MOTION FOR SUMMARY RELIEF DENIED:  November 28, 2007 
CBCA 646 
BUTTE TIMBERLANDS, LLC, 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Todd R. Johnston of Hershner Hunter, LLP, Eugene, OR, counsel for Appellant. 
Michael E. Trow, Office of the General Counsel, Department of Agriculture, Portland, 
OR, counsel for Respondent. 
Before Board Judges VERGILIO , POLLACK , and SHERIDAN . 
Opinion for the Board by Board Judge SHERIDAN .  Board Judge VERGILIO  dissents. 
SHERIDAN , Board Judge. 
This appeal involves a claim by the appellant, Butte Timberlands, LLC (Butte), 
seeking $134,879.23 from the respondent, the Department of Agriculture (USDA), Forest 
Service (FS).  The claim arises out of timber sale contract 003050 at the Umpqua National 
Forest in Douglas County, Oregon.  As part of the contract, the parties agreed that certain 
timber harvesting methods were to be used by the appellant.  Butte alleges that the FS 
breached the contract and its duty of good faith by failing to properly consider the appellant’s 
request to modify the contract to use a different harvesting method from the one specified 
in the contract. 

 
 
 
 
    
    
  
   
         
  
   
 
 
  
   
  
    
2CBCA 646 
The record before the Board consists of the pleadings and the appeal file, exhibits 1 
through 26.  Following the pleading process, the respondent filed a motion for summary 
relief pursuant to Board Rule 8.  The filing consists of a motion for summary relief (Motion), 
statement of uncontested facts (Statement), and memorandum in support of summary relief 
(Memorandum).  The appellant submitted a response opposing the motion (Response), with 
attached declarations of Mr. Richard Brewer and Mr. Fred Sperry.  The respondent has 
replied to the appellant’s response (Reply).  
Based on the findings of fact and application of the law set forth below, we deny the 
respondent’s motion for summary relief. 
Background 
The following findings are made for the purposes of this decision only. 
The USDA and FS are tasked with providing regulations, guidance, and plans to, inter 
alia, insure that timber will be harvested from National Forest System lands only where soil 
conditions will not be irreversibly damaged. National Forest Management Act of 1976, 16 
U.S.C. § 1604(g)(3)(E) (2000).  The implementing regulations provide that FS approving 
officials must insure that the harvesting operations required by each timber sale contract are 
consistent with applicable land and resource management plans and environmental quality 
standards.  36 CFR 223.30(c) (2004). 
This timber sale contract arose out of the July 2003 Kelsay Fire that burned 1200 acres 
of timber in the Umpqua National Forest, which is administered by the FS’ Diamond Lake 
Ranger District (District).  Appeal File, Exhibit 8.  In the planning stage, prior to the award 
of the contract, the FS assessed the area in the Umpqua National Forest to be harvested. 
Appeal File, Exhibit 2.  The FS issued a July 28, 2004, “decision memo” describing the area 
and making recommendations on best management practices to ensure proper harvesting.
1 
Id.  A “timber sale report and logging premise” (timber sale report), dated August 24, 2004, 
indicated that the purchaser should expect to use three logging systems: skyline, loader, and 
mechanical. Appeal File, Exhibit 3.  In pertinent part, the timber sale report provided that 
approximately 182 acres of timber, units 2, 4, 6, 8, 10, 12, 20, 21, 22, 24, 25, 25a, 26, 27, 
1   A “decision memo” as used by the FS appears to be equivalent to a “decision 
notice” as referenced by FS regulation:  “a concise written record of a responsible official’s 
decision based on an environmental assessment and a finding of no significant impact 
(FONSI).”  36 CFR 215.2. 

 
    
 
 
 
 
          
 
  
 
   
  
     
 
 
  
  
   
3CBCA 646 
27a, 27b, 29, 30, 31, and portions of unit 7, were to be mechanically logged, with the report 
stating: 
Mechanical logging is planned for 20 units:  2,741 MBF [one thousand board 
feet].  The system is comprised of a feller buncher, log loader, grapple skidder 
and delimber. Designated skid roads will be spaced at an average distance of 
100 feet apart.  Some hand felling will be required to reach the area between 
designated trails th[at] cannot be reached by the feller buncher.  
Appeal File, Exhibit 3 at 2.  The appraisal portion of the report showed the mechanical 
logging estimated costs as being allocated to a feller buncher (identified as a “Timbco T430 
FB [feller buncher]”) as well as estimated costs for hand-felling (identified as “Felling & 
Bucking ($[10]/MBF)”). 
2 Id. at 11-12.  According to a popular encyclopedic website, “[a] 
feller buncher is a large logging machine with an attachment that cuts trees in place.” 3 
2   The following definitions contained in 29 CFR 1910.266 (2007) may be helpful in 
understanding the timber harvesting terms used in this decision: 
Buck .  To cut a felled tree into logs.
 
. . . .
 
Fell (fall) .  To cut down trees.
 
. . . .
 
Limbing.  To cut branches off felled trees.
 
. . . .
 
Machine .  A piece of stationary or mobile equipment having a self-contained
 
powerplant, that is operated off-road and used for the movement of material.
 
Machines include, but are not limited to, tractors, skidders, front-end loaders,
 
scrapers, graders, bulldozers, swing yarders, log stackers, log loaders, and
 
mechanical felling devices, such as tree shears and feller bunchers. 
. . . .
 
Skidding.  The yarding of trees or logs by pulling or towing them across the
 
ground.
 
. . . .
 
