# Precision Pine & Timber, Inc. v. United States

> United States Court of Federal Claims · September 14, 2007 · 81 Fed. Cl. 235

URL: https://www.frixlaw.com/law-library/cases/6657669

## Case

- **Full name:** PRECISION PINE & TIMBER, INC. v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** September 14, 2007
- **Citations:** 81 Fed. Cl. 235; 2007 U.S. Claims LEXIS 295; 2007 WL 5030766
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Miller
- **Judges:** Miller
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6657669

## How later opinions describe it (automated extraction)

- rejecting Precision Pine’s “modified lost volume seller theory”

## Opinion text

OPINION AND ORDER
GEORGE W. MILLER, Judge.
This matter is before the Court following the Court’s previous Opinion and Order, 72 Fed.Cl. 460 (2006), requiring the parties to submit to the Court supplemental post-trial briefing with respect to plaintiffs modified lost volume seller theory of damage recovery, and on plaintiffs motion of October 17, 2006, styled as a “Motion for Relief from Limited Aspects of the Court’s Order and Opinion of September 19” (docket entry 431, Oct. 17, 2006) and treated by the Court as a motion for reconsideration of the September 2006 Opinion pursuant to Rule 59(a)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). This Opinion and Order assumes familiarity with the Court’s September 2006 Opinion and Order.
The September 2006 Opinion and Order followed a 24-day trial on damages held in Washington, D.C., between May 12, 2005, *240 and June 20, 2005. The parties filed Post-Trial Proposed Findings of Fact and Conclusions of Law on September 2, 2005, and responses thereto on November 14, 2005. 1 The Court heard closing argument on February 17, 2006 and on March 1, 2006.
For the reasons set forth below, after reconsideration, the Court holds that the lost volume seller theory, as formulated by plaintiff, depends upon the demonstration of unrecoverable damages for independent and collateral undertakings in the form of profits from future additional timber contracts that are not related to the subject matter of the breached contracts. The Court further holds that permitting plaintiff to use these unrecoverable damages to reduce the amount of the deduction required to be made in the lost profits calculus to account for the profits earned on the breached contracts, would be the functional equivalent of affirmatively awarding damages for the lost profits on the future additional contracts. Moreover, the Court holds that even if plaintiffs theory of recovery did not require a demonstration of unrecoverable damages, plaintiff has failed to establish on the evidence of record that it meets the criteria set forth in the Court’s September 2006 Opinion and Order for application of plaintiffs modified lost volume theory.
As set forth below, the Court holds that plaintiff is entitled to recover lost profits on the breached contracts as measured by the expected profits it would have earned on the breached contracts during the suspension period less profits it actually earned on the breached contracts in the post-suspension period. However, also as set forth below, the Court has determined that certain of the input values used by plaintiff in its calculation of lost profits require modification, and as a result, plaintiffs damages must be recalculated in light of the Court’s findings. Finally, the Court finds that certain other categories of relief that plaintiff requests are either unavailable, or available only in part.
BACKGROUND 2
This case concerns 14 timber sale contracts that were either awarded or transferred to Precision Pine & Timber, Inc. (“Precision Pine”) prior to August 1995. 3 On August 25, *241 1995, pursuant to an order of the United States District Court for the District of Arizona in Silver v. Babbitt, 924 F.Supp. 976, 989 (D.Ariz.1995), the United States Forest Service (the “Forest Service”) suspended harvesting on all Forest Service timber sale contracts in Forest Service Region Three, including Precision Pine’s 14 contracts. Joint Stipulation of Facts (“Joint Stip.”) ¶¶ 28-29 (docket entry 292, Mar. 11, 2005).
The Silver court held that Section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et. seq., required the Forest Service to submit its Land and Resource Management Plans (“LRMPs”) for consultation with the Fish and Wildlife Service (“FWS”) in light of the listing of the Mexican Spotted Owl as a threatened species. Silver, 924 F.Supp. at 988-89 . The Forest Service had originally completed LRMPs for National Forests in Forest Service Region Three between 1985 and 1988, before the Mexican Spotted Owl was listed as a threatened species in 1993. Id. at 980-91 . In 1994, however, the United States Court of Appeals for the Ninth Circuit held that the LRMPs represented ongoing “agency actions” for which the Forest Service was required to engage in consultations with the FWS whenever a new species is listed as threatened or endangered to the extent that the existing LRMPs “may affect” the newly listed species. Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055-56 (9th Cir.1994). Following Pacific Rivers, the Arizona District Court enjoined the Forest Service from permitting timber harvesting in the affected areas until the Forest Service consulted the FWS regarding the impacts of the Forest Service’s LRMPs upon the Mexican Spotted Owl. Silver, 924 F.Supp. at 988-89 .
Although the Arizona District Court order required the Forest Service to commence consultation with the FWS on the LRMPs in Region Three on August 24,1995, the Forest Service did not request formal consultations until September 6,1995, and did not formally initiate consultations until November 9,1995. Precision Pine, 50 Fed.Cl. at 70. On October 18, 1995, less than eight weeks after the Mexican Spotted Owl suspensions (“MSO suspensions”) required by Silver were imposed, the Forest Service released the Brann, Hutch-Boondock, and St. Joe timber sale contracts from the suspension pursuant to a stipulation with the plaintiffs in Silver, 4 Precision Pine, 50 Fed.Cl. at 47 n. 18. Pursuant to a settlement in a second lawsuit, Southwest Center For Biological Diversity v. United States Forest Service, No. 95 Civ.1927 (D. Ariz. filed Sept. 13, 1995), the Mud contract was partially cancelled and was released for harvesting on March 11,1996. See PX 106, ¶ 5; PX 109. However, the Arizona District Court did not dissolve the injunction against harvesting in Forest Service Region Three until December 4, 1996, because the formal consultations initiated by the Forest Service became protracted in length due in part to the Forest Service’s delay in initiating the consultations and in part to the Forest Service’s failure to provide a legally sufficient Biological Opinion in conformity with the parties’ joint stipulation of facts in Silver. Precision Pine, 50 Fed.Cl. at 47-51; see also Joint Stip. ¶ 31 (docket entry 292, March 11, 2005). The Forest Service lifted the suspensions of the remaining contracts after the Arizona District Court dissolved the injunction. Precision Pine, 50 Fed.Cl. at 47-51.
Each of the suspended contracts at issue except the Hay contract contained Special Contract Provision CT6.01, “Interruption or Delay of Operations,” which provided:
Purchaser agrees to interrupt or delay operations under this contract, in whole or in part, upon the written request of the contracting officer:
(a) To prevent serious environmental degradation or resource damage that *242 may require contract modification under C 8.3 or termination pursuant to C8.2;
(b) To comply with a court order, issued by a court of competent jurisdiction; or
(c) Upon determination of the appropriate Regional Forester, Forest Service, that conditions on this sale are the same as or nearly the same as conditions existing on sale(s) named in such an order as described in (b).
Purchaser agrees that in the event of interruption or delay of operations under this provision, that its sole and exclusive remedy shall be: (1) Contract Term Adjustment pursuant to BT8.21, or (2) when such an interruption or delay exceeds 30 days during Normal Operating Season, Contract Term Adjustment pursuant to BT8.21, plus out-of-pocket expenses incurred as a direct result of interruption or delay of operations under this provision. Out-of-pocket expenses do not include lost profits, replacement cost of timber, or any other anticipatory losses suffered by Purchaser. Purchaser agrees to provide receipts or other documentation to the Contracting Officer which clearly identify and verify actual expenditures.
Precision Pine, 50 Fed.Cl. at 40.
Throughout the suspensions, plaintiff informed the Forest Service that it considered the Forest Service to have breached the timber sale contracts. See PX 116; PX 299; Precision Pine, 62 Fed.Cl. at 637. Rather than treating the breaches as total and terminating the contracts, plaintiff instead elected to treat the breaches as partial and resumed harvesting timber from the sales after the suspensions were lifted. Precision Pine, 62 Fed.Cl. at 648-51. In addition, plaintiff requested contract term adjustments for each contract affected by the suspensions. Joint Stip. ¶ 34 (docket entry 292, March 11, 2005). The Forest Service granted each of plaintiffs requests for contract term adjustments and provided adjustments equivalent to the number of days lost during each contract’s normal operating season. Id.
In 1997, plaintiff submitted claims to the appropriate Forest Service contracting officer requesting a total of $13,097,209.62 in damages resulting from the suspension of the 14 contracts. See Precision Pine, 50 Fed.Cl. at 51. The contracting officer issued a final decision that plaintiff was entitled to only $18,242.78 in damages. See id. at 52.
On September 11, 1998, plaintiff filed this action in the Court of Federal Claims, arguing that the Forest Service breached its implied duties to cooperate and not to hinder performance of plaintiffs timber sale contracts. Precision Pine, 50 Fed.Cl. at 39. On July 30, 2001, Chief Judge Damich issued a decision holding that the Forest Service had breached its implied duty to cooperate with respect to the Mud, Monument, Saginaw-Kennedy, Brann, Manaco, Brookbank, and Kettle contracts. Precision Pine, 50 Fed.Cl. at 73. Each of the contracts at issue (except Hay) contained Special Contract Clause CT 6.25, “Protection of Endangered Species.” Chief Judge Damich found that CT 6.25 warranted that, at the time the contracts were entered into, the Forest Service had identified special measures necessary to protect endangered species under the ESA that were adequate for the protection of threatened or endangered species. Id. at 65-67. Chief Judge Damich reasoned that if a contract contains a specific warranty, a breach of that warranty breaches the implied duty to cooperate. Id. at 59 (citing Cedar Lumber, Inc. v. United States, 5 Cl.Ct. 539, 549-50 (1984)). Chief Judge Damich held that the Forest Service breached this warranty with respect to those contracts entered into after the Ninth Circuit issued its decision in Pacific Rivers on July 7,1994. Id. at 69. After this date, the Chief Judge reasoned, the Forest Service knew that it was required to submit its LRMPs for consultation with the FWS. Id. Having failed to do so, the Forest Service had no reasonable basis to know whether the warranty language contained in CT 6.25 was true. Id. at 69-70.
Chief Judge Damich also found that the Forest Service had breached its implied duty not to hinder with respect to the Hay, O.D. Ridge, U-Bar, Jersey Horse, Salt, Mud, Monument, Saginaw-Kennedy, Manaco, Bro-okbank, and Kettle contracts. Id. at 73-74. Chief Judge Damich found that even if a contract does not contain a specific warranty, an unreasonable delay in performance that is *243 caused by the Government can breach the implied duty not to hinder. Id. at 59. Chief Judge Damich held that the length of the suspensions was unreasonable for these contracts, and that the Forest Service was at fault for the delay. Id. at 70-72. The Forest Service also unreasonably delayed completion of the consultation process by failing to provide the Arizona District Court with a legally sufficient Biological Opinion in conformity with the joint stipulation of Silver v. Babbitt until November 26, 1996. Id. at 71. As a result, Chief Judge Damich found that the suspensions became unreasonably protracted and plaintiffs operations were significantly hindered. Id.
At the trial on damages before this Court and in its post-trial briefs, defendant argued that: (1) plaintiff cannot recover lost profits because “the manufacture and sale of lumber constituted independent and collateral undertakings”; (2) plaintiff is precluded from recovering lost profits damages because it elected to treat the breach as partial and continued to perform under the contracts after the suspensions had been lifted; and (3) lost lumber profits were not a foreseeable result of the suspensions of plaintiffs timber sale contracts. Precision Pine, 72 Fed.Cl. at 465-66 . The Court ruled against defendant on all these arguments. With respect to defendant’s independent and collateral undertakings argument, the Court held that the “relevant issue is whether the lost profits claimed ‘are too remote to be classified as a natural result’ of the breach of a particular contract.” Id. at 471 (quoting Ramsey v. United States, 121 Ct.Cl. 426, 434 , 101 F.Supp. 353, 357 (1951)). The Court held that “the timber contracts themselves and the nature of the Forest Service timber sale program indicate that the manufacture and sale of lumber were within the contemplation of the parties at the time that the contracts were entered into.” Id. at 473 . Accordingly, the Court held that plaintiff was not “precluded from recovering lost lumber profits on the ground that they arose from independent and collateral undertakings.” Id. at 476 . With respect to defendant’s arguments that plaintiffs decision to treat defendant’s breach as partial rather than total precluded the recovery of lost profits, the Court held that the “remedy for a partial breach of contract is recovery of damages sufficient to place the injured party in as good a position as it would have been had the breaching party fully performed.” Id. at 487 (citing Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed.Cir.2005)). The Court further held expectancy damages can include lost profits. Id. (citing Energy Capital Corp. v. United States, 302 F.3d 1314, 1324 (Fed. Cir.2002); Restatement (Second) of Contracts § 347.) With respect to defendant’s argument that plaintiffs lost profits were not a foreseeable result of defendant’s breaches, the Court held that although “plaintiff can only recover lost profits damages if plaintiff can establish that defendant should have reasonably foreseen that Precision Pine would not be able to obtain cover for the suspended timber sales,” id. at 482, “it was foreseeable to defendant at the time of contracting that no replacement timber (i.e., ‘cover’) would be available to Precision Pine in the event that the Forest Service suspended harvesting on all Forest Service timber sale contracts in Region Three.” Id. at 483.
