Western Radio Services Co., Inc. v. Glickman
| Decision Date | 28 August 1997 |
| Docket Number | No. 95-36004,95-36004 |
| Citation | 123 F.3d 1189 |
| Parties | 97 Daily Journal D.A.R. 11,265 WESTERN RADIO SERVICES COMPANY, INC., an Oregon Corporation; Richard L. Oberdorfer, Plaintiffs-Appellants, v. Daniel GLICKMAN, in his official capacity as Secretary, United States Department of Agriculture; Jack Ward Thomas, Chief, National Forest Service; John Lowe, Regional Forester, Richard A. Ferraro, Deputy Regional Forester; Tom Schmidt, Forest Supervisor; Byron Cheney, District Ranger, Defendants-Appellees, and Slater Communications & Electronics, Inc., Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ralph A. Bradley, Eugene, OR, for plaintiffs-appellants Western Radio & Oberdorfer.
Tamara N. Roundtree, United States Department of Justice, Washington, DC, for defendants-appellees.
Rose M.Z. Freeby, Evans, Freeby and Jennings, Salem, OR, for intervenor.
Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-95-0679-MFM.
Before: FLETCHER and TASHIMA, Circuit Judges, and SCHWARZER, * District Judge.
Appellants Western Radio Services, Co., Inc. ("Western"), an operator of telecommunications facilities in various national forests in Oregon, and Richard L. Oberdorfer, president of Western, but suing in his individual capacity, appeal the dismissal 1 of their action under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, and the National Forest Management Act ("NFMA"), 16 U.S.C. § 497. Appellants sought to enjoin the United States Forest Service ("Service") from permitting Slater Communications & Electronics, Inc., ("Slater") to construct a telecommunications facility on Gray Butte in the Crooked River National Grassland in the Ochoco National Forest. The district court held that most of Appellants' claims were barred by res judicata because their claims arose out of the same set of facts that were litigated in Western Radio Serv. Co., v. Espy, 79 F.3d 896 (9th Cir.) (Western Radio I ), cert. denied, --- U.S. ----, 117 S.Ct. 80, 136 L.Ed.2d 38 (1996), or were unripe (the challenge against a proposed road construction project). We have jurisdiction under 28 U.S.C. § 1291. We affirm its judgment.
Western and Slater have operated radio towers on the Gray Butte Electronic site since the late 1970's. In November, 1992, the Service issued Slater a special use permit to construct a telecommunications facility approximately 200 feet from one of Western's towers on Gray Butte. Prior to issuing the permit, the Service prepared a supplement to the environmental assessment ("EA") for the Gray Butte Electronic Site Management Plan. The supplement considered the impact that the Slater facility would have on the environment. The Service concluded that construction of the facility would have no significant impact on the environment.
In May, 1993, Western filed an action seeking declaratory and injunctive relief against the Service's issuance of this permit. Western's complaint alleged that the Service's decision to issue Slater a special use permit violated NFMA, 16 U.S.C. § 497, because the agency allegedly had failed to comply with applicable regulations. 3 See Western Radio I, 79 F.3d at 899. Western also alleged that issuance of the permit violated NEPA, 42 U.S.C. § 4321, because the Service failed adequately to consider reasonable alternatives in the preparation of its environmental assessment. Id.
On May 3, 1994, the district court granted the Service's motion for summary judgment against Western. The court held that under NFMA and the applicable regulations, the Service had not abused its discretion in issuing the special use permit to Slater. It also held that Western lacked standing to bring a NEPA claim, relying on Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713 (9th Cir.1993) (). The court also noted that even if Western had standing, the construction of Slater's facility was not a "major" federal action having a "significant impact" on the environment which would trigger additional NEPA requirements. Western appealed to this court; we affirmed. See Western Radio I, 79 F.3d at 903.
After the district court's decision in Western Radio I, several events occurred upon which Western bases its current claims. First, on July 25, 1994, the Service issued a notice proposing construction of an access road along the east side of Gray Butte which would, among other things, provide direct access to the new Slater facility. Plans for this access road were specifically rejected in the Service's 1992 supplement to the EA for the Gray Butte Electronic Site Management Plan. Second, on July 28, 1994, the Service sent Western a letter informing it that the Service would not consider acting on Western's application for a special use permit to build additional antennas on Gray Butte until Slater's facility was complete.
Meanwhile, due to planning and design delays, Slater did not complete construction of its telecommunications facility before expiration of the original special use permit-December 31, 1994. The Service reissued Slater's special use permit on January 11, 1995. This permit was identical to the original special use permit except for the dates of issuance and expiration. After Slater obtained its reissued permit, it began construction in May, 1995, on a location slightly less than 200 feet from the Western facility. The Service had asked Slater to move its tower about 15 feet to this location, a change from Slater's planned location but still within the permitted area, to accommodate plans for a new access road which was then under consideration.
