R.C. Dick Geothermal Corp. v. Thermogenics, Inc. , 890 F.2d 139 ( 1989 )

NOONAN, Circuit Judge:

The plaintiff in this case, the lessor of property producing geothermal steam, brought suit under the antitrust laws of the United States against its lessees. After a trial on one set of claims and after giving summary judgment on another, the district court entered judgment for the defendants. We affirm the district court.

BACKGROUND FACTS

Drawing on the opinion of the district court, R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 619 F.Supp. 441 (N.D. Cal.1985), aff'd, 827 F.2d 407 (9th Cir.1987), withdrawn, vacated, rehearing granted en banc, 841 F.2d 1010 (9th Cir.1988), undisputed facts set out in the briefs of the parties, and information in the public domain, we summarize the facts as follows: The Products.

Water heated by the earth’s energy— geothermal steam — is the primary product in play. Its major use in this country has been for one purpose, the production of electricity, and at one place, The Geysers, 378,000 acres in Sonoma and Lake Counties, Northern California. The user, until very recently, has been one company, the Pacific Gas and Electric Company (PG & E), which since the 1950’s has taken the lead in the use of geothermal power to produce electricity and which was the sole purchaser of geothermal steam in the period 1970-1983.

The Geysers are a mountainous terrain, marked not by actual geysers but by fumaroles, small openings in porous rock from which white puffs of condensed steam emerge. At levels as great as 10,-000 feet beneath this surface a reservoir of heated water, 13.3 miles by 5.3 miles, exists. R.C. Dick, 619 F.Supp. at 447 n. 4. The immediate source of the heat is believed to be magmatic rock at about 32,800 feet. Id. The ultimate source of the heat is most likely volcanic activity. Handbook of Geothermal Energy 93 (L. Edwards et al., eds. 1982).

The water trapped in the reservoir is a depletable resource. There is little recharge after use as steam. R. Denlinger, Geography and The Geysers Geothermal Field, Northern California p. Ill (Doctoral dissertation, Stanford University, 1979). Individual wells are exhausted by use. P. Kruger and C. Ote, Geothermal Energy 135 (1973); and a whole geothermal field declines as it is used. H.C. Armstead, Geothermal Energy 66 (2nd ed. 1983).

The value of geothermal steam has depended on the willingness of a supplier of electricity to use it. In 1960, after experiments in the 1950’s, PG & E opened its first power plant using such steam, Unit 1, with a generating capacity of 12 million watts (12 megawatts). The producer of steam was the Magma-Thermal Power Co. A Reservoir Assessment of The Geysers Geothermal Field 8 (Pub. No. TR 27 of the California Department of Corrections, Division of Oil and Gas, 1981).

In 1963, PG & E opened Unit No. 2, capable of generating 14 megawatts, with Magma-Thermal Power Co. as the producer. Id. From 1967 until June 1979, the Union Oil Company of California, in association with Magma-Thermal or alone, was the only producer of steam in The Geysers, while PG & E remained the only buyer. Id. By the end of 1973, PG & E had built plants with a capacity of 410 megawatts. Id.

The development of more PG & E plants was retarded by the difficulty of meeting environmental controls and licensing requirements. P. Kruger et al., “Utility Industry Estimates of ‘Geothermal Electricity’, Geothermal Resources Council, Transactions (September 1980) vol. 4, p. 512.” There was an accompanying increase in the cost of the power plants designed to deal with the environmental problems, especially the treatment of odiferous H2S. A capital cost of $12.8 million to construct two plants with a total capacity of 110 megawatts in 1971 rose in 1979 to a capital cost of $25.5 million to construct a single plant, Unit No. 15 with a capacity of 55 megawatts. H.C. Armstead, supra, at 298. In the 1970’s it was estimated that there was a five-year time lag in The Geysers between drilling that confirmed the existence of usable steam wells and commercial operation of a power plant. Kruger and Ote, supra, at 135. The wells and the plants had to be close to each other because geothermal heat loses its energy quickly in being transported from the wellheads to the plants. Id. 130.

In June 1979 PG & E’s Unit No. 15 went on line, its steam being supplied by a defendant in this case. In May 1980 Aminoil USA Inc. began to supply steam to a PG & E unit with a capacity of 135 megawatts. By 1982 Aminoil, Shell Oil Co., MCR Geothermal Corp., and Occidental Geothermal all had active projects to develop wells and sell steam in The Geysers. A Reservoir Assessment, 8. In addition, Occidental Geothermal planned to become a user of steam. Id. As of 1983 PG & E was still the only actual purchaser of steam; by 1985 five other utilities were also in the market. R.C. Dick, 619 F.Supp. at 455.

Megawatt output increased from 78 megawatts in 1970 to 396 in 1973, 980 in 1980, and 1310 megawatts in 1983. The field’s eventual capacity is estimated not to exceed 2,300 megawatts. Id.

The Parties.

In 1964 Ronald C. Dick, an individual, entered into a mining lease for 1,100 acres of land in Sonoma County, California, owned by Alex and Audrey Rorabaugh. He immediately assigned the lease to R.C. Dick Mercury Mines Corporation (Dick Mines), his then wholly-owned company. As the lessee of the property, Dick Mines was entitled to explore and mine all minerals including steam. For two and one half years as lessee of the Rorabaughs’ property, Dick Mines drilled no wells and made no geological explorations.

