Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 1 of 146

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) __________________________________________ ) TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) BLUE LAKE FOREST PRODUCTS, INC., __________________________________________ ) CLR TIMBER HOLDINGS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

No. 01-570C (Judge Williams)

No. 01-627C (Judge Williams)

No. 04-501C (Judge Williams)

DEFENDANT'S RESPONSE AND OBJECTIONS TO PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 2 of 146

1.

The process by which a timber sale comes into being starts with initial planning and the preparation of a preliminary document, the timber sale project plan, in which the feasibility of proceeding with the project, which may contain more than one sales, is verified. App. Tab 8 (United States Forest Service ("Forest

Service") Manual ("FSM") § 2432.1, 2432.11 (amend. 95-3, eff. Apr. 28, 1995)). Defendant's Response: Defendant objects characterization of the FSM because the

document speaks for itself. Defendant denies that the FSM has the force and effect of law or regulation. Furthermore, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are neither material nor relevant to plaintiffs' claims for breach of contract. 2. The timber sale project plan must present appropriate data needed by the responsible Forest Service official to determine whether to proceed with the environmental analysis and project design. App. Tab 8 (FSM § 2432.13 (amend. no. 95-3, eff. Apr. 28, 1995)). Defendant's Response Defendant objects to plaintiffs' characterization of the FSM

because the document speaks for itself. Defendant denies that the FSM has the force and effect of law or regulation. Furthermore, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are neither material nor relevant to plaintiffs' claims for breach of contract. 3. After completion of the timber sale project plan, the Forest Service conducts "an intensive field investigation within and adjacent to the proposed project area." App. Tab 8 (FSM § 2432.2 (amend. 95-3, eff. Apr. 28, 1995)). As part of this step,

2

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 3 of 146

the Forest Service si to perform its statutory obligations under the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"): comlete the appropriate environmental analysis (typically either an Environmental Impact Statement ("EIS") or an Environmental Assessment ("EA")), prepare alternative actions (including a no-action alternative), decide which alternative to select and document the decision in a Decision Notice with a Finding of No Significant Impace or a Record of Decision. App. Tab 8 (FSM § 2432.22g (amend. 95-3, eff. Apr. 28, 1995)). Defendant's Response: Defendant objects to plaintiffs' characterization of the FSM

because the document speaks for itself. Defendant denies that the FSM has the force and effect of law or regulation. Furthermore, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are neither material nor relevant to plaintiffs' claims for breach of contract. 4. The FSM makes it clear that it is the Forest Supervisor's duty to ensure that sale planners consider the environmental effects both in the environmental and sale preparation process. App. Tab 8 (FSM § 2432.04b (amend. 95-3, eff. Apr. 28, 1995)). Defendant's Response: Defendant objects to this contention because it is plaintiffs'

opinion, not a statement of fact. Additionally, plaintiffs' characterization of the FSM because the document speaks for itself. Defendant denies that the FSM has the force and effect of law or regulation. Furthermore, the documents cited concern the Forest Service's actions and

3

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 4 of 146

responsibilities prior to the award of these timber sale contracts, and, therefore, are neither material nor relevant to plaintiffs' claims for breach of contract. 5. Throughout the 1990s, including all time periods pertinent to the ONRC Action lawsuit filed in July 1998, the Forest Service had a regular practice of completing the environmental analysis and issuing the final NEPA decision document required for a timber sale months or even years before that timber sale would be offered to the public and involve any ground-disturbing activities. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 34:23-35:8; 58:14-61:3; 121:11-122:14). Defendant's Response: Defendant objects to this contention because it is not

supported by the testimony cited. Mr. Devlin testified that completing the environmental analysis for a timber sale in advance of that sale's being offered to the public was "not a common practice as much as it is a given just because of the time of preparing projects." R. Devlin Dep. Tr. 35:7-8. Additionally, this contention contains plaintiff's legal conclusion concerning what constitutes "ground-disturbing" activities, which is not a contention of fact, and was not the subject of Mr. Devlin's testimony. Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are neither material nor relevant to plaintiffs' claims for breach of contract. 6. The NEPA decision for the Happy Thin timber sale was issued on September 15, 1998. App. Tab 142. The Happy Thin timber sale contract no. 060772 ("Happy Thin") was awarded to Blue Lake Forest Products, Inc. ("Blue Lake") on July 6, 1999. App. Tabs 122, 124. The NEPA decision notice for the Jack Heli timber sale contract no. 060715 ("Jack Heli") was awarded to plaintiff Timber Products

4

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 5 of 146

Company ("Timber Products") on March 2, 1999. App. Tabs 91, 93. The NEPA decision notice for the Too Wild timber sale was issued on June 15, 1998. App. Tab 40. The Too Wild timber sale contract no. 075862 ("Too Wild") was awarded to plaintiff CLR Timber Holdings, Inc. ("CLR") on May 14, 1999. App. Tabs 110-111. Defendant's Response: 7. Defendant does not dispute these facts.

The advertisements, prospectuses, instructions to bidders and all contract terms and conditions for each of the timber sale contracts involved in this consolidated action (Happy Thin, Jack Heli and Too Wild) were drafted entirely by the Forest Service. All three contracts are contracts of adhesion, the terms and conditions of which are not negotiable. App. Tabs 93, 111, 124.

