Free Post Trial Brief - 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, ) ) No. 02-1795C v. ) (Senior Judge Merow) ) THE UNITED STATES, ) ) Defendant. ) ____________________________________) PLAINTIFF'S RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF FACTS Pursuant to the Court's Order dated January 27, 2006, plaintiff The Sweetwater, A Wilderness Lodge LLC ("The Sweetwater") respectfully files this post-trial brief. Set forth below are defendant's proposed findings of fact, and immediately following each proposed fact is The Sweetwater's response.

1.

The 1990 Forest Service map of the north half of Shoshone National Forest ("the

Shoshone") is the map of the northern half of the Shoshone, including the Wapiti District, that was in effect until a new map issued in 2004. Tr. 1513:5-24; DX 72.

Response: The Sweetwater currently has no basis to object to defendant's proposed fact, but points out that the map was not incorporated into The Sweetwater's Term Special Use Permit ("TSUP").

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2.

The map shows that Forest Service Road 423 ("Sweetwater Road") is a dirt road that runs

approximately 3.5 miles on the Shoshone's land from the Wapiti Campground on Wyoming State Highway 14/16/20 (the "Yellowstone Highway" or "North Fork Highway") up the Sweetwater Creek drainage. DX 72; Tr. 796:16-19; Tr. 1325:13-16.

Response: The Sweetwater objects to defendant's assertion that the map "shows" that the Sweetwater Road was a dirt road. The photographs of the Sweetwater Road, which show a smooth surface, are the best evidence of its physical condition. JX 13. Furthermore, The Sweetwater objects to defendant's assertion as irrelevant because the map makes no reference to the condition of the Sweetwater bridges, but does note that they are present. Thus, to the extent the map shows that the Forest Service maintains access on the Sweetwater Road as a "dirt" road, it also shows that the Forest Service maintains access over the Sweetwater bridges on that road.

3.

The 1990 map depicts Sweetwater Road using solid parallel black lines, which the legend

defines as "Improved Road, Dirt." DX 72. The next higher category of road on the legend is "Improved Road, Gravel." Id.

Response: The Sweetwater currently has no basis to object to defendant's proposed fact as to what the map depicts, but notes that the actual physical condition of the road is the best evidence of the road's condition, and that the map shows that the Forest Service maintains bridge access along the Sweetwater Road.

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4.

Wapiti District Ranger Brent Larson testified about Sweetwater Road: "it's dirt, it's not

gravel. And in that particular part of the world, if it rains, you better have a four wheel drive or you're probably not going to go very far." Tr. 1325:13-16.

Response: While Mr. Larson testified as noted, defendant fails to point out that, "in that particular part of the world," passenger cars regularly traveled to the lodge. Plaintiff's Proposed Finding of Fact ¶ 31 [hereinafter "PPFF"]. The Sweetwater also points out that Mr. Larson's comments are not referring to bridge access.

5.

Wapiti District Recreation Technician Mike Bree testified about Sweetwater Road:

"people out here normally know that when you get on a dirt road ­ and it's not gravel, it's dirt ­ that you take a high clearance vehicle. I mean, it's kind of ­ it's an unwritten rule." Tr. 796:1619.

Response:

The Sweetwater does not dispute that Mr. Bree testified as noted, but points out

that "people out [t]here" regularly used passenger cars when traveling to the lodge (PPFF 31), thus showing that Mr. Bree's conclusions are not supported by the evidence of actual use on Sweetwater Road by "people out there."

6.

On the 1990 map of the north half of the Shoshone, the number for Sweetwater Road,

"423," is stacked vertically, which the legend defines as "Low standard Forest Road (highclearance vehicles)." DX 72 (emphasis added); Tr. 871:23-24, 874:6-16, 1323:17-1324:10. 3

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Response: The Sweetwater does not dispute that the map defendant refers to above sets out the numbers noted in a "stacked" fashion, but notes that even Mr. Monte Barker, a seasoned Forest Service employee, had no idea what the "stacked" arrangement of the numbers indicated. Tr. 870:19-871:3. Furthermore, The Sweetwater notes that the Forest Service's recent decision to close the North Fork bridge to any vehicle use contradicts the indications alleged by the Forest Service as to the use that can be made of the road. PPFF ¶ 193.

7.

Shoshone National Forest Engineer Jim Fischer testified that Sweetwater Road has been

identified and maintained by the Forest Service as a maintenance level 2 road for purposes of the Forest Service Handbook and the INFRA road inventory database. Tr. 1549:24-1550:9.

Response:

The Sweetwater agrees that Mr. Fischer testified as noted above, but further notes

that another Forest Service employee, Mr. Barker, testified that the Sweetwater Road had, at some point previously, been listed as a Level 3 road. Tr. 859:25-860:8. The Sweetwater further notes that the road level does not pertain to the condition or existence of the bridges on that road. Mr. Koenig, an engineer with the Shoshone National Forest, testified that the Level 2 designation has nothing to do with the bridges on that road, except to determine how often they are inspected. Tr. 1938:22-1940:21. He further stated that a road would require bridges if they are needed for appropriate access along the road, which is determined based on the purposes for which the road is used. Tr. 1939:19-1940:21. Mr. Koenig also testified that the Forest Service usually assigns Level 3 to roads needed for a commercial business. Tr. 1940:14-16. 4

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Further, the Forest Service never referred to the internal classification level of Sweetwater Road at the June 12th meeting or thereafter until this dispute arose. Tr. 137:13-21. Nor was the designation of Sweetwater Road as a "Level 2" road set forth anywhere in the Term SUP. See JX 1. "Level 2" is a designation set forth in internal Forest Service documents and defined in its internal manual, which the Forest Service has repeatedly asserted is not binding as a matter of law. See Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996). The Sweetwater would also point out that the terms of the Forest Service Handbook or Manual were never disclosed to The Sweetwater, nor does the Forest Service consider the Forest Service policy manuals to be part of the TSUP. Tr. 2059:22-2060:13. In addition, Mr. Fischer testified that, while Level 2 roads are inspected every four years, Level 3 roads are inspected every two years. Tr. 1405:3-11. Mr. Fischer specifically noted in 1997 that the Sweetwater Road had not been inspected every two years because it had been "basically condemned" in 1992 (JX 7, p. 1), thus indicating that the normal inspection cycle for Sweetwater Road was every two years, which is the cycle for Level 3 roads (not Level 2 roads).

8.