In October 1966 Dick Mines subleased to Geothermal Resources Inc. (GRI). The lease provided that GRI would pay Dick Mines $14,000; that it would pay the Rora-baughs a basic minimum rental of $1,500 per month, the rental required by the master lease; a royalty of 7 percent of the gross proceeds, as required by the master lease, to the Rorabaughs; and an additional 3 percent to Dick Mines. Additionally, GRI agreed to pay the portion of the real and personal property taxes in excess of $2,500 and to pay for general public liability insurance, for worker’s compensation insurance and at least $1,000 for fire insurance. The lease was to be in force for two years and thereafter up to June 30, 2063 as long as the premises produced steam in commercial quantities or GRI in good faith continued to conduct drilling on the property. If steam was discovered in commercial quantity, Dick Mines agreed to exercise its option to renew the master lease for 84 years.

In 1970, GRI transferred its steam rights to Resources Investment Company (RIC), a wholly-owned subsidiary of Hughes Aircraft Company (HAC). GRI retained a royalty interest. In 1971 R.C. Dick Geothermal Corporation (Dick Geothermal), the plaintiff in this case, was organized as a wholly-owned subsidiary of Dick Mines. The lease from the Rorabaughs was transferred to Dick Geothermal.

As of 1971 the Rorabaughs were leasing to Dick, whose interest had passed to Dick Mines and then to Dick Geothermal, while GRI and then RIC were the sublessees. Thermogenics, Inc. (TGI), another wholly-owned subsidiary of HAC, and Pacific Energy Corporation (PEC) assumed the development rights held by RIC. The companies used by the sublessees in connection with development of the property were PEC and Callón Petroleum Company, both companies owned by John Callón.

On July 12, 1973 PEC entered into a contract with PG & E. PG & E agreed to construct a power unit (Unit 15) of about 55 megawatts full capability. PEC agreed to provide the steam for this unit and in addition to carry out exploration and development of the property to “define as quickly as practicable the total steam reserves” of the property. PEC further agreed to conduct sufficient drilling to support installation of additional capacity at a rate of at least 100 megawatts per year. The price PG & E was to pay was calculated in terms of a ratio derived from PG & E’s costs in using fossil fuels and nuclear fuels but in no event was to be less than 2 mills per kilowatt hour of net output. PG & E was given the right to terminate if costs or the quality of steam made the unit economically impracticable. PEC was given the right to terminate if the operation of the wells became unprofitable. Otherwise no termination date was set.

In 1979 Dick Geothermal bought the fee from the Rorabaughs, securing for itself the Rorabaugh’s 7 percent royalty interest.

In the case at bar the defendants are the sublessees — GRI and HAC and HAC’s subsidiaries, TGI and RIC; Callón and his companies, PEC and Callón Petroleum; and certain individual officers of the defendants. The defendants, in short, either held leases to the property or worked for these leaseholders. Dick Geothermal related to the defendants as their only landlord in and after 1979 and as their intermediary landlord before 1979.

The history may be summarized as follows:

PRE-CONSPIRACY

1964 Ronald C. Dick leases from Rora-baughs.

1964 Ronald C. Dick assigns lease to Dick Mines.

1964-1966 Dick Mines drills no wells. 1966 Dick Mines subleases to GRI.

AFTER ALLEGED CONSPIRACY BEGAN IN 1970

1970 GRI transfers its steam rights to RIC.

1971 Dick Mines transfers its lease to Dick Geothermal.

1971 RIC transfers its rights to TGI and PEC.

1973 PEC contracts with PG & E, and PG & E agrees to build a 55 megawatt plant.

1/79 Rorabaughs sell fee to Dick Geothermal.

6/79 Unit 15 of PG & E begins using steam from the property.

12/79 Complaint filed by Dick Geothermal.

(Alleged conspirators are in italics)

The Markets.

As the plaintiff presented its case, and as the district court conceptualized it, there were two markets. One was the market in which there were buyers and sellers of steam. The other was the market in which there were buyers and sellers of rights in steam-producing property. The geographic boundaries of these markets was disputed. The resolution of the dispute is a question of law. Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1387-88 (9th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981). The district court determined on summary judgment that the geographic boundaries of the markets for steam and for properties producing steam was the entire 378,500 acres of The Geysers. R.C. Dick, 619 F.Supp. at 447. We review that determination de novo. United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The burden of proof in establishing a market for antitrust purposes is on the plaintiff. Gough v. Rossmoor, 585 F.2d 381, 389 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). The district court had before it evidence showing where there were buyers and sellers of steam and steam rights. In opposing defendants’ motion for summary judgment on the Section Two claim, Dick Geothermal argued: “Plaintiffs property and the surrounding buildable property within 1 to 2 miles of the existing and potential steam well heads is the relevant geographic market. Central to the analysis of any relevant geographic market issue in this case is the fact that geothermal steam cannot be transported for more than 1 to 2 miles.” Dick Geothermal also presented an alternative definition in terms of the power plants of PG & E: it argued that the market should include “only those geothermal wells situated within two miles of a steam generating unit and not otherwise committed to a buyer.” R.C. Dick, 619 F.Supp. at 447; see also id. at 447 n. 3.

