FILED
UNITED STATES COURT OF APPEALS JUN 16 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
WESTERN RADIO SERVICES CO., an No. 10-35468
Oregon Corporation; et al.,
D.C. No. 6:09-cv-00872-HO
Plaintiffs - Appellants, District of Oregon,
Eugene
v.
UNITED STATES FOREST SERVICE, ORDER
Defendant - Appellee.
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
The Memorandum Disposition filed on May 16, 2011 is amended as
follows:
1. On page 2 of the Memorandum Disposition, add the following text before
the word 'AFFIRM':
Western Radio's allegations that it was 'unable to determine' if the
radio tower project would interfere with its radio signals and that the
project had the 'potential' to disrupt wireless communications raise
only 'conjectural or hypothetical' concerns. Id. (internal quotation
marµs omitted). Liµewise, Western Radio maµes factual statements
that the radio tower project would result in trees being cut down and
vegetation replaced but does not allege an injury to itself (for
example, that the project would diminish its use or enjoyment of the
aesthetic and recreational values of the surrounding area), nor is such
an injury self-evident. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181-82 (2000).
The panel has voted to deny the petition for panel rehearing. The petition
for panel rehearing is DENIED. The Appellants' petition for rehearing en banc is
still pending before this court.
FILED
NOT FOR PUBLICATION JUN 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
WESTERN RADIO SERVICES CO., an No. 10-35468
Oregon Corporation; et al.,
D.C. No. 6:09-cv-00872-HO
Plaintiffs - Appellants,
AMENDED
v. MEMORANDUM *
UNITED STATES FOREST SERVICE,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted May 5, 2011**
Portland, Oregon
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
Western Radio Service Co. and Richard Oberdorfer, the company's owner
and president (collectively 'Western Radio'), appeal the district court's grant of
summary judgment to the United States Forest Service ('Forest Service'). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirm the district court because Western Radio has not adduced evidence
sufficient to raise a triable issue of fact that it has suffered a 'concrete and
particularized' and 'actual and imminent' harm as required for Article III
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations
omitted). Western Radio's allegations that it was 'unable to determine' if the
radio tower project would interfere with its radio signals and that the project had
the 'potential' to disrupt wireless communications raise only 'conjectural or
hypothetical' concerns. Id. (internal quotation marµs omitted). Liµewise, Western
Radio maµes factual statements that the radio tower project would result in trees
being cut down and vegetation replaced but does not allege an injury to itself (for
example, that the project would diminish its use or enjoyment of the aesthetic and
recreational values of the surrounding area), nor is such an injury self-evident.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
181-82 (2000).
AFFIRMED.
2