At trial and in its post-trial briefs, plaintiff argued that its case was similar to that of a lost volume seller and that it “should not be required to offset profits that it earned by partially harvesting the suspended sales in the post-suspension period.” Precision Pine, 72 Fed.Cl. at 465 . The Court held that in order for plaintiff to demonstrate that it was entitled to recover lost profits without subtracting the profits it actually earned on the breached contracts during the post-suspension period, 5 plaintiff was required to demonstrate that:
(1) but for the suspensions, Precision Pine would have successfully bid on and been awarded additional timber sale contracts that it would have harvested and manufactured into lumber in the post-suspension period;
*244 (2) but for the suspensions, Precision Pine would have been operating its mills at full capacity in the post-suspension period;
(3) but for the suspensions, Precision Pine would have sold at a profit the lumber that it would have manufactured from the additional timber sales that it would have bid on and been awarded in the post-suspension period; and
(4) the profits that Precision Pine would have earned but for the suspensions by selling lumber from the additional timber sales that it would have bid on and been awarded in the post-suspension period would have equaled or exceeded the profits that Precision Pine actually earned by partially harvesting the suspended sales in the post-suspension period.
Id. at 498 . The Court ordered the parties to file supplemental briefs “discussing whether plaintiff has presented sufficient evidence to establish that it satisfies the four criteria that the Court has identified as necessary to prove that it is entitled to be compensated as a lost volume seller.” Id. at 498-99 .
In response to the Court’s September 2006 Opinion, the parties filed initial supplemental briefs on the issue of plaintiffs lost volume seller theory of damage recovery on October 17, 2006. On this same day, plaintiff filed its motion styled as a “Motion for Relief from Limited Aspects of the Court’s Opinion and Order of September 19” (“Pl.’s Mot.”). The Court ordered that plaintiffs motion be treated as an RCFC 59(a)(1) motion for reconsideration and that pursuant to RCFC 59(b), defendant was not to file a response unless ordered to do so by the Court. See Order of October 27, 2006 (docket entry 433).
In its motion, plaintiff takes issue with the criteria set forth in the September 2006 Opinion. Although plaintiff acknowledges that it carries the initial burden of proof of establishing what it describes as its “basic case,” Pl.’s Mot. at 11-12 (docket entry 431, Oct. 17, 2006), plaintiff argues that based on legal scholarship and existing case law with respect to traditional lost volume seller cases and cover damage cases, its basic case consists only of a demonstration that it is an ordinary dealer in goods—here, lumber— who, in the absence of defendant’s breach, would have and could have entered into additional timber sale contracts during the post-suspension-period. Id. Plaintiff argues that once it makes such a demonstration the burden then shifts to defendant to show that, in the absence of the breach, plaintiff could not have performed both the breached contracts and the additional contracts that plaintiff contends it would have been awarded. Id. Accordingly, plaintiff requests that the Court grant it “relief from the effect of [the Court’s] erroneous premises.” 6 Id. at 1.
Each party filed a response to the opposing party’s initial supplemental brief on November 14, 2006. On November 15, 2006, the Court ordered defendant to respond to plaintiffs motion for reconsideration. Defendant filed its response to plaintiffs motion on December 15, 2006 (“Def.’s Resp. to Pl.’s Mot.”). Plaintiff filed a reply on January 5, 2007 (“Pl.’s Reply”).
DISCUSSION
I. Reconsideration
A. Standard of Review
“A motion for reconsideration ‘enables a trial court to address oversights, and the court appreciates the opportunity to do so.’ ” Cane Tenn., Inc. v. United States, 62 Fed.Cl. 703, 705 (2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed.Cl. 298, 315 (1999)). The decision whether to grant a motion for reconsideration is largely within the trial court’s discretion. Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed.Cir.1990); see also Triax Co. v. United States, 20 Cl.Ct. 507, 509 (1990) (“A *245 motion for reconsideration is addressed to the discretion of the trial court.”). However, “[a] motion for reconsideration is not intended to give an unhappy litigant an additional chance to sway the court.” Chippewa Cree Tribe of the Rocky Boy’s Reservation v. United States, 73 Fed.Cl. 154, 157 (2006) (quoting Bishop v. United States, 26 Cl.Ct. 281, 286 (1992)). 7
B. Plaintiffs Modified Lost Volume Seller Theory Depends Upon Proof of Lost Profits on Contracts That It Allegedly Would Have Entered Into in the Post-Suspension Period, But Such Lost Profits Are Not Based Directly on the Subject of the Breached Contracts and Are Therefore, As a Matter of Law, Too Remote and Indirect to Be Recovered
Plaintiff objects to the criteria set forth in the September 2006 Opinion. Plaintiff argues that based on existing case law with respect to traditional lost volume seller cases and cover damage cases, the Court should not require it to carry any burden beyond demonstrating that it is an ordinary dealer in goods who would have and could have entered into subsequent, profitable timber sale contracts during the post-suspension period. 8 Pl.’s Mot. at 10-11 (docket entry 431, Oct. 17, 2006). Defendant argues that
Precision Pine has ... alleged that but for the MSO suspensions it would have entered into additional timber sale contracts from which it would have earned additional lumber profits. Precision Pine’s supposed inability to profit from additional contracts that it allegedly would have entered into but for the MSO suspensions might conceivably be claimed as consequential damages. It is well-established, however, that such consequential losses are unrecoverable as a matter of law.
Defendant’s Supplemental Response Brief (“Def.’s Supp. Response”) at 3 (docket entry 435, Nov. 14, 2006) (citing Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741 , 743-44, 1980 WL 13211 (1980) (not published in Federal Reporter)) (footnote omitted). The Court has not yet addressed this precise issue. 9 Because the Court has not yet entered a final judgment, it has the discretion under the law of the case doctrine to revisit any of its interlocutory orders and make any modifications that it deems necessary.
*246 Defendant urges the Court to deny plaintiff recovery under plaintiffs modified lost volume theory as a matter of law. Def.’s Supp. Resp. Br. at 3 (docket entry 435, Nov. 14, 2006). Defendant cites to Olin Jones, in which the United States Court of Claims, the predecessor court to the United States Court of Appeals for the Federal Circuit (“Federal Circuit”), held that as a matter of law, damages “relating to potential future work or contracts”—“even assuming such damages could be proven”-“are too remote and indirect to be recoverable.” Olin Jones, 225 Ct.Cl. at 744. Plaintiff in Olin Jones argued that defendant’s delay in making required payments under the contracts in dispute, “damage[d] plaintiffs standing in the business community and impair[ed] its ability to obtain other work which required bonding.” Id. at 742. The court held that plaintiffs injuries suffered due to its weakened business standing caused by the breach of contract could be “roughly divided into two categories; those which relate to completion of [the] particular contract [at issue], and those which involve plaintiffs ability to obtain other contracts or work.” Id. at 743. While plaintiff could recover provable damages in the first category, “as a matter of law” it could not recover damages in the second category, and the trial judge was “foreclosed” from considering such damages. Id. In sum, even if plaintiffs damages in Olin Jones were certain, easily quantified by the court, and entirely foreseeable by the contracting parties at the time they entered into the contract, the court was barred from considering lost profits from the additional future contracts that plaintiff alleged it would have entered into absent defendant’s breach.
This rule has faced some criticism by practitioners. See, e.g., Daniel Patrick Graham, Departing From Hadley: Recovering Lost Profits on Collateral Undertakings in Suits Against the Government, 35 Pub. Cont. L.J. 43 , 81 (2005) (arguing that the existing rule “represents a stark departure from the common law, which inquires whether such damages are, in fact, foreseeable and certain”); Marcia G. Madsen & Gregory A. Smith, Proceedings of the 15th Judicial Conference Celebrating the 20th Anniversary of the United States Court of Federal Claims: The Court of Federal Claims in the 21st Century: Specific Proposals for Legislative Changes, 71 Geo. Wash. L.Rev. 824, 849-53 (2003) (arguing in favor of legislative initiative that would confer upon the United States Court of Federal Claims the “power to grant those damages that would be appropriate in commercial litigation between two private parties”). However, when the Federal Circuit has had occasion to revisit the holding in Olin Jones, it has consistently reaffirmed that case’s central holding that lost profits that are unrelated to the subject matter of the breached contracts are not recoverable. See Wells Fargo Bank, N.A. v. United States, 88 F.3d 1012 (Fed.Cir.1996); Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320 (Fed.Cir.2003).
In Wells Fargo, the Federal Circuit acknowledged that its predecessor court had “repeatedly refused to award damages for profits lost on transactions not directly related to the contract that was breached.” Wells Fargo, 88 F.3d at 1022 ; see also id. at 1023 (discussing Olin Jones). Plaintiff in Wells Fargo argued that defendant’s breach cost it the opportunity to earn profits from additional loans that it would have made in the absence of the breach. Id. at 1018 . The trial court accepted plaintiffs theory, and awarded it lost profits on the loans that it proved at trial it would have made but for defendant’s breach. Id. The Federal Circuit reversed, holding that plaintiffs “loss of interest on additional loans it allegedly could have made had there been no breach is ‘too uncertain and remote to be taken into consideration as part of the damages occasioned by the breach of the contract in suit’” Id. at 1023 (quoting Ramsey v. United States, 121 Ct.Cl. 426, 435 , 101 F.Supp. 353, 358 (1951)). In so holding, the Federal Circuit classified the additional loans as “independent and collateral undertakings.” Id. (quoting Myerle v. United States, 33 Ct.Cl. 1, 26 (1897), as quoted in Ramsey, 121 Ct.Cl. at 435 , 101 F.Supp. at 358 ). The Federal Circuit also emphasized that “not every injury resulting from a breach of contract is remediable in damages.” Id. at 1022 (citing Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540 , 23 S.Ct. 754 , 47 L.Ed. 1171 (1903)). The Federal *247 Circuit drew a distinction between the “anticipated profits of the contracts in question [and] the anticipated profits of its entire business enterprise.” Id. at 1022 (quoting Myerle, 33 Ct.Cl. at 26 , as quoted in Ramsey, 121 Ct.Cl. at 434 , 101 F.Supp. 353 ). The Federal Circuit held that the former category was remediable in damages but the latter was not.
The Federal Circuit once again restated this principle in Rumsfeld v. Freedom NY, Inc., 329 F.3d 1320 (Fed.Cir.2003). In that case, plaintiff argued that the Armed Services Board of Contract Appeals (“Board”) “should have awarded [it] anticipated profits and fixed overhead associated with future contracts which, it contended], it would have been awarded ... absent the government’s breach of contract.” Id. at 1333 . Citing both Olin Jones and Wells Fargo, the Federal Circuit held that the “Board ... correctly held that such profits are too ‘remote and uncertain’ to be recoverable.” Id. Following these precedents the Court of Federal Claims has stated that “[e]ollateral undertakings that are too remote to be the basis for expectancy damages are those that are not based directly on the subject of the contract, but instead either involve the fruits of the contract or the opportunities crowded out by the breach of the contract.” Mann v. United States, 68 Fed.Cl. 666, 669 (2005); see also, e.g., United Med. Supply Co. v. United States, 63 Fed.Cl. 430, 440 (2005) (plaintiff not entitled to “consequential damages to its overall business or lost profits on future contracts that were not obtained.”); Mega Constr. Co. v. United States, 29 Fed.Cl. 396, 474 (1993).