We are unable to see how the geographic markets contended for by Dick Geothermal in the district court made sense. By Dick Geothermal’s own account PG & E would construct power plants where there was steam. No transportation problems limited the creation of these new plants because the plants were put up where the steam was found. Dick Geothermal’s first argument appeared to define the geographic boundaries in terms of distance from its own property. But steam from its land was only a small portion of the product. Wherever there were potential wellheads, steam could be produced. Dick Geothermal’s second argument — the one pressed upon the district court — assumed that the number of power plants was static. But, taking into account its own costs and profits, PG & E built power plants as sufficient steam to support them was discovered and came into production. Steam and steam-producing lands were not static, nor was the number of power plants fixed. Dick Geothermal did not carry its burden of proving its definition of the markets. We accept the determination of the district court that the geographic boundaries of the markets for steam and for properties producing steam was the entire 378,500 acres of The Geysers. R.C. Dick, 619 F.Supp. at 447.

The Suit.

Dick Geothermal sued the defendants under Sections One and Two of the Sherman Act, 15 U.S.C. §§ 1-2 (1988). Dick Geothermal’s theory of how the defendants had injured it by violating Section One was that they had conspired to conceal the steam capacity of the property they had subleased from Dick Geothermal, thereby preventing Dick Geothermal from assuming control of the property’s development for its own account. Dick Geothermal also contended that the conspiracy, by reducing the steam production, had necessarily reduced Dick Geothermal’s revenue from royalties. These asserted injuries affected Dick Geothermal not as an actual but as a potential supplier of steam.

The alleged Section One violations also had an asserted impact on the steam rights market. According to Dick Geothermal’s theory, a signal was conveyed by the defendants’ conspiratorial non-production of steam to companies interested in buying steam-producing lands; the signal was that the land adjacent to the Dick Geothermal property was of low quality because the Dick Geothermal property was producing so little. Not only was competition for these adjoining lands discouraged, but, so Dick Geothermal complained, Dick Geothermal itself was deprived of the information and the revenues with which it could have competed vigorously as a buyer in the steam rights market. The conspirators were portrayed as so intent on their objectives that they were willing to forego the 90% of the steam royalties that would have gone to them in order to deprive Dick Geothermal of its 10% share.

Under Section Two of the Sherman Act, Dick Geothermal alleged that the defendants had attempted to monopolize the steam market and had conspired to monopolize that market.

The district court simplified the case by severing for trial the issue of whether the plaintiff could show any anticompetitive effect of the alleged conspiracy on the market for steam. R.C. Dick, 619 F.Supp. at 450. After trial, the court found no anti-competitive effects and so no violation of Section One. Id. at 462-63. The district court also granted summary judgment for the defendants on the plaintiff’s claim that the defendants had restrained competition in the market for steam rights. Id. at 450. The court found there was uncontroverted evidence that throughout the relevant period there was active competition for steam rights within the relevant market and that the plaintiff had provided no support for its contention that the defendants’ conduct had affected this market. Id. at 451-52.

On the Section Two claims, the court granted summary judgment for the defendants. Id. at 463. As to the claim of attempted monopolization of the steam market, the district court found that the plaintiff could not prove that the defendants had market power or that they had engaged in anticompetitive conduct. Id. As to the conspiracy to monopolize prong of the Section Two claim, the district court found that the plaintiff had offered no proof of specific intent to monopolize. Id.

Only the Section One issues were appealed. A panel of this court affirmed the district court. R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 827 F.2d 407 (9th Cir.1987). We then took the case en banc, 841 F.2d 1010 (9th Cir.1988).

ANALYSIS

Before reaching the issues addressed by the district court and the panel we ask whether the plaintiff has standing to bring an antitrust suit against these defendants. In other words, is the injury it seeks to redress one which the antitrust laws are “intended to prevent”? Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). Although this question looks at “a threshold requirement,” it is not a jurisdictional question but one properly raised at any stage of the litigation. Whenever it appears that this part of the plaintiffs case has not been established and has not been conceded, an element necessary for the plaintiff to prevail is lacking. P. Areeda & H. Hovenkamp, Antitrust Law ¶ 335.1b (Supp.1987).

The dissent suggests that as standing was not an issue at trial we should not decide it. But the dissent’s position undercuts the established rule that standing is open to challenge at any time. The dissent’s position, moreover, raises an issue not raised by the appellant in its Supplementary Brief on Standing. The appellant did not contend that standing could not be determined on the record before us. Rather, confidently invoking what it said had been the law of this circuit “for over 30 years,” it joined issue on the question of standing as presented by the record. Any objection based on the inadequacy of the record has been waived.

Black letter law teaches that we may decide a case on any basis fairly presented in the record. While the district court did not decide the issue of antitrust standing, that court made factual findings and rulings as to what was disputed, and these findings and rulings permit a decision as to standing. In the trial on the anti-competitive effects on the steam market, the court made factual findings reviewable under the clearly erroneous standard. Dollar Rent A Car of Washington, Inc. v. Travelers Indemnity Co., 774 F.2d 1371, 1374 (9th Cir.1985). In its granting of summary judgment on the steam rights market, the district court ruled that there was no factual dispute as to certain matters; these rulings are reviewed de novo here. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Holding that the factual findings were not clearly erroneous and that there is no factual dispute as to the summary judgment rulings, we have a record on the basis of which we address de novo the issue of standing. Bubar v. Ampco Foods, Inc., 752 F.2d 445, 449 (9th Cir.), cert. denied, 472 U.S. 1018, 105 S.Ct. 3481, 87 L.Ed.2d 616 (1985); Angle v. United States, 709 F.2d 570, 573 (9th Cir.1983).

