Petition for Writ of Certiorari — Western Radio Services Co. v. Glickman

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Supreme Court, U..i.

otis, FILSD

‘ 952048 JUN 17 19%

OFFICE Gr iitE CLERK

No.

In the

Supreme Court of the United States

October Term, 1995

WESTERN RADIO SERVICES COMPANY, INC.

Petitioner,

VS.

DAN GLICKMAN, et al.

Respondents.

On petition for writ of certiorari to the United States Court of

Appeals of the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHNSON, KLOOS & SHERTON, P.C.

ALLEN L. JOHNSON

Attorneys for Petitioner

767 Willamette Street

Suite 203

Eugene, Oregon 97401

(541) 687-1004

QUESTIONS PRF SENTED

NEPA

Under section 10 of the Administrative Procedures Act

of 1946 (APA), § 702, 5 U.S.C. §§ 551 et seq. (1970), and the

National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.

§ 4321 et seq., “any person . . . adversely affected or aggrieved”

by an agency decision subject to NEPA Act may seek judicial

review of that decision in a federal court. The questions

presented are:

Whether electromagnetic interference at a federal

electronic telecommunications site is a "purely

economic impact" or a direct environmental impact

within the meaning of NEPA.

Whether a corporate commercial telecommunications

permittee using a shared federal electronic site subject

to electromagnetic pollution is within the zone of

interests protected or regulated by NEPA.

Whether prudential standing analysis under

NEPA requires a showing that the primary

interest of a plaintiff is not "economic" where

the economic harm is the result of a direct

environmental impact within the scope of the

Act.

PARTIES

The petitioner is Western Radio Services, Inc., an

Oregon corporation wholly-owned by Richard Oberdorfer, its

chief executive officer.

The federal respondents, in their official capacity only,

are: Dan Glickman (replacing Michael Espy), Secretary, U.S.

Department of Agriculture; Jack Ward Thomas, Chief, U.S.

Forest Service; John Lowe, Regional Forester, Richard A.

Ferraro, Deputy Regional Forester; Tom Schmidt, Forest

Supervisor; Byron Cheney, District Ranger. The private

respondent is Slater Communications and Electronics, Inc., a

privately-held Oregon corporation.

Neither Petitioner nor the private respondent has any parent

companies or nonwholly-owned subsidiaries.

ill

TABLE OF CONTENTS

Page

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APPLICABLE FEDERAL LAWS ................. l

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1. This Court should grant review to resolve a conflict among

the circuits and to give effect to Congress’ intent to protect,

through NEPA, the public’s economic interest in pro-

tection of the human environment. .............. 5

2. The Ninth Circuit’s decision misapplies the concept of

prudential standing to improperly exclude a large class of

potential plaintiffs whose economic interests are within the

zone of interests protected and regulated by NEPA. 9

3. The Ninth Circuit’s decision improperly categorizes as a

purely “economic effect” the direct, objectively-mea-

surable effect upon the environment of electrical

interference, thereby excluding from NEPA’s scope a

major pollutant of the nation’s airwaves. ........ 11

4. Respondents’ own handbooks, manuals, and directives

acknowledge the existence of the environmental harm in

PP SE ee Pe ey i me 13

5. Petitioner has demonstrated injury in fact and redress-

PPT REP ET Ee Tee Cee oes foe ee ee OEE 16

ee EN errr er rrr ny Pie ey 18

APPENDIX

Appendix A -- Opinion of the United States Court of

Appeals for the District of Oregon Circuit Dated

REE Say SOD inca he Coke es Ue. App |

Appendix B -- Order Dated May 3, 1994 of the United

States Court of Appeals for the District of

OND ook Sac aaa ek App 17

Appendix C -- Opinion of the United States District

Court for the District of Oregon Dated May 3,

FOO 2 be vedegeeneeesari een ce ee App 18

Appendix D -- Affidavit of Leslie F. Smith, Jr. ... App 30

Appendix E -- Affidavit fo Richard Oberdorfer .. App 34

Appendix F -- Affidavit of Kenneth R. Reiswig,

Ee Pe re et i Tahoe ny oe App 40

Appendix G -- Complaint for Declaratory and Injunctive

Relief

TABLE OF AUTHORITIES

Page(s)

CASES:

Bennett v. Plenert, 63 F.3d 915 (9th Cir. No. 94-35008),

cert granted 116 U.S. S.Ct. 915 (1996). ............ 4,5

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112

S.Ct. 2130, 119 L.Ed 2d 351 (1992) ....... 8, 13, 19, 20

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) ........-.eee0e. 14, 15, 16

National Helium Corp v. Morton, 455 F.2d 650,

OSS IGE ON... F078) 60a SSAA eee 4, 13,14

Nevada Land Action Assoc. v. United States Forest

Service, 6 F.36 71S Bi Ce. Te). -nadasnescseeeuas 6

Port of Astoria v. Hodel, (1979), 595 F.2d 467,

phic, MUERTE CEE ETT eee eC Por oe eee 7,10

Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d

BOR CPE) ondvuccsusecavidaseess ener 9

Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361,

kom fh ys eee ee ert ye ee 5

Vii

Strycker's Bay Neighborhood Council, Inc. v. Karlen,

444 U.S. 222, 100 S.Ct. 497, 62 L.Ed.2d 433

COPEL dhs pee bus eensaucbihucnsceteks Chiseac ie 18

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP J), 412 U.S. 669, 686,

fn. 12, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) .. 5,6, 8, 20

Vermont Yankee Nuclear Power Corp v. NRDC, 435

U.S. 519, 551, 558, 55 L.Ed.2d 460, 98 S.Ct.

LEUe SPORE. SSecn bru Rid bie ehhecadeh asc atweks 18

STATUTES:

APA

SR EOE dnb db anse uk nipeer ey eablteat ive hes l

COURTS

NOD Sih d sacha boneneesis banca eneis l

Sis 565 i Pe idk aks 6 ed whee 8

ESA

UR I a in peach aie ins 5, 13

Vili

NEPA

ee Cee OO ie wiscdedéner vere keer. 1,2,4

Rk 8 ll. Srey ree ie ramet re y

NFMA

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REGULATIONS:

a ET ue Kanab ce tenweeeeeee een 18

PR EE oo oN oad e oe EeeeKS a iaveteceeree 8

MISCELLANEOUS:

Berry, The Unsettling of America ...............4.. 12

Forest Service Manual § 2728, Interim

I o564 0805086 bk 4 nko be a ees 13, 14, 15

Forest Service Handbook 2709.11, Ch. 40, § 48.1 Item

yo) SERRE EA Boas Mine te eter MCA SMe Pe ARNG 2 Oe 14

Forest Service Handbook 2719.11, Ch 48 ........... 14

Grad, Treatise on Environmental Law.............. 12

Petitioner Western Radio Services Company, Inc.

respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Ninth Circuit (App 1- 16) is reported as Western Radio

Services v. Espy, 79 F.3d 896 (9th Cir. 1996). The decision of

the United States District Court (App 17-29) is not reported.

JURISDICTION

The decision of the United States Court of Appeals for

the Ninth Circuit was filed and entered on March 18, 1996. No

petition for rehearing was filed. The jurisdiction of this court

is invoked under 28 U.S.C. § 1254(a).

APPLICABLE FEDERAL LAWS

Section 10(a) of the Administrative Procedures Act

states:

“A person suffering legal wrong because of

agency action, or adversely affected or

aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial

review thereof... .” 5 U.S:C. 702(a)

Environmental Policy Act,

Section 2 (42 U.S.C 4321) of the National

Environmental Policy Act, “Purpose,” states:

“The purposes of this Act are: To declare a

national policy which will encourage productive

and enjoyable harmony between man and his

environment; to promote efforts which will

prevent or eliminate damage to the environment

and biosphere and stimulate the health and

welfare of man; .. .”

Section 101 (42 U.S.C 4331) of the National

Environmental Policy,” states:

“(a) The Congress, recognizing the profound

impact of man’s activity on the interrelations of

all components of the natural environment,

particularly the profound influences of

population growth, high-density urbanization,

industrial expansion, resource exploitation, and

new and expanding technological advances and

recognizing further the critical importance of

restoring and maintaining environmental quality

to the overall welfare and development of man,

declares that it is the continuing policy of the

Federal Government . . . to use all practical

means . . . to create and maintain conditions

under which man and nature can exist in

productive harmony, and fulfil the social,

economic, and other requirements of present

“Declaration of National

and future generations of Americans.

“(b) In order to carry out the policy set forth in

this Act, it is the continuing responsibility of the

Federal Government to use all practicable

means, . . . to impr /e and coordinate Federal

plans, functions, programs, and resources to the

end that the Nation may---

“(1) fulfill the responsibilities of each

generation as trustee of the environment for

succeeding generations;

(2) assure for all Americans safe, healthful,

productive, and aesthetically and culturally

pleasing surroundings;

(3) attain the widest range of beneficial uses

of the environment without degradation, risk to

health or safety, or other undesirable and

unintended consequences;

\ (4)--..

“(5) achieve a balance between population and

resource use which will permit high standards of

living and a wide sharing of life’s amenities;

and

“(6) enhance the quality of renewable

resources and approach the maximum attainable

recycling of depletable resources.”

Section 102 (42 U.S.C 4332) of the National

Environmental Policy Act, “Declaration of National

Environmental Policy,” states:

“The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies,

regulations, and public laws of the United States

shall be interpreted and administered in

accordance with the policies set forth in this Act

”

STATEMENT OF THE CASE

This case is appropriate for the granting of certiorari for

three reasons:

First, the decision of the Ninth Circuit concerning the

application of prudential standing “zone of interests” tests to

actions brought under the National Environmental Policy Act

(42 U.S.C. 4231 et seq.) is in conflict with the decisions of

other circuits on the same issue, i.e., whether a plaintiff’s

interest in enforcement of a NEPA claim must be primarily

"environmental" rather than"economic” This issue is especially

timely because this Court has pending before it a case involving

substantially the same issue under the Endangered Species Act

(ESA). See Bennett v. Plenert, 63 F.3d 915 (9th Cir. 1995), cert

granted, 116 U.S. 915,517 S. Ct.___, 134 L.Ed.2d 469 (March

SPODELI ie oe

SOY RE ATP OBA a RE Spee wey Mey oF

SRE T LEE ICON RENEE tiga .

25, 1996). The Court's analsyis of economic Standing under

NEPA should stay current with its analysis of economic

standing under the ESA because the two statutes are frequently

litigated in tandem. Concurrent consideration will enable the

Court to provide timely guidance and to and to fully consider

the broader implications of its holdings.

Second, this case raises an important issue of law

concerning the scope of interests protected or regulated by the

National Environmental Policy Act., i.e., whether NEPA

protects the economic as well as the environmental interests of

' The questions presented by the petition for certioriari in

Bennett under the citizen suit provision of the Endangered

Species Act of 1973, 16 U.S.C. 1540(g)(1), are:

“Whether the broad standing mandated by

Congress in the citizen suit provision of the

Endangered Species Act is subject to a zone

of interest test as a further, judicially-imposed

prudential rule of standing;

“If standing to sue under the Endangered

Species Act is subject to prudential

limitations, whether those limitations permit

only environmental plaintiffs to challenge

government conduct alleged to violate the

terms of the Act or whether the claims of

economic injury raised by public water

suppliers and wter users are also within the

zone of interests protected or regulated by the

Act." Bennett, supra, Pet. for Cert., p. i

claimants subject to environmental harms. This is an important

procedural issue which has not been previously addressed by

the Court.

Third, this case raises an important issue of law

concerning whether pollution of the airwaves by stray

electromagnetic emissions constitutes a direct effect on the

environment within the meaning of NEPA.

The procedural background is as follows:

In 1978 Respondent Forest Service granted Petitioner a

special use permit to operate a "mobile radio-commercial

communications" facility at the Gray Butte Electronics Site

within the Ochoco National Forest in eastern Oregon. ER 29-

32; AR 17-20. Over the years, Respondent Forest Service has

issued numerous additional special use permits for the

operation of various electronic transmittal units at the Gray

Butte site. The result is a crowded electronic site at top of the

peak. ER at 38; AR at 0026 (February 26, 1980, letter from

Forest Supervisor stating that "Gray Butte is fast becoming a

high density electronic site.")

Petitioner has continuously expressed to the agency its

concern with the potential for these operations to interfere with

Petitioner's operation. ER 33-37; AR 21-25.