Defendant's Response:

Defendant admits that the Forest Service drafted the

advertisements, prospectuses, and instructions to bidders for each of the timber sale contracts involved in this action. Defendant objects to plaintiff's characterization of the contracts as "contracts of adhesion" because it is plaintiffs' legal conclusion, not a factual contention that the terms of the contract were not negotiable. Additionally, defendant states that the Forest Service has continually consulted with the timber industry in drafting the standard timber sale contract (designated 2400-6), and the timber industry has participated in the drafting of timber sale contracts, including the contracts at issue here. App. __ (R. Fitzgerald Declaration). 8. Happy Thin and Jack Heli were located on the Klamath National Forest in northern California within Region 5 of the National Forest System. Too Wild was located on the Siskiyou National Forest within Region 6 of the National Forest

5

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 6 of 146

System. At all times the National Forest land on which all three sales were located was the area governed by the Northwest Forest Plan ("NFP") and under the complete administration and control of the Forest Service. App. Tabs 93, 111, 124; App. Tab 1 (Record of Decision of Amendments to Forest Service and Bureau Land Management Planning Documents Within the Range of the Northern Spotted Owl ­ Standards and Guidelines for Management of Habitat for Late-Successional and Old Growth Forest Related Species Within the Range of the Northern Spotted Owl.). Defendant's Response: Defendant agrees that Happy Thin and Jack Heli are

located in the Klamath National Forest, which falls within Region 5 of the National Forest System. Defendant also agrees that Too Wild is located in the Siskiyou National Forest, which falls within Region 6 of the National Forest System. Defendant objects to plaintiffs' characterization of the forests as being under the "complete administration and control of the Forest Service" as that is plaintiffs' opinion and not a contention of fact. Additionally, plaintiffs' opinion is not supported by the documents cited. The Forest Service is charged with managing National Forests within the United States and administering timber contracts, but it does not have "complete" control over the forests which are subject to weather conditions, fires, and unpredictable natural disasters, as well as encompassing areas of private rights such as easements and contract rights. 9. By awarding Happy Thin, Jack Heli and Too Wild, the Forest Service represented that it complied with all pre-award requirements under NMFA and NEPA. App. Tabs 93, 111, 124; ¶¶ 1-8 above.

6

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 7 of 146

Defendants' Response:

Defendant objects to this contention because it is plaintiff's

legal conclusion and not a contention of fact. Defendant specifically denies that the Happy Thin, Jack Heli, and Too Wild timber sale contracts contained any express or implied warranty of compliance with any particular legal requirement. App. Tabs 93, 111, 124. 10. During the 1990s and at least through the pendency of the ONRC Action lawsuit, all Forest Service line officers on National Forests, including District Rangers and Forest Supervisors, were regularly assigned certain target volumes of timber which each National Forest was expected to sell to the public, including the forests within the NFP, such as the Umpqua National Forest and the Klamath National Forest. Regional Foresters and the Chief of the Forest Service had similar target volumes for timber sales on the regional and national levels. One element of each of these line officers' job performance evaluations included whether or not they met these targets or had very good reasons for not meeting these targets. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 119:17-12-:6). Defendant's Response: Defendant objects to plaintiffs' characterization of Mr.

Devlin's testimony because it is not supported by the testimony cited. Mr. Devlin testified "It is just I think as an agency I have always assumed that if we're given a task to do and financing to do it, we have an obligation to the public to meet that." App. Tab 172 (R. Devlin Dep. Tr. 119:23-120:1). Thus, Mr. Devlin testified that meeting the timber sale volume targets was important because it was a responsibility of the agency to the public. Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is neither material nor relevant to plaintiffs' claims for breach of

7

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 8 of 146

contract. 11. As a prerequisite to receiving the award of Happy Thin, Jack Heli, and Too Wild, the Forest Service could have required that Blue Lake, Timber Products, or CLR, respectively, execute a release and waiver of all claims for replacement timber costs or lost profits arising out of any suspension of operations specifically resulting from the ONRC Action lawsuit regardless of whether Forest Service fault or failure to comply with the law was the ultimate cause of the suspension. The Forest Service did not request any such releases or waivers even though it has done so with other timber sale purchasers as a prerequisite before awarding other timber sales threatened with litigation in Region 5. See App. Tab 163 (Letter From Mark Bosetti, Sierra Pacific, Inc., to Joseph Franco, Forest Service (June 28, 2005) with attached "Pre-award Waiver, Release and Limitation of Liability Agreement 04/09/2007"). Defendant's Response: Defendant objects to this contention because it is plaintiff's

legal conclusion, and constitutes parol evidence, and not a contention of fact. Additionally, it is irrelevant what the Forest Service may have done with another timber contract signed six years after the contracts at issue in this lawsuit, and the letter cited is inadmissible under Federal Rule of Evidence 407 as a subsequent remedial measure. 12. As early as November 20, 1998, the Forest Service was considering a new timber sale contract clause that would explicitly allow the Forest Service to unilaterally modify the contract for the protection of survey and manage species. App. Tab 61. The Forest Service elected not to include this clause in the Happy Thin, Jack

8

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 9 of 146

Heli, or Too Wild contracts. See App. Tabs 93, 111, 124. Defendant's Response: Defendant objects to this contention because it is plaintiff's

legal conclusion, and constitutes parol evidence, and is not a contention of fact. 13. In April 1994, Secretaries of the United States Department of Agriculture on

behalf of the Forest Service and the United States Department of the Interior on behalf of BLM issued a Record of Decision ("ROD") for "Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl." This document amended the plan and resource management plans governing the operation of the National Forest and BLM forestlands in the states of Washington, Oregon and Northern California where it was believed that populations of northern spotted owls existed. The Klamath National Forest in Northern California and the Umpqua National Forest in Oregon were among those forests governed by the NFP. The provisions in the NFP were drawn from Alternative 9 of the Final Environmental Impact Statement prepared as part of the planning effort leading up to the adoption of the plan. The fundamental purpose of the Plan was to permit a predictable and sustainable level of timber sales and use of non-timber resources that would not degrade or destroy the environment or endanger the viability of a variety of species of plants and animals present on NFP federal forests. App. Tab 1. Defendant's Response: Defendant agrees with the contentions in the first four sentences, but objects to the contention in the last sentence, because it constitutes plaintiff's opinion, and not a contention of fact. 14. As part of the NFP ROD, survey and manage standards and guidelines were developed as mitigation measures for over 400 old-growth related species where