Mr. Fischer testified that Sweetwater Road, like other maintenance level 2 roads, was not

maintained for low-clearance vehicles, such as passenger cars. Tr. 1518:1-14, 1519:17-25.

Response: The Sweetwater does not dispute that Mr. Fischer testified as noted above, but notes that passenger cars regularly traveled to the lodge. PPFF at ¶ 31. The Sweetwater further notes that Mr. Fischer did not testify as to the maintenance of the bridges.

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9.

The Forest Service Handbook states that Level 2 is the maintenance level "[a]ssigned to

roads open for use by high clearance vehicles. Passenger car traffic is not a consideration." FSH 7709.58, 12.3.2.b (DPFUF ¶ 6).

Response: The Sweetwater does not dispute that the Forest Service Handbook states as noted above, but points out the Forest Service Handbook does not address the maintenance of bridges, nor was it incorporated into the TSUP, and finally the Handbook is not binding as law but instead is internal Forest Service policy. See Western Radio Services Co., Inc. v. Espy, 79 F.3d 896, 900 (9th Cir. 1996). While the Forest Service did state at the June 1995 meeting that it would pursue funding to replace the bridges if access over them was lost, the Forest Service never referred to the internal classification level of Sweetwater Road at the June 12th meeting or thereafter until this dispute arose. Tr. 137:13-21. The Sweetwater would also point out that the terms of the Forest Service Handbook or Manual were never disclosed to The Sweetwater, nor does the Forest Service consider the Forest Service policy guidelines to be part of the TSUP. Tr. 2059:22-2060:13.

10.

Mr. Larson testified that the first time he drove up Sweetwater Road in 1996, he was

"absolutely" certain that he saw a large sign posted by the Forest Service on Sweetwater Road right after the road crossed the North Fork bridge that stated, "Road Not Maintained For Passenger Vehicles," and that appeared to have been there for several years. Tr. 1294:1-1295:19, 1320:17-25.

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Response: The Sweetwater does not object that Mr. Larson testified as noted above, but notes that Mr. Monte Barker of the Forest Service testified that no such signs were put up along Sweetwater Road. Tr. 860:2-12. Further, Mr. Tom Koenig also recalled no such signs as of 2000 when he arrived on the Forest. Tr. 1858:22-25. Mr. Michael Bree also contradicted Messrs. Larson and Fischer when he 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 sign meeting the description provided by Mr. Larson. Tr. 2006:232009:18. Instead, she recalled a small sign, 12" by 14" which had brown lettering with yellow background. Also, Mr. Ralph Wilkerson and Mr. Mummery, both of whom traveled Sweetwater Road frequently, testified unequivocally that no sign warning against passenger vehicle use ever existed. Tr. 2920:15-2921:15; Tr. 2268:11-2270:2.

11.

Mr. Fischer also testified that in the mid 1990s, the Forest Service posted a large sign on

Sweetwater Road right after the road crossed the North Fork bridge that stated wording "to the effect that the was a narrow mountain road that was not maintained for passenger cars." Tr. 1520:9-1521:10.

Response: The Sweetwater does not object that Mr. Fischer testified as noted above, and respectfully refers the Court to its response to paragraph 10 above.

12.

Mr. Fischer [sic] that the posting of the sign was prompted by funding constraints for

road work caused in the 1993-95 time period by the Great American Outdoors program. Tr. 7

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1522:16-1523:2.

Response: The Sweetwater does not object that Mr. Fischer testified as noted above, and respectfully refers the Court to its response to paragraph 10 above.

13.

The Forest Service Handbook provides that "if estimated costs exceed available funding,

it may be necessary to defer work, reduce maintenance frequencies, close roads, or allow roads to deteriorate." FSH 7709.58, 12 (DPFUF ¶ 7).

Response:

The Sweetwater does not dispute that the Forest Service Handbook states as set

forth above, but notes that the Forest Service Handbook was not incorporated into The Sweetwater's TSUP and that it is not binding as law. The Sweetwater would also point out that the terms of the Forest Service Manual were never disclosed to The Sweetwater, nor does the Forest Service consider the Forest Service Manual to be part of the TSUP. Tr. 2059:22-2060:13.

14.

The Forest Service has no need for Sweetwater Road for range management purposes for

grazing livestock, or for timber harvesting, because there is no timber base in Sweetwater Canyon. Tr. 815:17-21. The primary use of the road is for the lodge owned by The Sweetwater, A Wilderness Lodge LLC ("The Sweetwater") and dispersed recreation. Tr. 815:21-25.

Response: The Sweetwater does not dispute the facts set forth above. The Sweetwater further notes that Mr. Koenig, an engineer with the Shoshone National Forest, testified that a Level 2 8

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road may require bridges if they are needed for appropriate access along the road, which is determined based on the purposes for which the road is used. Tr. 1939:19-1940:21. As noted above, the Forest Service has admitted that a purpose of Sweetwater Road is to provide for access to the Sweetwater lodge.

15.

Few members of the public other than guests of the lodge used Sweetwater Road,

principally day-use hunters during the hunting season who used high-clearance vehicles to hunt from the road or tow horse trailers up the road. Tr. 847:19-848:10, 879:24-880:8, 944:4-16, 1283:22-1284:6.

Response: The Sweetwater disputes the allegation above. 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. 849:18851:25.

16.

There are three bridges for vehicular traffic on Sweetwater Road. The first bridge on

FSR 423, No. 423-.2, spans the North Fork of the Shoshone River ("the North Fork bridge"), and is located approximately .2 miles from the North Fork Highway. DX 64/40. 9

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Response: The Sweetwater does not dispute the allegations above.

17.

The other two bridges, Nos. 423-2.5 and 423-3.0, span Sweetwater Creek ("the

Sweetwater bridges"), and are located approximately 2.5 and 3.0 miles, respectively, from the North Fork Highway. DX 64/40.

Response: The Sweetwater does not dispute the allegations above.

18.

Jeff Mummery, The Sweetwater's manager, testified that the father of a friend of Mr.

Mummery's was the original permittee of the lodge now owned by The Sweetwater, and that this previous permittee built the original bridge over the North Fork of the Shoshone River as well as the Sweetwater bridges. Tr. 142:12-23.

Response: The Sweetwater does not dispute the allegations above.

19.

The Forest Service required lodge permittees in the 1960s and 1970s to upgrade the

condition of the Sweetwater bridges. DX 3/2, ¶ 7; DX 3/7; DX 3/11; DX 4/10-15.

