United States District Court, D. Oregon
S. AMANDA MARSHALL, United States Attorney, NEIL J. EVANS Assistant United States Attorney, Portland, OR, Attorneys for Plaintiff.
BRIAN L. MICHAELS, Eugene, OR, Attorney for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant Richard L. Oberdorfer's appeal of Magistrate Judge Dennis J. Hubel's April 24, 2013, Order denying Oberdorfer's Motion to Dismiss; denying Oberdorfer's May 31, 2013, oral Motion to Acquit; and denying Oberdorfer's June 19, 2013, oral Motion for Judgment of Acquittal. For the reasons that follow, the Court AFFIRMS Magistrate Judge Hubel's denials of Oberdorfer's Motions and AFFIRMS the Judgment entered August 5, 2013.
Defendant Richard L. Oberdorfer is the president and sole owner of the assets of Western Radio Services Company, a corporation. Western Radio operates a telecommunications tower and generator building on land leased from the United States Forest Service at the Walker Mountain Communication Site within the Deschutes National Forest.
In 2000 the Forest Service and Western Radio entered into a lease in which the Forest Service authorized Western Radio to use a specific parcel of land on Walker Mountain for constructing, operating, and maintaining a communications facility.
On September 13, 2004, Oberdorfer submitted to the Forest Service a special-use application on behalf of Western Radio in which Western Radio sought to expand the size of its building on Walker Mountain and to install a generator with a greater capacity.
On October 31, 2005, Leslie Weldon, the Forest Supervisor for the Deschutes National Forest in 2005, issued a "Decision Memo" in which she stated in pertinent part: "I have decided to authorize the expansion of the Western Radio communication building." Weldon noted in the Decision Memo that an environmental assessment and an environmental impact statement were not required based on her conclusion that the project would not affect threatened or endangered species, wetlands, Native American religious or cultural sites, or other interests protected by law.
On March 1, 2006, Oberdorfer submitted a letter to the Forest Service in which he proposed constructing a second tower to replace Western Radio's existing communications tower on Walker Mountain. Attached to the letter were a map of the Walker Mountain site with an arrow pointing to the location of the new tower and the manufacturer's specifications for the proposed new tower.
On September 18, 2007, John Allen, the Forest Supervisor at that time, issued a "Decision Memo" in which he stated: "I have decided to authorize the replacement of the Western Radio communication tower... on the Walker Mountain Communication Site." Allen concluded neither an environmental assessment nor an environmental impact statement were required. Western Radio, however, did not begin work on the second communications tower.
On December 9, 2009, Holly Jewkes, District Ranger for Walker Mountain, sent Oberdorfer a letter in which she noted the Forest Service had completed a "communication site inspection" at Walker Mountain on August 19, 2009, during which Western Radio's facilities were inspected. Jewkes noted various items for Western Radio's "correction and/or information." Jewkes then noted the September 18, 2007, Decision Memo related to the replacement of Western Radio's communication tower and stated in pertinent part:
1. Be advised that if Western is planning to pursue the tower replacement, I will require a new 30-day technical review period for all existing authorization holders at Walker Mountain including the Forest Service.
2. Execution of a Western communications use lease amendment to authorize the construction of a Western replacement tower would be, in part, contingent upon the results of this technical review period.
On June 17, 2010, Jewkes sent Oberdorfer a letter by certified mail "to clarify the elements for Western Radio's proposed building and tower improvements." SER 51. Jewkes noted the 2005 Decision Memo "authorized one building expansion up to 384 square feet with a maximum 10 foot side wall" and the 2007 Decision Memo "authorized one self-supported 80-foot tower." Jewkes advised Oberdorfer that if Western Radio's "project design intent still conform[ed]" to the 2005 and 2007 Decision Memos, the Forest Service would not have to conduct any "further NEPA analysis." Id. Nevertheless, Jewkes advised Oberdorfer that Western Radio would still
need to submit a technical data form FS 2700-10 for 30-day comment to all existing authorized users on Walker Mountain, including the Forest Service. Execution of a communications use lease amendment which authorizes construction, is contingent (in part) on the results of this comment period.
Jewkes testified at trial that Oberdorfer did not approach her at any time between June 17, 2010, and October 21, 2010, to obtain final authorization to proceed with construction of the second communications tower on Walker Mountain.
In August 2010 Western Radio began construction on a second communications tower on Walker Mountain.
Shortly before October 21, 2010, the Forest Service discovered Western Radio had begun construction on the second communications tower. At that point Jewkes emailed Oberdorfer and directed him to cease construction because he had not received Forest Service approval to construct the second communications tower. On October 21, 2010, Jewkes sent Oberdorfer a letter via certified mail in which Jewkes noted Forest Service personnel had observed Western Radio had begun construction of a second communications tower. Jewkes pointed out that she had advised Oberdorfer in her December 2009 letter that the following steps were to be completed before he would be authorized to start construction:
1. [A] new 30-day technical review period for all existing authorization holders at Walker Mountain including the Forest Service.
2. Execution of a Western communications use lease amendment to authorize the construction of a Western replacement tower... contingent [in part] upon the results of this technical review period.
SER 48. Jewkes noted the Forest Service had received the return receipt for her December 9, 2009, letter signed by Oberdorfer on December 17, 2009. Jewkes advised Oberdorfer that as of October 21, 2010, "no letter of written approval has been provided to your office. Until the above conditions... [are] met..., you are hereby required to cease construction of the tower and associated structures immediately." SER 49.
On November 4, 2010, Oberdorfer sent Jewkes an email in which he acknowledged the requirements set out in Jewkes's December 9, 2009, letter and stated "Western has not had any new equipment proposals to coordinate with the other holders and the Forest Service since December 2009. I had anticipated sending out some 2700-10 forms prior to beginning construction this summer." He acknowledged, however, that he did not send out any 2700-10 forms for reasons unrelated to this action. SER 46. Oberdorfer asserted:
Western has been authorized an 80 foot tower at the Walker Mountain Site for 30 years. When the construction is completed, Western will still be authorized an 80 foot tower.... [I]f there is something to amend in the lease, it certainly could be done during or after construction. It was unreasonable of you to stop construction for such an insignificant administrative matter.
* * *
If there is some new requirement that the Forest Service is imposing on existing holders, I fail to see the need to stop construction while administrative matters are attended to. Now that I have affirmed Western's commitment to coordinate proposals with other users, it would seem appropriate for you to begin dealing with any remaining administrative matters instead of signing more harassing letters generated by Forest Service attorneys.
On November 23, 2010, Jewkes sent Oberdorfer a letter by certified mail in which she responded to Oberdorfer's November 4, 2010, email and advised him that
Western Radio Services (Western) breached the terms and conditions of its Communications Use Lease (CRB09)(hereinafter "Lease") by constructing a new tower and an addition to its generator building on Walker Mountain without prior authorization. Western's breach constitutes grounds for the revocation of its Lease ...