The doctrine of antitrust standing “requires an inquiry beyond that performed to determine standing in a constitutional sense.” Bubar, 752 F.2d 448. If standing is not found, an essential element of the plaintiff’s case is missing and the plaintiff’s case fails. To score a home run the plaintiff must first have touched first base.

In response to this court’s request for briefing Dick Geothermal argued that its standing as a royalty owner was decided by Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir.1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971) and Steiner v. 20th Century-Fox Film Corp., 232 F.2d 190 (9th Cir.1956). The rule of Mulvey and Steiner, however, was formulated at a time when the Supreme Court had not defined what were the appropriate restrictions on standing. California State Council v. Associated General Contractors, 648 F.2d 527, 537, n. 15 (9th Cir.1980), rev’d, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). At the time that this court formulated its rule we were willing to grant standing if the plaintiff was in “the target area,” that is, within the economic area endangered by a breakdown of competitive conditions in a particular industry. 648 F.2d at 537-38.

The “target area” approach was explicitly rejected by Associated General Contractors. 459 U.S. at 536 n. 33, 103 S.Ct. 907 n. 33. The dissent finds Associated General Contractors “an unremarkable decision.” But the decision is controlling as to the kind of analysis that must be undertaken here. Following Associated General Contractors we can no longer apply Steiner and Mulvey: their method of analysis is no longer good law.

Rejection of Steiner and Mulvey, so Dick Geothermal contends, is a rejection of thirty years of antitrust law in this circuit. That rejection was accomplished not by this case but by Associated General Contractors when it rejected target area analysis. See, e.g., Note, “Antitrust Standing, Antitrust Injury and the Per Se Standard,” 93 Yale L.J. 1309, 1327 (1984). We cannot, of course, say what the results would have been in Steiner and Mulvey if the alternative approach approved by Associated General Contractors had been taken, for that kind of analysis was not done in Steiner and Mulvey. What we can say is that after Associated General Contractors a landlord or receiver of royalties does not establish antitrust standing by showing its receipts are down and it is in the area where an antitrust violation produced this result.

The Supreme Court in Associated General Contractors made clear that § 4 of the Clayton Act is not to be read literally so that “any person” who was injured “by reason of anything forbidden by the antitrust laws” could maintain an action. Id. at 535, 103 S.Ct. 907. What is crucial in interpreting this statute, as in interpreting any statute, is to determine congressional purpose. If Congress did not intend to protect the interest asserted by the plaintiff, the statute simply does not apply. No doubt in the divination of congressional intent a court is compelled to determine the policies Congress had in mind. But congressional intent, once ascertained, is not just another policy. Whether Congress intended to confer standing is decisive. Id. at 530-35,103 S.Ct. at 904-07.

To determine whether the plaintiff’s case falls within the intended area of statutory protection, we must “evaluate the plaintiffs harm, the alleged wrongdoing by the defendants and the relationship between them.” Id. at 535, 103 S.Ct. at 907. In undertaking this evaluation several factors have been set out by the Supreme Court as factors which may be “controlling.” Id. at 538, 103 S.Ct. at 908. They include:

1. The specific intent of the alleged conspirators;

2. The directness of the injury;

3. The character of the damages, including the risk of duplicative recovery, the complexity of apportionment, and their speculative character;

4. The existence of other, more appropriate plaintiffs;

5. The nature of the plaintiffs claimed injury. Id. at 537-45, 103 S.Ct. at 912.

No single factor is decisive. The court must balance the factors. Los Angeles Memorial Coliseum Commission v. NFL, 791 F.2d 1356, 1363 (9th Cir.1986), cert. denied sub nom., Los Angeles Raiders v. NFL, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). We review the factors in turn as they apply here.

Dick Geothermal argues that the factor of intent is in its favor. In its complaint Dick Geothermal alleged that the defendants had acted intentionally to deprive it of revenues and to coerce it into selling its property for an inadequate consideration. These allegations were not tried. We assume on this appeal that they were true. An allegation of intentional injury is not “a panacea that will enable any complaint to withstand a motion to dismiss.” Associated General Contractors, 459 U.S. at 537, 103 S.Ct. at 908. The assertion of the intent to injure by obtaining Dick Geothermal’s property is the assertion of an intention that did no harm here because the alleged plan was never carried out. While intent adds to injury, if there is no injury the intent is irrelevant. But the alleged intent to deprive Dick Geothermal of revenues remains a factor in Dick Geothermal’s favor.

Dick Geothermal argues that the factor of directness is a second factor in its favor. Directness in the antitrust context means “close in the chain of causation.” E.g., id. at 540,103 S.Ct. at 909. Understood in this sense, “direct” is an appropriate description of Dick Geothermal’s alleged loss of royalties. The alleged royalties lost, however, are only a fraction of Dick Geothermal’s alleged damages. A substantial part of Dick Geothermal’s damages are alleged to issue from the lack of royalties depriving it of revenues to compete in the two markets with the defendants. These damages must be characterized as indirect. They are like the damages of a stockholder whose corporation is injured by monopolistic activity: because the corporation is injured, the stockholder has less money to invest; nonetheless his injury is indirect, and he lacks antitrust standing. So here, the allegation that Dick Geothermal had less resources to invest is an indirect consequence of the alleged royalty loss.