9

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 10 of 146

there was a concern for the continued persistence of these species across the landscape, but where little knowledge existed of the species themselves. App. Tab 185 (R. Holthausen Dep. Tr. 7:23-15:4); App. Tab 1 at A-3 to A-5; App. Tab 6. Defendant's Response: Defendant objects to this contention because it is plaintiff's

opinion of the survey and manage guidelines, and not a contention of fact. Additionally, the Mr. Holthausen's memo refers to "300+" species that were covered by the original Survey and Manage mitigation measure, but states that "only 70 require specific survey requirements prior to ground-disturbing activity." (Tab 6, A-43). Similarly, the ROD(App. Tab 1) refers to 71 species covered by the survey and manage requirements, not 400 species. (Tab 1 at A-4). Moreover, pages 7-14 of Mr. Holthausen's deposition are not provided at Tab 185. Furthermore, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 15. The NFP identified four survey strategies for the Survey and Manage ("S & M") species: (1) manage known sites; (2) survey prior to ground-disturbing activities; (3) conduct extensive surveys to find high priority sites for management; and (4) conduct general regional surveys to acquire additional information to determine necessary levels of protection. App. Tab 1 at A-10 to A-12; App. Tab 11. Survey and manage species fall into one or more of these catetgories, also sometimes called "components" or "strategies." Id. Defendant's Response: Defendant objects to plaintiffs' characterization of the

documents; the documents are the best evidence of their contents. Furthermore, the documents

10

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 11 of 146

cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 16. The Oregon red tree vole, five species of salamanders, and the Canada lynx were initially designated as the Category 2 species (also sometimes referred to as "Component 2" or "Strategy 2" species). App. Tab 11. Prior to the award of Happy Thin, Jack Heli, and Too Wild, the Canada lynx was removed from the Category 2 species by the Regional Interagency Executive Committee ("RIEC") under a provision of the NFP which allowed such modifications. App. Tab 1 at A-12. Surveys for these species were required for certain timber sales as of October 1, 1996. App. Tabs 1, 11. Approximately seventy-one other invertebrate species, including certain bryophytes, lichens, fungi, mollusks, and vascular plants, were also designated as Category 2 species, and surveys for those species were required for certain timber sales as of October 1, 1998. App. Tab 11. Defendant's Response: Defendant objects to the final sentence because it is

plaintiffs' legal conclusion and not a contention of fact. Additionally, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 17. The Category 2 surveys required under the NFP were important to an environmental evaluation of the sales before the sales were authorized, and it was important to have this information before the issuance of a decision notice approving the sales as in compliance with NEPA and NFMA. App. Tab 178 (E. Boling Dep. Tr. 38:9-42:5).

11

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 12 of 146

Defendant's Response:

Defendant objects to plaintiffs' characterization that it was

"important" to have the Category 2 surveys "before the issuance of a decision notice" because it constitutes plaintiffs' opinion, not a contention of fact. Additionally, the Category 2 survey requirements are governed by the ROD, not by Mr. Boling's testimony. Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 18. Category 2 surveys were "designed to address the high-risk species (persistence concerns) for which survey protocols exist or could be developed reasonably soon, and for which adequate searches could be conducted in a single year." "High-risk" species refers to the risk of extirpation as does the phrase "persistence concerns." App. Tab 185 (R. Holthausen Dep. Tr. 15:10-16:3; 19:24-20:21). For Category 2 species, it was necessary that surveys be conducted prior to ground-disturbing activities which could result in the destruction or impairment of habitat necessary for those species' survival. App. Tabs 9, 35, 49; App. Tab 185 (R. Holthausen Dep. Tr. 15:8-23:18). The Category 2 surveys were the most restrictive in terms of the potential impact on federal lands, including Forest Service timber sales, of the NFP wildlife and plant surveys. App. Tab 185 (R. Holthausen Dep. Tr. 23:3-18). Defendant's Response: Defendant agrees with the first sentence of this contention.

Defendant objects to the contention in the second sentence because it is not supported by the documents or testimony cited. The September 11, 1998 memorandum states only that Category

12

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 13 of 146

2 surveys were required to be done prior to ground-disturbing activity, it did not define "grounddisturbing activity." (App. Tab 49). The October 26, 1996 document titled "Survey and Manage Component 2 Implementation Issues," and the December 2, 1994 "Meeting Notes on Intent of Survey and Manage Strategies in ROD" define "ground-disturbing activity" as "Activities with disturbances having a likely "significant" negative impact on the species' habitat. . ." (App. Tab 9 at A-62 and Tab 35 at A-278). Furthermore, the documents and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 19. As more time passed and more activities such as timber sales were undertaken prior to the implementation of the Category 2 surveys, the risk of extirpation to Category 2 species in all or part of the NFP area increased. App. Tab 185 (R. Holthausen Dep. Tr. 28:19-29:24). Defendant's Response: Defendant objects to plaintiffs' characterization of the Mr.

Holthausen's testimony. Mr. Holthausen testified that "I think the general concept is correct, that the more time passed and the more activities that were undertaken prior to effective implementation of these strategies, would increase risk to species, but that's a very general statement." (App. Tab 185, Holthausen Dep. 30:15-19). Mr. Holthausen also testified that "Although our knowledge of these species was so poor that it would be impossible to quantify that increase in risk." (App. Tab 185, Holhausen Dep. 31:13-15). Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract.

13

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 14 of 146

20.

One of the fundamental purposes of the Category 2 surveys was for the government to acquire a sufficient knowledge base to have a better idea of the degree of risk of extirpation to species prior to the initiation of ground-disturbing projects like timber sales. App. Tab 185 (R. Holthausen Dep. Tr. 31:1-21).

Defendant's Response:

Defendant objects to plaintiffs' characterization of Mr.

