Free Objection to Exhibit List - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SCOTT TIMBER CO., Plaintiff, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) )

No. 05-708C (Judge Lettow)

PLAINTIFF'S MOTION TO EXCLUDE CERTAIN DOCUMENTS ON DEFENDANT'S TRIAL EXHIBIT LIST Pursuant to the Court's Order of April 23, 2008 and paragraph 14(a)(3) of Appendix A to the Rules of the United States Court of Federal Claims, plaintiff submits this motion to object to certain of defendant's trial exhibits and respectfully moves the Court to order the exclusion of those exhibits on the grounds noted in the attached list. Plaintiff's objections to the documents are based on a review of the documents themselves without direct knowledge of defendant's intended use. Plaintiff reserves the right to raise other objections as appropriate during the course of trial if the Court does not issue an order excluding the exhibits to which plaintiff has objected in this motion.

Respectfully submitted,

s/Gary G. Stevens SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Counsel for Plaintiff 1

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OF COUNSEL: Ruth G. Tiger Eric J. Pohlner SALTMAN & STEVENS, P.C. 1801 K Street, N.W. Suite M-110 Washington, D.C. 20006 (202) 452-2140 Dated: June 10, 2008

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Exhibit No.

Defendant's Description Record of Decision and Standards and Guidelines for Amendments to the Survey and Manage, Protection Buffer, and other Mitigation Measures Standards and Guidelines (155 pages) Report from the Forest Ecosystem Management Team ("FEMAT Report")

Plaintiff's Objections No present objection.

Notes

1

2

3

4

5

6

No present objection, if prior to the pre-trial conference defendant identifies the pages of this lengthy on which it intends to reply. Otherwise, plaintiff objects to the document as irrelevant. Appendix J-2 to Final No present objection, if prior to the pre-trial Supplemental Environmental conference defendant identifies the pages of this Impact Statement lengthy on which it intends to reply. Otherwise, plaintiff objects to the document as irrelevant. Attendance List At Forest Irrelevant; Not Authenticated; Hearsay. Timber Sale Contract Meeting 8/4/71 (1 page) Memo to Regional Foresters Irrelevant; Not Authenticated. re: proposed provisions to the 2400-6 timber contract 3/19/71 (2 page) Letter from National Forest Irrelevant; Not Authenticated. Products Association to Forest Service re: proposed provisions to federal timber contracts, with industry input 10/12/71 (6 pages)

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Exhibit No.

Defendant's Description Forest Service Memo to Regional Foresters, regarding proposed provisions to federal timber contracts 11/2/71 (4 pages) Notes from Staff Meeting 11/23/1987 (2 pages) Forest Service position paper on Timber Sale Contract Review 11/23/87 (9 pages) Timber Sale Contract Revision 12/87 (4 pages) Notes re: Timber Sale Contract Provisions undated (3 pages) Comments on the National Forest Products Association Summary of Meeting 12/4/87 (1 page) Electronic mail message regarding Contract Revision Meeting between Forest Service and Timber Industry 12/7/87 (1 page)

Plaintiff's Objections Irrelevant; Not Authenticated.

Notes

7

8 9 10 11

Irrelevant; Not Authenticated; Hearsay. Irrelevant; Not Authenticated.

Irrelevant; Not Authenticated. Irrelevant; Not Authenticated.

Irrelevant; Not Authenticated; Hearsay.

12

Irrelevant; Not Authenticated.

13

14

Letter From Idaho Forest Industries, Inc. to Forest Service re revised timber sale contract provisions. 12/29/87 (2 pages)

Irrelevant; Not Authenticated.

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Exhibit No. 15

Defendant's Description Letter From Forest Service to National Forest Products Association 11/1/89 (5 pages) Letter From National Forest Products Association to Forest Service 7/23/90 (3 pages) Letter From National Forest Products Association to Forest Service 7/23/90 (3 pages) Letter From National Forest Products Association 12/4/89 (6 pages) Letter from National Forest Products Association 1/5/90 (4 pages) Letter from National Forest Products Association 5/1/90 (4 pages) Letter from Forest Service to American Forest and Paper Association 10/31/00 (13 pages) Letter from American Forest Resource Council 3/22/01 (2 pages) Memorandum concerning revisions to the 2400-6T Contract 3/29/01 (3 pages)

Plaintiff's Objections Irrelevant; Not Authenticated.