In 1981 the Forest Service adopted a new Gray Butte

Electronic Site Management Plan to amend a plan that had been

initially adopted in 1973. AR 86 (1981 Gray Butte Electronic

Site Management Plan) The new plan stated: "Use of the site

has increased steadily during recent years. In May, 1980, it was

determined . . . that the current plan was not adequate for

projected use . . .." ER 40 (excerpts from site plan).

The 1981 site plan was preceded by an environmental

assessment (EA) which incorporated the "assumption" that uses

at Gray Butte should be limited "to mobile radio

communications or other compatible users." ER 39; AR 49.

This restriction to mobile radio communications or other

compatible users recognized that other uses such as continuous

broadcast operations, had the potential to interfere with mobile

radio communications if placed at the same site. The plan's

restriction was consistent with the Forest Service Manual

(FSM), which at the time required that "high power broadcast

stations, FM, television, radar, should be separated [from

mobile radio communications] by one mile if possible." ER

337. The site plan was subsequently amended from time to

time, but interference problems continued.

On November 19, 1992, the Supervisor of the Ochoco

National Forest issued a Notice of Decision (1) adopted a

supplemental Environmental Assessment (EA); (2) making a

Finding of No Significant Impact; and (3) amending the site

plan to authorize the issuance of a new special use permit to

Respondent Slater Communications based upon the amended

site plan, but inconsistent with the prior site plan. The

November 19, 1992, package of decisions omitted equipment

standards, separation requirements, and other safeguards that

had been requested by Petitioner and other users. ER 256; AR

1094. Petitioner appealed the decisions on January 14, 1993.

ER 257-280; AR 1115 -1138. On May 4, 1993, the Regional

Forester affirmed the Supervisor's decisions. ER 281-283; AR

Petitioner then filed this action in the district court,

under 5 U.S.C. sec. 702 and 28 U.S.C. sec. 1331. Petitioner

alleged, inter alia, that the agency had violated the National

Environmental Policy Act and implementing regulations ((42

U.S.C. §§ 4321 et. seq. and 40 C.F.R. § 1508) by failing

"to support their actions with an adequate

consideration of reasonable alternatives and an

adequate determination, record, and decision

document establishing that those actions will

not, separately, or collectively, constitute a

major federal action having a significant impact

on the human environment." Complaint

paragraph. 28. App 48.

Following submission of the record and discovery, both

parties moved for summary judgment based upon the record,

depositions, and affidavits. The District Court ruled against

Petitioner on the merits of a claim under the National Forest

Management Act, and dismissed Petitioner's NEPA claim on

the ground that a recent Ninth Circuit decision, Nevada Land

Action Ass'n v. U.S. Forest Services, 8 F.3d 713 (9th Cir. 1993)

“categoricaily" excluded "from NEPA standing those with

economic injuries." Western Radio Services v. Espy, (DC Or

93-552-MA, May 3, 1994). App 16, 27.

Petitioner appealed to the Ninth Circuit Court of

Appeals under 28 U.S.C. Sec. 1291. The Ninth Circuit,

reviewing the NEPA standing issue de novo, affirmed the

dismissal of the NEPA claim on the ground that (a) electronic

interference is an "economic" injury and (b) a NEPA plaintiff's

injury must be primarily environmental in nature under the

prudential standing "zone of interests" test in Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). App 13-14.

ARGUMENT

NEPA Standing--Zone of Interests: Businesses threatened

with adverse economic effects of direct environmental

impacts are within the Zone of Interests Protected by

NEPA.

l. The Ninth Circuit Court of Appeals erred in

applying rules of prudential standing to bar all potential

plaintiffs under NEPA whose “primary” interest is

“economic” rather than ‘environmental.”

Almost a quarter-century ago, this Court announced in

the landmark United States v. Students Challenging Regulatory

Agency Procedures (SCRAP I), 412 U.S. 669, 686, fn. 12, 93

S.Ct. 2405, 37 L.Ed.2d 254 (1973) that standing under NEPA

is “not confined to those who show economic harm. . .” (citing

Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d

636 (1972). The question presented here is whether standing

under NEPA is confined to those who show noneconomic

harm. That question was specifically reserved in SCRAP I,

where this Court found it

‘g . umnecessary to consider the various

allegations of economic harm on which the

appellees also relied in their pleadings and

which the Government contends are outside the

purposes of NEPA.” 412 U.S. 686, fn. 13.

The govetnment has renewed that contention in this

case, and it has prevailed. This Court has never addressed the

question reserved in Sierra Club and SCRAP I: Does economic

harm to a plaintiff resulting from environmental harm bring that

plaintiff within the zone of interests protected by the National

Environmental Policy Act?

This question grows more pressing as the nation’s

population and economy expand. Can only the hikers and the

birdwatchers take the field on behalf of the environment? Are

only noneconomic interests protected by NEPA? Will an entire

category of potentially powerful allies in the battle for

environmental quality be sidelined or driven into opposing

ranks by a narrow reading of the broad purpose and policy

statements posted by Congress on the front door of the nation’s

primary environmental protection statute?

The Ninth Circuit has ruled in this case that

“Because NEPA suits are reviewed

under the Administrative Procedure Act, ...a

plaintiff alleging a NEPA claim must also

‘assert an interest arguably within the zone of

interests to be protected or regulated by NEPA.’

Nevada Land Action, 8 F.3d at 715-16...

NEPA’s purpose is ‘to protect the environment,

not the economic interests of those adversely

affected by agency decisions. Therefore, a

plaintiff who asserts purely economic injuries

does not have standing to challenge an agency

action under NEPA.’ Id. at 716 [citations

omitted and emphasis added by court] App 15.

Applying this analysis to the case at hand, the Ninth

Circuit ruled as follows:

“Western’s only complaint is that the

Service’s permit will cause economically

harmful interference. No one alleges that

Slater’s new facility ‘will have a primary impact

on the natural environment.’ [Quoting from Port

of Astoria v. Hodel, 595 F.2d 467, 475 (9th Cir.

1979)]. .. . Western’s sole complaint was

alleged interference, which we have held is

purely economic.” [citing Hodel.] Western’s

injury is therefore not one that NEPA aims to

redress.” App 15.

In this case, Petitioner Western Radio has rested its

claim to standing under NEPA primarily upon its economic

interest in avoiding the adverse environmental effects of stray

electromagnetic emissions. The likely economic impact upon

Petitioner is the impairment of Petitioner’s ability to provide

high-quality telecommunications facilities to users of the

telecommunications site which it operates under a Forest

Service permit on the Gray Butte electronic site.

Petitioner is in the position of most corporate businesses

affected by environmental pollution. Corporations don’t drink

water, breathe air, or listen to music. They use water, air, and

the airwaves in the course of making, advertising, and selling

soup, computer chips, television shows, and almost everything

else humans produce, sell, use, and enjoy. Their primary

interest in an unpolluted environment is undoubtedly economic.

The Ninth Circuit would deny them standing.

Under the Ninth Circuit Court’s decision in this case,

ABC, CBS, NPR, and U.S. West would have no standing under

NEPA to challenge the licensing of a telecommunications

facility generating stray electromagnetic energy that effectively

jammed their satellite communications systems. Their

“primary” interest would be “economic,” not “environmental.”

Under NEPA, people, not trees, have standing.

Whatever may have happened to western civilization’s

anthropocentrism during the enlightened 1980's, NEPA’s

purposes are explicitly instrumental and anthropocentric.

Congress acted to protect the interests of people, including their

economic interests, in a clean and healthy environment. NEPA

explicitly recognizes a wide range of human interests in the

protection of the environment. To paraphrase this Court’s

words in SCRAP I, NEPA recognizes that economic and

productive well-being, like aesthetic and environmental well-

being, are important ingredients of the quality of life in our

society.

On many issues, including the availability of judicial

review to any third-party plaintiff, it is true that “the legislative

history [of NEPA] is remarkably uninformative considering the

long history of the act.” 2 Grad, Treatise on Environmental

Law, § 9.01(h) (1995). On the other hand, the words of the Act

itself are the best evidence of legislative intent, and NEPA is

both expansive and explicit on the range of interests it is

supposed to serve. The statements of purpose and policy in

Sections 101 and 102, set forth verbatim above, repeatedly

emphasize the symbiotic relationship between a healthy

environment and a healthy economy, between conservation of

resources, and economic productivity. The statute itself

recognizes, in more prosaic terms, that “Neither nature nor

people alone can produce human sustenance, but only the two

together, culturally wedded.” Wendell Berry, The Unsettling of

America, (Sierra Club Books: 1977), p. 9.

The “sweeping policy goals announced in § 101 of

NEPA” (Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)) stand

in marked and significant contrast with the narrow, wildlife-

centered focus of the Endangered Species Act, 87 Stat. 884, as

amended, 16 U.S.C. 1531 et seq. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 558, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992). NEPA’s focus is on the “human environment.” Its

purpose is to safeguard the full range of economic and

noneconomic benefits that accrue from a healthy environment.

It recognizes that both Western Radio and recreational users of

Gray Butte have a common interest in assuring that the Forest

Service adequately consider the potential environmental

impacts of decisions affecting the peak and its surrounding area.

2 The Ninth Circuit’s ruling is in conflict with the

rulings of other circuits.

The Nisith Circuit’s ruling on economic standing is in

conflict with the rulings of other circuits. Specifically, the

District of Columbia Circuit has ruled that

“. . . courts should deny standing to businesses

asserting NEPA claims only when ‘the

companies are motivated solely by protection of

their own pecuniary interests and . . . the public

interest aspect is so infinitesimal that it ought to

be disregarded altogether.” National Helium

Corp. v. Morton, 455 F.2d 650, 655 (10th Cir.

1971). |

In National Helium, the plaintiff company had

contracted to supply helium to the government. Helium is a by-

product of natural gas production. If it is not captured, it is lost

into the atmosphere. When the government cancelled the

contract, the company sued under NEPA on the ground that the

cancellation would result in the loss of natural resources. The

direct environmental harm was to a resource in which the

plaintiff had an economic stake. To cail it merely “economic”

harm would be to ignore the source of that economic harm in a

loss clearly within the scope of the National Environmental

Policy Act.

As the Ninth Circuit’s opinion acknowledges with some

understatement, its ruling is also in “tension” with the Ninth

Circuit’s own earlier ruling in Port of Astoria v. Hodel, (1979),

595 F.2d 467, 476 (1976). In Hodel, citing National Helium, it

had granted standing to a broadcasting company worried about

interference from a proposed power line because the

broadcaster’s “economic injuries [were] . . . causally related to

an act that lies within NEPA’s embrace.” The distinction drawn

by the court between the two cases was that the earlier case

involved a “primary” environmental impact, namely, the

construction of an aluminum reduction plant that would be

made possible by the new transmission lines. 595 F.2d at 476.

Other "individual" plaintiffs living in the affected area and a

"Concerned Citizens" group had alleged these "ecological and

environmental injuries resulting from the construction and

operation of the Alumax plant." Jd.

The “primary” versus “secondary” distinction is

unexplained in these cases. It is not the same as “direct” versus

“indirect,” a concept recognized in this Court's NEPA standing

jurisprudence. See, e.g., Metropolitan Edison v. People Against

Nuclear Energy, 460 U.S. 766, 203 S. Ct. 556, 75 L.Ed.2d 534,

543 (1983)("The direct effects on the environment of this action

include release of low-level radiation, increased fog. . ., and the

release of warm water into the Susquehanna River." ) Rather,

it seems to involve some sort of conclusion about the merits of

the claim that an environmental impact is “major” or

“significant.” Whatever it is, it has no basis in NEPA, in

Article Ill of the Constitution, or in the case law of this Court.

3. The Ninth Circuit’s decision categorically excludes

from the scope of NEPA a major physical environmental

pollutant.

The Ninth Circuit’s decision is uniquely preclusive

because it conflates two kinds of harm--the interference itself,

and the economic loss resulting from impairment of that part of

the environment essential to Plaintiff’ s economic well-being.

Interference, of course, is not “purely economic.” It is

not economic at all. It is a physical phenomenon. It is direct

environmental harm. It exists in the real world. It is detectable

and measurable by instruments (and when amplified, by the

senses) in the same way that microbes, temperature changes,

and particulates are. Students learn about interference in high

school physics, not in college economics classes. Interference

is electromagnetic pollution of the space through which it

travels. Stray electromagnetic emissions pollute the human

environment just as surely, physically, and directly as do heat,

chemicals, particulates, and other kinds of pollutants affecting

everything from deep sea creatures to space navigation and

satellite communications.

If such harm is categorized as “economic,” and therefore

not within the scope of NEPA, then it makes no difference

whether the interference is major or minor, hypothetical or

existing. The Ninth Circuit’s classification scheme eliminates

the need for such assessment, even though the analysis required

involves physics and technicians rather than psychology and

psychiatrists.