Holthausen's testimony. Mr. Holthausen stated that "Although our knowledge of these species was so poor that it would be impossible to quantify that increase in risk." (App. Tab 185, Holhausen Dep. 31:13-15). Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 21. A critical purpose of the Category 2 surveys was to help insure the viability of the species that were being surveyed. App. Tab 172 (R. Devlin Dep. Tr. (1/8/07) 30:17-32:3). Defendant's Response: The testimony cited concerns the Forest Service's actions

and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 22. One of the important objectives of the NFP was to develop as soon as possible the protocols necessary for the Category 2 "prior to ground-disturbing activities" surveys which the NFP directed were to be implemented for certain vertebrate species as of October 1, 1996 and for the remainder of the Category 2 species as of October 1, 1998. App. Tab 1 at A-4.)

14

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 15 of 146

Defendant's Response:

Defendant objects to plaintiffs' characterization of the

document as it is plaintiff's opinion, not a factual contention concerning the document. Furthermore, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 23. Survey protocols for the five Category 2 salamanders were approved for use by the Forest Service and available at least as early as March 16, 1996. App. Tab 14 (Memo from W. Bradley, BLM, to BLM district managers (Mar. 19, 1996)). Defendant's Response: Defendant objects to plaintiffs' characterization of the

Category 2 salamander survey protocols as "approved for use" because it is not supported by the document cited. The document states that the attached amphibian protocols are "drafts" and also refers to instructional memoranda attached that are not provided in plaintiff's appendix. Furthermore, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 24. Under the NFP there were several government groups with various levels of authority for recommending and determining the intent and meaning of the NFP survey and manage requirements. At least as early as the spring-summer of 1994, there existed a Survey and Manage Working Group (which included a smaller entity referred to as the "Survey and Manage Core Group") composed of representatives from the Forest Service, the BLM and other agencies. Among other things, the purpose of the Survey and Manage Working Group was to

15

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 16 of 146

develop working definitions and directions for the implementation of NFP wildlife and plant surveys and to recommend the adoption of certain definitions and interpretations to higher levels of authority within the management structure of the NFP. At various times from at least December 1994 through 1998, the team leaders of this group included Cheryl McCaffrey of the BLM and Randy Hickenbottom of the Forest Service. App. Tabs 2-6, 189. Defendant's Response: Defendant objects to this contention because the documents

cited do not support plaintiffs' contentions in the final sentence. Additionally, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 25. There was an Intermediate Management Group ("IMG") immediately above the Survey and Manage Working Group in the NFP administrative hierarchy. This group included representatives of the Forest Service and the BLM at what was determined to be the intermediate management level. One purpose of the IMG was to act on and approve the recommendations from the Survey and Manage Working Group with regard to definitions, directions and interpretations of the survey requirements under the NFP when, in the view of the IMG members, such decisions could be made without referring the matter to the next higher level of authority, the RIEC. From at least December 1994 through 1998 at various times, Tom Nygren of the Forest Service and Bill Bradley of BLM were members of the IMG. App. Tab 189.

16

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 17 of 146

Defendant's Response:

Defendant objects to this contention because it is not

supported by the document cited. The document cited does not mention the Internediate Management Group; they discuss the Survey and Manage Work Group. Additionally, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 26. The RIEC represented the highest level of agency authority at the regional level within the NFP administrative hierarchy. The RIEC included the Regional Foresters of Regions 5 and 6 of the Forest Service and the Director of the Oregon State Office of the BLM or their designated representatives. App. Tabs 12, 189. Defendant's Response: Defendant objects because document cited does not support

plaintiffs' contentions. Additionally, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 27. As part of the administrative structure for the NFP there existed a Regional Ecosystem Office ("REO") under the direction of Donald Knowles, Executive Director, which functioned as the staff of the RIEC coordinating certain agency actions and reporting thereon to the RIEC. Mr. Knowles and other members of the REO from time to time worked with other administrative levels under the NFP including the Survey and Manage Working Group and the IMG. App. Tabs 12, 189.

17

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 18 of 146

Defendant's Response:

Defendant objects to this contention because the documents

cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 28. Beginning as early as May 26, 1994, Richard Holthausen, the Team Leader of the Species Analysis Team responsible for developing recommendations regarding the species surveys which ultimately became the survey and manage program under the NFP, provided oral and written presentations explaining the background, rationale for and intent of the wildlife and plant surveys required under the NFP, including the Category 2 surveys. See App. Tabs 2, 6, 10; App. Tab 185 (R. Holthausen Dep. Tr. 32:21-33:8). Defendant's Response: Defendant objects to this contention because the documents

and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 29. In his paper on the background and intent of the NFP survey requirements entitled "Development of the Survey and Manage Measure," Mr. Holthausen discussed the Category 2 surveys which he described as "survey prior to ground-disturbing activities and manage sites that are discovered (Strategy II)." He further stated, "Ground-disturbing activities also were not described, but a common sense definition would include any disturbances of a type and intensity that would have a significant, negative effect on species on the list and/or the habitat that supports them." Mr. Holthausen concluded in his paper that "the

18

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 19 of 146

survey and manage strategy in the ROD was intended to provide additional protection for species whose outcomes were judged to be low under draft Alternative 9 [the alternative analysis under NEPA which became the NFP]," and Mr. Holthausen offered the observation that "if survey and manage is marked by delays, inconsistencies, and clearly inadequate processes, flexibility will likely be lost and implementation of survey and manage will be likely become more difficult." App. Tab 6. Defendant's Response: Defendant objects to this contention because the document

