IN THE UNITED STATES COURT OF FEDERAL CLAIMS ___________________________________ ) WESTERN RADIO SERVICES, INC., ) ) Plaintiff, ) ) v. ) No. 21-1623 ) THE UNITED STATES, ) Filed: February 19, 2025 ) Defendant. ) ___________________________________ )
OPINION AND ORDER
In this takings action, Plaintiff Western Radio Services, Inc. (“Western Radio”) asserts that
the Government effectuated a taking of its radio service tower facilities in Oregon without just
compensation. The tower facilities in question were located on federal land, and Western Radio
operated them pursuant to leases with the United States Forest Service (“Forest Service”). The
Forest Service either revoked or did not renew these leases, and subsequently Western Radio failed
to take down the towers at issue, which it was required to do both by operation of the leases and
by regulation. As a result, the Forest Service changed the locks on the tower facilities to bar
Western Radio from accessing them. Ultimately, the Forest Service physically removed the tower
facilities from the sites. Before the Court is the Government’s Motion for Summary Judgment.
The Government argues that Western Radio had no cognizable property interest in the tower
facilities at the times of the alleged takings, and thus the Government is entitled to judgment as a
matter of law. For the reasons outlined below, the Court GRANTS the Government’s Motion. I. BACKGROUND
A. Factual Background
For several decades, Western Radio constructed and operated radio service tower facilities
on federal land in central Oregon. See Gov’t’s App. 1–44, ECF No. 39–1 (hereinafter “GA”). 1
There are four federal land sites at issue in this case—Walker Mountain, Round Mountain, Gray
Butte, and Sugar Pine Butte—at which Western Radio constructed tower facilities and conducted
business pursuant to Communications Leases with the Forest Service. Id.
From the early 2000s onward, there were several disputes between the Forest Service and
Western Radio about the various leases, particularly concerning Western Radio’s noncompliance
with certain lease terms. GA 77, 152, 166, 175, 232. Beginning in 2010, the Forest Service
declined to renew or revoked the leases between Western Radio and the Forest Service at each site.
GA 77–78, 156–57, 164–69, 178–79. Litigation ensued. GA 51–57, 85–89, 187–98. The Court
outlines the history of the four sites, their corresponding leases, and their litigation history in turn. 2
Walker Mountain. Western Radio and the Forest Service entered into the initial Walker
Mountain lease in 2000. GA 1. The lease permitted Western Radio to use a specific parcel of land
on Walker Mountain to construct and operate a radio communications facility, including a radio
service tower. GA 59. In 2006, Western Radio proposed replacing the tower with a new one; and
in 2009, the Forest Service approved this tower replacement subject to technical review. GA 59–
1 The Government filed its Appendix as five separate attachments to its Motion for Summary Judgment. For ease of reference, citations to the Government’s Appendix refer to the consecutively paginated numbers preceded by the letter “A” beginning on the fifth page of ECF No. 39-1 and ending on the last page of ECF No. 39-5. 2 The Court’s recitation relies in part on findings made in prior litigation related to the parties’ leases and their conduct at the four sites. As the lawfulness of the parties’ actions were determined by the district courts in those cases, this Court is not permitted to re-examine those questions here. 2 60. In August 2010, without final authorization from the Forest Service, Western Radio built the
new tower. GA 61.
Asserting that the 2010 improvements at Walker Mountain were not authorized, the Forest
Service sued Western Radio in 2011 for breach of contract, negligence per se, and trespass in the
United States District Court for the District of Oregon (“2011 District Court Action”). GA 51–57.
On August 29, 2012, the district court granted the Forest Service’s motion for summary judgment
as to its breach of contract and trespass claims. GA 58–70. On May 3, 2013, the court ordered as
a remedy for the trespass claim that Western Radio remove all trespassing structures (the new
tower, tower base, concrete pad, and adjoining building) by no later than August 15, 2013. GA
71–76. However, the court declined to grant the Forest Service’s requested relief for the breach of
contract claim—cancellation of the lease—because “the parties had specifically agreed in their
lease to an administrative revocation procedure should Western Radio fail to comply with the lease
terms.” GA 72. Western Radio appealed the district court’s decision, and on July 5, 2013, the
court stayed its judgment pending appeal. GA 137–38 (amending and staying judgment).
Meanwhile, on February 4, 2013, the Forest Service revoked Western Radio’s lease. GA
77–78. In its lease revocation decision, the Forest Service notified Western Radio that it was
“required to remove all structures and improvements, including but not limited to those previously
authorized and those found to be in trespass, from the Walker Mountain Communication Site and
restore the site as near as reasonably possible to its original condition by July 1, 2013.” GA 77.
The letter further provided that Western Radio’s failure to remove all structures and improvements
in trespass would result in their becoming “the property of the United States,” in which case they
“may be sold, destroyed, or otherwise disposed of without any liability to the United States,”
consistent with section V.B. of the lease and 36 C.F.R. § 251.60(i). Id. On March 20, 2013,
3 Western Radio appealed the Forest Service’s decision to revoke the lease. GA 81. In June of the
same year, Western Radio’s first- and second-level administrative appeals of the revocation were
denied. GA 81, 83. The second-level appeal constituted the agency’s final administrative
determination. GA 96–97.
On July 15, 2013, the Forest Service filed a second complaint in the District of Oregon
(“2013 District Court Action”) requesting that the court declare the Walker Mountain lease
cancelled and the United States the legal owner of the structures and improvements on the site.