Plaintiff suggests that it hypothetically “could have, but did not, seek the difference between the full profits that it would have made on [the future contracts that it alleges it would have obtained but for defendant’s breach] in the post-suspension period and the much smaller actual profit that it made [on the suspended contracts in the post-suspension period].” Pl.’s Mot. at 5 n. 4 (docket entry 431, Oct. 17, 2006). Based on Olin Jones and its progeny, plaintiffs conclusion with respect to its hypothetical is mistaken. The profits from the additional contracts that plaintiff alleges it would have performed in the absence of the breach do not “relate” to the breached contracts as that term was used in Wells Fargo. Generally, lost profits based upon a later transaction relate to the subject matter of the breached contract when the breached contract is an agreement to supply inputs or resources that plaintiff uses to produce and sell end goods in a second transaction. Wells Fargo, 88 F.3d at 1023 (plaintiff was entitled to the profits from a later transaction only when “the only purpose of the contract ... was for the plaintiff to make profits on the subject of the contract—[for example] through mining, dairy cow operations, or property resale.”). However, as the cases cited above consistently hold, it is never enough for a plaintiff to merely allege that the lost profits on the breached contract made entering into the second contract economically infeasible or that defendant’s breach “crowded out” another opportunity that would have existed in the absence of the breach. Such contracts are considered independent and collateral to the breached contacts and profits from those contracts do not relate to the breached contract. The law in this Circuit is well-established that lost profits caused by the lost opportunity to enter into collateral contracts are not recoverable.
Plaintiff also argues that “any offset post-suspension profits will place it in a substantially worse position than it would have been had defendant performed as expected and therefore ... no offset is appropriate,” Pl.’s Supp. Br. at 2 (docket entry 430, Oct. 17, 2006). However, as the Federal Circuit enunciated in Wells Fargo, “not every injury resulting from a breach of contract is remediable in damages.” Wells Fargo, 88 F.3d at 1022 (citing Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540 , 23 S.Ct. 754 , 47 L.Ed. 1171 (1903)). Thus, plaintiffs contention that it will be placed in a substantially worse position than it would have been in the absence of the breach does not establish the viability of its modified lost volume seller theory.
The Court’s September 2006 Opinion, describes a hypothetical involving the sale of a washing machine. Precision Pine, 72 Fed. *248 Cl. at 491 . The seller “has or can obtain more machines than it can sell. The buyer breaches and the seller resells the washing machine destined for the breaeher at same list price to another.” 1 White & Summers, Uniform Commercial Code (‘White & Summers”), § 7-9, 484 (5th ed.2006). Because the “resale buyer is one of seller’s regular customers who had intended to purchase a washing machine from seller anyway,” deducting the profits that seller made on the sale of that specific machine from the profits that seller would have made absent the breach would under-compensate the seller. In the absence of the buyer’s breach, the seller would have made two sales, but instead, the seller only made one sale. In such eases, the seller is entitled to the entire lost profit that it would have earned on the breached contract, without reducing that amount by the profits ultimately earned on the sale of that specific washing machine.
Compare the foregoing typical example of a lost volume sale to the following hypothetical. Assume that the seller and the buyer have contracted for the sale and delivery of the washing machine. As part of their agreement the buyer has promised to make himself available to accept the delivery. However, when the seller arrives at the point of delivery, the buyer cannot be found, and the seller’s delivery truck returns to the seller’s shop having failed to deliver the washing machine. After further communication, the seller re-schedules the delivery and buyer accepts the washing machine. Assume further that the seller can prove that but for the buyer’s breach, the seller would have been able to accomplish one additional sale, because the seller would have been able to make a different delivery during the time it was occupied completing the rescheduled delivery. Note that in this hypothetical, the seller suffers the exact same injury as the seller in the typical example of a lost volume sale: the loss of one sale. However, to the extent that lost volume damages in the first hypothetical may be available in the Court of Federal Claims, it is well-settled that lost volume damages are not available in the second case. That is because the lost sale in the second hypothetical concerns a collateral contract opportunity “crowded out by the breach of the contract,” see Mann, 68 Fed.Cl. at 669 , and thus the loss of that opportunity falls into the category of injuries not “remediable in damages.” Wells Fargo, 88 F.3d at 1022 . 10
With respect to the second hypothetical above, plaintiff here does not directly request the lost profits from the second sale. Rather, plaintiffs theory is analogous to the seller of the washing machine requesting the full profits that it would have earned on the failed delivery without respect to the consideration that the buyer actually paid the seller. For the sake of simplicity, assume that the cost of the washing machine to the seller was $250, its delivery costs were $50, and the contract price is $500. The seller, thus, expected to earn $400 ($200 on each sale and delivery), but due to defendant’s breach, it earned only $200. The critical question as the hypothetical pertains to the case before the Court is whether the seller may seek the full $200 “lost profits” that it would have earned on the failed delivery without accounting for the $150 ($200 less the additional $50 in costs for the second delivery trip) it actually earned on the re-scheduled delivery. Based on Olin Jones and its progeny, the Court holds that plaintiff cannot.
Plaintiff cannot escape the fact that it requests an amount in excess of its actual lost profits on the contracts in dispute. By definition, the “lost” profits on the contracts in dispute cannot include the profits earned on those contracts. A lost profit is only the amount that was not—but would have been— earned due to defendant’s breach. The cases discussed above stand for the principle that *249 only damages that flow from the “subject matter” of the contracts may be recovered, and plaintiff is not entitled to damages affecting its “entire business enterprise.” Wells Fargo Bank, 88 F.3d at 1022 ; Ramsey, 121 Ct.Cl. at 434 , 101 F.Supp. 353 . In this case, the subject matter of the contracts is the specific timber that defendant sold to plaintiff. Thus, following the precedent discussed above, plaintiff may recover the losses it suffered due to its inability to sell lumber products manufactured from the specific timber that plaintiff was unable to harvest because of defendant’s breach. Plaintiff cannot, however, recover the profits it would have earned on the collateral contracts that it alleges it would have profited from in the absence of defendant’s breach.
According to plaintiffs model, the profits that plaintiff would have earned in the absence of defendant’s breach can be broken down into two transactions. PI. Mot. at 3-4 (docket entry 431, Oct. 17, 2006). Transaction 1 consists of the profits that plaintiff would have earned during the suspension period. Id. Transaction 2, according to plaintiff, consists of the profits from lumber sales that plaintiff would have made in the absence of the breach in 1997 and 1998. Id. Thus, under plaintiffs view, Transaction 1 never occurred. Id. Plaintiff argues it partially completed Transaction 2, which as a matter of “happenstance,” id. at 10, involved the timber from the breached contracts. Id. The Court reads the above-cited precedent to require a more rigorous tracking of which profits flow from which contracts. Put another way, plaintiff is not entitled to the profits it would have earned during the suspension period; rather, plaintiff is entitled to the profits it would have earned from the breached contracts.
Under plaintiffs approach, the Court would simply ignore the profits that plaintiff actually earned on the breached contracts during the post-suspension period. Plaintiff argues that its approach is appropriate because even though it did make up some of its lost production on the specific breached contracts, it could never have made up lost production with respect to its overall business operations. Pl.’s Supp. Br. at 9 (arguing that the “hole in the ‘profit pipeline’ in the full amount of [the lost volume during the suspension period attributable to the breached contracts] remains unfilled.”) (docket entry 430, Oct. 17, 2006). However, this approach is impermissible because plaintiff is not entitled to “anticipated profits of its entire business enterprise” but only the “anticipated profits [on] the contracts in question.” Wells Fargo, 88 F.3d at 1022 ; Ramsey, 121 Ct.Cl. at 434 , 101 F.Supp. 353 . Although plaintiff appears to treat the breached contracts and the collateral contracts as fungible profit-making opportunities the sources of which are a matter of “happenstance,” within this circuit plaintiff must show that its lost profits actually flow from the breached contracts.
In addition to its inconsistency with the general rule that injuries to a plaintiffs overall business enterprise that do not flow directly from the subject matter of the breached contract are nonremediable, plaintiffs approach, if accepted, would circumvent the more specific rule that a plaintiff may not recover for its losses related to collateral contract opportunities “crowded out by the breach of the contract.” Mann, 68 Fed.Cl. at 669 . It would make little practical difference if the Court affirmatively permitted plaintiff to recover lost profits on collateral contracts or if it permitted plaintiff to use its lost profits on such contracts as a quasi-credit to negate the profits plaintiff actually earned on the breached contracts in the post-suspension period. Arithmetically, adding a positive figure is identical to subtracting a negative figure. The only practical difference between awarding damages for lost profits on unrelated contracts and adopting plaintiffs lost volume seller theory is that plaintiffs approach would place a cap on the amount recoverable from lost profits on unrelated contracts equal to the profits earned on the breached contracts. 11 However, for *250 the reasons stated above, lost profits on collateral contracts are nonremediable as a matter of law. There is simply no basis to conclude that injuries that are per se non-remediable may nonetheless be awarded in smaller fractions.
In view of the foregoing, the Court now holds that plaintiffs modified lost volume seller theory is not viable because plaintiffs theory relies upon proof of lost profits on contracts that were independent and collateral undertakings not related to the subject matter of the breached contracts. Lost profits on contracts plaintiff allegedly would have entered into in the post-suspension period are, as a matter of law, too remote and indirect to be recovered. In sum, plaintiff may only recover for its losses that flow from the specific contracts in dispute and not from losses to its overall business enterprise. Because plaintiff has no legal entitlement to recover in this action its losses stemming from collateral contracts, it may not recover damages for such losses either affirmatively or by using the existence of such losses as a means to reduce the profits actually earned on the suspended contracts in the post-suspension period. Plaintiffs modified lost volume theory of recovery fails because the losses on collateral contracts are, as a matter of law, too remote and indirect. Thus, for all contracts, except Manaco, 12 plaintiff must reduce the profits it would have earned on the suspended contracts by the profits it actually earned on such contracts in the post-suspension period.
C. Even If Plaintiffs Modified Lost Volume Seller Theory Did Not Depend On Proving Damages That Are Not Recoverable as a Matter of Law, Plaintiff Has Not Established on the Evidence of Record That It Meets the Criteria Set Forth in the Court’s September 2006 Opinion and Order
1. Plaintiff Bears the Burden of Proof
Plaintiff objects to the formulation of burden of proof set forth in the September 2006 Opinion and Order. Plaintiff characterizes the Court’s opinion as placing the burden on plaintiff “to show that profits [in the post-suspension period] should not be offset against the profits that Precision Pine lost ... during the suspension period.” Plaintiff argues that once it proves its “basic case,” 13 the burden then shifts to defendant to prove that its post-suspension profits should be “offset” 14 from the profits that plaintiff *251 would have earned in the absence of defendant’s breach. Pl.’s Mot. at 12 (docket entry 431, Oct. 17, 2006).
Plaintiff argues that other commentators agree with this formulation:
Although the ultimate burden must rest on the [non-breaching party], once the [non-breaching party] has made a basic showing of lost volume status, the burden of going forward with the evidence should fall upon the ... defendant.
... The [defendant] may, of course, effectively counter evidence of the seller’s lost volume status if the buyer can show either that the breach enabled the [non-breaching party] to make a resale that otherwise could not have been made, or that the [non-breaching party] unreasonably failed to mitigate damages by making such a sale.
Id. at 11 n. 9 (quoting Roy Ryden Anderson, Damages for Sellers under the Code’s Profit Formula, 40 SW. L.J. 1021, 1060 (1986)).
This second passage clarifies that the burden of proof shifts to defendant only when defendant intends to show that its breach benefitted plaintiff by enabling plaintiff to “make a resale that otherwise could not have been made” or that plaintiff “unreasonably failed to mitigate damages by making such a sale.” Here, defendant makes neither argument, and the Court’s criteria do not force plaintiff to carry the burden of proof with respect to those issues. Although plaintiff suggests that the Court has mistakenly tried to “shoe horn” its case to fit within the traditional lost volume fact pattern, Plaintiffs Reply Brief (“Pl.’s Reply. Br.”), at 6 n. 3 (docket entry 439, Jan. 5, 2007), it is actually plaintiff that urges the Court to apply ease law that is not on point. As the Court explained in its September 2006 Opinion, “Precision Pine does not precisely fit within the traditional concept of a lost volume seller. Thus, the criteria that Precision Pine must establish to demonstrate that it should be compensated as a lost volume seller differ somewhat from the criteria set forth in more traditional lost volume seller cases.” Precision Pine, 72 Fed.Cl. at 497 . Put another way, and using the terminology that plaintiff has adopted from the White & Summers treatise, plaintiff here must prove a different set of facts to establish its “basic case” than a plaintiff in a traditional lost volume seller case.
Plaintiff explains its case as follows:
“[B]ut for” defendant’s breach, during the nearly 20-month period from August 25, 2006 [sic] to April 15,1997, Precision Pine would have harvested and processed 25,000 Mbf (LS) more timber than it did, sold the resulting lumber and by-products and made a profit thereon of $6,551,856 (These sales of lumber and by-products are designated herein as “Transaction 1.”) ... Furthermore, while in this “but-for” world, as of [December 1996] Precision Pine would have had little to no timber to harvest, it still would have had three sawmills and substantial resources (i.e., the profits from Transaction 1) with which to purchase the timber to supply those mills from the Forest Service which had just resumed selling timber on the four national forests where Precision Pine historically operated. Therefore, but for the suspension Precision Pine would have bought a substantial vol *252 ume of that timber, processed it into lumber and byproducts and sold that lumber and by products. (The sales of lumber and by-products from 25,000 Mbf (LS) of such timber that would have taken place in 1997 and 1998 are designated herein as “Transaction 2.”) Accordingly, Precision Pine would have had the profits from both Transaction 1 and Transaction 2.