Yarding. The movement of logs from the place they are felled to a landing. . . .
3  A feller buncher “consists of a standard heavy equipment base with a tree-grabbing 
device furnished with a circular saw or a shear -- a pinching device designed to cut small 
trees off at the base.  The machine then places the cut tree on a stack suitable for a skidder 
or forwarder, or other means of transport (yarding) for further processing (e.g., delimbing, 
bucking, loading, or chipping). Wikipedia, Feller buncher, 

   
   
 
 
 
 
 
    
 
 
 
 
    
4 CBCA 646 
Wikipedia, Feller buncher, http://en.wikipedia.org/wiki/Feller_buncher (last visited Nov. 27, 
2007).  “A skidder is any type of heavy vehicle used in a logging operation for pulling cut 
trees out of a forest in a process called ‘skidding’, in which the logs are transported from the 
cutting site to a landing.”  Id., Skidder, http://en.wikipedia.org/wiki/Skidder (last visited Nov. 
27, 2007). 
On August 27, 2004, the timber sale prospectus was furnished to prospective bidders 
and the sale was advertised.  Appeal File, Exhibits 4, 5.  The prospectus provided a map of 
the sale area showing notations of where mechanical logging was specified (also where 
skyline and loader logging were specified).  Id., Exhibit 4 at 6. 
Butte was awarded the contract on September 10, 2004.  Appeal File, Exhibit 8.  The 
yarding and skidding requirements of the contract were set forth in paragraph C.6.42# -­
Yarding/Skidding Requirements, and provided: 
Purchaser shall submit for Forest Service approval a yarding/skidding plan 
prior to the start of felling operations.  Requirements other than those specified 
in the following table may be approved.  When appropriate, such approval 
shall include adjustments in current contract rates and revision of the sale area 
map.  In no such case shall the adjustments result in current contract rates less 
than base rates. 
Location of all skid roads and trails, tractor roads, skyline corridors, 
mechanized harvester trails, forwarder roads, and other log skidding facilities, 
shall be approved prior to their use or construction. 
See attached table for requirements. 
Id. at 155 (emphasis added by italics).  The referenced table provided the yarding and 
skidding requirements for the units being mechanically logged: 
Mechanical Logging: 
All equipment will be restricted to designated skid trails. Location for skid 
trails will be agreed to prior to felling at a minimum of 100 feet apart. 
Existing skid trails will be used where feasible.  All trails will be subsoiled to 
http://en.wikipedia.org/wiki/Feller_buncher (last visited Nov. 27. 24, 2007). 

          
 
 
 
   
     
 
     
       
 
          
 
  
5CBCA 646 
twenty (20) inch depth and covered with slash and large down wood following 
logging. 
Id. at 155-56 (emphasis added by italics). 
The contract also contained the following special provision used in USDA timber sale 
contracts: 
C8.3 - Contract Modification.  The conditions of this timber sale are 
completely set forth in this contract.  This contract can be modified only by 
written agreement of the parties . . . contract modifications, redetermination 
of rates and termination shall be made on behalf of the Forest Service by the 
Contracting Officer . 
Appeal File, Exhibit 8 at 137 (emphasis added). 
Mr. Wayne Kleckner was the contracting officer assigned to administer the contract 
and Mr. Dale Anderson was designated the FS representative (FSR).  Appeal File, Exhibit 
10 at 5, 10. As the FSR, Mr. Anderson was available on site and authorized to “take action 
under this contract.”  Id. at 5.  Landings and skid trails were located by agreement prior to 
logging a given unit and were shown by drawings in various timber sale inspection reports 
dated October 1, 4, 11, 25, and 28, 2004. Statement at 5 n.3 (citing Appeal File, Exhibit 11 
at 2, 4, 6, 13, 14). 
On October 7, 2004, Mr. Rick Brewer, the vice-president of Butte, approached Mr. 
Anderson with a “proposal for modification of the felling” to widen the main skid trail 
spacing, “[m]ove the main skid roads to 125 to 150 feet apart, and achieve felling with a 
buncher on laterals from the main corridor.”
4   Appeal File, Exhibit 10 at 8.  Mr. Brewer 
represented that “the use of a buncher to achieve all felling and pack trees back to the main 
corridor is required by the [FS] on east side timber sales.”  Id.  With the request, Mr. Brewer 
provided a list of several problems Butte was encountering with the felling process, and 
argued that the area would not be adversely impacted by additional compaction if the 
modification was granted.  Id . at 9. Allowing the proposed method of felling would have 
given Butte’s feller buncher increased access in units that would, essentially, have let Butte 
use the feller buncher to fell all the trees in the contract. The need for hand-felling would 
have been obviated.  Id . at 12.  
4   The appellant appears to use the term “skid road” as synonymous with “skid trail.” 

 
      
    
 
    
  
    
       
            
 
   
 
 
 
 
    
   
 
   
  