Response: The Sweetwater disputes the allegations above because The Sweetwater's review of the record shows that Defendant's Exhibits 3 and 4 were not admitted as evidence in this case. Thus, the government's assertion has no factual basis. 10

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20.

In March 1992, the Shoshone prepared a Forest Service Region 2 "Capital Investment

Project Description Form" that proposed replacing the bridges. JX 5. The proposal was updated by Mr. Fischer in February 1997. JX 10.

Response: The Sweetwater does not dispute the allegations above.

21.

The Sweetwater bridges were inspected in August 1992 by Forest Service bridge

inspectors from the Wasatch-Cache National Forest. DX 9, DX 10. The inspections recommended that both bridges be replaced. DX 9, DX 10; Tr. 1397:4-24; 1448:18-1449:1.

Response: The Sweetwater agrees to the first sentence set forth above. The Sweetwater disputes the allegation in the second sentence above. 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 Order (Dec. 30, 2003) at 2. The Forest Service employees on the Shoshone argued that they could not close the bridges because 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).

22.

After completing the inspection forms, the bridge inspectors discussed the condition of 11

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the bridges with Jim Fischer, the Forest Engineer of the Shoshone from 1986 until 2001. Tr. 1372:2-3, 1390:6-15, 1392:1-4. The inspectors did not perform a technical load-rating, but using their judgment as professional engineers, said that the bridges were probably safe with signage that limited their use to vehicles no more than 3 to 5 tons. Tr. 1402:3-1403:5.

Response: The Sweetwater disputes the allegations above. The inspectors did not complete the inspection forms, because they omitted completing the load rating portion of the inspection forms as well as the overall structural evaluation rating on the second page of each form for the Sweetwater bridges. See JX 7/2/ 7/3, 7/8, 7/9. (The inspection form for the main North Fork bridge shows that both these portions of the inspection form were completed for that bridge. JX 7/4, 7/5.) The Sweetwater agrees that the inspectors did not complete a technical load-rating, but disputes the remaining allegations in the second sentence and respectfully refers the Court to its response to paragraph 21 above. The Sweetwater further notes that Mr. Fischer referred to this outcome as a "compromise" that would "probably" be safe for motorists. Sweetwater at 2; Tr. 1386:17; Tr. 1582:8-1583:13.

23.

In 1993, signs were posted on the approaches to the bridges that stated, "WEIGHT

LIMIT 3 TONS." Tr. 1402:3-10. The signs were still present when Mr. Fischer inspected the bridges in March 1997. JX 13/3, JX 13/4, JX 14/1.

Response: The Sweetwater does not dispute the allegation set forth above, but notes that the Forest Service had never conducted a load rating to assess if in fact the bridges were safe. PPFF 12

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172-174. Mr. Fischer referred to the posting of these signs as a "compromise" that would "probably" be safe for motorists. Sweetwater at 2; Tr. 1394:25; Tr. 1396:17; Tr. 1582:81583:13.

24.

Mr. Fischer maintained a list that he used to track the projects that the Shoshone proposed

for the Capital Investment Program ("CIP") during each fiscal year. JX 2. In the list, for fiscal year 1994, he recorded next to "Sweetwater Bridges" the notation "Indef. Postponed, do w/Mtce $." JX 2/4; DPFUF ¶ 86.

Response: The Sweetwater does not dispute the statements set forth above.

25.

The lodge, cabins, and other facilities (collectively, "the lodge") owned by The

Sweetwater are located on a 15.4 acre site approximately 3.5 miles north of the North Fork Highway on the Sweetwater Road. JX 1/16; DX 72.

Response: The Sweetwater does not dispute the statements set forth above, and points out that the site is entirely surrounded by National Forest.

26.

The Forest Service maintains no trails or campsites in the Sweetwater Creek drainage

beyond the lodge because the terrain is so steep, it is a de facto pristine area. Tr. 884:8-885:12.

Response: The Sweetwater disputes the statements set forth above. There are several existing 13

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campsites in the drainage (Tr. 878:25-879:23), and the Forest Service has noted the important recreational benefit provided by Sweetwater Road, which 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 As Mr. Barker testified: Q Another point maybe along those lines I want to try to get clarified here, the Forest Service again has maintained that they need to keep the Sweetwater Road open to the public. But we've heard that one of the reasons that they didn't seek funding for the road was that the public doesn't really use it. That's not correct. The public does use it? Yes. Can you describe what use is made of it? Well, basically, it's one of the very few roads on the North Fork that you can travel. The -- the primary use, I would say, is during hunting season. You can drive out there in the fall and a lot of people -- not a lot, some people day hunt during the winter time. Some of the trappers used to go up there, but it wasn't a high amount of use, but it was one of the few roads -- there's really only two roads, the Elk Fork Road and that road, that go off the main highway, other than to a lodge or a campground when we closed Kitty Creek. So there's not much roaded opportunity off the main highway. And so, that has generally been the thought; that we'd like to have some motorized access for folks, older folks or handicapped folks that want to hunt and want to go up there. And it was a nice drive. It's a beautiful setting if you drive up there on a Sunday afternoon and back, and so there was use of the road. It wasn't mainstream high use.

A Q A Q A

. Tr. 847:7-848:10. 27. The Forest Service never has conducted a competition to select a concessionaire to

operate a lodge on the site occupied by The Sweetwater's lodge, and the Government has never owned the lodge. Tr. 969:22-970:22, 977:9-15, 1975:20-1977:13; DX 4/10-15.

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Response: The Sweetwater disputes the statements set forth above as not being supported by the record. The Sweetwater review of the trial transcript has demonstrated that Defendant's Exhibit 4 was not admitted into the record in this case. Additionally, no conclusive evidence was presented as to the operations of the lodge going back to its inception.

28.

Any responsibilities that the permit requires The Sweetwater to perform to care for the

Forest lands within or around its site are strictly a result of its occupancy, and are not services that the Government set out to find someone to provide. Tr. 1977:14-24.

Response: The Sweetwater disputes the allegations set forth above. 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). 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. 788:20-789:1 (testimony of Mike Bree)(emphasis added); Tr. 801:18-802:8; see Tr. 857:20-25. 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 15

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further stated that he treated permittees as employees. Tr. 866:20-23.

29.

The permittees who operated the lodge from 1983 until 1995 were David and Nancy

Brannon d/b/a Brannons' Wilderness Lodge. JX 3.

