Free Response to Proposed Additional Facts - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) BLUE LAKE FOREST PRODUCTS, INC., ) ) Plaintiff, ) ) v. ) No. 01-570C ) (Judge Williams) THE UNITED STATES, ) ) Defendant. ) ) __________________________________________ ) TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) No. 01-627C ) (Judge Williams) THE UNITED STATES, ) ) Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

CLR TIMBER HOLDINGS, INC., Plaintiff, v. THE UNITED STATES, Defendant.

No. 04-501C (Judge Williams)

PLAINTIFFS' RESPONSE TO THE ADDENDUM TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS Pursuant to RCFC 56(h)(2), plaintiffs respond to the Addendum to Defendant's Proposed Findings of Uncontroverted Fact ("DPFUF"). 1

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Defendant's Proposed Finding of Uncontroverted Fact No. 21 The Northwest Forest Plan ("NFP") Record of Decision ("ROD") instructed that Category 2 surveys should "precede the design of all ground-disturbing activities . . . implemented in [Fiscal Year] 1999 or later. App. 98,[1] NFP ROD Standards and Guidelines at C-5.

Plaintiffs' Response: Plaintiffs object because the language quoted by the proposed finding does not appear in the ROD. First, the government cites to the Standards and Guidelines attached to the ROD, not the ROD itself. Def. App. 97-98. Second, the government improperly uses ellipses to join together the directives of the Standards and Guidelines for the FY 1997 and FY 1999 surveys. The Standards and Guidelines state that for the FY 1997 Category 2 species, "[S]urveys for ... salamanders, and red tree voles (and lynx, see page C-47) must precede the design of all ground disturbing activities that will be implemented in 1997 or later." Id. at 98. For the other 71 Category 2 species whose surveys were required in FY 1999 or later, the standards and guidelines state, "These surveys must be complete prior to ground disturbing activities that will be implemented in F.Y. 1999 or later." Id.

Defendant's Proposed Finding of Uncontroverted Fact No. 22 Questions arose within the Forest Service and the Bureau of Land Management regarding the implementation of the NFP, and, to ensure consistent responses between agencies and
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All citations to "App." within the defendant's proposed findings refer to the defendant's appendix. In plaintiffs' responses, plaintiffs use "Def. App." to refer to the defendant's appendix and "App. Tab" to refer to plaintiffs' appendix. 2

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between functional disciplines within the same agency, the agencies established the NFP Issue Resolution Team ("IRT"). App. 101, T. Hussey Decl. ¶¶ 7-8. Tom Hussey and Joyce Casey were the lead Forest Service staff on the NFP IRT. Larry Larson was the BLM lead on the NFP IRT. App. 101, T. Hussey Decl. ¶ 8.

Plaintiffs' Response: Plaintiffs agree that one of the purposes of the IRT was to develop joint Forest Service and BLM interpretations of the NFP but object to the proposed finding to the extent that it purports to identify "ensuring consistent responses between agencies" as the only purpose of the IRT. As the document the proposed finding cites admits, "[T]here were many questions and issues concerning the [Northwest Forest] plan's implementation." Def. App. 101 (T. Hussey Decl. ¶ 7). One concern among IRT members and others working with the IRT was that Forest Service timber sale decision notices would be rushed to completion prior to the survey target dates (October 1, 1996 and October 1, 1998) to evade the Category 2 survey requirements. App Tab. 171 at A-1400 to -1402 (L. Larsen Dep. Tr. 30:6-32:3).

Defendant's Proposed Finding of Uncontroverted Fact No. 23 One of the issues the IRT dealt with was interpreting the transition period established by the NFP for phasing in the survey requirements, "Survey prior to ground-disturbing activities." Specifically, the IRT was asked to define the term "implemented" within the context of the NFP ROD and the accompanying Standards and Guidelines. App. 98, NFP ROD, Standards and Guidelines at C-5; App. 103, T. Hussey Decl. ¶ 13. Tom Hussey and Larry Larson decided that they needed assistance to resolve this issue, and, therefore, met with Randy Hickenbottom, Chair 3

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of the Survey and Manage Workgroup, Cheryl McAfree, a botanist, Lyndon Werner, a BLM timber sale specialist, and Nancy Anderson, another BLM employee, several times. App. 104, T. Hussey Decl. ¶ 14. This group looked at three possible ways to define "implementation" in the context of the NFP ROD. Implementation could mean: (1) when there is physical activity on the ground; (2) when an agency signs a contract; or (3) when the NEPA decision is signed. App. 104, T. Hussey Decl. ¶.

Plaintiffs' Response: Plaintiffs object to the first sentence because the documents cited do not support a finding that the NFP provided for a "transition period" for phasing in the survey requirements. Plaintiffs agree to the second and third sentences. Plaintiffs object to the last sentence because it suggests that the interpretation "when the NEPA decision is signed" could be within the meaning intended by the NFP ROD, and this purported fact was specifically rejected by the district court in ONRC Action. Plaintiffs' Proposed Finding of Fact ("PPFUF") ¶ 210. Plaintiffs agree that those three interpretations were generally considered by the IRT in conjunction but together with several other interpretations that would allow Category 2 surveys to be performed at various times such as interpreting "implementation" as when a timber sale contract is awarded. See, e.g., PPFUF ¶¶ 37, 41, 44, 46.

