEPA rules, the Commission said that it ``delegate s  to

TTTlicense applicants the responsibility of gathering the infor-

mation necessary to determine potential environmental ef-

fects of proposed TTT towers.''     Letter from Rose Crellin,

FCC, to Klima (Jan. 3, 2000), at 1.  BellSouth did not file an

environmental assessment, the FCC explained, because ``nei-

ther the SHPO nor the  licensee identified any significant

effects on historic properties.''   Id.  The FCC had ``relied

upon these determinations.''  Id.  In a reply to the FCC, the

ACHP asked for the environmental impact documentation

that BellSouth had assembled.  Letter from Klima to Seidel

(Feb. 4, 2000).

   Two years later, the ACHP still had not completed its

inquiry into the FCC's compliance with Section 106 in the

matter of BellSouth's Hobcaw tower, and Tennant had

learned that the South Carolina SHPO -- apparently relying

on its earlier determination regarding the BellSouth tower --

had approved the construction of a second tower to be built

alongside the existing one, also inside Hobcaw Barony.  See

Letter from Brock to Sarah Fick, Historic Preservation Con-

sultants (Jan. 29, 2001) (``It does not appear TTT that Hobcaw

Barony or any properties listed on or determined eligible for

 

                                 6

inclusion in the National Register of Historic Places will be

adversely affected by the second tower .'').

   Tennant turned to this court for relief, filing a pro se

petition for a writ of mandamus and declaratory and injunc-

tive relief on February 12, 2002.  He named several parties

as respondents: the FCC, the ACHP, Cingular Wireless

(which had acquired the tower from BellSouth), Dr. Rodger

Stroup (the South Carolina SHPO), and Crown Castle (a

Cingular contractor that manages the tower).  He requested

a writ of mandamus to require the FCC and the ACHP to

follow the required Section 106 procedures, a declaration that

the Hobcaw tower adversely affects Hobcaw Barony, a decla-

ration voiding the SHPO's prior determinations, and several

injunctions -- to prevent Cingular and Crown Castle from

collocating additional wireless carriers on the tower, to enjoin

the FCC from permitting or licensing additional facilities in

the Hobcaw Barony area, and to enjoin the SHPO from

``assuming the duties of the FCC in regard to Section 106

compliance.''   Pet. ¶ 57.

   There have been a few further developments since Tennant

filed his petition.  In August 2003, the Attorney General of

South Carolina informed Tennant and the other parties that

the SHPO's September 1996 no-effect finding was ``incorrect''

as to the Hobcaw tower.         Letter from J. Emory Smith,

Assistant Deputy Att'y Gen., to Stanley M. Gorinson, Kilpa-

trick Stockton LLP, et al. (Aug. 28, 2003), at 2.         And on

September 3, 2003, the FCC decided to initiate a Section 106

review for both the existing tower and the proposed second

tower.  Letter from Jeffrey Steinberg, FCC, to James Bugel,

Cingular Interactive, et al. (Sept. 3, 2003), at 1.

                                II.

                                 A.

   ``Jurisdiction is, of necessity, the first issue for an Article

III court.''  Tuck v. Pan Am. Health Org., 668 F.2d 547, 549

(D.C. Cir. 1981).  ``The requirement that jurisdiction be es-

tablished as a threshold matter `spring s  from the nature and

 

                                  7

limits of the judicial power of the United States' and is

`inflexible and without exception.' '' Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 94­95 (1998) (quoting Mansfield, C.

& L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)).  Tennant's

grievance is directed largely at the FCC, and this court has

authority to review certain orders of the Commission.  See 47

U.S.C. § 402(a), (b)(6); 28 U.S.C. § 2342(1).       But because

Tennant's whole point is that the FCC has not taken action

he believes it should have, there was no order from which he

could have taken an appeal.  Precedent has dealt with such a

situation, recognizing that the All Writs Act ``empowers a

federal court to issue writs of mandamus necessary to protect

its  prospective jurisdiction.''  Telecommunications Research

& Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir. 1984)

(emphasis added) (TRAC).

  The All Writs Act provides that the federal courts ``may

issue all writs necessary or appropriate in aid of their respec-

tive jurisdictions and agreeable to the usages and principles

of law.'' 28 U.S.C. § 1651(a).       As this statutory language

makes clear, the Act is not itself a grant of jurisdiction.

``While the All Writs Act authorizes employment of extraordi-

nary writs, it confines the authority to the issuance of process

`in aid of' the issuing court's jurisdiction.TTT   T he Act does

not enlarge that jurisdiction.''   Clinton v. Goldsmith, 526 U.S.