Western and Oberdorfer filed this action May 22, 1995. The complaint was accompanied by a motion for a temporary restraining order and a preliminary injunction to restrain the Service from allowing Slater to perform any further work under its renewed special use permit pending the Service's compliance
with NEPA, NFMA, the Administrative Procedure Act, ("APA"), 5 U.S.C. § 706(2), and all applicable regulations.
On May 26, 1995, the district court granted Western's motion for a temporary restraining order and granted Slater's motion to intervene as a defendant. On May 30, 1995, however, the district court vacated the restraining order, finding no evidence of irreparable harm in allowing Slater to finish constructing its facility. Slater subsequently completed its tower, which currently is operational.
On July 10, 1995, the district court, relying on res judicata, dismissed Western's complaint. The court concluded that Appellants were "attempting [to] circumvent this Court's prior ruling by arguing that Slater's January, 1995 permit constitutes a 'new' decision, when the record establishes that the January, 1995 permit is merely the re-issuance of an earlier permit which was issued upon the same November 19, 1992 administrative decision challenged in Western Radio I." The district court held that res judicata also barred Oberdorfer's NEPA claim against the Service for allowing Slater to build its tower on the location on which he enjoyed sunbathing. "[G]iven the undisputed alignment of Oberdorfer's interests with that of his company, Western Radio, there is no question that plaintiffs could have raised their aesthetic injury claim with the last action." The court also found that Slater's tower, built approximately 200 feet from Western's tower, was in compliance with the permit. Finally, the court held that the claims against the Service for violation of NEPA in constructing the access road were not ripe for review since the Service had not yet approved the road's construction.
This appeal followed.
This court reviews de novo a district court's dismissal based on res judicata. United Parcel Serv., Inc. v. California Pub. Util. Comm'n, 77 F.3d 1178, 1182 (9th Cir.1996).
We must determine whether the district court erred in dismissing Appellants' claims based on res judicata. Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982). In order for res judicata to apply there must be: 1) an identity of claims, 2) a final judgment on the merits, and 3) identity or privity between parties. Blonder-Tongue Lab. v. University of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 1439-40, 28 L.Ed.2d 788 (1971).
The legal harm alleged in Western Radio I was the issuance of the November, 1992, special use permit without compliance with procedures required under NEPA and NFMA. See Western Radio I, 79 F.3d at 899. This court ruled that Western's claims under NEPA failed for lack of standing, because purely economic harm is not protected under NEPA, and that the Service did not violate NFMA or abuse its discretion under the APA in issuing Slater a special use permit. Id. at 902-03. We agree that all of Appellants' claims save two-the Ashbacker claim and the access road claim-though characterized as based on events which occurred after our opinion in Western Radio I, are barred by res judicata.
Appellants allege that the Service has violated NEPA, NFMA, and the APA by allowing Slater to construct its telecommunications facility in a manner inconsistent with the supplemental EA and the amended site plan. To support this claim, Appellants point to the fact that the tower was built less than 200 feet from the Western facility, which they...
To continue reading
Request your trial
-
Villarino v. Comm'r: Soc. Sec. Admin.
... ... Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987); see Wong ... Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996) ... 3) identity or privity between parties." Western Radio Services Co., Inc. v. Glickman, 123 F.3d ... ...
-
Ardalan v. McHugh
... ... See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). B. Rule ... [and] futility of amendment." See Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th ... W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th ... the Secretary of Health and Human Services in her official capacity); United States v ... ...
-
S.A. v. Trump, Case No. 18-cv-03539-LB
... ... U.S. Citizenship and Immigration Services ("USCIS"), an agency within the U.S. Department ... " Gallo Cattle Co. v. U.S. Dep't of Agric. , 159 F.3d 1194, 119899 ... 1998) (ellipsis in original) (quoting W. Radio Servs. Co. v. Glickman , 123 F.3d 1189, 1196 ... Nat. Res. Def. Council, Inc. , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 ... ...
-
Sierra Club v. Babbitt, CV F 99-5219 AWI DLB.
... ... Reynolds, in his official capacity as Western Regional Director of the National Park Service; ... W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-338, 53 S.Ct. 602, 603, 77 ... 951, 39 L.Ed.2d 166 (1974); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct ... Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 ... See Western Radio Services v. Glickman, 123 F.3d 1189, 1195 (9th Cir.1997) (projects ... ...
-
Betty B. Fletcher: NEPA's Angel and Chief Editor of the Hard Look
...tolerance not appealable under §§346(a), 348 of the Federal Food, Drug, and Cosmetic Act). 19. See W. Radio Servs. Co. v. Glickman, 123 F.3d 1189 (9th Cir. 1997) (rejecting challenge to Forest Service approval of special use permit to construct telecommunications facility in a national fore......
-
Striking the balance: the tale of eight Ninth Circuit timber sales cases.
...Masayesva v. Hale, 118 F.3d 1371 (9th Cir. 1997) (Hopi-Apache dispute over land use rights); Western Radio Serv. Co. v. Glickman, 123 F.3d 1189 (9th Cir. 1997) (NFMA and NEPA); Environmental Defense Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995) (action to force species listing under the ESA)......