Even the plaintiffs in Metropolitan Edison Co. v. People

Against Nuclear Energy, 160 U.S. 766, 103 S.Ct. 556, 75

L.Ed.2d 534 (1983) had standing; this Court recognized that

their claim involved a direct physical impact on the

environment----radioactive emissions. On the merits, this Court

found that the agency had no obligation to address the

attenuated, unquantifiable, and subjective potential harm

alleged, which was “psychological damage” resulting from

plaintiffs’ perception of the increased “risk of a nuclear

accident.” Jd. 103 S.Ct. at 560.

4. Respondent’s own handbooks, manuals, and

directives acknowledge the existence of the environmental

harm in question.

In this case, there is no question that the environmental

harm exists and will continue to exist unless the kinds of

measures recognized as necessary by the Forest Service itself

are taken. Electromagnetic interference with two-way

communications facilities by continuous broadcast facilities is

recognized as a fact in the agency’s own manual and handbook,

as well as in the environmental assessment and site plan.

The U.S. Forest Service has officially recognized that:

(1) interference requires prophylactic rather than solely

remedial measures; and (2) that the problem is inherent at

compact electronic sites involving both two-way and

continuous broadcast facilities. Forest Service Manual Chapter

2728.6, special use applications must be denied if “the use is

not compatible with current uses." Chapter 2728.5 recognizes

that interference problems are inherent on such sites and that

preventative measures such as separation of incompatible uses,

equipment standards, and the like are necessary:

"The compatibility of communications uses with

one another is basically a function of frequency

relationships, geographic separation, the amount

and period of power emission, and equipment

design characteristics. Problems may be

mitigated by judicious use of frequency

assignments by the responsible agency, by

locating incompatible uses on different site, or

by the addition of special equipment, i.e. by

adding filters. Site designation and the site plan

will identify the intended use of the site. Uses

which are considered incompatible will not be

authorized on the site. Interim Directive

#68/90-3, FSM Chapter 2728.5.

The Forest Service Handbook acknowledges that

“(t]he inherent interference problems between

broadcast uses and other uses often make

resolution of interference problems

impractical.” FSH 2709.11-93-2, chapter

48.8(b); ER at 292; AR at 1161.

The 1989 Gray Butte Electronic Site Management Plan ("Site

Plan"), as amended November 19, 1993, includes the following

requirements implementing the consistency and compatibility

standards of § 251 and the Forest Service Manual:

"2. Minimize interference potential through facility

designs, location, spacing, capacity, zoning, and

equipment standards."

The Gray Butte Electronic Site was designated by the

last Environmental Assessment completed for the Site in 1980

for mobile two-way radio and other compatible uses. The

Forest Service Handbook 2709.11, Chapter 48, identifies

continuous broadcast as non-compatible with mobile two-way

—— = - ”*

——a_eaae

radio, and further requires the separation of non-compatible

uses by one mile. No Regional criteria have been established

that allow the separation between continuous broadcast uses

and mobile two-way radio uses to be permitted at less than the

agency's national one-mile horizontal separation standard. That

requirement has been in effect in the Forest Service Manual

since 1978.

The Forest Service Manual (Interim Directive #68/90-3)

lists several conditions which must be met before special use

authorizations will be issued at communications sites:

"Authorizations will not be issued until: . . . (c)

coordination with the current holders on the site,

including a 30-day comment period concerning the

application; (d) acceptable design measures or other

satisfactory resolution of potential incompatibility have

been agreed to by the applicant and the existing holders

on the site, including the Forest Service, if applicable."

Interim Directive #68, FSM 2728.8 (emphasis added);

see also 36 C.F.R. § 251.55(b)(3).

As the above passages and the record citations in the

margin show, such interference is a problem acknowledged by

other users and by the agency itself, as both endemic to such

sites and as existing at the specific site in question.’

? Affidavit of Leslie Smith, former president of Oregon Radio

Frequency Council. ER at 182; AR at 606; App 30. May 14, 1991,

G.L. Mobilcomm letter to district ranger, noting serious interference

problems at Gray Butte and stating that Mobilcomm was losing

customers as a result. ER at 251; AR at 1040; App 40. March 24,

1994, affidavit of Kenneth R. Reiswig, Sr., senior communications

If electromagnetic pollution of the airwaves

(interference) is an environmental harm, and if NEPA protects

the economic interests of corporations in avoiding such harm,

then Petitioner has amply carried its burden of demonstrating

that there are genuine issues of material fact sufficient to

survive a motion for summary judgment on the issue of its

standing to challenge Respondent’s environmental assessment

and finding of no significant impact. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed. 2d 351

(1992).

Petitioner is a current and continuing licensee sharing

the limited public resource that has been impaired by the

pollutant. The responsible agency has officially recognized

both (1) the inevitability of the environmental harm in the

absence of appropriate preventative safeguards, and (2) the

availability of such safeguards. Other users and experts have

provided affidavits attesting to both the environmental and the

economic harm. The interference is likely to continue and

perhaps worsen in the absence of preventative measures. On the

merits, Petitioner contends that such measures would be

necessary to support a finding of no significant impact

(FONSI). Those measures were not adopted.

technician for Pacific Power and Light Co., describing interference

problems at Gray Butte and stating that “Our new method of resolving

the interference to Pacific Power and Light Co. involves leaving the

site.” ER 465, App 40.

5. Petitioner has demonstrated injury in fact and

redressability.

Instead of preparing an EIS or a supportable FONSI,

Respondent has simply made an unsupported determination,

contrary to its own official acknowledgments, that no such

measures are necessary and that no EIS is required. The Ninth

Circuit, reviewing the District Court’s decision on standing de

novo, has concurred on the ground that, because “interference”

is an “economic injury,” Plaintiff’s “injury is therefore not one

that NEPA aims to address.” App 15. The Court correctly

summarizes the Article II elements of standing as follows:

“In Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992), the Supreme Court delineated

the three minimum constitutional requirements

to have standing to challenge an alleged injury.

First, the plaintiff must allege an actual or

imminent invasion of a concrete and legally-

protected interest. Second, there must be a

causal connection between the injury and the

alleged harmful conduct. Third, it must be

likely that a favorable decision will redress the

injury. Jd. at 560-61.” App 14.

Unfortunately, the Ninth Circuit’s amplifications of the

Lujan tests are clouded by the leakage of prudential standing

considerations into the third element, converting it to a kind of

zone of interests clone by requiring that the "primary" harm

“caused” by the federal action be "environmental." The Ninth

Circuit’s adds more turbidity by conceputally collapsing an

economically important category of direct physical harm--stray

electromagnetic emissions affecting the broadcast spectrum--

and the resulting economic harm.

The result is a muddy legal puddle, opaque and

treacherous, in the middle of the information superhighway.

A proper analysis of redressability starts with the

understanding that interference is a physical harm to the

environment and that the subject of the litigation is more than

a single facility permit. The issue raised by Petitioner is

whether Respondent’s amendment of its site plan should

include new anti-pollution safeguards applicable to all

electronic facilities and users on the site. Respondent’s failure

to heed its own institutional wisdom, as confirmed by user

experience at Gray Butte, will be redressed if Respondent is

required to adopt measures sufficient to support its FONSI.

Respondent’s failure to take the action required by NEPA in the

absence of such measures will be redressed if Respondent is

required to prepare an Environmental Impact Statement.

Plaintiff has amply demonstrated that the harms alleged

exist, whatever their specific source, that they involve

electromagnetic pollution of the human environment, and that

Plaintiff's economic well-being is dependent upon the absence

or at least the minimization of such pollution. Affidavit of

Richard Oberdorfer, ER 312-19, APP 34.

NEPA does not mandate substantive outcomes once an

EIS has been performed. Strycker’s Bay Neighborhood Council,

Inc. v. Karlen, 444 U.S.222, 100 S. Ct. 497, 62 L.Ed.2d 433

(1980); Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 551, 558, 55 L.Ed.2d 460, 98 S.Ct. 1197 (1978).

However, the agency has not performed an EIS, and it is has not

adopted the preventative measures recognized by its own

manuals and handbooks as necessary to support a Finding of No

Significant Impact. Those measures would be substantive and

would redress Plaintiff's substantive injury. In the absence of

such measures, an EIS would be necessary, and the preparation

and adoption of an EIS would then redress Plaintiff's

procedural injury. Strycker, supra.

CONCLUSION

The Court is asked to picture a once-pristine pool fed by

a mineral spring, deep in a national forest. Because of its special

qualities, the spring has been used for years as a source of water

for several small bottlers operating under permits from the

United States Forest Service, which administers the permits in

conformance with its adopted site plan. Over the years, the

bottlers have had trouble with turbidity, which has made the

spring water less clear and the bottled water less marketable.

The Forest Service has recognized, in its official handbooks,

manuals, and directives, that certain equipment, practices, and

locational factors contribute to the turbidity. Detection of

specific turbidity sources is difficult, but that prevention

through appropriate siting, spacing, use, and equipment

standards is feasible. |

One of the bottlers, who perhaps isn't as dependent as

others on maintaining the purity of the pool, seeks an

amendment to the site plan so that it can obtain a new permit

which is not consistent with the old site plan. Another bottler,

which has suffered losses because of the turbidity problem,

asserts that the site plan amendment should incorporate more

effective safeguards and that the permit should be issued only

in accordance with those new safeguards. The Forest Service

declines, asserting only that the existing ineffective system of

post-hoc complaint-driven remediation will continue.

MES, RE oy

OF RR Td oo PES PRE BOLI Seer

The second bottler, alleging that the turbidity problem

is damaging its business, brings a NEPA challenge the site plan

amendment, the relicensing under the amendment, and the

agency’s finding of no significant impact accompanying the two

decisions.

The question posed by the hypothetical needs an

authoritative answer: Did Congress intend to protect the

economic interests of that bottler in the prevention of pollution

of natural resources of economic value to at least the same

extent that this Court has determined Congress intended to

protect the aesthetic interests of the plaintiffs in SCRAP,

supra?.

The protection of three "pools," each one a "natural

resource,” and each one a part of the "human environment,” is

at issue in this case:

The first pool is the tiny peak of Gray Butte, crowded

with public and commercial users, recognized as a special

resource by the Ochoco National Forest Plan and the Gray Butte

Electronic Site Plan.

The second pool is the large area of central Oregon

served by users and consumers of the telecommunications

services provided from the peak of Gray Butte.

The third pool is the entire airspace so essential to

modern telecommunications. That space is is the limpid lens

through which our species sees with its electronic eyes. It is the

silence through which we hear with our electronic ears.

All three pools are increasingly subject to a wide range

of potentially damaging contaminants, including electrical

interference. Those affected by electromagnetic pollution range

from homeowners, hikers, small business owners, and

firefighters to international corporations and the military. If all

such harm is economic, and if economic harm alone is not a

basis for standing to protect that pool, then a large class of users

is excluded from the protection of the statute.

In the Ninth Circuit, the broad and inclusive purposes

of Congress have been narrowed and distorted to make NEPA

a tool for only a segment of those for whose benefit it was

enacted.

What is needed now, almost a quarter-century after

SCRAP, is an act of timely judicial prevention and remediation:

Prevention is needed in the form of a decision of this Court that

removes the legal turbidity clouding the pool of NEPA standing

jurisprudence. Cure is needed in the form of an order

remanding the decision below for serious consideration on the

merits by a court with jurisdiction to address the merits of

DATED: June 17, 1996.

Petitioner’s NEPA claim.

‘ri ey

JOHNSON, KLOQ¥& SHERTON, P.C.

ALLEN L. JO

Attorney of Record for Petitioner

Western Radio Services, Inc.

App. 1

APPENDIX A -- OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF OREGON

CIRCUIT DATED MARCH 18, 1996

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF OREGON

No. 94-35605

WESTERN RADIO SERVICES COMPANY,

INC., Oregon corporation

APPELLANT

MICHAEL ESPY et al,

APPELLEES

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Argued and Submitted

October 17, 1995 - Portland, Oregon

Filed March 18, 1996

Before: J. Clifford Wallace, Dorothy W. Nelson,

and Melvin Brunetti, Circuit Judges.

Opinion by Judge Wallace

App. 2

SUMMARY

Administrative Law/Natural Resources and Energy/

Administrative Law

The court of appeals affirmed district court judgments.

The court held that it had no authority to bind the United

States Forest Service (Service) to guidelines in the Service's

manual or handbook, and the Service did not abuse its

discretion in issuing a special use permit.

