Free Response - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ THE SWEETWATER, A WILDERNESS ) LODGE LLC, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________)

No. 02-1795C (Judge Merow)

DEFENDANT'S RESPONSES TO PLAINTIFF'S PROPOSED FINDING OF FACT Pursuant to the Court's Order dated January 27, 2006 order, defendant, the United States, respectfully files its responses to the proposed findings of fact ("PPFF") filed by plaintiff, The Sweetwater, A Wilderness Lodge LLC ("The Sweetwater").

Location of the Sweetwater Lodge 1. The Sweetwater Lodge is located on, and entirely surrounded by, Forest Service land

within the Shoshone National Forest ("Shoshone"). See Joint Exhibit 1 at p. 16 [hereinafter cited to as "JX __"]; Defendant's Corrected Proposed Findings of Uncontroverted Facts at ¶ 1 (dated December 23, 2003)[hereinafter cited to as "Def. Facts ¶ __"]. Defendant's Response To PPFF ¶ 1 Defendant agrees.

2.

The lodge assets are located in a canyon at the end of the Sweetwater Road (also referred

to as FSR 423), which is a road approximately 3.5 miles in length. The Sweetwater, A 1

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Wilderness Lodge LLC v. The United States, No. 02-1795c (slip opinion)(Dec. 30, 2004)(at 2)[hereinafter cited to as "Sweetwater at __"]; Tr. 809:16-812:211; Declaration of Jeffrey C. Mummery at ¶¶ 4-5 (App. 213-214 in Appendix to Plaintiff's Memorandum in Support of its Cross-Motion for Summary Judgment As To Liability On Counts I and II and Opposition to Defendant's Motion to Dismiss Count II For Lack of Subject Matter Jurisdiction and Motion to Dismiss Counts I and II for Failure to State a Claim, or, In the Alternative, Motion for Summary Judgment on Counts I and II (Feb. 6, 2004)[hereinafter cited to as "Mummery Dec. at ¶ __ (App. __"]. Defendant's Response To PPFF ¶ 2 Defendant agrees.

3.

Sweetwater Road, which is controlled and maintained by the Forest Service, provides the

only vehicular access to the lodge and is part of the Forest Service's road system. JX 5 at p. 1 (Sweetwater Road "provides the only access for the permitted lodge owner and it's users"); Sweetwater at 2. Defendant's Response to PPFF ¶ 3 Defendant agrees with the proposed finding, but disagrees with any implication that the Forest Service agreed that it would perform all maintenance on Sweetwater Road. Mr. Rossman's June 13, 1995 email states that "JEFF, HAVING AN INTEREST IN THE SAFETY OF HIS GUESTS, WILL MAINTAIN THE ROAD AS HE SEES FIT." DX 18. Forest Service

"Tr." refers to the transcript of the hearing held in Cody, Wyoming on September 1929, 2005 by page and line number. 2

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maps and signs in 1995 clearly identified that Sweetwater Road was not maintained for passenger vehicles. DPFF2 ¶¶ 6-12.

4.

There are three bridges on Sweetwater Road, all of which are owned and controlled by

the Forest Service. The first bridge is located approximately a quarter mile from the beginning of Sweetwater Road where it meets Yellowstone Highway. This bridge spans the North Fork of the Shoshone River and is hereinafter referred to as the "North Fork Bridge." There are two additional bridges on Sweetwater Road at distances of approximately 2.5 and 3 miles from the Yellowstone Highway, both of which span Sweetwater Creek. These two bridges are hereinafter referred to as the "Sweetwater bridges." Sweetwater at 1-2. Defendant's Response to PPFF ¶ 4 Defendant agrees that the Forest Service owns and controls the three bridges on Sweetwater Road, but notes that it did not build the two Sweetwater bridges (DPFF ¶¶ 18-19), nor did it own them until sometime after 1995 when, pursuant to 36 C.F.R. § 251.60(h)(2)(i), ownership of the bridges passed by default to the Government because the Brannons failed to remove them after selling the lodge to The Sweetwater. Defendant agrees with the second, third, fourth, and fifth sentences of the proposed finding.

5.

The creek which the Sweetwater bridges spanned is subject to flash flooding throughout

the year during rainstorms, and most often during the spring during snowmelt, where the water level would suddenly increase dramatically and anyone trying to cross the creek, whether they

2

"DPFF" refers to defendant's proposed findings of fact, filed December 23, 2005. 3

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were on foot or in a vehicle, could be swept away and killed. Tr. 802:9-807:25; Tr. 910:13911:6; Tr. 1695:17-1696:21. Defendant's response to PPFF ¶ 5 Defendant agrees that Sweetwater Creek, like many other drainages in the Shoshone, is subject to flash flooding, which could result in serious injury or death to someone crossing the creek on foot or in a vehicle, but notes that the Forest Service takes steps to notify visitors that there are hazards that they may encounter. PX 40. Defendant also notes that Monte Barker, Shoshone National Forest Wildlife Biologist, testified that flash flooding of Sweetwater Creek was "most prevalent . . . during the spring and early summer," before the three months (July, August, and September) that Mr. Mummery designated as "high season" in the business plan that he did not create until 2005 to support his damages claim. Tr. 805:14-15; PX 41-1. Mr. Barker also testified that "[w]e have very few wet falls." Tr. 805:18-19.

6.

The owner of the lodge assets would be unable to operate an ongoing resort business

without vehicular access over the Sweetwater bridges. Tr. 2719:9-2723:15 (the Forest Service's expert witness concluded that accessing the lodge via fords using horses or vehicles was not feasible); Defendant's Exhibit 62 (at pages 67-69)[hereinafter cited to as "DX __"]; Mummery Dec. at ¶ 49 (App. 225); Tr. 823:10-16 (Mr. Barker, who is an experienced backcountry ranger, also concluded that accessing the lodge via horseback was not a viable option).

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Defendant's Response to PPFF ¶ 6 Defendant disagrees. Vehicular access to the lodge does not require bridges, because fords offer a viable alternative means of vehicular access. Contrary to this proposed finding, defendant's appraisal expert, Mr. John Frome, testified that operating the lodge using fords would generate a small net income that would cover operating expenses if its peak season were June through August. Tr. 2723:6-14. This income would be substantially larger if, as Mr. Mummery now proposes, the peak season were June 28 through September 26 (PX 41, p. 1), because the lodge would only lose approximately two weeks of its peak season (the first half of July) rather than half of its peak season (June and first half of July). Acting Wapiti District Ranger Bob Rossman testified that he considered fords to be a safe means of reaching the lodge (Tr. 957:5-19), and Forest Supervisor Rebecca Aus also testified that fords are used routinely in the Shoshone and other National Forests. Tr. 1692:10-1693:6, 1786:7-1787:12. Realty Specialist Jennifer Watson testified that fords already existed on Sweetwater Road in 1995, and were used by the Brannons. Tr. 2099:5-2100:18; DX 16/2, 16/4. Defendant agrees that Mr. Frome testified that he did not consider it to be feasible to operate The Sweetwater's lodge relying exclusively on horseback access. Tr. 2721:1-10. At trial, Mr. Barker testified that operating the lodge by horseback "may be possible, although I don't know how financially viable it is." Tr. 823:23-25. During his deposition, Mr. Barker testified that the lodge could be easily reached by horseback without crossing Sweetwater Creek, and stated, "I've seen people take lodges that we thought was totally unviable with the right types of marketing and individuals and so forth, they made them work." Def. Resp. to PFUF3 ¶ 13.