6 CBCA 646 
Mr. Anderson contacted Mr. Jim Archuleta, the District’s soil scientist, to address the 
soils related topics raised by Butte’s requested modification.  Mr. Archuleta referenced 
“numerous conversations” he had with the FS’s regional soil scientist, Mr. Steve Howes, 
about the use of equipment on the District’s pumice soils and associated compaction, as well 
as “a false belief that pumice (pummy) does not compact.” Appeal File, Exhibit 10 at 6.  He 
noted that “individual monitoring we have done on this district showed that equipment with 
a PSI [pounds per square inch] of 7 can create a >20% change in soil bulk density with a 
minimum of three passes.”  Id. Mr. Archuleta went on to provide rebuttal comments for each 
of the soils related arguments Butte made in favor of being allowed to take the feller buncher 
off the skid roads, noting that aerial photos taken in 1998 of units harvested in the 1960s and 
1970s “within feet” of the units to be harvested in this contract show “legacy skid trails” 
which periods of freeze and thaw had not restored to original condition. Mr. Archuleta also 
noted that Mr. Brewer’s contentions that the “east side” soils are “pummy” and that 
“extensive research and experimentation have led to all sales requiring bunching and packing 
to 125-150 [foot] corridors” may be contradicted by District specific monitoring and a 1999 
study on compaction.  Id . at 7.  By letter dated October 12, 2004, Mr. Anderson denied 
Butte’s request to change the yarding and skidding plan to allow felling with a buncher on 
laterals from the main corridor.  Mr. Anderson concluded that the contract’s yarding and 
skidding requirements “specify that all equipment must stay on designated trails at least 100 
feet apart.”  Id. at 12.  Mr. Anderson also drew from the report that Mr. Archuleta’s 
“recommendation . . . [was] to stay within [the] contract requirement of only allowing 
designated trails 100 feet apart.  Allowing the feller buncher off the designated trails and 
authorizing lateral trails would increase compaction.”  Id. 
Mr. Brewer wrote back to Mr. Anderson on October 14, 2004, expressing Butte’s 
disagreement with the decision and stating that he believed that the FS’ decision failed to 
calculate the “overall impact” of requiring the feller buncher to remain on the skid trails: 
We will now have much more entry into the soils by the machine piling shovel, 
which has a 5 PSI footprint.  This machine is now going to intrude upon nearly 
every square foot of unit ground, although we will try to minimize it to the best 
of our ability. The human footprints left by the hand cutters will tread heavily 
upon the soil also.  By my calculation, a 200 [pound] human has up to a 12.5 
PSI impact as you step down heel to toe on one foot when walking.  By 
contrast, our feller buncher has less than a 7.0 PSI impact. 
The method of shovel logging, while becoming more commonplace in recent 
years, has a much heavier PSI rating than a tractor. Our yarding shovel has a 
9.6 PSI rating, compared to a tracked skidder which usually falls into a 4-5 PSI 
rating.  Bunch piles translate to lower cycle counts, and less compaction. 

 
 
   
 
 
 
      
   
 
 
 
  
 
 
 
  
       
        
      
   
7 CBCA 646 
I appreciate the waiving of subsoil requirements when shovel logging in place 
of tractor skidding, but I fear that we are actually compacting and impacting 
the ground more with this method. 
I’m not a soils scientist, therefore, I am not qualified to comment on the 
arguments given to substantiate the decision. . . .  I believe that we sometimes 
fail to properly weigh the positives and negatives in the final overall analysis. 
In my humble opinion, I assert that the overall benefits of less intrusion, less 
timber breakage, fewer passes on the main skidding corridor, fewer corridors, 
speed of harvest therefore high recovery, residual stand retention, higher 
quality slash disposal, lower PSI impact on the main skidding corridor and 
safety outweigh the one PSI over C6.42# spec. bunching off the main corridor. 
. . . . 
That being said, I appreciate your attention to this proposal, and my take is that 
you and your staff have the best interest of the land as your primary concern, 
but just haven’t properly weighed all the criteria in the decision. 
Appeal File, Exhibit 10 at 13 (emphasis added).  In that same October 14, 2004, letter, Butte 
asked Mr. Anderson if the FS sales administrator and soils scientist had established whether 
“off corridor cutting” would be allowed “when the ground freezes up, or the snow cover 
comes to sufficiently protect the soils.”  Id. at 14.  
On November 4, 2004, Mr. Brewer wrote Mr. Jim Akers, the District Sales 
Administrator, complaining about “a pattern of operational delays, delays of decision, lack 
of cooperation, and poor attitude from the administration of this contract” and representing, 
“I am still waiting for an answer to my question regarding cutting [timber] off the main 
corridor with a feller buncher on a sufficient snow pack to prevent compaction.”  Appeal 
File, Exhibit 10 at 18.  Several District personnel, including Messrs. Akers and Archuleta, 
the District planner, Mr. Stu Carlson, and the District silviculturist, Mr. Rick Abbott, 
discussed the fact that the District had very little experience with logging over snow and that 
reports about it were anecdotal. Concluding that because the District could not test whether 
using a feller buncher over frozen ground and snow pack would not cause detrimental 
compaction until the next spring after the snow had melted, the District personnel decided 
to deny Butte’s request.  Id. at 35-37. However, the District personnel determined that Butte 
should be given a [two] acre plot to fell in the manner requested “as a test for future logging 

     
 
 
  
 
   
  
  
    
 
  
     
   
 
 
        
     
   
8CBCA 646 
operations over snow.”  Id. at 37.  The record does not indicate when, or whether, the District 
communicated its decision to deny Butte’s request to use the feller buncher over snow. 5 
Work progressed on the contract, a number of time extensions were made, and on 
July 27, 2006, Butte requested a final inspection on the contract. Appeal File, Exhibit 10 at 
56.  Mr. Nelson notified Butte on August 1, 2006, that certain work in unit seven was not 
completed or accepted. He informed Butte that the FS would hold Butte’s performance bond 
and use it to complete the work if the work was not finished by August 11, 2006.  Id . at 57. 
The record does not contain documentary evidence showing the actual date of completion 
or final acceptance, however; on September 5, 2006, Butte notified individuals at the District 
that “all contract obligations have been completed and accepted as of August 11, 2006, 
therefore, I am requesting a refund of the cash performance deposit.”  Id. at 58.  The FS 
processed a refund of Butte’s $15,000 performance deposit on October 5, 2006.  Id . at 59. 
Pursuant to contract paragraph B9.2 - Disputes, on October 23, 2006, Butte submitted 
a claim to the contracting officer, then Mr. Steven Nelson, seeking “direct costs” of “at least 
$134,879.23.”  Appeal File, Exhibit 20. As reasons for the claim, Butte gave the following: 
1. We were not allowed to log the ground base units with “mechanized 
6yarding” as referenced in the prospectus and the contractual map.[ ]
2. Written requests regarding this issue went unanswered in violation of 
7B6.36.[ ]
5   “There is no evidence in the Appeal File that the 2 acre plot was actually offered to 
appellant or that appellant ever raised the issue again.”  Statement at 9 n.6.
6   This allegation relates to the FS’ refusal to grant Butte’s requested modification to 
change the main skid roads to 125 to 150 feet apart and achieve felling with a feller buncher 
on “laterals from the main corridor.” It also appears to relate to Butte’s request to take the 
feller buncher off trails and over frozen ground or snow pack.
7   Paragraph B6.36 - Acceptance of Work provides that “upon purchaser’s written 
request and assurance that work has been completed, Forest Service shall perform an 
inspection promptly so as not to delay unnecessarily the progress of purchaser’s operations. 
. . .  In the event that Forest Service is unable to make such inspection within 10 days of 
purchaser’s request, purchaser shall be notified in writing of necessity of postponement and 
time when inspection can be made.”  Appeal File, Exhibit 8 at 129.  