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 30. At a meeting on December 2, 1994 involving Cheryl McCaffrey of the BLM, identified as the "lead" for the Survey and Manage Working Group, Randy Hickenbottom, Richard Holthausen and others, Mr. Holthausen addressed the intent and meaning of the survey and manage provisions in the ROD of the NFP. The basic purpose of this meeting was to clarify both the intent and development of the survey and manage standards and guidelines and to address the meaning behind some specific terms or phrases. At this meeting it was agreed that the intent of the NFP ROD in requiring wildlife and plant surveys was "to maintain the viability of the species addressed." Also at this meeting it was generally recognized that Category 2 surveys were "designed to address the high-risk species (persistence concerns) for which survey protocols exist or could be developed reasonably soon and for which adequate searches can be conducted in

19

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 20 of 146

a single year." App. Tab 10. Defendant's Response: Defendant objects to this contention because the document

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 31. By at least January 1996 a group called the Issue Resolution Team ("IRT") was added to the NFP administrative structure. This team was charged with, among other things, developing and recommending interpretations of the NFP Category 2 survey requirements. Typically, recommendations from this team would be provided to the IMG and/or to the RIEC for official adoption as direction to field personnel for both the Forest Service and BLM employees. Tom Hussey (Forest Service) and Larry Larsen (BLM) were members of the IRT and John R. "Randy" Hickenbottom (Forest Service) worked with the IRT on developing interpretations of the NFP requirements for Category 2 surveys. App. Tabs 12, 20. Defendant's Response: Defendant objects to this contention because it the

documents cited do not support it. Additionally, the documents cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 32. A joint Forest Service and BLM memorandum dated March 18, 1996 issued to all Forest Supervisors within the area of the NFP, including Forest Supervisors for the Klamath National Forest in California and the Siskiyou National Forest in Oregon, addressed draft standard protocols for the five salamanders to be surveyed before the implementation of ground-disturbing activities in FY 1997.

20

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 21 of 146

Although these protocols were designated at that time as "draft standard protocols," the memorandum directed that "projects surveyed according to the draft protocols (including modifications by agency biologists) will be considered as meeting the requirements of Component 2 for FY 1996." App. Tab 7. Defendant's Response: Defendant objects to this contention because the document

cited is notes from a meeting dated December 2, 1996, and does not support plaintiffs' contentions. Additionally, both the contention and the document cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 33. 34. [Intentionally left blank] The Survey and Manage Working Group meeting minutes from the August 23, 1995 meeting were reproduced in part and distributed to Survey and Manage Working Group members in connection with a Survey and Manage Working Group meeting on March 22, 1996. Those 1995 minutes stated that Component 2 (Category 2) "Surveyed Prior to Ground-Disturbing Activities ("GDA")" required that surveys for 71 species be completed before ground-disturbing activities were implemented in FY 1999 (relying on ROD C-5) and that surveys for five salamanders and the red tree vole had to be completed before ground-disturbing activities were implemented before 1997 (citing ROD C-5). These minutes further stated that efforts to develop these protocols were to be started immediately. App. Tab 13.

21

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 22 of 146

Defendant's Response:

Defendant objects to this contention because the document

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 35. 36. [Intentionally left blank] In the Survey and Manage Working Group's proposed FY 1996 organization and work plan dated July 19, 1996, the following recommendation was made: Component 2: Complete survey protocols for all species. Surveys for amphibians and red tree voles are required for FY 1997 projects. For other species, surveys required for FY 1999 projects. All protocols should be complete in FY 1996 or 1997. App. Tab 17 at A-152. Defendant's Response: Defendant objects to this contention because the document

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 37. At a January 17, 1996 Forest Plan Implementation workshop designed to provide guidance to Forest Service field personnel on the meaning and intent of the NFP, the question was asked "When is a project implemented?" At the workshop, Tom Hussey, a member of the IRT, answered that question as follows: "Project implementation is when the Forest Service has committed to a project to the point where it would be unreasonable (cost or resource impacts) to delay or cancel the project. When the Forest Service has entered into legal contractual agreement, the project is considered implemented (IRT Response)." App. Tab 12 at A-90.

22

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 23 of 146

Defendant's Response:

Defendant objects to this contention because the document

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 38. In the summer of 1996 two members of the IRT, Larry Larsen of the BLM and Tom Hussey of the Forest Service, and Randy Hickenbottom, who was the team leader of the Survey and Manage Working Group at the time, collaborated to write a proposed answer/resolution to the question: when are ground-disturbing activities implemented on a project or timber sale for purposes of directing when Category 2 surveys are required. Multiple drafts were prepared throughout the summer and into the fall of 1996 in an attempt to provide a proposed answer/resolution. App. Tabs 16, 18, 20-24, 26-34, 39, 43, 71-72, 74-75, 77, 83, 87-88, 104-07; App. Tab 171 (L. Larsen Dep. Tr. 6:17-22); App. Tab 38 ("Notes on S&M Concerns Meeting" (Jan. 22, 1997)); App. Tab 37 ("Memo from Robin Bown, S&M Workgroup Representative, to Various Offices" (Nov. 25, 1996)). Defendant's Response: Defendant objects to this contention because several of the

documents cited do not support plaintiffs' statements. The documents at Tab 87 and 88, 104, 105, do not concern the definition of "ground-disturbing." The document at Tab 37 does not relate to the summer or fall of 1996. Furthermore, the documents and testmony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 39. [Intentionally left blank]

23

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 24 of 146

40. 41.

[Intentionally left blank] In the summer of 1996, in a draft paper addressing, among other points, the definition of implementation of ground-disturbing activities for purposes of the ROD direction requiring Category 2 surveys, Larry Larsen, a member of the IRT, wrote: Rationale: By requiring the S&M survey prior to the project decision, we can assure that the responsible official, other agencies, and the public have the benefit of the survey information prior to making an informed decision. This is consistent with the stated objective for doing the surveys: ". . . information gathered from them should be used to establish managed sites for the species." This definition of implementation would also allow us to move ahead with projects for which a decision has already been made, but will not begin operations until 1997. App. Tab 18 at A-194.