"Def. Resp. to PFUF" refers to defendant's responses to plaintiff's proposed findings of uncontroverted fact, filed March 29, 2004. 5

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7.

The absence of vehicular access would severely limit any operating season for the lodge,

greatly increase operating and other overhead expenses for lodge operations, greatly increase the risk of injury or death to lodge patrons, and similarly increase liability to the lodge. Tr. 2722:415 (Forest Service's expert witness admitted that season would be cut in half using fords); Mummery Dec. ¶ 49 (App. 225). Defendant's Response to PPFF ¶ 7 Defendant disagrees. The absence of bridges would only modestly limit the high season for the lodge now proposed by Mr. Mummery. PX 41. There is no evidence that operating the lodge using fords would "greatly increase operating and other overhead expenses." As Ms. Aus testified, Mr. Mummery owned a four-wheel-drive Suburban that he could use to ferry guests from the parking lot at Wapiti Campground to the lodge, which would also diminish the risk of injury or death to lodge patrons and any associated liability for The Sweetwater. Tr. 1695:7-16. As noted in Defendant's Response to PPFF ¶ 6, The basis of Mr. Frome's cited testimony was his May 2005 report, which assumed that the season for operating the lodge was June, July, and August. DX 64/71. After Mr. Frome prepared this report, plaintiff served Mr. Mummery's business plan, which proposed a "high season" for operating the lodge of June 28September 26, plus a "shoulder season" September 27-October 17. PX 41, p. 1. Snowmelt would not affect use of the fords in September and October, because it is usually gone by midJuly, and rainfall would be unlikely to interfere with the use of fords. Mr. Barker testified that "[w]e have very few wet falls." Tr. 805:18-19.

8.

As one Forest Service employee familiar with the permit and lodge operations stated, 6

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operating the lodge without vehicular access over the bridges would be a total change from what the Forest Service intended the operations to be at the time the permit was signed. Tr. 853:13-18 (testimony of Monte Barker). Defendant's Response to PPFF ¶ 8 Defendant agrees that this proposed finding accurately represents the cited portion of Mr. Barker's testimony, but disagrees that Mr. Barker was authorized to express the intent of the Forest Service, and also disagrees that Mr. Barker ever told The Sweetwater's representatives that the Forest Service would ensure that The Sweetwater could operate the lodge using bridges. On the contrary, Mr. Barker testified that "what we agreed to is that if the bridges went out, fords would ­ would be there." Tr. 837:7-8.

9.

A Forest Service report prepared in 1992 and revised in 1997 supporting replacement of

the Sweetwater bridges concluded that "[s]hould the [Sweetwater] bridges fail and this access be lost, legal action resulting in considerable cost to the government will surely be forth coming from the lodge permittee as well as the service to the public being lost." JX 10(page 5)(emphasis added). In addition, in a letter to the Forest Service dated 1986, the prior permittee stated that "a major catastrophe (i.e., a bridge wash-out) would obviously wipe us out." Plaintiff's Exhibit 4 [hereinafter cited to as "PX __"]. Defendant's Response to PPFF ¶ 9 Defendant agrees that plaintiff has accurately quoted the cited passages, but notes that before Mr. Mummery bought the lodge, he understood that the Forest Service could not make any commitments to replace the bridges if they became impassable. DPFF ¶¶ 87-91.

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10.

The lodge contributes to about 20% of the use made by the public of the road. Tr. 105:2-

8. Sweetwater Road also provides public recreational access to the Shoshone National Forest and is used by the Forest Service for administrative purposes related to monitoring and maintaining the Forest. Tr. 847:7-848:10; JX 5 (page 1); Tr.921:21-922:11. The Forest Service was encouraging more public use of the Sweetwater Road by equestrians hauling horse trailers up the road and had built a turn-around for those vehicles at the end of the road just before the permit area. Tr. 171:4-17 Tr. 849:18-851:25. Defendant's Response to PPFF ¶ 10 Defendant disagrees that the lodge only contributes to 20 percent of the use made by the public of the road. In the testimony cited in the first sentence of this proposed finding, Mr. Mummery stated that he "would guess that the lodge is less than 20 percent of use of the road." Tr. 105:7-8 (emphasis added). Numerous Forest Service employees testified that Sweetwater Road carried little traffic other than lodge visitors outside hunting season. DPFF ¶ 15. Defendant disagrees that the Forest Service has any significant need for Sweetwater Road for administrative purporses. Mr. Barker testified that "[w]e don't have any need for range management purposes as far as livestock grazing because we have none. We don't have any timber base up there." Tr. 815:18-21. Defendant also disagrees that the Forest Service encouraged more public use of Sweetwater Road by building a turnaround at the end of the road. Mr. Barker testified that the turnaround was not created to encourage more visitors, but to accommodate Mr. Mummery, because users of the road were tearing down the fence that marked the permit area so that they could turn around. Tr. 850:1-8.

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Lodge facilities 11. The facilities at The Sweetwater Lodge include an original lodge building with a dining

room, lounge area with original river rock fireplace, office, additional room, cook's quarters, two bathrooms, large kitchen with butlers' pantry, and laundry room with additional storage. JX 1 (p. 1/16); PX 44 (Que Mangus appraisal). Defendant's Response to PPFF ¶ 11 Defendant disagrees. Mr. Mangus's report simply states that the lodge has a "fireplace" and "a kitchen, dining room, lounge and storage area." PX 44, p. 9. There is no mention of a "cook's quarters." The fireplace is not described as "original river rock," nor is the kitchen described as "large."

12.

The facilities also include a main cabin with living room, dining area, full kitchen,

bathroom, Master bedroom, loft with walk out balcony, large enclosed front porch, full basement which has Sweetwater Spring and spring box therein, and attached maintenance shop, and another large cabin including living room with native rock fireplace and chimney, dining room, bedroom, bathroom, kitchen and attached covered porch. JX 1 (p. 1/16); PX 44 (Que Mangus appraisal). Defendant's Response to PPFF ¶ 12 Defendant disagrees. Mr. Mangus's report only describes the "chalet" as having "living quarters . . . enclosed porch . . . outside wood deck. . . . upper level loft." PX 44, p. 9. The entirety of Mr. Mangus's description of the Absaroka Cabin is: "470 sq. ft. of floor space and a 132 sq. ft. porch." Id.

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13.

The facilities also include four additional cabins all of which include a sitting

room/bedroom with native rock fireplace and chimney, dressing room, bathroom and covered porch with view of Sweetwater Creek. JX 1 (p.1/16); PX 44 (Que Mangus appraisal). Defendant's Response to PPFF ¶ 13 Defendant disagrees. Mr. Mangus's report does not describe any of the other four cabins as having "native rock fireplace and chimneys" or a "dressing room." The report simply states that "each cabin contains around 355 sq. ft."

Nature of Term SUPs 14. In order to use the Sweetwater Lodge, the owner must obtain a Term Special Use Permit

("Term SUP") from the Forest Service. 36 C.F.R. § 251.50(a); Tr. 97:23-25. Defendant's Response to PPFF ¶ 14 Defendant agrees that all uses of National Forest System lands are special uses, including ownership and use of The Sweetwater's lodge, and that before conducting a special use, the owner must submit a proposal and obtain authorization from an authorized Forest Service officer. 36 C.F.R. § 251.50(a).

