MOTION FOR SUMMARY RELIEF DENIED: November 28, 2007

MOTION FOR SUMMARY RELIEF DENIED: November 28, 2007

CBCA 646

BUTTE TIMBERLANDS, LLC,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Todd R. Johnston of Hershner Hunter, LLP, Eugene, OR, counsel for Appellant.

Michael E. Trow, Office of the General Counsel, Department of Agriculture, Portland,

OR, counsel for Respondent.

Before Board Judges VERGILIO, POLLACK, and SHERIDAN.

Opinion for the Board by Board Judge SHERIDAN. Board Judge VERGILIO dissents.

SHERIDAN, Board Judge.

This appeal involves a claim by the appellant, Butte Timberlands, LLC (Butte),

seeking $134,879.23 from the respondent, the Department of Agriculture (USDA), Forest

Service (FS). The claim arises out of timber sale contract 003050 at the Umpqua National

Forest in Douglas County, Oregon. As part of the contract, the parties agreed that certain

timber harvesting methods were to be used by the appellant. Butte alleges that the FS

breached the contract and its duty of good faith by failing to properly consider the appellant’s

request to modify the contract to use a different harvesting method from the one specified

in the contract.

CBCA 646

2

The record before the Board consists of the pleadings and the appeal file, exhibits 1

through 26. Following the pleading process, the respondent filed a motion for summary

relief pursuant to Board Rule 8. The filing consists of a motion for summary relief (Motion),

statement of uncontested facts (Statement), and memorandum in support of summary relief

(Memorandum). The appellant submitted a response opposing the motion (Response), with

attached declarations of Mr. Richard Brewer and Mr. Fred Sperry. The respondent has

replied to the appellant’s response (Reply).

Based on the findings of fact and application of the law set forth below, we deny the

respondent’s motion for summary relief.

Background

The following findings are made for the purposes of this decision only.

The USDA and FS are tasked with providing regulations, guidance, and plans to, inter

alia, insure that timber will be harvested from National Forest System lands only where soil

conditions will not be irreversibly damaged. National Forest Management Act of 1976, 16

U.S.C. § 1604(g)(3)(E) (2000). The implementing regulations provide that FS approving

officials must insure that the harvesting operations required by each timber sale contract are

consistent with applicable land and resource management plans and environmental quality

standards. 36 CFR 223.30(c) (2004).

This timber sale contract arose out of the July 2003 Kelsay Fire that burned 1200 acres

of timber in the Umpqua National Forest, which is administered by the FS’ Diamond Lake

Ranger District (District). Appeal File, Exhibit 8. In the planning stage, prior to the award

of the contract, the FS assessed the area in the Umpqua National Forest to be harvested.

Appeal File, Exhibit 2. The FS issued a July 28, 2004, “decision memo” describing the area

and making recommendations on best management practices to ensure proper harvesting.1

Id. A “timber sale report and logging premise” (timber sale report), dated August 24, 2004,

indicated that the purchaser should expect to use three logging systems: skyline, loader, and

mechanical. Appeal File, Exhibit 3. In pertinent part, the timber sale report provided that

approximately 182 acres of timber, units 2, 4, 6, 8, 10, 12, 20, 21, 22, 24, 25, 25a, 26, 27,

1

A “decision memo” as used by the FS appears to be equivalent to a “decision

notice” as referenced by FS regulation: “a concise written record of a responsible official’s

decision based on an environmental assessment and a finding of no significant impact

(FONSI).” 36 CFR 215.2.

CBCA 646

3

27a, 27b, 29, 30, 31, and portions of unit 7, were to be mechanically logged, with the report

stating:

Mechanical logging is planned for 20 units: 2,741 MBF [one thousand board

feet]. The system is comprised of a feller buncher, log loader, grapple skidder

and delimber. Designated skid roads will be spaced at an average distance of

100 feet apart. Some hand felling will be required to reach the area between

designated trails th[at] cannot be reached by the feller buncher.

Appeal File, Exhibit 3 at 2. The appraisal portion of the report showed the mechanical

logging estimated costs as being allocated to a feller buncher (identified as a “Timbco T430

FB [feller buncher]”) as well as estimated costs for hand-felling (identified as “Felling &

Bucking ($[10]/MBF)”).2 Id. at 11-12. According to a popular encyclopedic website, “[a]

feller buncher is a large logging machine with an attachment that cuts trees in place.” 3

2

The following definitions contained in 29 CFR 1910.266 (2007) may be helpful in

understanding the timber harvesting terms used in this decision:

Buck. To cut a felled tree into logs.

....

Fell (fall). To cut down trees.

....

Limbing. To cut branches off felled trees.

....

Machine. A piece of stationary or mobile equipment having a self-contained

powerplant, that is operated off-road and used for the movement of material.

Machines include, but are not limited to, tractors, skidders, front-end loaders,

scrapers, graders, bulldozers, swing yarders, log stackers, log loaders, and

mechanical felling devices, such as tree shears and feller bunchers.

....

Skidding. The yarding of trees or logs by pulling or towing them across the

ground.

....

Yarding. The movement of logs from the place they are felled to a landing. . . .

3

A feller buncher “consists of a standard heavy equipment base with a tree-grabbing

device furnished with a circular saw or a shear -- a pinching device designed to cut small

trees off at the base. The machine then places the cut tree on a stack suitable for a skidder

or forwarder, or other means of transport (yarding) for further processing (e.g., delimbing,

bucking, loading, or chipping).