529, 534­35 (1999).  In TRAC, the petitioner sought a writ of

mandamus because of a lengthy delay in an FCC inquiry

responding to the petitioner's complaint that a telephone

provider had overcharged its ratepayers.  This court would

have had jurisdiction, under 47 U.S.C. § 402(a) (1982), to

review any final order arising from the FCC inquiry, and we

held that we therefore had jurisdiction to review the petition-

er's claim of unreasonable delay ``in order to protect our

future jurisdiction.''  TRAC, 750 F.2d at 76.  TRAC cited and

built on a body of Supreme Court precedent recognizing that

authority under the All Writs Act ``extends to those cases

which are within a court's  appellate jurisdiction although no

appeal has been perfected.''       FTC v. Dean Foods Co., 384

U.S. 597, 603­04 (1966) (quoting Roche v. Evaporated Milk

Ass'n, 319 U.S. 21, 25 (1943));  see also McClellan v. Carland,

 

                                8

217 U.S. 268, 280 (1910) (`` W here a case is within the

appellate jurisdiction of the higher court a writ of mandamus

may issue in aid of the appellate jurisdiction which might

otherwise be defeated by the unauthorized action of the court

below.'').

  A common element in TRAC and the Supreme Court

precedent on which it relied was that the party seeking relief

in the appellate court under the All Writs Act had implicated

the prospective jurisdiction of that court by instituting a

proceeding in a lower court or agency subject to the jurisdic-

tion of the appellate court.  TRAC involved an FCC inquiry

responsive to a Petition for Enforcement of Accounting that

had been filed by the party seeking mandamus.  750 F.2d at

73.  In Dean Foods, the FTC had initiated a proceeding to

determine whether a proposed merger would violate federal

antitrust law, and asked the appellate court -- which would

have jurisdiction to review the FTC's final action in the

matter -- to enjoin the merger temporarily.  384 U.S. at 604.

The petitioners in Roche sought a writ of mandamus from the

appeals court after a district judge ruled against them on

their pleas, see 319 U.S. at 23­24, and the McClellan petition-

ers requested that the writ issue from the appeals court to a

district judge who had ordered a stay of the pending lower

court proceedings, see 217 U.S. at 276.

  Tennant, however, did not seek a remedy from the FCC or

initiate any proceeding in that agency before resorting to this

court.  As the FCC points out in its brief, there are several

avenues by which Tennant could have filed, and may still be

able to file, a petition with the Commission.  FCC Br. at 30

n.108 (citing 47 C.F.R. § 1.2 (motion for declaratory ruling);

id. § 1.41 (informal request for FCC action); id. § 1.401

(petition for rulemaking); id. § 1.1307(c) (petition alleging

that action otherwise categorically excluded from environ-

mental review will have significant environmental effect)).

The closest thing in the record to a request for FCC action is

Tennant's December 1998 letter to the ACHP, a copy of

which was sent to the chairman of the FCC.  Tennant and

the amicus curiae we appointed to present arguments in his

favor argue that copying the FCC on the letter qualifies as an

 

                                 9

informal request for FCC action.       See Pet. Br. at 12, 13;

Amicus Reply Br. at 26­27;  Pet. Reply Br. at 14­15.

  Under FCC regulations, an informal request must ``set

forth clearly and concisely the facts relied upon, the relief

sought, the statutory and/or regulatory provisions (if any)