15.

If a Term SUP is abandoned, terminated, revoked or cancelled, the owner of the assets

must remove them on its own expense from National Forest lands. 36 C.F.R. § 251.60(h)(2)(i). Defendant's Response to PPFF ¶ 15 Defendant agrees that the cited regulation states, "Upon revocation or termination of a special use authorization, the holder must remove within a reasonable time the structures and improvements and shall restore the site to a condition satisfactory to the authorized officer, 10

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unless the requirement to remove structures or improvements is otherwise waived in writing or in the authorization." 36 C.F.R. § 251.60(h)(2)(i).

16.

One of the purposes of recreational Term SUPs is to serve, by regulation and by purpose,

as a delivery system to provide public services. Tr. 1949:17-1950:16 (testimony of Gary Reynolds, the Recreation, Wilderness and Land Staff Officer for the Shoshone). Defendant's Response to PPFF ¶ 16 Defendant agrees that plaintiff has accurately represented a portion of Mr. Reynolds' testimony, but Mr. Reynolds also testified that special use permits are not a way for the Government to obtain services, and he distinguished special use permits from concession contracts. Tr. 1975:20-1977:24. Defendant also notes that the purpose of special use permits is a legal issue, and Mr. Reynolds is not a lawyer, nor was he a Forest Service line officer.

17.

The purpose of Term Special Use Permits is to provide "a service that the Forest Service

is supposed to provide to the public and deem that a private entity could do--could do the job so the Forest Service wouldn't have to open up a lodge." Tr. 78:20-789:1 (testimony of Mike Bree); Tr. 801:18-802:8; see Tr. 857:20-25. Defendant's Response to PPFF ¶ 17 Defendant agrees that plaintiff has accurately quoted the cited testimony, but notes that the purpose of special use permits is a legal issue, and Mr. Bree is not a lawyer, nor is he a line officer.

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18.

Mr. Monte Barker, who was a member of the Shoshone special use permit team, stated

that "concessionaire permittees are part of the Forest Service who are permitted to provide a service that we want provided, it's not for convenience of the permittee. It's to meet a responsibility providing public service to the public, and so we allow the numbers and the locations in order to provide what we feel to meet the public need." Tr. 834:5-11. Mr. Barker further stated that he treated permittees as employees. Tr. 866:20-23. Defendant's Response to PPFF ¶ 18 Defendant agrees that plaintiff has accurately quoted the cited testimony, but notes that the purpose of special use permits is a legal issue, and Mr. Barker is not a lawyer, nor is he a line officer.

19.

By their own conditions, Term SUPs create an obligation against the United States by

requiring the United States to pay equitable consideration for any improvement authorized by the permit which the Forest Service revokes, for reasons other than breach of the provisions, prior to the end of the term or by mutual consent with the permit holder. Sweetwater at 4-5; 36 C.F.R. §251.51 (Term permits provide compensable rights to permittees); JX 1 (at clause 15). Defendant's Response to PPFF ¶ 19 Defendant agrees that clause 15 of the permit issued to The Sweetwater provides that if the Forest Service "shall determine that the public interest requires termination of this permit . . . the United States shall be obligated to pay an equitable consideration for the improvements." JX 1/3, ¶ 15 (emphasis added). However, clause 44 of the permit provides that the permit may be revoked or terminated to prevent confrontation or conflict with grizzly bears, and "the United States shall not be liable for any consequences from such suspension, revocation, or 12

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termination." JX 1/11, ¶ 44.

[Defendant notes that there are no PPFF ¶¶ 20-23]

The Forest Service's 1992 inspection of the Sweetwater bridges 24. In the course of pursuing discovery in this case, The Sweetwater discovered for the first

time that in 1992, three years before it purchased the lodge assets, the Shoshone requested bridge inspectors from the Wasatch-Cache National Forest to inspect the Sweetwater bridges. Tr. 1390:6-1391:20. Defendant's Response to PPFF ¶ 24 Defendant agrees that the Shoshone's engineering staff requested bridge inspectors from the Wasatch-Cache National Forest to inspect the Sweetwater bridges in 1992, but is unable to confirm when plaintiff first learned this fact.

25.

As of 1992, the Sweetwater bridges had not been load rated. Tr. 1885:7-22; Tr. 1891:12-

1892:7. However, it was Forest Service policy to close bridges which had not been load rated. Id. The Forest Service engineer admitted that the Forest Service's failure to close the bridges absent a load rating was a violation of Forest Service policy. Id. Defendant's Response to PPFF ¶ 25 Defendant disagrees. In the first sentence of the proposed finding, plaintiff has misstated the cited testimony of Shoshone civil engineer Tom Koenig. In both cited passages, plaintiff's counsel asked Mr. Koenig whether the Sweetwater bridges had been load rated when he carried out his inspection in 2000 (shortly after he arrived on the Shoshone), not in 1992, as stated in the 13

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proposed finding. Tr. 1885:7-11, 1891:12-18. Mr. Koenig explained that there is no fixed schedule for bridges to be load rated each time they are inspected, and that the Forest Service only requires bridges to be load rated if their condition changes. Tr. 1928:25-1929:9, 1929:251930:9, 1930:24-1931-4. A Forest Service analysis in 1976 of the design that strengthened the Sweetwater bridges by adding the three I-beam stringers indicated a load rating of at least 17.3 tons. DX 3/6, 3/8; Tr. 1887:16-18. The second and third sentences of the proposed finding also misstate Mr. Koenig's testimony. In the cited passages, Mr. Koenig did not admit that there was any "failure to close the bridges" that "violated Forest Service policy." Tr. 1885:7-11, 1891:12-18. Mr. Koenig testified that the Forest Service policy is that bridges have to have a minimum three-ton load rating to stay in operation. Tr. 1902:5-7. He explained that based upon his inspection, he believed that the bridges could be left open because "the three I beams that were added to the bridges sometime after 1974 if I remember right, to me, they gave considerable strength to the bridge. . . if the bridge was going to fail anytime in the near future, it was going to have been from the abutments undergoing more scour and having a substructure or abutment failure. . . . the [N]orth [F]ork bridge, the lower bridge, was only rated for five tons itself . . . there just couldn't be a load getting to the upper two bridges that would cause the bridge to fail." Tr. 1887:161888:2.

26.

The Shoshone Forest Engineer, Mr. Jim Fischer, admitted that, after the bridge inspectors

conducted a technical inspection of the Sweetwater bridges in 1992, they stated to the Shoshone that "you need to close those bridges immediately." Tr. 1392:5-1395:7; Sweetwater at 2. The Forest Service employees on the Shoshone argued that they could not close the bridges because 14

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the Forest did not want to face the consequences of the impact of bridge closure on the lodge owner given the critical need for vehicular access to lodge operations. Sweetwater at 2; Tr. 1394:18-24. Mr. Fischer later described this inspection as "basically condemning" the bridges. JX 7 (page 1). Defendant's Response to PPFF ¶ 26 Defendant agrees that Mr. Fischer testified that the Wasatch-Cache bridge inspectors did make the comment quote above, but explained "that was their initial reaction, but it was not their conclusion." Tr. 1397:7-8. The inspection forms, which were completed before this conversation, did not recommend closing the bridges. DPFF ¶ 22; DX 9/1-2, DX 10/1-2. In the passage cited in the second sentence of the proposed finding, Mr. Fischer did not testify that there was a "critical" need for vehicular access to lodge operations, nor did he testify that the bridges were critical to ensuring vehicular access to lodge operations. Tr. 1394:15-24. Defendant agrees that in a handwritten internal Forest Service note (JX 7/1), Mr. Fischer described the 1992 inspection as "basically condemning" the bridges because the inspectors recommended replacing both bridges, but he also testified that "[i]f they had recommended the final recommendation as the official inspectors to close the bridges, they would have given those bridges an overall appraisal, either a zero or one rating, and they would have written on those forms that the bridges had to be closed. That was not done." Tr. 1397:19-24.