The Gray Butte Electronics Site is located in a national

forest. Pursuant to special use permits issued by the Service,

appellee Slater Communications & Electronics, Inc. and

appellant Western Radio Services Company, Inc. operate and

maintain mobile radio communications facilities at Gray Butte.

The Service issued a special use permit to Slater to

construct, maintain, and rent a new building and tower on

Gray Butte. Western appealed from the Service's decision to

issue a permit, complaining about possible interference

problems at the site. Western settled with the Service.

The Service adopted a new site plan and issued Slater a

new building permit. The new site plan permitted only

"compatible uses" and required equipment or towers that

cause interference to be adjusted or removed. Western

complained of potential interference and appealed from the

Service's reissuance of a permit to Slater, but the Forest

Supervisor denied the appeal. The Regional Forester refused

to reverse the Service's decision to issue a permit. The

Service conducted meetings with users, and Gray Butte site

users agreed on a location for Slater's new facility. The

Forest Supervisor issued a Decision Notice and finding of no

significant impact, stating an intention to issue Slater a special

use permit to construct a building and tower. The Regional

App. 3

Forester affirmed the decision to issue a permit, and the Chief

of the Forest Service declined discretionary review.

Western sued in the district court, alleging that the

Service's decision to issue Slater a building permit violated the

National Environmental Policy Act (NEPA). Western also

claimed that the decision violated the National Forest

Management Act because the Service allegedly did not comply

with applicable regulations, including a Forest Service Manual

and Forest Service Handbook. The district court rejected

Western's claims and granted summary judgments for the

Service and Slater. The court held that the Service did not

abuse its discretion in issuing a special use permit to Slater,

and Western did not have standing to bring a NEPA claim.

Western appealed.

fl] The district court properly retained jurisdiction.

Western stated a claim against the Service for issuing a special

use permit to Slater. The Federal Communications

Commission did not have the authority to redress Western's

complaints about the permit's issuance.

[2] The Manual and Handbook were not substantive in

nature, [3] they were not promulgated in accordance with the

Administrative Procedure Act's procedural requirements, [4]

and they were not promulgated pursuant to an independent

congressional authority. [5] Thus, the Manual and Handbook

did not have the independent force and effect of law. [6]

Moreover, even assuming that the Manual and Handbook

were incorporated into the Secretary of the Department of

Agriculture's regulations, the Secretary could not bind the

Service to a Manual or Handbook that was neither

promulgated pursuant to congressional procedures nor

contemplated in a statute.

App. 4

[7] A regulation specified that the Service could consider

whether a special use permit would be compatible with

existing uses. In this case, the Service made a compatibility

assessment, and its decision to issue Slater a building permit

was not arbitrary or capricious. The permit authorized Slater

to construct a new facility and raze its old one; it did not

authorize any new uses that could cause interference;

moreover, the permit provided that if the equipment or

tower's installation caused interference, Slater would be

required to make adjustments. The Service considered

compatibility of uses and did not abuse its discretion in issuing

a permit to Slater.

—————————oOOoOoOermo-owrweooooeeeeeeee

[8] Western's only complaint was that the Service's permit |

would cause economically harmful interference. Western's |

injury, therefore, was not one that NEPA aimed to redress.

COUNSEL |

Michael D. Axline, Johnson & Kloos, Eugene, Oregon, for

the plaintiff-appellant.

Joan M. Pepin, United States Department of Justice,

Washington, D.C., for the federal defendants-appellees.

Rose M. Z. Freeby, Evans, Freeby & Jennings, Salem,

Oregon, for defendant-appellee Slater Communications.

~ OPINION

WALLACE, Circuit Judge:

Western Radio Services Co., Inc. (Western) appeals from

the district court's summary judgments for the United States

App. 5

Forest Service (Service) and Slater Communications &

Electronics, Inc. (Slater.). The district court held that the

Service did not abuse its discretion in issuing a special use

permit to Slater and that Western did not have standing to

bring a claim under the National Environmental Policy Act

(NEPA). The district court had jurisdiction under 5 U.S.C.

§ 702 and 28 U.S.C. § 1331. We have jurisdiction over this

timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

The Gray Butte Electronics Site is located on the Crooked

River National Grassland in the Ochoco National Forest in

Oregon. The Service and the Department of Agriculture

manage the site and have authority to issue special use permits

for land under their control; however, permits for uses coming

within Federal communications Commission (Commission)

jurisdiction are contingent upon Commission authorization and

licensing. Pursuant to special use permits issued by the

Service, Slater and Western operate and maintain mobile radio

communications facilities at Gray Butte. Slater and Western

originally received permits in 1976 and 1978, respectively.

On December 10, 1986, the Service issued a special use

permit to Slater to construct, maintain, and rent a new

building and tower on Gray Butte. Western appealed from the

Service's decision to issue a permit, complaining that the new

building would exacerbate interference problems at the site

and that the permit did not conform to the applicable site plan.

Eventually, Western settled with the Service and the Service

agreed to update the Gray Butte Site Plan. In 1989, the

Service adopted a new site plan and in 1990, it issued Slater

a new building permit. The 1989 Site Plan permits only

"compatible uses of the site" and requires any equipment or

tower that causes interference to be adjusted or removed.

App. 6

Again, Western complained of potential interference and

appealed from the Service's reissuance of a permit to Slater.

The Forest Supervisor denied the appeal.

On appeal from the Forest Supervisor's denial, the

Regional Forester refused to reverse the Service's decision to

issue a permit. However, the Regional Forester directed the

Service either to document its efforts to resolve Western's

complaints about current or potential interference or to hold

meetings with site users to address potential incompatibility

problems. The Service conducted several meetings with

users, and the Regional Forester determined that the Service

had complied with the earlier decision. Approximately two

months after the Regional Forester's approval, Gray Butte site

users agreed on an acceptable location for Slater's new

facility. Richard Oberdorfer, Western's president, disputes

that he ever agreed to this location. The Forest Supervisor

issued a Decision Notice and a finding of no significant

impact, stating its intention to issue Slater a special use permit

to construct a building and tower at the agreed-upon site.

Western again appealed to the Regional Forester, who

affirmed the decision to issue a special use permit. On May

17, 1993, the Chief of the Forest Service declined

discretionary review. The Chief's determination constituted

final agency action.

Western then filed this action in the district court, alleging

that the Service's decision to issue Slater a building permit

violated NEPA. Western also asserted that the decision

violated the National Forest Management Act, 16, U.S.C §

497, because the Service allegedly failed to comply with

‘applicable regulations. Western argued that applicable

regulations included the Forest Service Manual (Manual) and

Forest Service Handbook (Handbook), in addition to the

regulations promulgated under 16 U.S.C. § 497 and codified

at 36 C.F.R. §§ 251.50 et seq. (1995). The district court

App. 7

rejected Western's claims.

II.

Slater suggests we not address the merits of the appeal.

Slater argues that the district court lacked jurisdiction over

Western's claims because Western did not exhaust

administrative remedies. Slater asserts that Western should

have complained to the Commission before filing in the

district court.

[1] It is within our discretion to require exhaustion,

Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990),

and we will generally require that a plaintiff exhaust all

administrative remedies before assuming jurisdiction. White

v. Jacobs Eng'r Group Long Term Disability Benefit Plan,

896 F.2d 344, 352 (9th Cir. 1989). Here, the district court

properly retained jurisdiction. Western's complaint states a

claim against the Service for issuing a special use permit to

Slater. It was the Service, and not the Commission, that

issued the use permit. Although the Commission deals with

problems of interference, the Commission does not have the

authority to redress Western's complaints about the issuance

of the permit. Nor can the Commission redress Western's

complaints about the location of Slater's new facility. We will

not require Western to complain to the Commission about a

Service permit before bringing an action in the district court.

We therefore turn to the merits of the appeal. We review

a summary judgment de novo. First Pacific Bank v. Gilleran,

40 F.3d 1023, 1024 (9th Cir. 1994), cert. denied,116 S. Ct.

App. 8

55 (1995). This review requires us to determine (1) whether

there is a genuine issue of material fact when the evidence is

viewed in the light most favorable to the nonmoving party and

(2) whether the district court correctly applied the law. Jd.

When reviewing an administrative agency's decision, we

view the case from the same position as the district court.

Nevada Land Action Ass'n v. United States Forest Service, 8

F.3d 713, 716 (9th Cir. 1993) (Nevada Land Action). An

agency's decision should be overturned if it was "arbitrary,

Capricious, an abuse of discretion, or otherwise not in

accordance with the law." 5 U.S.C. § 706(2)(A); Idaho

Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.

1995). Review under the arbitrary and capricious standard is

narrow and the reviewing court may not substitute its

judgment for that of the agency. Marsh v. Oregon Natural

Resources Council, 490 U.S. 360, 376 (1989) (Marsh). We

must determine whether the agency's decision was made after

considering the relevant factors and whether the agency made

a clear error of judgment. /d. at 378. We may reverse the

agency's decision as arbitrary or capricious only if the agency

relied on factors Congress did not intend it to consider,

entirely failed to consider an important aspect of the problem,

offered an explanation that ran counter to the evidence before

the agency, or offered one that is so implausible that it could

not be ascribed to a difference in view or the product of

agency expertise. Dioxin/Organochlorine Center v. Clarke,

57 F.3d 1517, 1521 (9th Cir. 1995).

The Service issues special use permits subject to

regulations promulgated by the Secretary of the Department of

Agriculture (Secretary). See 16 U.S.C. § 497. Generally,

the Service's decision to issue or deny a permit is subject to

judicial review. See KOLA, Inc. v. United States, 882 F.2d

361, 364 (9th cir. 1989) (KOLA). However, we will review

an agency's alleged noncompliance with an agency

App. 9

pronouncement only if that pronouncement actually has the

force and effect of law. United States v. Fifty-Three (53)

Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982) (Fifty-

three Parrots). We will not review allegations of compliance

with an agency statement that is not binding on the agency.

Western contends that the Service acted arbitrarily and

capriciously by issuing a permit and following a procedure

that failed to comply with the Service's regulations, 36 C.F.R.

§§ 251.52, 251.54 (1995) and the Service's guidelines in its

Manual and Handbook.

The National Forest Management Act authorizes the

Secretary to issue regulations "for the purpose of constructing

Or maintaining buildings, structures, and facilities for

industrial or commercial purposes whenever such use is

related to or consistent with other uses on the national

forests." 16 U.S.C. § 497(c). In 1980, the Service adopted

regulations setting forth standards to consider in issuing

special use permits. 36 C.F.R. § 251.54 (1995). These

regulations have the force and effect of law. KOLA, 882 F.2d

at 364.

Section 251.54(i) contains various factors that the Service

may consider when denying a permit. Section 251.54(i)(1)

provides that a Service official may deny issuance of a special

use permit if the proposed use "would be inconsistent or

incompatible” with other existing forest uses. Also, section

251.52 states: "Special use authorizations. . .shall be in such

form and contain such terms, stipulations, conditions, and

agreements as may be required by the regulations of the

Secretary and the instructions of the Chief."

In addition to these regulations, the Office of the Chief,

pursuant to 36 C.F.R. § 200.4 (1995), issued the Manual and

Handbook. Western argues that the Service violated various

provisions of the Manual and Handbook. It argues that the

Manual and Handbook have the independent force and effect

App. 10

of law and that the Service therefore acted arbitrarily and

capriciously in failing to follow them. Western alternatively

argues that even if the Manual and Handbook do not have the

independent effect of law, sections 251.52 and 251.54 adopt

the Manual and Handbook by reference, thereby rendering

them binding. If we hold that the provisions in the Manual

and Handbook do not have the force and effect of law either

independently or by reference, we will not need to review

Western's contention that the Service failed to comply with the

guidelines contained in either. We therefore turn to the first

issue.

To determine whether the Manual and the Handbook have

the independent force and effect of law:

the agency pronouncement must (1) prescribe

substantive rules -- not interpretive rules, general

statements of policy or rules of agency organization,

procedure or practice -- and (2) conform to certain

procedural requirements. To satisfy the first

requirement the rule must be legislative in nature,

affecting individual rights and obligations; to satisfy

the second, it must have been promulgated pursuant to

a specific statutory grant of authority and in

conformance with the procedural requirements

imposed by Congress.

Fifty-Three Parrots, 685 F.2d at 1136 (internal quotations and

citations omitted); see also Chrysler Corp. v. Brown. 441

U.S. 281, 301 (1979) (Chrysler).