W ikipedia, Feller buncher,

CBCA 646

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Wikipedia, Feller buncher, http://en.wikipedia.org/wiki/Feller_buncher (last visited Nov. 27,

2007). “A skidder is any type of heavy vehicle used in a logging operation for pulling cut

trees out of a forest in a process called ‘skidding’, in which the logs are transported from the

cutting site to a landing.” Id., Skidder, http://en.wikipedia.org/wiki/Skidder (last visited Nov.

27, 2007).

On August 27, 2004, the timber sale prospectus was furnished to prospective bidders

and the sale was advertised. Appeal File, Exhibits 4, 5. The prospectus provided a map of

the sale area showing notations of where mechanical logging was specified (also where

skyline and loader logging were specified). Id., Exhibit 4 at 6.

Butte was awarded the contract on September 10, 2004. Appeal File, Exhibit 8. The

yarding and skidding requirements of the contract were set forth in paragraph C.6.42# -­

Yarding/Skidding Requirements, and provided:

Purchaser shall submit for Forest Service approval a yarding/skidding plan

prior to the start of felling operations. Requirements other than those specified

in the following table may be approved. When appropriate, such approval

shall include adjustments in current contract rates and revision of the sale area

map. In no such case shall the adjustments result in current contract rates less

than base rates.

Location of all skid roads and trails, tractor roads, skyline corridors,

mechanized harvester trails, forwarder roads, and other log skidding facilities,

shall be approved prior to their use or construction.

See attached table for requirements.

Id. at 155 (emphasis added by italics). The referenced table provided the yarding and

skidding requirements for the units being mechanically logged:

Mechanical Logging:

All equipment will be restricted to designated skid trails. Location for skid

trails will be agreed to prior to felling at a minimum of 100 feet apart.

Existing skid trails will be used where feasible. All trails will be subsoiled to

http://en.wikipedia.org/wiki/Feller_buncher (last visited Nov. 27. 24, 2007).

CBCA 646

5

twenty (20) inch depth and covered with slash and large down wood following

logging.

Id. at 155-56 (emphasis added by italics).

The contract also contained the following special provision used in USDA timber sale

contracts:

C8.3 - Contract Modification. The conditions of this timber sale are

completely set forth in this contract. This contract can be modified only by

written agreement of the parties . . . contract modifications, redetermination

of rates and termination shall be made on behalf of the Forest Service by the

Contracting Officer.

Appeal File, Exhibit 8 at 137 (emphasis added).

Mr. Wayne Kleckner was the contracting officer assigned to administer the contract

and Mr. Dale Anderson was designated the FS representative (FSR). Appeal File, Exhibit

10 at 5, 10. As the FSR, Mr. Anderson was available on site and authorized to “take action

under this contract.” Id. at 5. Landings and skid trails were located by agreement prior to

logging a given unit and were shown by drawings in various timber sale inspection reports

dated October 1, 4, 11, 25, and 28, 2004. Statement at 5 n.3 (citing Appeal File, Exhibit 11

at 2, 4, 6, 13, 14).

On October 7, 2004, Mr. Rick Brewer, the vice-president of Butte, approached Mr.

Anderson with a “proposal for modification of the felling” to widen the main skid trail

spacing, “[m]ove the main skid roads to 125 to 150 feet apart, and achieve felling with a

buncher on laterals from the main corridor.”4 Appeal File, Exhibit 10 at 8. Mr. Brewer

represented that “the use of a buncher to achieve all felling and pack trees back to the main

corridor is required by the [FS] on east side timber sales.” Id. With the request, Mr. Brewer

provided a list of several problems Butte was encountering with the felling process, and

argued that the area would not be adversely impacted by additional compaction if the

modification was granted. Id. at 9. Allowing the proposed method of felling would have

given Butte’s feller buncher increased access in units that would, essentially, have let Butte

use the feller buncher to fell all the trees in the contract. The need for hand-felling would

have been obviated. Id. at 12.

4

The appellant appears to use the term “skid road” as synonymous with “skid trail.”

CBCA 646

6

Mr. Anderson contacted Mr. Jim Archuleta, the District’s soil scientist, to address the

soils related topics raised by Butte’s requested modification. Mr. Archuleta referenced

“numerous conversations” he had with the FS’s regional soil scientist, Mr. Steve Howes,

about the use of equipment on the District’s pumice soils and associated compaction, as well

as “a false belief that pumice (pummy) does not compact.” Appeal File, Exhibit 10 at 6. He

noted that “individual monitoring we have done on this district showed that equipment with

a PSI [pounds per square inch] of 7 can create a >20% change in soil bulk density with a

minimum of three passes.” Id. Mr. Archuleta went on to provide rebuttal comments for each

of the soils related arguments Butte made in favor of being allowed to take the feller buncher

off the skid roads, noting that aerial photos taken in 1998 of units harvested in the 1960s and

1970s “within feet” of the units to be harvested in this contract show “legacy skid trails”

which periods of freeze and thaw had not restored to original condition. Mr. Archuleta also

noted that Mr. Brewer’s contentions that the “east side” soils are “pummy” and that

“extensive research and experimentation have led to all sales requiring bunching and packing

to 125-150 [foot] corridors” may be contradicted by District specific monitoring and a 1999

study on compaction. Id. at 7. By letter dated October 12, 2004, Mr. Anderson denied

Butte’s request to change the yarding and skidding plan to allow felling with a buncher on

laterals from the main corridor. Mr. Anderson concluded that the contract’s yarding and

skidding requirements “specify that all equipment must stay on designated trails at least 100

feet apart.” Id. at 12. Mr. Anderson also drew from the report that Mr. Archuleta’s

“recommendation . . . [was] to stay within [the] contract requirement of only allowing

designated trails 100 feet apart. Allowing the feller buncher off the designated trails and

authorizing lateral trails would increase compaction.” Id.