PL Mot. at 3-4 (docket, entry 431, Oct. 17, 2006) (citations and footnotes omitted).
Plaintiff’s model needs to be more precise. Each “transaction” 15 consists of at least two sub-transactions: (1) a purchase of timber and (2) the manufacture and sale of lumber products and by-products. To modify plaintiffs model from above, the Court labels the purchase of goods or input materials relating to the breached contract—here, the breached timber sale contracts—as Transaction 1A, and the manufacture and/or sale of the corresponding goods—here, lumber and by-products—as Transaction IB. Similarly, the Court labels the purchase of goods or input materials for the nonbreached contracts—here, the unrelated contracts that plaintiff alleges it would have entered into but for defendant’s breach—as Transaction 2A, and the manufacture and/or sale of the corresponding goods as Transaction 2B.
As mentioned above, plaintiff argues that to prove its basic case it must demonstrate only that it is a “regular dealer in goods” that “could have and would have” completed both the breached transaction and the lost transaction. See Pl. Mot. at 10-12 (docket entry 431, October 17, 2006). These are important elements of what the Court holds is plaintiffs basic case, and indeed the Court’s criteria require plaintiff to demonstrate these facts. The Court’s first and third criteria, see supra, pp. 243-44, require plaintiff to establish these facts. However, where plaintiff and the Court’s views on plaintiffs basic ease appear to diverge is with respect to whether plaintiff must also show that defendant’s breach deprived it of the opportunity to accomplish the second transaction. 16 See infra, Section II.C.3. The Court is of the view that this is an essential component of plaintiffs basic case, and the second criterion requires plaintiff to establish that defendant permanently deprived plaintiff of the lost opportunity to earn profits from the additional contracts that plaintiff alleges it would have completed in the absence of defendant’s breach.
As formulated by the Court in its September 2006 Opinion and using the model outlined above, plaintiff must demonstrate that defendant’s breach deprived it of the opportunity to manufacture additional lumber in the post-suspension period and that but for defendant’s breach it would have purchased additional timber in Transaction 2A, manufactured such timber into lumber and by-products, and sold its products at a profit in Transaction 2B. As always, plaintiff would carry the burden of proving its basic case. Under the Court’s view, in order to prove its basic case, plaintiff would have to prove that it satisfied the first three of the Court’s four criteria.
The fourth criterion is only relevant after plaintiff establishes that it is entitled to be compensated as a lost volume seller. Put another way, if plaintiff fails to demonstrate any of the first three criteria, it cannot show that it is entitled to recover as if it were a lost volume seller. 17 However, if plaintiff *253 fails to demonstrate the fourth criterion, it can still recover as if it were a lost volume seller. The consequence of failing to demonstrate the fourth criterion would be a reduction of the lost volume damages in order to prevent placing plaintiff in a better position than it would have been in but for the breach.
The purpose of the fourth criterion is perhaps best understood through use of another hypothetical. Assume that in the absence of defendant’s breach, plaintiff would have earned $10 on the breached contracts in the suspension period and $5 on the collateral contracts that it would have entered into during the post-suspension period. Plaintiff would thus have earned a total of $15 profit in the absence of the breach. If plaintiff actually earned $7 in the post-suspension period, it would be improper for the Court to award it the full $10 that it would have earned during the suspension period in the absence of the breach because that would leave plaintiff with $17 ($10 in damages plus the $7 that it actually earned) whereas in the absence of defendant’s breach it would have only earned $15. Thus, in such a case, it would be appropriate to reduce the lost profits on the breached sales by $2, or the amount that the profits actually earned on such sales in the post suspension period ($7) exceeded the lost profits plaintiff would have earned on the collateral contracts ($5).
The Court concludes that in this case, it is fair to place the burden on plaintiff to show that “the profits that Precision Pine would have earned but for the suspensions by selling lumber from the additional timber sales that it would have bid on and been awarded in the post-suspension period would have equaled or exceeded the profits that Precision Pine actually earned by partially harvesting the suspended sales in the post-suspension period.” Only plaintiff knows its intent and plaintiff can best present evidence with respect to its strategy for harvesting timber and manufacturing lumber and byproducts. Moreover, in the course of proving the first and third criteria, plaintiff must prove that it would have manufactured and sold additional lumber products at a profit. By assigning the burden of proof to plaintiff with respect to the fourth criterion, plaintiff need only show that the profits proven in the third criterion exceed the profits plaintiff actually earned on the suspended contracts during the post-suspension period. In any event, plaintiff acknowledges that it would need to establish that, in the post-suspension period, the production of lumber from the breached contracts was “either equally or less profitable” than production of lumber from the contracts plaintiff alleges it would have been awarded in the absence of the breach. Pl.’s Mot. at 6 (docket entry 431, Oct. 17, 2006).
Plaintiff also continues to rely on Fertico Belgium, S.A. v. Phosphate Chemicals Export Ass’n, Inc., 70 N.Y.2d 76 , 517 N.Y.S.2d 465 , 510 N.E.2d 334 (1987), for the proposition that defendant bears the burden of showing that the profits actually earned from the breached contracts should be deducted from the profits plaintiff expected to earn but for defendant’s breach. In the September 2006 Opinion, the Court distinguished Fertico on the ground that it concerned cover damages. Plaintiff now argues that the Court has latched on to a “non-existent distinction between ‘cover’ eases and those cases in which cover could not be accomplished.” Pl.’s Mot. at 9 (docket entry 431, Oct. 17, 2006). Plaintiff supports its argument by noting that both cover damages and lost profits are forms of “expectancy damages.” That alone, however, does not answer the question what types of proof are required to establish each category of damages.
The nature of plaintiff’s arguments—that is, denying that any relevant distinction exists between its case and cover damage cases—requires another brief diversion into first principles, and an illustration is helpful. Assume that Buyer contracts with Seller to purchase a ton of bricks for $1000, with the intention of reselling the bricks to Customer One at the price of $1200. Buyer, thus, has an expected profit of $200 on the sale to *254 Customer One. Now, assume that Seller cannot meet Buyer’s delivery schedule and Buyer has to purchase bricks on the open market at a price of $1050 per ton. Buyer’s cover damages would be the difference between market price and the contract price, or $50. Buyer’s actual profits are the difference between its purchase price of the replacement goods and its sale price to Customer One, or $150. Thus, Buyer’s lost profits are the difference between its expected profits, $200, and its actual profits, $150, for a total of $50. Although the amount of Buyer’s cover damages equals its lost profits, it is a mistake to conclude that therefore the same proof is required to establish each category of damages. For cover damages, Buyer needs to show its contract price and the price of replacement goods. For lost profits, Buyer needs to show its expected profits on the contract with Customer One and the profits it actually earned on that contract. In the real world, there would generally be little incentive for Buyer to attempt to pursue a claim for lost profits if it could establish a case for cover damages. However, if Buyer could not obtain cover, as plaintiff could not obtain cover in the instant case, Buyer would have no choice but to pursue the more complicated path of proving lost profits.
Plaintiff specifically relies on what are known as the “child of the breach” cases to argue that defendant bears the burden of showing that plaintiff would not have completed both the breached contracts and the collateral contracts that it would have been awarded in the absence of defendant’s breach. In the child of the breach cases, after Buyer delivers its replacement goods to Customer One, Seller completes a late delivery of its original order. Using the example from above, assume that Buyer accepts the late shipment and sells the bricks to Customer Two for $1025, earning an additional $25 in profit. Assume further that in the absence of Seller’s late delivery, Buyer would have not completed the second sale; in other words, assume that the second sale is a “child of the breach.” In such a case, Buyer would have earned profits of $175 ($150 from the first sale and $25 from the second sale), whereas in the absence of the breach Buyer would have earned $200. 18 If Seller can prove that the Buyer’s sale to Customer Two is a child of the breach, Seller is entitled to reduce Buyer’s damages in the amount of the second sale. Thus, rather than owing the original $50 in cover damages, Seller would only owe $25. In such a ease, it would be defendant’s burden to show that the second sale was a child of the breach. This has little—if any—relevance in the instant ease because plaintiff did not actually complete the equivalent of the “second sale” and thus, plaintiff must prove that but for defendant’s breach, it would have. In the child of the breach cases, the buyer has completed two re-sales, and the seller argues that but for its own breach, the buyer would have only completed one re-sale. In the instant case, plaintiff has completed one set of timber sale contracts, and it argues that but for defendant’s breach it would have completed two sets of timber contracts. Given that plaintiff itself appears to acknowledge that it bears the burden of proving that but for defendant’s breach it “could have and would have” completed the second set of sales, the child of the breach cases are of no help to plaintiff.
Plaintiff also argues that “the same formulation of the burden of proof set out in § 6-3 is reiterated in sections of the White & Summers treatise that do not deal with cover.” *255 Pl.’s Mot at 9 (docket entry 431, Oct. 17, 2006). The Court understands the sections of the treatise “that do not deal with cover” to be those dealing with the lost volume seller theory. Even assuming arguendo that the typical formulations of the burden of proof are similar in cover damage cases and in cases involving lost volume damages with respect to whether a reduction of damages is required, plaintiff is not seeking cover damages and is not a typical lost volume seller. Plaintiffs analogy to cover damage cases is therefore simply not persuasive in this case.
2. The First Criterion
Under the Court’s first criterion, in order to recover as if it were a lost volume seller, plaintiff must establish that “but for the suspensions, Precision Pine would have successfully bid on and been awarded additional timber sale contracts that it would have harvested and manufactured into lumber in the post-suspension period.”
Under the first criterion, plaintiff must establish that but for the suspensions it would have completed Transaction 2A, see supra, p. 252, during the post-suspension period. Plaintiffs ease differs significantly from the traditional lost volume seller cases. In the typical lost-volume sale ease, the contract corresponding with Transaction 2A is never in issue because it is customarily “assumed that the supplier’s own supply exceeds demand.” 3 Farnsworth On Contracts § 12.10 (3d ed.2004); 1 White & Summers, Uniform Commercial Code, § 7-9, 484 (5th ed. 2006) (“Assume further that the seller has or can obtain more machines than it can sell.”); see also, e.g., 3 Williston on Sales, § 24:26, 658 (5th ed.2006); 4A Lawrence’s Anderson on the Uniform Commercial Code, § 2-708:5, 220 (3d. ed.2006). Indeed, a plaintiffs failure to establish that it has an unlimited supply of goods can be fatal to a claim for lost volume damages. See, e.g., Lake Erie Boat Sales, 11 Ohio App.3d. at 57, 463 N.E.2d at 73. In stark contrast to traditional lost volume sellers, here the Court has already found in favor of plaintiff that “it was not possible for Precision Pine to effect cover in any meaningful sense.” Precision Pine, 72 Fed.Cl. at 486 . 19 Accordingly, plaintiff must demonstrate that in the absence of defendant’s breach it would have completed Transaction 2A. For its part, plaintiff appears to acknowledge that it must at a minimum demonstrate that it “could have and would have” purchased timber in Transaction 2A and sold the corresponding lumber and byproducts in Transaction 2B.
Plaintiff argues that from “December 6, 1996 through December 31, 1998, on the four forests where Precision had historically ... operated, the Forest Service offered a total of 93,312 Mbf (LS) of sawlogs.” Pl.’s Supp. Br. at 6 (citing PX 304) (docket entry 430, Oct. 17, 2006). Plaintiff further argues that due to the “greatly diminished total sawmill capacity of Precision Pine’s competitors,” id. (citing Trial Tr. 103-09 (Porter)), there was “effectively no competition for Forest Service timber sales for Precision Pine’s sawmills in Heber or Winslow, which drew their source of supply primarily from Tonto, the Coconino and Kaibab National Forests.” Id. (citing PPFF ¶¶ 10-12; Plaintiffs Additional Proposed Findings of Fact (“PAPFF”) ¶¶ 1406; PX 104). Plaintiff argues that there is no basis to conclude that plaintiff, “with its strong cash position and competitive advantage, would not have been awarded most if not all of the sales on which it chose to bid.” Id. at 15.