[2] Neither the Manual nor the Handbook satisfies either

App. 11

of the requirements in Fifty-Three Parrots. First, the Manual

and Handbook are not substantive in nature. In United States

v. Doremus, 888 F.2d 630, 633 n.3 (9th Cir. 1989), cert.

denied, 498 U.S. 1046 (1991), we explained in dictum that

"the Forest Service Manual merely establishes guidelines for

the exercise of the Service's prosecutorial discretion; it does

not act as a binding limitation on the Service's authority." See

also Stone Forest Industries v. United States, 973 F.2d 1548,

1551 (Fed. Cir. 1992) (Manual does not have the force and

effect of law); Lumber, Prod. and Indus. Workers Log Scalers

Local 2058 v. Unites States, 580 F. Supp. 279, 283 (D. Or.

1984) (Manual is "basically a large compilation of guidelines.

. .[and] not a ‘substantive’ rule" (internal quotations and

citations omitted)). The Manual and Handbook are a series of

"[pJrocedures for the conduct of Forest Service activities." 36

C.F.R. § 200.4(b),(c)(1) (1995).

[3] The Manual and Handbook are not promulgated in

accordance with the procedural requirements of the

Administrative Procedure Act. Neither is published in the

Federal Register or the Code of Federal Regulations. See

parker v. United States, 448 F.2d 793, 797 (10th Cir. 1971),

cert. denied, 405 U.S. 989 (1972). They are not subjected to

notice and comment rulemaking; they are not regulations. Hi-

Ridge Lumber Co. v. United States, 443 F.2d 462, 455 (9th

Cir. 1971) (Manual "does not rise to the status of a

regulation").

[4] Nor are the Manual and Handbook promulgated

pursuant to an independent congressional authority. The

National Forest Management Act authorizes the Secretary to

promulgate regulations, but the Manual and the Handbook are

not regulations from the Secretary. 36 C.F.R. § 200.4(d)(1)

(1995) (Chief of Forest Service promulgates rules in Manual

App. 12

and Handbook). The manual and handbook provisions are

contemplated in a Service regulation, not in a congressional

statute.

[5] We hold that the manual and Handbook do not have the

independent force and effect of law.

Western also argues that even if the Manual and Handbook

do not have the independent force and effect of law, sections

251.52 and 251.54(i)(1) incorporate by reference the Manual

and Handbook and therefore bind the Service to the procedural

guidelines contained therein. Western argues that section

251.52, which requires special use permits to comply with

"the instructions of the Chief," effectively binds the Service to

the provisions in the Manual and Handbook. Western also

argues that section 251.54(i)(1), which states that an officer

"may deny issuance" of a permit if the permit would be

incompatible with existing uses, requires the Service to look

to the Manual and Handbook for compatability guidelines.

[6] Neither of these arguments has merit. Both the

Supreme Court in Chrysler, 441 U.S. at 301, and our court in

Fifty-Three Parrots, 685 F.2d at 1136, explicitly require

agency rules to be substantive and to be promulgated

according to certain procedural requirements before they can

bind an agency. Even assuming that the Manual and

Handbook are somehow incorporated into the Secretary's

regulations (although they are not mentioned in either section

251.54(i)(1) or 252.52, the Secretary cannot bind the Service

to a Manual or Handbook that is neither promulgated pursuant

to congressional procedures nor contemplated in a statue.

Mere incorporation does not convert a procedural guideline

ne <i A aaa lial

App. 13

into a substantive regulation. We therefore have no authority

to bind the Service to the guidelines in the Manual or the

Handbook. Even if we did have that authority, there is

nothing in the record to support Western's complaints that the

Service violated the provisions in the Manual or Handbook.

Because we hold that neither the Manual nor the

Handbook has the force and effect of law, we review the

Service's issuance of a permit only under its binding

regulations. After eliminating the claims based on the Manual

and Handbook, Western seems to argue that the Service failed

to follow 25 C.F.R. § 251.54(i)(1) and therefore acted

arbitrarily and capriciously.

[7] Section 251.54(i)(1) specifies that the Service may

consider whether a special use permit would be compatible

with existing uses. Although the provision is discretionary,

we hold that the Service did make a compatibility assessment

and that its decision to issue Slater a building permit was not

arbitrary or capricious. The permit authorizes Slater to

construct a new facility and raze its old one. The permit does

not authorize any new uses that could cause interference. To

the extent that merely moving sites or changing equipment

will create new interference problems, the permit provides

that if Slater's "installation of [new] radio equipment or tower

causes interference, [Slater] will be required to make

adjustments to solve the interference problem, or remove the

problem causing equipment. If interference problems cannot

be resolved, authorization for the use will be terminated and

equipment removed from the site." The Site Plan therefore

considered the issue of compatibility even though the record

contains no documented evidence of incompatibility. In fact,

App. 14

Oberdorfer, Western's president, technician, and general

manager, admitted that a properly constructed new facility

might actually reduce "considerably" potential interference.

Overall, the record indicates that the Service did consider

compatibility of uses and did not abuse its discretion in issuing

a permit to Slater.

Western argues that the district court erred in holding that

it did not have standing to assert a claim under NEPA. We

review the issue of standing de novo. Nevada Land Action, 8

F.3d at 715.

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),

the Supreme Court delineated the three minimum

constitutional requirements to have standing to challenge an

alleged injury. First, the plaintiff must allege an actual or

imminent invasion of a concrete and legally-protected interest.

Second, there must be a causal connection between the injury

and the alleged harmful conduct. Third, it must be likely that

a favorable decision will redress the injury. Jd. at 560-61.

Because NEPA suits are reviewed under the

Administrative Procedure Act, Marsh, 490 U.S. at 375-76, a

plaintiff alleging a NEPA claim must also “assert an interest

arguably within the zone of interests to be protected or

regulated" by NEPA. Nevada Land Action, 8 F.3d at 715-16

(citation and internal quotation omitted). NEPA's purpose is

"to protect the environment, not the economic interests of

those adversely affected by agency decisions. Therefore, a

plaintiff who asserts purely economic injuries does not have

standing to challenge an agency action under NEPA. " Id. at

716 (citations omitted and emphasis added); Port of Astoria v.

Hodel, 595 F.2d 467, 475 (9th Cir. 1979) (Hodel) (where

alleged injuries "represent only pecuniary losses and frustrated

nears are, Mami set East ed

es i oe er

;

App. 15

financial expectations that are not coupled with environmental

considerations," injuries are outside NEPA's zone of

interests).

Despite our more recent decision in Nevada Land Action

to the contrary, Western points to language in Hodel that

suggests that a plaintiff who suffers purely economic injury

may still have standing. In Hodel, several plaintiffs alleged

that the construction of an aluminum reduction plan would

severely impact the environment. Another plaintiff,

Hermiston Broadcasting Company, complained only that

power transmission lines to be built to service the plant would

interfere with Hermiston's broadcasts. Hodel held that the

primary impact of the plant was environmental, and that

Hermiston had standing because its purely economic injuries

were "causally related to an act that lies within NEPA's

embrace." Hodel, 595 F.2d at 476.

[8] Although this narrow holding in Hodel may cause

tension with the broader and more recent holding in Nevada

Land Action, we need not pursue the matter. Western's only

complaint is that the Service's permit will cause economically

harmful interference. No one alleges that Slater's new facility

"will have a primary impact on the natural environment." /d.

On appeal, Western now attempts to characterize the alleged

interference as an "environmental impact," yet Oberdorfer

admitted that Western's sole complaint was alleged

interference, which we have held is purely economic. See id.

(allegations that new transmission lines would cause broadcast

interference "may be classified as economic"). Western's

injury is therefore not one that NEPA aims to redress.

Slater asks that we exercise our discretion and impose

App. 16

sanctions against Western and its counsel. Fed. R. App. P.

38: 28 U.S.C. §§ 1912, 1927. Although we have little

tolerance for plaintiffs who use our court solely as a means of

harassment or competitive gain, we do not believe that

Western's appeal is frivolous. Therefore, we decline to

impose sanctions in this case at this time.

AFFIRMED.

App. 17

APPENDIX B - ORDER DATED MAY 3, 1994

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF OREGON

Civil No. 93-552-MA

WESTERN RADIO SERVICES COMPANY,

INC., Oregon corporation

APPELLANT

MICHAEL ESPY et al,

APPELLEES

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Marsh, Judge.

In accordance with my opinion filed on this date,

plaintiff's motion for summary judgment (#36) is DENIED;

federal defendants' motion for summary judgment (#44) is

GRANTED; defendant Slater's cross-motions for summary

judgment (#60, #61) are GRANTED insofar as they join in

federal defendants’ motion for summary judgment and are

DENIED as MOOT as to other issues not reached with this

opinion. Slater's request for Rule 11 sanctions is denied. All

pending motions to supplement and strike are DENIED as

MOOT.

IT IS SO ORDERED.

App. 18

APPENDIX C -- OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF OREGON

DATED MAY 3, 1994

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF OREGON

No. 93-552-MA

WESTERN RADIO SERVICES COMPANY,

INC., Oregon corporation

APPELLANT

MICHAEL ESPY et al,

APPELLEES

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Opinion by Judge Marsh

App. 19

MARSH, Judge.

Plaintiff filed this action seeking declaratory and injunctive

relief against the Forest Service's issuance of a special use

permit to Slater Communications & Electronics, Inc.

("Slater") for the construction of a communications facility at

Gray Butte in the Crooked River National Grassland.

Plaintiff, federal defendants and defendant Slater have filed

cross-motions for summary judgment and all parties agree that

the issues are ripe for decision based upon the administrative

record and documents now on file.

BACKGROUND

The administrative record in this action reveals that Gray

Butte has been an active site for communications facilities

since the late 1960s. The original Gray Butte Electronic Site

Plan of 1970-73 notes six permittees holding permits on Gray

Butte for TV translator, radio and transmission line

installations. AR 5-12. Defendant Slater received a permit to

install, maintain and operate "electronic equipment" with FCC

station authorization on February 3, 1976. AR 13-16. Slater

has used this permit for mobile radio communications.

Plaintiff received a similar permit for 2-way mobile radio

communication facilities in 1978. AR 17-20.' Permits are

contingent upon FCC authorizations and applicable FCC

licensing requirements. AR 206.

On December 6, 1986, federal defendants issued a special

use permit to Slater for the construction of a new building on

App. 20

Gray Butte.2 AR 202-210. Plaintiff appealed this decision

and eventually settled with the federal defendants and Slater

by entering into a settlement whereby the Forest Service

agreed to update the 1981 site plan. AR 268-271.

On June 20, 1989, the Forest Service adopted an updated

site plan for Gray Butte. AR 291-304. On August 1, 1989,

the Forest Service prepared an Environmental Impact

Statement and Record of Decision for the Ochoco National

Forest which included the Gray Butte site plan as a designated

"electronic site." AR 347-418.

Thereafter, on March 8, 1990, the District Ranger issued

a new special use permit to Slater to replace its building on

Gray Butte and construct a new building approximately 160’

from plaintiff's facilities. AR 479-513. Plaintiff appealed this

decision and its appeal was denied on July 27, 1990 by the

Forest Supervisor. AR 937-941. In his decision, the

Supervisor cited that fact that the output of the power

transmitters would be limited to a maximum of 150 watts and

further, that the new permit would not authorize any

additional equipment not already operating at the site. AR

938.

Plaintiff appealed the Supervisor's decision to the Deputy

Regional Forrester [sic]. On January 16, 1991, the Regional

Forrester [sic] affirmed the District Ranger's decision to issue

the permit to Slater finding that:

"(T]he Forest Supervisor and District Ranger acted

appropriately in deciding that the special use permit

for replacing and constructing a building and tower on

App. 21

Gray Butte can be issued to Slater Communications

and Electronics, Inc. If the building and tower cause

interference, the Site plan had adequate provisions to

require the offender party to add filters or other

equipment that would mitigate any interference

caused."

AR 985. However, the Regional Forrester [sic] [sic] also

found that the record was devoid of "any attempts to resolve

potential incompatibility" and therefore directed the Forest

Service Supervisor to either document such efforts if they took

place, and if they did not, to "invite users on the site,

including the applicant, to meet to discuss any concerns they

may have about potential incompatibility of the proposed

action and attempt to come to some resolution of potential

incompatibility." AR 986, 997.

Pursuant to the Regional Forrester [sic] 's directive, the

District Ranger conducted four meetings with Gray Butte

users, including plaintiff and Slater, on March 6, 1991, April

4, 1991, April 30, 1991 and October 16, 1991. AR 1004,

1019-21, 1034-36, 1055-58. The first "meeting objective"

identified was to determine “how to resolve potential

interference and incompatibility." AR 1004. Slater proposed

relocating his new building outside the designated site area to

the northeast to eliminate interference problems. Id. Plaintiff

proposed that it by [sic] allowed to replace its site to an area

south of its present site and that it be allowed to relocate

antennas to a sidehill to reduce interference, and noted that

there appeared to be no opposition to either its proposal or

Slater's. AR 1005. At the April 4, 1991 meeting, Slater

again proposed a new location for his building on the

southeast side. At the April 30, 1991 meeting, the users

discussed technical site standards and "briefly discussed" four

alternatives for relocating Slater's building. AR 1036. The

App. 22

minutes note that issues the users will consider an evaluating

the four alternatives include: site impacts, interference and

visual impacts. Jd.