Notes

Irrelevant; Not Authenticated.

16

Irrelevant; Not Authenticated.

17

Irrelevant; Not Authenticated.

18

Irrelevant; Not Authenticated.

19

Irrelevant; Not Authenticated.

20

Irrelevant; Not Authenticated.

21

Irrelevant; Not Authenticated.

22

Irrelevant; Not Authenticated.

23

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Exhibit No.

Defendant's Description Text for newspaper ad and Timber Sale Prospectus, Umpqua National Forest, Pigout Sale, notes possible delay of award due to period for appeal of the decision not expired Procurement request and copy of ad in the Roseburg News Review: National Forest Timber for Sale, Umpqua National Forest, Pigout Sale Timber Sale Contract, Pigout Contract # 087459 Letter re: Modification of Pigout Timber Sale Contract 2/14/00 (3 pages) Letter re: Blanket Payment Bond - Pigout Contract 8/16/99 (1 page) Decrease rider, Bond 235115 061356 from $101,000 to $5050 2/18/00 (2 pages) Surety Bond Rider, Liberty Replaces Wausau 1/1/02 (2 pages) Increase rider, Bond 2351 15 061356 from $5050 to $101,000 6/12/02 (2 pages)

Plaintiff's Objections No present objection if authenticated by author or witness who can testify about contents.

Notes

24

No present objection if authenticated by author or witness who can testify about contents.

25

26 27

No present objection, but not complete contract. Sale area map is missing. Irrelevant.

Irrelevant.

28

Irrelevant.

29

Irrelevant.

30

Irrelevant.

31

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Exhibit No. 32

Defendant's Description Letter reconfirming bids on Pigout, Jigsaw, and Whitebird Timber Sales for 90 days 5/11/99 (1 page) Letter - Change of termination date of Pigout Timber Sale Contract No. 087459 due to delay awaiting resolution of lawsuit, other instructions Letter - Pigout Timber Sale Contract No. 087459, enclosed signed Contracts, Perf. Bond, and Surety Rider Letter - Pigout Timber Sale, Contract No. 087459, Notification of Judge Dwyer order 08/26/99 that enjoined the Umpqua NF from approving a plan of operations for Pigout Timber Sale Letter - Pigout Timber Sale, reducing downpayment on Pigout TS 12/28/99 (1 page) Letter - Pigout Timber Sale Modification of contract to add CT9.110 2/3/00

Plaintiff's Objections No present objection.

Notes

No present objection if authenticated by author or witness who can testify about contents.

33

No present objection.

34

No present objection.

35

Irrelevant.

36

Irrelevant.

37

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Exhibit No. 38

Defendant's Description Letter enclosing agreement Irrelevant. to modify Pigout contract 2/10/00 (1 page) Letter Modification of Irrelevant. Pigout Timber Sale Contract to Reduce Performance Bond 2/14/00 (1 page) Letter re: Pigout Timber Sale Irrelevant. Contract enclosing decrease riders 3/8/00 (1 page) Letter - Pigout TS, no longer enjoined under ONRC Action lawsuit, is available for operation 6/11/02 (2 pages) Letter ­ Pigout TS returning Performance bond to $101,000 6/12/02 (1 page) Analysis of Effects of Survey and Manage Results for the Pigout Timber Sale Letter - Pigout TS, annual plan of operation for Pigout, no logging activity planned for 2003 season

Plaintiff's Objections

Notes

39

40

No present objection.

41

Irrelevant.

42

43

No present objection if authenticated by author or witness who can testify about contents. Irrelevant.

44

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Exhibit No.