Defendant's Proposed Finding of Uncontroverted Fact No. 24 The IRT decided that a project is implemented when the NEPA decision is signed. The group adopted this definition because it made more sense for the responsible official to have the survey information before he or she signed off on a project's NEPA decision. Any other 4

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definition of "implement" would create a situation where surveys could require changes in the NEPA decision documents after those documents were signed or after contract award, which would lead to additional costs and possible contract modification or termination. App. 105, T. Hussey Decl. ¶ 20.

Plaintiffs' Response: Plaintiffs agree to the first sentence. Plaintiffs object to the second and third sentences because they characterize the IRT's rationale for adopting the definition as a fact when the rationale stated was only opinion. Further, plaintiffs object to the implication that selecting the NEPA decision signing date as the "implementation" date necessarily required that all sales with decision notices signed before the target date be exempted from Category 2 surveys. The Forest Service could have adopted the decision notice signing date and instructed the responsible Forest Service officials to not sign the decision notice until the surveys had been completed. This approach was considered by the IRT but not adopted by the Forest Service and BLM. App. Tab 171 at A-1403 (L. Larsen Dep. Tr. 36:8-14). This approach would have avoided exempting numerous timber sales, including plaintiffs' in this action, from Category 2 surveys.

Defendant's Proposed Finding of Uncontroverted Fact No. 25 Another definition of "implement" would effectively read out the NFP's phased-in survey requirements, which the NFP intended to provide time to develop and apply the survey protocols. App. 114, R. Devlin Decl. ¶ 16.

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Plaintiffs' Response: Plaintiffs object on the grounds that the proposed finding is directly controverted by the plain language of the NFP itself (the best evidence), as found by the district court in ONRC Action. ONRC Action, 59 F. Supp. 2d 1093; PPFUF ¶ 212; see Plaintiffs' Reply Brief in Support of Plaintiffs' Motion for Partial Summary Judgment ("Pls' Reply Br.") at 53-54. Plaintiffs also object that the proposed finding is opinion and based on hearsay. Further, see plaintiffs' objection to DPFUF ¶ 24.

Defendant's Proposed Finding of Uncontroverted Fact No. 26 The IRT forwarded this recommendation to the Regional Foresters for Regions 5 and 6, and to the BLM State Directors for Oregon and California, who jointly issued a memorandum on November 1, 1996. This memorandum, commonly referred to as the "NEPA Decision Equals Implementation" memorandum, states that a project is implemented for purposes of the NFP when the NEPA decision is signed. App. 116-121.

Plaintiffs' Response: Plaintiffs object to the first sentence because it is ambiguous as to what "this recommendation" refers to. Plaintiffs agree that on November 1, 1996 the Regional Foresters for Regions 5 and 6 of the FS and the BLM State Directors for Oregon and California issued the joint memorandum known as the "NEPA decision equals implementation" memorandum. This memorandum states that under the NFP, ground disturbing activities are "implemented" when the NEPA decision for the ground disturbing activity is signed. When a project is implemented is not the same as when ground-disturbing activities are implemented. 6

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Defendant's Proposed Finding of Uncontroverted Fact No. 27 The Forest Ecosystem Management Assessment Team ("FEMAT") assembled after President Clinton's April 1993 "Forest Conference" in Portland, Oregon. The FEMAT, a group made up of scientists and technical experts from the Forest Service, BLM, Environmental Protection Agency, Fish & Wildlife Service, National Marine Fisheries Services, and several universities, was charged with preparing an assessment based upon an ecosystem approach to forest management. App. 122, J. Hickenbottom Decl. ¶ 2.

Plaintiffs' Response: Plaintiffs object to this finding as irrelevant. The NFP requires the Forest Service and BLM to survey for certain species by certain dates prior to the implementation of ground disturbing activities. How or why the survey requirements of the NFP were created is not relevant to whether those requirements were clear and whether the Forest Service was reasonable in awarding plaintiffs' timber sales without conducting the required surveys. Plaintiffs also object to the final sentence as based on hearsay; Mr. Hickenbottom was not a member of FEMAT and therefore there is no foundation that he has personal knowledge of what the FEMAT was "charged" with doing.

Defendant's Proposed Finding of Uncontroverted Fact No. 28 The FEMAT analyzed ten different options that encompassed mixtures of LateSuccessional Reserves ("LSRs"), Riparian Reserves ("RRs"), and prescriptions for forest management both inside and outside of the reserves. The vast majority of management activities would occur in Matrix lands, those lands outside of the LSRs and RRs. For each of the ten 7

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options, the FEMAT "evaluated the likelihood of maintaining well-distributed habitat conditions on the federal lands for threatened marbled murrelets and northern spotted owls." Furthermore, assessments were done for over 1,000 plant and animal species that were "thought to be closely associated with late-successional forests." For these 1,000 species, the FEMAT suggested that if the species had an 80 percent or greater likelihood of stabilizing, well-distributed across federal lands, that was the point at which a species' viability could be assured. Significantly, the FEMAT noted that "species with scores lower than 80 percent should not automatically be regarded as unviable." The FEMAT put together a report commonly known as the FEMAT Report. App. 123-124, J. Hickenbottom Decl. ¶ 3.