27.

The bridge inspectors, in response to the Shoshone employees reaction to their inspection

results, purportedly agreed to the Shoshone placing a 3 ton weight limit sign by the bridges. Sweetwater at 2; Tr. 1394:24-1395:3. Mr. Fischer referred to this outcome as a "compromise"

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that would "probably" be safe for motorists. Sweetwater at 2; Tr. 1394:25; Tr. 1396:17; Tr. 1582:8-1583:13. Defendant's Response to PPFF ¶ 27 Defendant disagrees that the decision to post the three-tone weight limit signs was made only by Mr. Fischer. Mr. Fischer testified that as a result of his conversation with the WasatchCache inspectors, it was "our joint professional opinions" that "[w]e felt that the bridges could safely carry" a three-ton load, such as a passenger car or pick up truck. Tr. 1402:23-1403:5. Defendant agrees that in the passage cited in the second sentence of the proposed finding, Mr. Fischer testified that "[c]ompromise, negotiation, reasonable solution, whichever you'd like to call it. It was ­ as I said here, it was our judgment that [the bridges] would probably be safe restricting it to pickup trucks and passenger cars." Tr. 1583:10-13.

28.

However, the Forest Service bridge inspectors did not load rate the bridges before or after

they put up the 3 ton weight limit sign. Tr. 1402:11-13; Tr. 1885:7-22; Tr. 1891:12-1892:7. Defendant's Response to PPFF ¶ 28 Defendant agrees that this proposed finding accurately reflects the cited testimony of Mr. Fischer (Tr. 1402:11-13), but not the cited testimony of Mr. Koenig, who was only asked about his awareness of any load rating "at that point in time" when he performed the 2000 inspection (Tr. 1885:9-10, 1891:16).

29.

Mr. Fischer testified that, pursuant to his office's standard operating procedure, Ms.

Jennifer Watson would have been informed of this matter. Tr. 1409:24-1412:1. However, Ms. Watson denied having any knowledge. Tr. 2026:15-24. 16

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Defendant's Response to PPFF ¶ 29 Defendant agrees that Mr. Fischer testified that "I can't recall if we specifically did it, but it was the standard operating procedure" to convey information about the 1992 bridge inspection to the Wapiti District Ranger office. Tr. 1411:18-20. Defendant agrees that Ms. Watson testified that she was unaware of the 1992 bridge inspection when The Sweetwater was considering purchasing the lodge.

The Sweetwater's purchase of the lodge 30. The Brannons had been operating the lodge assets since 1983 under a Term SUP issued

by the Forest Service. JX 3. Defendant's Response to PPFF ¶ 30 Defendant agrees, and notes that the permit issued to the Brannons was amended in 1985. JX 4.

31.

At the time the Brannons operated the lodge, visitors to the lodge typically accessed it in

passenger cars, including cars such as Cadillacs and other cars, and the Forest Service did not restrict that use with signs on the road or otherwise. Tr. 137:22-138:2; Tr. 797:14-798:1; Tr. 860:2-12; Tr. 1380:25-1381:5; Tr. 2268:11-2270:17.4

The two Forest Service employees who together agreed to send the funding back which otherwise would have resulted in the Sweetwater bridges being repaired, Messrs. Larson and Fischer (see ¶¶ 151-153 supra), testified that they recalled a large sign located on the side of Sweetwater Road which stated that the road was not maintained for passenger cars. However, Mr. Barker of the Forest Service testified that no such signs were put up. Tr. 860:2-12. Nor did Mr. Koenig recall any signs as of 2000 when he arrived on the Forest. Tr. 1858:22-25. Mr. Bree also testified that the Forest Service had never restricted the type of cars which could use Sweetwater Road. Tr. 797:14-798:1. In addition, Ms. Watson had no recollection of any large 17

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Defendant's Response to PPFF ¶ 31 Defendant agrees that visitors reached the lodge in passenger cars while it was operated by the Brannons. Forest Service employee Mike Bree testified that "Brannons bladed the road" (Tr. 797:19-20), and Shoshone Forest Engineer Jim Fischer testified that "I do know that [Mr. Brannon kept the road fairly smooth, when he had the lodge so that the passenger car vehicles could go up there." Tr. 1524:20-22. Defendant agrees that the Forest Service has not restricted use of Sweetwater Road by passenger vehicles, because they have never been prohibited, but disagrees that the Forest Service has not posted signs warning motorists against using passenger vehicles on the road. Both Mr. Fischer and Wapiti District Ranger Brent Larson testified that a large white sign with black letters posted by the Forest Service warned motorists just after they crossed the North Fork bridge that Sweetwater Road was "Not Maintained for Passenger Cars." DPFF ¶¶ 10-12. Mr. Barker did not testify that "no such signs were put up" to warn motorists, as plaintiff asserts, but merely agreed that "there's no signage restricting" what kind of vehicles could use the road (Tr. 860:9-11). Mr. Bree similarly testified that the Forest Service did not "restrict" passenger cars from using the road (Tr. 797:24-798:1), and like Mr. Barker, did not address whether any signs were posted to warn motorists that if they chose to drive passenger cars on Sweetwater

sign meeting the description provided by Mr. Larson. Tr. 2006:23-2009:18. Also, Mr. Wilkerson and Mr. Mummery, both of whom traveled the road frequently, testified unequivocally that no sign ever existed. Tr. 2920:15-2921:15; Tr. 2268:11-2270:2. Finally, the Forest Service did not produce any photographs or documentation showing that such a sign had been ordered or placed on the road. Moreover, it would be illogical to place a sign warning passenger cars to go back on the other side of the North Fork bridge, because once they got to that point there was no easy turnaround point. See Tr. 1221:24-1222:10 (Mr. Larson explained that gates had been placed on the North Fork bridge because there was no convenient space along the Sweetwater Road if a traveler needed to turn around). The fact is that no specific warning against the use of the road by passenger cars was ever present on Sweetwater Road. 18

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Road, they did so at their own peril. Thus, the testimony of Mr. Barker and Mr. Bree does not conflict with the testimony of Mr. Fischer and Mr. Larson. Ms. Watson, too, recalls a sign warning motorists that Sweetwater Road was a "steep, narrow road" (Tr. 2008:1-3), although she was unsure of the sign's dimensions, and estimated them as being smaller than did Mr. Larson and Mr. Fischer. Tr. 2007:12-15. Although Mr. Mummery did not recall the sign, he had initially contended in his declaration in support of plaintiff's cross-motion for summary judgment that "no warning signs of any type were ever posted on the road." DPFF ¶ 76. After the Government produced photographs in support of its opposition to plaintiff's cross-motion for summary judgment (DX 16/1, 16/3) that proved that the "WEIGHT LIMIT 3 TONS" signs (JX 13/3, 13/4, 14/1) had been present in 1995, Mr. Mummery's recollection changed. He testified at trial that he saw the signs before he signed the contract to buy the lodge, and relied upon them as indicating that the bridges were safe. Tr. 77:8-10, 78:14-16. The weight limit signs shown in those photographs have a white background with black lettering, just as Mr. Fischer and Mr. Larson testified about the other signs erected by the Forest Service. The photograph calls into question the accuracy of Mr. Wilkerson's recollection that he never saw the signs, because he testified that "I've never seen a sign in the forest put up by the Forest Service that was white with black letters." Tr. 2269:242270:1.