Response: The Sweetwater does not dispute the allegation set forth above.

30.

The Brannons' permit was amended in 1985 to include a "Memorandum Of

Understanding For Cooperation In Road Maintenance ("the Brannons' MOU"), under which the Forest Service assumed responsibility for bridge and road maintenance for Forest Service traffic, and permittee assumed responsibility for "traffic generated from use of lands leased by the COOPERATORS for the purposes of operating and maintaining a guest lodge." JX 4/3.

Response: The Sweetwater does not dispute the allegation set forth above.

31.

In the Brannons' MOU, the Forest Service made the limited commitment that "[n]ew

construction or reconstruction, such as bridge replacement, will be agreed to as part of the yearly Joint Maintenance plan." JX 4, ¶ C.4.

Response: The Sweetwater does not dispute the allegation set forth above.

32.

The Brannons' MOU provided that "The FOREST SERVICE shall: 1. Assume road 16

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maintenance responsibility for all National Forest traffic as defined and for two bridges (FS No. 423-2.5 and FS No. 423-3.0), including abutments and approaches." JX 4/3, ¶ B.1. The MOU's "Definition of Terms" section defines "National Forest traffic" as "traffic generated by use of National Forest lands or road systems for recreation purposes exclusive of traffic related to commercial, administration, or protection needs of lands owned or leased by the COOPERATORS." JX 4/2.

Response: The Sweetwater does not dispute the allegation set forth above.

33.

The Brannons' MOU also provided that "New construction or reconstruction, such as

bridge replacement, will be agreed to as part of the yearly Joint Maintenance plan." JX 4/3, ¶ C.4.

Response: The Sweetwater does not dispute the allegation set forth above.

34.

Mr. Brannon used a grader to maintain Sweetwater Road, and ensured that guests driving

low-clearance passenger vehicles could reach the lodge. Tr. 1524:9-11, 20-22.

Response: The Sweetwater does not dispute the allegation set forth above.

35.

A prospective purchaser of the lodge, Ms. Wanda Smith, spoke with the Forest Engineer

of the Shoshone, Jim Fischer, on or about May 15, 1995 about the road and bridge conditions. 17

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Tr. 1412:19-1413:15. Mr. Fischer discussed with her the possibility of replacing the bridges with fords. Tr. 1413:7-15. He noted that he recorded in his calendar for that day that "Ms. Smith isn't real excited about that." DX 13/1.

Response: The Sweetwater does not dispute the allegation set forth above.

36.

Ms. Smith did not purchase the lodge from the Brannons because of her concerns about

the road and bridges. Tr. 763:25-765:14, 780:6-781:3, 858:16-19.

Response: The Sweetwater disputes the allegation set forth above based on it having been informed that Ms. Smith did not purchase the lodge because she could not obtain sufficient funding. Tr. 106:20-107:4.

37.

Mike Bree, a Forest Service employee who had responsibility for permit administration at

that time, spoke to the Brannons, who were upset that the Forest Service talked about the road and bridges with Ms. Smith. Tr. 765:15-766:13. Mr. Bree told the Brannons that the Forest Service has "to make sure that anybody that's going to purchase it knows the good points and the bad points, everything about it." Tr. 766:14-19.

Response: The Sweetwater does not dispute the allegation set forth above.

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38.

In addition to serving as the manager of The Sweetwater, Mr. Mummery is also the

president of Western Wyoming Properties & Investment Corporation, which owns shares of The Sweetwater. Tr. 470:12-22; DX 19/1. Mr. Mummery is engaged in buying and selling real estate. Tr. 470:4-11.

Response: The Sweetwater does not dispute the allegation set forth above.

39.

On Friday, May 19 1995, Mr. Mummery learned from Buck Wilkerson, a friend who was

a realtor, that the closing on the Brannons' sale of the lodge had fallen through, and that Mr. Mummery "could make [him]self a good deal and buy it." Tr. 478:1-8; DPFUF ¶ 23.

Response: The Sweetwater does not dispute the allegation set forth above.

40.

Mr. Wilkerson told Mr. Mummery that he thought the previous prospective purchaser had

been prepared to pay $450,000 for the lodge. Tr. 478:9-12; DPFUF ¶ 24.

Response: The Sweetwater does not dispute the allegation set forth above.

41.

Mr. Wilkerson told Mr. Mummery that the Brannons were very motivated to sell the

lodge. Tr. 478:13-479:18. Mr. Mummery understood that the Brannons were moving to Coos Bay, Oregon, and had made a commitment to buy a boat, and had made no bookings for the lodge for the summer season that was just beginning because they had been negotiating the sale 19

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of the lodge for several months. DPFUF ¶ 25.

Response: The Sweetwater does not dispute the allegation set forth above.

42.

The same day that Mr. Wilkerson told Mr. Mummery about the opportunity to buy the

lodge from the Brannons, Mr. Mummery visited the lodge with his friend Gary Fales, who owns Rimrock Ranch, another North Fork lodge. Tr. 75:17-76:9.

Response: The Sweetwater does not dispute the allegation set forth above.

43.

During his visit, Mr. Mummery spoke to Mrs. Brannon, who was distraught that the sale

to Ms. Smith had not closed. Tr. 78:17-21. Mr. Brannon was 70 or 71, and she was concerned that the lodge was too much for him to handle. Id. 78:24-79:2. The Brannons planned to retire, and had a contract to buy a boat to live on in Coos Bay, Oregon. Tr. 79:2-9.

Response: The Sweetwater does not dispute the allegation set forth above.

44.

In his deposition, Mr. Mummery testified that "I looked at it as a bargain sale." He also

testified that "since I looked at it as a bargain sale, I wasn't going to evaluate how ­ their gross revenues or net revenues or how they ­ they ran their business." DPFUF ¶ 28; Tr. 479:24-480:6.

Response: The Sweetwater does not dispute the allegation set forth above. 20

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45.

Mr. Mummery claimed during his direct examination that he had owned the Yellowstone

Valley Inn on the North Fork Highway, though on cross-examination, he admitted that he had just leased it for one year, and had never been the manager or owner of any hotel or motel during his "checkered" business career. Tr. 407:22-24, 411:8-9, 476:5-13.