Mr. Brewer wrote back to Mr. Anderson on October 14, 2004, expressing Butte’s

disagreement with the decision and stating that he believed that the FS’ decision failed to

calculate the “overall impact” of requiring the feller buncher to remain on the skid trails:

We will now have much more entry into the soils by the machine piling shovel,

which has a 5 PSI footprint. This machine is now going to intrude upon nearly

every square foot of unit ground, although we will try to minimize it to the best

of our ability. The human footprints left by the hand cutters will tread heavily

upon the soil also. By my calculation, a 200 [pound] human has up to a 12.5

PSI impact as you step down heel to toe on one foot when walking. By

contrast, our feller buncher has less than a 7.0 PSI impact.

The method of shovel logging, while becoming more commonplace in recent

years, has a much heavier PSI rating than a tractor. Our yarding shovel has a

9.6 PSI rating, compared to a tracked skidder which usually falls into a 4-5 PSI

rating. Bunch piles translate to lower cycle counts, and less compaction.

CBCA 646

7

I appreciate the waiving of subsoil requirements when shovel logging in place

of tractor skidding, but I fear that we are actually compacting and impacting

the ground more with this method.

I’m not a soils scientist, therefore, I am not qualified to comment on the

arguments given to substantiate the decision. . . . I believe that we sometimes

fail to properly weigh the positives and negatives in the final overall analysis.

In my humble opinion, I assert that the overall benefits of less intrusion, less

timber breakage, fewer passes on the main skidding corridor, fewer corridors,

speed of harvest therefore high recovery, residual stand retention, higher

quality slash disposal, lower PSI impact on the main skidding corridor and

safety outweigh the one PSI over C6.42# spec. bunching off the main corridor.

....

That being said, I appreciate your attention to this proposal, and my take is that

you and your staff have the best interest of the land as your primary concern,

but just haven’t properly weighed all the criteria in the decision.

Appeal File, Exhibit 10 at 13 (emphasis added). In that same October 14, 2004, letter, Butte

asked Mr. Anderson if the FS sales administrator and soils scientist had established whether

“off corridor cutting” would be allowed “when the ground freezes up, or the snow cover

comes to sufficiently protect the soils.” Id. at 14.

On November 4, 2004, Mr. Brewer wrote Mr. Jim Akers, the District Sales

Administrator, complaining about “a pattern of operational delays, delays of decision, lack

of cooperation, and poor attitude from the administration of this contract” and representing,

“I am still waiting for an answer to my question regarding cutting [timber] off the main

corridor with a feller buncher on a sufficient snow pack to prevent compaction.” Appeal

File, Exhibit 10 at 18. Several District personnel, including Messrs. Akers and Archuleta,

the District planner, Mr. Stu Carlson, and the District silviculturist, Mr. Rick Abbott,

discussed the fact that the District had very little experience with logging over snow and that

reports about it were anecdotal. Concluding that because the District could not test whether

using a feller buncher over frozen ground and snow pack would not cause detrimental

compaction until the next spring after the snow had melted, the District personnel decided

to deny Butte’s request. Id. at 35-37. However, the District personnel determined that Butte

should be given a [two] acre plot to fell in the manner requested “as a test for future logging

CBCA 646

8

operations over snow.” Id. at 37. The record does not indicate when, or whether, the District

communicated its decision to deny Butte’s request to use the feller buncher over snow.5

Work progressed on the contract, a number of time extensions were made, and on

July 27, 2006, Butte requested a final inspection on the contract. Appeal File, Exhibit 10 at

56. Mr. Nelson notified Butte on August 1, 2006, that certain work in unit seven was not

completed or accepted. He informed Butte that the FS would hold Butte’s performance bond

and use it to complete the work if the work was not finished by August 11, 2006. Id. at 57.

The record does not contain documentary evidence showing the actual date of completion

or final acceptance, however; on September 5, 2006, Butte notified individuals at the District

that “all contract obligations have been completed and accepted as of August 11, 2006,

therefore, I am requesting a refund of the cash performance deposit.” Id. at 58. The FS

processed a refund of Butte’s $15,000 performance deposit on October 5, 2006. Id. at 59.

Pursuant to contract paragraph B9.2 - Disputes, on October 23, 2006, Butte submitted

a claim to the contracting officer, then Mr. Steven Nelson, seeking “direct costs” of “at least

$134,879.23.” Appeal File, Exhibit 20. As reasons for the claim, Butte gave the following:

1.

We were not allowed to log the ground base units with “mechanized

yarding” as referenced in the prospectus and the contractual map.[ 6 ]

2.