32.

In 1995, the previous owner of the lodge, the Brannons, entered into discussions to sell

the lodge to Wanda Smith, but Ms. Smith did not go through with the transaction after speaking to James Fischer, who was an engineer with the Forest Service. Def. Facts at ¶ 19; Tr. 763:5764:2; Tr. 1412:19-1414:15. Afterwards, the Brannons were extremely angry at the Forest 19

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Service for disclosing information to Ms. Smith about the bridges leading to the lodge and confronted Forest Service personnel about their comments. Tr. 765:15-766:13; Def. Facts ¶ 21. Defendant's Response to PPFF ¶ 32 Defendant agrees.

33.

When Mr. Bree spoke to Mr. Fischer, the Forest Engineer, about the safety of the

Sweetwater bridges at this time, he "didn't really get a straight answer from him on the safety of the bridges and whether the public could use them or not." Tr. 783:2-4. Defendant's Response to PPFF ¶ 33 Defendant agrees that plaintiff has accurately quoted one portion of Mr. Bree's testimony, but Mr. Bree also testified that when he asked Mr. Fischer about the safety of the bridges, Mr. Fischer "said they weren't going to close them, but they weren't ­ they weren't safe to where, you know, big trucks could go up and down them." Tr. 781:13-16.

34.

Shortly after the Brannon's confrontation with the Forest Service, The Sweetwater

became interested in purchasing the lodge facility. Tr. 74:14-75:22; Tr. 767:12-22. Defendant's Response to PPFF ¶ 34 Defendant agrees, and notes that on Friday, May 19, 1995, only four days after Ms. Smith spoke to Mr. Fischer, Mr. Mummery learned that the closing on the Brannons' sale of the lodge to Ms. Smith had fallen through, and he could get a "good deal" on the lodge. DPFF ¶¶ 35, 39.

35.

Mr. Mummery was told about the lodge being for sale by a friend of his who was the real 20

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estate agent selling the lodge, and who told him that a prior sale of the lodge had not closed. Tr. 75:2-8. Mr. Mummery was informed that the prior sale had not gone through because the prospective buyer had been unable to finance the purchase. Tr. 106:20-107:4. Defendant's Response to PPFF ¶ 35 Defendant agrees that Mr. Mummery testified that he learned about the lodge from his friend Buck Wilkerson, who represented the Brannons. Tr. 74:7-23. Defendant also agrees that Mr. Mummery testified that he did not know why the sale to the Brannons had collapsed: "my impression was that it was because the woman didn't come up with the money. Whether that's true or not I don't know." Tr. 75:4-6 (emphasis added).

36.

Mr. Jeffrey Mummery, who has been the Managing Member of The Sweetwater since its

inception in 1995 (Tr. 65:l-66:9), resides approximately 13-14 miles from the lodge facilities, which is a 20 minute drive from his house. Tr. 67:6-13, 23-24. Defendant's Response to PPFF ¶ 36 Defendant agrees that plaintiff has accurately represented Mr. Mummery's testimony about how rapidly he can drive from his home to the lodge, but notes that the operators of other North Fork lodges are married couples who live on site. Tr. 176:16-21.

37.

Prior to purchasing The Sweetwater, Mr. Mummery has experience working as a guide

for an outfitter as well as operating a hotel/resort on the Yellowstone Highway between Cody and Yellowstone National Park. Tr. 73:1-20. Defendant's Response to PPFF ¶ 37 Defendant agrees that Mr. Mummery testified that he worked as a guide for an outfitter, 21

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and that he leased and operated the Yellowstone Valley Inn for a single year (Tr. 474:8-475:18), but notes that Mr. Mummery admitted that "I was never the manager or owner of a hotel or motel." Tr. 476:5-6.

38.

Mr. Mummery first visited the lodge with Gary Fales, an experienced lodge owner who

lives close to the lodge. Tr. 76:10-24; 82:11-16. After reviewing the lodge and area, Mr. Fales recommended to Mr. Mummery that he buy the lodge. Tr. 81:7-8. Defendant's Response to PPFF ¶ 38 Defendant agrees that plaintiff has accurately represented the cited testimony.

39.

At the time, the bridges had a standard official load rating sign before them indicating

that they had a 3 ton weight limit (i.e., the bridges were safe for passage by vehicles weighing up to 3 tons), which Mr. Mummery understood to indicate that the bridges were safe for public use. Tr. 77:23-78:16; Tr. 128:22. Mr. Fischer testified that those signs had been placed by the bridges by the Forest Service with the intention that people would conclude that the bridges were safe for use by passenger cars and pick up trucks (Tr. 1402:3-1403:5), and Ms. Aus agreed that it would be reasonable for The Sweetwater to assume the bridges were safe given these signs. Tr. 1631:18-1632:22; Tr. 1673:22-24. These vehicles were the very types which were used by lodge guests. Tr. 137:22-138:2; Tr. 797:14-798:1; Tr. 1380:25-1381:5. Defendant's Response to PPFF ¶ 39 Defendant agrees that in 1995, signs before the bridges warned "WEIGHT LIMIT 3 TONS," and agrees that Mr. Mummery testified that he understood that to mean that the bridges were safe for public use. JX 13/3, 14/1; Tr. 77:23-78:16. Defendant disagrees that Mr. Fischer 22

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testified about what conclusions motorists might draw from the "WEIGHT LIMIT 3 TONS" signs, but simply testified that the signs were posted after he and the bridge inspectors concluded that "[w]e felt that the bridges could safely carry that load." Tr. 1402:3-1403:5. Defendant agrees that lodge guests used vehicles such as passenger cars and light trucks that weighed less than three tons.

40.

When Messrs. Mummery and Fales visited with Mrs. Brannon, she was distraught

because a sale of the lodge the Brannons had arranged had fallen through and indicated to Mr. Mummery that they very much wanted to sell the lodge, and quickly. Tr. 78:19; Tr. 80: 4-5; 81:1-5; Def. Facts ¶ 26. The Brannons had already packed up their belongings in anticipation of selling the lodge. Tr. 79:3-9. The Brannons had a contract to buy a boat which they were going to live on in Oregon which created a financial problem for them. Tr. 79: 7-9; 80:7-9; 100: 11-19; Def. Facts ¶ 25. Defendant's Response to PPFF ¶ 40 Defendant agrees.

41.