Defendant's Description Confidential Information Letter - Pigout Timber Sale Contract No. 087459, claim in the amount of $1,445,256 plus interest, plus attached charts of damages Letter - on 11/10/2004 I received your clam dated 11/9/2004 and will not be able to render a decision by March 10, 2005 but will render a decision by May 9, 2005 Letter - Plikat Logging plans to start falling in unit 44 of Pigout June 20, 2005, operation is dangerous, please keep unauthorized parties out of the area Letter - Pigout Timber Sale, annual plan of operations Analysis of Effects of Survey & Manage Results For The Pigout Timber Sale Text for newspaper ad

Plaintiff's Objections No present objection.

Notes

45

No present objection.

46

Irrelevant.

47

48 49

Irrelevant. No present objection if authenticated by author or witness who can testify about contents. No present objection to pages 6064-65 if authenticated by author or witness who can testify about contents; 6066-6083 duplicates Defendant's Exhibit 51.

50

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Exhibit No.

Defendant's Description Timber Sale Prospectus, Umpqua National Forest, Pigout Sale

Plaintiff's Objections No present objection to pages 6066-6083 if authenticated by author or by witness who can testify about contents; 6065 is duplicate of Defendant's Exhibit 50.

Notes

51

52

53

54

55

56

Timber Sale Contract, Pigout No present objection to pages 6168-6262 as No. 087459 excerpt from the Pigout Contract No. 087459; Defendant's Exhibit 52 is incomplete, missing sale area map. Irrelevant. Letter ­ Pigout TS adds CT9110 to Pigout Contract 2/3/00 (1 page) Letter Pigout TS - Reduction Irrelevant. of Performance Bond 2/14/00 (4 pages) Letter - reconfirmation of No present objection. bids on Pigout, Jigsaw, and Whitebird timber sales for an additional 90 days Letter - reducing Irrelevant. downpayment ­ 12/28/99 (1 page) Letter - Pigout Sale, annual Plan of operations for 2003, no logging activity planned Letter - Pigout Timber Sale, General Plan of Operations for 2004-2006 Irrelevant.

57

Irrelevant.

58

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Exhibit No. 59 60 61 62 63

Defendant's Description Contracting Officer's Findings and Decision, Pigout TS Jigsaw Sale ­ Invitation for bid and Sale Prospectus Performance Bond for Jigsaw Timber Sale 7/16/99 (2 pages) Performance Bond No. 223173-01376 7/16/99 (1 page) Jigsaw Timber Sale Contract

Plaintiff's Objections No present objection.

Notes

No present objection if authenticated by author or witness who can testify about contents. Irrelevant.

Irrelevant.

64

65

66

No present objection to pages 9427-9522 as excerpt from Jigsaw contract; Defendant's Exhibit 63 is incomplete, missing sale area map. Agreement to Modify Jigsaw Irrelevant. Timber Sale Contract by adding CT0.110 2/14/00 (3 pages) Award letter - change of No present objection if authenticated by author termination date of Jigsaw or witness who can testify about contents. Timber Sale Contract No. 08467 due to delay awaiting resolution of lawsuit, other instructions 7/8/99 (2 pages) Letter - approved copies of No present objection if authenticated by author contract and performance or witness who can testify about contents. bond for Jigsaw are enclosed. Designations of FSR and ER

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Exhibit No.

Defendant's Description Letter - Jigsaw, Pigout , Whitebird. In an order dated August 26, 1999, U.S. District Judge Dwyer enjoined the Umpqua National Forest from approving a plan of operations for or proceeding with operations of above sale 8/31/99 (2 pages) Letter ­ Jigsaw TS reducing down payment to $6684 12/28/99 (1 page) Letter ­ Jigsaw TS Modification of contract to add CT9.110 2/3/00 (1 page) Letter - Jigsaw TS ­ enclosing agreement to modify contract to add CT9.110 2/10/00 (2 pages) Modification of Jigsaw TS to reduce bond to $15,700 2/14/00 (1 page) Letter - Jigsaw TS this is annual plan of operations

Plaintiff's Objections No present objection.