pursuant to which the request is filed, TTT and the interest of

the person submitting the request.''  47 C.F.R. § 1.41.  Ten-

nant's letter to the ACHP was at best ambiguous concerning

any request for relief from the FCC: he asked the ACHP

official ``and the individuals listed below'' -- including the

FCC chairman, the director of the National Park Service,

BellSouth's environmental consultant, and a reporter from

the  Washington Post -- to ``collectively ensure that the

required Section 106 review process is triggered when re-

quired by law.''  December 1998 Letter at 3.  If this was a

request that the FCC reopen the Hobcaw tower matter, it

was an extremely oblique one, especially since several of the

other recipients of the letter had no power to take such

action.    The language is more fairly read as a plea for

prospective relief, for more faithful adherence to the Section

106 process in the future.  The letter's concluding statement

that Tennant ``hope d  to see BellSouth remove or mitigate

the adverse effect of their existing tower at the Hobcaw

Barony historic site,'' id., did not make clear that he expected

the addressee, let alone the FCC or any of the other individu-

als merely copied on the letter, to compel BellSouth to take

any action.  And although the letter discussed Section 106 of

the NHPA, it did not specify ``the statutory and/or regulatory

provisions'' -- such as 47 C.F.R. § 1.41 -- on which a request

for FCC review might have been based.           The letter thus

stacks up poorly against the regulatory requirements for even

an informal request; it also stands in stark contrast with

Tennant's February 1999 letter to the ACHP, which quoted

extensively from the regulatory provision that governs re-

quests for Council action.  Tellingly, even the ACHP did not

initiate an inquiry into the FCC's Section 106 compliance until

Tennant sent this second letter.  It would be unreasonable to

hold that the FCC, by virtue of being one of several recipi-

ents copied on the first letter, was required to act when even

 

                                  10

the direct addressee of that letter did not do so until it

received a more specific request.3

   Because Tennant never initiated a proceeding with the

FCC, we do not have authority under the All Writs Act to

issue a writ of mandamus ``in aid of'' prospective jurisdiction

to review action the Commission might take.  It is one thing

to say that we have such authority when, in the formulation

used by the Supreme Court, a case is `` `within our  appellate

jurisdiction although no appeal has been perfected.' ''  Dean

Foods, 384 U.S. at 603­04 (quoting Roche, 319 U.S. at 25);

see also McClellan, 217 U.S. at 280 (case ``within the appellate

jurisdiction of the higher court'').  It is quite another to claim

such power solely on the basis that events might lead to a

filing before an agency or lower court, which might lead to an

appeal to this court.     Once there has been a proceeding of

some kind instituted before an agency or court that might

lead to an appeal, it makes sense to speak of the matter as

being ``within our  appellate jurisdiction'' -- however pro-

spective or potential that jurisdiction might be.  To dispense

with even that preliminary requirement would effectively

grant us jurisdiction to consider extraordinary writs in any

case, because it is easy enough to spin out ``for want of a nail''

scenarios from any set of facts that could eventually lead to

this court.    It is not too much to ask that parties seeking

mandamus relief take at least the first preliminary step that

might lead to appellate jurisdiction in this court in the future.4

   3   Nor do we accept Tennant's suggestion -- not shared by

amicus -- that a 1996 meeting with BellSouth officials and a 1997

telephone complaint to another BellSouth official, see Pet. Br. at 12,

13;  Reply Mem. in Support of Mot. for T.R.O. at 1 & n.1, should be

regarded as tantamount to filing an informal complaint with the

FCC.

   4  Indeed, Tennant and amicus do not dispute the point;  they

instead rest on their argument that copying the FCC, along with

other entities, on an ambiguous letter to the ACHP was adequate to

institute a proceeding before the FCC.  As we have concluded, it

was not.

  Tennant -- but not amicus -- also cites 28 U.S.C. § 1361, which

provides that `` t he district courts shall have original jurisdiction''

 

                                   11

   Our reasoning is grounded in venerable precedent.  When

William Marbury petitioned the Supreme Court for a writ of

mandamus to compel Secretary of State James Madison to

deliver to Marbury his judicial commission, the Court consid-

ered whether the issuance of the writ would be ``an exercise

of appellate jurisdiction, orTTTnecessary to enable the Court

to exercise appellate jurisdiction.''       Marbury v. Madison, 5

U.S. (1 Cranch) 137, 175 (1803). Marbury's petition was not

within the Court's appellate jurisdiction because:

     It is the essential criterion of appellate jurisdiction, that

     it revises and corrects the proceedings in a cause already

     instituted, and does not create that cause.TTT   T o issue

     such a writ to an officer, for the delivery of a paper, is, in

     effect, the same as to sustain an original action for that

     paper, and therefore, seems not to belong to appellate,

     but to original jurisdiction.      Neither is it necessary in

     such a case as this, to enable the C ourt to exercise its

     appellate jurisdiction.

Id. at 175­76.  Chief Justice Marshall recognized that manda-

mus would lie in support of the Court's appellate jurisdic-

tion -- as was later spelled out in the All Writs Act -- but

held that such a ground of authority, like any exercise of

appellate jurisdiction, was limited to review of ``proceedings in

a cause already instituted.''  The mandamus would otherwise

be an original action, not in aid of appellate jurisdiction, as of

course the Court ultimately concluded.               Because Marbury

began his efforts to secure his commission in the Supreme

Court, mandamus could not be based on the Court's appellate

over petitions for mandamus to compel federal officers or employ-

ees to perform their duties.  See Pet. ¶ 7.  That provision does not

confer original jurisdiction on this court;  ``it is well settled that even

where Congress has not expressly stated that statutory jurisdiction

is exclusiveTTT, a statute which vests jurisdiction in a particular

court cuts off original jurisdiction in other courts in all cases

covered by that statute.''    TRAC, 750 F.2d at 77 (footnote and

internal quotation marks omitted);  see Whitney Nat'l Bank v. Bank

of New Orleans & Trust Co, 379 U.S. 411, 422 (1965).