GA 85–89. Western Radio brought a counterclaim under the Administrative Procedure Act
(“APA”). GA 92. On April 28, 2014, the district court granted the Forest Service’s motion for
summary judgment, declaring that (1) the Walker Mountain lease was properly revoked and was
cancelled, and (2) the revocation of the lease did not violate the APA. GA 90–115. Western Radio
appealed. GA 122. The district court rejected Western Radio’s request to stay the judgment
pending direct appeal but agreed to a stay pending resolution of the appeal in the 2011 District
Court Action. GA 123 (ECF No. 73) (staying case until issuance of mandate in related appeal, if
defendant did not prevail in such appeal). In 2016, the United States Court of Appeals for the
Ninth Circuit affirmed the district court’s decision in the 2013 District Court Action. See United
States v. W. Radio Servs. Co., 664 F. App’x 677, 679 (9th Cir. 2016).
Contemporaneously, the appeal of the district court’s decision in the 2011 District Court
Action for breach of contract and trespass was also moving through the appellate process. On July
24, 2014, the Ninth Circuit held that the district court correctly granted summary judgment to the
Forest Service on its breach of contract and trespass claims, and did not abuse its discretion in
ordering removal of the new tower. GA 129–30. The Ninth Circuit’s mandate issued on December
4, 2014. GA 131. The district court thereafter extended the stay of the judgment in the 2011
4 District Court Action pending Western Radio’s appeal to the United States Supreme Court. GA
140. The court lifted the stay on April 30, 2015, after the Supreme Court denied Western Radio’s
petition for a writ of certiorari, and ordered Western Radio to complete removal of the new tower
by August 15, 2015. Id. Western Radio thereafter removed the new tower, but it did not take down
the original tower. GA 292–93.
Following the issuance of the Ninth Circuit mandate in December 2014, the Forest Service
attempted to enforce the revocation of the Walker Mountain lease consistent with the judgment in
the 2013 District Court Action. The Department of Justice (as counsel for the Forest Service) sent
Western Radio a letter dated December 16, 2014, directing it “to remove all structures and
improvements by June 15, 2015,” or else the Government would “take control of the site and
exercise [its] rights as owners of the property.” GA 132. That deadline came and went. Despite
a July 2, 2015 letter extending the deadline to August 15, 2015, Western Radio continued its
presence at the site and failed to remove the original tower. GA 141. Finally, on August 21, 2015,
the Forest Service changed the locks on the original tower at Walker Mountain. GA 142. On
September 4, 2015, the Forest Service gave Western Radio access to the original tower to remove
the items inside, which it did aside from a generator and items belonging to one of Western Radio’s
tenants. GA 144, 294–95. On September 10, 2015, the Forest Service removed the original tower
from Walker Mountain. GA 144.
Round Mountain, Gray Butte, and Sugar Pine Butte. The other three sites at issue in this
case follow a similar story. The Round Mountain lease began in 1996 and was terminated in 2001,
though Western Radio remained on the property for about 11 years as a holdover tenant. GA 44,
178. On December 10, 2012, the Forest Service sent Western Radio a noncompliance notice based
on an August 2012 inspection of the tower facility. GA 175–77. On December 28, 2012, the Forest
5 Service notified Western Radio that it would not continue to accept the company’s status as a
holdover tenant. GA 178. It advised that the holdover status would officially end on December
31, 2013, unless Western Radio obtained a new lease. Id. Western Radio thereafter applied for a
new lease, but the Forest Service rejected its proposals. GA 180 (April 4, 2013 denial due to
incompleteness), 181 (December 13, 2013 denial due to Western Radio’s failure to meet screening
criteria). On January 30, 2014, the Forest Service sent Western Radio a letter directing it to remove
all structures and improvements at Round Mountain by July 31, 2014. GA 183. As with Walker
Mountain, the letter advised that, per section V.B. of the lease, all property remaining after July
31, 2014, would become the property of the United States and may be removed without liability
to the United States. Id.
In 1999, the Forest Service likewise issued a communications lease to Western Radio at
Gray Butte. GA 6–12. The lease expired in 2006, after which the Forest Service accepted Western
Radio as a holdover tenant—just as it had at Round Mountain—for more than six years. GA 156.
On December 28, 2013, the Forest Service informed Western Radio that it would no longer
continue to accept the company as a holdover tenant. Id. A few days later, in a December 31,
2013 letter, the Forest Service rejected Western Radio’s proposal for a new lease for failure to meet
the screening criteria. GA 158. Following a similar pattern as the non-renewal of the Round
Mountain lease, in a January 30, 2014 letter, the Forest Service directed Western Radio to remove
all structures and improvements on the Gray Butte site by July 31, 2014, and specified that if the
structures were not removed by that date, they would become the property of the United States and
may be removed without liability to the United States consistent with section V.B. of the lease.
GA 160.
6 Finally, the Forest Service issued the Sugar Pine Butte lease on January 20, 2004. GA 13.
After sending Western Radio two notices of noncompliance for failure to annually report tenants
using the facility, which Western Radio failed to cure, the Forest Service revoked the lease on
February 14, 2014. GA 164, 166. As with the other sites, the Forest Service directed Western
Radio to remove all structures and improvements at Sugar Pine Butte, setting a deadline of May
1, 2014. GA 164. This was consistent with the 120-day period provided for in section V.B. of the
lease. Id. The Forest Service similarly advised that failure to meet the removal deadline would
result in the United States obtaining ownership of the structures and improvements, per the terms
of the lease and 36 C.F.R. § 251.60(i). Id. Western Radio filed an administrative appeal of this
decision on March 28, 2014. GA 232. On June 26, 2014, the Forest Service denied the appeal.
GA 170. The Acting Regional Forester affirmed the decision to revoke the lease on July 23, 2014,
in an additional discretionary review. GA 172.