Plaintiffs' Response: Plaintiffs object to this finding as irrelevant. The NFP requires the Forest Service and BLM to survey for certain species by certain dates prior to the implementation of ground disturbing activities. How or why the survey requirements of the NFP were created is not relevant to whether those requirements were clear and whether the Forest Service was reasonable in awarding plaintiffs' timber sales without conducting the required surveys. Additionally, plaintiffs object to the proposed finding because it is based on hearsay. The proposed finding cites Mr. Hickenbottom's declaration as its only support; Mr. Hickenbottom was not on the FEMAT and has no personal knowledge of what the FEMAT considered or concluded. If Mr. Hickenbottom is purporting to state the contents of the FEMAT report referenced in the final sentence of the proposed finding, then plaintiffs further object on the grounds that the FEMAT report is the best evidence of its contents and defendant has not included that report in its appendices. 8

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Defendant's Proposed Finding of Uncontroverted Fact No. 29 A team from the Forest Service and BLM used the FEMAT Report to prepare a draft Supplemental Environmental Impact Assessment ("SEIS"), identifying FEMAT's ten different alternatives as options. The team decided upon Alternative 9, and prepared the draft SEIS, which was sent out for public comment. After receiving public comment, additional analysis was conducted on many of the 1,000 species; this additional analysis was included as an appendix to the final SEIS, and is commonly referred to as "Appendix J2" or "Additional Species Analysis." The Additional Species Analysis "identified species to be surveyed and a prescribed management of the species' habitat to increase the likelihood that the species' populations would stabilize, well distributed across federal lands." App. 124, J. Hickenbottom Decl. ¶ 4.

Plaintiffs' Response: Plaintiffs object to this finding as irrelevant. The NFP requires the Forest Service and BLM to survey for certain species by certain dates prior to the implementation of ground disturbing activities. How or why the survey requirements of the NFP were created is not relevant to whether those requirements were clear and whether the Forest Service was reasonable in awarding plaintiffs' timber sales without conducting the required surveys. Appendix J2 is the best evidence of its content. Mr. Hickenbottom's declaration is hearsay. There is no foundation for his claimed personal knowledge of what the "team" did or was charged with doing.

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Defendant's Proposed Finding of Uncontroverted Fact No. 30: The red tree vole was identified in the Additional Species Analysis. App. 126, J. Hickenbottom Decl. ¶ 12. However, research in the FEMAT Report and the Additional Species Analysis demonstrates that the red tree vole was "thought to be in less dire circumstances." The FEMAT Report determined that Alternative 9 resulted in a 73 percent likelihood of achieving habitat sufficient to allow the red tree vole to stabilize across federal lands; had the red tree vole received a 7 percent higher likelihood rating in the FEMAT Report, it would not have been included in the Additional Species Analysis. App. 127, J. Hickenbottom Decl. ¶ 13.

Plaintiffs' Response: Plaintiffs object to this finding as irrelevant. The NFP requires the Forest Service and BLM to survey for certain species by certain dates prior to the implementation of ground disturbing activities. How or why the survey requirements of the NFP were created is not relevant to whether those requirements were clear and whether the Forest Service was reasonable in awarding plaintiffs' timber sales without conducting the required surveys. Plaintiffs object to the second sentence as opinion and based on hearsay. There is no foundation for Mr. Hickenbottom's claimed personal knowledge. Plaintiffs also object that the proposed finding characterizes the contents, research, and determinations found in the FEMAT Report and the referenced "Species Analysis." The FEMAT Report and the "Species Analysis" are the best evidence of their contents.

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Defendant's Proposed Finding of Uncontroverted Fact No. 31 The final SEIS Species Analysis Team's Mammal Subgroup determined that it was unnecessary to protect every red tree vole site; therefore, the red tree vole was not included in the Category 1 Survey and Manage species. The subgroup further decided that the red tree vole sites should be assessed in relation to their value in adding to connectivity between LSRs and RRs, many of which were not ecologically functional because of past management practices. The group decided that it was important to prevent isolation of major portions of the red tree vole population. Therefore, they determined that the red tree vole should be included in the Component 2 Survey and Manage species by managing the red tree vole population in the lands between LSRs. App. 127-128, J. Hickenbottom Decl. ¶ 14.

Plaintiffs' Response: Plaintiffs object to the first sentence in that it is ambiguous as to when the Subgroup made its alleged determination. Plaintiffs object to the entire proposed finding as irrelevant. The NFP requires the Forest Service and BLM to survey for certain species by certain dates prior to the implementation of ground disturbing activities. How or why the survey requirements of the NFP were created is not relevant to whether those requirements were clear and whether the Forest Service was reasonable in awarding plaintiffs' timber sales without conducting the required surveys. Plaintiffs also object that the proposed fining is based on hearsay; defendant has put forth nothing to show that Mr. Hickenbottom was on the final SEIS Species Analysis Team's Mammal Subgroup or had personal knowledge of what was discussed and determined. To the extent Mr. Hickenbottom purports to describe the contents of the final SEIS, then plaintiffs further object on the grounds that the final SEIS is the best evidence of its contents. 11

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Defendant's Proposed Finding of Uncontroverted Fact No. 32 The Survey and Manage Workgroup developed interim guidance for the Forest Service and BLM to implement the Component 2 Survey and Manage requirement for the red tree vole. Id. The group determined that, because of concerns related to ensuring connectivity between LSRs, "those requirements should be designed to maximize the efficiency and efficacy in increasing the likelihood of providing for a well-distributed red tree vole population." The group solicited input from the FEMAT scientists, the Additional Species Analysis Team, and the final SEIS team, and, based upon that input, the group developed the recommendations that were ultimately adopted in the November 4, 1996 memorandum entitled "Interim Guidance for Survey and Manage Component 2 Species: Red Tree Vole," informally known as the Red Tree Vole Memorandum. App. 128, J. Hickenbottom Decl. ¶ 15.