Defendant argues that plaintiff continued to bid on timber sale contracts and was awarded six new contracts in 1997 alone. Def.’s Supp. Br. at 2 (docket entry 329, Oct. 17, 2006). Further, defendant argues that plaintiff failed to identify any timber sale that it did not bid on in the post-suspension period. Id. Moreover, defendant argues that plaintiff has not identified any additional contracts that it would have been awarded in the post-suspension period. Defendant identifies testimony that “bidding for timber was competitive at all times in Arizona and New Mexico.” Id. (citing Trial Tr. at 1278 (Porter)). In defendant’s view, this easts doubt on *256 plaintiffs ability to show that it would have been awarded additional contracts in the post-suspension period in the absence of the breach.
Plaintiff has failed to prove that it would have, but for the suspensions, successfully bid on additional timber contracts and processed the resulting timber into lumber and by-products. As a preliminary matter, the Court is not persuaded by defendant’s arguments suggesting that plaintiff is required—and has failed—to identify specific contracts that it would have bid on and been awarded. As illustration, it is conceivable that plaintiff would have had a 40 percent chance of being awarded any particular contract upon which it bid. If that were the case, plaintiff would never be able to demonstrate that it more likely than not would have been awarded any specific contract; nonetheless, the logical conclusion would be that plaintiff would have been awarded around four out of every ten contracts upon which it elected to bid. Thus, inquiring whether plaintiff would have been awarded any particular contract is not a useful exercise. Rather, the Court examines (1) number of additional contracts upon which plaintiff would have bid but for the MSO suspension, and (2) the likely success rate of plaintiffs being awarded those contracts. In order to establish the first criterion, plaintiff must be able to demonstrate what these two factors were as events actually transpired and what these two factors would have been in the absence of defendant’s breach. In short, plaintiff must show that either it would have bid on additional contracts or that it would have bid on the same number of contracts but would have enjoyed a higher success rate in winning contracts. Here, plaintiff has failed at both steps. Plaintiff has failed to show what additional volume of timber it would have (but did not) bid on as a consequence of the breach. Also, plaintiff failed to demonstrate what its likely success rate was in the real world, and what its success rate would have been in the absence of the breach.
In arguing that it has satisfied the first criterion, plaintiff relies on two facts: (1) that in the first two years of the post-suspension period the Forest Service sold 93,312 Mbf (LS) of saw logs in the vicinity of plaintiff’s mills; and (2) that plaintiff would have had the intent and capability of purchasing some of that timber. PL Supp. Br. at 6, 14-15. (docket entry 430, Oct. 17, 2006). Merely reciting the total amount of timber that the Forest Service offered is not probative, because plaintiff actually bid on some volume of that timber. Indeed, the Forest Service awarded plaintiff contracts to harvest a portion of overall 93,312 Mbf (LS) of timber offered for sale within two years of the suspension. The question before the Court is how much additional timber plaintiff would have bid on, but for defendant’s breach. Without identifying what percentage of the total volume (i.e., 93,312 Mbf (LS)) plaintiff did not bid on, the Court is left to speculate how much additional volume actually would have existed. To illustrate, if, in the real world, plaintiff bid on all of the contracts offered for sale by the Forest Service in the post-suspension period, there would be no additional contracts on which plaintiff could have bid in the absence of the breach. In such a case, plaintiff would be required to demonstrate that it would have enjoyed a higher rate of success at winning timber sale contracts in the absence of the breach than it actually enjoyed in the real world. On the other hand, if plaintiff actually bid on a small fraction of the total 93,312 Mbf (LS), then plaintiff could argue that in the absence of the breach it would have bid on a larger percentage of that volume. Here, however, plaintiff has not cited any evidence tending to show or to permit the Court to draw a reasonable inference as to what percentage of the entire 93,312 Mbf (LS) plaintiff actually bid on in the real world.
Moreover, the mere existence of additional available timber does not mean that plaintiff would bid on it. As stated above, plaintiff continued to bid on Forest Service contracts. It is not clear from the record whether plaintiff bid on all of the contracts that the Forest Service or others sold or solicited for bids, or whether plaintiff, after deliberation, elected to bid on some contracts but restrained itself from bidding on others. If the former, the only way that plaintiff could establish the first criterion would be to demonstrate that it *257 would have enjoyed a higher rate of success at being awarded such timber contracts, which plaintiff has failed to do. See infra, p. 258. If it is the latter, plaintiff must prove the factors that it considered when deciding whether or not to bid on a particular contract, and what would have changed absent the breach. Plaintiff argues that the primary factor that would have changed was its need for more logs, after exhausting the supply from the sales at issue in this case. Pl.’s Supp. Br. 14-15 (docket entry 430, Oct. 17, 2006). However, the possibility also exists that some available timber offered for contract was less desirable to plaintiff for various reason such as quality or location and would have remained less desirable to plaintiff in the absence of defendant’s breach. Plaintiff has not proven how it selected which contracts to bid on, and which contracts to forgo. Plaintiff having failed to clearly explain its decision-making process, the Court has no basis to make findings as to what would have changed in the absence of the breach. In sum, plaintiff has not identified any evidence in the record tending to show that it restrained itself from bidding on contracts that it otherwise would have bid on.
During cross-examination, Mr. Porter implied that many of the contracts on which plaintiff anticipated bidding were never actually offered by the Forest Service:
Q: Putting aside those contracts that you bid on and were awarded, do you believe you would have gotten additional contracts from the Forest Service in 1997, if the Mexican spotted owl suspensions had not occurred.
THE WITNESS: ... We were looking for timber to be offered by the Forest Service, to keep our mills operating They had told us that they were going to bring those sales up, and they had a program to bring sales up that we felt was sufficient for our mills. So we would have been bidding on those sales, had they been offered.
Q: And sales were offered, weren’t they?
A: And we bid on them.
Q: Can you identify any additional timber sale that, in your view, you would have been awarded, if the Mexican spotted owl suspensions had not occurred?
A: The Forest Service had a list of sales that they were to bring up and a program. They told us which ones were to be brought up. If you could show me a list ... I might be able to show you which sales were coming up and which ones I would have [bid on].
Trial Tr. at 1286-88 (Porter) (emphasis added). The testimony continues:
Q: Can you say what additional volume of timber Precision Pine would have obtained through Forest Service contracts, had it not been for the Mexican spotted owl suspension?
A: I can tell you that they did not sell any timber during the suspension, and there was timber on their program that they were supposed to sell, if that answers the questions. There were many timber sales in their program that should have been sold during the suspension and post-suspension, that were not available.
Id. at 1289 (emphasis added).
There is no indication from this testimony that plaintiff restrained itself from bidding on contracts that were offered in the post-suspension period. Mr. Porter’s testimony suggests that plaintiff did bid on the desirable contracts that the Forest Service actually offered. Trial Tr. at 1287 (Porter) (“Q: And sales were offered, weren’t they? ... A: And we bid on them.”). However, Mr. Porter also appears to assert that before the suspensions occurred plaintiff had an understanding that the Forest Service would sell certain timber based on a predetermined schedule (i.e., the “program”), and that the Forest Service did not sell timber “in their program” as a result of the suspensions. In other words, Mr. Porter is basing his testimony on the idea that but for the suspensions the Forest Service would have offered timber for sale in addition to that which it actually offered for sale in the real world.
The record does not permit the Court to assume that but for defendant’s breach, the Forest Service would have conducted “busi *258 ness as usual” without any regard for the safety of the Mexican Spotted Owl or other concerns and considerations that arose after the Forest Service shared its scheduled “program” with plaintiff. Efforts to protect threatened species caused the breach; the breach did not cause the efforts to protect threatened species. Hence, in the absence of the breach, no reason exists to assume that the Forest Service would have sold any more timber than it actually did sell. Plaintiff cannot credibly rely on a pre-suspension understanding of what the Forest Service intended its timber sale schedule to be.
In addition to demonstrating a volume of timber that plaintiff would have bid on in the absence of the breach but that it did not bid on as a result of the breach, plaintiff has also failed to demonstrate a likely success rate that it would have enjoyed on the contracts that it would have bid on but for defendant’s breach. Plaintiff argues that there is “no basis” to conclude that plaintiff, “with its strong cash position and competitive advantage, would not have been awarded most if not all of the sales on which it chose to bid.” PL’s Supp. Br. at 15 (docket entry 430, Oct. 17, 2006). The difficulty for the Court is that there is no basis in the record to draw any conclusions with respect to the volume of timber plaintiff would have been awarded in the absence of the breach. Mr. Porter testified that “bidding for timber was competitive at all times in Arizona and New Mexico.” 20 Trial Tr. at 1278 (Porter) (emphasis added).
In the face of this testimony it is difficult for the Court to conceive, as plaintiff now asserts, that it would have been awarded “most if not all” of the contracts upon which it elected to bid. Plaintiff has not identified any evidence tending to show what its traditional success rate was on the contracts upon which it bid, or how its success rate for winning timber sale contracts would have changed in the absence of the breach. Plaintiffs proof is simply insufficient to permit the Court to find in its favor with respect to the first criterion. Here again, plaintiff acknowledges that it carries the burden of proving at a minimum, that in the absence of defendant’s breach, it “would have and could have” acquired additional timber post December 1996. Thus, even setting aside the holding in Part I.B of this opinion, and even if the Court were to adopt plaintiffs formulation of the elements required to establish its basic case, the Court would still be required to conclude that plaintiff failed to prove the elements of its basic ease and thus faded to establish that it is entitled to recover as if it were a lost volume seller.
3. The Second Criterion
Under the Court’s second criterion, plaintiff must establish that “but for the suspensions, Precision Pine would have been operating its mills at full capacity in the post-suspension period.” Of the Court’s four criteria, plaintiff appears to object most strongly to this one. However, it is necessary for plaintiff to establish the second criterion in order to demonstrate that plaintiff actually lost volume as a result of defendant’s breach. 21 By showing that in the absence of the breach, plaintiff would have been operating its mills at full capacity, plaintiff demonstrates it could not have simply “made up” the lost volume in the post-suspension period. If on the other hand, plaintiff would have had *259 unused capacity and could therefore could have made up all or some of the volume, then defendant did not cause it to “lose” such volume. 22
As the Court held in its previous opinion, “to the extent that plaintiffs lost volume seller theory is based on the argument that [because of the suspensions] Precision Pine lost an opportunity to produce and sell lumber that can never be replaced, plaintiff would not be entitled to be compensated as a lost volume seller if the alleged lost production opportunity could have simply been made up in the post-suspension period by increasing the rate at which Precision Pine operated its mills.” Precision Pine, 72 Fed. Cl. at 492 . Here, plaintiff objects to the Court’s characterization of its central argument. Plaintiff argues that contrary to the Court’s opinion, it never “argue[d] that [defendant’s breach] caused plaintiff to lose an opportunity to produce and sell lumber.” Pl.’s Mot. at 2 (docket entry 431, Oct. 17, 2006) (quoting Precision Pine, 72 Fed.Cl. at 491 (alterations added)). According to plaintiff, it has never argued that defendant’s breach “prevented or discouraged plaintiff from entering into additional contracts to purchase timber after the suspensions were lifted.” Id. (docket entry 431, Oct. 17, 2006) (quoting Precision Pine, 72 Fed.Cl. at 492 ). But see PPFF ¶ 143 (quoting Trial Tr. at 629 (Porter)) (“We had a period of time there that was taken from us that we could not produce, we could not sell, we could not do anything with that timber that was taken from us and therefore it’s something that you never get back.”); Trial Tr. at 2362 (Ness) (“[T]he critical factor is that you had lost production capability in the time periods that we were examining during the suspension period where this timber would have been cut and processed. Those are lost opportunities. There is no way to go back and put logs into that period and manufacture those.”); Pl.’s Supp. Br. at 9 (docket entry 430, Oct. 17, 2006) (“[T]he hole in [plaintiffs] ‘profit pipeline’ ... remains unfilled.”).
Plaintiff distinguishes its case from the traditional lost volume seller cases by noting that in a traditional case defendant argues that plaintiff could not have performed both the breached contract and the subsequent contract simultaneously. Plaintiff argues that because it never intended to perform both contracts simultaneously, capacity is a nonissue in this case. Instead, plaintiff argues that it must merely show that it would have “engaged in Transaction 1” and also “engaged in Transaction 2.” Pl.’s Mot. at 11-12 (docket 431, Oct. 17, 2006). Plaintiff argues that after this showing, the “burden, thus shifts to defendant to show that it is more probable than not, that, in the ‘but for’ world, Precision Pine would not have accomplished both Transaction 1 and Transaction 2.” Id. (emphasis added). Plaintiff has it backwards. 23 The Court did not task plaintiff with showing that it could have affirmatively performed both transactions simultaneously. On the contrary, plaintiffs claim to recover as if it were a lost-volume seller depends upon showing that it could not have performed both transactions simultaneously in the post-suspension period. As the Court held in its previous opinion, “plaintiff would not be entitled to be compensated as a lost volume seller if the alleged lost production opportunity could have simply been made up in the post-suspension period by increasing the rate at which Precision Pine operated its mills.” Precision Pine, 72 Fed.Cl. at 492 . Plaintiff also misses the mark when it argues that it “never intended to perform” both the breached contracts and the other contracts that it alleges it would have been awarded simultaneously. The question is whether plaintiff could have performed both contracts simultaneously, not whether it intended to perform them both simultaneously. Irrespective of plaintiffs intent, if plaintiff could *260 have performed the breached contracts and the additional contracts that it alleges it would have been awarded in the absence of defendant’s breach, then defendant’s breach did not cause plaintiff to lose out on such additional contracts.