Defendant's Response:

Defendant objects to this contention because it is not clear

that Mr. Larsen drafted the document. Additionally, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 42. In Mr. Larsen's paper referred to in paragraph 41 above, he also stated that an alternative definition of implementation could be the date at which project operations actually began. As to this definition Mr. Larsen stated: The chief problem is that it would be inconsistent with the stated objective for doing the surveys as mentioned above. The information from the surveys would not be available in a timely manner for the project designed to include the managed sites

24

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 25 of 146

as needed for these species. A second problem with using the initiation of project [including timber sale] operations would be that there are a number of projects [timber sales] that need to begin operations in early 1997 and they would be delayed pending the completion of surveys. App. Tab 18 at A-194. Defendant's Response: Defendant objects to this contention because it is not clear

that Mr. Larsen drafted the document. Additionally, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 43. In Mr. Larsen's draft referenced in paragraph 41 above, he also made the following observation: QUESTION 3: HOW SHOULD WE HANDLE SITUATIONS WHERE THE DRAFT S&M PROTOCOLS ISSUED IN THE NEXT FEW MONTHS REQUIRE SURVEYS THAT CANNOT BE PERFORMED UNTIL NEXT SPRING, YET WE NEED TO PLAN THE PROJECT AND MAKE A DECISION THIS FALL OR WINTER? Response: There may be projects [including timber sales] where the draft protocol is available but for biological reasons the survey cannot be conducted until the spring or summer of 1997. In cases where these projects [timber sales] need to have a decision made prior to the time that the survey can be conducted, then the decision document can be signed but the project [timber sale] cannot commence operations until the survey is conducted and the project design adjusted to include the S&M species considerations as appropriate. Clearly, this

25

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 26 of 146

should be a reluctant "last resort" option because of the possible difficulties of adjusting a project to include the S&M information obtained after project design and decision. As discussed in Question 1, wherever possible we should schedule project decisions [timber sale Decision Notices] to include the results of S&M surveys. App. Tab 18 at A-194 to A-195. Defendant's Response: Defendant objects to this contention because it is not clear

that Mr. Larsen drafted the document. Additionally, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 44. One of the possible interpretations of how "implementation" should be defined for purposes of ascertaining the implementation of ground-disturbing activities which was considered by the IRT was the concept that ground-disturbing activities would be considered implemented on the date that an appropriate decision document, such as a Decision Notice, was signed signifying completion of the environmental analysis required under NEPA and NFMA before a timber sale could be offered to the public. This interpretation came to be known as "NEPA decision equals implementation" or "NEPA decision equals implemented." This interpretation was ultimately adopted by both the Forest Service and the BLM, and it was subsequently determined to be arbitrary and capricious and contrary to law in the ONRC Action litigation. App. Tabs 18, 34, 49; Oregon Natural Resources Council Action v. United States Forest Service, 59 F. Supp. 2d 1085, 1091-94 (W.D. Wash. 1999).

26

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 27 of 146

Defendant's Response:

Defendant agrees that the Forest Service concluded after

considerable analysis, that for purposes of complying with the ROD, a timber sale would be considered implemented as of the time the environmental review was completed, and the NEPA documents were signed. (App. Tab 34). Defendant objects to the final sentence of this contention because it is plaintiff's legal conclusion, and not a contention of fact. Furthermore, the documents cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 45. The IRT members and other government personnel working with them on the development of the interpretation "NEPA decision equals implementation" took both legal risk and biological risk into consideration as they analyzed alternative interpretations of the NFP Category 2 survey requirements. "Legal risk" in this context meant, for example, the government's risk of losing a lawsuit brought by environmental activists who might dispute the official interpretation. "Biological risk" referred to the risk to the viability of the species if the Category 2 surveys were not required for a significant number of timber sales. App. Tab 168 (R. Hickenbottom Dep. Tr. 105:15-107:1). Randy Hickenbottom, a working member of the IRT and for a period of time team leader of the Survey and Manage Working Group, thinks it is really important to know how many timber sales were going to be grandfathered in without surveys if the interpretation "NEPA decision equals implementation" was selected. Id. (R. Hickenbottom Dep. Tr. 108:3-15).

27

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 28 of 146

28

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 29 of 146

Defendant's Response:

Defendant objects to plaintiffs' characterization of the

testimony; the testimony is the best evidence of its contents. Defendant further objects that the testimony cited is hearsay, it does not support plaintiffs' contention, and plaintiffs mischaracterize the testimony. Mr. Hickenbottom testified that he did not recall any discussions about the threat of environmental litigation as a "legal risk" potentially affecting an awarded timber sale. (App. Tab 168, Hickenbottom Dep. 106:7-21). Mr. Hickenbottom also testified that the practice of "grandfathering" timber sales was not something he "would have delved into." (Hickenbottom Dep. 107:18-19). Additionally, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 46. During the IRT deliberations which ultimately resulted in the IRT recommending the adoption of the interpretation "NEPA decision equals implementation," Randy Hickenbottom preferred an interpretation which would define implementation as some point after the signing of a NEPA decision notice but before the Forest Service or the BLM made a relatively irreversible commitment to the project. Mr. Hickenbottom advocated this interpretation because it would require more projects to be surveyed, and therefore more projects would have the benefit of the knowledge of the presence or absence of the S&M species before timber harvest or other operations might adversely alter the available habitat of these species. App. Tab 168 (R. Hickenbottom Dep. Tr. 108:23-109:20); App. Tab 21.