Response: The Sweetwater disputes the allegation set forth above. Mr. Mummery explicitly was referring to a "diverse" background when he used the phrase "checkered, diverse and broadranging" and the government's reference to "checkered" above borders on being knowingly deceptive. Further, the citations do not demonstrate that Mr. Mummery claimed to "own" the Yellowstone Inn, but more importantly he clearly stated that his company operated it under a lease/purchase agreement. Furthermore, the testimony clearly shows that Mr. Mummery testified that, other than operating the Yellowstone Inn, he had not operated any other hotels. Tr. 476:2-13.

46.

Mr. Mummery's initial business plan was to operate the lodge much as the Brannons had

by employing the cook that Mrs. Brannon had hired. Tr. 86:6-87:1, 490:10-491:24.

Response: The Sweetwater does not dispute the allegation set forth above.

47.

Mr. Mummery's wife told him not to buy the lodge. Tr. 676:21-677:8.

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Response: The Sweetwater disputes the allegation set forth above. Mr. Mummery testified as set forth below: Q Okay. Now, before you purchased the lodge, before you even signed the sales contract on it with the Brannons, you asked your wife, your present wife, what she thought of buying the lodge, and she told you not to do it, correct? She didn't like the idea. She didn't hate the idea, don't get me wrong. If my wife had really disagreed with me, I wouldn't have done it.

A

Tr. 676:21-677:3.

48.

Mr. Mummery returned to look at the lodge again on Saturday, May 20, 1995, and spoke

to Dave Brannon. Tr. 83:13-84:11.

Response: The Sweetwater does not dispute the allegation set forth above.

49.

Mr. Brannon started sales discussions with Mr. Mummery at $425,000. DPFUF ¶ 30.

Response: The Sweetwater does not dispute the allegation set forth above.

50.

On Sunday morning, May 21, 1995, Mr. Mummery sent Mr. Brannon an offer on the

lodge for $275,000. Tr. 482:6-8. Paragraph 20 of Mr. Mummery's offer provided that if it were accepted by 6:00 p.m. that day, it would form a contract. JX 9.

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51.

Mr. Mummery did not deliver the offer in person because he knew that Mr. Brannon

would be angry. Mr. Mummery testified that Mr. Brannon "came back just ballistic." Tr. 482:9483:4; DPFUF ¶ 32.

Response: The Sweetwater does not dispute the allegation set forth above.

52.

The Brannons faxed to Mr. Mummery a counter-offer for $287,500 with a date and time

of 2:40 p.m. Sunday, May 21, 1995. Paragraph 2 of the counter-offer specified that it expired at 4:00 p.m. that day. DPFUF ¶ 33.

Response: The Sweetwater does not dispute the allegation set forth above.

53.

Mr. Mummery, as president of Western Wyoming Properties, accepted the counter-offer

on May 21, 1995. Paragraph 8 of the original offer provided for a closing date of June 21, 1995. DPFUF ¶ 34.

Response: The Sweetwater does not dispute the allegation set forth above.

54.

In his deposition, Mr. Mummery testified that "I didn't look at the bridges before I put in

the offer. I mean, I ­ I looked at them driving out. . . . my primary concern at the time was even getting the ­ you know, I ­ I had offered substantially less than I think he'd felt his lodge was 23

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worth. I mean, you know, 40 percent less, or in that neighborhood." DPFUF ¶ 35.

Response: The Sweetwater disputes the allegation set forth above and notes that Mr. Mummery's deposition was not offered into evidence. Mr. Mummery testified that he drove over the bridges, and he was not concerned about their safety because they had been posted with a weight limit that indicated the Forest Service had assessed those bridges as safe for vehicular traffic. Q A Q A Did you drive over the bridges on the Sweetwater Road? Both bridges, yes. All three bridges. Did either of you make a comment about those bridges on that trip? No. I don't think there's -- you know, the bridges had signage that said I believe weight limit three tons. Gary and I have ridden horseback probably thousands of miles in these forests, and we've crossed all sorts of bridges and ravines and gaps and draws, so to drive a car or in this case I think we might have been in a pickup truck, but to drive a pickup truck over those bridges was not -- you know, it's not something we would have focused on as being dangerous

Tr. 77:3-17. 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 signs, however, were a false representation and in fact the Forest Service never load rated the bridges and the bridges should have been closed under Forest Service policy. PPFF ¶¶ 25, 172-174.

55.

At trial, Mr. Mummery testified that he was most interested in the lodge for resale rather

than to operate: "I thought I was making a good deal vis-vis market value. In other words, if I 24

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decided to do nothing with it, I could sell it and get my money out of it." Tr. 498:17-20 (emphasis added).

Response: The Sweetwater disputes defendant's allegation above, which is clear misconstrual of Mr. Mummery's testimony. As the testimony shows, Mr. Mummery clearly stated that, even if he did not operate the lodge, he could sell it for a much higher amount than he purchased it for, which gave him added comfort to purchase the lodge. Mr. Mummery did not state that he was "most interested" in reselling the lodge, and in fact he operated it in 1996.

56.

Mr. Mummery testified that when he looked at the bridges in 1995, that the northern

abutment to the lower Sweetwater bridges was in the same condition as shown in the inspection photograph taken in 1997. Tr. 524:24-525:17.

Response: The Sweetwater does not dispute the allegation set forth above.

57.

Mr. Mummery's concern was that the Sweetwater bridges might fail in high water

because the abutments were exposed to scouring. Tr. 522:11-523:19.

Response: The Sweetwater does not dispute the allegation set forth above.

58.

Mr. Mummery had a full month to obtain information about the Sweetwater bridges

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which the purchase closed, June 21, 1995. DX 17/2, ¶ 8.

Response: The Sweetwater does not dispute the allegation set forth above. However, one of the purposes of the June 1995 meeting with the Forest Service 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. 914:19-915:21; 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, and it provided no documents which in any way demonstrated that the bridges had previously been "basically condemned." Tr. 897:16-17; PPFF ¶ 49. The current Forest Supervisor Ms. Aus 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.

59.

On June 9, 1995, a certificate of organization for The Sweetwater was filed with the

Wyoming Secretary of State. The Sweetwater's operating agreement stated that it was organized for the purpose of "ownership, development, management and sale of the property formerly known as 'Brannon's Wilderness Lodge.'" DPFUF ¶ 37.

Response: The Sweetwater does not dispute the allegation set forth above.

60.