Dave Brannon in fact had recently found out that there was an out-of-statement judgment

against him that was going to be filed against him and that he needed to sell his assets quickly to avoid losing them. Tr. 504:10-23; Tr. 2257:9-18. Defendant's Response to PPFF ¶ 41 Defendant disagrees. The cited testimony is hearsay that cannot be used as evidence that "in fact" a judgment compelled Mr. Brannon to sell the lodge quickly, and can only be relied upon for purposes of proving the testifying witnesses' state of mind when they learned about this 23

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alleged out-of-state judgment. Mr. Mummery testified that he "only recently learned," apparently from his friend Mr. Wilkerson, that the alleged out-of-state judgment "was being ready to be filed in Cody" (Tr. 504:13-14), whereas Mr. Wilkerson testified that Mr. Brannon allegedly "was afraid that if [the judgment] came to Wyoming that if he had anything here they'd be looking at it." Tr. 2257:17 (emphasis added). Both witnesses' testimony is contradicted by Mr. Mummery's testimony that Mr. Brannon had "transferred some previous time this asset to his wife because he had had a failed insurance business that had other problems." Tr. 504:15-17. If Mr. Brannon had already transferred ownership of the lodge to his wife, then the prospect that an out-of-state judgment might be filed against him in Wyoming would not have presented any threat that would have pressured his wife to sell the lodge quickly.

42.

The Brannons had been asking $450,000-500,000 for the lodge. Tr. 81: 12-13; Def. Facts

¶ 24. Mrs. Brannon informed Mr. Mummery that they would sell the lodge for less than the price they had been asking. Tr. 81: 13-14. Defendant's Response to PPFF ¶ 42 Defendant agrees that plaintiff has accurately represented the cited testimony.

43.

Mr. Mummery then was shown around the lodge the next day by Mr. Brannon. Tr. 84:8-

11. The Brannons were distressed and wanted out. Tr. 93:12-13; Tr. 1350:20-24; Tr. 1352:7-10 (Mr. Larson testified that Mr. Mummery had told him that The Sweetwater purchased the lodge at less than market value and the Brannons had pleaded with him to buy it or they would lose their assets); Tr. 2328:3-9 (Mr. Mangus, plaintiff's expert, was aware that the Brannon's had sold the lodge under distress). 24

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Defendant's Response to PPFF ¶ 43 Defendant agrees that plaintiff has accurately represented the cited testimony, and notes that the Government's appraisal expert, Mr. Frome, adjusted his appraisal to account for Mr. Mummery getting a good deal on his purchase of the lodge. Tr. 2703:24-2704:4; DX 64/55 ("+" in "Conditions" column of chart shows favorable terms of sale).

44.

After visiting and inspecting the lodge with Mr. Fales, and then again with Mr.

Wilkerson, Mr. Mummery offered the Brannons $275,000 for the lodge facilities. Tr. 94:2; DX 17. Mr. Brannon was upset because the offer was low. Tr. 482:25-483:4. The Brannons counter-offered at $287,500 and Mr. Mummery accepted the offer. Tr. 96:15-97:5. The offer was explicitly "subject to the buyer approving issue of a new special use permit to buyer." DX 17, p. 3; Tr. 97: 15-20. Mr. Mummery had included that language to ensure that he would not have to buy the lodge if he could not obtain the permit which he wanted. Tr. 98:6-22. Defendant's Response to PPFF ¶ 44 Defendant agrees with the first three sentences of this proposed finding, but defendant disagrees with the fourth and fifth sentences of this proposed finding. Mr. Mummery acknowledged on cross-examination that the language quoted above, which he drafted, did not place any conditions on what type of permit the Forest Service might issue to him. Tr. 494:21495:7.

Meetings between The Sweetwater and Forest Service

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45.

Prior to The Sweetwater closing on the purchase of the lodge assets, representatives of

The Sweetwater met with representatives of the Forest Service to discuss the issuance of a Term SUP to The Sweetwater for the purpose of operating the lodge facility. Tr. 101:19-102:14; Tr. 155:20-156:2. Defendant's Response to PPFF ¶ 45 Defendant agrees.

46.

One of these meetings occurred on or around June 12, 1995 at which representatives of

The Sweetwater and the Forest Service discussed the issuance of a Term SUP. Tr. 108:23-110:3. Defendant's Response to PPFF ¶ 46 Defendant agrees that a meeting occurred on or around June 12, 1995 at which representatives of The Sweetwater and the Forest Service discussed the issuance of a Term SUP. DX 18.

47.

The Forest Service personnel at the June 12th meeting were "acting on behalf of" the

Forest Supervisor. Tr. 813:19-23; Tr. 928:10-929:25. The current Forest Supervisor stated that The Sweetwater was entitled to rely upon the representations made by the Forest Service line officer at the meeting. Tr. 1744:23-1745:4; Tr. 1747:9-1748:15. Defendant's Response to PPFF ¶ 47 Defendant agrees that Mr. Barker testified that "the forest personnel attending" the meeting were "acting on behalf" of the Forest Supervisor (Tr. 813:19-23), but disagrees that any of the Forest Service employees at the meeting besides Acting Wapiti District Ranger Bob Rossman had been delegated any authority by the Forest Supervisor. DPFF ¶ 62. The two 26

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remaining Forest Service employees at the meeting, Mr. Barker and Mr. Bree, were not line officers, and thus could not be delegated any authority by the Forest Supervisor. Id. Mr. Rossman did not possess any authority to act as Forest Supervisor with respect to any decisions regarding replacement of the Sweetwater bridges. DPFF ¶64. Ms. Aus testified that she did not agree with plaintiff's premise that Mr. Rossman made any representations during the June 12, 1995 meeting that the Forest Service "would put in temporary fords until they could locate funds to replace the bridges." Tr. 1748:16-23.

48.

The Forest Service stated to the representatives of The Sweetwater that the Term SUP

was a "legally binding document" to which all parties were agreeing. Tr. 814:18-19. Defendant's Response to PPFF ¶ 48 Defendant agrees that Mr. Barker, who was neither a lawyer nor a line officer, and who did not possess authority to enter an agreement on behalf of the Forest Service (DPFF ¶ 62), testified that the permit was a "legally binding document." Tr. 814:19. Defendant notes that Mr. Rossman testified that he was not negotiating the terms of the permit, and did not regard it be a contract. DPFF ¶ 68.

49.

One of the purposes of the meeting was for the Forest Service to provide The Sweetwater

with a full disclosure as to the condition of the bridges so that The Sweetwater could decide whether to go ahead with the purchase of the lodge. Def. Facts ¶ 50; Tr. 896:5-14; Tr. 914:19915:21; Tr. 956:8-10. The Forest Service was aware that The Sweetwater was relying on the Forest Service's statements to determine whether or not it should purchase the lodge. Tr. 897:16-17. 27

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Defendant's Response to PPFF ¶ 49 Defendant disagrees that the cited testimony supports the assertion that the purpose of the meeting was for "the Forest Service" to make a "full disclosure" regarding the condition of the bridges. Mr. Rossman agreed that the purpose of the meeting was to ensure that he communicated to Mr. Mummery all the information about the condition of the bridges of which Mr. Rossman was aware. Tr. 896:5-14 ("as best as you could convey"). Mr. Barker testified that the Forest Service representatives made clear that there were "no commitments" that the bridges would be replaced, and Mr. Mummery "was trying to make the final decision on what to do." Tr. 897:7, 897:16-17.

50.