29

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 30 of 146

Defendant's Response:

Defendant objects to plaintiffs' characterization of the

document and testimony; the document and testimony are the best evidence of their contents. Defendant further objects because the testimony does not support plaintiffs' contention and mischaracterizes the testimony. See Pls.' App. Tab 168 (R. Hickenbottom Dep. Tr. 109:18109:23) (Mr. Hickenbottom did not recall drafting the document, and did not know who drafted the document). Furthermore, the document and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 47. When Randy Hickenbottom was a working member of the IRT and team leader of the Survey and Manage Working Group, he believed that whenever possible atimber sale's NEPA Decision Notice should include consideration of the results of the S&M surveys. It was optimal from a management standpoint to have as much information as possible in order to make a well-informed NEPA decision. App. Tab 168 (R. Hickenbottom Dep. Tr. 109:24-110:16); App. Tab 21. Defendant's Response: Defendant objects to plaintiffs' characterization of the

document and testimony; the document and testimony are the best evidence of their contents. Furthermore, the document and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 48. As of August 28, 1996, the IRT was still analyzing different interpretations of the required start date for Category 2 species surveys under the NFP. With regard to the interpretation "NEPA decision equals implementation" under which no

30

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 31 of 146

Category 2 surveys would be required prior to actual timber sale operations for timber sales with decision notices signed on or before September 30, 1996 regardless of whether those sales might not be offered to the public, awarded and operated for months or even years later, the following concerns were expressed: This could result in projects being operated on in fiscal years 1997, 1998, and possibly even 1999 without surveys having been done. We have been unable to determine how many projects this might include, nor have we been able to get an estimate of the possible resource damage that could occur. There is strong concern on the part of many FS, BLM, and F&WS personnel that allowing major activities such as timber sale or road building operations to proceed after 9/30/96 without surveys is unacceptable because it does not meet a commonly accepted understanding of when implementation occurs. App. Tab 22; App. Tab 168 (R. Hickenbottom Dep. Tr. 113:5-19). 48.Defendant objects to plaintiffs' characterization of the document and testimony; the document and testimony are the best evidence of their contents. Additionally, plaintiffs mischaracterize Mr. Hickenbottom's testimony. Mr. Hickenbottom testified that he did not share the "strong concern" about operating sales without Category 2 surveys being done. In a portion of Mr. Hickenbottom's testimony not provided by plaintiff, Mr. Hickenbottom testified that he did not share this concern because "Quite frankly I felt that the distribution of activity relative to the known range of those species and the overall amount of activity that could be proposed and on the shelf for those was unlikely to result in serious extirpation viability issues for those species." (Hickenbottom Dep. Tr. 113:23-25-114:4.) Furthermore, the document and testimony cited

31

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 32 of 146

concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and therefore, are not relevant to plaintiffs' claims for breach of contract. 49. Prior to January of 1997, Richard Holthausen, Team Leader for the NFP wildlife Species Team, was asked by Don Knowles, Director of the Regional Ecosystems Office, if it was possible to do an assessment of the potential impact of different implementation dates for the surveys required under the NFP. Mr. Holthausen told Mr. Knowles at that time, "That in general, one could reasonably assume that delay of implementation strategies would result in some negative effect for some species, but that it would be virtually impossible to specify either the level of that effect or the species that would undergo negative effects." In short, there was no way of knowing whether the negative effect on the species would be relatively small or whether it would cause extirpation of a species. App. Tab 185 (R. Holthausen Dep. Tr. (9/30/07) 48:4-51:23). Defendant's Response: Defendant objects to plaintiffs' characterization of the

testimony; the testimony is the best evidence of its contents. Additionally, pages 49-51 are not found at Tab 184 of the Appendix. Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 50. In a draft memorandum produced by members of the IRT prior to October 4, 1996 but late in the process of the IRT finalizing its recommendation regarding the interpretation of the Category 2 survey implementation date requirements, the potential impact of adopting the interpretation "NEPA decision equals

32

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 33 of 146

implementation" was discussed as follows: Question 2: Does The Above Definition Of The Point Of Implementation [NEPA Decision Equals Implementation] Allow Us To Make A Large Number Of NEPA Decisions Prior To September 30, 1996 For Outyear Projects In Order To Avoid The Need For Category 2 S&M Surveys? Response: The ROD clearly intended that we perform surveys for Category 2 species prior to the design and implementation of projects; and it also clearly intended that we have until FY 97 to phase in this requirement. But the "banking" of NEPA decisions prior to FY 97 for projects that will not begin for several years is inappropriate. If we do not plan to make an irreversible commitment to proceed with the project prior to mid-year 1997, then we should conduct the survey for the Category 2 S&M species prior to making a NEPA decision on the project. If for some reason it is necessary to make a NEPA decision prior to Sept. 30 for an outyear project, then it might also be appropriate to do so but plan to conduct the S&M survey prior to making an irreversible commitment to proceed with the project. This should be a reluctant "last-resort" approach, as it creates the risk that the project will need to be re-designed based on the results of the S&M survey and the NEPA process recycled. The definition of the term "irreversible commitment to proceed" will vary according to the type of project and the policies and procedures of the managing agency, but it usually should be the point at which it is relatively difficult and expensive to redesign or cancel a project. Examples of that point might be the award of a timber sale, the signing of

33

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 34 of 146

a service contract, or the actual operational start of a force account project. App. Tab 28. Defendant's Response: Defendant objects to plaintiffs' characterization of the

document; the document is the best evidence of its contents. Defendant further objects because the date and authorship of the document are not clear from the face of the document. Additionally, the document cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 51. As the IRT was considering how to interpret the NFP direction for the implementation of Category 2 surveys, including the interpretation of the point at which ground-disturbing activities were implemented for purposes of timber sales, members of the IRT were aware of concerns raised by agency personnel regarding the possibility that the Forest Service and the BLM could rush the environmental analysis process forward in order to get decision documents signed prior to October 1, 1996. Individuals voicing such concerns included Cheryl McCaffrey of the BLM and Robin Bown of the Fish & Wildlife Service. Both Tom Hussey, a member of the IRT, and Randy Hickenbottom, who worked with the IRT on this interpretation question, were aware of these concerns. App. Tab 171 (L. Larsen Dep. Tr. 30:6-32:11). Defendant's Response: Defendant objects to this contention because it plaintiffs'

characterization of the testimony; the testimony is the best evidence of its contents. Defendant further objects on the basis that the proffered testimony constitutes inadmissible hearsay.