A third factor is the character of the damages. To the extent Dick Geothermal claims lost royalties, these damages are not duplicative, are clearly apportionable and could be readily calculated from the following ambivalent concession made by the defendants for the purpose of simplifying the issues at trial:

Defendants strongly deny that they have, together or singly, restrained geothermal production from plaintiff’s land. In fact, each engaged in the development of that land so that it now has a 55 MW power plant installed on it, Unit 15. For purposes of this motion, however, defendants will accept plaintiff’s claim, even though it is totally false and utterly unsupportable, that defendants agreed to produce Unit 15 at less than full capacity, resulting in 30 MW less production than capacity. Defendants will also accept, for purposes of this motion plaintiff’s equally erroneous claim that defendants knew the remainder of plaintiff’s lease would produce another 60 MW of steam, yet declined to produce it. [Defendant’s Memorandum of Points and Authorities in Support of Motion for Summary Judgment on “Competitive Harm” and to exclude Expert Witnesses, at 12 n. 10, CR 734.]

The defendants’ concession could and presumably would be withdrawn if damages became the issue. The court would then have to determine whether by 1979 the defendants could have produced the 55 megawatts PG & E had contracted for, and the court would have to determine how much the defendants thereafter could have produced and how much of that production PG & E would have been ready and able to use. Nonetheless, in the present posture of the case, claimed lost royalties, at least on the 55 megawatt plant after June 1979, meet the test of identifiable damages.

Dick Geothermal also claims damages for having been prevented from producing steam in its own right, but there is no evidence — as will be made clear below— that Dick Geothermal would ever have produced steam. Dick Geothermal further claims lost opportunities to buy steam rights but in attempting to avoid summary judgment pointed to no evidence of damage. If Dick Geothermal’s claims were true, misinformation by the defendants kept buyers out of the market. More buyers would presumably have meant higher prices, and Dick Geothermal presents its case as a buyer of steam rights, not a seller.

Dick Geothermal maintains that the misinformation prevented it from being a buyer because the misinformation affected its financing. The district court, however, found that “the uncontroverted record” showed that there was “active competition among many firms for steam rights within the relevant market” and that there was no evidence pointed to by the plaintiff that misinformation adversely affected market structure, ease of entry or the price for steam rights. R.C. Dick, 619 F.Supp. at 452. On appeal Dick Geothermal has pointed to no evidence giving rise to a factual dispute as to these findings made by the district court in the course of giving summary judgment. Reviewing these determinations de novo, we accept them. Dick Geothermal has shown no injury from misinformation by the defendants. Its allegations as to damages from this cause do not justify antitrust standing.

Dick Geothermal’s only direct, identifiable damages are those of a landlord whose rent has not been paid. To give Dick Geothermal the benefit of the damage factor would amount to the tail wagging the dog. Future litigants would know that they could get closer to antitrust standing, and a possible treble recovery on a host of speculative claims, merely by alleging a few minor and identifiable damages.

A fourth factor is the existence of identifiable persons more obviously suffering antitrust injury whose self-interest would motivate them to vindicate the public interest in antitrust enforcement. E.g. In re Industrial Gas Antitrust Litig., 681 F.2d 514, 520 (7th Cir.1982), cert. denied 460 U.S. 1016, 103 S.Ct. 1261, 75 L.Ed.2d 487 (1983). A plaintiff properly enforcing the antitrust laws has been analogized to the attorney general, but this metaphor is not authorization for a posse comitatus to come to the aid of the antitrust statutes. As to the steam market, if Dick Geothermal’s claims were true, PG & E suffered the more obvious antitrust injury and is in an excellent position to vindicate its own and the public’s interest. As to the steam rights market, if Dick Geothermal’s claims were true, sellers of steam rights suffered antitrust injury while Dick Geothermal was a buyer which profited from the lower price allegedly produced by the conspirators. The sellers are in a far better position to champion the public interest in vigorous antitrust law enforcement.

Fifth and finally, we come to the nature of the injury. This fifth factor is of “tremendous significance.” Bhan v. NME Hospitals, Inc., 772 F.2d 1467, 1470 n. 3 (9th Cir.1985). Mere injury as a landlord or lessor entitled to royalties would not by itself be the kind of injury to competition that the antitrust laws are designed to prevent. “The requirement that the alleged injury be related to anticompetitive behavior requires, as a corollary, that the injured party be a participant in the same market as the alleged malefactors.” Id. at 1470 (citing Associated General Contractors, 459 U.S. at 538, 539, 103 S.Ct. at 908, 909).

