United States v. W. Radio Servs. Co.

• Decision Date: 25 June 2012
• Docket Number: Case Nos. 3:11–cv–00638–SI, 6:11–cv–06209–SI.
• Citation: 869 F.Supp.2d 1282
• Parties: UNITED STATES of America, Plaintiff, v. WESTERN RADIO SERVICES CO., Defendant. Richard Oberdorfer and Western Radio Services Co., Plaintiffs, v. Holly Jewkes, District Ranger, Crescent Ranger District, and United States Forest Service, Defendants.
• Court: U.S. District Court — District of Oregon

869 F.Supp.2d 1282

UNITED STATES of America, Plaintiff,

v.WESTERN RADIO SERVICES CO., Defendant.

Richard Oberdorfer and Western Radio Services Co., Plaintiffs,

v.Holly Jewkes, District Ranger, Crescent Ranger District, and United States Forest Service, Defendants.

Case Nos. 3:11–cv–00638–SI, 6:11–cv–06209–SI.

United States District Court, D. Oregon.

June 25, 2012.

Sean E. Martin, Neil J. Evans, U.S. Attorney's Office, Portland, OR, for Plaintiff and Defendants.

Marianne G. Dugan, Attorney at Law, Eugene, OR, for Defendant and Plaintiffs.

Kevin C. Danielson, U.S. Attorney's Office, Portland, OR, for Defendants.

OPINION AND ORDER

SIMON, District Judge.

These consolidated cases relate to a disagreement between Richard Oberdorfer and his telecommunications company, Western Radio Services (“Plaintiffs”), on one side, and the U.S. Forest Service (“Forest Service”), on the other. Plaintiffs operate a telecommunications tower and generator building on land leased from the Forest Service at the Walker Mountain Communication Site (“Walker Mountain”) within the Deschutes National Forest.

As relevant to the present motion, Plaintiffs challenge the Forest Service's approval of a special use permit for AT & T to construct two new radio communication towers and a building at Walker Mountain. First, Plaintiffs allege that the Forest Service did not comply with 36 C.F.R. § 251.54 when it pre-screened AT & T's special use permit application, thereby violating the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq. Second, they allege that the Forest Service improperly considered AT & T's application separately from its prior approval, in 2009, of a new tower to be built and operated by the Bonneville Power Administration (“BPA”). Plaintiffs argue that by “segmenting” the consideration of the AT & T and BPA towers, or by failing to take the BPA tower into account when assessing the cumulative impacts of the AT & T proposal, the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.

The Forest Service has moved for summary judgment on both claims (Doc. 73 in the Lead Case). It argues that Plaintiffs lack standing to bring their NFMA and NEPA claims and that Plaintiffs did not exhaust their NEPA arguments before the agency. For both of these reasons, the Forest Service contends this court lacks jurisdiction over Plaintiffs' claims. The Forest Service also argues for summary judgment on the merits of Plaintiffs' claims. This court reviews an agency's compliance with NEPA and NFMA under the Administrative Procedure Act (“APA”) ¹ and may only set aside an agency decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Because Plaintiffs lack standing to bring their NEPA claim and because their NFMA claim fails on the merits as a matter of law, the Forest Service's motion for summary judgment (Doc. 73 in the Lead Case) is GRANTED.

I. Summary Judgment Standard

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and must draw all reasonable inferences in the nonmovant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001). “Summary judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the plaintiff is entitled to a verdict in his favor.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008).

II. NEPA Claim

The Forest Service argues that this court lacks jurisdiction over Plaintiffs' NEPA claim because Plaintiffs lack standing. Plaintiffs bear the burden of establishing that they satisfy both constitutional and statutory standing requirements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Only one plaintiff need have standing for this court to have jurisdiction. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). Because their standing is challenged at the summary judgment stage, Plaintiffs must adduce specific facts that show each of the elements of standing. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130;Nat'l Wildlife Fed'n, 497 U.S. at 884–85, 110 S.Ct. 3177. Conclusory allegations are insufficient. Nat'l Wildlife Fed'n, 497 U.S. at 888, 110 S.Ct. 3177.

