                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICHARD OBERDORFER; WESTERN                      No. 12-36082
RADIO SERVICES COMPANY, INC,
                                                 D.C. No. 6:11-cv-06209-SI
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

HOLLY JEWKES, District Ranger,
Crescent Ranger District; UNITED
STATES FOREST SERVICE; DAN
SMITH, Forest Service enforcement agent,

              Defendants - Appellees.



UNITED STATES OF AMERICA,                        No. 13-35541

              Plaintiff - Appellee,              D.C. Nos. 3:11-cv-00638-SI
                                                           6:11-cv-06209-SI
UNITED STATES CELLULAR
OPERATING COMPANY OF
MEDFORD,

              Intervenor-Plaintiff -
Appellee,

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                             Page 2 of 6

WESTERN RADIO SERVICES
COMPANY, INC,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                        Argued and Submitted July 7, 2014
                                Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

      1. The district court properly dismissed Western Radio’s Bivens claim under

the First Amendment because Western Radio failed to state a plausible claim for

relief. Western Radio must allege facts “ultimately enabling [it] to prove the

elements of retaliatory animus as the cause of injury, with causation being

understood to be but-for causation.” Lacey v. Maricopa Cnty., 693 F.3d 896,

916–17 (9th Cir. 2012) (internal quotation marks omitted). Western Radio alleges

that the Forest Service advised county officials that its Walker Mountain tower was

illegal and caused the Department of Justice to file a federal complaint. But

Western Radio failed to plead facts making it plausible that a retaliatory

motive—as opposed to a legitimate concern for the property rights of the

government—was the but-for cause of those actions.
                                                                             Page 3 of 6
      2. Western Radio’s pleadings similarly failed to state a Bivens claim under

the Equal Protection Clause. The conclusory allegation that “defendants

intentionally treated plaintiffs differently from others similarly situated” fails to

give the Forest Service fair notice of Western Radio’s claim; Western Radio’s

complaint specifies neither those similarly situated nor the supposed difference in

treatment. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At oral

argument before the district court, Western Radio identified the “others similarly

situated” as others on Walker Mountain seeking similar permits, and the difference

in treatment as additional requirements imposed on Western Radio. But no Bivens

remedy is available for the withholding of a use permit because the Administrative

Procedures Act (APA) provides an adequate remedy. See W. Radio Servs. Co. v.

U.S. Forest Serv., 578 F.3d 1116, 1122–23 (9th Cir. 2009).

      On appeal, Western Radio argues that the “others similarly situated” are

instead others on Walker Mountain performing construction in excess of their

special use permits, and that the difference in treatment is the Forest Service’s

decision to initiate enforcement proceedings only against Western Radio. This

theory does not appear in Western Radio’s complaint or its opposition to

defendants’ motion to dismiss, and neither pleading alleges any facts regarding

these other users.
                                                                          Page 4 of 6
      3. Western Radio could not file suit under the National Environmental

Protection Act (NEPA) because its asserted injuries either cannot establish

standing under Article III or do not fall within NEPA’s zone of interests, as

required by the APA. See W. Radio Servs. Co. v. Espy, 79 F.3d 896, 902–03 (9th

Cir. 1996). Oberdorfer’s economic injury—broadcast interference with his radio

tower—suffices for Article III standing but does not fall within NEPA’s zone of

interests. See id. at 903. Oberdorfer’s environmental injury—that the proliferation

of antennas at Walker Mountain over the past 30 years “makes [him] sick”—is

within NEPA’s zone of interests but will not be redressed by a favorable decision,

since the damage in question occurred in the past. See Summers v. Earth Island

Inst., 555 U.S. 488, 493–95 (2009).

      4. The district court correctly granted summary judgment to the Forest

Service on Western Radio’s claim that the Forest Service acted arbitrarily and

capriciously by not complying with 36 C.F.R. § 251.54, thereby violating 16

U.S.C. § 497. At oral argument before the district court, Western Radio limited its

allegations to violations of § 251.54(e)(1)(v), and we limit our consideration to that

provision. No rational trier of fact could have found that the Forest Service acted

arbitrarily and capriciously in concluding, as a threshold matter, that AT&T’s
                                                                          Page 5 of 6
proposed tower would not “unreasonably conflict or interfere with . . . authorized

existing uses of the National Forest System.” 36 C.F.R. § 251.54(e)(1)(v).

      5. The district court also correctly granted summary judgment to the Forest

Service on its claims for breach of lease and trespass. The Forest Service made the

required showing that Western Radio breached its lease by, first, beginning

construction on a new tower without authorization as required by 36 C.F.R.

§ 251.61(a), incorporated by clause III.B of the lease; and second, by failing to

submit detailed site plans to the Forest Service as required by the 1982 site plan for

Walker Mountain, incorporated by clause III.C of the lease. The 2005 and 2007

Decision Memos that Western Radio argues authorized its construction did not

constitute special use authorizations either in substance (as the Decision Memos

dealt only with the NEPA requirements for construction) or in form (as they were

not signed by both parties as required by 36 C.F.R. § 251.62). The Forest Service

was not required to exhaust its administrative remedies. The lease contains no

exclusive remedies clause and clearly contemplates suit for breach of contract.

      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. Under Oregon law, a trespasser “is one who enters or remains on premises

in the possession of another without a privilege to do so, created by the possessor’s
                                                                            Page 6 of 6
consent or otherwise.” Rich v. Tite-Knot Pine Mill, 421 P.2d 370, 373 (Or. 1966).

The absence of a special use authorization signed by both parties, see 36 C.F.R

§ 251.62, 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.

      6. The district court did not abuse its discretion in ordering removal of the

trespassing tower. Although removal of the tower will unquestionably cause

significant hardship to Western Radio, the district court appropriately attempted to

mitigate that harm by allowing Western Radio to disassemble the tower itself, thus

salvaging the structure for future use. In entering the injunction, the district court

properly considered the principles of equity underlying a grant of injunctive relief.

See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

      AFFIRMED.