Western Radio sued the Forest Service in the District of Oregon on May 5, 2014 (“2014
District Court Action”), alleging that the Forest Service violated the APA when it failed to renew
or revoked the leases at Round Mountain, Gray Butte, and Sugar Pine Butte and, in the alternative,
pleading a Bivens claim. GA 187–98. The Forest Service asserted counterclaims for trespass and
unjust enrichment at all three sites. GA 212–20. On or around October 20, 2015, while the suit
was still pending, the Forest Service changed the locks on the towers at Round Mountain, Gray
Butte, and Sugar Pine Butte, barring Western Radio’s access to the facilities. GA 221.
About a month later, on November 24, 2015, the district court granted the Forest Service’s
motion for summary judgment and a few weeks later, on December 18, 2015, issued a permanent
injunction, requiring Western Radio to remove all its property from the three sites. GA 246–49.
As to timing, the court’s order required removal within 14 days of the Forest Service’s providing
7 written notice, but the court specified that such notice should not be given prior to May 15, 2016.
GA 248. If not timely removed, any remaining facility became “the property of the United States.”
Id. As with the other suits, Western Radio appealed, but this time no stay pending appeal was
granted. The Ninth Circuit ultimately affirmed the district court’s decision to issue an injunction
ordering the removal of Western Radio’s facilities. See W. Radio Servs. Co. v. Allen, 716 F. App’x
660, 661 (9th Cir. 2018).
Consistent with the district court’s judgment, on June 22, 2016, the Department of Justice
gave Western Radio notice to remove its facilities from Round Mountain, giving it a final removal
deadline of July 6, 2016—greater than the 14 days required by the court. GA 264–65. As of
August 11, 2016, Western Radio had removed one building from Round Mountain, but its tower,
cement foundation, and other equipment remained. GA 262–63. With respect to Sugar Pine Butte,
the Forest Service provided its 14-day notice on July 6, 2016, giving Western Radio until July 20,
2016, to remove its facilities from the site. GA 278–79. As of August 12, 2016, Western Radio
had removed two of its buildings and one of its towers at Sugar Pine Butte but had failed to remove
the concrete foundations and electrical connections. GA 276. Finally, in a July 15, 2016 letter, the
Deparment of Justice gave Western Radio 14-days’ notice to remove its facilities at Gray Butte,
setting a removal deadline of August 1, 2016. GA 268–69. As of August 11, 2016, Western Radio
had removed some of its facilities from Gray Butte, but its buildings, towers, and cement
foundation remained. GA 262. The record includes photographic evidence of the various
buildings and equipment previously belonging to Western Radio at each of the three sites as of
August 2016. GA 266–67, 270–73, 280–82.
It is not clear exactly when the Forest Service physically removed the property remaining
at the three sites. The Government’s counsel represented at oral argument that the remaining
8 structures at Gray Butte and Round Mountain were removed by the Forest Service “after August
2016.” Oral Arg. Tr. at 32:3–25, ECF No. 45. At Sugar Pine Butte, however, the record suggests
that concrete foundations, electrical and other utility connections, and debris remained on the site,
and it is unclear if they were ever removed by the Forest Service. GA 311–12.
B. Procedural Background
The present litigation arises out of disputes between Western Radio and the Forest Service
about the Forest Service’s changing the locks on and ultimately removing the tower facilities at
the four sites. Western Radio alleges that the Forest Service physically took the tower facilities
that Western Radio built and that the Government failed to provide just compensation for these
takings. Pl.’s Am. Compl. ¶¶ 9–10, ECF No. 18. Because of the taking, Western Radio alleges it
was unable to sell the tower facilities. Id. ¶ 19. It seeks $2.3 million in damages, which is the
amount for which Western Radio allegedly could have sold the tower facilities. Id. ¶ 20.
On July 28, 2021, Western Radio filed an initial Complaint, alleging both breach of contract
and takings claims. See Pl.’s Compl., ECF No. 1. On December 13, 2021, the Government filed
a Motion to Dismiss Plaintiff’s Complaint for failure to state a claim under Rule 12(b)(6) of the
Rules of the United States Court of Federal Claims (“RCFC”). See Gov’t’s Mot. to Dismiss, ECF
No. 9 (also moving under Rule 12(b)(1) to dismiss breach of contract claim for lack of jurisdiction).
In response to the Motion, Western Radio sought leave to amend its Complaint to eliminate its
breach of contract claim, acknowledging that a plaintiff in the Court of Federal Claims cannot
simultaneously claim that the Government acted in violation of a lease obligation and also effected
a taking of a plaintiff’s property, since a takings claim requires that the Government’s actions be
lawful. See Pl.’s Resp. to Mot. to Dismiss at 9–10, ECF No. 13. On December 20, 2022, the Court
denied the Government’s Motion to Dismiss as moot and ordered Western Radio to file an
Amended Complaint. See Order Den. Mot. to Dismiss, ECF No. 17. 9 Western Radio filed an Amended Complaint on January 10, 2023, removing its breach of
contract claims. See ECF No. 18. The Government filed an Answer on February 7, 2023, and
after completion of discovery, moved for summary judgment on April 22, 2024. See Answer, ECF
No. 20; Gov’t’s Mot. for Summ. J., ECF No. 39. It argues that the Government is entitled to
judgment as a matter of law because Western Radio had no cognizable property interest in the
tower facilities upon which a taking claim can be premised. See ECF No. 39 at 18. Western Radio
filed its Response on June 7, 2024, and the Government replied on June 20, 2024. See Pl.’s Resp.
to Mot. for Summ. J., ECF No. 41; Gov’t’s Reply, ECF No. 42. The Court held oral argument on
November 13, 2024. The motion is therefore ripe for decision.
II. LEGAL STANDARD
Summary judgment is warranted when “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.” RCFC 56(a). A
fact is material when it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is genuine when a finder of fact may reasonably resolve
factual issues in favor of either party. Id. at 250.