On August 22, 1991, the Regional Forester issued a

memorandum noting that the parties met the requirements of

his remand regarding compatibility discussions and directing

that the Forest Supervisor could proceed with issuing the

permit to Slater. AR 1052.

During the fourth meeting on October 16, 1991, the user

group convened its meeting at the Gray Butte site to evaluate

the four proposed alternative locations for Slater's new

building. Plaintiff urged the group to accept Alternative 2

which would have placed the building to the north. The group

rejected this proposal finding that the site was "too steep to be

feasible for construction.” Slater indicated that it preferred

Alternative 4 to the southeast, approximately 153' from

plaintiffs’ facility. Plaintiff objected on grounds that this

alternative would not provide the "most separation," and,

according to the minutes "insisted that the minimum

acceptable separation from his tower to any new development

is 200 feet." AR 1057. The group then paced off 200 feet

and decided that the southeast location "would still be

feasible." Minutes reflect that the group then "agreed" that

this location would be the preferred location. Plaintiff

disputes that he ever agreed to the southern location. AR

1059; Second Affidavit of Richard Oberdorfer, p.7.

On November 19, 1992, the Forest Service issued a

supplemental environmental impact statement (SEIS), a

finding of no significant impact (FONSI), and a supplement

Gray Butte Electronic Site Management Plan for the Ochoco

National Forest pertaining to changes at the Gray Butte

Electronic site and the decision to select "Alternative E” (the

location 200’ southeast from plaintiff's facility selected by the

user group) for the construction of Slater's new facility. The

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App. 23

SEIS notes public involvement though the participation of the

electronic site users who explored alternative locations

"because they perceived interference problems" with the

original site. AR 1094-95; 1099.

Plaintiff's communications facility is 40' from Slaters

current facility and approximately 200' from the proposed new

construction site. Plaintiff contends that it has experienced

interference with other existing facilities? and that it

anticipates that the interference will continue and worsen with

Slater's new facility. Plaintiff asserts two claims for relief:

first, that the issuance of the permit violates the National

Forest Management Act (NFMA), 16 U.S.C. § 497: and

second, a violation of the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321, because defendants failed to

adequately consider reasonable alternatives in the preparation

of environmental assessments.

On September 17, 1993, I denied federal defendants'

motion to dismiss the complaint, rejecting their assertion that,

under the doctrine of primary administrative jurisdiction,

plaintiff "essentially" raised an issue of radio interference to

which the Federal Communications Commission (FCC) has

primary jurisdiction and administrative expertise. In so

holding, I noted that plaintiff's complaint focussed on a fairly

App. 24

narrow challenge to the Forest Service's decision of

November 19, 1992. I further noted that, although Plaintiff

might have filed a complaint against Slater before the FCC

regarding interference, plaintiff's challenge against the Forest

Service in this case relates to the site selected for construction

of a communications facility and whether the Forest Service

adequately considered interference within this limited context.

In addition, I denied defendants' motion to dismiss for failure

to state a claim under the NMFA, finding that, based upon the

Ninth Circuit's decision in Kola, Inc. v. United States, 882

F.2d 361, 364 (9th Cir. 1989), the issuance of a special use

permit is subject to judicial review. Finally, I rejected

defendants’ motion to dismiss plaintiff's NEPA claim for

insufficient proof of redressibility, and rejected an untimely

argument for dismissal on standing grounds, noting that

economic injury might state a claim under a narrow exception

noted in Port of Astoria, Oregon, v. Hodel 585 F.2d 467, 476

(9th Cir. 1979).

DISCUSSION

1. NFMA Violations

The decision to issue or not to issue a special use permit

under the NFMA is generally subject to judicial review.

Kola, Inc. v. United States, 882 F.2d 361, 364 (9th Cir.

1989); and Methow v. Reg. Forrester [sic] , 883 F.2d 810,

813 (9th Cir. 1987), rev'd on other grounds sub nom,

Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835

(1989). A Forest Service permit decision under the NFMA is

reviewable by way of the Administrative Procedures Act, 5

U.S.C. § 701, et seg., and is subject to an abuse of

discretion, arbitrary and capricious standard of review. Kola

882 F.2d at 363-64.

_ ei il a oe ee

App. 25

The statute invoked in count one is NFMA, 16 U.S.C. §

497 which provides in pertinent part as follows:

"The Secretary of Agriculture is authorized, under

such regulations as he may make and upon such terms

and conditions as he may deem proper . . . (c) to

permit the use and occupancy of suitable areas of land

within the national forest, . . for the purpose of

constructing or maintaining buildings, structures and

facilities for industrial or commercial purposes

whenever such use is related to or consistent with

other uses on the national forests."

In 1980, the Forest Service adopted regulations setting

forth standards to consider in issuing special use permits. 36

C.F.R. § 251.54. Thereafter, in Kola, the Ninth Circuit noted

that the Secretary's 1980 regulations provided sufficient

guidelines regarding permit applications to enable a district

court to determine if a permit grant or denial was arbitrary,

capricious or an abuse of discretion. Kola, 882 F.2d at 364.

Specifically, such guidance exists in 36 C.F.R.

251.54(i)(1) which provides that an officer may deny a special

use permit if the proposed use "would be inconsistent or

incompatible" with other existing forest uses. Under Kola,

radio frequency compatibility is a factor the Secretary is

directed to consider and thus, his failure to do so -- either

completely or adequately -—- is subject to judicial review under

the limited standards set forth in the APA.

In this case, plaintiff claims that the Forest Service failed

to determine if Slater's special use permit would be

"compatible" with existing uses at the site in violation of 36

C.F.R. 251.54(i)(1) and further, failed to utilize interference

criteria set forth in the Forest Service Manual (FSM), Forest

Service Handbook (FSH) and the original 1980 site plan.

App. 26

Specific criteria identified in the FSH and Site Plan include

frequency relationships, geographic separation, the amount

and period of power transmission, and equipment design

characteristics. AR 1160. Plaintiff claims that the Forest

Service considered only one of these factors -- the amount of

power transmission -- in reaching its decision to issue the

Slater permit. In addition, plaintiff argues that the FSH

requires that existing users must agree on compatibility prior

to the issuance of a permit and that permits be denied where

there is capacity available in existing facilities. Plaintiff's

specific complaint with the Slater permit which it feels

threatens to harm its financial interest is the Forest Service's

failure to adequately consider location and spacing.

Government defendants contend that they have fulfilled

duties imposed by the applicable Forest Service Regulations.

In addition, government defendants dispute that either the

FSM or FSH has the force of law under 36 C.F.R. § 251.52

since neither constitutes a duly promulgated regulation, but

contend that even if legally binding, they have complied with

both.

First, I agree with the federal defendants that neither the

FSH or FSM have the force or effect of law because they are

general guidelines for use by Forest Service employees and

are neither published in the federal register nor codified in the

Code of Federal Regulations. Lumber Prod. & Indus. Work

Log Scalers v. United States, 580 F. Supp. 279, 283-84 (D.

Or. 1984) (FSM does not have force and effect of law,

rejecting NEPA claim filed by lumber work's union against

FS' recognition of a competing log scaler coop); Hoskins

Lumber Co. Inc v. United States 24 Ct. Cl. 259, 266 (1991)

(same); see also Hi-Ridge Lumber Co. v. United States, 443

F.2d 452, 455 (9th Cir. 1971) (noting in dicta that FSM does

not "rise to the status of a regulation"); Stone Forest Ind., Inc.

v. United States, 973 F.2d 1548, 1551 (Fed. Cir. 1992);

shad

App. 27

ONRC v. Devlin, 776 F. Supp. 1440, 1447-48 (D. Or. 1991)

(Forest Service Guide re vegetation management do not have

force and effect of law). Thus, federal defendants' alleged

non-compliance with FSM or FSH provisions is not subject to

judicial review.

Further, even if I did find that the FSH and FSM imposed

mandatory, judicially reviewable obligations upon the Forest

Service, I find that the criteria set forth in those documents

were satisfied -- power transmission levels, equipment design

as well as technical interference and spatial factors were all

considered through these Forest Service-user group meetings.‘

Therefore, the single issue remaining under the NFMA is

whether the Forest Service acted arbitrarily or capriciously in

approving the second location for the Slater facility under 36

C.F.R. 251.54(i)(1) by failing to adequately address

compatibility issues. From my review of the record, I find

that the four meetings that took place between the Gray Butte

site users and the District Ranger following the Regional

Forester's January 16, 1991 directive fully addressed the

federal defendants' duties to address compatibility concerns

pursuant to 36 C.F.R. 251.54(i)(1). The product of these

meeting formed the basis for the Forest Service's ultimate

decision to amend the site plan and go forward with permitting

construction under the permit in the November 19, 1992

decision notice, SEIS and FONSI that plaintiff challenges in

this case.

App. 28

Based on the foregoing, I find that plaintiff has failed to

demonstrate that the federal defendants acted arbitrarily or

capriciously in issuing the construction permit to Slater or in

amending the Site plan and issuing an SEIS and FONSI on

November 19, 1992. Accordingly, plaintiff's motion for

summary judgment in favor of its first claim is denied and

defendants’ cross- motions against claim are granted.

2. NEPA Violations

Two months after my decision denying defendants’

motions to dismiss plaintiff's NEPA claims on standing

grounds, the Ninth Circuit issued its decision in Nevada Land

Action Ass'n v. U.S. Forest Services, 8 F.3d 713 (9th Cir.

1993) which holds that "a plaintiff who asserts purely

economic injuries does not have standing to challenge an

agency action under NEPA.” /d., at 716. Although the Ninth

Circuit did not cite that portion of the decision in Port of

Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979) that I relied

upon in denying defendants’ motion to dismiss, see Id., at 476

(standing re Hermiston Broadcasting Company), it fails to

acknowledge the distinction drawn in Port of Astoria between

economic injuries in general and economic injuries that are

“causally related to an act that lies within NEPA's embrace,"

by categorically excluding from NEPA standing those with

economic injuries.

Standing is a basic jurisdictional prerequisite. See Idaho

Conservation League v. Mumma, 956 F.2d 1508, 1513 (9th

Cir. 1992). Plaintiff does not dispute that its basis for

standing in this action is its own financial interests. See

Complaint, para. 21. Based upon the court's recent decision

in Nevada Land Action, | find that the plaintiff lacks standing

to pursue its claim under NEPA.

Further, even assuming plaintiff had standing under

eee ——EeEawaw ss nee

App. 29

NEPA, I agree with defendants that the relocation of Slater's

facility is not a "major" federal action having a "significant

impact" on the environment which would trigger additional

NEPA requirements. In addition, I would also find that

plaintiff would lack standing to raise the issue of prior public

participation in the preparation of the SEIS and FONSI since,

as a site user, plaintiff was actively involved in the process

and had a full opportunity to raise its concerns and grievances

regarding site selection, interference and compatibility

concerns prior to the issuance of the SEIS and FONSI.

Finally, I agree with the federal defendants that plaintiff has

failed to establish redressability -- although the record is

replete with plaintiff's complaints regarding interference and

potential interference in the past, there is nothing in the record

to substantiate plaintiff's claim that interference will be

exacerbated by the construction of Slater's new facility.

CONCLUSION

Based on the foregoing, I find that plaintiff has failed to

establish that the federal defendants’ actions were arbitrary or

capricious under the NFMA and further find that plaintiff has

failed to state a viable claim under NEPA. Accordingly,

plaintiff's motion for summary judgment (#36) is DENIED;

federal defendants’ motion for summary judgment (#44) is

GRANTED; defendant Slater's cross-motions for summary

judgment (#60, #61) are GRANTED insofar as they join in

federal defendants' motion for summary judgment and are

DENIED as MOOT as to the other issues not reached with

this opinion. Slater's request for Rule 11 sanctions is denied.

All pending motions to supplement and strike are DENIED as

MOOT.

DATED this 3 day of May, 1994.

Malcolm F. Marsh

United States District Judge

App. 30

APPENDIX D -- AFFIDAVIT OF

LESLIE F. SMITH, JR.