Mr. Mummery now believes that Mr. Brannon breached the sales contract by overstating

the viability of the Sweetwater bridges. Tr. 501:2-502:1, 503:6-9. 26

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Response: The Sweetwater disputes the allegation set forth above. Mr. Mummery did not state that he believe Mr. Brannon had breached the sales contract because of the bridges, but instead because of other issues related to property on the site. As Mr. Mummery testified, but which the government omits: So I mean there is a whole bunch of stuff out there that I don't -- but I don't think I was in any way suggesting that I held Brannon responsible for the bridges because the reality is I didn't think Brannon had anything to do with the bridges. My relationship was with the U.S. Government and the Forest Service over the bridges, and I started from day one. I didn't want Brannon involved in the bridges. Tr. 502: 17-25. As Mr. Mummery explained: But my main reason for feeling that Brannon, and I think I stated it in this deposition, I wouldn't know where to refer to it, my main reason for feeling that Brannon breached the contract was he took furnishings, paintings, equipment, kitchen equipment, and other things that belonged -- that I thought I had bought.

Tr. 502: 17-23.

61.

On June 12, 1995, Mr. Mummery and The Sweetwater's lawyer, Bill Simpson, met with

three Forest Service representatives ­ Bob Rossman, Monte Barker, and Mike Bree ­ to discuss the permit that The Sweetwater desired to obtain for the lodge. Tr. 108:19-110:3.

Response: The Sweetwater does not dispute the allegation above, but notes that 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 27

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ahead with the purchase of the lodge. Def. Facts ¶ 50; Tr. 896:5-14; Tr. 914:19-915:21; 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; PPFF ¶ 49.

62.

At the time of the meeting, Bob Rossman was Acting District Ranger for the Wapiti

District. Tr. 908:18-24. Mr. Rossman was the only Forest Service line officer at the meeting. Monte Barker was a member of a special uses permits team, and dealt with lodges. Tr. 800:19801:4. Mike Bree was also a member of the special uses permits team, and along with Mr. Barker worked with Jennifer Watson on special use permits. Tr. 757:9-758:4, 760:6-761:12.

Response: The Sweetwater does not dispute the allegation above, but notes that 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.

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63.

Mr. Larson testified that Barry Davis, who was Forest Supervisor for the Shoshone in

1995, had purported to delegate to District Rangers authority to issue all term permits. Tr. 1271:6-1272:2, 1281:19-1282:10.

Response: The Sweetwater does not dispute the allegation set forth above, except to note that this delegation was "purported" by the Forest Service itself. Tr. 1271: 9-19; Tr. 1281:191282:10; Tr. 1316:1-9.

64.

Mr. Rossman believed that he had authority to sign the permit issued to The Sweetwater

on behalf of the Forest Supervisor, but he did not hold any authority to act as Forest Supervisor with respect to any decisions regarding replacement of the Sweetwater bridges. Tr. 963:8-23.

Response: The Sweetwater agrees that Mr. Rossman had authority to sign the TSUP, and disagrees with the remaining allegations above and respectfully refers the Court to its substantive assertions in its response to paragraph 62 above.

65.

Mr. Rossman has never held a warrant as a contracting officer. Tr. 967:24-968:1.

Response: The Sweetwater disagrees with the allegation above to the extent the government is asserting that Mr. Rossman did not have the authority to enter into the contract which he signed on behalf of the Forest Service.

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66.

Mr. Mummery knew and trusted Mr. Barker from his previous dealings with him, but

understood that Mr. Barker "was not the ranking officer in the room." Tr. 133:15-16.

Response: The Sweetwater does not dispute the allegations set forth above.

67.

Mr. Rossman testified that the discussion at the June 12, 1995 meeting was "merely

discussion for purposes of information and understanding" about the terms of the permit that the Forest Service subsequently issued, and Mr. Mummery signed on behalf of The Sweetwater. DPFUF ¶ 41.

Response: The Sweetwater objects to the government's citation to its pre-trial proposed facts which refer to Mr. Rossman's deposition, which conflicts with Mr. Rossman's trial testimony. As Mr. Rossman acknowledged, 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. 914:19-915:21; Tr. 956:8-10. The Sweetwater further notes that 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. 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. The Forest Service was aware that The Sweetwater was relying on the

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Forest Service's statements to determine whether or not it should purchase the lodge. Tr. 897:16-17.

68.

Mr. Rossman testified that he was not negotiating about the permit terms during the June

12, 1995 meeting, because the Forest Service dictated the terms of the permit, "and it would be up to Mr. Mummery to agree, by his signature, that those are the terms he'll abide by." DPFUF ¶ 42. Mr. Rossman regarded the meeting as an opportunity to explain the permit terms to Mr. Mummery. Tr. 965:2-7.

Response: While The Sweetwater does not dispute that Mr. Rossman testified as noted above in his deposition, it respectfully refers to its response to paragraph 67 above.

69.

The participants in the June 12, 1995 meeting had a copy of the Brannons' permit. Tr.

122:16-21.

Response: The Sweetwater does not dispute the allegations above.

70.

In a June 13, 1995 email to Jim Fischer that copied Mike Bree, Monte Barker, and

Jennifer Watson, Mr. Rossman summarized as follows the discussions that he, Mr. Barker, and Mr. Bree held with Mr. Mummery and Mr. Simpson the preceding day: JEFF DOESN'T HAVE A PROBLEM WITH GOING TO FORDS AS A CONTINGENCY FOR BRIDGE FAILURE OR UNSAFE BRIDGE CONDITION. WE ALSO AGREE NOT TO HAVE A ROAD MTC 31

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AGREEMENT. JEFF IS CONCERNED ABOUT THE LIABILITY HE ASSUMES FOR GENERAL PUBLIC, AS OPPOSED TO GUESTS. OUR APPROACH IS TO MAINTAIN THE ROAD IN ACCORDANCE WITH OUR SYSTEM OF SETTING PRIORITIES ZONALLY, WHERE THE LIABILITY IS BASICALLY OURS ANYWAY. JEFF, HAVING AN INTEREST IN THE SAFETY OF HIS GUESTS, WILL MAINTAIN THE ROAD AS HE SEES FIT WHILE WE WILL COMMUNICATE AND MONITOR PROBLEM AREAS INFORMALLY (WITHOUT THE AGREEMENT). IT IS UNDERSTOOD THAT WE DO NOT HAVE A PRIORITY ON MAINTAINING THIS ROAD, AND ARE NOT LIKELY TO ALLOCATE DOLLARS TO IT. DX 18 (emphasis added).