Dick Geothermal, as landlord of the defendants, was neither a competitor nor a consumer in the steam market. Dick Geothermal claims it was a potential seller of steam, prepared to compete in the steam market, and an actual purchaser of steam rights, competing in the steam rights market. Dick Geothermal alleges that the defendants intended to damage it as their competitor in the sale of steam by concealing the amount of steam Dick Geothermal’s property, properly developed, could produce and to damage it as their competitor in the purchase of steam leases in two ways: by depriving it of revenue it could use to acquire leases and by signaling to the sources of financing for Dick Geothermal and other would-be purchasers that the lands adjacent to Dick Geothermal were of poor quality and so not suitable for investment. In the scenario sketched by Dick Geothermal the company was a Californian Jean de Florette, the victim of villains who were not only neighbors but actually on its property hiding the true steam potential. Unlike the hapless Jean, Dick Geothermal presents its injury as being inflicted by its competitors, so that the injury appears at first blush to be antitrust injury.

These claims were not conceded. They were disputed, denied and tried. From the evidence now in the record after trial on the issue of anti-competitive effects, it is clear that Dick Geothermal’s allegations went beyond what it was capable of proving. In the steam market, it was not a producer of steam. Called on to show that it had standing, Dick Geothermal in its Supplementary Brief on Standing, p. 2, notes that it owned four other steam leases besides the Rorabaugh lease but points to no evidence that it was producing and marketing steam from these leases. As to the Rorabaugh property, the district court specifically found after trial that the Rora-baugh property was not an entry point for Dick Geothermal because it was “unavailable as a result of the exclusive long-term lease between the plaintiff and GRI.” R. C. Dick, 619 F.Supp. at 458. This determination was without error. Dick Geothermal’s lease to GRI specifically provided that if GRI discovered steam in commercial quantities, Dick Geothermal would extend the master lease, not itself become a producer. Far from preventing Dick Geothermal from developing its own property as Dick Geothermal alleged, the defendants’ alleged conspiracy was the only event that might have returned the property to Dick Geothermal to develop; for, again according to Dick Geothermal, the conspiracy violated covenants made by the lessees. If there was no breach of the lease, Dick Geothermal had no way of becoming a producer of steam on the Rorabaugh property.

As for the market in steam rights, the record shows no competitive injury was done the plaintiff or anyone else. No evidence supported Dick Geothermal’s contention that the conduct of the defendants in not maximizing production of the Rora-baugh property “acted as a barrier to entry within The Geysers steam rights market, even on those locations adjacent to the Dick property.” R.C. Dick, 619 F.Supp. at 452. Dick Geothermal did indeed offer the testimony of experts in economics that the price of steam-producing property could be influenced by the steam production on neighboring land. But the district court did not treat, nor did it need to treat, an abstract economic theory as evidence.

In the purchase and sale of steam rights of most immediate relevance to this suit, Dick Geothermal in 1979 bought the Rora-baugh’s property. As to this purchase Dick Geothermal was faced with these alternatives when it stated its position in this case: If it bought the property at its true value, then the defendants’ alleged conspiracy had had no effect even on the value of the property most immediately affected. If Dick Geothermal bought the property at a bargain price because of the defendants’ conspiracy, then Dick Geothermal was the beneficiary of those it claims conspired to injure it. Its allegations in its suit chose the latter alternative. According to its theory of the case, it acquired the fee to property capable of producing over 115 megawatts at a time when it was thought capable of producing only 25 megawatts. A Jean de Florette who profited from his neighbors’ villainy would be a very different figure from the pitiful protagonist of Pagnol’s novel. The “victim” of alleged antitrust violations that makes a killing from the alleged violations has suffered no antitrust injury.

In its complaint Dick Geothermal asserted that the defendants’ conduct “reduced the value of the Property.” [Complaint, at 10, If 25(d).] No dates were specified. “The Property” referred to is the Rora-baugh land. If the defendants’ conduct had indeed reduced the value of “the Property” by 1979, Dick Geothermal made no showing that there was any further reduction in its value. By the end of 1979 Dick Geothermal had, according to its 1979 complaint, all the information necessary to show that the Rorabaugh land was capable of a much higher production. If there was sufficient evidence in Dick Geothermal’s possession to convince a court, as the complaint asserted, there was sufficient evidence in Dick Geothermal’s possession to convince a buyer or lender on the property.

Not only did the purchase of the Rora-baugh property disprove Dick Geothermal’s claim of injury through being misinformed, it also showed that the alleged conspiracy had deprived it of neither the resources nor the financial backing to buy proven steam-producing land. The purchase more than doubled its royalty income. Dick Geothermal’s ability to buy adjacent land was that much the greater, while the adjacent land, again according to its allegations, was also available at bargain prices. No injury was done it, if as it alleged, the prices it would have had to pay were less than they should have been.

The foregoing assumes that Dick Geothermal’s allegation as to the misinformation generated by suppression is true. But the district court in summary judgment found that Dick Geothermal had failed “to provide any support” for its claim that the stipulated suppression had any anti-eompet-itive effects on the steam rights market. R.C. Dick at 452. Reviewing this finding de novo, we hold that there is no reason to disturb it. As Judge Choy concluded for a panel composed of himself, Judge Goodwin and Judge Pregerson, the district court “correctly determined” that Dick Geothermal “failed to provide significant probative evidence” that the alleged misinformation caused a distortion in the value of steam rights on land adjacent to the Rora-baugh property. R.C. Dick Geothermal Corp. v. Thermogenics, Inc., Nos. 85-2573, 85-2589, slip op. at 29, 827 F.2d 407 (9th Cir. Mar. 16, 1987) (as amended Sept. 1, 1987).