“When deciding a summary judgment motion, all of the nonmovant’s evidence is to be
credited, and all justifiable inferences drawn in the nonmovant’s favor.” Ruiz v. A.B. Chance Co.,
234 F.3d 654, 671 (Fed. Cir. 2000) (citing Anderson, 477 U.S. at 255); see Dairyland Power Coop.
v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994). The Court need not limit its review to
materials only cited by the moving party when considering a summary judgment motion. See
RCFC 56(c)(3). The Court “has discretion to consider other materials in the record when making
its determination.” 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2721 (4th ed.).
10 The moving party bears the burden of proving the absence of a genuine dispute of material
fact but “may discharge its burden by showing the court that there is an absence of evidence to
support the nonmoving party’s case.” Dairyland Power, 16 F.3d at 1202 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). If the moving party meets its initial burden, the burden shifts
to the nonmoving party to set out specific facts showing a genuine issue for trial. See Anderson,
477 U.S. at 250. The nonmoving party may not simply rely on the pleadings and must do more
than make “conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990).
Summary judgment must be granted for the moving party if the nonmoving party “fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322–23. In
such a case, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 323.
III. DISCUSSION
Based on a review of the leases, the prior district court litigation, the applicable regulations,
and other relevant evidence submitted by the parties, the Court finds that there is no genuine issue
of material fact in dispute. Even taken in the light most favorable to it, Western Radio did not
possess any cognizable property interest in the tower facilities at Walker Mountain, Round
Mountain, Gray Butte, or Sugar Pine Butte at the times of the alleged takings. Thus, no triable
issue remains in this case, and the Government is entitled to judgment as a matter of law because
it did not effectuate any taking of Western Radio’s property.
11 A. Western Radio Cannot Show a Cognizable Fifth Amendment Property Interest Taken By the Government.
The Takings Clause of the Fifth Amendment provides that private property shall not “be
taken for public use, without just compensation.” U.S. Const. amend. V. Such takings can be
physical or regulatory. Cedar Point Nursery v. Hassid, 594 U.S. 139, 148 (2021). In this case,
Western Radio alleges a physical taking. ECF No. 18 ¶¶ 9–10 (alleging that the Forest Service
“physically took possession of” the facilities at the four sites in question).
A physical taking “occurs when government action physically occupies or invades
property.” Cheyenne River Sioux Tribe v. United States, 172 Fed. Cl. 634, 650 (2024) (citing
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982)); see Forest Props.,
Inc. v. United States, 177 F.3d 1360, 1364 (Fed. Cir. 1999) (describing a physical taking as “when
the government itself occupies the property or ‘requires the landowner to submit to physical
occupation of its land’” (quoting Yee v. City of Escondido, 503 U.S. 519, 527 (1992))). A physical
taking can also occur when the Government infringes upon one or more of a plaintiff’s property
rights, including, for example, “when the owner is deprived of use of the property.” Petro-Hunt,
LLC v. United States, 862 F.3d 1370, 1380 (Fed. Cir. 2017); see also Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1027 (1992) (“‘[T]akings’ jurisprudence . . . has traditionally been guided by the
understandings of our citizens regarding the content of, and the State’s power over, the ‘bundle of
rights’ that they acquire.”).
In deciding a takings case, the Court must first determine “whether the claimant has
identified a cognizable Fifth Amendment property interest that is asserted to be the subject of the
taking.” Acceptance Ins. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009); see Resource Invs.,
Inc. v. United States, 85 Fed. Cl. 447, 478 (2009) (“Before assessing plaintiffs’ categorical takings
claim, this court must, as a threshold matter, determine whether plaintiffs possessed a property
12 interest protected by the Fifth Amendment.”). Only after determining whether a plaintiff possessed
a valid property interest can the Court turn to the question of “whether that property interest was
taken.” Acceptance Ins., 583 F.3d at 854.
Here, Western Radio alleges that its property interest was taken when the Forest Service
changed the locks on the tower facilities at the various sites in question. See ECF No. 41 at 12.
Alternatively, Western Radio alleged at oral argument that the takings occurred when the Forest
Service later physically removed the tower facilities from the sites. See ECF No. 45 at 21:22–
22:6. Western Radio, however, is not clear about exactly what property interest the Government
allegedly “took.” See ECF No. 41 at 2, 12; ECF No. 45 at 21:14–18. In the Court’s view, there
are two potential property interests at issue in this takings case: first, Western Radio’s right to do
business at the sites in question, and second, Western Radio’s ownership right in the physical
property—i.e., the tower facilities themselves—at the sites. Each is a property interest that could
be the subject of a Fifth Amendment taking. See, e.g., Sun Oil Co. v. United States, 572 F.2d 786,
818 (Ct. Cl. 1978) (“As a general proposition, a leasehold interest is property, the taking of which
entitles the leaseholder to just compensation for the value thereof.”); United States v. Gen. Motors
Corp., 323 U.S. 373, 377–78 (1945) (holding that the Fifth Amendment protects rights to possess,
use, and dispose of physical property). At oral argument, Western Radio clarified its position and
described the property interest at issue as “the resale value” of the towers, suggesting that it was
the combination of the leasehold rights and the physical tower facilities. See ECF No. 45 at 18:18–
20:7.
Regardless of how the property interest is defined, neither the Forest Service’s changing of
the locks nor its removal of the towers constituted a taking because Western Radio had lost the
relevant property rights by the times of those government actions. If the property interest is defined
13 as the right to do business at the sites, an alleged taking would have occurred if the Forest Service
changed the locks on the tower facilities when Western Radio still possessed its right to operate at
those facilities, because changing the locks barred Western Radio from accessing and operating
them. See, e.g., Lucas, 505 U.S. at 1017 (“[T]otal deprivation of beneficial use is . . . the equivalent
of a physical appropriation.”). Alternatively, if the property interest is defined as the ownership
right in the physical towers, an alleged taking would have occurred if the Forest Service had
physically removed the tower facilities when they were still owned by Western Radio. See, e.g.,
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005). There is no evidence in the record that
either of those scenarios occurred; indeed, the evidence before the Court demonstrates the contrary.
