Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00708-CFL

Document 73-2

Filed 06/16/2008

Page 1 of 5

EXHIBIT A

Case 1:05-cv-00708-CFL

Document 73-2

Filed 06/16/2008

Page 2 of 5

EXHIBIT A
Pl.'s Ex. Description ONRC Action's response to DOJ request to provide more information on how sales violate NEPA and NFMA and provides list of "at risk" sales. Reason Admissible Under FRE 408

65

75

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87 88

Shows defendant was on detailed notice of the scope of ONRC Action's claims. Not offered to prove the same claim brought by ONRC Action. Internal document not communicated to ONRC Action. Shows fact that Forest Service had process in place to acquire knowledge of risk of awarding sales and that DOJ discouraged Forest Service from Internal memorandum and email stating DOJ's promise to delay award awarding sales threatened by ONRC Action. Shows fact that COs of certain sales and that award must be approved by DOJ. Advises instructed only to give a "standard announcement" regarding risks contracting officers to make "standard announcement" advising associated with sale. Not offered to prove the same claim brought by bidders that sale is under litigation. ONRC Action. Internal memorandum outlining government's settlement offer and Shows fact that Forest Service knew DOJ was reluctant to move ahead indicating that DOJ may ask Forest Service to delay award of 20 sales with sales while ONRC Action was pending. Not offered to prove the not listed in settlement offer. same claim brought by ONRC Action. Internal document not communicated to ONRC Action. Shows defendant was on notice that ONRC Action would not accept any solution that did not require surveys on sales. Shows S. Zike prepared Internal email from Sue Zike stating that biggest barrier to settlement briefing paper for high level officials. Not offered to prove the same was Forest Service failure to survey for Category 2 species. claim brought by ONRC Action. Internal memorandum and emails summarizing background and status Internal document not communicated to ONRC Action. Not offered to of ONRC Action litigation and current settlement proposal. prove the same claim brought by ONRC Action. Evidence of end of settlement negotiations and that Forest Service held off on awarding sales. Admission of liability for breach of contract. Internal document not communicated to ONRC Action. Shows Forest Internal email from Sue Zike stating that DOJ did not want "any dogs Service's knowledge that ONRC Action likely would oppose the award let out on the street" during the briefing on motions for summary of certain timber sales. Shows fact that Forest Service had process in judgment and that to comply Forest Service would assess strength of place to acquire knowledge of risk of awarding sales. Not offered to sale compared with the issues raised by ONRC Action's complaint. prove the same claim brought by ONRC Action. Internal document not communicated to ONRC Action. Shows Forest Internal email from Sue Zike stating that DOJ said Forest Service could Service's knowledge of the risk that ONRC Action would move for award "at risk" sales if DOJ was given assessment of risk posed by injunctive relief. Shows fact that Forest Service had process in place to award and that DOJ's request was made in anticipation of ONRC acquire knowledge of risk of awarding sale. Not offered to prove the Action filing a motion for injunctive relief. same claim brought by ONRC Action.

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Case 1:05-cv-00708-CFL

Document 73-2

Filed 06/16/2008

Page 3 of 5

EXHIBIT A
Pl.'s Ex. Description Reason Admissible Under FRE 408

99

100

101

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116

Document prepared after settlement discussions ended. Internal document not communicated to ONRC Action and not used by defendant to evaluate or offer settlement terms to ONRC Action. Includes Forest Service's admission that timber sale contracts did not Internal memorandum providing overview of Forest Service timber authorize suspensions to survey for survey and manage species. Not program and effects of surveying for Category 2 surveys. offered to prove the same claim brought by ONRC Action. Document prepared after settlement discussions ended. Internal Internal memorandum that evaluates the litigation advantage of document not communicated to ONRC Action and not used by Forest awarding the "at risk" sales identified by ONRC Action. Among the Service to evaluate or offer settlement terms to ONRC Action. Shows "cons" listed are "forces ONRC Action hand to file TRO/PI" and "may Forest Service's knowledge of the risk that ONRC Action would move create $$ liability to government if lose case." One of the "pros" is for injunctive relief. Not offered to prove the same claim brought by "puts purchaser squarely at the table." ONRC Action. Document prepared after settlement discussions ended. Internal Internal memorandum that outlines the procedure the Forest Service document not communicated to ONRC Action and not used by Forest was to follow to assess the litigation risk of individual sales. The Service to evaluate or offer settlement terms to ONRC Action. Shows document states that the assessment must be done because "the Forest Service's knowledge of the risk that ONRC Action would move likelihood of TRO/PI request to the court is very high and we must be for injunctive relief. Not offered to prove the same claim brought by ready with our facts and answers." ONRC Action. Internal document not communicated to ONRC Action and not used by Internal email from Forest Service Region 5 Litigation Coordinator Forest Service to evaluate or offer settlement terms to ONRC Action. Brian Stone stating that for each sale the question must be asked, Shows Forest Service's knowledge of the risk that ONRC Action would "Why do we need to got forward with this particular sale NOW, instead move for injunctive relief. Not offered to prove the same claim brought of waiting for the conclusion of ONRC litigation?" by ONRC Action. Document prepared after settlement discussions ended. Internal document not communicated to ONRC Action. Shows Forest Service's Letter from Edward Boling to Forest Service and BLM stating that the knowledge of the risk that ONRC Action would move for injunctive government has agreed to provide ONRC Action with 10 days notice of relief. Shows fact that Forest Service had process in place to acquire any award of "at risk" sales and that before award Forest Service knowledge of risk of awarding sales. Shows that summary judgment should assess strength of sale compared with the issues raised in schedule was in place and that sales in ONRC Action had to be ONRC Action's complaint and that award is worth the risk of prompting administratively appealed. Not offered to prove the same claim brought a motion for injunctive relief. by ONRC Action.