Response: The Sweetwater does not dispute that Mr. Rossman drafted an internal email as noted above, which he did not disclose to anyone outside the Forest Service and which does not state that fords would be used as a means to operate the lodge. As the evidence demonstrates, at the June 12th meeting the parties 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 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). Mr. Barker, who attended the June 1995 meeting, was asked about the issue of the fords and stated as follows: [I]n knowing the area, there is little doubt in my opinion that [the use of fords] 32

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was temporary only because it wouldn't be feasible to have invitees thinking that they're going to come up this road [without bridge access]. And--and when we--when we have a special use permit, I think we have a higher obligation because we're inviting people to go up there. And I don't see any way possible that you could operate this [lodge] on a sustained basis with fords because of the high water situation.

Tr. 818:1-819:22; see Tr. 1232:17-1233:13; Tr. 1233:23-1234:22. Mr. Barker further stated that "our [the Forest Service's] number one charge is public safety over all other things and that would not be- I don't feel that [it] would be appropriate to access a public service lodge with a ford that crosses a major bridge." Tr. 819:25-820:3. The Sweetwater had previously informed the Forest Service that use of fords would not permit viable lodge operations due to the high water conditions that frequently occurred on Sweetwater Creek, and The Sweetwater continued to inform it of that fact after obtaining the permit. Tr. 138:7-139:9; Tr. 140:5-142:8; Tr. 821:23822:11. The government's expert at trial he agreed, and simply stated "Fords do not work." PX 66; Tr. 2862:7-9. As Mr. Barker stated, the fact that fords could not provide permanent access was so obvious, it was beyond having to be stated. Tr. 822:24-823:3. Mr. Barker further agreed with Mr. William Simpson's characterization of the meeting in a letter dated May 2, 2001 (JX 17). Tr. 843:17-844:20. In that letter, Mr. Simpson stated: My recollection of the statements of Jeff Mummery at that meeting is that while Mr. Mummery was agreeable with the contingency of building and using fords through streams in the event any of the bridges failed along the Sweetwater Creek Road, the use of any such ford would be only temporary while bridges were being replaced or reconstructed. Mr. Mummery did not state that a ford would be a permanent substitute for any bridge which may need repairs and replacement. JX 17.

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71.

At trial, Mr. Mummery read into the record the following sentence in Acting District

Ranger Bob Rossman's email that summarizes the June 12, 1995 meeting to discuss the permit: "`JEFF, HAVING AN INTEREST IN THE SAFETY OF HIS GUESTS, WILL MAINTAIN THE ROAD AS HE SEES FIT WHILE WE COMMUNICATE AND MONITOR PROBLEM AREAS INFORMALLY WITHOUT AN AGREEMENT.'" Tr. 147:5-8 (emphasis added). Mr. Mummery testified regarding this sentence, "That's called for in my permit. I don't know the exact clause, but there's a clause in my permit where I'm responsible for certain hazardous conditions. You know, a tree. Let's say there's a road approaching my lodge, and it's got a tree that's about to fall over, but it hasn't quite fallen over, but it could strand somebody up there or fall on their vehicles or whatever. I have an obligation in my permit to inform the Forest Service and then do what I can do to assist them in correcting the problem." Tr. 147:9-19.

Response: The Sweetwater does not dispute that government counsel asked Mr. Mummery to read the email from Mr. Rossman and that Mr. Mummery testified above as to his obligation to notify the Forest Service of hazardous conditions on the Forest related to his operations. The Sweetwater further notes that the Forest Service contract administrator, Brent Larson, specifically stated that Mr. Mummery was not obligated to address conditions outside his permit area, which would include the bridges. Mr. Larson testified as follows: Q Looking at paragraph 30, doesn't that place, especially in the second sentence there, "An affirmative obligation on Mr. Mummery and the Sweetwater to inspect the site [lot] and right of way to his lodge for hazards," is that correct? Mm-hmm.

A

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Q

So he had an obligation that if he thought those bridges were dangerous, he had an obligation not to bring people over there, correct? I think you're misrepresenting paragraph 30. Okay. That's physical hazards that are on site that he should remove from the permit area. So you're telling me that clause 30 only really applies to physical hazards that are in the area? That's what it says.

A Q A

Q

A

Tr. 1363:9-25; see JX 1 at p. 9.

72.

The risk that erosion from Sweetwater Creek presented to the abutments to the

Sweetwater bridges was contemplated and discussed by The Sweetwater and the Forest Service at the June 12, 1999 meeting before the permit issued. Tr. 524:1-7.

Response: The Sweetwater does not dispute that the parties discussed the potential loss of bridge access at the June 12th meeting, but notes that the Forest Service specifically agreed that, if access were lost, it would seek funds to restore that access. PPFF ¶¶ 63-69.

73.

Jeff Mummery, the owner of The Sweetwater, testified at trial that when he discussed the

bridges with Forest Service representatives in June 1995 before the permit issued, "I was concerned about a big flood, a washout, a gullywasher, whatever you want to call it, that wiped out the bridges." Tr. 129:13-15. 35

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Response: The Sweetwater does not dispute that Mr. Mummery testified as noted, and points out that Mr. Mummery specifically placed the risk of such an event on the Forest Service by ensuring that the Forest Service would seek funds to restore bridge access in such an event. The full context of Mr. Mummery's testimony is set forth below. Q Now, at this June 1995 meeting did the Forest Service express or make any statements or representations about their level of commitment to that road? Well, the overall level of commitment was one of we can't promise you anything if there's a catastrophic failure. By the same token, it's very important to us. We'll make our best effort. We'll seriously go after solving your problem. We talked about the bridges in various stages at the meeting because we talked about a lot of other stuff, forest usage. It was a long meeting and we jumped from subject to subject, but the end result of the bridge issue in my mind was this. I wasn't so concerned about the maintenance, the daily or summer maintenance or whatever you call it. I was concerned about a big flood, a washout, a gullywasher, whatever you want to call it, that wiped out the bridges. I was concerned. Where would I be if that happened? What we decided, and I believe we decided very clearly, was that first of all if that happened the Forest Service had an interest in maintaining that road for public access as well as my lodge and for their own administrative purposes.

A

Tr, 128:23-129:21.

74.

Acting Wapiti District Ranger Bob Rossman testified that he told Mr. Mummery during

the June 1995 meeting that the bridges were "vulnerable" to such a washout. Tr. 920:12.