The Court reaches this conclusion by first analyzing the sources of law that establish the parties’
respective rights and obligations at the sites—i.e., the Communications Leases, applicable
regulations, and court orders—and then by assessing the undisputed facts surrounding the
revocation and non-renewal of the leases.
1. The Communications Leases, Applicable Regulations, and Court Orders Define the Property Interests at Issue.
The property interests at issue in this case are primarily defined by contracts. As the
Federal Circuit’s predecessor court explained, the Fifth Amendment “has limited application to the
relative rights in property of parties litigant which have been voluntarily created by contract.” J.J.
Henry Co. v. United States, 411 F.2d 1246, 1249 (Ct. Cl. 1969). This is, in part, because the rights
and responsibilities of parties to a contract are generally laid out in the contract itself, including
what happens in the event of a breach, non-renewal, or revocation. Because the property rights at
issue in this case are definitively governed by the lease contracts, the property interest analysis for
the purpose of these takings claims can largely be resolved through reference to the lease contracts.
Compare Integrated Logistics Support Sys. Int’l, Inc. v. United States, 42 Fed. Cl. 30, 34–35 (1998)
14 (acknowledging that, if the “transfer of property to the Government” occurred “pursuant to a
lawfully executed bilateral agreement, the Government cannot be compelled to render just
compensation for the alleged taking of such property” but declining to dismiss a takings claim
because the court could not determine whether the contract addressed the rights at issue), with
Commonw. Edison Co. v. United States, 56 Fed. Cl. 652, 656 (2003) (dismissing plaintiff’s
argument that its “real property rights” were “separate and distinct” from its contractual rights).
Each of the leases corresponding to the four sites in question spells out the rights and
responsibilities of the Forest Service and Western Radio. GA 1–50. The question of whether the
Forest Service followed the correct contractual procedures as to revocation and non-renewal was
extensively litigated—and affirmatively answered—in district court. GA 58–76, 90–115, 222–46.
In addition, the regulatory scheme further defines the rights and obligations of parties who, like
Western Radio, are authorized by the Forest Service to conduct business on federal land. The
regulations provide that any commercial use of National Forest System lands requires special use
authorization by the Forest Service. 36 C.F.R. § 251.50(a) (2004). Such authorization may be
terminated, revoked, or suspended, in which case “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.” 36 C.F.R. § 251.60(i) (2010). “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.” Id.
As discussed below, these sources of law—the leases, the regulations, and the prior
litigation as to the proper revocations and non-renewals of the leases—make clear that there is no
dispute of materal fact in this case.
15 2. The Undisputed Facts Show that Western Radio Did Not Have a Fifth Amendment Property Interest at Any Site at the Times of the Alleged Takings.
By the time the Forest Service acted to bar Western Radio from its tower facilities at each
site and by the time it physically removed the remaining facilities, Western Radio did not possess
any compensable property rights within the meaning of the Fifth Amendment. This is true whether
the property interest is considered to be Western Radio’s right to do business at the tower facilities
or its interest in the physical structures.
a. By August and October 2015, Western Radio Had Lost the Right to Do Business at the Four Sites, so the Changing of Locks on the Towers Was Not a Taking.
Although “[t]aking claims rarely arise under government contracts because the
Government acts in its commercial or proprietary capacity in entering contracts, rather than in its
sovereign capacity,” Hughes Commc’ns Galaxy, Inc. v. United States, 271 F.3d 1060, 1070 (Fed.
Cir. 2001), there are some circumstances in which government acts concerning contracts can
constitute a taking. Binding precedent has found that a government agency breaking or changing
locks on a plaintiff’s private property constitutes a taking, but only when the plaintiff still had a
property interest in the property at the time of the locks being changed. See Skip Kirchdorfer, Inc.
v. United States, 6 F.3d 1573, 1582 (Fed. Cir. 1993) (explaining that “physical invasion—complete
with broken locks at early morning hours” constituted “a substantial physical intrusion” amounting
to a taking). The distinction here is that, by operation of the revocation and non-renewal decisions
(which were all affirmed by court orders), Western Radio had lost any right to do business or to
continue operating at Walker Mountain, Round Mountain, Gray Butte, and Sugar Pine Butte at the
times that the Forest Service changed the locks on the tower facilities.
Walker Mountain. As with each of the four sites in question, the relative rights of the
parties at Walker Mountain were governed by the terms of the lease between the Forest Service
and Western Radio. The Forest Service revoked that lease on February 4, 2013. GA 77. Because 16 any commercial use of the site required special use authorization by the Forest Service, see 36
C.F.R. § 251.50(a) (2004), revocation of the lease meant Western Radio lost its right to do business
at the site—including at the original tower—“effective immediately.” GA 77.
Although Western Radio filed suit challenging the revocation decision, the District of
Oregon entered judgment in the Forest Service’s favor on April 28, 2014, finding the Walker
Mountain lease properly revoked and cancelled. GA 114–16. That judgment was stayed, but only
pending appeal of the decision in Western Radio’s 2011 District Court Action involving breach of
contract and trespass. GA 123. The Ninth Circuit’s mandate in that appeal issued on December
4, 2014. GA 131. Western Radio fully exhausted its appeal rights in the 2011 District Court Action
as of April 30, 2015, when the Supreme Court denied Western Radio’s cert petition. GA 140.