Written requests regarding this issue went unanswered in violation of

B6.36.[ 7 ]

5

“There is no evidence in the Appeal File that the 2 acre plot was actually offered to

appellant or that appellant ever raised the issue again.” Statement at 9 n.6.

6

This allegation relates to the FS’ refusal to grant Butte’s requested modification to

change the main skid roads to 125 to 150 feet apart and achieve felling with a feller buncher

on “laterals from the main corridor.” It also appears to relate to Butte’s request to take the

feller buncher off trails and over frozen ground or snow pack.

7

Paragraph B6.36 - Acceptance of Work provides that “upon purchaser’s written

request and assurance that work has been completed, Forest Service shall perform an

inspection promptly so as not to delay unnecessarily the progress of purchaser’s operations.

. . . In the event that Forest Service is unable to make such inspection within 10 days of

purchaser’s request, purchaser shall be notified in writing of necessity of postponement and

time when inspection can be made.” Appeal File, Exhibit 8 at 129.

CBCA 646

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3.

The District soil scientist, Jim Archuleta, appears to have a personal

stake in promoting the increased use of subsoilers,[ 8 ] as he has applied

for at least two patents on them . . . and may be in violation of B6.01

subparagraph b of the contract.[ 9 ]

4.

Completed work was not accepted in writing as provided in B6.36.[ 10 ]

Id.

Mr. Nelson denied the claim via a final decision dated January 30, 2007. Appeal File,

Exhibit 15. In his final decision, the contracting officer addressed the allegations proffered

by Butte as the bases of its claim. Regarding Butte’s allegation that it was “not allowed to

widen the main skid [road] spacing to 125 to 150 feet” and “not allowed to log the ground

based units with ‘mechanized yarding,’” Mr. Nelson replied that the FS had properly

evaluated Butte’s proposed modification and consulted with a subject matter specialist prior

to making its decision. “The decision to deny the requested modification was based on the

expectation that more soil compaction would occur by allowing the feller buncher off of

wider-spaced designated skid trails. This expectation is the result of monitoring similar

requests on the . . . District,” and “[Mr.] Anderson made a reasoned decision to deny your

proposed change.” Id. at 4-5. Addressing Butte’s allegation that “written requests regarding

the modification went unanswered,” Mr. Nelson opined that Mr. Anderson had responded

8

A subsoiler is a tractor-mounted implement used to loosen and break up soil at

depths below the level of a traditional disk harrow or tiller. Typically, a subsoiler mounted

to a compact utility tractor has a thin blade with a sharpened tip, and will reach depths of

about twelve inches. Wikipedia, Subsoiler, http://en.wikipedia.gor/wiki/Subsoiler (last

visited Nov. 27, 2007). The contract provided that after the contractor had finished using the

designated skid trails, it was required to subsoil those skid trails to a depth of 20 inches.

Appeal File, Exhibit 8 at 156.

9

Paragraph B6.01 - Statutory Compliance provides that the “purchaser agrees to

conduct operations under this contract” in compliance with Federal, state, and local statutes,

standards, orders, permits, regulations and environmental quality laws, and that “a conviction

of, or civil judgment for,” among other things, “(b) Fraud, criminal offenses, or violation of

Federal or State antitrust laws, any of which occurred in connection with obtaining,

attempting to obtain, or performing a public contract or subcontract,” shall be considered a

breach of the section and may result in termination of the contract. Appeal File, Exhibit 8

at 125.

10

See supra note 7.

CBCA 646

10

to the request for a modification in writing on October 12, 2004, within seven days of FS’

receipt of the request. Further, he noted that Butte had moved its equipment into the area and

had begun operations as of October 1, 2004, so the seven days the FS took to research and

respond to the request did not unduly delay Butte’s operations. Id. at 5. As to Butte’s

allegation that Mr. Archuleta appeared to have “a personal stake in promoting the use of

subsoilers,” Mr. Nelson pointed out that Mr. Archuleta was not a party to the contract and

did not speak for the FS or make decisions related to the operation of the contract. “[Mr.

Archuleta] was properly asked to review [Butte’s] proposal, since he is the subject matter

specialist in soils for the . . . District. Mr. Archuleta properly limited his review and

recommendations to areas of his professional expertise.” 11 Id. at 5-6.

Butte timely appealed the final decision to the Civilian Board of Contract Appeals

(CBCA), where, on February 16, 2007, the appeal was docketed as CBCA 646.

Positions of the Parties

The crux of this dispute appears to be the appellant’s dissatisfaction with the FS’

refusal to allow Butte to take its feller buncher off the designated skid trails and to

mechanically fell timber on laterals from the main corridor, or from frozen ground, or from

on top of snow pack. Butte’s proposal would have entailed modifying the mechanical

logging yarding and skidding requirements set forth in the contract. The appellant posits that

none of the changes it proposed in its requested modifications would have adversely

impacted the soil more than using the feller buncher from the designated skid trails and handfelling with chainsaws the timber the feller buncher could not reach from the skid trails.

The respondent avers that the contract clearly indicated the requirements with regard

to mechanical logging, including the yarding and skidding requirements; the FS had

“unilateral authority” to approve requirements different from those set forth in the contract;

and there is no evidence that the FS was “less than reasonable” in evaluating Butte’s

proposed modification. Memorandum at 13-15. The respondent argues it is entitled to

judgment as a matter of law because Butte did no more than use the yarding and skidding

requirements specified in the contract.