I, Leslie F. Smith, Jr., Being duly sworn, say:

1. I make this affidavit in support of Western Radio Services

and Richard Oberdorfer in the appeal of the above-

captioned Decision Notice authorizing the issuance of a

special use permit to Slater Communications for the

construction of a tower and building at the Gray Butte

Electronics Site.

2. I hereby affirm that the attached statement represents my

opinion regarding the potential adverse impacts of the

proposed construction on the existing users of the Gray

Butte site and on Richard Oberdorfer's facility in

particular.

Dated: April 16, 1990.

/s/ Leslie F. Smith, Jr.

SUMMARY EVALUATION OF INTERFERENCE

FACTORS AT GRAY BUTTE

Leslie F. Smith, Jr. is principal of Tele-Smith Associates,

a telecommunications consulting company located in Eugene,

OR.

He owned and managed Telecomm Systems, Inc. for over

30 years. He was one of the organizers and President of

Oregon Radio Frequency Council. He is presently President

of Oregon Radio Common Carriers Association. Licensed by

the FCC (Radio Telephone Ist), National Association of Radio

App. 31

& Telecommunications Engineers. Member of Institute of

Electrical and Electronic Engineers. Has done FCC land

mobile application engineering. Done work for Alyeska

Pipeline Service Co..

The map submitted with the prospectus shows that there

will be approximately 50' separation between the prospectus

site and the existing communications sites. This spacing will

provide only approximately -36 db isolation wheras most land

mobile systems need on the order of -90 db. The same 50'

separation in the vertical plane will yield approximately -62 db

isolation. In most systems additional devices are necessary to

provide the proper isolation which in all cases creates a

reduction in performance over that of a system without the

additional devices.

At frequencies of 152 MHZ obstacles with dimensions of

3.078' which equals one (1) wavelength will cause substantial

disruption to the propagation of RF energy. In the prospectus

an antenna tower of 20' on side is permitted. This dimension

will have an adverse affect on existing systems due to the size

and close proximity.

If transmitters that are installed on the proposed tower are

of the broadband variety, the potential for transmitter

intermodulation interference is extremely high. Transmitter

intermodulation is one of the more difficult types of

interference to locate and correct.

It is my opinion that no additional tower should be

constructed and that one of the existing towers should be used

to accommodate any new antennas. If this accommodation can

not be reached then the new tower should be constructed to a

height to provide vertical isolation of at least 100 db.

As part of this evaluation are attached copies of ORFIC

Standards that were adopted which are noted as MINIMUM.

App. 32

ORFIC RECOMMENDED MINIMUM SITE

STANDARDS FOR RADIO COMMUNICATIONS

1. Transmitters should have a band pass cavity that would

provide:

30-50 MHZ, 20db attenuation at 500 KHz

70-88 MHZ, 10 db attenuation at 1 MHZ

130-170 MHZ, 10 db attenuation at 350 KHz

400-520 MHZ, 5 db attenuation at 1 MHZ

2. Transmitters operating in the range of 130-520 MHZ

should also have a ferrite isolator with a minimum of 20

db rejection in the reverse direction. The isolator should

be installed between the transmitter and the cavity.

3. Notch type duplexers should be preceded by a band pass

cavity.

4. A low pass filter or a band pass cavity should be

between the isolator and the antenna.

5. Jacketed Heliax transmission line is recommended.

Unjacketed transmission line of any type is strongly

discouraged.

6. To-secure transmission line to towers, nylon tie wraps or

insulated wire is recommended. Wrap lock is

discouraged.

10.

11.

12.

13.

App. 33

The use of double shielded coaxial cable from radio

equipment to isolators, cavities, duplexers, etc. to heliax

transmission line is strongly recommended.

Radio equipment should be housed in RF tight metal

cabinets and properly grounded.

Antennas should not be indiscriminately moved after

initial mounting and test.

Consideration should be given to insulating guy wires,

bonding across clevices brackets, etc. Do not leave

loose wire or metal objects on towers.

It is recommended that a band pass cavity be placed in

the feedline to receivers.

In extreme cases of radio interference, notch filters,

crystal filters and dual ferrite isolators and/or band pass

cavity may be required. The need for additional filtering

equipment will be determined on a case by case basis.

Each transmitter should be identified with a copy of the

FCC license, person's name and phone number

responsible for the equipment, the receive frequency and

transmit frequency, plus any tone control frequencies.

These recommendations are made as a result of actual

experience of ORFIC members who have found serious

intermodulation problems caused by failure to meet those

standards listed above.

App. 34

APPENDIX E -- AFFIDAVIT OF

RICHARD OBERDORFER

1. My name is Richard Oberdorfer and I make this

affidavit in support of Western Radio Service Inc.'s Motion

For Summary Judgment in this case.

2. I am the founder and President of Plaintiff Western

Radio Services, Inc. (WRS), an Oregon corporation in good

standing. WRS has been operating a mobile radio

communications site at the Gray Butte electronics site in the

Ochoco National Forest since 1978, when it was awarded a

special use permit for the site by the Forest Service. Under

the permit and in reliance upon the plans, rules, and

regulations protecting users and facilities on the Gray Butte

Electronic Site, Western Radio Services has made Gray Butte

the cornerstone of its operations. WRS has made a substantial

investment in installing, operating, and maintaining high

quality equipment at Gray Butte since 1978.

3. During the 15 years that WRS has held a special use

permit for operation of the Gray Butte site, I have visited the

site on innumerable occasions and have participated in

numerous meetings with the Forest Service and other site

users.

4. The operation of some of the other permittees at the

Gray Butte site has caused significant interference with the

operation of WRS's facility, has significantly decreased the

quality of the service WRS is able to provide to its customers,

and has caused customers to leave WRS or not sign on with

WRS. The ability to provide high quality communications

service to our customers is essential to the financial survival

of WRS. Currently the health and future of our business is

App. 35

impaired and is threatened with further impairment by

interference with our transmissions caused by incompatible

uses, equipment, operations, and facilities at the Gray Butte

site which do not comply with applicable regulations,

standards, plans, and guidelines.

5. I have attempted to inform the Forest Service of

interference problems in two ways. First, I have repeatedly

commented upon and objected to proposed special use permits

prior to their issuance, to inform the Forest Service of the

problems that could be anticipated given the nature of the

equipment authorized by the proposed permit. Second, I have

frequently informed the Forest Service of actual interference

problems as they occur at the site and violations of permit

terms by other permittees when I have discovered such

violations.

6. I have reviewed the Administrative Record (AR) filed

by the Forest Service in this case. That record documents

some, but by no means all, of my attempts to inform the

Forest Service of interference problems at the site. In my

notice of appeal to the Forest Supervisor of June 12, 1987, I

identified a number of specific interference problems I had

experienced at the site. AR at 0253, 0254. The Forest

Service never investigated or responded to the specifics in this

appeal. As early as 1979 I had informed the Forest Service

and FCC of interference problems at this site. AR at 0021 -

0023. In 1980 the Forest Service acknowledged interference

problems (AR at 0026 - Forest Supervisor letter to Regional

Forester) but since that time the Forest Service has been

reluctant to acknowledge or investigate interference problems

and has issued a number of special use permits for facilities

and uses that have contributed to further degradation of the

site.

App. 36

7. The Forest Service granted a special use permit for

a continuous broadcast television transmitter to Rod Johnson

over the objection of the Forest Service's own radio

technician. AR 0199. See Exhibit A to this affidavit,

attached. Interference problems are also documented in the

record at AR 0201 (November 19, 1986, letter to District

Ranger documenting interference problems); 0211 (December

16, 1986, letter documenting interference); 0212 (responding

to December 16 letter - enforcement action taken); 0213

(January 14, 1987, letter); 0216 (February 17, 1987 letter

from Alan Slater to District Ranger acknowledging improper

installation of towers); 0230 (April 18, 1987, letter identifying

interference and summarizing oral presentation); 0240 (letter

from WRS to Forest Supervisor explaining where interference

is occurring and why); February 18, 1988, letter from WRS

to District Ranger identifying interference problems); 0283

(June 1, 1989, letter from WRS to Forest Supervisor

documenting interference experienced both by WRS and G.L.

Mobilcomm); August 4, 1989, notice of appeal to Regional

Forester, referring to interference experience by WRS and

G.L. Mobilcomm); 0461 (January 23, 1990, letter from WRS

to Forest Supervisor identifying Slater Communications

facility as source of ongoing interference problems); 0606

(April 16, 1990, affidavit of Leslie Smith, former organizer

and President of Oregon Radio Frequency Council, identifying

interference problems at Gray Butte site); 0710 (May, 1990,

decision memo authorizing special use permit for Warm

Springs tribe, noting interference problems raised during

public scoping); 1053 (September 27, 1991, letter from WRS

to district ranger explaining interference problems and

causes); 1059 (November 16, 1991, letter from WRS to

district ranger, stating WRS is losing customers and can't fill

space in facility due to interference problems)

App. 37

8. WRS has not been the only permittee to experience

interference problems at the site. As noted above, G.L.

Mobilcomm has also experienced these problems. On May

14, 1991, G.L. sent the district ranger a letter noting serious

interference problems and stating that G.L. was losing

customers as a result. AR at 1040. This letter also documents

the fact that Slater Communications backed out of an

agreement that all three facility owners had reached as to the

best location for Slater's site. Attached to this affidavit as

Exhibit B is an additional letter from G.L. Mobilcomm that

was not included in the record, again stating that there are

interference problems and G.L. is losing customers.

9. Attached to this affidavit are additional documents

demonstrating that my customers have experienced problems

with interference at the Gray Butte site. See Exhibits C - F.

Also attached are several exhibits showing that Slater

Communications has been the source of many of these

interference problems. See Exhibits G - L (including

documentation that Slater Communications has repeatedly

installed unauthorized transmission equipment in its already

sub-standard facility). The Slater Communications facility at

the Gray Butte site is nothing more than a wooden shed with

a metal roof, and was scheduled for removal in 1986 due to its

substandard quality and consequent potential for interfering

with other facilities at the site. As of the time of this affidavit,

Slater's facility is still operating at the site and still causing

interference with the operation of my facility. I have invested

substantial resources in keeping my facility up to date and

reducing any potential for interference from my facility.

Slater has not made a similar investment.

10. The WRS facility at the Gray Butte site is operating

at only 50% of capacity. To my knowledge, the GL

App. 38

Mobilecomm facility at the site is also operating at roughly

50% of capacity. Additional compatible uses of the site can

certainly be accommodated in existing facilities. I can find

nothing in the record to show that the Forest Service has

determined that the demand for compatible uses at the site

exceeds the capacity in existing facilities.

11. At the last inspection of the Slater Communications

facility on April 27, 1992, I found noncompatible uses and

two-way equipment that did not meet manufacturers’

specifications and was installed in an electrically and

mechanically unsound manner.

12. In 1989, WRS's special use permit was amended to

locate a standby generator and propane tank on an existing

concrete slab near its facility. Prior to the installation of the

propane tank, and without first obtaining a special use permit

to do so, Slater Communications installed a 20-foot monopole

tower on the same concrete slab. The tower has prevented

WRS from installing the propane tank. The Forest Service

has refused to require Defendant Slater Communications to

remove its tower. During a review of CRNG permit files on

January 14, 1994, I could not find an authorization for the

tower, and to the best of my knowledge, none exists. The

transmitters installed on this tower are interfering with WRS's

ability to provide high quality service to its customers.

13. The history of noncompliance and nonenforcement

described in the record and in this affidavit renders it

impossible for me to assure existing and potential customers

that these problems will be corrected by allowing new and

continuing incompatible and noncomplying uses and facilities

subject only to the same kind of conditions and enforcement

procedures that have been repeatedly demonstrated to be

App. 39

ineffective. Such assurance will be possible for WRS and its

customers only when the Defendant Forest Service makes a

demonstration of full compliance with all compatibility

requirements a precondition to approval and imposes

conditions based upon clear and objective technical standards.

14. Large areas of public waters, forest lands,

rangelands, and a national monument are protected in part by

emergency fire, police, and safety services dependent upon

clear, reliable electronic telecommunications through the Gray

Butte electronic site. Interference caused by the

incompatibility and noncompliance described here and in the

record pollutes and significantly impairs the public airwaves

in the region served by Gray Butte. In my opinion as a

longtime operator and user of Gray Butte and the natural

resources surrounding it, the supplemental Environmental

Assessment and the documents to which it is tiered completely

fail to show how the site plan amendment, assessment, and

authorization under review will avoid or mitigate these

significant and adverse impacts to the environment of Central

Oregon. In my opinion as an experienced user of the site and

owner, operator, and user of mobile telecommunications sites,

including Gray Butte, these documents provide no

information, data, analysis, enforcement standards or

mechanisms upon which I or my customers can reasonably

base a judgment that the site will function without continuing

unnecessary and damaging interference.