   
  
 
  
   
 
  
    
  
 
  
     
      
 
 
   
     
 
9 CBCA 646 
3. The District soil scientist, Jim Archuleta, appears to have a personal 
8stake in promoting the increased use of subsoilers,[ ] as he has applied
for at least two patents on them . . . and may be in violation of B6.01 
9subparagraph b of the contract.[ ]
104. Completed work was not accepted in writing as provided in B6.36.[ ]
Id. 
Mr. Nelson denied the claim via a final decision dated January 30, 2007.  Appeal File, 
Exhibit 15. In his final decision, the contracting officer addressed the allegations proffered 
by Butte as the bases of its claim.  Regarding Butte’s allegation that it was “not allowed to 
widen the main skid [road] spacing to 125 to 150 feet” and “not allowed to log the ground 
based units with ‘mechanized yarding,’” Mr. Nelson replied that the FS had properly 
evaluated Butte’s proposed modification and consulted with a subject matter specialist prior 
to making its decision. “The decision to deny the requested modification was based on the 
expectation that more soil compaction would occur by allowing the feller buncher off of 
wider-spaced designated skid trails.  This expectation is the result of monitoring similar 
requests on the . . . District,” and “[Mr.] Anderson made a reasoned decision to deny your 
proposed change.”  Id. at 4-5. Addressing Butte’s allegation that “written requests regarding 
the modification went unanswered,” Mr. Nelson opined that Mr. Anderson had responded 
8 A subsoiler is a tractor-mounted implement used to loosen and break up soil at 
depths below the level of a traditional disk harrow or tiller.  Typically, a subsoiler mounted 
to a compact utility tractor has a thin blade with a sharpened tip, and will reach depths of 
about twelve inches.   Wikipedia, Subsoiler, http://en.wikipedia.gor/wiki/Subsoiler (last 
visited Nov. 27, 2007).  The contract provided that after the contractor had finished using the 
designated skid trails, it was required to subsoil those skid trails to a depth of 20 inches. 
Appeal File, Exhibit 8 at 156. 
9   Paragraph B6.01 - Statutory Compliance provides that the “purchaser agrees to 
conduct operations under this contract” in compliance with Federal, state, and local statutes, 
standards, orders, permits, regulations and environmental quality laws, and that “a conviction 
of, or civil judgment for,” among other things, “(b)  Fraud, criminal offenses, or violation of 
Federal or State antitrust laws, any of which occurred in connection with obtaining, 
attempting to obtain, or performing a public contract or subcontract,” shall be considered a 
breach of the section and may result in termination of the contract.  Appeal File, Exhibit 8 
at 125. 
10 See supra  note 7. 

         
 
   
 
 
 
 
  
   
       
    
 
10 CBCA 646 
to the request for a modification in writing on October 12, 2004, within seven days of FS’ 
receipt of the request.  Further, he noted that Butte had moved its equipment into the area and 
had begun operations as of October 1, 2004, so the seven days the FS took to research and 
respond to the request did not unduly delay Butte’s operations.  Id . at 5.  As to Butte’s 
allegation that Mr. Archuleta appeared to have “a personal stake in promoting the use of 
subsoilers,” Mr. Nelson pointed out that Mr. Archuleta was not a party to the contract and 
did not speak for the FS or make decisions related to the operation of the contract.  “[Mr. 
Archuleta] was properly asked to review [Butte’s] proposal, since he is the subject matter 
specialist in soils for the . . . District.  Mr. Archuleta properly limited his review and 
recommendations to areas of his professional expertise.”
11 Id. at 5-6.  
Butte timely appealed the final decision to the Civilian Board of Contract Appeals 
(CBCA), where, on February 16, 2007, the appeal was docketed as CBCA 646. 
Positions of the Parties 
The crux of this dispute appears to be the appellant’s dissatisfaction with the FS’ 
refusal to allow Butte to take its feller buncher off the designated skid trails and to 
mechanically fell timber on laterals from the main corridor, or from frozen ground, or from 
on top of snow pack.  Butte’s proposal would have entailed modifying the mechanical 
logging yarding and skidding requirements set forth in the contract.  The appellant posits that 
none of the changes it proposed in its requested modifications would have adversely 
impacted the soil more than using the feller buncher from the designated skid trails and hand-
felling with chainsaws the timber the feller buncher could not reach from the skid trails. 
The respondent avers that the contract clearly indicated the requirements with regard 
to mechanical logging, including the yarding and skidding requirements; the FS had 
“unilateral authority” to approve requirements different from those set forth in the contract; 
and there is no evidence that the FS was “less than reasonable” in evaluating Butte’s 
proposed modification.  Memorandum at 13-15.  The respondent argues it is entitled to 
judgment as a matter of law because Butte did no more than use the yarding and skidding 
requirements specified in the contract.  
The appellant responds that there are “disputed facts relating to the reasonableness of 
respondent’s actions and decisions” regarding the mechanical logging methods and its 
requested modifications.  Butte avers that the respondent’s rejections of the alternative 
11 The contracting officer discussed several other bases for his decision that do not 
need to be discussed to decide this motion. 