The appellant responds that there are “disputed facts relating to the reasonableness of

respondent’s actions and decisions” regarding the mechanical logging methods and its

requested modifications. Butte avers that the respondent’s rejections of the alternative

11

The contracting officer discussed several other bases for his decision that do not

need to be discussed to decide this motion.

CBCA 646

11

logging methods it proposed were unreasonable and a breach of the contract. The appellant

argues that “unless the Board finds that there is no conflicting evidence as to whether the

respondent “acted reasonably or in accordance with the parties’ reasonable expectations,” the

respondent’s motion must be denied.

The respondent replies that the decision to reject Butte’s alternative harvesting

methods was reasonable and that the “appellant adduces no competent evidence to create a

material fact which undermines the contracting officer’s decision.”

Discussion

The question presented by this appeal is whether under the terms of this contract the

FS acted reasonably in denying Butte’s requests to modify the mechanical logging

requirements to allow it to use its feller buncher to fell timber from laterals off the main

corridor, from frozen ground, and from snow pack.

Pure contract interpretation is a question of law that may be resolved by summary

judgment. P.J. Maffei Building Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.

Cir. 1984). However, the question of interpretation of language, the conduct, and the intent

of the parties, i.e., the question of what is the meaning that should be given by a court or

board to the words of a contract, may sometimes involve questions of material fact and not

present a pure question of law. If there is a genuine dispute of material fact, summary

judgment is inappropriate. Beta Systems, Inc. v. United States, 838 F.2d 1179, 1183 (Fed.

Cir. 1988).

For summary judgment to be granted, there can be no genuine issue of material fact,

and the moving party must be entitled to judgment as a matter of law. A fact is material if

it is necessary and relevant to the proceeding, or might significantly affect the outcome of

the case. A genuine issue exists concerning a fact if the evidence presented is sufficient to

enable a reasonable fact finder to decide the question in favor of the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

As stated in Darwin Construction Co. v. United States, 31 Fed. C1. 453, 456 (1994):

Although contract interpretation is generally a question of law, questions of

fact can arise as part of the analysis. What is most reasonable in a given set of

circumstances is an issue of fact. D & S Universal Mining Co. v. United

States, 4 C1. Ct. 94, 97 (1983). Moreover, the existence of industry or trade

practice is a question of fact, John McShain, Inc. v. United States, 199 Ct. Cl.

364, 370, 462 F.2d 489 (1972), evidence of which “may always explain or

CBCA 646

12

define, as distinguished from vary or contradict, contract language.” W.G.

Cornell Co. v. United States, 179 Ct. C1. 651, 670, 376 F.2d 299 (1967)

(emphasis in original).

In deciding a motion for summary relief, the Board’s role is not to resolve factual

questions, or to weigh the evidence and determine the truth of the matter. Rather, our role

is to ascertain whether there are material facts in dispute and whether there exists any

genuine issue for trial. The burden is on the moving party to establish it is entitled to

summary relief by proving first that there is no genuine issue of material fact. Further, the

reasonably disputed evidence offered by the non-moving party is to be believed for purposes

of the motion, and we must resolve any doubts over whether factual issues are in dispute in

favor of the party opposing summary relief. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Anderson; H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed. Cir.

1984); Saturn Construction Co., VABCA 3229, 91-3 BCA ¶ 24,15, aff’d, 991 F.2d 810 (Fed.

Cir. 1993) (table); DJM/REZA, Joint Venture, VABCA 6917 et al., 05-1 BCA ¶ 32,943.

To combat a motion for summary relief, the non-movant must set out in an affidavit,

or otherwise, what specific evidence could be offered at trial. Pure Gold, Inc. v. Syntex

(U.S.A.), Inc., 739 F.2d 624, 627 (Fed. Cir. 1984). Its evidence is to be believed and all

reasonable factual inferences must be drawn in its favor. C. Sanchez & Son, Inc. v. United

States, 6 F.3d 1539, 1541 (Fed. Cir. 1993). In granting a motion for summary relief the

Board must be sure that the criteria for granting the motion are fully satisfied. There must

be no genuine issue of material fact separating the parties that the Board must decide, and,

because the respondent is the moving party here, the respondent must be entitled to decision

as a matter of law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed. Cir.

1987).

Butte requested that the mechanical logging requirements of the contract be modified

to allow it to use its feller buncher off the skid trails and to fell timber on “laterals” from the

main corridor. The FSR denied this request. Subsequently, Butte asked the FSR if it could

take its feller buncher off the skid trails and fell timber from frozen ground or snow pack.

The FS decided to deny this request also, but the record is unclear as to when the FS told

Butte its requested modification had been denied. Butte’s proposed modifications would

have allowed its feller buncher greater access to timber, increasing the amount of timber that

was able to be mechanically logged as opposed to hand-felled. Hand-felling using chainsaws

was necessary if the feller buncher was limited to felling only from the designated skid trails.