Notes

67

Irrelevant.

68

Irrelevant

69

Irrelevant.

70

Irrelevant.

71

Irrelevant.

72

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Exhibit No.

Defendant's Description Court Document No. 0235316, D. C. No. CV-01-03079-AA Memorandum, Not for Publication, Headwaters v. USBLM Letter - Jigsaw Timber Sale, Contract No. 087467, is now available for operations, performance bond will need to be restored Confidential Information letter - Jigsaw Timber Sale Contact No. 087467, claim in the amount of $3,489,380 plus interest, plus attached charts of damages Letter - I received your claim 11/10/04 regarding Jigsaw, I will render a decision by 01/09/05 Letter - Jigsaw TS #087467, Scott Timber Co., plans to have no activity on Jigsaw TS this operating season (3/4/05)

Plaintiff's Objections Irrelevant. Handwriting not authenticated.

Notes

73

No present objection.

74

No present objection.

75

Irrelevant.

76

Irrelevant.

77

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Exhibit No.

Defendant's Description Letter - Jigsaw Sale, Contract No. 087467, Contracting Officer's Findings and Decision, in response to claim dated 11/09/04 Timber Sale Prospectus, Umpqua National Forest, Whitebird Sale Notice of National Forest Timber for Sale, Umpqua National Forest, the Whitebird Sale, published in the Roseburg News Review Whitebird Timber Sale Contract

Plaintiff's Objections No present objection.

Notes

78

79

No present objection to pages 9899-9918 if authenticated by author or witness who can testify about contents. Irrelevant; Not Authenticated.

80

81

82

Agreement to Modify Whitebird Contract by adding CT9.110 - Temporary Reduction of Performance Bond 2/14/00 (3 pages) Performance Bond 2351 18 061356 for Whitebird Timber Contract 7/16/99 (3 pages) Addition of Whitebird to Blanket Payment Bond 8/24/99 (1 page)

No present objection to pages 9949-10094 as excerpts from the Whitebird Contract. Defendant's Exhibit 81 is incomplete, missing sale area map. Irrelevant.

Irrelevant.

83

Irrelevant.

84

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Exhibit No. 85

Defendant's Description Whitebird performance bond decreased from $147,000 to $23,750 2/14/00 (2 pages) Whitebird performance bond increased from $23,750 to $147,000 6/10/03 (2 pages) Request for Refund of Timber Sale Deposits $143,276 Whitebird Timber Sale 1/19/00 (3 pages) Letter ­ Whitebird TS requesting reduction of down payment 11/30/99 (1 page) Letter ­ Whitebird TS reducing downpayment 12/28/99 (1 page) Irrelevant.

Plaintiff's Objections

Notes

Irrelevant.

86

Irrelevant.

87

Irrelevant.

88

Irrelevant.

89

90

Letter - Award letter, change of termination date of Whitebird Timber Sale Contract No. 087475 due to delay awaiting resolution of lawsuit, other instructions, and copy of receipt for certified mail

No present objection if authenticated by author or witness who can testify about contents.

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Exhibit No. 91

Defendant's Description Letter ­ enclosing decrease riders of performance bonds 3/8/00 (1 page) Letter ­ enclosing increase bond riders for performance bond 6/12/03 (1 page) Letter - Whitebird TS, Contract No. 087475, sale is available for operations except unit 40, and copy of Certified Mail Receipt Letter - I received your claim dated 11/9/04 regarding Whitehead Timber Sale, will render a decision by Jan. 9, 2005 Letter- Whitebird Sale, Contract No. 087475, Contracting Officer's Findings and Decision Forestry Forum Newsletter, Sept. 11, 1998 Forestry Forum Newsletter, Dec. 16, 1998 Forestry Forum Newsletter, March 19, 1999 S & M Conference call notes 1/12/00 (2 pages) Irrelevant.

Plaintiff's Objections

Notes

Irrelevant.

92

No present objection.

93

Irrelevant.

94

No present objection.