 
    
       
 
 
     
    
 
     
  
  
  
  
 
  
    
      
  
11 CBCA 646 
logging methods it proposed were unreasonable and a breach of the contract.  The appellant 
argues that “unless the Board finds that there is no conflicting evidence as to whether the 
respondent “acted reasonably or in accordance with the parties’ reasonable expectations,” the 
respondent’s motion must be denied.  
The respondent replies that the decision to reject Butte’s alternative harvesting 
methods was reasonable and that the “appellant adduces no competent evidence to create a 
material fact which undermines the contracting officer’s decision.” 
Discussion 
The question presented by this appeal is whether under the terms of this contract the 
FS acted reasonably in denying Butte’s requests to modify the mechanical logging 
requirements to allow it to use its feller buncher to fell timber from laterals off the main 
corridor, from frozen ground, and from snow pack. 
Pure contract interpretation is a question of law that may be resolved by summary 
judgment.  P.J. Maffei Building Wrecking Corp. v. United States , 732 F.2d 913, 916 (Fed. 
Cir. 1984). However, the question of interpretation of language, the conduct, and the intent 
of the parties, i.e., the question of what is the meaning that should be given by a court or 
board to the words of a contract, may sometimes involve questions of material fact and not 
present a pure question of law.  If there is a genuine dispute of material fact, summary 
judgment is inappropriate.  Beta Systems, Inc. v. United States , 838 F.2d 1179, 1183 (Fed. 
Cir. 1988).  
For summary judgment to be granted, there can be no genuine issue of material fact, 
and the moving party must be entitled to judgment as a matter of law.  A fact is material if 
it is necessary and relevant to the proceeding, or might significantly affect the outcome of 
the case.  A genuine issue exists concerning a fact if the evidence presented is sufficient to 
enable a reasonable fact finder to decide the question in favor of the non-moving party. 
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). 
As stated in Darwin Construction Co. v. United States , 31 Fed. C1. 453, 456 (1994): 
Although contract interpretation is generally a question of law, questions of 
fact can arise as part of the analysis. What is most reasonable in a given set of 
circumstances is an issue of fact.  D & S Universal Mining Co. v. United 
States , 4 C1. Ct. 94, 97 (1983). Moreover, the existence of industry or trade 
practice is a question of fact, John McShain, Inc. v. United States , 199 Ct. Cl. 
364, 370, 462 F.2d 489 (1972), evidence of which “may always explain  or 

 
   
       
   
 
  
    
  
  
      
  
  
 
    
 
   
  
  
  
    
      
  
        
12 CBCA 646 
define , as distinguished from vary  or contradict , contract language.” W.G. 
Cornell Co. v. United States , 179 Ct. C1. 651, 670, 376 F.2d 299 (1967) 
(emphasis in original). 
In deciding a motion for summary relief, the Board’s role is not to resolve factual 
questions, or to weigh the evidence and determine the truth of the matter. Rather, our role 
is to ascertain whether there are material facts in dispute and whether there exists any 
genuine issue for trial. The burden is on the moving party to establish it is entitled to 
summary relief by proving first that there is no genuine issue of material fact.  Further, the 
reasonably disputed evidence offered by the non-moving party is to be believed for purposes 
of the motion, and we must resolve any doubts over whether factual issues are in dispute in 
favor of the party opposing summary relief.  Celotex Corp. v. Catrett , 477 U.S. 317, 323 
(1986); Anderson; H.F. Allen Orchards v. United States , 749 F.2d 1571, 1574 (Fed. Cir. 
1984); Saturn Construction Co. , VABCA 3229, 91-3 BCA ¶ 24,15, aff’d , 991 F.2d 810 (Fed. 
Cir. 1993) (table); DJM/REZA, Joint Venture, VABCA 6917 et al., 05-1 BCA ¶ 32,943. 
To combat a motion for summary relief, the non-movant must set out in an affidavit, 
or otherwise, what specific evidence could be offered at trial.  Pure Gold, Inc. v. Syntex 
(U.S.A.), Inc. , 739 F.2d 624, 627 (Fed. Cir. 1984).  Its evidence is to be believed and all 
reasonable factual inferences must be drawn in its favor.  C. Sanchez & Son, Inc. v. United 
States , 6 F.3d 1539, 1541 (Fed. Cir. 1993). In granting a motion for summary relief the 
Board must be sure that the criteria for granting the motion are fully satisfied.  There must 
be no genuine issue of material fact separating the parties that the Board must decide, and, 
because the respondent is the moving party here, the respondent must be entitled to decision 
as a matter of law.  Mingus Constructors, Inc. v. United States , 812 F.2d 1387 (Fed. Cir. 
1987). 
Butte requested that the mechanical logging requirements of the contract be modified 
to allow it to use its feller buncher off the skid trails and to fell timber on “laterals” from the 
main corridor.  The FSR denied this request.  Subsequently, Butte asked the FSR if it could 
take its feller buncher off the skid trails and fell timber from frozen ground or snow pack. 
The FS decided to deny this request also, but the record is unclear as to when the FS told 
Butte its requested modification had been denied.  Butte’s proposed modifications would 
have allowed its feller buncher greater access to timber, increasing the amount of timber that 
was able to be mechanically logged as opposed to hand-felled. Hand-felling using chainsaws 
was necessary if the feller buncher was limited to felling only from the designated skid trails. 
By declaration, Mr. Brewer has stated that he would testify at hearing that he has been 
in the timber industry for thirty-one years and allowing Butte to use the feller buncher 
machine, as per the requested modification, “would not [exceed] . . . the 20% regional 

  
    
 
 
 
 
 
 
 
  
       
 
 
  
 
     
 
 
 
    