 

                                  12

jurisdiction.  So too here Tennant, with respect to the FCC,

began his efforts in this court -- there was no ``cause already

instituted'' before the agency -- and so the mandamus he

seeks cannot be justified as ``in aid of'' our prospective

appellate jurisdiction over the FCC under the All Writs Act.5

  When, as in the TRAC line of cases, an agency delays

taking action that, if and when taken, would be within our

appellate jurisdiction, the All Writs Act confers authority to

issue writs of mandamus ``in aid of'' that prospective jurisdic-

tion.  But there is no basis for supposing that such authority

is ``necessary to protect our  prospective jurisdiction'' from

the consequences of agency inaction, or that our ``statutory

obligation TTT to review on the merits may be defeated by an

agency that fails to resolve disputes,'' TRAC, 750 F.2d at 76,

when the agency has not yet been asked to do anything.

  5   Amicus cites In re Bluewater Network, 234 F.3d 1305 (D.C.

Cir. 2000), in which this court issued a writ of mandamus ordering

the Coast Guard to comply with a statutory mandate to promulgate

certain rules.  That case is quite different from the present one, in

that a statute directed the Coast Guard to issue regulations, chal-

lenges to the regulations were to be heard directly in this court --

with no need for further agency action to trigger this court's

jurisdiction -- and the Coast Guard had formally announced in the

Federal Register that it would not issue the regulations.  See Oil

Pollution Act of 1990, Pub. L. No. 101-380, § 4110, 104 Stat. 484,

515 (codified at 46 U.S.C. § 3703 note) (setting deadline for Coast

Guard to issue regulations);  33 U.S.C. § 2717(a) (``Review of any

regulation promulgated under this chapter may be had upon appli-

cation by any interested person'' in this court only);  Tank Level or

Pressure Monitoring Devices, 64 Fed. Reg. 64,739, 64,740 (Nov. 22,

1999) (Coast Guard will take ``no further action'').  Our prospective

jurisdiction to review the regulations was plainly defeated by the

agency's action, and so we had jurisdiction under the All Writs Act.

No petition for agency action was necessary to trigger our jurisdic-

tion -- under the statutory scheme, the first filing of an aggrieved

party was to be in this court -- and any such request would in any

event have been futile, given the agency's formally announced

position.

 

                               13

  We conclude that we lack jurisdiction over Tennant's man-

damus claim:  Tennant has not invoked the FCC's own juris-

diction over his claims for relief, so we have no future

appellate jurisdiction that a writ of mandamus could protect.

For the same reason, we lack jurisdiction over his claims for

injunctive relief under the All Writs Act and for a declaratory

judgment, which could be entered only `` i n a case of actual

controversy within our  jurisdiction.''  28 U.S.C. § 2201(a).

                               B.

  Tennant also seeks mandamus relief against the ACHP, but

he points to no jurisdictional statute -- and we can find

none -- that authorizes this court to review the Council's

actions in the first instance.   Mandamus jurisdiction over

agency action lies, if anywhere, in the court that would have

authority to review the agency's final decision.  See FCC v.

ITT World Communications, Inc., 466 U.S. 463, 468­69

(1984);  TRAC, 750 F.2d at 77­79;  16 CHARLES  ALAN  WRIGHT,

ARTHUR  R. MILLER & EDWARD  H. COOPER,  FEDERAL  PRACTICE

AND  PROCEDURE § 3942, at 796 & n.70 (1996); cf. Ex parte

United States, 287 U.S. 241, 249 (1932) (`` A pplication for the

writ of mandamus  ordinarily must be made to the interme-

diate appellate court, and made to this C ourt as the court of

ultimate review only in TTT exceptional cases.'').    With re-

spect to the ACHP, that is not us.

  As for the SHPO, Tennant asks not for mandamus but

rather for declaratory and injunctive relief;  this court lacks

jurisdiction to hear such claims in the first instance.     The

same is true with respect to Tennant's claims for injunctive

relief against Cingular and Crown Castle.

                             * * *

  For the foregoing reasons, we dismiss the petition for lack

of jurisdiction.

                                                    So ordered.

 

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