Although plaintiff argues that “capacity to accomplish both transactions at the same time is not an issue,” this statement is inconsistent with the legal scholarship cited by plaintiff to support its “hole in the profit pipeline” damages theory, which assumes that the manufacturer is operating at full capacity.
[I]f a manufacturer with no inventory needs delivery of twenty tons of aluminum each week to make cars in its factory, which is operating at full capacity, assuming that cover were not possible on short notice, a supplier’s failure to make delivery one week would result in the loss of a week’s worth of auto production that can never be made up without expanding the capacity of the factory.
Alan I. Saltman, Must Profits Made In Transactions Involving Late-Delivered Goods Be Deducted From the Injured Party’s Breach Damages ? If Not, What Impact Should Late-Delivered Goods Have?, 78 St. John’s L.Rev. 131, 133-34 (2004) (emphasis added).
Plaintiff argues that capacity is irrelevant because “[a]bsent the breach, Precision Pine would have acted no differently and would have produced lumber at the rate that market conditions, other practical considerations, and the limitations on the ability to predict the future would suggest was prudent.” Pl.’s Br. at 9 n. 9 (docket entry 430, Oct. 17, 2006). The Court recognizes that capacity has two components. The first component concerns the physical ability to manufacture lumber products at plaintiffs mills. The second component concerns the market conditions that can support plaintiffs additional production. Clearly, if market conditions make it economically infeasible for plaintiff to operate it mills at their full physical capacity, plaintiff need not need not operate at such a level. The entire purpose of the second criterion is to establish that plaintiff could not simply “make up” its lost profit upon release of the timber for harvesting. It would be nonsensical, then, to require plaintiff to lose even more money in a futile effort to make up its lost profit. The unspoken assumption in the September 2006 Opinion was that plaintiff need only show either that it would have in the absence of the breach produced timber at its maximum physical capacity or at a rate consistent with profitability.
Here, however, plaintiff failed to demonstrate under the first criterion that it “would have successfully bid on and been awarded additional timber sale contracts that it would have harvested and manufactured into lumber in the post-suspension period.” Thus, plaintiff has necessarily failed to demonstrate that it could have bid on and been awarded enough timber to keep its mills operating at their physical or economic capacities. Given that the Court rejects the modified lost-volume seller theory as formulated by plaintiff to the extent that it depends upon proof of lost profits that are as a matter of law too remote and indirect to be recovered, whether plaintiff could have satisfied the second criterion is more an academic question than one of substantive import. However, having failed to establish the first criterion it is logically impossible for plaintiff to establish the second.
4. The Third Criterion
The Court’s third criterion requires that plaintiff demonstrate that “but for the suspensions, Precision Pine would have sold at a profit the lumber that it would have manufactured from the additional timber sales that it would have bid on and been awarded in the post-suspension period.” This criterion is closely related to the first. Whereas the first criterion inquires whether plaintiff would have acquired additional timber and manufactured it into lumber, the third criterion inquires whether plaintiff would have been able to sell such lumber at a profit. For its part, plaintiff appears to acknowledge that it must show that it is a dealer in goods and that it “could have and would have” completed Transaction 2. Pl.’s Mot. at 11 (docket entry 431, Oct. 17, 2006). Here again, given that plaintiff failed to prove that it met the first criterion, namely, that in the *261 absence of the breach it would have purchased additional timber in the post-suspension period, see supra, Section I.C.2, plaintiff has necessarily failed to prove that it would have sold such timber at a profit.
5. The Fourth Criterion
The Court’s fourth criterion requires plaintiff to show “the profits that Precision Pine would have earned but for the suspensions [in Transaction 2B] would have equaled or exceeded the profits that Precision Pine actually earned by partially harvesting the suspended sales in [Transaction IB].” The purpose of the fourth criterion is to ensure that plaintiff is not overcompensated by the Court. See supra, pp. 252-54. In other words, the fourth criterion ensures that plaintiff is not placed in a better position than it would have been in the absence of defendant’s breach. The fourth criterion is only relevant after plaintiff has demonstrated its basic case. In this case, plaintiff has failed to do so. Moreover, as a factual matter, having failed to show that it would have (1) purchased additional timber as required by the first criterion, and (2) sold such timber at a profit as required by the third criterion, it would be impossible for the plaintiff to satisfy the fourth criterion. Thus, plaintiff has failed to prove that it is not “required to offset profits that it earned from partially harvesting the suspended sales in the post-suspension period.” 24 Precision Pine, 72 Fed.Cl. at 492 n. 21. Thus, the Court now turns to determining the amount of plaintiffs lost profits on the suspended sales during the suspension period and the amount of profits actually earned by plaintiff on the suspended sales during the post-suspension period.
II. Damages
A. Lost Profits
To prove its damages plaintiff presented testimony from its expert, Mr. Robert Ness, who sought to determine “what would have changed” had defendant not breached the suspended contracts. Trial Tr. at 2218-19 (Ness). The first step for Mr. Ness was to determine when the plaintiff would have harvested the timber from the suspended sales had defendant not breached. Here, Mr. Ness examined a reconstructed timber harvesting schedule developed by Mr. Porter that plaintiff asserts it would have followed in the absence of the breach. PPFF ¶72. Next, Mr. Ness needed to determine the volume of the resulting lumber products that could have been produced from the harvested logs. To accomplish this task, in some cases, 25 Mr. Ness needed to first convert the volume of unharvested timber remaining on each contract measured in one hundred cubic feet (ccf), to the resulting volume measured in one thousand board feet in log scale (Mbf (LS)). For this step, Mr. Ness used a conversion factor 0.5 Mbf (LS) per each ccf timber. Id. ¶ 71. Next Mr. Ness needed to convert the volume of harvested logs (expressed in Mbf (LS)) to the volume of lumber (expressed in one thousand board feet in lumber tally (Mbf (LT))). The ratio of the amount of lumber products in Mbf (LT) that a mill can produce from a volume of logs measured in Mbf (LS) is referred to as the “overrun factor.” Trial Tr. at 139^40 (Porter); see discussion, infra, Section II.A.2. Here, Mr. Ness used an overrun factor of 1.25 Mbf (LT) of lumber products for every Mbf (LS) of logs. PPFF ¶ 77(b). Mr. Ness then needed to apportion the overall expected volume of lumber products that plaintiff would have produced on the suspended contracts in the absence of the breach into assorted product categories. Id. ¶ 85. Mr. Ness accomplished this by relying on a projected “product mix” developed by Mr. Porter. Id. The product mix is the percentage of the overall volume of lumber that plaintiff could have expected to produce in each category of products. Trial Tr. at 4278 (Munn). After determining the volume of lumber in *262 each product category, Mr. Ness then relied on price information developed by Mr. Porter for each product category and, based on the timing of the production and sale of the products, determined the amount that plaintiff would have earned in the absence of the breach on the sale of lumber products from the breached contracts. PPFF ¶ 91. Mr. Ness then deducted the variable manufacturing overhead expenses that plaintiff would have incurred in the course of production from the gross profit figures he calculated. Id. ¶ 65. These amounts included the “stumpage price” 26 paid by plaintiff to the Forest Service for the timber as provided by the contracts. Id. Although plaintiff argues that this amount should not be reduced by the profits it actually earned on the suspended contracts in the post-suspension period, Mr. Ness also calculated the profits it actually earned on the suspended contracts should the Court reject its principal theory. PX 182. In arriving at its actual profit figures, plaintiff reduced its actual profits by an estimated amount of damages owed in Precision Pine v. United States (No. 02-131) (“Precision Pine II”). 27 Id. at Exhibit 1. Plaintiff also calculated its profits using increased overhead costs. See discussion infra, Section II.A.10.
Defendant objects to plaintiffs methodology on numerous bases. Defendant also asserts that the harvesting and milling schedules developed by plaintiff were not realistic because: (1) the harvesting schedule overstates the amount of decked logs that plaintiff would have maintained in inventory in the absence of the breach, Def.’s Br. at 34-35 (docket entry 382, Sept. 2, 2005); (2) the harvesting schedules would require the harvesting of timber outside the contractual harvesting seasons, id. at 54; (3) the harvesting schedules do not take into account forest-wide fire closures that would have prevented timber harvesting in May through early July of 1996, id.; and (4) the schedules assume that the start date for defendant’s liability coincided with the start of the suspensions whereas defendant interprets Chief Judge Damich’s Opinion to hold that liability only arose after the suspensions became unreasonably protracted in duration, id. at 6-8. Defendant further argues that plaintiff erroneously used an overrun factor of 1.25 Mbf (LT) per Mbf (LS) instead of 1.08, which defendant asserts is a more reliable measure of the overrun that plaintiff would have realized in the absence of the breach. Id. at 38-39. In addition defendant argues that in converting ecf timber into Mbf (LS), plaintiff erroneously relied on a general “rule of thumb” figure of 0.5 rather than the specific conversion factors that the Forest Service computed for each timber sale. Id. at 36. Defendant also asserts that plaintiffs methods of calculating product mixes were inaccurate and skewed towards higher priced products. Id. at 39-42. Moreover, defendant objects to plaintiffs methods of computing the sale prices of lumber products within each product category, asserting that plaintiff improperly excluded certain invoices when it calculated the average price and arguing that plaintiff should have calculated a weighted average of the invoice prices as opposed to a straight average. Id. at 37-38.
With respect to arriving at a final amount of lost profits, defendant argues that plaintiff should have calculated its lost profits in terms of net profit rather than what defendant characterizes as gross profit. Id. at 18. Defendant further argues that plaintiff inadequately accounts for losses that plaintiff would have absorbed in harvesting and removing roundwood as it asserts was required by the contracts. Id. at 43. Finally, defen *263 dant argues that plaintiff has understated its profits on the breached contracts in the post-suspension period, and because plaintiffs expected profits in the absence of the breach must be reduced by its actual profits on the breached contracts in the post-suspension period, plaintiff has thus inflated its damages. In particular, defendant argues that: (1) plaintiff may not reduce its profits on the breached contracts in the post suspension period for amounts owed as default damages in Precision Pine II, id. at 46-47; and (2) may not reduce those profits by increased logging and hauling expenses, id. at 47; and (3) may not reduce those profits for “increased overhead,” id at 47-48. Defendant argues that plaintiff is not entitled to recover what plaintiff described as its “mill inefficiency” costs incurred during the MSO suspension. Defendant asserts that plaintiff may not recover its increased hauling expense incurred on the Hay contract in the post-suspension period. Id. Defendant also asserts that plaintiff has overstated the profits it would have earned from the sale of lumber by-products—namely bark, chips, shavings, and grindings. Id. at 44-45.
1. The Harvest Schedule Used By Mr. Ness
a. Inventory Size
Defendant also challenges the inventory size that Mr. Ness projected that plaintiff would have maintained absent the suspensions. Mr. Ness used a harvesting schedule created by Mi’. Porter. Trial Tr. at 2245 (Ness). Mr. Ness’s method assumed that plaintiff would have adopted what defendant refers to as a “harvest and hold” approach by which plaintiff would harvest excess timber and maintain such timber in inventory. Def.’s Br. at 34-35(docket entry 382, Sept. 2, 2005). Defendant argues that this methodology permits plaintiff to artificially inflate its projected profits by presuming it could harvest large amounts of timber during periods when stumpage prices were low, and then selling the resulting lumber when the prices were higher. Id. at 37. Defendant argues that the assumption that plaintiff would have maintained a large inventory of decked logs is improper because in practice, plaintiff never maintained such large inventories. Id.