Thus, Western Radio lost its right to do business at the original tower well before August 21, 2015,
when the Forest Service changed the locks. 3 GA 141.
Both the lease revocation and the court order establish that Western Radio had no right to
do business at the original tower at Walker Mountain by the time the Forest Service changed the
locks. Without establishing a relevant property right at the time of the alleged taking—here, the
changing of the locks—Western Radio cannot establish the threshold element of a Fifth
Amendment taking. Resource Invs., 85 Fed. Cl. at 478.
Round Mountain, Gray Butte, and Sugar Pine Butte. Similarly, the Government revoked
the Sugar Pine Butte lease on February 14, 2014. GA 164. It terminated Western Radio’s holdover
3 That Western Radio’s appeal of the district court’s order affirming the Forest Service’s revocation decision was still pending in the Ninth Circuit at the time the Forest Service changed the locks on the original tower at Walker Mountain is of no moment. The district court entered final judgment in the 2013 District Court Action, and it declined to stay the judgment pending direct appeal. GA 116. In any event, the Ninth Circuit ultimately affirmed. See United States v. W. Radio Servs. Co., 664 F. App’x 677, 679 (9th Cir. 2016). 17 status at Round Mountain and Gray Butte on December 13, 2013, and December 31, 2013,
respectively. GA 156, 178. Accordingly, Western Radio’s right to do business at each of the three
sites was terminated. GA 156, 164, 178; see 36 C.F.R. § 250.50(a) (2004); 36 C.F.R. § 250.60(a)(2)
(2010). For Round Mountain and Gray Butte, the termination date was December 31, 2013. GA
156 (advising Western Radio that Round Mountain lease expired and holdover status “will not be
continued after December 31, 2013”), 178 (same as to Gray Butte); see GA 158, 181 (December
31, 2013 letters declining to renew leases at Gray Butte and Sugar Pine Butte). For Sugar Pine
Butte, the date was February 14, 2014. GA 164 (revoking Sugar Pine Butte lease “effective
immediately”).
As with Walker Mountain, Western Radio’s legal challenge to the revocation and non-
renewal decisions at Round Mountain, Gray Butte, and Sugar Pine Butte failed. Although the
Forest Service changed the locks of the towers at the three sites about one month before the district
court granted summary judgment in the 2014 District Court Action, the court ultimately upheld
the decisions on APA review and found that Western Radio was trespassing at all three sites. GA
230, 232–33, 237, 240. The Ninth Circuit affirmed. See W. Radio Servs. Co., Inc. v. Allen, 716 F.
App’x 660, 661 (9th Cir. 2018). Western Radio, therefore, also cannot establish the threshold
element of a Fifth Amendment taking with respect to these sites at the time the Forest Service
changed the locks. Resource Invs., 85 Fed. Cl. at 478.
b. By September 2015 and August 2016, Western Radio Had No Cognizable Property Interest in the Tower Facilities at the Four Sites, so the Forest Service’s Removal of the Tower Facilities Was Not a Taking.
With respect to the removal of the physical tower facilities, the material property interest
is ownership. While Western Radio lost the right to conduct business at the sites once its leases
were revoked or expired (and not renewed), those decisions did not in themselves transfer
ownership of the physical towers to the Government. Rather, as contemplated by the leases, the 18 revocation and non-renewal decisions, the applicable regulation, and the judgment in the 2014
District Court Action, the Forest Service provided Western Radio with a reasonable period to
remove its structures and improvements. Failure by Western Radio to timely complete removal
resulted in the Government obtaining ownership.
Walker Mountain. With respect to removal of the physical structures, the only tower at
Walker Mountain at issue is the original tower. 4 By operation of both the lease terms regarding
revocation and 36 C.F.R. § 250.60(i) (2010), the Forest Service obtained ownership of the original
tower prior to removing it on September 10, 2015. The lease specified that in the event of
revocation, ownership of the structures and improvements would pass to the Government if
Western Radio did not remove them within an unspecified number of days. GA 4 (indicating a
blank space in the contractual term specifying the number of days for removal). Since no specific
time was made part of the lease, “performance within a reasonable time . . . [was] required.” Asco-
Falcon II Shipping Co. v. United States, 32 Fed. Cl. 595, 602 (1994) (quoting B-E-C-K
Constructors v. United States, 215 Ct. Cl. 793, 801 (1978)). The same provision is reflected in the
applicable regulation, which provides that after the revocation of a special use authorization by the
Forest Service, a holder must remove its structures and improvements “within a reasonable time.”
36 C.F.R. § 251.60(i) (2010). Failure “to remove the structures or improvements within a
reasonable period, as determined by the authorized officer[,]” results in their “becom[ing] the
property of the United States.” Id.
Here, the Walker Mountain lease was revoked on February 4, 2013. GA 77. Western Radio
was initially given until July 1, 2013, to remove all structures and improvements from the site. Id.
4 The structures related to the new tower on Walker Mountain—which was the subject of the 2011 District Court Action—were removed by Western Radio pursuant to the district court’s injunction. GA 76, 140, 192. 19 After Western Radio failed to comply, the Forest Service successfully obtained a judgment in the
2013 District Court Action, declaring that the Forest Service had properly revoked the lease. GA
114–16. Once the stay of the judgment lifted on December 4, 2014, the Forest Service notified
Western Radio that it was required to remove all structures and improvements (to include the
original tower) on Walker Mountain by June 15, 2015. GA 132. The Forest Service subsequently
granted an extension until August 15, 2015. GA 141. Western Radio does not dispute that this
was a reasonable period to effect removal. See ECF No. 45 at 26:25–27:1 (“I haven’t disputed that
a reasonable time hasn’t been provided”). Nor does it dispute that it failed to remove the original
tower by the deadline. GA 293. When Western Radio failed to remove the original tower by
August 15, 2015, the ownership interest in that tower passed to the Government by operation of
law. See GA 4; see also 36 C.F.R. § 250.60(i) (2010). The Government’s ownership of the original
tower at the time of its removal on September 10, 2015, is clear based on the lease’s terms and the
regulation. Accordingly, there is no genuine dispute of material fact that Western Radio did not
have a property right to be “taken” at the facility in question at the time of the alleged taking. Sun
Oil, 572 F.2d at 818 (“[T]he interferences with plaintiffs’ lease rights were grounded on matters
that, at times material herein, bespoke an effort to operate within the framework of the lease and
applicable regulations, not to take plaintiffs’ property rights.”).
