(concurring in part):

I concur, but solely on the ground that there was no genuine issue of fact material to whether defendants had participated in a scheme to unreasonably restrain or monopolize trade; and that the facts did not establish such a scheme under the applicable principles of substantive law.

United Mine Workers of America v. Pennington, 381 U.S. 657 , 85 S.Ct. 1585 , 14 L.Ed.2d 626 (1965), holds that efforts to influence public officers in the exercise of their official powers do not violate the Sherman Act even though they are part of a broader scheme which does violate the Act. To the extent that Harman v. Valley National Bank, 339 F. 2d 564 (9th Cir. 1964), holds to the contrary it is no longer good authority.

However, Harman also holds that the Sherman Act may reach the acts of a government official if he is himself a participating conspirator in a scheme which violates that Act ( 339 F.2d at 566 ). Pennington does not hold to the contrary. As the Supreme Court noted, the public official involved in Pennington was “not claimed to be a co-conspirator.” 381 U.S. at 671 , 85 S.Ct. at 1594 . Cf. S & S Logging Co. v. Barker, 336 F.2d 617 (9th Cir. 1966) (involving the personal immunity of the government official from suit for damages for wrongful acts committed by him in performance of his official duties).

Plaintiff contends that one or more Clark County Commissioners participated in the scheme to unreasonably restrain and monopolize trade, but the evidence upon which plaintiff relies as circumstantial proof of the participation of the Commissioners in the scheme, including the inferences which might be drawn from the subsidiary facts, is not sufficiently substantial to raise a triable issue of fact.

Plaintiff also contends that defendants participated in a number of predatory activities, including below-cost selling and territorial price discrimination, with the purpose and effect of injuring plaintiff; and that these activities were independent of defendants’ successful efforts to obtain the exclusive franchise, and hence were not excluded from the Sherman Act by the Noerr-Pennington doctrine. Again, however, an examination of the record reveals that the proof relied upon by plaintiff to support these allegations is so insubstantial that it does not raise a triable issue of fact.