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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 14–17 (citing National Mining Ass’n v.
Fowler, 324 F.3d 752, 759–60 (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 185–foot
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, 94–95 (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, 534–35 (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, 603–04 (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 23–24, 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 26–27; Pet. Reply Br. at 14–15.
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 603–04 (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 175–76. 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, 468–69
(1984); TRAC, 750 F.2d at 77–79; 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.