Round Mountain, Gray Butte, and Sugar Pine Butte. As to the physical tower facilities at
the other three sites, Western Radio fails to dispute any material fact that would make their removal
by the Government a taking. As with Walker Mountain, each of the Forest Service’s letters
notifying Western Radio of the revocation and non-renewal of its leases set a period for Western
Radio to remove the structures and improvements at the sites, and advised that ownership would
pass to the Government if Western Radio failed to timely comply. GA 156–57 (Gray Butte non-
20 renewal notice), 164–65 (Sugar Pine Butte revocation notice), 178–79 (Round Mountain non-
renewal notice). While the court in the 2014 District Court Action found that ownership did not
transfer at the expiration of those periods due to the pending litigation at the time, GA 242–43, it
enjoined Western Radio to remove all facilities at the three sites within 14-days’ written notice by
the Forest Service, sent no earlier than May 15, 2016, and ordered that “[a]ny facility remaining
at a site after a 14 day notice shall be the property of the United States[,]” GA 248 (declaring that
“[t]he United States is the owner of any facilities that are not removed by Western Radio, as
required by the permanent injunction below”).
The Forest Service complied with the notice requirements, providing removal periods that
expired on July 6, 2016 (Round Mountain), July 20, 2016 (Sugar Pine Butte), and August 1, 2016
(Gray Butte). GA 250–59. It is undisputed that Western Radio failed to timely remove its tower
facilities in accordance with the injunction. 5 Title to the towers and facilities at the three sites
therefore passed, by court order, to the United States by no later than August 1, 2016. GA 248
(“The United States is the owner of any facilities that are not removed by Western Radio.”).
Accordingly, when the Forest Service finally removed the physical structures from the three sites,
Western Radio did not own them.
Furthermore, for at least one of the three sites, Western Radio conceded that title to the
facilities passed to the Government prior to their removal. When asked in deposition whether the
Forest Service or Western Radio owned the facilities that Western Radio had not removed at the
5 Furthermore, Western Radio acknowledges that the Forest Service gave Western Radio ample notice to remove its radio service towers over multiple years of this dispute. See, e.g., ECF No. 45 at 25:14–23 (Western Radio’s counsel explaining, “I mean, how many notices did they send? They sent, you know, 30 or 40 of them.”). Accordingly, there is no colorable argument that Western Radio did not receive notice or have adequate time to arrange for the removal of its property before the Government assumed ownership. 21 Sugar Pine Butte site in July 2016, Mr. Richard Oberdorfer, Western Radio’s principal, responded
that “Western Radio constructed them, but at that time, the Forest Service owned all those facilities,
including the concrete foundations.” GA 312. Western Radio admitted that title to the facilities at
Sugar Pine Butte had passed to the Government prior to their removal. Without a cognizable
property right in the physical structures at the times of their respective removal, Western Radio
has no actionable takings claim. See Knick, 588 U.S. at 185.
* * *
In sum, the undisputed evidence shows that Western Radio had no right to do business at
the tower facilities at Walker Mountain, Round Mountain, Gray Butte, or Sugar Pine Butte at the
time the Forest Service changed the locks on them, and had no ownership interest at the time the
Forest Service removed them. See Dairyland Power, 16 F.3d at 1202. For these reasons, the
Government has “satisfied its burden as the moving party on a motion for summary judgment by
showing that there is an absence of evidence to support [Western Radio’s] case and that the
Government is entitled to summary judgment as a matter of law.” Id. at 1203–04.
B. Western Radio Cannot Show a Genuine Factual Dispute.
In a motion for summary judgment, after the moving party meets the burden of establishing
the absence of any genuine issues of material fact, “the burden shifts and the nonmovant must
point to sufficient evidence to show a dispute exists over a material fact allowing a reasonable fact
finder to rule in its favor.” Price v. United States, 156 Fed. Cl. 281, 287 (2021) (citing Anderson,
477 U.S. at 256). Here, Western Radio identifies two purported factual disputes: (1) whether the
Government can establish the exact date on which it obtained ownership of the tower facilities,
and (2) the valuation of the tower facilities. But it has not pointed to sufficient evidence to show
that a material factual dispute exists, and “evidence that is merely colorable or not significantly
22 probative will not defeat summary judgment.” Celotex, 477 U.S. at 324. For the following
reasons, Western Radio’s arguments fail.
1. There Is No Genuine Dispute of Material Fact as to the Ownership of the Towers at the Times of the Alleged Takings.
Western Radio’s first alleged dispute as to ownership relies on court orders in the prior
litigation. See ECF No. 41 at 10–12. It alleges that the court’s summary judgment decision in the
2014 District Court Action was entered in November 2014, about one month after the Forest
Service changed the locks on the tower facilities at Round Mountain, Gray Butte, and Sugar Pine
Butte, and the decision specifically refused to recognize the Government as the owner of the
facilities at that time. Id. at 11–12. It also points out that the amended judgment in the 2011
District Court Action did not order the removal of the original tower on Walker Mountain, nor did
the court recognize the towers at Walker Mountain as the property of the Government as of its
decision dated April 28, 2014. Id. at 10–11. While true, these facts are immaterial. See Anderson,
477 U.S. 247 at 2510 (“Factual disputes that are irrelevant or unnecessary will not be counted.”).
The date of the district court’s judgment in the 2014 District Court Action is not relevant.