95

96 97 98 98A

Irrelevant; Hearsay. Irrelevant; Hearsay. Irrelevant; Hearsay. No present objection if authenticated by author or witness who can testify about contents.

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Exhibit No.

Defendant's Description Request for info re: how much $ will each forest need to comply with S & M requirements 2/11/00 (3 pages) Umpqua Nat'l Forest response re S & M budget info request 2/29/00 (4 pages) FS/BLM Memorandum re: Implementation of Survey and Manage Component 2 "Survey prior to GroundDisturbing Activities" Standard and Guidelines. 11/1/96 (6 pages) FS/BLM Memorandum re: Implementation of Survey and Manage Component 2 and Protection Buffer Standards and Guidelines Regarding "Survey Prior to Ground-Disturbing Activities" (5 pages) Memorandum From Survey and Manage SEIS Team 9/23/99 (4 pages) Interim Report - Status of Survey and Manage Species on Enjoined Sales January, 2000 (5 pages)

Plaintiff's Objections No present objection if authenticated by author or witness who can testify about contents.

Notes

99

Irrelevant; Not Authenticated.

100

No present objection.

101

No present objection if authenticated by author or witness who can testify about contents.

102

Irrelevant; Not Authenticated.

103

104

No present objection if authenticated by author or witness who can testify about contents.

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Exhibit No.

Defendant's Description Letter - Survey and Manage Survey Protocols Bryophytes with attached Survey Strategy 2 Protocol Version 2.0 (13 pages) Memo - Survey and Manage Protocols Lichens, with attached Survey Protocol for Compinent 2 Lichen Pseudocyphellaria rainierensis Version 2.0, March 12, 1998 Letter - Survey and Manage Survey Protocols - Mollusks, with attached version 2.0 Survey Protocol for Aquatic Mollusk Species from the Northwest Forest Plan Version 2.0 - October 29, 1997 Letter - Field Review of Management Recommendations: Survey and Manage Fungi and Bryophytes

Plaintiff's Objections Irrelevant; Not Authenticated.

Notes

105

Irrelevant; Not Authenticated.

106

Irrelevant; Not Authenticated.

107

Irrelevant; Not Authenticated.

108

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Exhibit No.

Defendant's Description

Plaintiff's Objections

Notes

109

110

Memo - Extension of Draft No present objection. Interim Guidance for Survey and Manage Component 2 Species: Red Tree Vole, with attached 11/04/1996 memo direction Letter - Survey and Irrelevant; Not Authenticated. Manage/Protection Buffer Survey Questionnaire

111

112

Letter - Survey and Manage Survey protocols Vascular, with attached Survey Protocols for Survey and Manage Strategy 2 Vascular Plants V. 2.0 December 1998 Umpqua National Forest Standards for Non-vascular Plant and Survey & Manage Species, re: Forest guidance on protocols and management recommendations

Irrelevant; Not Authenticated; Duplicate of Exhibit 119.

Irrelevant; Not Authenticated; Duplicate of Exhibit 120.

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Exhibit No.

Defendant's Description Letter - Survey and Manage Survey Protocols Protection Buffer Bryophytes v. 2.0, with attached Survey Protocols for Protection Buffer Bryophytes version 2.0 Memo - Transmittal of Survey Protocol for Seven Survey and Manage Protection Buffer Fungi (v. 1.3), with attached Survey Protocols Version 1.3 Letter - Survey and Manage Protocol - Oregon Red Tree Vole (Arborimus lonicaudus) Version 2.0, with attached survey protocol Version 2.0 Survey and manage Fungi, Lichen, & Bryophytes found in the Enjoined Sales

Plaintiff's Objections Irrelevant; Not Authenticated; Duplicate of Exhibit 121.

Notes

113

Irrelevant; Not Authenticated; Duplicate of Exhibit 122.

114

115

No present objection if authenticated by author or witness who can testify about contents; Duplicate of Exhibit 123.

No present objection if authenticated by author or witness who can testify about contents.

116

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Exhibit No.