Plaintiffs' Response: Plaintiffs agree.

Defendant's Proposed Finding of Uncontroverted Fact No. 33 The threat to the red tree vole's continued viability was minimal. App. 130, J. Hickenbottom Decl. ¶ 18, App. 132. Rather, the concern with the red tree vole related to past forest management practices that fragmented the LSRs and resulted in the creation of young, even-aged forests. Therefore, the focus of the red tree vole mitigation measure was to improve LSR connectivity, rather than managing known sites that may be isolated due to a lack of LSR connectivity. App. 129, J. Hickenbottom Decl. ¶ 17. For example, the group decided that if a stand of trees containing a red tree vole population was surrounded principally by older forests, 12

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that stand of trees would add little to the connectivity already provided by the older forests. On the other hand, a stand containing red tree voles in an area with almost no older forest or suitable habitat would have a much higher value in maintaining connectivity between LSRs. Finally, if a stand of trees containing red tree voles was located in an area isolated from federally managed lands, and, therefore, LSRs, that stand could not contribute to improving the species' viability. App. 130, J. Hickenbottom Decl. ¶ 18.

Plaintiffs' Response: Plaintiffs object to the first sentence of the finding because it is lay opinion and/or based upon an expert opinion without any supporting evidence. Mr. Hickenbottom, whose deposition the sentence cites as its only support, has not been qualified as an expert. Plaintiffs object to the second sentence because it discusses "concern[s]" with the RTV, but does not state whose concerns they were or offer evidence supporting the existence and nature of the concerns. Plaintiffs object to the proposed finding as a whole because it references no documentary support, and it is speculative hearsay as to what an undefined "group" thought or concluded. The written reports or findings of the "group" are the best evidence. All else is speculation.

Defendant's Proposed Finding of Uncontroverted Fact No. 34 According to the Red Tree Vole Memorandum, before conducting surveys, geographic information system ("GIS") information was to be used to analyze federal lands to screen the lands based upon their value in increasing LSR connectivity. The first screen would determine how much land was federally managed, and, if the watershed contained less than 10 percent federal lands, survey and manage was not required for those areas. The group decided not to 13

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survey in areas with less than 10 percent federal lands because, due to the small portion of federal lands, those areas could not contribute to the goal of LSR connectivity. The second screen would determine whether "at least 40 percent of the federal lands in the watershed was forested with at least 60 percent crown closure, an average conifer tree diameter at breast height of at least 10 inches, and whether that closure and diameter could be maintained through the year 2000." If federal lands met the requirements outlined in the second screen, then there was no need to survey and manage for the red tree vole because the habitat already provided adequate LSR connectivity. App. 128-129, J. Hickenbottom Decl. ¶ 16.

Plaintiffs' Response: Plaintiffs object on the grounds that the proposed finding relies on hearsay contained in the declaration of Mr. Hickenbottom and purports to describe and paraphrase the contents of the RTV Directive. The RTV Directive is the best evidence of its contents.

Defendant's Proposed Finding of Uncontroverted Fact No. 35 Ms. Lois Schiffer, Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division ("ENRD") at the time of the ONRC Action litigation, did not have any recollection regarding the statement "NEPA decision equals implementation is nonsense." App. 137-139, L. Schiffer Depo. Tr. at 7:14-7:18, 52:3-52:15.

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Plaintiffs' Response: Plaintiffs agree to the extent that this proposed finding states only that Ms. Schiffer has no recollection whether she did or did not make the statement "NEPA decision equals implementation is nonsense" or words to that effect.

Defendant's Proposed Finding of Uncontroverted Fact No. 36 Mr. Edward Boling, lead counsel for the ONRC Action litigation, and Mr. Peter Coppelman, the Deputy Assistant Attorney General at ENRD, do not recall any conversation where Ms. Schiffer allegedly said "NEPA decision equals implementation is nonsense." App. 140-145, E. Boling Depo. Tr. at 8:7-8:10, 91:15-92:11; App. 146.

Plaintiffs' Response: Plaintiffs agree to the extent that this proposed finding states only that Mr. Boling and Mr. Coppelman have no recollection of whether Ms. Schiffer did or did not make the statement "NEPA decision equals implementation is nonsense" or words to that effect.

Defendant's Proposed Finding of Uncontroverted Fact No. 37 The Forest Service must consider the competing interests of the environment and the timber industry, a fact that President Clinton recognized during the Forest Conference on April 2, 1993: "How can we achieve a balanced and comprehensive policy that recognizes the importance of the forest and timber to the economy and jobs in this region, and how can we preserve our precious old-growth forests, which are part of our national heritage and that, once destroyed, can never be replaced?" App. 150. 15

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Plaintiffs' Response: Plaintiffs object to this proposed finding as a hearsay characterization of what President Clinton said and hearsay commentary on that alleged statement. In addition, even if accurate, President Clinton's statement is itself speculative hearsay and irrelevant legal opinion. Plaintiffs also object on the grounds that the proposed finding is irrelevant and without any time frame. The fact that the Forest Service must consider the interests of the timber industry (whatever that means) does not tend to show that the Forest Service was reasonable for violating the law by adopting the "NEPA decision equals implemented" interpretation and the RTV Directive.

