Western Radio Services Co., Inc. v. Espy
| Decision Date | 18 March 1996 |
| Docket Number | No. 94-35605,94-35605 |
| Citation | 79 F.3d 896 |
| Parties | 26 Envtl. L. Rep. 20,829, 96 Cal. Daily Op. Serv. 1808, 96 Daily Journal D.A.R. 3134 WESTERN RADIO SERVICES COMPANY, INC., Oregon corporation, Plaintiff-Appellant, v. Michael ESPY, Secretary, U.S. Department of Agriculture; Jack Ward Thomas, Chief, U.S. Forest Service; John Lowe, Regional Forester; Richard A. Ferraro, Deputy Regional Forester; Tom Schmidt, Forest Supervisor; Byron Cheney, District Ranger; Slater Communications & Electronics, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael D. Axline, Johnson & Kloos, Eugene, Oregon, for plaintiff-appellant.
Joan M. Pepin, United States Department of Justice, Washington, D.C., for federal defendants-appellees.
Rose M.Z. Freeby, Evans, Freeby & Jennings, Salem, Oregon, for defendant-appellee Slater Communications.
Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding.
Before: WALLACE, D.W. NELSON, and BRUNETTI, Circuit Judges.
Western Radio Services Co., Inc. (Western) appeals from the district court's summary judgments for the United States Forest Service (Service) and Slater Communications & Electronics, Inc. (Slater). The district court held that the Service did not abuse its discretion in issuing a special use permit to Slater and that Western did not have standing to bring a claim under the National Environmental Policy Act (NEPA). The district court had jurisdiction under 5 U.S.C. § 702 and 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.
The Gray Butte Electronics Site is located on the Crooked River National Grassland in the Ochoco National Forest in Oregon. The Service and the Department of Agriculture manage the site and have authority to issue special use permits for land under their control; however, permits for uses coming within Federal Communications Commission (Commission) jurisdiction are contingent upon Commission authorization and licensing. Pursuant to special use permits issued by the Service, Slater and Western operate and maintain mobile radio communications facilities at Gray Butte. Slater and Western originally received permits in 1976 and 1978, respectively.
On December 10, 1986, the Service issued a special use permit to Slater to construct, maintain, and rent a new building and tower on Gray Butte. Western appealed from the Service's decision to issue a permit, complaining that the new building would exacerbate interference problems at the site and that the permit did not conform to the applicable site plan. Eventually, Western settled with the Service and the Service agreed to update the Gray Butte Site Plan. In 1989, the Service adopted a new site plan and in 1990, it issued Slater a new building permit. The 1989 Site Plan permits only "compatible uses of the site" and requires any equipment or tower that causes interference to be adjusted or removed. Again, Western complained of potential interference and appealed from the Service's reissuance of a permit to Slater. The Forest Supervisor denied the appeal.
On appeal from the Forest Supervisor's denial, the Regional Forester refused to reverse the Service's decision to issue a permit. However, the Regional Forester directed the Service either to document its efforts to resolve Western's complaints about current or potential interference or to hold meetings with site users to address potential incompatibility problems. The Service conducted several meetings with users, and the Regional Forester determined that the Service had complied with the earlier decision. Approximately two months after the Regional Forester's approval, Gray Butte site users agreed on an acceptable location for Slater's new facility. Richard Oberdorfer, Western's president, disputes that he ever agreed to this location. The Forest Supervisor issued a Decision Notice and a finding of no significant impact, stating its intention to issue Slater a special use permit to construct a building and tower at the agreed-upon site. Western again appealed to the Regional Forester, who affirmed the decision to issue a special use permit. On May 17, 1993, the Chief of the Forest Service declined discretionary review. The Chief's determination constituted final agency action.
Western then filed this action in the district court, alleging that the Service's decision to issue Slater a building permit violated NEPA. Western also asserted that the decision violated the National Forest Management Act, 16 U.S.C. § 497, because the Service allegedly failed to comply with applicable regulations. Western argued that applicable regulations included the Forest Service Manual (Manual) and Forest Service Handbook (Handbook), in addition to the regulations promulgated under 16 U.S.C. § 497 and codified at 36 C.F.R. §§ 251.50 et seq. (1995). The district court rejected Western's claims.
Slater suggests we not address the merits of the appeal. Slater argues that the district court lacked jurisdiction over Western's claims because Western did not exhaust administrative remedies. Slater asserts that Western should have complained to the Commission before filing in the district court.
It is within our discretion to require exhaustion, Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir.1990), and we will generally require that a plaintiff exhaust all administrative remedies before assuming jurisdiction. White v. Jacobs Eng'ring Group Long Term Disability Benefit Plan, 896 F.2d 344, 352 (9th Cir.1989). Here, the district court properly retained jurisdiction. Western's complaint states a claim against the Service for issuing a special use permit to Slater. It was the Service, and not the Commission, that issued the use permit. Although the Commission deals with problems of interference, the Commission does not have the authority to redress Western's complaints about the issuance of the permit. Nor can the Commission redress Western's complaints about the location of Slater's new facility. We will not require Western to complain to the Commission about a Service permit before bringing an action in the district court.
We therefore turn to the merits of the appeal. We review a summary judgment de novo. First Pacific Bank v. Gilleran, 40 F.3d 1023, 1024 (9th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). This review requires us to determine (1) whether there is a genuine issue of material fact when the evidence is viewed in the light most favorable to the nonmoving party, and (2) whether the district court correctly applied the law. Id.
When reviewing an administrative agency's decision, we view the case from the same position as the district court. Nevada Land Action Ass'n v. United States Forest Service, 8 F.3d 713, 716 (9th Cir.1993) (Nevada Land Action ). An agency's decision should be overturned if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989) (Marsh ). We must determine whether the agency's decision was made after considering the relevant factors and whether the agency made a clear error of judgment. Id. at 378, 109 S.Ct. at 1861. We may reverse the agency's decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1521 (9th Cir.1995).
The Service issues special use permits subject to regulations promulgated by the Secretary of the Department of Agriculture (Secretary). See 16 U.S.C. § 497. Generally, the Service's decision to issue or deny a permit is subject to judicial review. See KOLA, Inc. v. United States, 882 F.2d 361, 364 (9th Cir.1989) (KOLA ). However, we will review an agency's alleged noncompliance with an agency pronouncement only if that pronouncement actually has the force and effect of law. United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982) (Fifty-Three Parrots ). We will not review allegations of noncompliance with an agency statement that is not binding on the agency.
Western contends that the Service acted arbitrarily and capriciously by issuing a permit and following a procedure that failed to comply with the Service's regulations, 36 C.F.R. §§ 251.52, 251.54 (1995), and the Service's guidelines in its Manual and Handbook.
The National Forest Management Act authorizes the Secretary to issue regulations "for the purpose of constructing or maintaining buildings, structures, and facilities for industrial or commercial purposes whenever such use is related to or consistent with other uses on the national forests." 16 U.S.C. § 497(c). In 1980, the Service adopted regulations setting forth standards to consider in issuing special use permits. 36 C.F.R. § 251.54 (1995). These regulations have the force and effect of law. KOLA, 882 F.2d at 364.
Section 251.54(i) contains various factors that the Service may consider when denying a permit. Section 251.54(i)(1) provides that a Service official may deny issuance of a special use permit if the proposed use "would be inconsistent or incompatible" with other existing forest uses. Also, section 251.52 states: "Special use authorizations ... shall be in such form and...
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