13 CBCA 646 
productivity standard and guideline for detrimental impacts in the activity area.”  Response 
(Declaration of Richard Brewer (July 11, 2007) at 1).  Mr. Brewer declares: 
Allowing Butte Timberlands’ proposed plan would have: (1) reduced the area 
of detrimental compaction; (2) increased the quantity of merchantable timber 
harvested; (3) increased revenue for the respondent and Butte Timberlands; (4) 
resulted in earlier completion date; (5) resulted in less residual tree damage; 
(6) prevented slash and piling of slash in the unit; and (7) improved natural 
regeneration of the forest.  
Response (Brewer Declaration at 2).  Mr. Fred Sperry, a 1981 graduate of Oregon State 
University who has a degree in forest management, provides a declaration that essentially 
mirrors Mr. Brewer’s declaration, adding that “equipment with a PSI of seven pounds is 
unlikely to create a change in soil bulk density in excess of 20%.”  Response (Declaration 
of Fred Sperry (undated) at 2).  
The FS contends in its motion that the FS has “unilateral authority to ‘approve’ 
requirements different than . . . [those set forth] in the contract,” and “the parties did not 
bargain for a reasonableness standard.”  Memorandum at 13-14.  Alternatively, the FS asserts 
that it acted reasonably in refusing to allow Butte to mechanically fell timber from off the 
designated skid roads, and that Butte has failed to “adduce competent evidence to create a 
material fact which undermines the [contracting officer’s] determination.”  Reply at 1.  As 
indicia of its reasonableness in refusing to allow the feller buncher to fell on laterals from the 
main corridor, the FS relies on its vetting the request with the District soils scientist.  Also, 
the facts reveal that, in considering Butte’s request to fell from frozen ground and from snow 
pack, several FS personnel were consulted and involved in making the decision to deny the 
request. 
The respondent is incorrect in its conclusion that a reasonableness standard does not 
apply to the FS’ consideration of the appellant’s request.  An implied covenant of good faith 
and fair dealing imposes an obligation on the part of each party to a contract to act 
reasonably.  In Maxima Corp. v. United States , 847 F.2d 1549, 1556 (Fed. Cir. 1988), our 
appellate authority, the Court of Appeals for the Federal Circuit, stated that “[t]he need for 
mutual fair dealing is no less required in contracts to which the Government is a party, than 
in any other commercial arrangement.”  See also Norman v. General Services 
Administration, GSBCA 15070, et al., 02-2 BCA ¶ 32,042 (closely allied to the 
Government’s duty to cooperate with the contractor and, to a limited extent overlapping with 
it, is the Government’s continuing duty to deal fairly and in good faith with the contractor); 
Restatement (Second) of Contracts § 205 (1981) (every contract imposes upon each party a 
duty of good faith and fair dealing in its performance and subterfuges and evasions violate 

 
 
  
    
 
 
  
 
 
 
 
    
 
   
     
       
 
 
 
14 CBCA 646 
that obligation, as do lack of diligence and interference with or failure to cooperate in the 
other party’s performance).  Based on the covenant of good faith and fair dealing inherent 
in every contract, all parties to a contract are charged with acting reasonably.  One of our 
predecessor boards, the Department of Agriculture Board of Contract Appeals, in an 
analogous situation, discussed a similar contract provision where tractors were restricted to 
approved skid trails no less than 100 feet apart.  Thorco, Inc. , AGBCA 2001-136-1, 03-1 
BCA ¶ 32,164.  In Thorco, the Agriculture Board applied a reasonableness standard in 
assessing whether the FS sales administrator subsequently improperly refused to allow 
“dispersed skidding.”  Id. at 159,038. However, what are considered reasonable actions and 
decision-making can differ based on the terms of the contract, as well as the particular facts 
and circumstances.  Although the respondent has made this motion, we note that 
determinations as to the reasonableness of a party’s actions under all the circumstances 
involve questions of fact that are generally not appropriate for summary relief.  McKenzie 
Engineering Co. , ASBCA 53374, 02-2 BCA ¶ 31,972; Coastal Government Services, Inc. , 
ASBCA 50283, 99-1 BCA ¶ 30,348.  
In pertinent part, paragraph C.6.42# of the contract provided that Butte was required 
to submit for approval a yarding and skidding plan showing its intended locations for, among 
other things, skid trails.  The plan was to establish how Butte intended to move the timber 
from where it was felled to a landing.  Paragraph C.6.42# referenced certain requirements 
that were set forth in a table that immediately followed the paragraph, identifying the 
requirements for, among other things, the mechanical logging at issue here.  As to the 
mechanical logging, the purchaser was required to use the existing skid trails where feasible. 
The locations for the skid trails were to be agreed upon by the parties prior to the start of 
felling operations, and the skid trails were required to be a minimum of 100 feet apart.  The 
contract also specifically required that for the mechanical logging “all equipment was 
restricted to the designated skid trails,” and following logging all the trails were required to 
be subsoiled to a twenty inch depth.  However, that being said, paragraph C.6.42# also 
provided that “requirements other than those specified . . . may be approved.”  A plain 
reading of paragraph C.6.42# appears to provide for modification of the mechanical logging 
requirements set forth in the contract - provided the parties are able to come to a written 
agreement as to what those logging requirements are to be. As such, the FS was obligated 
to give Butte’s requested modifications good faith consideration.  
To grant the respondent’s motion, we must decide that there are no material facts in 
dispute and that the respondent is entitled to judgment as a matter of law. The FS has pointed 
to facts supporting its contention that the method of felling proposed by the appellant would 
have been more disruptive to the area than the method specified.  The appellant has declared 
that its proposed method of felling would not cause any greater damage that the method in 
the contract and that its feller buncher did not exceed the 7 PSI cautioned against by the FS 

 
        
 
   
 
 
 
 
 
     
 
 