With respect to the Term SUP, the District Rangers on the Forest had been delegated

authority to sign Term SUPs as the Forest Supervisor and make decisions related to the administration of those permits. Tr. 1271: 9-19; Tr. 1281:19-1282:10; Tr. 1316:1-9 (delegation never formally cancelled in writing); Tr. 1317:12-24 (Mr. Larson stated that the Forest Service Manual provided support for District Ranger's issuing Term Special Use Permits). At the time of the June 12, 1995 meeting, Mr. Rossman was authorized to make recommendations to the Forest as to obtaining funds to repair or replace the bridges, and it was the Forest Engineer who made the decisions on which particular bridges were to be repaired or replaced "because the money came down to him." Tr. 777:9-778:18. Defendant's Response to PPFF ¶ 50 Defendant disagrees. Mr. Larson testified that former Forest Supervisor Barry Davis "went outside of" the Forest Service Manual and purported to delegate authority to District Rangers to issue long-term special use permits, even though the Forest Service Manual only 28

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permits Forest Supervisors to delegate authority to District Rangers to issue special use permits for terms of less than five years, or for "standardized" permits on sites approved in the Forest plan. Tr. 1281:25-1282:10; DX 37 (FSM 2704.34). Mr. Larson testified that when Ms. Aus became Forest Supervisor in 1996, she canceled Mr. Davis's purported delegation orally rather than in writing: "she told all of us that we need to refer back to the manual delegations of authority for signature. And she did that in leadership team meetings." Tr. 1316:1-9. The second sentence of this proposed finding inaccurately represents the cited testimony of Mike Bree. Mr. Bree testified that Mr. Fischer was not a line officer, and that he worked with the forest supervisor and district rangers to make budgeting decisions. Tr. 777:23-778:16.

51.

Vehicular access on Sweetwater Road was critical to operating the lodge, but the Forest

Service insisted on keeping the Sweetwater Road a public road because it did not want to allow the lodge owner to restrict the public's access to that road. Tr. 135:16-136:2; see Tr. 173:24174:2; Tr. 587:3-7; Tr. 769:6-770:11; Tr. 784:7-10; Tr. 808:16-22; Tr. 817:9-14; PX 38. Defendant's Response to PPFF ¶ 51 Defendant agrees that Mr. Bree and Mr. Barker testified that the Shoshone's policy in 1995 had been to keep Sweetwater Road open for public use (Tr. 769:23-24, 808:18-22), but disagrees that any of the cited testimony addresses, let alone supports, plaintiff's assertion that "vehicular access on Sweetwater Road was critical to operating the lodge."

52.

The primary uses for Sweetwater Road are to provide access to the recreating public,

which includes the lodge visitors, and to allow for Forest Service monitoring of soil and water

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conditions in the area and along the full length of Sweetwater Road. Tr. 815:21- 816:4; Tr. 875:4-7; 875:18-876:4. Defendant's Response to PPFF ¶ 52 Defendant agrees that the proposed finding accurately represents the cited testimony of Mr. Barker, but notes that Mr. Barker testified that because there is no livestock grazing or timber base in the Sweetwater drainage, Sweetwater Road is unnecessary for range or timber management. Tr. 815:17-25.

53.

At the meeting, the Forest Service representatives stated to the representatives of The

Sweetwater that "it [is] our intent to keep the [Sweetwater] road open to the best of our ability." Tr. 129:2-6; Tr. 129:17-130:24; Tr. 135:2-8; see Tr. 135:2-15. They further stated that it was the agency's intent to support, to the degree that it could, access to the lodge facility. Tr. 825:58. These were the kind of commitments which Mr. Simpson, who attended the meeting as The Sweetwater's counsel, had sought from the meeting. Tr. 1112:13-25. Based on his working history with the Forest Service and its employees, Mr. Simpson felt that these commitments were sufficient. Tr. 1114:14-1115:3; see PPFF ¶ 47 (Ms. Aus stated that The Sweetwater was entitled to rely upon the representations made by the Forest Service at this meeting). Defendant's Response to PPFF ¶ 53 Defendant agrees that Mr. Rossman stated that it was the intent of the Forest Service to do what it could to keep open Sweetwater Road, and maintain access to the lodge, but disagrees that the Forest Service ever committed itself to keeping open the Sweetwater bridges to accomplish this intent. Mr. Rossman testified that what he said during the June 12, 1995 meeting was that if the bridges became impassable, it was unlikely that they would be replaced, 30

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but that fords would provide an alternative means of vehicular access to the lodge. DPFF ¶¶ 83, 93. Plaintiff has attributed to the Forest Service representatives statements that are not supported by the cited testimony. The quoted language in the first sentence of the proposed finding is what Mr. Mummery claims that Mr. Rossman stated during the June 12, 1995 meeting. Tr. 135:2-9. Mr. Rossman never testified that he made any statement to that effect during the meeting, but merely testified in his deposition that at the time of the June 12, 1995 meeting, "it would have been our intent to keep the road open to the best of our ability." PPUF5 ¶ 24 (emphasis added). His statement was directed to the road, which could continue to provide access to the lodge without bridges if fords were used. Likewise, in the testimony cited in the second sentence of this proposed finding, Mr. Barker merely agreed that it was the intent of the Forest Service at the time of the meeting to support "access" to the lodge as best it could. Tr. 825:5-8. In the cited testimony, he did not address what statements were made at the meeting, nor did he stated that he or the other Forest Service representatives convey any intent to maintain the bridges as the means of access. Id. Mr. Simpson testified that the commitment that he understood that Mr. Barker had made with Mr. Rossman's concurrence was to do would they could do personally to obtain funds to replace the bridges, but that they could not make any unconditional commitment to rebuild the bridges, and could only do what was within his power to try to get funding. DPFF ¶ 92.

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54.

The position taken by the Forest Service was that "we are responsible for working with

the lodges and making sure that they operate because the purpose of that particular permit is--is a service that the Forest Service is supposed to provide to the public and deem that a private entity could do--could do the job so the Forest Service wouldn't have to open up a lodge." Tr. 788:20-789:1. Defendant's Response to PPFF ¶ 54 Defendant agrees that the proposed finding accurately represents a portion of Mr. Bree's testimony, but disagrees that he is qualified or authorized to express the "position taken by the Forest Service," as plaintiff asserts above.

55.

Because the Shoshone Forest Plan allocates the area around the lodge as being for the

purpose of a lodge facility, the Forest Service agreed that it had a commitment to provide for the operation of the lodge to the extent it could. Tr. 824:14-25; Tr. 925:2-12; Tr. 1750:2-7. This commitment included the Forest Service keeping the road open to the best of its ability, as well as the Forest Service supporting vehicular access to the lodge facility. Tr. 132:14-133:8; Tr. 825:1-8; Tr. 926:24-927:3. Defendant's Response to PPFF ¶ 55 Defendant agrees that the proposed finding accurately represents the cited testimony, but notes that Ms. Aus also testified (on the same page as one of the passages cited by plaintiff), in response to a question about whether the Forest Service had committed to provide vehicular access to the lodge, "I believe that we agreed to provide access via fords and I believe that you can access that lodge via fords." Tr. 1750:13-15.

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56.

The individual who executed the Term SUP as the Acting Forest Supervisor, who was

present at the 1995 meeting, summarized his comments at the 1995 meeting as being based on the fact that "[t]he Forest Plan of the Shoshone National Forest allocates that area up there to a public lodge facility; therefore, there is a commitment on the part of the Forest to provide for that use to the extent it can. All Forest Plan implementation is subject to dollars available, but I think it's probably ­ no, it's not probably, it's standard practice and intent when one has allocated a use on the Forest to do your best to implement that." Tr. 131:7-132:13; Tr. 925:2-926:23. Defendant's Response to PPFF ¶ 56 There is no support, in the cited testimony or elsewhere in the record, for plaintiff's assertion that Mr. Rossman "summarized his comments" at the June 12, 1995 meeting as being based upon the passage quoted above. At trial, Mr. Rossman merely agreed that he had made this statement in his deposition, and it was still accurate. Tr. 925:2-12.