Dick Geothermal argued on appeal that the district court erroneously overlooked or misconstrued evidence in ruling on its misinformation theory. The district court found that Dick Geothermal’s expert witness, a geothermal consultant named Dr. McNitt, did not change his advice to clients because of the absence of drilling on the Rorabaugh property. R.C. Dick, 619 F.Supp. at 452. Dick Geothermal disputes this finding by pointing to Dr. McNitt’s general testimony that the value of geothermal land was determined, in part, by proximity to proven resources. But Dr. McNitt did testify that the “status of the development” on the Rorabaugh property had not affected his advice, and the district court could properly rely on that more specific testimony. The district court also found that one of Dick Geothermal’s competitors, Claude Jenkins of Aminoil, was not misled by the lack of drilling. Id. Dick Geothermal claims that the court based this finding on an unsworn outline of trial testimony. But Jenkins testified at deposition and it apparently was this testimony on which the district court relied. Dick Geothermal’s claims are not sufficient to disturb the district court’s findings made in the course of summary judgment.

Dick Geothermal was not in the steam market and Dick Geothermal suffered no identifiable injury in the steam rights market. Following applicable precedent, however, our inquiry is not complete. We must ask if any alleged injury to Dick Geothermal was “inextricably intertwined” with injury to competition in those markets. Blue Shield of Virginia v. McCready, 457 U.S. 465, 484, 102 S.Ct. 2540, 2551, 73 L.Ed.2d 149 (1982); Chelson v. Oregonian Publishing Co., 715 F.2d 1368 (9th Cir.1983). The district court held that there was no injury to competition in either market. For reasons now to be stated, we hold that the district court was not clearly erroneous as to the facts it found after trial in support of this conclusion, that the court did not err in finding no material fact in dispute as to the steam rights market, and that the court was correct in its statement of controlling law.

On appeal Dick Geothermal began its argument by asserting that it had “alleged a naked, concerted restraint on output” and that, “squarely contrary to many Supreme Court decisions,” the district court had required Dick Geothermal to demonstrate the market power of the defendants. [Opening Brief at 20-21.] Dick Geothermal invoked NCAA v. Board of Regents, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984), which states that a limitation on output is “ordinarily condemned as a matter of law under an ‘illegal per se’ approach because the probability that these practices are anti-competitive is so high.” Id. at 100, 104 S.Ct. at 2959.

To prove its case that there was such a restraint on output of steam Dick Geothermal relied on the statement, quoted supra, at 147, made by the defendants for the purpose of facilitating the district court’s administration of the case. This concession did not include an admission of the conduct’s anti-competitive effect.

If Dick Geothermal had been right in its construction of the defendants’ concession, it had proved its case before the trial. The defendants had given away the ball game. The district court, to which the same argument was made as is made here, was clearly surprised by this contention. R.C. Dick, 619 F.Supp. at 458. What was the point of having a trial if a naked restriction of output that was per se illegal had already been admitted by the defendants?

Dick Geothermal misconstrued the defendants’ concession. What the defendants conceded, while at the same time saying the concession was contrary to fact, was that they had “agreed” to produce 30 megawatts less production than capacity and that they knew that they could produce another 60 megawatts “yet declined to produce it” on the plaintiffs property. Counting as part of the object of the agreement the 60 megawatts they declined to produce, the defendants conceded that they had agreed not to produce 90 megawatts on this particular property. Dick Geothermal argues that the defendants conceded that they suppressed steam in the 1973-1980 period, but the concession says nothing as to the time before Unit 15 came on line. The concession is that as of the time Unit 15 came on line — that is, June 1979 — the defendants did not produce all the steam they could have produced. This concession was not proof of an agreement to restrict the output of steam in The Geysers.

The kind of restriction of output which has been condemned is the output in the relevant market, not reduction in output on a single piece of property. The main supplier of steam in The Geysers was Union Oil. If PG & E wanted more steam, there was no restriction on Union Oil supplying it. There was no evidence that “output was curtailed or prices enhanced throughout an entire competitive market.” See Associated General Contractors, 459 U.S. at 539 n. 40, 103 S.Ct. at 909 n. 40.

In a field in which catchwords have often been dominant there is a grave risk of applying a tag with mechanical literalness. See Broadcast Music Inc. v. CBS, 441 U.S. 1, 8-10, 99 S.Ct. 1551, 1556-57, 60 L.Ed.2d 1 (1984). That danger is acute when a restriction on supply is alleged and the plaintiff vigorously contends that the restriction is per se destructive of competition. E.g., Pacific Stationery and Printing Co. v. Northwest Wholesale Stationers, 715 F.2d 1393, 1396 (9th Cir.1983) (concerted refusal to deal held per se illegal), rev’d, 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); Ostrofe v. H.S. Crocker Co., Inc., 670 F.2d 1378 (9th Cir.1982) (plaintiff injured by concerted refusal to deal held to have standing although his injury did not result from the restraint on competition) vacated and remanded, 460 U.S. 1007, 103 S.Ct. 1244, 75 L.Ed.2d 475 (1983) (with instructions to reconsider in light of Associated General Contractors).