Defendant's Proposed Finding of Uncontroverted Fact No. 38 The Forest Service must meet congressionally-mandated timber-harvest levels. App. 109, R. Devlin Decl. ¶ 4.

Plaintiffs' Response: Plaintiffs object to the proposed finding as hearsay and lay legal opinion. If Mr. Devlin's declaration, which the proposed finding cites as its only support, is based on Mr. Devlin's opinion as to what a United States statute requires, then it is for the Court and not Mr. Devlin to interpret the meaning and effect of any such law. Plaintiffs also object to the proposed finding because it is directly controverted by other statements in Mr. Devlin's declaration which clearly indicate that to the extent there is any congressional mandate on this subject it is limited to the "volume of timber to be offered for sale." For example, paragraph 3 of the Devlin declaration states, "Annually, the Region 6 Regional Forester compiled data projecting the amount of timber that the region and its national forest could offer for sale. This information would be combined 16

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with data from the other eight regions of the Forest Service and used to develop the entire agency's out-year budget proposal to the President. . . . Congress would further review and modify the President's proposal and would eventually approve and budget, for the entire Forest Service, a very specific volume of timber to be offered for sale and later harvested." Timber sales, such as Happy Thin, Jack Heli and Too Wild permit harvesting over multiple years. App. Tabs 93, 11, 124. There is no requirement in the law or in the contracts that requires any specific level of timber harvest on these sales in any of the years within which the purchaser may cut and remove the timber. Mr. Devlin's hearsay account of how the Forest Service budget is prepared and what the Congress and the President do with that budget without any reference to any statutes, regulations or even official Forest Service policy in writing constitutes multiple levels of hearsay and lay legal opinion. The best evidence of any such legal requirement would obviously be the statutes or regulations setting forth the alleged obligation of the Forest Service. Further, although Mr. Devlin's declaration may accurately reflect some political pressure perceived by Mr. Devlin and others in the Forest Service to maintain certain levels of timber sale offerings within each fiscal year, there is no basis even cited by Mr. Devlin for concluding that the Forest Service is required to achieve these levels even if it means violating the clear directions in the President's NFP. Mr. Devlin's declaration does, however, clearly indicate his belief that the Forest Service's mission was to offer a certain volume of timber for sale in order to satisfy political pressure from Congress.

Defendant's Proposed Finding of Uncontroverted Fact No. 39 The National Forest Products Association ("NFPA") acknowledged that the 2400-6 standard timber sale contract was developed in 1970 with "extended discussions between 17

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NFPA's Federal Timber Purchaser's Committee and the Forest Service." App. 162-163, R. Fitzgerald Decl. ¶ 3, Ex. 18 (App. 255-257).

Plaintiffs' Response: Plaintiffs object to this finding as based on multiple levels of irrelevant hearsay. The alleged discussions between the Forest Service and NFPA concerned the 1970 version of the standard timber sale contract. This version was subsequently revised in 1973, and it is the 1973 version that is included as part of plaintiffs' contracts. Def. App. 163 (R. Fitzgerald Decl. ¶ 4). Accordingly, the hearsay statements regarding the 1970 contract are irrelevant to the contracts currently before the Court. Defendant has established no nexus between the events at issue in this action occurring in 1998 and 1999 or the plaintiffs in this action and the excerpt from the 1974 "Buyer's Guide" on which the proposed finding relies (Def. App. 255-257). Activities which transpired 25 or more years prior to the award of plaintiffs' sales relating generally to a trade association's interaction with the Forest Service bear no meaningful relationship to the issues in this case and are not attributable to the plaintiffs in this case. Mr. Fitzgerald's declaration does not establish that he has personal knowledge of any or all of the alleged communications which he broadly claims took place between representatives of the Forest Service and the National Forest Products Association, including any so-called "extended discussions." Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in discussions with the timber industry about standard timber sale contract provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Mr. Fitzgerald's attempt to narrate 18

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his subjective impression of decades of alleged activities involving Forest Service representatives and timber industry groups is too remote, speculative and contains to much impermissible lay opinion to be admissible as evidence on the parties' cross-motions on summary judgment.

Defendant's Proposed Finding of Uncontroverted Fact No. 40 The Forest Service, NFPA, other timber industry groups, and individual members of the timber industry, communicated throughout 1971 and 1972 regarding possible revisions to the standard timber sale contract. App. 162-163, R. Fitzgerald Decl. ¶ 3, Exs. 1-5 (App. 169-183). After these communications, the standard timber sale contracts were revised in September 1973. App. 163, R. Fitzgerald Decl. ¶ 4, Ex. 18 (App. 255-257).

Plaintiffs' Response: Plaintiffs object to this finding to the extent that it relies solely upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of the Forest Service communications with the NFPA and other timber industry groups in developing the standard timber sale contract. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this finding because the declaration and documents it relies upon are inadmissible hearsay on two or more levels. 19

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Plaintiffs also object on the grounds that this finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language, defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case.

