Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:05-cv-00170-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SWANSON GROUP, INC., Plaintiff, v. THE UNITED STATES, Defendant.

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No. 05-170C consolidated with 05-171C (Senior Judge Smith)

DEFENDANT'S AMENDED ANSWER TO PLAINTIFF'S COMPLAINT For its amended answer to the complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 are conclusions of law and plaintiff's characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 2. 3. 4. Admits. Admits. The allegations contained in paragraph 4 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 5. The allegations contained in paragraph 5 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 6. Admits the allegation contained in paragraph 6 that plaintiff submitted a letter to

the contracting officer on July 12, 2004. The allegation that the letter was "a properly certified claim" is a conclusion of law to which no answer is required; to the extent that it may be deemed

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an allegation of fact, it is denied. Admits the remaining allegations contained in paragraph 6 to the extent supported by the letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 6. 7. Admits the allegations contained in paragraph 7 to the extent supported by the

letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 7. 8. Admits the allegations contained in paragraph 8 to the extent supported by the

letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 8. 9. Admits the allegations contained in paragraph 9 to the extent supported by the

letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 9. 10. Admits the allegations contained in paragraph 10 to the extent supported by the

letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 10. 11. 12. Denies. The allegations contained in paragraph 12 are conclusions of law for which no

answer is required; to the extent that they may be deemed allegations of fact, they are denied. 13. 14. Admits. Admits the allegations contained in the first, second and third sentences of

paragraph 14 to the extent supported by the document cited, which is the best evidence of its contents. Denies the allegations contained in the fourth sentence of paragraph 14. Admits to the allegation contained in the fifth sentence of paragraph 14 that the Benchmark timber sale was

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awarded to plaintiff; denies the remaining allegations contained in the fifth sentence of paragraph 14. 15. 16. Admits. Denies for lack of knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 16. 17. 18. Admits. Admits the allegations contained in paragraph 18 to the extent supported by the

letter cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 18. 19. Admits the allegations contained in paragraph 19 to the extent supported by the

district court case cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 19. 20. Admits the allegations contained in paragraph 20 to the extent supported by the

Biological Opinions cited, which are the best evidence of their contents; otherwise denies all other allegations contained in paragraph 20. 21. The allegations contained in paragraph 21 are conclusions of law for which no

answer is required; to the extent that they may be deemed allegations of fact, they are denied. 22. Admits the allegations contained in paragraph 22 to the extent supported by the

Northwest Forest Plan and the Aquatic Conservation Strategy ("ACS") cited, which are the best evidence of their contents; otherwise denies all other allegations contained in paragraph 22. 23. The allegations contained in paragraph 23 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. .

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24.

Admits the allegations contained in paragraph 24 to the extent supported by the

district court opinion cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 24. 25. 26. 27. Denies. Denies. The allegations contained in paragraph 27 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 28. The allegations contained in paragraph 28 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 29. The allegations contained in paragraph 29 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 30. The allegations contained in paragraph 30 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 31. The allegations contained in paragraph 31 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. 32. 33. 34. Denies. Defendant's responses to paragraphs 1 through 32 are incorporated by reference. The allegations contained in the first sentence of paragraph 34 are conclusions of

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law and plaintiff's characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied. Admits the allegations contained in the second sentence of paragraph 34 to the extent supported by the contract clause cited, which is the best evidence of its contents; otherwise denies all other allegations contained in paragraph 34. 35. 36. 37. Denies. Denies. The allegations contained in paragraph 37 are conclusions of law and plaintiff's

characterization of its case to which no answer is required; to the extent that they may be deemed allegations of fact, they are denied 38. 39. 40. 41. Denies. Defendant's responses to paragraphs 1 through 38 are incorporated by reference. Admits. Admits the allegations contained in the first sentence of paragraph 41, that the

purpose of the suspension was to permit the Forest Service time to consult with the National Marine Fisheries Service ("NMFS") concerning whether the Benchmark timber sale contract complied with the ACS and would not jeopardize the listed aquatic species. Avers that a second consultation with NMFS was required because the first consultation, prepared pre-award, was found to be invalid in the court's decision in PCFFA I. To the extent plaintiff alleges facts inconsistent with this clarification, those allegations are denied. Defendant denies the remaining allegations contained in paragraph 41. 42. 43. 44. Denies. Defendant's responses to paragraphs 1 through 42 are incorporated by reference. Denies.

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45.

Denies that plaintiff is entitled to the relief requested under the title

"WHEREFORE" in its entirety, or to any relief whatsoever. 46. Denies each and every allegation not previously admitted or otherwise qualified.

WHEREFORE, defendant respectfully requests that the Court dismiss the complaint, and that defendant be granted such other and further relief as the Court may deem just and proper. DEFENDANT'S AFFIRMATIVE DEFENSE 47. Plaintiff's claims are barred by the affirmative defense of assumption of risk. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director OF COUNSEL: MARCUS WAH Associate Regional Attorney USDA-OGC, Pacific Region 1734 Federal Building 1220 S.W. Third Ave Portland, OR 97204-2825 s/ Lindsay Williams LINDSAY WILLIAMS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Phone: (202) 353-7995 Fax: (202) 514-8624 Attorneys for Defendant

July 15, 2005