It has been broadly doubted whether the dichotomy between the rule of reason and the per se rule still exists or is helpful to analysis. E. Gellhorn, Antitrust Law and Economics 196 (3rd ed. 1987). Per se analysis has not been rejected as “ ‘a valid and useful tool of antitrust policy,’ ” Northwest Wholesale, 472 U.S. at 298, 105 S.Ct. at 2621 (quoting Broadcast Music, 441 U.S. at 8, 99 S.Ct. at 1556), but it is clear that the term is best understood as a special case of the rule of reason, applicable where experience has established that anti-competitive consequences regularly follow from the condemned practice. United States v. Topeo Associates, 405 U.S. 596, 607 (1972); 7 P. Areeda & H. Hovenkamp, Antitrust Law § 1509; L. Sullivan, Handbook of the Law of Antitrust 196 (1977).

In our case there was no experience as to the effect of restricting production on the property of a single producer of a product which is uniquely sold in the United States in The Geysers: geothermal steam. There was no agreement between competitors to restrict the output of steam in the market. There was no restraint binding the dominant supplier. There was a monopsonist whose policies affected both markets. There was no per se violation. The analysis of the district court in terms of the rule of reason was without flaw.

In particular, as to the market in steam, the district court found after a trial that there was a monopsonist purchaser of steam — PG & E — and that PG & E had set the price for steam from the property for the indefinite future in relationship to its other fuel costs. R. C. Dick, 619 F.Supp. at 459-60. The alleged conspiracy did not have a harmful effect on this price. Id. at 460. Dick Geothermal’s supposition that the restriction of steam output by the defendants affected PG & E’s other fuel costs has been found by the district court to be speculative and unproved. Id. at 462. We have no basis to overturn these findings of fact by the district court. As to the price of steam coming from the Dick property itself, the dramatic effect of the defendants’ non-maximizing of production was that the price paid by the monopsonist actually went down. No injury to competition occurred where in fact the single powerful buyer controlled the price.

As to the second market in which Dick Geothermal contended there was an anti-competitive effect — the market for steam leases or steam rights — the district court granted summary judgment. The district court made a number of findings as to which there were no material facts in dispute. Among these findings were that there existed after 1973 a lively market in steam rights with such giants as Union Oil, Phillips Petroleum, Sun Oil Co., Getty Oil Co., Chevron, and Shell Oil Co. acquiring steam rights. Id. at 451. The non-maximization of production took effect only in 1979. But by 1983 there were 23 companies active as present owners of steam rights. Id. at 455 n. 15.

Dick Geothermal failed to provide testimony from a single other developer that the developer’s investment decisions were in any way influenced by the defendants’ level of production on the Dick Geothermal property. Id. at 453. Dick Geothermal’s own purchase of the Rorabaugh property was evidence contrary to its own position. Dick Geothermal bought the fee in the belief that the property was of value for steam production. On this appeal Dick Geothermal points to no material facts in dispute that would disturb the district court’s findings of fact and conclusion of law that the assumed restraint on production did not have an effect on competition in the market for steam rights.

Dick Geothermal argues that between 1973 and 1981 the Hughes defendants (TGI and PEC) owned 4.7 percent of the steam leases in The Geysers and GRI held 5 percent, and that these two figures should be added, showing that the defendants held almost 10 percent of the existing steam leases. R. C. Dick, 619 F.Supp. at 451. By themselves these figures establish nothing as to the power of the defendants to affect the price for lands producing steam. That power depended on the other buyers in the market and on the other sellers of steam leases. The buyers of steam leases in the market were not confined to those who already held steam leases, as the entry of the 23 companies shows. The sellers of steam leases in the market were not confined to those who already held steam leases because the sellers included the owners of fees such as the Rorabaughs. The behavior of the buyers was influenced by the price they could get for steam in the mon-opsonistic steam market and by the buyers’ awareness that there was a substantial time lag between the proving of a well and the coming of a power plant into operation near the well. The behavior of the sellers was influenced by their decisions as to the rate at which they wanted to dispose of a very limited and depletable commodity, i.e. the total estimated steam capacity of The Geysers of 2,300 megawatts. Dick Geothermal’s proof of market share was not proof of power to affect price.

Dick Geothermal, a non-producer of steam, produced no evidence that the conduct of the defendants, whose production of steam in June 1979 brought PG & E’s Unit 15 on line, had an anti-competitive effect in the monopsonistic market for steam. Dick Geothermal, a minor purchaser of steam rights, produced no evidence that the conduct of the defendants had an anti-competitive effect on the market for steam-producing properties. Consequently, there was no injury to competition with which its own alleged injuries were interwoven. Having concluded this review of the relevant factors that determine standing and giving especial weight to the factor of antitrust injury, we hold that Dick Geothermal lacked antitrust standing.

Establishment of standing, logically, precedes the presentation of a plaintiff’s case. But as the determination of standing requires an inquiry into the antitrust character of the injuries claimed and an inquiry as to whether these injuries were inextricably intertwined with injury to competition, we have necessarily addressed the findings of the district court that no injury to competition in either relevant market was shown. We have found no clear error in its findings as to the steam market made after trial and no material fact in dispute as to the steam rights market. Consequently, we affirm the district court on the separate and alternative ground that it did not err in holding that there were no anti-competitive effects caused by the defendants’ conduct in either the steam or the steam rights markets in The Geysers.

AFFIRMED.