Free Order on Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:91-cv-00984-EGB

Document 27

Filed 06/21/2004

Page 1 of 2

In the United States Court of Federal Claims
No. 91-984C Consolidated under lead cases no. 33-85C (Filed: June 22, 2004) ******************** MANKE LUMBER CO., et al., (Mt. Adams Veneer Co.) Plaintiffs, v. THE UNITED STATES, Defendant.

******************** --------------ORDER --------------Pending is defendant's motion for summary judgment in Mt. Adams Veneer Co. v. United States, No. 91-984C. Oral argument was heard on June 16, 2004. At the conclusion of oral argument we denied the government's motion for summary judgment, on the basis that there remain disputed issues of material fact. Without limiting the basis for trial, we note the following. It is far from clear what the policy of the Forest Service was with respect to appraisals of timber inventory in the event of a "no-resale." This is a mixed question of law and fact. While the affidavits of Mrs. Anderson address this question in part, it is unclear where policy and uniform practice leave off and the particular actions taken in this case begin. Whether there was a specific policy or practice, for example, with respect to salvage sales is relevant. Only objectively demonstrated policy and practice can form the correct plumb line for the reappraisal. In addition, we note that there are fact questions surrounding the selection of comparable sales. The judgment involved in making those selections can be explored at trial, for example, whether, assuming the policy or practice extended to attempting to match sales quality, whether and how that was done in this case.

Case 1:91-cv-00984-EGB

Document 27

Filed 06/21/2004

Page 2 of 2

Accordingly, defendant's motion for summary judgment is denied. The parties will file a joint status report, on or before July 6, 2004, proposing further pretrial proceedings.

s/Eric G. Bruggink ERIC G. BRUGGINK Judge

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