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Defendant's Proposed Finding of Uncontroverted Fact No. 41 The standard timber sale contracts contained terms that were favorable to the timber industry, including allowing the purchasers to operate their sales with little Forest Service oversight, and the contract did not contain a clause that would allow the Forest Service to terminate the contract for its own convenience, or a liquidated damages provision. App. 163, R. Fitzgerald Decl. ¶ 5. These terms remained unchanged for about two decades. App. 164, R. Fitzgerald Decl. ¶ 6.

Plaintiffs' Response: Plaintiffs object to Mr. Fitzgerald's hearsay speculation and personal opinion that the terms of the standard timber sale contract were necessarily "favorable" for any purpose to any party. Plaintiffs also object to Mr. Fitzgerald's declaration as speculation, personal opinion and hearsay regarding his unsupported claims that purchasers operated their sales under the standard timber sale contract with "little" Forest Service oversight. To the extent that the declaration suggests that there is little Forest Service oversight of the contracts at issue, the Happy Thin, Jack Heli and Too Wild timber sale contracts are filled with a combined 347 pages of detailed specifications which must be followed by the purchaser and which require consistent Forest Service oversight of purchaser's operations on the sale areas. App. Tabs 93, 111, 126. These contracts are the best evidence of their contents and Mr. Fitzgerald's hearsay characterizations and speculative lay opinions of them are inadmissible. Finally, plaintiffs object to this proposed finding as irrelevant to whether plaintiffs' timber sale contracts were contracts of adhesion.

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Defendant's Proposed Finding of Uncontroverted Fact No. 42 The Forest Service has continued, over the past thirty years, to meet with and seek comment from the timber industry concerning revisions to the timber sale contract. App. 164, R. Fitzgerald Decl. ¶ 7, Exs. 6-17 (App. 184-254).

Plaintiffs' Response: Plaintiffs object to this finding to the extent that it relies solely upon the declaration of Mr. Fitzgerald and not the 70 pages of excerpts and documents attached as exhibits to his declaration. Defendant has not established that Mr. Fitzgerald has personal knowledge of the Forest Service communications with the NFPA and other timber industry groups in allegedly developing a standard timber sale contract. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he had no role in drafting timber sale contract provisions or involved in any discussions with the timber industry about standard timber sale provisions before 1999. Ex. A (R. Fitzgerald Dep. Tr. 34:19-36:15). Moreover, plaintiffs object to this finding because the declaration and documents it relies upon are inadmissible hearsay on two or more levels. Plaintiffs also object on the grounds that this entire finding is totally irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted 22

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evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case. Finally, plaintiffs object to the findings' reliance upon the correspondence found at Def. App. 237-254 because these documents were all purportedly written in either 2000 or 2001. Clause C(T)6.01 in each of plaintiffs' contracts was promulgated in October 1996 (as indicated in the formal title of the clause ­ "C(T)6.01 ­ Interruption or Delay of Operations. (10/96)") and therefore any purported "timber industry" comments, alleged negotiations or interaction regarding clause C(T)6.01 after October 1996 are irrelevant. In the alternative, at a minimum, any evidence of such activities occurring after July 6, 1999, the award date of Happy Thin, the last of plaintiffs' contracts to be awarded, is irrelevant to the issues in this case.

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Defendant's Proposed Finding of Uncontroverted Fact No. 43 When the Forest Service, in the late 1980s and early 1990s, decided to revise the standard timber sale contract to reflect changes in environmental laws, court decisions interpreting environmental laws, and to protect the Forest Service's financial interests, the Forest Service sought input from the timber industry. In particular, NFPA provided numerous comments on C/CT6.01. App. 164, R. Fitzgerald Decl. ¶ 8, Ex. 14 (App. 211-236).

Plaintiffs' Response: Plaintiffs object to the vague and general nature of the proposed finding. Specifically, the proposed finding speaks to some unspecified alleged FS decision "in the late 1980s and early 1990s," a period spanning a decade, without any further identification of the date of that socalled decision or who in the Forest Service made this so-called decision. Additionally, the proposed finding vaguely references so-called "input from the timber industry," and other than its mention of the NFPA, does not further describe which other groups or companies the FS sought input from or when such solicitations were made. Plaintiffs also object to this finding to the extent that it relies solely upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of the Forest Service communications with the NFPA and other timber industry groups that he references. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this 24

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finding because the declaration and the documents it relies upon are inadmissible hearsay on two or more levels. Plaintiffs also object on the grounds that this entire finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case.

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Defendant's Proposed Finding of Uncontroverted Fact No. 44 The C/CT6.01 language from the June 1990 timber sale contracts, which the NFPA commented on, is similar to the C/CT6.01 language in the plaintiffs' timber sale contracts. The 1990 version of C.CT6.01 permitted interruption or delay of operations upon the written request of the Contracting Officer "[t]o comply with a court order, regardless of whether this sale is named in such an order, upon determination of the Contracting Officer, in his/her sole discretion, that the order would be applicable to the conditions existing on this sale . . . ." App. 165, R. Fitzgerald Decl. ¶ 11, Exs. 13-14 (App. 206-236). The plaintiffs' timber sale contracts provide for the interruption or delay of operations upon the written request of the Contracting Officer "to comply with a court order, issued by a court of competent jurisdiction." App. 165, R. Fitzgerald Decl. ¶ 10.