By declaration, Mr. Brewer has stated that he would testify at hearing that he has been

in the timber industry for thirty-one years and allowing Butte to use the feller buncher

machine, as per the requested modification, “would not [exceed] . . . the 20% regional

CBCA 646

13

productivity standard and guideline for detrimental impacts in the activity area.” Response

(Declaration of Richard Brewer (July 11, 2007) at 1). Mr. Brewer declares:

Allowing Butte Timberlands’ proposed plan would have: (1) reduced the area

of detrimental compaction; (2) increased the quantity of merchantable timber

harvested; (3) increased revenue for the respondent and Butte Timberlands; (4)

resulted in earlier completion date; (5) resulted in less residual tree damage;

(6) prevented slash and piling of slash in the unit; and (7) improved natural

regeneration of the forest.

Response (Brewer Declaration at 2). Mr. Fred Sperry, a 1981 graduate of Oregon State

University who has a degree in forest management, provides a declaration that essentially

mirrors Mr. Brewer’s declaration, adding that “equipment with a PSI of seven pounds is

unlikely to create a change in soil bulk density in excess of 20%.” Response (Declaration

of Fred Sperry (undated) at 2).

The FS contends in its motion that the FS has “unilateral authority to ‘approve’

requirements different than . . . [those set forth] in the contract,” and “the parties did not

bargain for a reasonableness standard.” Memorandum at 13-14. Alternatively, the FS asserts

that it acted reasonably in refusing to allow Butte to mechanically fell timber from off the

designated skid roads, and that Butte has failed to “adduce competent evidence to create a

material fact which undermines the [contracting officer’s] determination.” Reply at 1. As

indicia of its reasonableness in refusing to allow the feller buncher to fell on laterals from the

main corridor, the FS relies on its vetting the request with the District soils scientist. Also,

the facts reveal that, in considering Butte’s request to fell from frozen ground and from snow

pack, several FS personnel were consulted and involved in making the decision to deny the

request.

The respondent is incorrect in its conclusion that a reasonableness standard does not

apply to the FS’ consideration of the appellant’s request. An implied covenant of good faith

and fair dealing imposes an obligation on the part of each party to a contract to act

reasonably. In Maxima Corp. v. United States, 847 F.2d 1549, 1556 (Fed. Cir. 1988), our

appellate authority, the Court of Appeals for the Federal Circuit, stated that “[t]he need for

mutual fair dealing is no less required in contracts to which the Government is a party, than

in any other commercial arrangement.”

See also Norman v. General Services

Administration, GSBCA 15070, et al., 02-2 BCA ¶ 32,042 (closely allied to the

Government’s duty to cooperate with the contractor and, to a limited extent overlapping with

it, is the Government’s continuing duty to deal fairly and in good faith with the contractor);

Restatement (Second) of Contracts § 205 (1981) (every contract imposes upon each party a

duty of good faith and fair dealing in its performance and subterfuges and evasions violate

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that obligation, as do lack of diligence and interference with or failure to cooperate in the

other party’s performance). Based on the covenant of good faith and fair dealing inherent

in every contract, all parties to a contract are charged with acting reasonably. One of our

predecessor boards, the Department of Agriculture Board of Contract Appeals, in an

analogous situation, discussed a similar contract provision where tractors were restricted to

approved skid trails no less than 100 feet apart. Thorco, Inc., AGBCA 2001-136-1, 03-1

BCA ¶ 32,164. In Thorco, the Agriculture Board applied a reasonableness standard in

assessing whether the FS sales administrator subsequently improperly refused to allow

“dispersed skidding.” Id. at 159,038. However, what are considered reasonable actions and

decision-making can differ based on the terms of the contract, as well as the particular facts

and circumstances. Although the respondent has made this motion, we note that

determinations as to the reasonableness of a party’s actions under all the circumstances

involve questions of fact that are generally not appropriate for summary relief. McKenzie

Engineering Co., ASBCA 53374, 02-2 BCA ¶ 31,972; Coastal Government Services, Inc.,

ASBCA 50283, 99-1 BCA ¶ 30,348.

In pertinent part, paragraph C.6.42# of the contract provided that Butte was required

to submit for approval a yarding and skidding plan showing its intended locations for, among

other things, skid trails. The plan was to establish how Butte intended to move the timber

from where it was felled to a landing. Paragraph C.6.42# referenced certain requirements

that were set forth in a table that immediately followed the paragraph, identifying the

requirements for, among other things, the mechanical logging at issue here. As to the

mechanical logging, the purchaser was required to use the existing skid trails where feasible.

The locations for the skid trails were to be agreed upon by the parties prior to the start of

felling operations, and the skid trails were required to be a minimum of 100 feet apart. The

contract also specifically required that for the mechanical logging “all equipment was

restricted to the designated skid trails,” and following logging all the trails were required to

be subsoiled to a twenty inch depth. However, that being said, paragraph C.6.42# also

provided that “requirements other than those specified . . . may be approved.” A plain

reading of paragraph C.6.42# appears to provide for modification of the mechanical logging

requirements set forth in the contract - provided the parties are able to come to a written

agreement as to what those logging requirements are to be. As such, the FS was obligated

to give Butte’s requested modifications good faith consideration.

To grant the respondent’s motion, we must decide that there are no material facts in

dispute and that the respondent is entitled to judgment as a matter of law. The FS has pointed

to facts supporting its contention that the method of felling proposed by the appellant would

have been more disruptive to the area than the method specified. The appellant has declared

that its proposed method of felling would not cause any greater damage that the method in

the contract and that its feller buncher did not exceed the 7 PSI cautioned against by the FS

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soils engineer. For purposes of deciding this motion we are required to resolve any doubts

over whether factual issues are in dispute in favor of the appellant. The appellant’s

declarations place in dispute, albeit with minimal evidence, certain material facts which we

believe are pertinent to the reasonableness of the FS’ actions.