Defendant's Description Letter - Survey and Manage Survey Protocols - Mollusks, with attached version 2.0 Survey Protocol for Aquatic Mollusk Species form the Northwest Forest Plan Version 2.0 - October 29, 1997 Letter - Survey and Manage Survey Protocols - Fungus, with attached Version 2.0 Survey Protocols for Fungi Letter - Survey and Manage Survey Protocols - Vascular, with attached Survey Protocols for Survey Manage Strategy 2 Vascular Plants V 2.0, December 1998 Umpqua National Forest Standard for Nonvascular Plant and Survey & Manage Species, re: Forest guidance on protocols and management recommendations

Plaintiff's Objections Irrelevant; Not Authenticated.

Notes

117

Irrelevant; Not Authenticated.

118

Irrelevant; Not Authenticated; Duplicate of Exhibit 111.

119

Irrelevant; Not Authenticated; Duplicate of Exhibit 112.

120

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Exhibit No.

Defendant's Description Letter - Survey and Manage Survey Protocols Protection Buffer Bryophytes v. 2.0 with attached Survey Protocols for Protection Buffer Bryophytes version 2.0 Memo - Transmittal of Survey Protocol for Seven Survey and Manage Protection Buffer Fungi (v.1.3) With attached Survey Protocols Version 1.3 Letter - Survey and Manage Protocol Oregon Red Tree Vole (Arborimus lonicaudus) Version 2.0 with attached survey protocol Version 2.0 Attachment 1-RTV Survey Protocol Revisions, replaces sections in Version 2.0 FS/BLM Memorandum re: Interim Guidance for Survey and Manage Component 2 Species: Red Tree Vole 11/4//96 (5 pages) Biology and Interim Survey Protocol for the Red Tree Vole September, 1996 (9 pages)

Plaintiff's Objections Irrelevant; Not Authenticated; Duplicate of Exhibit 113.

Notes

121

Irrelevant; Not Authenticated; Duplicate of Exhibit 114.

122

No present objection if authenticated by author or witness who can testify about contents.

123

124

No present objection if authenticated by author or witness who can testify about contents. No present objection.

125

126

No present objection if authenticated by author or witness who can testify about contents.

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Exhibit No. 127 128 129 130 131 132

Defendant's Description Letter re: Red Tree Vole Surveys 1/24/00 (1 page) FY 2000 Red Tree Vole Climbing Needs: Diamond Lake R.D. Survey and Manage Botany Surveys Survey and Manage Red Tree Vole Surveys Survey and Manage Mollusk Surveys Solicitation for Survey Services (20 pages) Various Botany (fungi, lichen bryophyte) Surveys for Units 1,2,3,4,5,7,8 of the Jigsaw Timber Sale Various Red Tree Vole Surveys for Units 1,2,3,4,5,7,8 of the Jigsaw Timber Sale Various Terrestrial Mollusk Surveys for Units 1,2,3,4,5,6,7,8, and a rightof-way on the Jigsaw Timber Sale Various Red Tree Vole Surveys for Whitebird Units 9, 25, 32, 33, 40, 41

Plaintiff's Objections No present objection if authenticated by author or witness who can testify about contents. No present objection if authenticated by author or witness who can testify about contents. Irrelevant; Not Authenticated. No present objection if authenticated by author or witness who can testify about contents. Irrelevant; Not Authenticated. Irrelevant; Not Authenticated. Irrelevant; Not Authenticated.

Notes

133

134

No present objection if authenticated by author or witness who can testify about contents.

Irrelevant; Not Authenticated.

135

No present objection if authenticated by author or witness who can testify about contents.

136

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Exhibit No. 137

Defendant's Description Various Botany Surveys for Whitebird Units 9, 25, 27, 32, 33, 40, 41 Various Mollusk surveys for Whitebird Units 9, 25, 27, 32, 33, 40, 41, 42(R/W)

Plaintiff's Objections Irrelevant; Not Authenticated.

Notes

Irrelevant; Not Authenticated.

138

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