Western Radio Services Company, Inc. v. JOHN ALLEN, Deschutes National Forest Supervisor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN RADIO SERVICES
COMPANY, INC.,
Plaintiff-Appellant,
v.
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.
No. 16-35105
D.C. No. 6:14-cv-00747-AA
MEMORANDUM*
FILED
MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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
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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.
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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.
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