Plaintiffs' Response: Plaintiffs object because the first sentence of this proposed finding offers a lay legal opinion regarding the terms of the C/CT6.01 clauses. Whatever clauses are referenced speak for themselves and are the best evidence of their contents. Plaintiffs further object to the entire finding to the extent that it relies solely upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of the alleged Forest Service communications with the NFPA and other timber industry groups be referenced. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale 26

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provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this finding because the declaration and documents it relies upon are inadmissible hearsay on two or more levels. Plaintiffs also object on the grounds that this entire finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case. 27

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Defendant's Proposed Finding of Uncontroverted Fact No. 45 The NFPA commented specifically on C/CT6.01 in a letter dated December 4, 1989, in which NFPA stated its belief that the Forest Service had "sufficient authority to interrupt operations under B9.3 - BREACH when used in conjunction with other existing environmental protection provisions" and stated that section (a) of C/CT6.01 "should be dropped." App. 164165, R. Fitzgerald Decl. ¶ 9, Ex. 14 (App. 211-236). In another letter, NFPA wrote: We also appreciate the opportunity we had to discuss the proposed liability provisions with you and your staff in Scottsdale. We also recognize the effort your staff put forth to: (1) address some of our concerns in the revised proposal; and (2) respond to our concerns as quickly as they did. App. 166, R. Fitzgerald Decl. ¶ 13, Ex. 14 (App. 211-236).

Plaintiffs' Response: Plaintiffs object to the extent that this finding solely relies upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of the Forest Service communications with the NFPA and other timber industry groups which he references. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this finding because the declaration and documents it relies upon are inadmissible hearsay on two or more levels. Additionally, the proposed finding 28

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purports to describe the contents of a letter from NFPA; plaintiffs object on the grounds that the letter is the best evidence of its contents. Plaintiffs also object on the grounds that this entire finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case.

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Defendant's Proposed Finding of Uncontroverted Fact No. 46 Another letter from NFPA, dated May 1990, NFPA acknowledged that the Forest Service made efforts to modify C/CT6.01 in response to NFPA's concerns, and acknowledged that the Forest Service provided it an opportunity to comment on and negotiate the terms of the contracts. App. 164-165, R. Fitzgerald Decl. ¶ 9, Ex. 14 (App. 211-236). The NFPA further expressed its appreciation for the opportunity to discuss proposed contract provision C/CT6.01, and other provisions addressing modification, termination, and compensation in the timber sale contracts. App. 166, R. Fitzgerald Decl. ¶ 13, Ex. 14 (App. 211-236).

Plaintiffs' Response: Plaintiffs object to the proposed findings' assertion that the FS provided NFP with an opportunity to "negotiate" the terms of a contract as unsupported by the declaration and documents cited. Plaintiffs object to the entire finding to the extent that it solely relies upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of the Forest Service communications with the NFPA and other timber industry groups he references. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:1135:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this finding because the declaration and documents it relies upon are inadmissible hearsay on two or more levels. Additionally, the proposed finding purports to describe the contents of a letter, if relevant, from NFPA; plaintiffs 30

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object on the grounds that the letter is the best evidence of its contents. Plaintiffs also object on the grounds that this entire finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any socalled negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case.

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Defendant's Proposed Finding of Uncontroverted Fact No. 47 The Forest Service still communicates with the timber industry regarding these standard timber sale contracts. The Forest Service met with members of the NFPA Federal Timber Purchaser's Committee ("FPTC") and its counsel, Alan Saltman, to consider revisions to the latest version of the standard timber sale contracts. App. 166-167, R. Fitzgerald Decl. ¶ 14.

Plaintiffs' Response: Plaintiffs object to this finding as totally irrelevant because the proposed finding concerns events that occurred long after the award of plaintiffs' contracts. Clause C(T)6.01 in each of plaintiffs' contracts was promulgated in October 1996 (as indicated in the formal title of the clause ­ "C(T)6.01 ­ Interruption or Delay of Operations. (10/96)") and therefore any purported "timber industry" comments, alleged negotiations or interaction regarding clause C(T)6.01 after October 1996 are irrelevant. In the alternative, at a minimum, any evidence of such activities occurring after July 6, 1999, the award date of Happy Thin, the last of plaintiffs' contracts to be awarded, is irrelevant to the issues in this case.

Defendant's Proposed Finding of Uncontroverted Fact No. 48 Over the past thirty years, and within the bounds of laws governing the formulation of regulation and policy, the Forest Service has engaged in discussions with members of the timber industry about the standard timber sale contracts and issues affecting the timber industry. App. 167-168, R. Fitzgerald Decl. ¶ 17.