Defendant relies principally on the deposition of Mr. John Smith, a former purchaser representative of plaintiff during the MSO suspensions, to support this contention. 28 Smith Dep. Tr. at 14. Mr. Smith’s primary responsibility during his employment with plaintiff was to act as a liaison between plaintiff “and a logging contractor, and the Forest Service.” Id. Mr. Smith also demonstrated a intimate familiarity with the timber industry of the southwest. He graduated with a degree in Forestry from Northern Arizona University in 1966 sometime thereafter began a career in the forest industry. Id. at 10. Over the course of his career Mr. Smith had been employed in the both the public and private sector. Id. at 10-14. Mr. Smith testified that in the southwest, the customary timber industry practice was that a mill would typically try to exhaust its inventory of decked logs “down to about zero” over the course of the winter, which coincided with the harvesting off-season. Id. at 24. Sometime around April a mill would begin “building a deck depending on the size of [the] sawmill to run two weeks, three weeks, whatever.” Id. In Mr. Smith’s experience, a sawmill would hold “maybe three weeks [of decked logs] at the most” until September. Id. at 27. Beginning in September, a typical mill would then increase inventory of decked logs until it was large enough to keep its mills running through the winter months. Id. at 25. Typically, a mill would not maintain an inventory of decked logs larger than two or three weeks during the summer and early fall because that time is known as the “blue-ing season.” Id. at 26-27. The term blueing season refers to the period when logs are *264 vulnerable to host a type of fungus that causes a blue stain that degrades the value of certain lumber products. Id. Mr. Smith testified that in his experience, plaintiffs customary decking practice was consistent with the described harvesting strategy and that plaintiff did not deviate from this strategy during his tenure. Id. at 29.
Mr. Porter testified that plaintiff “had the ability” to employ methods to deter blue stain but that it “didn’t routinely do so” because “there were times when it wasn’t necessary.” Trial Tr. at 1677 (Porter). Mr. Ness testified that he confirmed with Mr. Porter that bluestain would not “be a problem.” Id. at 5700 (Ness). Moreover, plaintiff argues that it had maintained large inventories of decked logs in the past, and had room for decks of the size required by its projected harvesting schedule. Id. at 5611 (Ness).
Plaintiff did not introduce any testimony with respect to what methods it would have used to maintain large log inventories throughout the summer without grade degradation due to staining. Moreover, plaintiff failed to adequately explain why it would have decided in 1996 to alter its practice of maintaining smaller log decks during blueing season. Although plaintiff argues that it has historically maintained large log inventories, plaintiff failed to argue, let alone prove, that it ever purposefully maintained sizable log decks during blueing season. Plaintiffs other argument that plaintiff “had room at its mills” for log decks of that size and that plaintiff had in the past maintained log decks of that size or larger similarly miss the mark. The question is not the size of the decks, rather it is the timing of the decking. In other words, it is unsurprising, given the testimony of Mr. Smith that plaintiff maintained large log decks in the fall and winter months. The question is whether plaintiff would have maintained large log decks in the spring and summer months.
Mr. Ness testified that plaintiffs projected harvesting schedule would have resulted in log decks during blueing season sufficient to supply plaintiffs mills with logs for 60 to 90 days. Id. at 5610-11 (Ness). In other words, the harvesting schedule developed by Mr. Porter and used by Mr. Ness assumed that plaintiff would have maintained log inventories of two to three months during blue-ing season as opposed to two to three weeks as Mr. Smith testified was plaintiffs custom. After reviewing the evidence, the Court finds Mr. Smith’s testimony credible and is persuaded that plaintiffs standard practice over the course of the spring, summer, and early fall was to maintain an inventory of decked logs sufficient to operate its mills for three weeks. The Court is also persuaded from the evidence that plaintiffs customary practice was to begin to amass larger inventories of decked logs beginning in September and that by the conclusion of a typical harvesting season, plaintiff would have built up large enough inventories of decked logs to supply its mills with logs through the winter months coinciding with the harvesting off-season. The evidence does not support the proposition that plaintiff would have deviated from the customary harvesting and decking practices described by Mr. Smith. 29
b. Operating Season
Defendant argues that Mr. Ness’s projections rely on a harvesting schedule that was inconsistent with normal operating seasons. Def.’s Br. at 32-35(docket entry 382, Sept. 2, 2005); DPFF ¶¶ 78-79, 145, 161-62, 212-13, 230, 249-250, 255-56, 285, 311, 329-30, 345, 374-75. Plaintiff responds by arguing that the Forest Service routinely permitted it to harvest outside the normal operating season in the winter provided that the ground was either frozen or dry. PPFF ¶ 255. Plaintiff further argues that in the winter of 1995-96, plaintiff requested, and was granted permission to harvest in the off-season for certain of the contracts that were released from or not subject to the suspensions. See PPFF ¶ 255; Trial Tr. at 339 (Porter). This, plaintiff argues, is sufficient evidence to conclude that the ground conditions during the winter of 1995-1996 were favorable for harvesting out *265 of season. See PPFF ¶ 255; Trial Tr. at 339 (Porter).
Setting aside the issue whether the Forest Service would have granted plaintiff permission to harvest out of season, plaintiff has not demonstrated that it would have requested permission to harvest out of season in the absence of the breach. As discussed in above in Section II.A.2.a, the Court is persuaded by Mr. Smith’s testimony that plaintiffs custom was to amass a sizable inventory of decked logs in the fall, sufficient to supply its mills with logs throughout the winter months. As events actually transpired, plaintiff requested and was granted permission to harvest some timber out of season in the winter of 1995-1996, when much of plaintiffs timber was unavailable because of the MSO suspensions. However, in the absence of defendant’s breach, plaintiff would have had ample timber available for it to harvest and would have been able to build up an inventory sufficient to last throughout the winter. See infra, Section II.A.1.Í, ¶¶3-4 (plaintiff would have had 10661 Mbf (LS) of timber available for harvesting in the fall of 1995 and would have only needed to harvest and deck an additional 3664 Mbf (LS) in order to keep its mills running at full physical capacity 30 throughout the winter). Again, plaintiff has failed to show that it would have deviated from its standard practice as described by Mr. Smith.
c. Fire Closures
Defendant also challenges Mr. Ness’s harvesting schedule on the basis that it “projects timber harvests during times when logging was barred by ... fire closures.” Def.’s Br. at 32 (docket entry 382, Sept. 2, 2005). In particular, defendant argues that between the period of May 6, 1996, and July 9, 1996, the Forest Service was forced to suspend all timber harvesting in Arizona in accordance with Industrial Fire Plan D in the forests in which plaintiff operated. DPFF ¶¶ 78-79. When Fire Plan D is in place, all harvesting must cease. See, e.g., PX 113. Defendant presented testimony from Mr. David Harris, contracting officer for the Forest Service in the Kaibab and Coconino National Forests during the MSO suspensions. Trial Tr. at 3745-46 (Harris). Mr. Harris’s testimony indicates that Fire Plan D was in place in the Kaibab and Co-conino National Forests and that the severity of the weather conditions were consistent with the implementation of Fire Plan D across all of the National Forests within the entire state of Arizona, although he could not recall from the stand the exact dates involved. Trial Tr. at 3900-01, 4165-66, 4533 (Harris). This testimony is corroborated by various letters and contemporaneous documents exchanged by the parties alluding to the fire closures in the Kaibab, Coconino, and Apache-Sitgreaves National Forests. PX 113; Defendant’s Exhibit (“DX”) 118; DX 275; DX308; DX378; DX380.
Plaintiff argues that “although the Kaibab and Coconino National Forests may have been shut down due to fire [closures]” there is insufficient evidence to conclude that the fire closures would have affected plaintiffs contracts in the Apache-Sitgrave and Tonto National Forests. PPFF ¶¶257, 259, 262. With respect to the Apache-Sitgreaves National Forest, plaintiff argues that although defendant introduced in evidence a letter from Mr. Smith to the Forest Service in which Mr. Smith referenced a fire closure that affected the Brookbank and Jersey Horse sales, both situated within the Ap-paehe-Sitgreaves National Forest, it is possible that the fire closures were not forest-wide and thus would not have affected other contracts located in the Appache-Sitgreaves National Forest. Id. ¶ 259. Moreover, plaintiff argues that it is was theoretically *266 possible that the known fire closures within the Apaehe-Sitgreaves National Forest were subject to only Fire Plan C. Id. ¶ 260. Under Fire Plan C, harvesting was permitted in the morning hours. Trial Tr. at 1505-06 (Porter). Plaintiff also notes that defendant did not present evidence that the Forest Service would have imposed any fire closures within the Topto National Forest. PPFF ¶ 262.
The Court finds Mr. Harris’s testimony that all timber sale contracts within Arizona were subject to Fire Plan D, requiring a halt of all timber harvesting, to be credible. Further, the documentary evidence shows that numerous and distant contracts were subject to Fire Plan D, which tends to confirm the accuracy of Mr. Harris’s testimony. 31 Hence, the Court finds that plaintiff would not have harvested any of the breached contracts between May 6,1995, and July 9,1995.
d. Date of the Breach
Defendant argues that in its decision on liability “the Court held that the Forest Service’s suspension was unreasonable (and, therefore, a breach) only insofar as the suspensions substantially exceeded 135 days____ Thus, damages that flow from contracts being suspended prior to January 6, 1996 should not be compensable.” Def.’s Br. at 33 (docket entry 382, Sept. 2, 2005). In his opinion on liability, Chief Judge Damich held that “clause CT 6.01 of the 13 non-Hay contracts gives the Forest Service the right to suspend the contracts to comply with a court order that is issued by a court of competent jurisdiction Likewise, clause CT 6.25, contained in all 14 contracts at issue, gives the Forest Service implicit authority to suspend the contracts. This right to suspend, however, is not only qualified by its own terms, but also by implied duties.” Precision Pine, 50 Fed.Cl. at 59 (citations omitted). In particular, Chief Judge Damich held that CT 6.01 was qualified by the implied duties to cooperate and not to hinder. “If the contract contains a specific warranty, a breach of that warranty breaches the implied duty to cooperate ... and, even if there is no specific warranty, an unreasonable delay that is caused in some way by the Government can breach the implied duty not to hinder.” Id. at 59 (citing Cedar Lumber, Inc. v. United States, 5 Cl.Ct. 539, 549-50 (1984)). On this point defendant does not appear to distinguish between those contracts as to which the Court found the defendant breached an implied duty to cooperate and those contracts as to which the Court found defendant breached an implied duty not to hinder.
With respect to the implied duty to cooperate, Chief Judge Damich held that “the Forest Service breached an express warranty contained in those contracts [and] the Forest Service also breached its implied duty to cooperate with respect to those contracts entered into after July 7, 1994, the date of the Ninth Circuit’s decision in Pacific Rivers.” Precision Pine, 50 Fed.Cl. at 70. In particular, Chief Judge Damich held that CT 6.25 contains an express warranty that defendant breached. CT 6.25 provides that:
[l]ocation of areas needing special measures for protection of plants or animals listed as threatened or endangered under the Endangered Species Act of 1973 and R-3 Sensitive Plant and Animal Species List are shown on Sale Area Map and identified on the ground. Measures needed to protect such areas have been included elsewhere in this contract or are as follows ....
See, e.g., PX 170 (CT 6.25). Chief Judge Damich held that this clause warranted that the Forest Service had identified and taken the required protections necessary for all known threats to endangered species. Precision Pine, 50 Fed.Cl. at 69-70. The Court further held that after the Pacific Rivers decision, the Forest Service knew that it was legally required to consult the FWS with respect to the Mexican Spotted Owl. Id. Thus, the Forest Service breached the express warranty for those contracts entered *267 into after the Pacific Rivers decision, but did not breach the express warranty with respect to those contracts entered into before the Pacific Rivers decision. Id. These contracts entered into after the Pacific Rivers decision are: Mud, Monument, Saginaw-Kennedy, Brann, Manaco, Brookbank, and Kettle. The Court now holds that for these contracts, defendant breached the express warranty contained in CT6.25 at the time that those contracts were executed. Thus, defendant was in continuous breach of its implied duty to cooperate; however, damages from these breaches did not arise until the onset of the MSO suspensions on August 25,1995.
With respect to the implied duty not to hinder, the Court held that “in order to hold that the Forest Service breached the implied duty not to hinder, the Court must determine whether, in the surrounding circumstances of the contract, the length of the suspension was unreasonable.” Id. at 70. Ultimately, the Court held that the “two-month suspension of [the Brann, Hutch-Boondock, and St. Joe timber sale] contracts, in light of the regulations which normally would prescribe consultations to be completed within 135 days, is reasonable.” Precision Pine, 50 Fed.Cl. at 71. “Notwithstanding the protracted length of the suspensions, the mere fact that the [11 other] suspensions remained in effect far longer than provided for in the regulations does not in itself suggest that the length of the delay was unreasonable and was the fault of the Forest Service.” Id. at 70. However, after examining the particular facts, Chief Judge Damich held that the delays were unreasonable because: (1) the Forest Service waited 60 days before initiating formal consultations with the FWS and “reasonably could have gathered the necessary information for consultation at any time between the Ninth Circuit’s decision in Pacific Rivers and the district court’s order in Precision Pine & Timber, Inc. v. U.S., id. at 70;” (2) the Forest Service failed “to provide the environmental plaintiffs and the district court with a legally sufficient Biological Opinion in conformity with the joint stipulation of dismissal of the case on several occasions,” id. at 71; and (3) “the Arizona district court, which was in the position to weigh the Forest Service’s compliance with the stipulation of dismissal, opined that the Forest Service was not diligent in doing all that it could to lift the suspensions.” Id.