First, to establish the existence of constitutional standing, which requires a “case” or “controversy” under Article III of the Constitution, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

Second, when a plaintiff challenges an agency decision under the APA, the plaintiff must also demonstrate statutory standing, which requires the plaintiff to “establish that the injury he complains of ( his aggrievement, or the adverse effect upon him ) falls within the ‘zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Nat'l Wildlife Fed'n, 497 U.S. at 883, 110 S.Ct. 3177 (emphasis in original). “We have long described the zone of interests that NEPA protects as being environmental.... Accordingly, we have consistently held that purely economic interests do not fall within NEPA's zone of interests [.]” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939–40 (9th Cir.2005) (citations omitted); see also Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir.1993) (“The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions.... Therefore a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA.” (citations omitted)); Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 415 F.3d 1078, 1103 (9th Cir.2005); W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 902–03 (9th Cir.1996).

Plaintiffs argue that they assert environmental as well as economic harms, which would bring Plaintiffs within NEPA's zone of interests. See Ranchers Cattlemen Action Fund, 415 F.3d at 1103. No environmental harms, however, are alleged in Plaintiffs' complaint. Instead, in a subsequent declaration, Mr. Oberdorfer has averred:

I recreate, work and travel in and about the Deschutes National Forest and the Walker Mountain area in particular. Over the past 30 years I have watched the mountaintop change from a lookout facility with a few antennas sticking up over the top of the trees to what can be best described as a forest industrial site. This proliferation makes me sick every time I drive by or have to visit the site.

Decl. Oberdorfer at 1.²

This statement is insufficient to establish the requisite environmental harm. The alleged aesthetic harm was caused by the Forest Service's past actions in approving projects on Walker Mountain over the last thirty years. See Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1150, 173 L.Ed.2d 1 (2009) (plaintiff cannot rely on past harm to establish standing). Mr. Oberdorfer has not explained how the specific project at issue in this lawsuit will cause him an aesthetic, recreational, or other environmental harm. Indeed, the approved project would result in no net increase in the number of communications towers or buildings on Walker Mountain because the project also involves the removal of five towers and a building. See AR4341; cf. W. Radio Servs. Co., Inc. v. Espy, 188 U.S. Dist. LEXIS 22901 (Feb. 2, 1996), at *14–15, aff'd79 F.3d 896 (finding Mr. Oberdorfer lacked standing in a similar dispute for a similar reason).

In addition, the harm asserted is neither concrete nor specific, and it is not adequately differentiated from the interests of the general public. See, e.g., Friends of the Earth, 528 U.S. at 182–84, 120 S.Ct. at 705;League of Wilderness Defenders–Blue Mountain Biodiversity Project v. Bosworth, 383 F.Supp.2d 1285, 1290–92 (D.Or.2005) (spending time hiking and recreating in general project area, appreciating old growth trees and high quality riparian areas, and concern about impact of project on old growth habitat and water quality were not sufficient to establish a concrete and particular harm distinguished from harm to general public). The court also notes that Mr. Oberdorfer is alleging an aesthetic harm from conduct—the construction of a new tower on Walker Mountain—in which he seeks to engage himself. Cf. Nev. Land Action Ass'n, 8 F.3d at 716;Espy, 188 U.S. Dist. LEXIS 22901, at *6. Mr. Oberdorfer has not presented a legitimate environmental harm sufficient to confer standing.

Because Plaintiffs assert only economic harms, their claim does not fall within NEPA's zone of interests. The court therefore does not need to reach the Forest Service's additional arguments. It nonetheless notes that those additional arguments further support the granting of summary judgment on this claim. The Ninth Circuit does not strictly apply the requirement that parties exhaust their administrative remedies in environmental lawsuits. See Or. Natural Desert Ass'n v. McDaniel, 751 F.Supp.2d 1151, 1159–62 (D.Or.2011) (summarizing Ninth Circuit cases). Even under the Ninth Circuit's...