Western Radio Services Company, Inc. v. Allen et al

Filing 150

OPINION AND ORDER: The Forest Service's Motions for Summary Judgment and Preliminary Injunction ( 116 , 119 , and 141 ) are GRANTED and plaintiff's Motion for Partial Summary Judgment 120 is DENIED. Pending final judgment in th is case, Western Radio shall cease its operations at Gray Butte and remove Sureline's equipment from that site immediately. The Forest Service shall submit a proposed form of judgment and a supporting memorandum within 21 days from the date of this Order. See formal OPINION AND ORDER. Signed on 11/24/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WESTERN RADIO SERVICES
COMPANY, INC.,
Plaintiff,

v.
JOHN ALLEN, Deschutes National
Forest Supervisor; KATE KLEIN,
Ochoco National Forest
Supervisor; KEVIN LARKIN, BendFort Rock District Ranger;
SLATER R. TURNER, Lookout
Mountain/Crooked River National
Grassland District Ranger; RICK
WESSLER, Special Use Permits
(Bend/Fort Rock Ranger District);
LISA DILLEY, Special Use Permits
(Bend/Fort Rock Ranger District) ;
HEIDI SCOTT, Special Use Permits,
Ochoco National Forest; KAREN
BRAND, Special Use Permits,
Ochoco National Forest; KENT
CONNAUGHTON, Regional Forester;
MAUREEN HYZER, Acting Regional
Forester; and UNITED STATES
FOREST SERVICE;
Defendants.

1 - OPINION AND ORDER

Case No. 6:14-00747-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Western Radio Services Company, Inc.,

(Western Radio)

filed suit under the Administrative Procedures Act (APA), 5 U.S.C. §
706, alleging that the United States Forest Service (Forest Service)
took arbitrary and capricious action and unlawfully withheld action in
violation of 16 U.S. C. § 4 97. Western Radio's claims arise from ongoing
disputes between it and the Forest Service regarding Western Radio's
telecommunications facilities on National Forest lands.

1

The Forest

Service denies Western Radio's claims and asserts counterclaims for
trespass and unjust enrichment.
The Forest Service now moves for summary judgment on Western
Radio's APA claims and its counterclaims; plaintiff likewise moves for
summary judgment on the Forest Service's counterclaims. Further, the
Forest Service again moves

for a

preliminary injunction requiring

Western Radio to remove equipment and facilities from the Gray Butte
telecommunications

site.

The

Forest Service's motions

for

summary

judgment and preliminary injunctive are granted, and plaintiff's motion
is denied.
BACKGROUND

Western

Radio

operates

telecommunication

facilities

within

National Forest lands pursuant to permits and leases authorized by the
Forest Service. At three telecommunications sites - Gray Butte, Sugar
1

Western Radio also alleged claims against several Forest Service
employees for violations of its First Amendment and Equal Protection
rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). However, the court dismissed these
claims in a previous opinion. See doc. 115.
2 - OPINION AND ORDER

Pine Butte, and Round Mountain - Western Radio has made improvements
to the land and/or built structures such as telecommunications towers.
Western Radio also has sought to establish a facility at a fourth site,
South Paulina Peak. As explained in further detail below, the Forest
Service either has revoked or declined to renew Western Radio's leases
to maintain facilities

at Gray Butte,

Sugar Pine Butte and Round

Mountain. The Forest Service also has denied permission for Western
Radio to install communications facilities at South Paulina Peak.
On May 5, 2014, Western Radio filed this action. Western Radio
alleges that the Forest Service's actions are arbitrary and capricious
and constitute unreasonable interpretations of its own regulations
under the APA.

Western Radio also alleges that the Forest Service

unlawfully withheld and unreasonably delayed action on Western Radio's
various applications.
Despite the legal dispute over Western Radio's authorization to
remain at Gray Butte, on July 31, 2014, Western Radio entered into a
five-year lease agreement with a third-party tenant, Sureline, Inc.
(Sureline) and allowed Sureline to install telecommunications equipment
at its Gray Butte facility. Shortly afterward, other site users notified
the Forest Service that Western Radio had not provided the required
30-day notice of new frequencies or tenants at the site,

and that

Sureline's operations caused interference with authorized tenants.
On November 13, 2014, the Forest Service was granted leave to amend
its answer and allege counterclaims of trespass and unjust enrichment
against Western Radio. The Forest Service contends that Western Radio
3 - OPINION AND ORDER

is in trespass at Sugar Pine Butte, Gray Butte and Round Mountain, that
its structures and improvements are now property of the Forest Service,
and that Western Radio has unjustly benefited by remaining on Forest
Service lands and operating its facilities without authorization or
payment of fees.

DISCUSSION
A.

Plaintiff's APA Claims
Western Radio alleges violations of 16 U.S.C.

§ 497(c),

which

authorizes the Forest Service to permit the use and occupancy of public
lands for industrial or commercial purposes. Compl. at 2. 2 However, 16
U.S. C. § 4 97 does not contain a provision for judicial review; therefore,
a plaintiff alleging that an agency failed to comply with a statute must
bring its claims under the APA. City of Sausalito v. O'Neill, 386 F.3d
1186, 1205 (9th Cir. 2004). Here, Western Radio alleges that the Forest
Service

unlawfully withheld action

on a

development

proposal

and

unlawfully revoked or declined to renew its telecommunication leases.
Under§ 706 (1) of the APA, a court can compel an agency to act only
if the action is discrete and required by law. 5 U.S. C. § 706 (1); Norton

2

In its Complaint, Western Radio mistakenly characterizes its claim as
arising under the National Forest Management Act (NFMA); they do not,
as plaintiff does not invoke provisions of NFMA or allege violations
of a relevant forest land management plan. In response to the Forest
Service's motion for summary judgment, plaintiff also attempts to invoke
the Telecommunications Act of 1996 and the Federal Land Policy and
Management Act. Plaintiff's Complaint does not allege violations of
these statutes and the court will not consider them. Regardless, the
statutory provisions cited by plaintiff do nothing more than grant
federal agencies authority to grant or issue permits; they do not require
specific action or impose applicable standards. 43 U.S.C. § 1761(a);
47 u.s.c. § 332.
4 - OPINION AND ORDER

v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). Consequently,
unless a plaintiff identifies a "clear statutory duty" with which the
agency must comply, an agency's "failure to act . . . is not challengeable
under the APA." ONRC Action v. Bureau Land Mgmt., 150 F.3d 1132, 1140
(9th Cir. 1998); Hells Canyon Preservation Council v. U.S. Forest Serv.,
593 F. 3d 923, 932 (9th Cir. 2010) (the "ability to 'compel agency action'
is carefully circumscribed to situations where an agency has ignored
a specific legislative command").
Under§ 706(2) (A) of the APA, a reviewing court may set aside an
agency action that is "'arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.'" Ctr. for Envtl. Law
v.

U.S. Bureau of Reclamation,

(quoting

5 U.S.C.

§

655 F.3d 1000,

706(2) (A)). An

1005

&

(9th Cir.

agency decision

is

Policy
2011)

considered

arbitrary and capricious "if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem,

offered an explanation for its

decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or
the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto.

Ins. Co., 463 U.S.

29,

43

(1983).

Review under the

arbitrary and capricious standard is narrow, and courts give deference
to an agency's construction of a statutory provision it is charged with
administering. American Fed' n of Gov' t Employees v. Fed. Labor Relations
Auth., 204 F.3d 1272, 1274-75 (9th Cir. 2000).
Notably, a plaintiff must challenge a "final" agency action under
5 - OPINION AND ORDER

§ 706(2). Oregon Natural Desert Ass'n {ONDA) v. U.S. Forest Serv., 465
F.3d 977, 982 {9th Cir. 2006). "For an agency action to be final, the
action must (1) mark the consummation of the agency's decisionmaking
process

and

(2)

be

one

by which

rights

or obligations have

been

determined, or from which legal consequences will flow." Id. (internal
quotation marks and citation omitted) .
The Forest Service correctly notes that Western Radio fails to
submit evidence that the Forest Service's actions violated§ 497 in any
way, and therefore, Western Radio cannot prevail on its APA claims. See
Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 797, nn.10 & 11 (9th Cir.
1996)

("[T]here can be no 'arbitrary and capricious' review under APA

§ 70 6 ( 2) (A) independent of another statute.") . While I find the Forest
Service's argument compelling, I nonetheless review the substance of
Western Radio's claims in the event they suffice to allow for APA review.
1. Gray Butte
a. Rejection of New Lease
In 1999, the Forest Service granted Western Radio a multi-year
communications use lease for the Gray Butte site. GB 347-53. The lease
terminated on December 31, 2006. GB 348. Afterward, the parties operated
on a yearly basis under the terms of the lease.
In December 2012, the Forest Service formally notified Western
Radio of numerous compliance problems with its lease. GB 1268-71. The
Forest Service also described specific actions Western Radio must take
to "avoid further action." GB 1269-70. On December 28, 2012, the Forest
Service notified Western Radio that its tenancy at Gray Butte would not
6 - OPINION AND ORDER

be authorized beyond December 2013.
Western Radio submitted a

renewal

GB 1280-81.
application

In February 2013,
for

Gray Butte.

GB

1285-1316, 1486-1520.
On December 31, 2013, the Forest Service rejected Western Radio's
request for a new lease and stated that it would no longer tolerate
Western Radio's "hold-over" status. GB 1655-56. On January 30, 2014,
the Forest Service notified Western Radio that its Gray Butte facilities
must be removed by July 2014. GB 1692-95; see also 36 C.F.R. § 251.60(i).
To date, Western Radio has not removed its facilities from Gray Butte.
Rather,

after

the

Forest Service made clear that Western Radio's

authorization to maintain facilities at the site was terminated, Western
Radio entered into a tenancy agreement with Sureline.
Western Radio argues that the Forest Service acted arbitrarily and
capriciously when it rejected Western Radio's request for a new lease,
and that it received no administrative process or opportunity to appeal.
I disagree. "Under the APA, an agency cannot lawfully suspend or revoke
a license unless the licensee has been given written notice of the facts
warranting the action and an opportunity to demonstrate compliance with
the requirements 'before the institution of agency proceedings.'" Fence
Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1134 (9th Cir.
2010)

(quoting 5 U.S.C. § 558 (c)).
Here, the Forest Service did not suspend or revoke Western Radio's

Gray Butte lease; rather, the Forest Service denied the request for a
new lease. Regardless, the Forest Service provided Western Radio with
notice of non-compliance issues and an opportunity for compliance; it
7 - OPINION AND ORDER

subsequently found that Western Radio remained out of compliance with
several terms and conditions. See, e.g., GB 1524-26, 1592-95. Western
Radio contested the non-compliance issues in August 2013, and the Forest
Service responded to each issue.

GB

1476-77,

1592-95.

The

record

reflects that Western Radio cured several items of non-compliance but
failed to correct the remaining items despite notice and warnings to
do so. GB 1525-26, 1592-95, 1647-54.
Further, the Forest Service explained its decision. GB 1655-56.
The Forest Service explained that it would not renew the lease due to:
1) Western Radio's failure to demonstrate the technical and financial
capability to operate and maintain the equipment in compliance with
applicable terms and conditions; 2) Western Radio's lack of compliance
in the Ochoco National Forest; 3) a district court decision finding that
Western Radio trespassed and breached its lease at the Walker Mountain
Communication site; 4) Richard Oberdorf er' s conviction under 36 C. F. R.
§

2 61. 10 (a)

for

constructing and maintaining a

structure without

authorization; 3 and 5) the revocation of Western Radio's lease at the
Walker Mountain site. Id.
Finally, Forest Service regulations do not allow for an appeal when
the agency declines to renew a lease, unless the lease "specifically
provides for renewal." 36 C.F.R. § 214.4(c) (5); see also id.§ 214.5
(lease holders "may not appeal" decisions that are "not expressly set
forth in § 214.4"). Here,

Western Radio's lease stated it was "not

renewable." GB 348. Therefore, Western Radio had no appeal right.
3

Richard Oberdorfer owns and operates Western Radio.

8 - OPINION AND ORDER

Given the record before the court, I cannot find that the Forest
Service acted arbitrarily or capriciously in rejecting Western Radio's
request for a new lease at Gray Butte.
b. Yellow Knife Billing
Yellow Knife Wireless is a tenant of Western Radio at the Gray Butte
site. Yellow Knife equipment was added to Western Radio's Gray Butte
structures in the summer of 2011, GB 1700, but Western Radio did not
disclose Yellow Knife on its October 1,
1228-29.

The

inventory

listing

2011 inventory listing. GB

required

the

disclosure

of

"all

occupants" who had "a formal or informal agreement to lease space" at
Western Radio's facilities as of September 30, 2011. GB 1228.
In September 2013, the Forest Service back-billed Western Radio
about $552 in rent for the Yellow Knife's occupancy. GB 1556-59. On
appeal, the Forest Supervisor and the Regional Forester affirmed the
decision. GB 1696-1701, 1705.
Western Radio argues
capricious,

that the back-billing was arbitrary and

because Yellow Knife had installed equipment prior to

September 30, 2011 but had not completed installation of all facilities
as of that date. Regardless, Western Radio did not include Yellow Knife
in its inventory listing,

and it failed to respond to the

Forest

Service's requests to update the inventory listing. See GB 1701. Thus,
it was well within the Forest Service's discretion to bill Western Radio
for such occupancy.
c. Trespass Notice
On January 30, 2014, the Forest Service notified Western Radio that
9 - OPINION AND ORDER

it was in trespass at Gray Butte and that its facilities must be removed
by July 31, 2014. GB 1692-95; 36 C.F.R. § 251.60(i).
Western Radio complains that it had no administrative appeal
regarding this notice. However, no regulation allows an administrative
appeal of a trespass notice. 36 C.F.R. § 214.4. Regardless, Western
Radio filed this suit to challenge the Forest Service's decision before
the deadline to remove its facilities, and the Forest Service filed suit
under trespass. Thus, Western Radio has been provided with the process
it is due through this court action.
2. Sugar Pine Butte
a. Lease Revocation
In 2004, Western Radio obtained a twenty-year lease authorizing
it to operate facilities at Sugar Pine Butte, including a tower and
buildings. SuP 52-82, 597.
In early 2013, the Forest Service issued Western Radio two notices
identifying compliance problems with the terms of its lease. SuP 535,
627. On October 28, 2013, the Forest Service notified Western Radio of
continued compliance problems. SuP 771-79.
On January 9, 2014, the Forest Service again notified Western Radio
of continued non-compliance issues with its lease, explained the grounds
for lease revocation, and provided Western Radio another opportunity
to correct the noted problems. SuP 854-57.
On February 5, 2014, the agency issued a final warning. SuP 824.
According to the Forest Service, Western Radio did not correct the
compliance problems. Consequently, on February 14, 2014,
10 - OPINION AND ORDER

the Forest

Service notified Western Radio that it was revoking its conununication
use lease, effective inunediately. SuP 852-53.
On March 28, 2014, Western Radio filed an administrative appeal
of the decision to revoke its lease. SuP 899. On June 26, 2014, the Forest
Service affirmed the decision with a seven-page explanation. SuP 1183,
1185-91. On July 23, 2014, the Regional Forester affirmed the decision
after an additional "discretionary" review. SuP 1194. Western Radio
contends that the Forest Service acted arbitrarily and capriciously in
revoking its lease. I disagree.
As described above, the Forest Service provided Western Radio with
several notices of noncompliance with lease terms and afforded Western
Radio an opportunity to cure its compliance issues. Specifically, the
Forest Service notified Western Radio of its failure to supply an
inventory of site users along with their categories of use. SuP 771-78,
854. Western Radio refused to correct its inventory, and in January 2014
the Forest Service provided another non-compliance notice. SuP 854-57.
This notice explained the grounds for lease revocation and allowed
Western Radio thirty days in which to cure the problem. SuP 854-57. On
February 5, 2014, the agency issued a final warning. SuP 824. Western
Radio failed to cure the problem, instead arguing about the requirement,
and

the

Forest

Service

administrative appeal,

revoked

the

the

lease.

agency provided a

SuP

825,

detailed,

852-53.

On

seven-page

explanation for revoking the lease. SuP 1185-91. Given Western Radio's
repeated failures

to cure the deficiency identified by the Forest

Service, its decision was not arbitrary or capricious.
11 - OPINION AND ORDER

Western

Radio

also

argues

that

revocation

of

its

lease

was

arbitrary, because Western Radio previously had settled a 2011 dispute
with the Forest Service. SuP 167-68. I fail to discern how an earlier
resolution between the parties somehow prevents the Forest Service from
enforcing Western Radio's compliance with lease provisions. Regardless,
the Forest Service explained why the prior agreement was inapplicable
to Western Radio's present lack of compliance. SuP 824.
Finally,

Western Radio argues that the District Ranger lacked

authority to revoke the lease. Under the terms of the lease, revocation
must be instituted by an "Authorized Officer," and the District Ranger
is an "Authorized Officer." SuP 52, 55 ("unless otherwise indicated such
authority may

be

exercised by

the

Forest

Supervisor

or

District

Ranger"). Therefore, the revocation by the District Ranger complied with
the terms of the lease. See United States v. Western Radio Services Co.,
Inc., 2014 WL 1679821, at* 8-9 (D. Or. April 28, 2014). Moreover, the
Forest Supervisor affirmed the District Ranger's decision to revoke the
lease. Id. at *9; SuP 1183-84.
b.

Permit for Agency-Owned Tower

In 2004, Western Radio obtained a special use permit that allowed
Western Radio to use a tower owned by the Forest Service on Sugar Pine
Butte. SuP 84-93. The permit expired by its terms on December 31, 2013.
SuP 85.
On November 20, 2013, the Forest Service informed Western Radio
that it would not renew Western Radio's permit after its expiration on
December 31, 2013. SuP 798. The Forest Service noted that Western Radio
12 - OPINION AND ORDER

did not have any antennas on the agency-owned tower and had not requested
a new permit. Id. Western Radio argues that the failure to renew the
permit was arbitrary and capricious. I disagree.
As noted, Western Radio had no antennas on the tower covered by
the permit and had not requested a new permit prior to July 2013, which
barred the renewal of the permit. SuP 85 ("If the holder desires issuance
of a new permit after expiration the holder shall notify the authorized
officer in writing not less than six (6) months prior to the expiration
date of this permit."}; SuP 798. Moreover, the terms of the permit state
that its renewal "is at the absolute discretion of the Forest Service."
SuP 85.
Finally, Western Radio argues that it received no process because
its administrative appeal was dismissed. However, Western Radio was not
entitled to an appeal under 36 C.F.R. § 214.4; SuP 821.
c. Development Proposal
In July 2011, Western Radio submitted a proposal to develop its
operations at Sugar Pine Butte and replace the Forest Service-owned
tower with a new Western Radio tower. SuP 171-79. In April 2012, Western
Radio submitted revisions to its proposal.

SuP 332-33.

The Forest

Service delayed ruling on Western Radio's proposal because of Western' s
Radio's non-compliance with its lease and agency review of its proposal
required

amendment

of

the

Sugar

Pine

Butte

site

management

plan

regarding power limits. SuP 779, 789.
By April 2013, the Sugar Pine Butte management plan was amended
to exempt cellular service from the site power limit.
13 - OPINION AND ORDER

SuP 570-601,

689-93. However, Western Radio's proposal remained on hold. SuP. 708.
In September 2013, the Forest Service told Western Radio that it intended
to make a "competitive interest" determination for Sugar Pine Butte
before further reviewing Western Radio's proposal. SuP 753.
On February 21, 2014, the Forest Service notified Western Radio
that there was a competitive interest in constructing and/or managing
a communications facility at Sugar Pine Butte,

and that the Forest

Service could not accept Western Radio's site development proposal. SuP
858. Western Radio was also instructed to inform the Forest Service if
it wanted the agency to consider the 2011 proposal as an indication of
Western Radio's interest. Id.
Western Radio first contends that the Forest Service unlawfully
failed to review its development proposal,
compelled to do

so.

However,

and that it should be

plaintiff fails

to

identify a

clear

statutory duty requiring the Forest Service to review the proposal, and
I decline to compel such a review under§ 706(1).
Plaintiff also suggests that the Forest Service acted arbitrarily
and capriciously when it rejected Western Radio's proposal for expansion
and development of its facilities. However, plaintiff concedes that the
Forest Service made no "final decision"

regarding its proposal,

a

requirement for review under§ 706(2). Regardless, the Forest Service
ultimately declined to accept Western Radio's development proposal; to
the extent this constitutes a "final decision" for purposes of the APA,
it was neither arbitrary nor capricious.
When a party submits an unsolicited proposal, the Forest Service
14 - OPINION AND ORDER

may

determine

development.

whether

36 C.F.R.

there
§

is

"competitive

251.58 (c) (3) (ii)

If

determines such a competitive interest exists,

interest"
the

in

Forest

such

Service

the agency issues a

public prospectus. Id. ; P 4 98 0. Here, the Forest Service determined that
there was competitive interest in development at Sugar Pine Butte. SuP
858. Therefore, the Forest Service was authorized to issue a development
prospectus

before

considering

Western

Radio's

proposal.

Notably,

Western Radio did not respond to the prospectus issued by the Forest
Service. Regardless, the Forest Service's decision is supported by the
record.
3. Round Mountain
In 1996, the Forest Service granted Western Radio a communications
use lease for the Round Mountain site. RM 2384-90. The lease terminated
in 2001, RM 2385, and the parties continued on a yearly basis under the
terms of the lease.
In December 2012,

the Forest Service formally notified Western

Radio of compliance problems. RM 3501-03. On December 28, 2012, the
Forest Service notified Western Radio that its tenancy at Round Mountain
would not be authorized beyond December 31, 2013. RM 3507-08.
In January 2013, Western Radio requested a new lease, and in April
2013,

the Forest Service rejected its request. RM 3511-12, 3547. In

August 2013, Western submitted a second request. RM 3566-88. However,
the Forest Service found that Western Radio remained out of compliance
with several terms and conditions of its lease. See, e.g., RM 3592-3604,
3653-59, 3672-75.
15 - OPINION AND ORDER

On December 31, 2013, the Forest Service rejected Western Radio's
proposal for a new lease and stated that it was no longer tolerating
Western Radio's "hold-over" status. RM 3683-84 On January 30, 2014, the
Forest Service informed Western Radio that its Round Mountain facilities
must be removed by July 2014. RM 3708-11. As with the facilities at Gray
Butte, Western Radio has not removed its facilities at Round Mountain.
Plaintiff again argues

that the

Forest Service's decision to

rejects its lease request was arbitrary and capricious. However, the
Forest Service provided a detailed rationale for its decision not to
continue

doing

business

with

Western

Radio,

including

its

lease

non-compliance at Round Mountain and illegal conduct by Western Radio
and Mr. Oberdorfer at Walker Mountain. RM 3501-03, 3507-08, 3592-604,
3653-59, 3672-82, 3683-84. Western Radio also complains that the Forest
Service did not provide an administrative appeal. As the Forest Service
informed Western Radio in December 2013,

administrative appeal is

available only if a lease "specifically provides for renewal." 36 C. F. R.
§

214. 4 (c) (5); RM 3684. Here, Western Radio's lease stated it was "not

renewable." RM 2385. Therefore, Western Radio was not entitled to an
administrative appeal.
4. South Paulina Peak
South Paulina

Peak is

within

the

Newberry National Volcanic

Monument in the Deschutes National Forest. See SoPP 1213, SoPP 1237.
Pursuant to the Deschutes Forest Plan, neither South Paulina Peak nor
North

Paulina

Peak

is

available

for

telecommunications

site

development. P 3550, 3557 (South Paulina Peak sites are "not available
16 - OPINION AND ORDER

for development") . Nevertheless, Western Radio repeatedly has requested
authorization to construct communications facilities at South Paulina
Peak. See, e.g., SoPP 1213-14 (1998 denial); SoPP 1237-38 (2007 denial);
SoPP 1242-45 (2009 denial).
Relevant to this lawsuit, in January 2013, Western Radio again
sought authorization to build a relay station facility at South Paulina
Peak to augment coverage from Sugar Pine Butte and restore a service
area. SoPP 1341-49. On March 8, 2013, the Forest Service denied Western
Radio's proposal as inconsistent with the provisions of the Deschutes
Forest Plan and the Newberry National Volcanic Monument management
plan. SoPP 1350-51; see also SoPP 1338-40 (Oct. 2012 letter to Western
Radio denying a request for a pre-proposal meeting) .
Western Radio alleges that the Forest Service arbitrarily and
capriciously rejected its application. I disagree.
Given that the Deschutes Forest Plan precludes development, and,
presumably,

the construction of communications facilities on South

Paulina Peak, the Forest Service's denial of Western Radio's proposal
was neither arbitrary nor capricious. Plaintiff nonetheless argues that
the Forest Plan's provisions were replaced by the Newberry Monument
Plan.

Pl.' s

Response at 19.

However,

in designating the Monument,

Congress indicated that it was not reconsidering, amending, or revising
the Forest Plan. SoPP 1157. Western Radio also contends that the plan
governing South Paulina Peak development provides for review of "new
applications"

on

a

ucase-by-case

basis."

However,

I

find

no

inconsistency between this provision and the Forest Service's denial
17 - OPINION AND ORDER

of Western Radio's application; the Forest Service reviewed Western
Radio's application and denied it as inconsistent with the lack of
development at South Paulina Peak.
Western Radio also argues that the facility it proposed is similar
to those already approved or in use within the Newberry National Monument
area.

Specifically,

Western

Radio

asserts

that

the

United States

Geological Service (USGS), the United States Air Force, and the Soil
Conservation Service (SCS) either had or have operations in the Monument
area.

However, as the Forest Service points out,

operate facilities on South Paulina Peak,

the USGS does not

and the USGS facility is

intended to provide timely public warnings of volcanic activity within
the Monument. P 5144. Further, as Western Radio itself indicated in 1985,
the Air Force and SCS ceased any operations at Paulina Peak by the early
1980s. SoPP 252.
Finally,

plaintiff

asserts

that

CenturyLink

operates

telecommunication facilities in the Monument area. However, the only
evidence

plaintiff

cites

for

this

assertion

is

the

extra-record

declaration of Richard Oberdorfer, a declaration the court declines to
consider in the context of plaintiff's APA claims. See Lands Council
v. Powell, 395F.3dl019, 1029-30 (9th Cir. 2004). Regardless, the Forest
Service denies that CenturyLink has a lease or permit to operate on South
Paulina

Peak,

and

no

evidence

in

the

record

suggests

otherwise.

Accordingly, plaintiff's claim fails.
B.

The Forest Service's Counterclaims
In its counterclaims, the Forest Service alleges that Western Radio

18 - OPINION AND ORDER

is trespassing at the Gray Butte, Sugar Pine Butte and Round Mountain
sites and has been unjustly enriched by continuing its operations
without authorization. The Forest Service also alleges that Western
Radio has not paid fees for 2014 and 2015 while receiving monthly
payments from tenants and customers. Thus, the Forest Service maintains
Western Radio has benefited financially by impermissibly continuing its
business operations on Forest Service land. The parties move for summary
judgment on the Forest Service's counterclaims.
1. Trespass Counterclaim
The Forest Service contends that if Western Radio does not prevail
on its APA claims, it is in trespass at the Gray Butte, Sugar Pine Butte
and Round Mountain sites. I agree. 4

4

In seeking summary judgment on the Forest Service's counterclaims,
Western Radio argues that the agency's sole remedy lies under the APA.
Western Radio misapprehends the nature of the Forest Service's claims
as well as the APA' s scope. The APA provides for judicial review of agency
action; it is not a mechanism for review of agency claims against a lessee
or permittee whose authorization to remain on federal lands has expired
or otherwise terminated. In similar cases, the government generally
brings claims for trespass; such actions are preferred as they provide
the lessee or permittee with adequate due process before the removal
of unauthorized property or operations from federal lands. See, e.g.,
United States v. Brunskill, 792 F.2d 938 (9th Cir. 1986) (government
filed suit seeking injunctive relief to vacate mining site); United
States v. Moore, 2010 WL 373863 (D. Or. Jan. 28, 2010) (government filed
suit for trespass and sought ejectment of property from mining site);
United States v. Tracy, 2009 WL 3780936 (D. Or. Nov. 10, 2009)
(government filed claims for trespass and ejectment of property from
mining site)
Indeed, the Forest Service previously has brought trespass claims
against Western Radio; claims that were granted on summary judgment and
upheld by the Ninth Circuit long before Western Radio filed its motion
for partial summary judgment in this case. See Oberdorfer v. Jewkes,
19 - OPINION AND ORDER

Federal and Oregon courts refer to the Restatement of Torts when
considering a trespass claim. See United States v. Milner, 583 F. 3d 1174,
1182 (9th Cir. 2009); Martin v. Reynolds Metals Co., 221 Or. 86, 101,
342

P.2d

790

(1959).

A person

is

liable

for

trespass

"if

he

intentionally: (a) enters land in the possession of the other, or causes
a thing or a third person to do so, or (b) remains on the land, or (c)
fails to remove from the land a thing which he is under a duty to remove."
Restatement (Second) of Torts

§

158.

Here, the Forest Service informed Western Radio that its authority
to operate at Gray Butte and Round Mountain expired on December 31, 2013
and that its facilities must be removed by July 2014. The Forest Service
also revoked Western Radio's lease to operate at Sugar Pine Butte as
of February 14, 2014, and that decision was affirmed on July 23, 2014.
Nonetheless,

Western

Radio

remains

at

these

sites

without

authorization, has not removed its facilities, and has allowed a third
party to install additional equipment at Gray Butte.
As discussed above, the Forest Service's reasons for declining to
renew and for revoking Western Radio's leases were neither arbitrary
nor capricious. Therefore, Western Radio has no authorization to remain

583 Fed. Appx. 770, 774 (9th Cir. July 24, 2014) ("For similar reasons,
no rational trier of fact could have found for Western Radio on the Forest
Service's trespass claim based on the record before the district court .
. . . The absence of a special use authorization signed by both parties
. . . and the District Ranger's June 2010 letter outlining additional
steps on which construction authorization was contingent, establish
that Western Radio's construction exceeded the scope of any consent
granted by the Forest Service.") , cert. denied sub nom. W. Radio Servs.
Co. v. United States, 135 S. Ct. 1901 (2015).
20 - OPINION AND ORDER

at those sites, and the Forest Service has established that Western Radio
is in trespass at the Gray Butte, Sugar Pine Butte, and Round Mountain
telecommunications

sites.

See

Oberdorfer,

583

Fed.

Appx.

at

774

(affirming summary judgment on trespass claim) .
The Forest Service also seeks a declaration that Western Radio's
facilities have become property of the United States, because Western
Radio did not remove such facilities in the time allowed by the Forest
Service. The

Forest

Service

relies

on

36

C.F.R.

§

251.60.

This

regulation provides:
Upon
revocation
or
termination
of
a
special
use
authorization, the holder must remove within a reasonable
time the structures and improvements and shall restore the
site to a condition satisfactory to the authorized officer,
unless the requirement to remove structures or improvements
is otherwise waived in writing or in the authorization. If
the holder fails to remove the structures or improvements
within a reasonable period, as determined by the authorized
officer, they shall become the property of the United States,
but holder shall remain liable for the costs of removal and
site restoration.
36 C.F.R. § 251.60(i). The Forest Service argues that Western Radio
failed to remove its facilities within the reasonable time allowed by
the agency, and that such facilities now belong to the United States.
However, Western Radio filed suit to challenge the Forest Service's
decisions in May 2014, before the Forest Service's deadline for removal
of Western Radio facilities at the Gray Butte and Round Mountain sites
and before the Forest Service affirmed the revocation of Western Radio's
lease at Sugar Pine Butte. Aside from the facilities as Gray Butte, the
Forest Service has not sought the removal of Western Radio's facilities.
Further, even though the Forest Service sought preliminary injunctive
21 - OPINION AND ORDER

relief to require the removal of Western Radio's facilities at Gray
Butte, the court declined to order such relief.
Therefore, even though Western Radio is in trespass, I do not find
that its facilities have become property of the United States in these
specific

circumstances.

Rather,

the

court

is

inclined

to

enter

injunctive relief, affording Western Radio the opportunity to remove
its facilities within a reasonable time frame as set forth by the Forest
Service.
2. Unjust Enrichment Counterclaim
The

Forest

Service

also

seeks

summary

judgment

on

its

counterclaim for unjust enrichment. The Forest Service alleges that by
maintaining

facilities

at

the

telecommunications

site

without

authorization, Western Radio has unjustly profited at the expense of
the federal government. The Forest Service seeks $29, 279. 58 in fees that
Western Radio would have been charged if it had obtained authorization
to remain at the sites, as well as the disgorgement of profits it attained
during that time.
Unjust enrichment is a theory of "quasi-contract" based on an
implied contract. See Summer Oaks Ltd. P'ship v. McGinley, 183 Or. App.
645, 654, 55 P.3d 1100 (2002). The theory of unjust enrichment provides
a remedy where no enforceable contract exists, and 1) one party has
conferred a benefit on another, 2) the recipient is aware that a benefit
has been received, and 3) "under the circumstances, it would be unjust
to allow retention of the benefit without requiring the recipient to
pay for it." Id. at 654.
22 - OPINION AND ORDER

I find that the Forest Service has established the elements of
unjust enrichment against Western Radio. The permits and leases between
the parties have expired or otherwise have terminated and no enforceable
contracts exist. Nonetheless, Western Radio has remained at the sites
without paying fees and continues to operate its facilities and receive
revenue. Thus, Western Radio has received the benefit of remaining on
the sites, despite the lack of authorization, and it is aware of such
benefit. Under the circumstances, it would be unjust for Western Radio
to retain this benefit.
According to the Forest Service, Western Radio owes the Forest
Service $29.279.58 for the three sites in question, including fees for
tenants who are Internet Service Providers (ISP). Perry Deel. Ex. D.
The Forest Service provided evidence detailing the fees owed at each
site,

including

"rental sheets" to

calculate

fees

per tenant

and

customer of Western Radio. Id. Exs. A-C. Western Radio does not contest
the Forest Service's calculations, and I find the amount to be supported
with sufficient evidence. Therefore, Western Radio is ordered to pay
$29,279.58 in fees it would have owed had it retained authorization to
remain at the three sites. Further, I note that the fee calculations
were submitted in July 2015, and that additional fees may be owed.
The Forest Service also seeks the disgorgement of monies paid to
Western Radio by its customers and tenants during the time it operated
without authorization, approximated to be $149, 950. 76. Burke Deel. Ex.
A.

The Forest Service contends that it is entitled to recover this

income, because the structures and improvements at the communications
23 - OPINION AND ORDER

sites became property of the United States after Western Radio failed
to remove them. The Forest Service emphasizes that Western Radio should
not be allowed to retain the benefit of income obtained from its trespass
and disregard of federal law and regulations.
However, as explained above, I do not find that Western Radio's
facilities became property of the United States, as it challenged the
Forest Service's decisions before expiration of the removal deadlines
at Gray Butte and Round Mountain and before affirmance of the Sugar Pine
Butte

lease

revocation.

Though

I

recognize

the

Forest

frustration with Western Radio's unauthorized conduct,

Service's

the revenue

received by Western Radio would not have gone to the Forest Service in
any event. I thus find no basis to disgorge the monies paid by tenants
with existing agreements as of the date Western Radio filed suit.
I find it a closer call with respect to any profit Western Radio
gained through its agreement with Sureline, given that Western Radio
entered into that agreement after receiving notice that it no longer
had authorization to operate at Gray Butte. At the same time, I declined
to grant the Forest Service's previous motion for injunctive relief to
cease Western Radio's operations as Gray Butte. As a result, it is not
appropriate to order Western Radio to disgorge those profits.

C.

The Forest Service's Motion for Preliminary Injunction
Finally, the Forest Service renews its motion for a preliminary

injunction requiring Western Radio to either shut down its facilities
at Gray Butte or to remove Sureline's equipment. The Forest Service
argues that Western Radio not only lacks authority to remain at Gray
24 - OPINION AND ORDER

Butte, but it has completely disregarded Forest Service regulations by
allowing Sureline to install equipment and use frequencies that cause
interference with other authorized site users.
In

light

of

the

court's

finding

that

Western

Radio

authorization to maintain its facilities at Gray Butte,

has

no

injunctive

relief is appropriate. Not only has the Forest Service established
success on the merits, its motion establishes Western Radio's continued
disregard of the Forest Service's authority and irreparable harm to
other users. Accordingly, Western Radio is ordered to remove Sure line's
equipment from the Gray Butte site and cease its operations at Gray Butte
immediately.
CONCLUSION AND ORDER
The Forest Service's Motions for Summary Judgment and Preliminary
Injunction (doc. 116, 119, 141) are GRANTED and plaintiff's Motion for
Partial Summary Judgment (doc. 120) is DENIED. Pending final judgment
in this case, Western Radio shall cease its operations at Gray Butte
and remove Sureline's equipment from that site immediately. The Forest
Service shall submit a proposed form of judgment and a
memorandum within 21 days from the date of this Order.
IT IS SO ORDERED.
""Cod COie

"d~-

day of November, 2015.

~lL~:A.~ak~'

c.....,_,,,_____,
Ann Aiken
United States District Judge

25 - OPINION AND ORDER

supporting