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Case 1:05-cv-00708-CFL

Document 73-2

Filed 06/16/2008

Page 4 of 5

EXHIBIT A
Pl.'s Ex. Reason Admissible Under FRE 408 Document prepared after settlement discussions ended. Shows Forest Service's belief that plaintiff's sales were involved in the ONRC Action Letter from CO Brenda Woodard to Sue Zike notifying Ms. Zike of litigation. Not offered to prove the same claim brought by ONRC intent to award plaintiff's sales Action. Letter from Sue Zike reply to Brenda Woodard's letter in Ex. 118, Shows fact that plaintiff's sales were covered by ONRC Action stating although plaintiff's sales are not on latest ONRC Action "at risk" notification agreement and Umpqua advised to hold off award until list, Forest Service still must abide by earlier agreement to notify ONRC ruling on summary judgment. Not offered to prove the same claim Action of the sales. brought by ONRC Action. Document prepared after settlement discussions ended. Internal Internal email from Sue Zike stating that as of May 19, 1999 there were document not communicated to ONRC Action. Shows Forest Service's more than 30 sales that the Forest Service was delaying award of knowledge of the risk that ONRC Action would move for injunctive relief because of the threat that they would prompt a motion for injunctive on "at risk" sales. Not offered to prove the same claim brought by relief by ONRC Action. ONRC Action. Sue Zike's notes stating that the stipulation with ONRC Action has Document prepared after settlement discussions ended. Internal expired but the Forest Service would hold off awarding 20 sales so as document not communicated to ONRC Acton. Not offered to prove the not to lose its "negotiation power." same claim brought by ONRC Action. Document prepared after settlement discussions ended. Internal document not communicated to ONRC Action. Shows fact that plaintiff's sales were listed on ONRC Action's "at risk" list as of July 7, Internal memorandum summarizing ONRC Action litigation and 1999 and that Forest Service may need to hold off on award until the position on settlement and status of "at risk" sales, including plaintiff's court rules. Not offered to prove the same claim brought by ONRC sales. Action. Document prepared after settlement discussions ended. Internal document not communicated to ONRC Action. Shows fact that lists of Internal memorandum regarding status of ONRC Action litigation and "at risk"/"problem" sales not shared with Scott, or anyone other than stating that ONRC Action submitted lists of "problem" sales that were ONRC Action. Not offered to prove the same claim brought by ONRC not disclosed to others Action. Document prepared after settlement discussions ended. Internal document not communicated to ONRC Action. Shows fact that lists of "at risk"/"problem" sales not shared with Scott, or anyone other than Internal email from Sue Zike stating that only three of the "at risk" sales ONRC Action. Not offered to prove the same claim brought by ONRC are named in the complaint. Action. Description

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132A

139

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Case 1:05-cv-00708-CFL

Document 73-2

Filed 06/16/2008

Page 5 of 5

EXHIBIT A
Pl.'s Ex. Reason Admissible Under FRE 408 Document prepared after settlement discussions ended. Internal Internal email from Sue Zike stating that the DOJ notified ONRC Action document not communicated to ONRC Action and not used by Forest of its intent to award certain timber sales in July 1999, including Service to evaluate or offer settlement terms to ONRC Action. Shows plaintiff's sales. The email goes on to say, "We don't know if ONRC Forest Service's belief that award of plaintiff's sales would prompt a will run to the court for a TRO/PI on these says but DOJ believes it is motion for injunctive relief. Not offered to prove the same claim brought likely." by ONRC Action. Internal memorandum proving "rough estimate" of sales affected by August 2, 1999 district court opinion in ONRC Action; attached chart Internal document not communicated to ONRC Action and not used by states it is prepared for "[Washington Office] Briefing On Judge Forest Service to evaluate or offer settlement terms to ONRC Action. Dwyer's August 2, 1999 Ruling." Not offered to prove the same claim brought by ONRC Action. Independent evaluation of merits of the government's case not analysis of or comment on settlement proposal. Internal document not communicated to ONRC Action and not used by Forest Service to evaluate or offer settlement terms to ONRC Action. At most only "the Settlement Agreement" section of this memorandum is all that implicates FRE 408. Not offered to prove the same claim brought by Internal memorandum from Edward Boling to Lois Schiffer ONRC Action. Shows payment of fees and expenses in accordance recommending settlement of ONRC Action. with EAJA. Letter from Edward Boling to ONRC Action attorneys offering to pay Not offered to prove the same claim brought by ONRC Action. Shows attorneys' fees pursuant to EAJA. payment of fees and expenses in accordance with EAJA. Letter from ONRC Action to Edward Boling confirming acceptance of Not offered to prove the same claim brought by ONRC Action. Shows offer to pay attorneys' fees. payment of fees and expenses in accordance with EAJA. Description

141

143A

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