DENIED: May 11, 2017
CBCA 5049
JONATHAN NOELDNER,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jonathan Noeldner, pro se, Eau Claire, WI.
James L. Rosen, Office of the General Counsel, Department of Agriculture, San
Francisco, CA, counsel for Respondent.
Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN.
DANIELS, Board Judge.
The United States Forest Service, an entity within the Department of Agriculture,
awarded to Jonathan Noeldner a contract to harvest ponderosa pine timber in the Inyo
National Forest of California.  The contract was awarded on August 17, 2006, and is known
as the Sentry Fuelwood Sale contract.  Mr. Noeldner states that he paid $14,514 for the
privilege of cutting and removing the trees.
Mr. Noeldner made fifteen separate, numbered claims under this contract.  A Forest
Service contracting officer denied them all in a single decision, and Mr. Noeldner appealed
that decision to the Board.


CBCA 5049 2
Mr. Noeldner submitted to us complaints for claims one, three, five, six, eight, nine,
and ten, but none of the others; he later informed us that he was pursuing only the claims for
which he had filed complaints.  The parties agreed to submit the case for a decision on the
basis of the written record, without benefit of a hearing.  In briefing the case, Mr. Noeldner
has addressed only claim one.  We therefore conclude that he is now pursing solely this
claim.  With no justification supporting any of the other claims, we conclude that those
claims have been abandoned, so we deny them.  We analyze only claim one.
Findings of Fact
Claim one is entitled, “The costs of harvesting and disposing of trash trees erroneously
marked the same as, and in addition to, trees counted and included in the Sentry Sale
purchase.”  The Forest Service had estimated, in advertising this sale, that the 109-acre sale
area included approximately 3174 trees which would yield 410 hundred cubic feet (CCF) of
ponderosa pine.  The sale advertisement stated that in addition to the estimated quantity of
410 CCF of ponderosa pine, “there is within the sale area an unestimated volume of Other
Softwood fuelwood that the bidder may agree to remove at a fixed rate.”  According to the
claim, “We soon realized there were way more trees marked for removal than what we
originally purchased” –  meaning 3174 trees.  This is because what Mr. Noeldner labeled
“junk trees” had the same markings as “trees included in the Sale.”  “We feel,” he told the
contracting officer, “that for the 104 [sic] acres of ‘junk trees’ we cut on the Sentry Sale
Areas we should be paid $6000 times 104 acres, which is $624,000.00.”
Under the contract, the “Purchaser agree[d] to purchase, cut, and remove Included
Timber.”  “Included Timber” consisted of “Standard Timber” – “[l]ive and dead trees and
portions thereof that meet Utilization Standards under [clause] BT2.2 and are designated for
cutting under [clause] BT2.3.”  Clause BT2.2 required the purchaser to “fell and buck” trees
that “equal or exceed tree diameters listed in clause AT2 and contain at least one minimum
piece.”  Clause AT2 set a minimum of six inches diameter at breast high (DBH) for
ponderosa pine.  Clause BT2.3 provided that the Forest Service would mark the trees for
cutting.  The agency’s sale administrator (its contracting officer’s representative) led the crew
that marked the trees for the Sentry Fuelwood Sale in 2006.  He tells us in a declaration that
notwithstanding the contract minimum of six inches DBH, the crew marked only trees with
a minimum of eight inches DBH.
There is no evidence in our record that Mr. Noeldner began harvesting trees in the sale
area earlier than May 2011.  Although Mr. Noeldner maintains that he “complained to the
Forest Service repeatedly regarding the fact there were way to[o] many trees designated for
removal,” there is no evidence in our record that this issue arose earlier than August 2011. 
On August 15, 2011 – after Mr. Noeldner had cut approximately 75% of the marked trees in

CBCA 5049 3
payment unit 1 (but none of the trees in the other payment unit, number 2) – the sale
administrator, after consulting with the contracting officer, agreed that Mr. Noeldner could,
but need not, cut any more trees that were less than ten inches DBH.
The sale administrator’s notes for August 15 include the statement: “I discovered that
the timber subject to agreement . . . was marked/designated for cutting the same as the
Included timber.  This came out to approximately 1400 trees that the purchaser was not
obligated to cut.”  The sale administrator wrote to Mr. Noeldner by electronic mail on
December 12, 2011:
When you signed the contract you agreed to fell and remove “Included
Timber” this included the “Standard Timber” which is basically the 410 CCF
of fuelwood you bid on and COULD have included “Timber Subject to
Agreement” had special provision CT 2.11# been included in the contract. . . . 
Since CT 2.11# was not included in the contract and there is no agreement to
be found, [the contracting officer] and I have concluded that you are not
obligated to fell and remove those trees.
Mr. Noeldner writes:
[W]e did not get to focus on the Sentry Contract until some 5 years after it was
purchased.  Most of the Sentry contract was harvested some 5 to 8 years after
the trees were marked for removal.  Trees that were small in 2005 and 2006
were much bigger in 2013 making it very difficult to differentiate between
actual Contract trees and non-contractual, extra trees.  Even after the USFS
[Forest Service] finally determined the extra trees were non-contractual, we
felled most because the USFS had marked them with the same designation and
they had grown so much that we couldn’t tell the difference and the USFS said
they didn’t have the time to do so.
We ultimately harvested approximately 1300 additional non-contractual trees
on the Sentry Contract.  This means we had to fell, apply pesticide to the
stump, limb the tree, pile the slash (on half the Sale Area), process the log and
remove it from USFS property.
Discussion
As the parties recognize, the key question to be answered to resolve this case is, which
trees was Mr. Noeldner required by the contract to cut and remove?  The contract answers
the question very directly: trees with a diameter at breast height of at least six inches. 

CBCA 5049 4
Although Mr. Noeldner seems to believe that smaller trees (smaller than what he does not
tell us) were “junk trees,” every marked tree in the sale area had a greater DBH than six
inches and thus was Included Timber and his responsibility to harvest.  The Forest Service
took actions which were actually helpful to him in three ways.  First, it marked only those
trees which had a DBH of eight inches or more, relieving him of the duty to harvest trees
with a DBH of between six and eight inches.  Second, on August 15, 2011, after he had cut
trees on only a portion of the sale acreage, the Forest Service extended that relief to trees
with a DBH of between eight and ten inches.  Third, it allowed him to cut and remove trees
as late as seven or eight years after awarding him the contract, and as the trees grew larger
over that period, the trees available to him were larger than would have been anticipated
when the contract was awarded.1
Mr. Noeldner is unable to demonstrate that the Forest Service required him to cut and
remove any trees smaller than those he was contractually responsible for harvesting.  He may
therefore not recover any of the costs he may have incurred in removing smaller trees.
We recognize that the sale administrator made statements in 2011 that indicated his
belief that Mr. Noeldner was not required by the contract to cut and remove some of the
smaller trees in payment unit 1.  We are not bound by the sale administrator’s view of the
contract’s provisions.  His statements are plainly incorrect; they misconstrue the provisions.
Decision
The appeal is DENIED.
_________________________
STEPHEN M. DANIELS
Board Judge
1 Because of the growth of the trees over time, evaluating whether the number
and volume of Included Timber available for cutting when Mr. Noeldner conducted
operations were comparable to the number and volume in the sale advertisement is not
possible.

CBCA 5049 5
We concur:
_________________________ _________________________
CATHERINE B. HYATT ALLAN H. GOODMAN
Board Judge Board Judge