 
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15 CBCA 646 
soils engineer.  For purposes of deciding this motion we are required to resolve any doubts 
over whether factual issues are in dispute in favor of the appellant.  The appellant’s 
declarations place in dispute, albeit with minimal evidence, certain material facts which we 
believe are pertinent to the reasonableness of the FS’ actions. 
The facts as they are currently set forth by the parties also raise several unanswered 
factual questions which may be pertinent to what we will ultimately resolve here - the 
reasonableness of the FS’ actions.  The record does not explain and we are unclear as to what 
“felling with a buncher on laterals from the main corridor” entails or why this method would 
(or would not) cause more damage to the area than would hand-felling using chainsaws.  So, 
too, it would be helpful to learn more about the “designated skid trails” and how they were 
selected and located.  The “east-side practice,” both what it was and why (or why not) it 
should apply to the sale area, is also an issue that seems to be relevant.  These are a few of 
the many questions of fact we have, the answers to which we anticipate will be provided as 
the record is further developed.  These questions, and the answers that flow from them, all 
go to whether the FS acted reasonably in considering Butte’s requested modifications.  In the 
absence of facts in the record necessary and material to our determination of a party’s 
entitlement to judgment as a matter of law, we cannot grant the moving party’s motion.  See 
generally J.W. Bateson Co., VABCA 3482, 93-3 BCA ¶ 26,115, at 129,801 (citing Young 
Enterprises, Inc. v. United States , 26 C1. Ct. 858, 863 (1992)).  This appeal appears to 
present opposing opinions on a variety of issues.  It is apparent from the record currently 
before us that the Board will likely be required to assess the credibility of the witnesses and 
determine the weight to be given conflicting evidence.  Until we have a more complete 
record, the Board cannot fully assess the reasonableness of the FS’ actions. 
Decision 
The respondent’s motion for summary relief is DENIED . 
PATRICIA J. SHERIDAN 
Board Judge 
I concur: 

                                                            
  
        
  
 
 
 
  
      
 
   
  
    
   
 
     
         
   
16 CBCA 646 
HOWARD A. POLLACK 
Board Judge 
VERGILIO , Board Judge, dissenting. 
I respectfully dissent from the decision of the majority.  I would grant the 
Government’s motion for summary relief, as I find no material fact to be in dispute. 
The contract required the purchaser to keep equipment on designated skid trails, with 
the trails to be a minimum of 100 feet apart. Exhibit 8 at 155-56 (exhibits are in the appeal 
file). The purchaser made two requests to deviate from the requirement, as it initially sought 
to bring equipment off the skid trails and onto lateral trails into the landscape, and thereafter 
sought permission to bring equipment off the skid trails if the ground was frozen or there was 
sufficient snow pack.  Exhibit 10 at 8-9, 13-14.  Its requests did not contain information that 
convincingly suggested that its proposed methodologies would not irreversibly damage the 
soil conditions.  For example, the request referenced experience and research without 
providing specific support.  The writer of the request also acknowledged that he is not a soils 
scientist and that he is not qualified to comment on the arguments given to substantiate the 
Government’s decision to not permit equipment off the skid trails.  Based upon the 
submissions, experience, and responses to inquiries, a Forest Service representative 
determined that the proposed modifications would not ensure a suitable methodology of tree 
removal. The representative did not approve altering the contract requirements and did not 
permit equipment off the skid trails.  The Government is permitted to enforce the specific 
terms of the contract.  The suggestions by the purchaser to alter the requirements did not 
merit a greater response by the Government. The Government acted reasonably.  Moreover, 
the purchaser presented neither request specifically to the contracting officer until its post-
completion claim.  At such a time, the proposed deviations or contract modifications were 
moot and appropriately denied. 
With a review of each item of the claim and the related facts (as determined when 
resolving a Government motion for summary relief) I provide further particulars as to why 
I would grant the Government’s motion. The purchaser’s claim of October 23, 2006, raises 
four items in support of its request for money: 
1.	 We were not allowed to log the ground base units with “mechanized 
yarding” as referenced in the prospectus and the contractual map. 
2.	 Written requests regarding this issue went unanswered in violation of 
B6.36. 

 
   
 
  
   
  
           
   
  
   
 
 
   
   
       
17 CBCA 646 
3.	 The District Soil Scientist, [name], appears to have a personal stake in 
promoting the increased use of subsoilers, as he has applied for at least 
two patents on them . . . and may be in violation of B6.01 subparagraph 
b of the contract. 
4.	 Completed work was not accepted in writing as provided in B6.36. 
Exhibit 20. 
Item one 
The contract required the purchaser to keep equipment on designated skid trails at a 
minimum of 100 feet apart.  Exhibit 8 at 155-56.  The contract could be modified by a 
bilateral written agreement between the purchaser and the contracting officer.  Exhibit 8 at 
137. 
In its October 7, 2004, “Logging Proposal” the purchaser sought a modification to the 
contract. The request to the Forest Service representative sought to move the main skid roads 
to 125 to 150 feet apart and to permit equipment off the skid corridor.  The request contained 
a comment: “As to the negative, the additional travel of the buncher, research has proven that 
this method has the least overall negative impact upon an east side site such as this one.”  No 
research or support was submitted.  Rather, the purchaser identified problems it was 
encountering, and an explanation of how its proposed method would be mutually beneficial. 
Exhibit 10 at 8-9. 
In a response, dated October 12, 2004, the Forest Service representative referenced 
the contract requirement, paragraph C6.42#, Exhibit 8 at 155, that all equipment must stay 
on designated trails at least 100 feet apart. He noted that the proposal is not consistent with 
this requirement.  Further, he explained that he contacted a soils “expert,” who submitted a 
“recommendation” upon which the representative relied.  The analysis of the soils scientist 
disputed the statements of the purchaser, and specified: “The NEPA [National Environmental 
Policy Act] process for this project took these potential impacts into account when defining 
acceptable impacts and mitigations for this project.”  Exhibit 10 at 6-7.  The determination 
by the representative indicated a reasoned basis for keeping equipment on designated trails 
and serves as a basis to deny the request for a variance. 