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Response: The Sweetwater does not dispute that Mr. Rossman testified as noted above, but would point out that Mr. Rossman also testified that in such an event the Forest Service would seek funds to restore the bridge access. 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. 825:5-8. As Mr. Rossman testified, 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. Mr. Rossman 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. Finally, Mr. Rossman stated that, if bridge access were subsequently lost, the Forest Service "certainly wouldn't have [] pulled" its request for funds to repair or replace the bridges at that point. Tr. 937:4-5 (emphasis added). 1 But, in fact, it did. PPFF 151, 154, 192.
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75.

Mr. Rossman had observed that the bridges were in poor repair, and that the abutments

appeared highly eroded and "vulnerable to high water at any time." Tr. 950:2-14.

Response: The Sweetwater does not dispute that Mr. Rossman testified as noted above, but points out that Mr. Rossman also stated that the Forest Service would seek funds in the event bridge access were lost, as noted in The Sweetwater's response above.

76.

In paragraph 13 of his declaration in support of The Sweetwater's February 6, 2004

cross-motion for summary judgment, Mr. Mummery swore that "[n]o warning signs of any type were ever placed at the bridges from 1995 to the present."

Response: The Sweetwater does not dispute the allegation above, and notes that even the government considers the 3 ton weight limit signs to be indicative of safe conditions. Brief at 36 ("[t]he signs accurately represented that the bridges were deemed safe for use by cars and light trucks").

77.

At trial, Mr. Mummery testified that he recalled seeing the "Weight Limit 3 Tons"

warning signs on May 21, 1995 when he visited the lodge, and concluded that the bridges were safe if used by vehicles weighing less than 3 tons. Tr. 77:8-10, 78:14-16.

upon the representations made by the Forest Service line officer at the meeting. Tr. 1744:231745:4; Tr. 1747:9-1748:15. 38

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Response: The Sweetwater disputes the allegation above to the extent it characterizes the weight limit signs as "warning signs," and notes that the Forest Service also deemed that these signs represent to third parties that the bridges were determined safe for use by lodge visitors. Defendant's Post-Trial Brief at 36 ("[t]he signs accurately [sic] represented that the bridges were deemed safe for use by cars and light trucks"). 2

78.

At the June 12, 1995 meeting, plaintiff declined to enter into a memorandum of

understanding ("MOU") that was incorporated into the permit and addressed financial responsibilities for the road and bridges, as had the Brannons. Tr. 534:21-535:15; JX 4.

Response: The Sweetwater does not dispute the above allegation, and notes that the Forest Supervisor believed that, if The Sweetwater had signed the MOU, it would have then given the Forest Service an "escape clause" to avoid any obligations. PX 36; Tr. 1735:4-1737:7.

79.

Mr. Mummery explained further, "So it was liability, and it ­ it was my primary concern,

period. From day one, from the moment that I looked at it, the moment that I saw the memorandum of understanding, it all had to do with: Would I be liable?" DPFUF ¶ 47.

The government's continued insistence that the bridges were in fact safe is directly rebutted by the admission by Forest Service employees that those bridges should never have been left open for public use given that they had no load rating. PPFF ¶¶ 172-174. 39

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Response: The Sweetwater does not dispute the above allegation.

80.

The Sweetwater did not enter into any written agreement that explicitly required the

Forest Service to replace the bridges if they became unsafe or impassable. Tr. 535:9-15.

Response: The Sweetwater does not dispute the above allegation, and notes that the Forest Service employees informed The Sweetwater that the Anti-Deficiency Act prevented any such commitment. PPFF ¶ 58.

81.

Mr. Mummery testified in his deposition that "I do not believe either Mr. Simpson or

myself specifically stated to the Forest Service the request to put in writing that if the bridges had a catastrophic failure, they would replace them." DPFUF ¶ 49.

Response: The Sweetwater does not dispute the above allegation.

82.

Mr. Simpson has sought written permission from the Forest Service on behalf of other

clients to ensure access across Forest Service land. Tr. 1125:25-1127:25.

Response: The Sweetwater does not dispute the allegation above, but points out that the situations Mr. Simpson was discussing involved private inholdings, and did not involve contracts entered into with the Forest Service to provide public recreational services on Forest Service land. Tr. 1128:18-1129:10; 1146:5-1147:9. 40

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83.

Mr. Rossman testified that during the June 12, 1995 meeting, "I know that we conveyed

the information that if the bridges failed, that they would not be replaced. I'm not using the word `never,' but for the foreseeable future, there's no way that we would be funding that." Tr. 956:15-19.

Response: The Sweetwater does not dispute that Mr. Rossman made the assertion noted above, but notes that, to the extent the government is asserting that the Forest Service would not seek emergency funding if bridge access was lost, it is wrong- the Forest Service agreed to pursue emergency funding if the bridge access was lost. Tr. 190:2-11; Tr. 187:18-188:8; JX 12.

84.

Mr. Bree testified about the June 12, 1995 meeting that "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 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.

Response: The Sweetwater does not dispute the above allegation.

85.

Mr. Barker testified that during the June 12, 1995 meeting "that was the whole idea.

Does Jeff want to go ahead and obtain this permit with the understanding that we can't make

41

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commitments on the road. All we can do is put in for CIP and do the best of our ability to try to get funding to do that, which would take CIP money because it was well outside our financial. I can't make and the ranger can't make financial obligations of that magnitude." Tr. 837:13-21 (emphasis added).

Response: The Sweetwater does not dispute the above allegation.

86.

Mr. Barker testified further that during the June 12, 1995 meeting, Forest Service

representatives "made very clear that with the magnitude of financial investment for this road, that really, access is the lodge, and it has very little other opportunities. There's not a lot of camping areas out there that ­ that ­ you know, we ­ we weren't we couldn't give him much hope that that kind of funding would come to fruition here when it compared against other accesses and bridges on the ­ on the ­ in the region because that's a regional pot of money." Tr. 838:1-10.

Response: The Sweetwater does not dispute the above allegation, but notes that these comments were in regard to current level of efforts to obtain funds at the existing time in 1995, when the bridge access was open and before bridge access was lost, and did not address Forest Service efforts in the event such access was lost.

87.

Mr. Barker testified that "I think it was Mr. Mummery's understanding that, yeah, we ­

you can't do anything right now, and I'll do the best I can with the understanding that you folks 42

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are going to put in for a CIP proposal. And I know fully well that it's probably low on the totem, but you know, it's a shot." Tr. 894:9-14.

Response: The Sweetwater does not dispute the above allegation, but notes that these comments were in