MOTION FOR SUMMARY RELIEF DENIED: December 8, 2010 
CBCA 94, 102, 106, 137, 138 
SHAWN MONTEE, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Richard W. Goeken of Saltman & Stevens, P.C., Washington, DC, counsel for 
Appellant. 
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, 
Missoula, MT; and Rebecca Harrison, Office of the General Counsel, Department of 
Agriculture, Portland, OR, counsel for Respondent. 
Before Board Judges VERGILIO , POLLACK , and STEEL . 
POLLACK , Board Judge. 
This matter is before the Board on a motion for summary relief filed by appellant. 
The Forest Service (FS) opposes the motion, but has not filed a cross-motion.   
Appellant sets out the issues presented in its motion for summary relief: First, do the 
contracts (the Liability for Loss clauses in particular) require the FS to bear the timber value 
loss in the circumstances of these appeals? Second, if so, what is the appropriate method 
for valuing that timber value loss? The circumstances surrounding the environmental 
suspensions of all the contracts are not generally disputed by the parties. However, the 
parties disagree as to the meaning and operation of the environmental suspension clause, 

                                                                                                   
       
     
      
     
   
  
    
      
 
     
   
     
    
   
      
  
      
    
       
  
     
   
2 CBCA 94, 102, 106, 137, 138 
C6.01, and particularly as to how it relates to the Liability for Loss clause and what recovery 
is allowed under that clause. 
There are five sales involved in this appeal. Four are on the Idaho Panhandle 
National Forest and the fifth on the Colville National Forest.  For purposes of the motion, 
the clauses at issue are common to all sales. To the extent the clauses differ, those 
differences are not material to appellant’s contentions or our resolution. 
The following clauses are relevant to the motion before us.  
C6.01 - INTERRUPTION OR DELAY OF OPERATIONS. (10/96) 
Purchaser agrees to interrupt or delay operations under this contract, in whole 
or in part, upon the written request of Contracting Officer: 
(a)	 To prevent serious environmental degradation or resource damage that 
may require contract modification under C8.3 or termination pursuant 
to C8.2; [or] 
(b)	 To comply with a court order, issued by a court of competent 
jurisdiction;   
. . . . 
Purchaser agrees that in the event of interruption or delay of operations under 
this provision, that its sole and exclusive remedy shall be (i) Contract Term 
Adjustment pursuant to B8.21, or (ii) when such interruption or delay exceeds 
30 days during Normal Operating Season, Contract Term Adjustment 
pursuant to B8.21, plus out of pocket expenses incurred as a direct result of 
interruption or delay of operations under this provision. Out of pocket 
expenses do not include lost profits, attorneys fees, replacement cost of 
timber, or any other anticipatory losses suffered by Purchaser. Purchaser 
agrees to provide receipts or other documentation to the Contracting Officer 
which clearly identify and verify actual expenses.   
B8.12 - Liability for Loss 
[If] included Timber is destroyed or damaged by fire, wind, flood, insects, 
disease or similar cause, the party holding title shall bear the timber-value loss 
resulting from such destruction or damage, except that such losses after 
removal of timber from the Sale Area, but before Scaling, shall be borne by 
Purchaser at Current Contract Rates and Required Deposits. 

                                                                                                   
     
  
      
    
    
     
     
      
     
    
      
  
      
   
    
  
      
      
      
        
      
    
         
  
 
          
              
               
               
               
             