The facts as they are currently set forth by the parties also raise several unanswered

factual questions which may be pertinent to what we will ultimately resolve here - the

reasonableness of the FS’ actions. The record does not explain and we are unclear as to what

“felling with a buncher on laterals from the main corridor” entails or why this method would

(or would not) cause more damage to the area than would hand-felling using chainsaws. So,

too, it would be helpful to learn more about the “designated skid trails” and how they were

selected and located. The “east-side practice,” both what it was and why (or why not) it

should apply to the sale area, is also an issue that seems to be relevant. These are a few of

the many questions of fact we have, the answers to which we anticipate will be provided as

the record is further developed. These questions, and the answers that flow from them, all

go to whether the FS acted reasonably in considering Butte’s requested modifications. In the

absence of facts in the record necessary and material to our determination of a party’s

entitlement to judgment as a matter of law, we cannot grant the moving party’s motion. See

generally J.W. Bateson Co., VABCA 3482, 93-3 BCA ¶ 26,115, at 129,801 (citing Young

Enterprises, Inc. v. United States, 26 C1. Ct. 858, 863 (1992)). This appeal appears to

present opposing opinions on a variety of issues. It is apparent from the record currently

before us that the Board will likely be required to assess the credibility of the witnesses and

determine the weight to be given conflicting evidence. Until we have a more complete

record, the Board cannot fully assess the reasonableness of the FS’ actions.

Decision

The respondent’s motion for summary relief is DENIED.

_____________________________

PATRICIA J. SHERIDAN

Board Judge

I concur:

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HOWARD A. POLLACK

Board Judge

VERGILIO, Board Judge, dissenting.

I respectfully dissent from the decision of the majority. I would grant the

Government’s motion for summary relief, as I find no material fact to be in dispute.

The contract required the purchaser to keep equipment on designated skid trails, with

the trails to be a minimum of 100 feet apart. Exhibit 8 at 155-56 (exhibits are in the appeal

file). The purchaser made two requests to deviate from the requirement, as it initially sought

to bring equipment off the skid trails and onto lateral trails into the landscape, and thereafter

sought permission to bring equipment off the skid trails if the ground was frozen or there was

sufficient snow pack. Exhibit 10 at 8-9, 13-14. Its requests did not contain information that

convincingly suggested that its proposed methodologies would not irreversibly damage the

soil conditions. For example, the request referenced experience and research without

providing specific support. The writer of the request also acknowledged that he is not a soils

scientist and that he is not qualified to comment on the arguments given to substantiate the

Government’s decision to not permit equipment off the skid trails. Based upon the

submissions, experience, and responses to inquiries, a Forest Service representative

determined that the proposed modifications would not ensure a suitable methodology of tree

removal. The representative did not approve altering the contract requirements and did not

permit equipment off the skid trails. The Government is permitted to enforce the specific

terms of the contract. The suggestions by the purchaser to alter the requirements did not

merit a greater response by the Government. The Government acted reasonably. Moreover,

the purchaser presented neither request specifically to the contracting officer until its postcompletion claim. At such a time, the proposed deviations or contract modifications were

moot and appropriately denied.

With a review of each item of the claim and the related facts (as determined when

resolving a Government motion for summary relief) I provide further particulars as to why

I would grant the Government’s motion. The purchaser’s claim of October 23, 2006, raises

four items in support of its request for money:

1.

We were not allowed to log the ground base units with “mechanized

yarding” as referenced in the prospectus and the contractual map.

2.

Written requests regarding this issue went unanswered in violation of

B6.36.

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3.

The District Soil Scientist, [name], appears to have a personal stake in

promoting the increased use of subsoilers, as he has applied for at least

two patents on them . . . and may be in violation of B6.01 subparagraph

b of the contract.

4.

Completed work was not accepted in writing as provided in B6.36.

Exhibit 20.

Item one

The contract required the purchaser to keep equipment on designated skid trails at a

minimum of 100 feet apart. Exhibit 8 at 155-56. The contract could be modified by a

bilateral written agreement between the purchaser and the contracting officer. Exhibit 8 at

137.

In its October 7, 2004, “Logging Proposal” the purchaser sought a modification to the

contract. The request to the Forest Service representative sought to move the main skid roads

to 125 to 150 feet apart and to permit equipment off the skid corridor. The request contained

a comment: “As to the negative, the additional travel of the buncher, research has proven that

this method has the least overall negative impact upon an east side site such as this one.” No

research or support was submitted. Rather, the purchaser identified problems it was

encountering, and an explanation of how its proposed method would be mutually beneficial.

Exhibit 10 at 8-9.

In a response, dated October 12, 2004, the Forest Service representative referenced

the contract requirement, paragraph C6.42#, Exhibit 8 at 155, that all equipment must stay

on designated trails at least 100 feet apart. He noted that the proposal is not consistent with

this requirement. Further, he explained that he contacted a soils “expert,” who submitted a

“recommendation” upon which the representative relied. The analysis of the soils scientist

disputed the statements of the purchaser, and specified: “The NEPA [National Environmental

Policy Act] process for this project took these potential impacts into account when defining

acceptable impacts and mitigations for this project.” Exhibit 10 at 6-7. The determination

by the representative indicated a reasoned basis for keeping equipment on designated trails

and serves as a basis to deny the request for a variance.