I declare under penalty of perjury that the foregoing is

true and accurate to the best of my knowledge.

Dated this 25th day of January, 1994.

/s/ Richard L. Oberdorfer

App. 40

APPENDIX F -- AFFIDAVIT OF

KENNETH R. REISWIG, SR.

I, KENNETH R. REISWIG SR. make the following affidavit

under penalty of perjury:

I am Senior Communications Technician for Pacific

Power and Light. Pacific Power and Light has had a

transmitter WNHJ 514 on Gray Butte since about 1989.

I have been involved in the maintenance and repair of

this transmitter for about 3 years. I have been aware

and taken steps to minimize the interference problem at

Gray Butte to our facilities, pretty much without success.

We have cavities on the VHF and UHF links, plus a

crystal filter and isolator (to prevent us from

interfering). We tuned the cavity on the VHF as tight as

possible for more attenuation on receive. We tried to

make our grounding as good as possible, with the

ground mat available. The interference, which involves

some kind of mixing, is telephone conversations and

dialing, busy signals and the Jefferson County Sheriff.

The interference seems to be much worse at times,

fading to usable levels.

Our new method of solving the interference to Pacific

Poser and Light Co. involves leaving the site, we have

a new site on Grizzly Mt. and all indications are that we

are not going to have a problem at this new site. We

will be leaving Gray Butte sometime in April 1994, so

any interference on Gray Butte will not be caused by

Pacific Power and Light Co.

DATED this 29th day of March, 1994

/s/ Kenneth R. Reiswig, Sr.

App. 41

APPENDIX G -- COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

INTRODUCTORY STATEMENT

This is an action for declaratory and injunctive

relief to prevent the installation or, if necessary, to require the

removal of an additional telecommunications tower on Gray

Butte, northeast of Madras, Oregon. Plaintiffs contend that

Defendants have failed to comply with and enforce applicable

rules requiring that the proposed facility and operation will not

cause, continue, or aggravate interference with existing

telecommunications facilities and operations serving Central

Oregon from the Gray Butte site. Specifically, Plaintiff

challenges the following decisions of the Forest Supervisor for

the Crooked River National Grassland, Ochoco National

Forest, Pacific Northwest Region of the U.S. Forest Service

(Forest Service) as set forth in its Decision Notice of

November 19, 1992, (Exhibit A):

1) granting a Special Use Permit to Slater

Communications and Electronics, Inc. (Slater);

2) amending the Gray Butte Electronic Site Plan;

3) making a Finding of No Significant Impact (FONSI)

under the National Environmental Policy Act of 1969 and

thereby deciding not to prepare an Environmental Impact

Statement (EIS); and

4) authorizing implementation of the subject decisions

and the erection and operation of the additional

communications facilities.

App. 42

y J

Plaintiff seeks preliminary and permanent injunctions

directing the federal defendants to rescind the decision of

November 19, 1992, and any subsequent affirmance thereof,

unless and until defendants comply with 16 U.S.C.§ 497(c),

36 C.F.R. §§ 251.54-.56, NEPA, and 40 C.F.R. §§ 1501-

1508, as described in paragraphs 24-30. Plaintiff also seeks

declaratory judgments interpreting the "consistent use"

requirements of 16 U.S.C. § 497(c) and 36 C.F.R. §§

251.54(i), .56(a)(2), as described in paragraphs 24-25, and

declaring defendants actions to be in violation of law as

alleged herein.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this action

under 28 U.S.C. § 1331 (federal question jurisdiction).

Plaintiff's cause of action arises under the Administrative

Procedures Act (APA), 5 U.S.C. §§ 702 and 706; the United

States Forest Planning Act, and implementing regulations 16

U.S.C. § 497(c); 36 C.F.R. §§ 251.54-.56; and the National

Environmental Policy Act (NEPA) and implementing

regulations, 42 U.S.C. §§ 4321 et seq.; 40 C.F.R. §§1501-

1508.

Venue is properly vested in this court pursuant to 28

U.S.C. § 1391(e).

PARTIES

Plaintiff Western Radio is an Oregon Corporation in

is thelist cna rea cea cae

App. 43

good standing. Plaintiff is adversely affected and aggrieved

by the defendant's administrative decision of November 18,

1992, and the May 4, 1993, affirmance thereof, as more fully

described herein.

Defendant Michael Espy is the United States Secretary

of Agriculture. The Forest Service is an agency within the

Department of Agriculture. Defendant Dale Robertson is

chief of the National Forest Service. Defendant John Lowe is

Regional Forester for the Pacific Region of the National

Forest Service. Tom Schmidt is Forest Supervisor for the

Ochoco National Forest. Byron Cheney is District Manager

for the Crooked River National Grassland District of the

Ochoco National Forest. All defendant federal officers are

sued here in their official capacities.

Defendant Slater Communications and Electronics (Slater

Communications) is an Oregon Corporation in good standing

with its principal place of business in Salem, Oregon.

Defendant Slater Communications is the applicant for the

permits, approvals, and determinations in question. Slater

Communications currently owns and operates facilities on

Gray Butte and will own and operate the facilities in question.

STATEMENT OF FACTS

Plaintiff owns and operates a communications facility on

Gray Butte in the Crooked River National Grassland, which

is federal land under USDA and Forest Service jurisdiction.

This facility uses UHF and VHF frequencies to provide

services which include a public mobile telephone service, two-

App. 44

way radio, and repeaters. Plaintiffs’ facility, equipment, and

operations are in full compliance with the Forest Service's

Gray Butte Electronic Site Management Plan (Site Plan).

Defendant Slater Communications operates 4a

communications facility at Gray Butte, 40 feet from plaintiffs’

facility. | Defendant Slater Communication's buildings,

equipment, and operations are substandard and do not comply

with the Site Plan for Gray Butte. The Site Plan, among other

things, called for the removal of the Slater facility several

years ago. The interference problems have not been resolved

or addressed in spite of repeated requests by the plaintiffs and

in spite of extensive documentation of the problems. Slater's

communications operations at Gray Butte have consistently

generated interference with transmissions to and from the

facilities of Plaintiff and other occupants of the Gray Butte

Electronic Site.

10.

Defendants have failed to resolve the interference

problems despite repeated requests and extensive

documentation by Plaintiff. Defendant District Ranger has

failed to carry out his obligation to suspend the authorization

of the party in violation and terminate the incompatible use.

11.

In June 1989 the Gray Butte Electronic Site Plan was

updated, and an Environmental Assessment (EA) completed.

12.

On March 6, 1990, the District Ranger granted a Special

Use Permit to Slater for a building and tower, and approved

the environmental assessment.

App. 45

13.

Plaintiffs appealed, and the Forest Supervisor granted a

stay in April 1990. On July 27, 1990 the Supervisor affirmed

and granted the permit.

14.

Plaintiffs filed a second-level appeal to the Regional

Forester on August 10, 1990. On January 17, 1991, the

Deputy Regional Forester affirmed the Supervisor's decision,

but noted that there was no documentation in the record

showing that the Supervisor had complied with Forest Service

Manual 2728.8 interim directive #68 (now Forest Service

Handbook 2709.11, amendment 2209.11-92-17, § 7(3)(d)),

requiring the decision officer to attempt to resolve potential

incompatibility problems between the users. The Regional

Forester's order therefore directed the Supervisor to complete

the required process and document its completion.

15.

Following this order, the Forest Service held a series of

meetings with plaintiff, with Slater Communications, with

other users, and with consultants. The participants agreed on

a specific location considered acceptable for future

development, and the removal of Slater's existing facility by

August 1, 1992. The official defendants and Slater

Communications did not implement this agreement. As a

result, the old Slater Communications facility remains in

existence and in operation.

16.

On November 19, 1992, the Forest Supervisor issued a

second Decision Notice authorizing the issuance of a Special

Use Permit to Slater, amending the Site Plan, relocating

Slater's building site, supplementing the March, 1990, EA,

App. 46

and making a Finding of No Significant Impact (FONSI)

under NEPA. The notice allowed implementation of the

decision any time after December 6, 1992, in the absence of

an administrative stay, pursuant to 36 C.F.R. § 217.10(a), (h).

The special use permit authorized Slater Communications to

construct a new facility at a site only 160 feet from Plaintiff's

facility.

17.

The supplemental EA fails to consider all reasonable

alternatives as required by 40 C.F.R. §§ 1502.14; 1508.9(b)

Specifically, the EA fails to consider a no-action alternative,

as required by 40 C.F.R. § 1502.14(d). The supplemental EA

does not adequately address the impacts of each alternative,

including cumulative impacts, as required by 40 C.F.R.§

1508.9(b). It fails to address in any meaningful way the

interference problem or current conditions and experience to

date with operators, equipment, and facilities on the site. The

EA also erroneously states that the existing users concur in the

alternative selected.

18.

Plaintiffs filed an administrative appeal of the November

19, 1992, decision on January 14, 1993, with the Regional

Forester, requesting a stay of the permit and a withdrawal of

the decisions.

19.

On February 10, 1993, the Regional Forester denied

plaintiffs’ request for stay, allowing the issuance of the permit

but stayed the construction at the new site. This was "the

final administrative determination of the U.S. Dept. of

Agriculture" regarding the request for a stay. On May 4,

1993, Defendant Deputy Regional Forester Richard A.

App. 47

Ferrarro affirmed the November 19, 1993 determinations of

Forest Supervisor Tom Schmidt, and in so doing, committed

the same errors.

20.

The decision of November 19, 1992, as affirmed, to

amend the Site Plan and issue a Special Use Permit to Slater,

allowing Slater to relocate its communications facility and

construct a new building and tower, does not adequately

address the incompatibility problem or correctly apply the

applicable law; as a result, the interference will continue and,

in all probability, will worsen.

21.

These interference problems have seriously impaired the

plaintiffs' ability to provide a consistently high level of service

to their customers and have resulted in significant lost

revenues and business opportunities. Gray Butte has remained

a second-rate electronic communications site, unable to

provide the affected users with the high levels of service that

would otherwise be possible given Gray Butte's excellent

location, setting, and configuration. The November 19, 1992,

decision, and the May 4, 1993 affirmance thereof perpetuate

these harms by failing to address the incompatibility between

plaintiffs’ existing use and the newly-approved use.

y 4 3

If this court does not enjoin Defendants form issuing the

permit, the facilities will be constructed and operated,

interfering with public telecommunications at Gray Butte and

causing irreparable harm to Plaintiff, other users and

operators, and the public.

App. 48

CLAIMS FOR RELIEF

KKK

COUNT Il

27.

Defendants’ decisions of November 19, 1992

and May 4, 1993, constitute major federal action significantly

affecting the quality of the human environment under the

National Environmental Policy Act (NEPA), 42 U.S.C. §§

4321 et seq. and 40 C.F.R. § 1508.

28.

Both the EA and supplemental EA which Defendants did

prepare are inadequate under the requirements of 40 C.F.R.

§ 1508.9. Defendants have failed to support their actions with

an adequate consideration of reasonable alternatives and

adequate determination, record, and decision document

establishing that those actions will not, separately or

collectively, constitute a major federal action having a

significant impact on the human environment.

29.

Defendants' inadequate EAs violate NEPA and 40

C.F.R. 1501-1508 and are thus subject to judicial review

under 5 U.S.C. §§ 702, 706(2)(D).

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that the

Court:

REKK

App. 49

3. Declare that Defendants’ decisions of November 19,

1992, and May 4, 1993, violate NEPA and 40 C.F.R. §§

1501-1508.

4. Declare that Defendants’ actions as set forth above

are not in accordance with law, contrary to 5 U.S.C. §

706(2)(A).

5. Declare that Defendants’ actions as set forth above

are not in compliance with procedures required by law,

contrary to 5 U.S.C. § 706(2)(D).

6. Issue a preliminary injunction as well as a

permanent injunction, ordering defendant to rescind the

Special Use Permit it issued to Slater Communications,

withdraw its November 19, 1992, and May 4, 1993,

decisions, and prohibiting Defendant Slater Communications,

Inc., from operating or relocating, unless and until defendant

complies with 16 U.S.C. § 497(c), 36 C.F.R. §§251.54-.56,

FSM 2728.8 I.D. No. 68, and NEPA, as described herein.

‘2 Award Plaintiff its reasonable fees, costs,

expenses, and disbursements associated with this litigation.

8. Grant Plaintiff such other relief as the Court may

deem just and proper.

Dated May 10, 1993.

/s/ Allen L. Johnson, OSB #73153

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.