  
3 CBCA 94, 102, 106, 137, 138 
BT8.12 - Liability for Loss 
If Included Timber is destroyed or damaged by fire, wind, flood, insects, 
disease or similar cause, the party holding title shall bear the timber-value loss 
resulting from such destruction or damage, except that such losses caused by 
insect or disease after felling of timber, shall be borne by Purchaser unless 
Purchaser is prevented from removing such timber for reasons that would 
qualify for Contract Term Adjustment. There shall be no obligation for Forest 
Service to supply, or for Purchaser to accept and pay for, other timber in lieu 
of that destroyed or damaged. This Subsection shall not be construed to 
relieve either party of negligence. 
Central to resolving this motion is that on all sales in issue, the FS at various times 
issued environmental suspensions under clause C6.01. At the time of the suspensions, most 
of the timber on the affected sales was uncut. There was some limited timber that had been 
cut before the suspensions were issued. At some point (after the suspensions were in place) 
appellant was allowed to remove that timber.  
Appellant claims that the only meaning that appropriately can be given to the contract 
language is that appellant is entitled to recover a timber value loss under B8.12 or BT8.12. 
In doing that appellant asserts that the alternative contract meaning, put forth by the FS, 
cannot be sustained. The FS posits that C6.01 provides the sole and exclusive remedy for 
costs associated with a delay and interruption for environmental purposes and that clause 
and not B8.12 (or BT8.12) covers the loss claimed here by appellant. Appellant, in support 
of its reading, further cites the Board to language in an October 25, 2002, contracting officer 
decision (which it says confirms its reading), cites to an affidavit in an associated case, and 
argues that the FS’s interpretation of C6.01 reads the Liability of Loss clause out of the 
contract. Finally, appellant contends that FS actions during the contract show that the FS 
in practice did not apply C6.01 as claimed and instead applied it in a manner consistent with 
appellant’s position. 
Discussion 
In order for appellant to prevail on this motion, we must accept its argument that the 
FS reliance on C6.01 is misplaced and appellant’s reading of B8.12, BT8.12, and C6.01 is 
the only reasonable reading of the contract that can be reached. Appellant argues that C6.01 
covers suspension damages only. It asserts that it is not seeking such damages here, but 
rather is seeking a different class of damages, timber value loss, which it says is covered 
under B8.12 and is to be applied independent of the suspension clause. Specifically, 
appellant says: 

                                                                                                   
       
             
           
        
              
    
                
                 
               
                
              
              
             
      
            
            
            
              
            
                  
               
 
  
             
                
             
              
              
  
      
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4 CBCA 94, 102, 106, 137, 138 
(1) appellant does not seek a remedy pursuant to C[T]8.12 for the suspension 
imposed by the FS and (2) the plain language of clause C[T]6.01 and FS 
practice during the suspension show that a suspension under C[T]6.01 does not 
alter the independent obligations set forth elsewhere in the contract, set forth 
in B[T]8.12 that the FS bear the timber value loss that occurred as a direct 
result of an insect infestation. 
As viewed by the FS, the plain meaning of clause C6.01 is that any monetary remedy 
sought by appellant due to the interruption and delay of the sale is limited by what is allowed 
under C6.01. Central to the FS reading of C6.01 is the wording, “sole and exclusive 
remedy.” According to the FS, the words mean what they say. Because the claimed damages 
occurred during the delay and interruption of the sale (which was ordered under C6.01) any 
compensation as to that timber is exclusively limited to remedies set out under that clause. 
Therefore, B8.12 does not apply. While appellant has presented various arguments to the 
contrary, none justify summary relief. 
Contract clause C6.01 limits FS liability during a C6.01 suspension. The wording 
appears to cover compensation for all damages and deterioration of timber which occurs 
during an environmental suspension. The fact that C6.01 does not specifically address 
deteriorating timber or specifically say it excludes “risk of loss” can be argued, but when 
faced with the wording “sole and exclusive” and “interruption or delay,” appellant’s reading 
clearly does not create a basis for summary relief in its favor. That is, appellant has not 
provided enough to show that its reading must prevail, and on that basis, appellant’s motion 
fails. 
Apart from the conclusion that appellant has not demonstrated that it is entitled to 
relief under the clause at this stage, it is noteworthy that appellant has not established that the 
liability for loss clauses necessarily would require the Government to pay money to the 
purchaser. That is, the Government fully may bear the loss through income the Government 
does not receive, as a result of there being less timber actually cut and removed. 
Decision 
Appellant’s motion for summary relief is DENIED . 
HOWARD A. POLLACK 
Board Judge 

                                                                                                   
 
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5 CBCA 94, 102, 106, 137, 138 
We concur: 
JOSEPH A. VERGILIO CANDIDA S. STEEL 
Board Judge Board Judge