That litigation did not make new determinations of rights with respect to the leases; it merely
affirmed under APA review that the Forest Service’s prior revocation and non-renewal decisions
as to the three sites were valid. GA 230, 232, 237. Those decisions were immediately effective,
and the summary judgment ruling is simply proof that the decisions continued to be effective as of
that date. Moreover, although the district court’s December 2015 judgment did not declare that
the United States owned the facilities at Round Mountain, Sugar Pine Butte, and Gray Butte, it did
order that “[a]ny facility remaining at [one of the sites] after a 14 day notice shall be the property
of the United States.” GA 248. The Forest Service complied with the notice procedures in the
order, and removed the facilities only after Western Radio failed to comply.
23 Western Radio’s argument with respect to the original tower at Walker Mountain is also
easily dispensed with. Western Radio claims that the district court never ordered removal of the
original tower, and therefore ownership of such tower was “never in doubt.” ECF No. 41 at 11.
But this argument focuses solely on the 2011 District Court Action for breach of contract and
trespass related to the 2010 improvements at Walker Mountain. See id. The 2013 District Court
Action challenging the revocation of Western Radio’s lease is the relevant litigation with respect
to the original tower, as revocation eliminated Western Radio’s right to do business at any tower
facility on Walker Mountain. GA 115, 116. Having obtained a judgment declaring that the Forest
Service properly revoked the lease, the Forest Service’s subsequent actions with respect to the
original tower lawfully flowed from the terms of the lease (and the applicable regulation)
governing revocation and removal of structures, not the amended judgment in the 2011 District
Court Action. See GA 4, 114–16; see also 36 C.F.R. § 250.60(i) (2010).
Next, Western Radio argues that factual disputes exist because the Government has not
definitively proven the exact date on which the ownership interest in the towers passed to the
Government. See ECF No. 41 at 2; see ECF No. 45 at 25:12–13 (“[T]here is no date on which the
Government says ‘this is ours now.’ There’s no notice.”). Western Radio cites no caselaw to
support the proposition that such a showing is necessary. Rather, the material date for determining
a cognizable interest in property subject to a takings claim is the date of the alleged taking.
Acceptance Ins., 583 F.3d at 854. Moreover, ownership is immaterial for purposes of determining
whether Western Radio had a right to do business at the sites at the time the Forest Service changed
the locks, which implicates one aspect of Western Radio’s takings theory. Each of the leases
contemplated that, following revocation or non-renewal, Western Radio would be given the
opportunity to remove its property before ownership passed to the Forest Service. GA 4 (Walker
24 Mountain), 11 (Gray Butte), 16 (Sugar Pine Butte), 49 (Round Mountain). But that did not change
the fact that Western Radio’s right to use and conduct business at the sites was terminated once the
leases were revoked or not renewed. All that the Government must show is that Western Radio
undisputably did not have such property interest in the towers at the time the Forest Service
changed the locks. Acceptance Ins., 583 F.3d at 854. It has made that showing.
Finally, at oral argument, Western Radio attempted to argue that it retained some
cognizable property interest in the tower facilities by referencing an “agreement” between it and
the Forest Service that the parties allegedly reached at a January 10, 2013 mediation. See ECF
No. 45 at 17:5–19. According to Western Radio, this “agreement” would have allowed Western
Radio to sell the towers to a third-party, with the new owner obtaining a valid lease with the Forest
Service. See id. However, Western Radio failed to include any evidence of such an agreement in
the record before this Court. See SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116
(Fed. Cir. 1985) (en banc) (“The party opposing the motion ‘must present affirmative evidence in
order to defeat a properly supported motion for summary judgment.’” (citing Barmag Barmer
Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984))). And it ultimately
conceded at argument that this was “not an agreement” but rather “a mediation that never came
together,” and that the evidence to show for it would be at most “a couple of e-mails.” Id.
2. Any Factual Dispute Regarding the Value of the Towers Is Not Material.
Western Radio alleges that factual disputes also exist with respect to valuation. See ECF
No. 45 at 18:5–10. It claims that the tower facilities were worth $2.3 million at the times of the
alleged takings. ECF No. 18 ¶ 20. The Government disputes this valuation on the basis that the
potential buyer of the towers (K-2 Towers) backed out of negotiations with Western Radio in 2015
when they learned about various issues with the leases, including disputes with the Forest Service.
ECF No. 39 at 12; ECF No. 45 at 24:3–25:20. Although there does seem to be a factual dispute as 25 to the value of the towers at the times of the alleged takings, valuation is immaterial because this
Court has determined that no cognizable taking occurred in the first place. Celotex, 477 U.S. at
322–23 (“[A] complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.”).
In sum, the factual disputes that Western Radio alleges are either immaterial or unsupported
by law or by the facts in the record. Beyond a conclusory statement that its claim meets the
standard for a taking, Western Radio has not explained, nor submitted evidence showing, a genuine
dispute of material fact as to whether the Forest Service’s actions constituted a taking under the
Fifth Amendment.
IV. CONCLUSION
Based on the foregoing, the Court finds that there is no genuine dispute of material fact in
this case and the Government is entitled to judgment as a matter of law. Therefore, the Court
GRANTS the Government’s Motion for Summary Judgment (ECF No. 39). The Clerk is directed
to enter judgment accordingly.
SO ORDERED.
Dated: February 19, 2025 /s/ Kathryn C. Davis KATHRYN C. DAVIS Judge