       
 
  
   
  
       
    
 
       
  
  
             
  
 
  
  
 
18 CBCA 646 
As indicated in a letter of reply dated October 14, 2004, the purchaser read the soils 
scientist’s analysis as a recommendation “against any use of the buncher off of the skid 
roads.”  The letter specified: “I’m not a soils scientist, therefore, I am not qualified to 
comment on the arguments given to substantiate the decision.”  Exhibit 10 at 13-14. 
Although the letter suggested that overall soil compaction would be less using the proposed 
method compared to a strict enforcement of the contract, the submission did not indicate that 
the compaction by equipment off the skid roads would be acceptable.  Nothing in the letter 
convincingly demonstrates that the Government made the incorrect decision, much less an 
unreasoned decision.  Catalog cuts attached are similarly unhelpful, as there was not an 
explanation of the actual impact that would occur on given areas with the different 
methodologies. 
In this letter of October 14, the purchaser also inquired if the Government would 
permit equipment off the designated skid trails when the ground was frozen or when there 
existed snow cover to protect the soil.  Exhibit 10 at 14.  The Government explored the use 
of equipment during freezes and with snow pack, but concluded that it could not ensure that 
such actions would sufficiently preserve the soil. Exhibit 10 at 35-37.  Even assuming (as 
required when resolving the present motion) that the conclusion was not conveyed to the 
purchaser, the purchaser placed nothing before the contracting officials that would compel 
a contrary conclusion. 
The purchaser maintains in the first item of the claim that the Government did not 
permit it to log the area using mechanized yarding as described in the prospectus and the 
contractual map.  The purchaser has identified no such instance when the Government 
required a deviation from the terms of the contract to the detriment of the purchaser. 
Viewing the claim favorably for the purchaser, the purchaser contends that its 
proposed use of equipment off skid trails was acceptable under the contract because the soil 
would not be impacted adversely.  However, as the purchaser acknowledged in its letters 
during performance, its proposed methodologies would entail a deviation because the 
equipment would leave the skid trails.  The Government acted reasonably in obtaining 
information on the issues and in declining to approve deviations, as there were no assurances 
that the proposed methodologies would leave the area in an acceptable condition.  The 
contracting officer correctly denied this claim. 
Item two 
The purchaser claims that written requests to permit a deviation went unanswered in 
violation of contract paragraph B6.36.  The Acceptance of Work clause of the contract, 
B6.36, discusses acceptance by the Government upon the purchaser’s written request and 

  
          
       
 
 
 
    
    
   
   
   
   
     
   
  
   
 
19 CBCA 646 
assurance that work has been completed. “Within 5 days of said inspection, Forest Service 
shall furnish Purchaser with written notice either of acceptance or of work remaining to be 
done.”  Exhibit 8 at 129.  The submissions referenced in this item, those discussed in item 
one, are not related to this paragraph. Acceptance of work is not at issue.  Even if one views 
the submissions as requests for modifications, the purchaser did not pursue the matter after 
the initial denial by the representative and here assumed lack of a response until after 
performance was complete.  At that time the request was moot. 
Item three 
The purchaser alleges that the views of the soil scientist who was asked for input may 
be tainted and may be in violation of paragraph B6.01(b) of the contract. 
The Government cannot be in breach for violation of B6.01 because the contract 
expressly makes that clause inapplicable to the contract.  Exhibit 8 at 9.  However, both 
paragraphs B6.01 and C6.01 (the actual, parallel clause in the contract) detail purchaser 
obligations, not obligations of the Government.  Exhibit 8 at 149. In any event, the views of 
the soils scientist are not controlling.  As explained above, the purchaser did not provide 
more than anecdotal information that either of its proposed methodologies would not 
adversely impact the soil. If viewed as a post-award protest over the terms and conditions 
of the solicitation and contract that equipment remain on the skid trails, the purchaser raises 
the matter in an untimely fashion and at the wrong forum. 
Item four 
The purchaser alleges that its work was not accepted in writing, as required by the 
contract: “Within 5 days of said inspection, Forest Service shall furnish Purchaser with 
written notice either of acceptance or of work remaining to be done.”  Exhibit 8 at 129 
(¶ B6.36). 
On July 27, 2006, the purchaser requested final inspection of the timber sale.  Exhibit 
10 at 56.  On August 1, 2006, the Forest Service replied that based upon an inspection, unit 
7 was not complete; it gave the purchaser through August 11 to complete performance.  The 
reply also specifies: “This slash work is all that remains to be accomplished on the contract. 
All other work has been inspected and accepted as complete.”  Exhibit 10 at 57.  A Timber 
Sale Inspection Report, with a date of inspection of August 11, notes that “final inspection” 
has occurred with Government acceptance.  Referencing paragraphs B.6.36 and B9.6, the 
report states: “All units have been compl[e]ted and all contract requirements are in 
compliance.  All work has been compl[e]ted & accepted, [sale administrator] recommends 
that this sale be closed.”  The document bears the signatures of a sale administrator and a 

   
     
  
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20 CBCA 646 
Forest Service representative with dates of August 11, 2006, and the signature of a purchaser 
representative with the date of August 16, 2006.  Exhibit 11 at 110. 
The Government complied with the contract.  Within five days of the request for a 
final inspection, the Government provided a written notice of acceptance and work remaining 
to be done. Thereafter, the Government provided written notice of acceptance on August 11, 
2006, which a purchaser representative acknowledged by signature and a date of August 16, 
2006.  The purchaser fails to place a material fact in dispute to support any violation and does 
not suggest that any damages flow from this alleged violation.  This aspect of the claim can 
be denied. 
JOSEPH A. VERGILIO 
Board Judge