57.

The Term SUP entered into by the parties contained a clause which provided for the

Forest Service to compensate the permittee if the Forest Service terminated lodge operations. JX 1 (clause 15). This clause was discussed at the June 12, 1995 meeting. Tr. 538:12-22; Tr. 788:6-789:1; Tr. 793:25-794:1.

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Defendant's Response to PPFF ¶ 57 Defendant disagrees. Clause 15 does not state that the permittee will be compensated if "lodge operations" are terminated, but states that the Government will pay equitable consideration for "termination of the permit," meaning authorization to operate the lodge. JX 1/3, ¶ 15. Mr. Barker, Mr. Bree, and Mr. Rossman all testified that no commitment was made during the June 12, 1995 meeting that The Sweetwater would receive compensation if the Forest Service decided not to replace the Sweetwater bridges. DPFF ¶¶ 103-06. Mr. Simpson, too, recalled no discussion about clause 16 of the Brannon's permit, which is identical to clause 15 in the permit issued to The Sweetwater two months after the June 12, 1995 meeting. DPFF ¶¶10102.

58.

At the June 12th meeting, the Forest Service officials pointed out to The Sweetwater that,

notwithstanding their commitment to making their best efforts to obtain funds to replace the bridges if it became necessary to allow contract performance, the funding was subject to approval by other employees in the Forest Service's Regional Office and Congress, and the Forest Service was legally precluded from guaranteeing that funding would be received because the agency could not legally commit to the expenditure of appropriated funds in future years. Tr. 770:12-771:10.

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Defendant's Response to PPFF ¶ 59 The proposed finding tries to recharacterize and embellish the cited testimony of Mr. Bree, who made no mention of whether the Forest Service was legally precluded from guaranteeing the funding. Mr. Bree's testimony on this point makes clear that there was no promise to seek funds to replace the bridges: We talked to Mr. Mummery about replacing of the bridges, but at that particular time, we did not have the funding to replace those bridges, and we also did not anticipate funding coming down from the Regional Office to replace those bridges. And we advised him that we ­ we -- we may look at trying to get money to do it, but it wasn't ­ nothing was guaranteed. I mean, we would ­ we would put in for the capital improvement money if the opportunity arose, but we ­ we weren't going to guarantee that we were going to replace those bridges. Tr. 770:17-771:3 (emphasis added).

59.

In making this point, the Forest Service distinguished between actions and decision

which were within their control, and those that were outside of it (such as decisions to be made at the Regional level). Tr. 897:16-22. Defendant's Response to PPFF ¶ 59 Defendant disagrees. Plaintiff again seeks to wholly recharacterize a witness's testimony. In the cited passage, Mr. Barker made no reference to decisions made at the Regional level. Tr. 897:16-22. Mr. Bree testified that the Forest Supervisor would be involved in decisions about the bridges. Tr. 777:23-778:5.

60.

As to actions within its control, the Forest Service did state that it would seek such funds

should it become necessary for lodge operations. Tr. 771:7-10, Tr. 783:17-23 (Mr. Bree testified 35

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that the "we emphasized that don't count on the bridges being replaced in the near future, that we would try and that was the key word is we would try to get funding for the bridges, but we weren't going to guarantee it"); Tr. 784:19-21 ("Mr. Rossman advised Mr. Mummery that he'd do it, and he could try to get money, but it was no guarantees"); Tr. 785:1-3 (Mr. Bree testified that "we came to an unwritten agreement that everybody would try to do what they could do to allow Mr. Mummery to operate"); Tr. 786:23-787:1 ("It was kind of like everything was thrown out, and the Forest Service said they would try to get money to replace the bridges, and that's kind of where everybody just walked away"). Defendant's Response to PPFF ¶ 60 Defendant agrees that plaintiff has accurately quoted a portion of Mr. Bree's testimony, but notes that Mr. Barker testified that during the June 12, 1995 meeting, "it was made very clear that this had been put in for CIP before, and I ­ I didn't need to try it again." Tr. 839:19-20. Mr. Rossman testified that he told Mr. Mummery that if the bridges became impassable, the Forest Service could not fund their replacement for the foreseeable future, and that fords would provide the means of access. DPFF ¶¶ 83, 93. At most, these employees could offer only a personal commitment to try to obtain funds to replace the bridges. They were not authorized to assume, on behalf of higher-level officials, any duty by the Forest Service to try to obtain funds. FSM 2704.33.

61.

At that particular point in time, the Forest had no funds presently allocated in its budget

for improving the existing condition of the bridges (which were open to public traffic) or for replacing them. Tr. 770:12-771:3.

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Defendant's Response to PPFF ¶ 61 Defendant agrees that Mr. Bree testified that "we did not have the funding to replace those bridges," but disagrees that he addressed whether funds were available to improve the condition of the bridges. Tr. 770:19-20.

62.

Subject to the two limitations of Regional Office approval and available appropriated

funds from Congress, the Forest did commit to its best efforts to ensure the lodge operation could perform pursuant to the requirements of the permit. Tr. 771:7-10; Tr. 773:7-12 (Mr. Bree testified that the Forest Service gave The Sweetwater assurances in the June 12, 1995 meeting that The Sweetwater would have access to operate its lodge). Defendant's Response to PPFF ¶ 62 Defendant disagrees. In the cited testimony, Mr. Bree testified that "we would put in for capital improvement money if the opportunity arose" (Tr. 770:25-771:1), but he did not state that he or any other Forest Service representatives made any commitment that bound the Shoshone or the Forest Service to use "best efforts" to seek funding to replace the bridges. He lacked the authority to bind the Forest Service. Mr. Bree testified that the Forest Service offered to provide access by fords: "if it was a worst case scenario, the Forest Service would put fords in so he could operate his ­ his ­ his business." Tr. 772:13-15.

63.

At the June 12th meeting the parties also discussed that, in the event the bridges were to

become impassable in the future, the Forest Service would construct fords to provide temporary access until funds could be obtained to repair the bridges or the loss of access could otherwise be addressed. Tr. 145:16-25; Tr. 772:3-773:6; Tr. 932:10-933:12; Tr. 935:17-937:6 (testimony of 37

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Robert Rossman that providing fords in the event the bridge access was lost would not impact the Forest Service's effort in seeking funds to replace the bridges); see JX 12 (letter written to The Sweetwater by Ms. Watson and signed by Mr. Larson in 1997 describing agreed-upon use of fords as "temporary"); Tr. 2074:11-2076:20. This access was sought so that The Sweetwater would be able to maintain the lodge until bridge access could be restored. Mummery Dec. ¶ 17 (App. 217). Defendant's Response to PPFF ¶ 63 Defendant disagrees. Mr. Rossman did not testify that the fords would only be temporary. He testified that "we made it clear that if the bridges went, they were gone. And if he wanted to access his lodge that ­ using vehicles, then he would need fords in order to do that," because "for the foreseeable future, there's no way that we would be funding that." Tr. 934:17-20, 956:18-19. Although Mr. Mummery claimed in his declaration that the fords were for the purpose of maintaining the lodge, at trial he testified that the purpose of the fords was to allow him to operate the lodge: