Western Radio Services Co. v. John Allen

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 16-35105
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN RADIO SERVICES No. 16-35105 COMPANY, INC., D.C. No. 6:14-cv-00747-AA Plaintiff-Appellant,

v. MEMORANDUM*

JOHN ALLEN, Deschutes National Forest Supervisor; KATE KLEIN, Ochoco National Forest Supervisor; KEVIN LARKIN, Bend-Fort 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; UNITED STATES FOREST SERVICE; KENT CONNAUGHTON, Regional Forester; MAUREEN HYZER, Acting Regional Forester,

Defendants-Appellees.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted March 7, 2018 Portland, Oregon

Before: FISHER, N.R. SMITH and HURWITZ, Circuit Judges.

Western Radio Services Company, Inc. (Western Radio) appeals the district

court’s dismissal of its claims under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and summary judgment in

favor of the United States Forest Service on its claims under the Administrative

Procedure Act, 5 U.S.C. §§ 702-706 and the Forest Service’s counterclaims for

trespass and unjust enrichment. We have jurisdiction under 28 U.S.C. § 1291, we

review de novo, see Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d

923, 929 (9th Cir. 2010), and we affirm.

1. The district court properly dismissed Western Radio’s Bivens claims as

foreclosed by precedent. See W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d

1116, 1122-23 (9th Cir. 2009) (“[T]he APA leaves no room for Bivens claims

based on agency action or inaction.”).

We decline Western Radio’s invitation to fashion a Bivens remedy for those

Forest Service decisions not subject to administrative appeal – for example, the

2 Forest Service’s decision not to renew certain leases and permits upon expiration –

because the absence of authorized appeal procedures does not necessarily render an

agency’s decision any less final. See Darby v. Cisneros, 509 U.S. 137, 146 (1993)

(“When an aggrieved party has exhausted all administrative remedies expressly

prescribed by statute or agency rule, the agency action is final for the purposes of

[the APA] and therefore subject to judicial review . . . .” (internal quotation marks

omitted)); cf. W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1196-97 (9th Cir.

1997) (holding a challenge to proposed construction was not ripe for review until

the Forest Service concluded its environmental assessment). Western Radio gives

us no reason to believe the Forest Service’s multiple formal notifications of its

decisions do not constitute “final agency action” under the APA, and we review

them accordingly. See Darby, 509 U.S. at 144-46 (defining “final agency action”

under 5 U.S.C. § 704).

2. The district court also properly concluded the Forest Service acted

rationally when it (1) revoked Western Radio’s existing lease at Sugar Pine Butte;

(2) rejected new leases and permits at Sugar Pine Butte, Gray Butte and Round

Mountain; (3) back-billed Western Radio for a tenant’s rent at Gray Butte;

(4) rejected Western Radio’s permit and development plans at Sugar Pine Butte

and South Paulina Peak; and (5) demanded removal of Western Radio’s facilities.

3 Western Radio has neither pointed to any arbitrary or irrational action by the Forest

Service nor identified any further process to which Western Radio was entitled

before the revocation or non-renewal of its leases and permits. The Forest

Service’s decisions were not contrary to the evidence before the agency or

implausible in light of it. See Turtle Island Restoration Network v. U.S. Dep’t of

Commerce, 878 F.3d 725, 732-33 (9th Cir. 2017).

3. Finally, the district court properly granted summary judgment on the

Forest Service’s counterclaims for trespass and unjust enrichment. Contrary to

Western Radio’s argument, trespass does not require a showing of “interference”

with the land or its facilities. See Rich v. Tite-Knot Pine Mill, 421 P.2d 370, 373

(Or. 1966). We likewise reject Western Radio’s argument that the parties’ then-

expired lease provisions constrained the Forest Service’s options for collecting

unpaid fees; the Forest Service properly brought an unjust enrichment claim and

was awarded the fees Western Radio would have been charged had it obtained

authorization to continue operating at the relevant sites.

AFFIRMED.