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As indicated in a letter of reply dated October 14, 2004, the purchaser read the soils

scientist’s analysis as a recommendation “against any use of the buncher off of the skid

roads.” The letter specified: “I’m not a soils scientist, therefore, I am not qualified to

comment on the arguments given to substantiate the decision.” Exhibit 10 at 13-14.

Although the letter suggested that overall soil compaction would be less using the proposed

method compared to a strict enforcement of the contract, the submission did not indicate that

the compaction by equipment off the skid roads would be acceptable. Nothing in the letter

convincingly demonstrates that the Government made the incorrect decision, much less an

unreasoned decision. Catalog cuts attached are similarly unhelpful, as there was not an

explanation of the actual impact that would occur on given areas with the different

methodologies.

In this letter of October 14, the purchaser also inquired if the Government would

permit equipment off the designated skid trails when the ground was frozen or when there

existed snow cover to protect the soil. Exhibit 10 at 14. The Government explored the use

of equipment during freezes and with snow pack, but concluded that it could not ensure that

such actions would sufficiently preserve the soil. Exhibit 10 at 35-37. Even assuming (as

required when resolving the present motion) that the conclusion was not conveyed to the

purchaser, the purchaser placed nothing before the contracting officials that would compel

a contrary conclusion.

The purchaser maintains in the first item of the claim that the Government did not

permit it to log the area using mechanized yarding as described in the prospectus and the

contractual map. The purchaser has identified no such instance when the Government

required a deviation from the terms of the contract to the detriment of the purchaser.

Viewing the claim favorably for the purchaser, the purchaser contends that its

proposed use of equipment off skid trails was acceptable under the contract because the soil

would not be impacted adversely. However, as the purchaser acknowledged in its letters

during performance, its proposed methodologies would entail a deviation because the

equipment would leave the skid trails. The Government acted reasonably in obtaining

information on the issues and in declining to approve deviations, as there were no assurances

that the proposed methodologies would leave the area in an acceptable condition. The

contracting officer correctly denied this claim.

Item two

The purchaser claims that written requests to permit a deviation went unanswered in

violation of contract paragraph B6.36. The Acceptance of Work clause of the contract,

B6.36, discusses acceptance by the Government upon the purchaser’s written request and

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assurance that work has been completed. “Within 5 days of said inspection, Forest Service

shall furnish Purchaser with written notice either of acceptance or of work remaining to be

done.” Exhibit 8 at 129. The submissions referenced in this item, those discussed in item

one, are not related to this paragraph. Acceptance of work is not at issue. Even if one views

the submissions as requests for modifications, the purchaser did not pursue the matter after

the initial denial by the representative and here assumed lack of a response until after

performance was complete. At that time the request was moot.

Item three

The purchaser alleges that the views of the soil scientist who was asked for input may

be tainted and may be in violation of paragraph B6.01(b) of the contract.

The Government cannot be in breach for violation of B6.01 because the contract

expressly makes that clause inapplicable to the contract. Exhibit 8 at 9. However, both

paragraphs B6.01 and C6.01 (the actual, parallel clause in the contract) detail purchaser

obligations, not obligations of the Government. Exhibit 8 at 149. In any event, the views of

the soils scientist are not controlling. As explained above, the purchaser did not provide

more than anecdotal information that either of its proposed methodologies would not

adversely impact the soil. If viewed as a post-award protest over the terms and conditions

of the solicitation and contract that equipment remain on the skid trails, the purchaser raises

the matter in an untimely fashion and at the wrong forum.

Item four

The purchaser alleges that its work was not accepted in writing, as required by the

contract: “Within 5 days of said inspection, Forest Service shall furnish Purchaser with

written notice either of acceptance or of work remaining to be done.” Exhibit 8 at 129

(¶ B6.36).

On July 27, 2006, the purchaser requested final inspection of the timber sale. Exhibit

10 at 56. On August 1, 2006, the Forest Service replied that based upon an inspection, unit

7 was not complete; it gave the purchaser through August 11 to complete performance. The

reply also specifies: “This slash work is all that remains to be accomplished on the contract.

All other work has been inspected and accepted as complete.” Exhibit 10 at 57. A Timber

Sale Inspection Report, with a date of inspection of August 11, notes that “final inspection”

has occurred with Government acceptance. Referencing paragraphs B.6.36 and B9.6, the

report states: “All units have been compl[e]ted and all contract requirements are in

compliance. All work has been compl[e]ted & accepted, [sale administrator] recommends

that this sale be closed.” The document bears the signatures of a sale administrator and a

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Forest Service representative with dates of August 11, 2006, and the signature of a purchaser

representative with the date of August 16, 2006. Exhibit 11 at 110.

The Government complied with the contract. Within five days of the request for a

final inspection, the Government provided a written notice of acceptance and work remaining

to be done. Thereafter, the Government provided written notice of acceptance on August 11,

2006, which a purchaser representative acknowledged by signature and a date of August 16,

2006. The purchaser fails to place a material fact in dispute to support any violation and does

not suggest that any damages flow from this alleged violation. This aspect of the claim can

be denied.

______________________________

JOSEPH A. VERGILIO

Board Judge