34

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 35 of 146

Additionally, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 52. In determining which interpretation to recommend regarding the date on which ground-disturbing activities would be considered implemented for purposes of Category 2 surveys, the IRT considered the potential contractual liability of the Forest Service and the BLM to purchasers of timber sales. App. Tab 171 (L. Larsen Dep. Tr. 37:18-39:7). Defendant's Response: Defendant objects to plaintiffs' characterization of the

testimony; the testimony is the best evidence of its contents. Defendant further objects because plaintiffs mischaracterize the testimony. See Pls.' App. Tab 171 (L. Larsen Dep. Tr. 38:25-39:2) (Mr. Larsen stated "amongst ourselves we probably discussed it . . . ."). Furthermore, the testimony cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 53. At least as early as August 1996 while the IRT was trying to reach a consensus on its interpretation of what was meant by implementation of ground-disturbing activities for purposes of the requirement to perform Category 2 surveys on timber sales, members of the IRT were made aware of concerns expressed by field personnel at both the BLM and the Forest Service that adopting an interpretation such as "NEPA decision equals implementation" could lead to the exemption of a significant number of timber sales from the Category 2 survey requirements. At

35

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 36 of 146

this time there was concern among IRT members that it would be important to know how many timber sales might be exempted by such an interpretation and what the possible resource damage would be if that interpretation were adopted. It was generally understood by IRT members that the Forest Service had significantly more timber sales in this potential position than the BLM. App. Tab 171 (L. Larsen Dep. Tr. 47:15-51:3); App. Tab 22. Defendant's Response: Defendant objects to this contention because it is based on

inadmissible hearsay. Defendant further objects to plaintiffs' characterization of the document and testimony; the document and testimony are the best evidence of their contents. Defendant further objects because the contention is not supported by the testimony cited. Mr. Larsen testified that the Survey and Manage group raised concerns to the "decision makers," but he did not testify as to any knowledge about any concerns the IRT members may have had, nor what was "generally understood" by the (unspecified) IRT members. (App. Tab 171, Larsen Dep. 49:14-50:16). This contention is therefore unsupported and amounts to nothing more than plaintiffs' opinion. Furthermore, the document and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 54. In the draft "Survey and Manage Current Implementation Issues" paper dated September 1, 1996, prepared by Larry Larsen for IRT consideration, situations involving timber sales with NEPA documents signed prior to October 1, 1996 but awarded on or after October 1, 1996 was considered. As to these situations, Mr. Larsen noted that survey protocols for Category 2 salamanders had been

36

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 37 of 146

available since March of 1996, that the red tree vole did not currently have approved survey protocols, and that the presence or absence of survey and manage species was a significant piece of information that should be analyzed prior to the execution of a NEPA decision document. App. Tab 24. Mr. Larsen also observed that there was legal risk to the agencies and potential biological risk to the species in not performing Category 2 surveys on timber sales for which NEPA decision documents were signed prior to October 1, 1996 but which were not awarded until after that date. Mr. Larsen concluded that in such situations there was a substantial risk to both species and the agencies because the Category 2 surveys were key information which should be available to decision makers at the time the NEPA decision was signed. Thus, not performing Category 2 surveys for timber sales in this situation raised a significant concern. Id.; App. Tab 171 (L. Larsen Dep. Tr. 61:25-62:16). Defendant's Response: Defendant objects to plaintiffs' characterization of the

document and testimony; the document and testimony are the best evidence of their contents. Defendant further objects to this contention because it is not supported by the document or testimony cited. The September 1, 1996 states only that it is based on the "assumptions" that the Salamander surveys were available, that the red tree vole did not have protocols, and that the intention was to perform surveys prior to the design phase and signing of NEPA documents. App. Tab 24. Additionally, Mr. Larsen did not testify that there was a "substantial risk" he said, in response to a question about what kind of "risk" would be involved by saying, "To the species, to the agency, whatever, yes." Furthermore, the document and testimony cited concern

37

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 38 of 146

the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 55. As of October 4, 1996, Larry Larsen, Tom Hussey and Randy Hickenbottom had reached agreement on the interpretation they would recommend for determining when ground-disturbing activities had been implemented for purposes of Category 2 surveys. App. Tab 171 (L. Larsen Dep. Tr. 65:12-24); App. Tab 32. Defendant's Response: Defendant objects to this contention because the testimony

cited concerns the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, is not relevant to plaintiffs' claims for breach of contract. 56. The document entitled "Survey and Manage (Component 2) Implementation Issues" dated October 22, 1996 reflects the interpretation of the implementation of ground-disturbing activities for purposes of performing Category 2 surveys under the NFP as recommended by the IRT and as adopted by the RIEC. App. Tab 171 (L. Larsen Dep. Tr. 66:4-67:21); App. Tab 43. Defendant's Response: Defendant objects to this contention because the document1

and testimony cited concern the Forest Service's actions and responsibilities prior to the award of these timber sale contracts, and, therefore, are not relevant to plaintiffs' claims for breach of contract. 57. Nothing in the November 1, 1996 or September 11, 1998 joint agency memoranda adopting the interpretation "NEPA decision equals implementation," or elsewhere in the NFP precluded a Forest Service deciding officer (typically a

1

The document is dated November 1, 1996; not October 22, 1996. Pls.' App. Tab 43. 38

Case 1:01-cv-00570-MCW

Document 197

Filed 05/02/2008

Page 39 of 146

Forest Supervisor) from opting not to sign a Decision Notice for a proposed timber sale before that sale had been surveyed for Category 2 species. In