Taken as a whole these passages provide that the so long as the Forest Service limits the suspensions to the authorized statutory time frame, CT 6.01 gives the Forest Service the contractual right to suspend the contracts. It is only after the statutory time frame expires that the Forest Service can be found to have breached its implied duty not to hinder, and even then only after additional findings with respect to unreasonableness are made. Thus, defendant was not in breach of the implied duty not to hinder until, at the earliest, the time at which the 135-day statutory consultation period had elapsed on January 7, 1996. The contracts as to which defendant breached the duty not to hinder (but did not breach the duty to cooperate) are: Hay, O.D. Ridge, U-Bar, Jersey Horse, Salt.
e. Manaco Sale
The Manaco contract provided that no harvesting was to occur between July 15 and August 15. PX 178 (AT 17). In addition, Manaco was subjected to an additional suspension because a Mexican Spotted Owl was identified in nearby forest land in the summer of 1996, requiring the Forest Service to undertake additional consultations with the FWS. Trial Tr. at 4625-27 (Dils). The Forest Service did not lift that suspension until March of 1997. Id. at 4625 (Dils). In June of 1997, the Manaco contract was subjected to a further partial suspension which lasted until December of 1997. DX 800 at 19. Defendant argues that the MSO suspension did not prevent plaintiff from harvesting the Ma-naco contract because plaintiff would not have been able to harvest it even absent its breach. Def.’s Br. at 26 (docket entry 382, Sept. 2, 2005). Plaintiff argues that notwithstanding the further suspensions, plaintiff would have “conducted substantial harvesting.” PL’s Resp. Br. at 19-20 (docket entry 396, Nov. 14, 2005). The Court finds that plaintiff would have had an opportunity to harvest a substantial amount of the Manaco *268 contract. 32 Nonetheless, based on the Court’s revised harvesting schedule described below and set forth in the appendices to this Opinion and Order, plaintiff would not have completely harvested the Manaco sale during the suspension period. Under the Court’s harvesting contract apportionment table, on July 15,1995, the date on which the Manaco sale would have entered its break in the harvesting season, Manaco would have had 624 Mbf (LS) of timber remaining on the sale. See Appendix B, at 295-96; see also infra, Section II.A.2.Í (explanation of Appendix B). In the actual world, plaintiff harvested 769 Mbf (LS) in the post-suspension period. Although plaintiff may not recover lost profits on the 624 Mbf (LS) that the Court finds it likely would not have harvested during the suspension period in the absence of the breach, this amount is excluded from the computation of its profits in the post-suspension period which the Court, supra, Section I.B, requires plaintiff to deduct from its lost profits in the suspension period. The Court finds that plaintiff likely would have harvested at least 624 Mbf (LS) from the Manaco sale in the post-suspension period irrespective of the breach. Put another way, only 19% of the total 769 Mbf (LS) that plaintiff actually harvested from the Manaco sale in the post-suspension period consists of timber that plaintiff would not have harvested in the post-suspension period absent the breach. Thus, for the Manaco sale, plaintiff need only reduce its lost profits during the suspension period by 19% of its actual profits in the post-suspension period.
f. Summary of Court’s Alternative Harvesting Schedule
In sum, plaintiff has presented the Court with a methodology to calculate damages which relies on a specific harvesting schedule that the Court finds plaintiff would likely not have followed. Indeed, in certain time periods, such as during the fire closures, it would have been impossible for plaintiff to have followed its projected schedule. Although plaintiff has failed to carry its burden of proof with respect to the precise harvesting schedule upon which Mr. Ness relied, the Court will not bar plaintiff from recovering reasonable damages solely by reason of this failure. “If a reasonable probability of damage can be clearly established, uncertainty as to the amount will not preclude recovery.” Locke v. United States, 151 Ct.Cl. 262, 267 , 283 F.2d 521, 524 (1960). Having listened to 24 days of trial testimony and having reviewed hundreds of trial exhibits—many exhibits individually consisting of hundreds of pages—the Court concludes that plaintiff has established that it sustained damages as a direct and foreseeable result of defendant’s breach. Binding authority does not permit this Court to bar plaintiff from recovering damages on the basis that they are difficult to ascertain. “Certainty is sufficient if the evidence adduced enables the court to make a fair and reasonable approximation of the damages.” Id. Here, the Court has fashioned from the evidence of record an alternative harvesting schedule that it has determined to be fair and reasonable. Rather than try to postulate a specific harvesting schedule that plaintiff would have followed had there been no breach, the Court’s alternative schedule treats the total available timber as one large inventory, which plaintiff would have been able to efficiently harvest in order to keep its mills operating at full capacity. The Court’s alternative avoids the limitations presented by plaintiffs method of attempting to impose a precise harvesting schedule on the “but for” world. The Court has created a schedule that is neutral as between the parties’ contentions and, when used as a component of plaintiff’s overall method of projecting lost profits, will result in profit projections that fairly and reasonably approximate the profits that plaintiff *269 would have earned in the absence of defendant’s breach.
The first step in the Court’s alternative approach, was to determine the overall volume of timber that plaintiff would have harvested from the breached contracts in each relevant time period. Mr. Smith testified in his deposition that harvesting was “based on mill need.” Tr. Smith Dep. at 29. Thus, in each month of the Court’s schedule, the starting point for the amount harvested equals the difference between plaintiffs total mill capacity for all three mills and plaintiffs actual total production each month as set forth in PX 131, Exhibit 7. To that figure, the Court added additional amounts of timber that plaintiff would have harvested and maintained in log decks, consistent with Mr. Smith’s testimony regarding plaintiffs customary practices. See supra, Section II. A.l.a. The Court’s harvesting (and milling) schedule is found in Appendix A, infra. In creating its harvesting schedule, the Court finds that but for defendant’s breach:
1) During all months, except June and July of 1996 (after plaintiff had exhausted its supply of decked logs during the fire suspensions), plaintiff would have operated its mills at their full physical capacity.
2) Plaintiff was historically able to manage its inventory of standing timber under contract efficiently and in the absence of defendant’s breach, plaintiff would have managed its inventory of standing timber such that its mills would have been operating at their full physical capacity throughout the suspension with the exception of the months of June and July 1996, during the fire closures.
3) Plaintiff would have at all times had available to it the Mud, 33 Monument, Saginaw—Kennedy, Brann, Manaco, Brookbank, and Kettle timber sale con tracts—i.e. the contracts upon which defendant breached its implied duty to cooperate—totaling 10,661 Mbf (LS).
4) In September 1995, plaintiff would have entered “decking season.” Between September 1, 1995, and December 31, 1995, 34 plaintiff would have ratably by month increased its inventory of decked logs to the size of 3,664 Mbf (LS) 35 *270 (enough logs to keep its mills running at full capacity until April 15,1996).
5) Soon after December 4, 1996, the Forest Service would have lifted the suspensions on the remaining contracts (Hay, O.D. Ridge, U-Bar, Jersey Horse, Salt) constituting an additional 13,389 Mbf (LS) of timber. However, the end of the harvesting season would have expired on all of these contracts by the time that the Forest Service released them.
6) Between January 1 and April 14, 1996, plaintiff would have milled its decked logs, depleting its inventory down to zero.
7) On April 15, 1996, the beginning of the 1996 harvesting season for some contracts, plaintiff would have resumed harvesting as permitted under the contracts; 36 between April 15 and May 5 plaintiff would have built up an inventory of decked logs equivalent to three weeks production, or approximately 1,770 Mbf (LS);
8) Between May 6 and July 9, 1996, the Forest Service would have suspended all harvesting in the national forests located in the State of Arizona because of the institution of Industrial Fire Plan D. During this time, plaintiff would have drawn down its inventory of decked logs.
9) On July 9, 1996, the Forest Service would have lifted the harvesting restrictions due to the fire closure and plaintiff would have resumed harvesting. In addition to harvesting enough timber to resume mill operation at full capacity, plaintiff would have additionally harvested enough timber to establish a three-week inventory of decked logs, approximately 1,700 Mbf (LS), in accordance with its customary practice.
10) In September 1996, plaintiff would have entered “decking season” which would have lasted until November 30, 1996. However, plaintiff would have fully harvested the remaining timber from the breached contracts in early November.
After computing the total amount of timber harvested from the breached contracts in each month, the second step in the Court’s alternative approach was to apportion the overall volume of harvested timber in each quarter to the individual contracts. This step is necessary because the different contracts would have been subject to different stumpage prices. In practice, plaintiff probably would have harvested the contracts sequentially: plaintiff would have harvested a handful of sales in one month or quarter and then moved on to harvest different sales in the next month or quarter. However, based on the evidence of record, it is not possible for the Court to discern the precise sequence that plaintiff would have followed. Nonetheless, the Court’s objective is to create a fair and reasonable approximation of plaintiffs damages, Locke, 151 Ct.Cl. at 267 , 283 F.2d at 524 , and not necessarily to reconstruct plaintiffs day-to-day operations many years after the fact. To accomplish the task of creating a fair and reasonable approximation of plaintiffs damages, the Court assumes that plaintiff would have harvested its available contracts 37 simultaneously, with the volume of timber harvested from each contract apportioned as described below.
The Court has determined that this approach will yield the best approximation of plaintiffs damages. The precise harvesting schedule that plaintiff would have followed is at this point in time unknowable. Although the Court could attempt to create a precise harvesting schedule, any resulting schedule would be to a large extent arbitrary. Moreover, to the extent that the different contracts would have been subject to different *271 stumpage prices and would have resulted in different product mixes, any precise schedule that the Court could create would have the possibility of unfairly favoring one party over the other. The Court’s approach is neutral as between the parties’ contentions. To the extent that the Court’s approach might slightly benefit one party or the other from month to month, it is reasonable to anticipate that over the course of the suspensions any such benefits will largely cancel each other out, given the Court’s reliance on what is in effect an average or composite of the possible harvesting schedules. 38
The Court apportioned the volume of harvested timber according to the overall volume of available timber on each contract. Because the harvesting seasons of the different contracts vary in length, the Court’s methodology also takes into account the number of days available for harvesting on each contract within each quarter. In determining each contract’s apportioned volume of harvested timber in each quarter, the Court computed the product of the volume of timber in Mbf (LS) remaining on each contract and the number of harvest days for that contract in the given quarter. 39 The Court then divided that product by the sum of such products for all the contracts to determine each contract’s fractional portion of the harvested volume in each quarter. To determine the apportioned volume for each contract in a given quarter, the Court computed the product of the overall volume of timber harvested from the breached contracts in each quarter and the fractional portion of each individual contract. 40 The parties shall refer to the apportioned volume for each contract in each quarter in order to calculate stumpage payments.
2. An Overrun Factor of 1.25 Is Reasonable
Defendant also challenges the so called “overrun factor” that plaintiff used in its calculations. Def.’s Br. at 37-38 (docket entry 382, Sept. 2, 2005). The overrun factor is the ratio of lumber that a particular mill can produce from logs. Trial Tr. at 1142-43 (Devere). As explained to the Court, modern timber mills can produce a larger volume of lumber than the volume of input logs. Id. The overrun is a product of various factors. Significant among them is the fact that the conventional two-by-four board is in fact only one-by-three inches. Trial Tr. at 1171 (Dev-ere). Each mill can have a different overrun factor depending on the efficiency of its equipment, the width of the saw blades used, the skill of its sawyers, the product mix 41 produced, the diameter and taper of the logs milled. Trial Tr. at 1144-46, 1179-80, 1211-14 (Devere).
*272 Plaintiff presented expert testimony through its witness, Mr. Martin Devere. Mr. Devere earned a degree in forestry from Purdue University and had 40 years experience in the lumber industry at the time of his testimony. Trial Tr. 1130-42 (Devere). Mr. Devere testified that because of his experience he could estimate a saw mill’s overrun factor by witnessing its operations. Trial. Tr. at 1207-08 (Devere). Mr. Devere did not independently determine that plaintiff’s likely overrun factor was 1.25; rather, plaintiff enlisted Mr. Devere to verify whether plaintiff would have likely realized an overrun factor of 1.25. Trial Tr. at 1129 (Devere). Mr. Devere testified that based on his experience

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6657669. Public record. Not legal advice.