Free Stipulation - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM

Document 292

Filed 03/11/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PRECISION PINE & TIMBER, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-720C (Judge George W. Miller)

JOINT STIPULATION OF FACTS The parties, plaintiff, Precision Pine & Timber, Inc. ("Precision Pine"), and defendant, the United States, respectfully submit the following joint stipulation of facts solely for use at trial in this matter. These stipulations shall not be cited, quoted, referenced or otherwise used, and are not binding, in any other matter in this or any other forum. 1. Precision Pine was founded in Heber, Arizona, in 1984. Heber is located in a

largely rural area of Arizona. 2. 3. In 1984, Precision Pine constructed and opened a sawmill in Heber, Arizona. In December 1991, Precision Pine purchased a sawmill and planer in Winslow,

Arizona, from Duke City Lumber Company. 4. The Winslow sawmill was severely damaged by fire and as a result closed on

September 17, 1998. 5. 6. The Winslow planer was closed in or about September 1999. During 1993, Precision Pine constructed a sawmill in Eagar, Arizona. Precision

Pine opened the Eagar sawmill in or about October 1993. 7. Precision Pine permanently closed the Eagar sawmill on or about August 1, 1997.

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8.

As of August 25, 1995, Precision Pine was operating sawmills located in (1)

Heber, Arizona, (2) Eagar, Arizona, and (3) Winslow, Arizona. 9. As of August 25, 1995, Precision Pine was operating a planer mill and kilns in

Winslow, Arizona. 10. Forest Service timber sale contracts and multi-product sale contracts are generally

competitively bid and awarded to the high bidder. 11. Precision Pine was the high bidder upon the O.D. Ridge timber sale contract, the

U-Bar timber sale contract, the Jersey Horse timber sale contract, the Salt multi-product sale contract, the Hutch-Boondock multi-product sale contract, the Saginaw-Kennedy multi-product sale contract, the Mud multi-product sale contract, the Monument multi-product sale contract, the Brann multi-product sale contract, the Manaco multi-product sale contract, the Brookbank multiproduct sale contract and the Kettle multi-product sale contract. 12. 13. 14. 15. 16. 17. 1994. 18. 19. 20. Precision Pine was awarded the Mud contract on September 14, 1994. Precision Pine was awarded the Monument contract on September 28, 1994. Precision Pine was awarded the Brann contract on September 29, 1994. 2 Precision Pine was awarded the O.D. Ridge contract on August 14, 1992. Precision Pine was awarded the U-Bar contract on October 5, 1992. Precision Pine was awarded the Jersey Horse contract on December 13, 1993. Precision Pine was awarded the Salt contract on February 28, 1994. Precision Pine was awarded the Hutch-Boondock contract on June 29, 1994. Precision Pine was awarded the Saginaw-Kennedy contract on September 29,

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21. 22. 23. 24.

Precision Pine was awarded the Manaco contract on January 17, 1995. Precision Pine was awarded the Brookbank contract on April 13, 1995. Precision Pine was awarded the Kettle contract on July 20, 1995. The Hay timber sale contract originally was awarded to Reidhead Lumber

Company, Inc., on January 17, 1990. 25. June 24, 1991. 26. The St. Joe timber sale contract originally was awarded to Grand Canyon Forest The Hay contract was transferred to Precision Pine by contract modification on

Industries on April 14, 1992. 27. The St. Joe contract was assigned to Precision Pine by Grand Canyon Forest

Industries on October 16, 1992. 28. On August 24, 1995, the United States District Court for the District of Arizona

entered an order in Silver v. Babbitt, 924 F. Supp. 976 (D. Ariz. 1995), enjoining all timber harvesting on United States Forest Service timber sales in Forest Service Region 3. Forest Service Region 3 principally encompasses the states of Arizona and New Mexico. 29. On August 25, 1995, following entry of the court order, the Forest Service

suspended operations on the Hay, St. Joe, O.D. Ridge, U-Bar, Jersey Horse, Salt, HutchBoondock, Saginaw-Kennedy, Mud, Monument, Brann, Manaco, Brookbank and Kettle contracts. 30. On October 18, 1995, the Forest Service entered into a stipulation with the

plaintiffs in Silver v. Babbitt, which was subsequently approved by the Court, and which allowed certain sales to be released from the injunction. 3

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31.

On December 4, 1996, the Arizona District Court found that the Forest Service

had completed consultation on its Forest Plans under the Endangered Species Act and dissolved the injunction. As a result, the Forest Service lifted the suspension of the Brookbank, Hay, Jersey Horse, Kettle, Manaco, Monument, O.D. Ridge, Saginaw-Kennedy, Salt and U-Bar contracts. 32. The price index applicable to the escalation and de-escalation of stumpage prices

for the contracts at issue is the Western Wood Products Association, Inland Rocky Mountain Ponderosa Pine index. 33. As a result of the manufacturing of logs into lumber, Precision Pine also produced

the following by-products: (i) bark; (ii) chips; (iii) shavings; and (iv) grindings. 34. Precision Pine requested contract term adjustments for each contract affected by

the suspension at issue. The Forest Service granted each of Precision Pine's requests for contract term adjustments and provided adjustments equivalent to the days lost during the contract's normal operating season. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director

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s/ Alan I. Saltman Alan I. Saltman SALTMAN & STEVENS, P.C. 1801 K Street, N.W. M-110 Washington, D.C. 20006 (202) 452-2140 (202) 775-8217 (fax)

s/ David A. Harrington DAVID A. HARRINGTON Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 (202) 307-0277 (202) 307-0972 (fax) Attorneys for Defendant

Attorney for Plaintiff March 11, 2005

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