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Plaintiffs' Response: Plaintiffs object that the proposed finding is hearsay speculation, lay legal opinion and is unsupported by the document cited. Plaintiffs object to this finding to the extent that it relies solely upon the declaration of Mr. Fitzgerald and not the exhibits attached to his declaration because defendant has not established that Mr. Fitzgerald has personal knowledge of 30 years worth of the Forest Service's communications with the NFPA and other timber industry groups as referenced by him. Indeed, at his subsequent deposition, Mr. Fitzgerald admitted that he was not involved in the drafting of the version of the timber sale contract used for plaintiffs' sales. Ex. A (R. Fitzgerald Dep. Tr. 34:11-35:7). Mr. Fitzgerald also admitted that he was not involved in any discussions with the timber industry about standard timber sale provisions before plaintiffs' contracts were awarded in 1999. Id. (36:9-37:8). Moreover, plaintiffs object to this finding because it the declaration and documents it relies upon are inadmissible hearsay on two or more levels and the authenticity of the documents has not been established. Plaintiffs also object on the grounds that this entire finding is irrelevant. Although defendant references involvement by the "timber industry" including alleged "negotiations with the timber industry" regarding the drafting of Forest Service timber sale contract language defendant offers no evidence that Blue Lake, Timber Products or CLR authorized any "timber industry" groups to represent them in submitting comments on Forest Service proposed contract language, much less engage in any so-called negotiations. Without proof of any such agency relationship, there is absolutely no connection between the plaintiffs in this case and a generalized and undefined "timber industry." In addition, even if defendant had submitted evidence that plaintiffs were members of a timber industry association or group which submitted comments on Forest Service proposed standard contract language, including clause C(T)6.01, during a relevant time period 33

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such activities would not constitute contract negotiations. A timber industry group's submitting comments and engaging in discussions with agency personnel regarding Forest Service proposals for standard contract language is no different than various industry groups or individual companies submitting comments to the FAR Council about proposed changes in standard federal procurement contract language. In such instances there is no offer and acceptance or consideration, and obviously no contract being negotiated. Plaintiffs' timber sale contracts are not negotiated contracts, and defendant cannot transform them into negotiated contracts by offering discursive evidence or comments submitted by "timber industry" groups on various Forest Service proposals regarding its standard contract language over the years. Such evidence is simply not relevant to the issues in this case. Finally, plaintiffs object to the findings' reliance upon the correspondence found at Def. App. 237-254 because they all were purportedly written in either 2000 or 2001, after the execution and suspension of plaintiffs' contracts. Clause C(T)6.01 in each of plaintiffs' contracts was promulgated in October 1996 (as indicated in the formal title of the clause ­ "C(T)6.01 ­ Interruption or Delay of Operations. (10/96)") and therefore any purported "timber industry" comments, alleged negotiations or interaction regarding clause C(T)6.01 after October 1996 are irrelevant. In the alternative, at a minimum, any evidence of such activities occurring after July 6, 1999, the award date of Happy Thin, the last of plaintiffs' contracts to be awarded, is irrelevant to the issues in this case.

Defendant's Proposed Finding of Uncontroverted Fact No. 49 These timber sale contracts include a clause that permits deviation by requiring purchasers to submit their own plans of operation prior to commencing work each season. App. 268, 273. 34

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Plaintiffs' Response: Plaintiffs object on the grounds that the documents cited in the proposed finding do not support the finding. The contract clause cited, C6.3(#), expressly states that all plans of operation and any revisions thereto must be approved in writing by the Forest Service prior to the commencement of operations on the timber sale. Nothing in clause C6.3(#) allows the purchaser to unilaterally modify or deviate from the specifications or other terms in the contract.

Defendant's Proposed Finding of Uncontroverted Fact No. 50 Other clauses in the timber sale contracts contain "objectives" and "methods" for harvesting timber. For example, the Too Wild contract contains C6.41# - Special Felling Objectives, which states: "felling objectives shall be accomplished by the type of felling methods or equipment listed herein. Methods or equipment other than those specified may be approved." App. 274. The Too Wild contract also contains C6.42# - Special Yarding/Skidding Methods, allows for the use of "[m]ethods or equipment other than those specified . . . ." App. 275. The Jack Heli contract, in clause C6.411# - Directional Felling, provides that: "[D]irectional felling shall not be required when in the faller's judgment it is unsafe to do so, and the tree shall be left standing." App. 269. The Jack Heli contract also includes clause C5.411 - Dust Abatement for Temporary Roads, which states: "Purchaser may choose the material used in dust abatement." App. 270. The Happy Thin contract includes the Directional Felling clause, and clause CT5.414 - Snow Removal, which states: "[i]f Purchaser removes snow from roads, such work shall be done in a manner that will protect roads and adjacent resources. App. 350-351.

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Plaintiffs' Response: Plaintiffs agree that the quoted language in the finding is found in the respective Happy Thin, Jack Heli, and Too Wild timber sale contracts as awarded. However, these contracts are the best evidence of their contents, speak for themselves, and should be read in context and in their entirety.

Plaintiffs object to the proposed finding's intentional omission of other language in the clauses quoted, which ought in fairness be considered with it:

·

Clause C6.41# quoted in the proposed finding also states that the provision is

made "[n]otwithstanding BT 6.41, BT6.411, BT6.5, and BT 6.61," all of which are provisions further specifying how the purchaser is to perform the contract.

·

Clause C6.42#, although it allows use of other methods than the ones specified in

the contract, explicitly states that such other use is subject to Forest Service approval: "Methods other than those specified may be approved" (emphasis added).

·

Clause C6.411#, while providing that directional felling is not required when

unsafe and then providing alternative specifications as to what the purchaser is to do with the tree that cannot be directionally felled, also specifies that written permission of the Forest Service is required in all other circumstances where directional felling cannot be accomplished: "Unless otherwise agreed to in writing, trees which cannot normally be felled away from other ownership, wilderness boundary, controlled area, survey monument, ditch, trail, Pacific Crest 36

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Trail, pipeline, and streamcourse shown on the Sale Area Map