good morning your honor to may please support this case involves a finding by the trial court that a party can breach a contract as being awarded a misapplication of the implied duty of good faith and fair dealing a decision to award expectancy damages suffered by a party that was not the government contracting partner and finally a decision to provide got over with a windfall by failing to deduct all of the profit actually earned on the timber harvested in the post essentially period on all order indicated that the parties the forest service would conduct the required survey so there was a a court order that required the forest service to continue to continue conducting those surveys and the court came jurisdictions should the environmental justify continuing suspension because of all those because if that other litigation decided that there were concerns relating to the environmental work then that could apply in that instance keeping an eye on them we are not challenging any of the factual finding made by the trial court however the parties in their agreement they anticipated that litigation is a fact of life and they have and litigation often affects him or south contracts  the parties bargained for on the far services we have the right to spend and on the purchasers the half the right to recover increased out of pocket expenses and any and to receive a contract term adjustments in this case specifically target a benefit guaranteed by the contract the civically designed to reappropriate a benefit guaranteed by the contract and as this court found a decision pine there is no right to a harvesting timber at a exactly your honor and relating to the duration of the suspension this court has made plain the trial court fumi made plain the standard that it used for its decision in all contracts each party owes the common law a covenant of good benefit designs guaranteed by the contract and because it's got timber should not have been expecting to harvest the timber at any particular time we respectfully request that this court enforce that provision and reverse  turning to to the damages aspect of the decision in an unprecedented aspect of that decision that you held court awarded to scott expectancy damages suffered by rose for a farce products a wholly separate corporation in direct contravention of this precedent in poly americans struck that a corporation must accept the burdens of its corporate structure along with the benefit and despite recognizing the court's precedent the trial court relied upon a unique position of the severn doctrine to no way requires the processing of the kimber the provision of the contract that the court trial court relied upon to determine that there was a packet processing requirement is nothing more than a prohibition against export s that the party who harvest the timber will not export unprocessed kember so that the contract extract that party from that promise from the party and then simply ensures that if that party sells  timber to another party famous extract that being promised at that point that party the purchasers duties relating to the export provision are just charged and certainly it is not required to to  harvest and then process the timber as part of contract performance profited completely and again obtain the benefit of its bargain because it harvested all of the trees contemplated by the contract the government is entitled to credit for every dollar of profit that got actually aren't actually earned this case use you seem to have some difficulty in reconciling the earlier scott timber case and in the precision of the things we do here are seems to me that there are pretty clear line between the two of them that the scott and scott they were following the traditional line with that one judges whether or not there had been a breach of those implied duties by the standard of reasonable less precision pine took a different tack and taking from required targeting and that we appropriation of a benefit and i think as we say in our papers it did not follow through with that and it is inconsistent with the whole concept in when start laying out for these to the extent that there wasn't an injunction in that the claim is that the injunction should have been lifted earlier because the forest service should have been more diligent in doing the surveys that's just like  i think that your honor it is it is just like both of them but going to your honor's point there was no injunction after december one thousand nine hundred ninety at that point the government and the environmentalists got get their made an agreement that they would halt performance of this sale in a few others and also that agreed that the results of the surveys as they were being to occur would be run past the environmental laws for they were frugal and and that operations on the sale would not be go forward until the environmentalists approved it but you can read in that agreement is being an effective but whether or not to me that where why why where there's an injunction and agreement between the parties as to what's required of them why should that be treated as effectively a continuation of on how long injunctions of stay in place and when you enter do it by agreement thereafter you're changing the whole parameters it's not judicial decision it is whatever the bargaining power of the two parties are quality of the surveys that were being done in veto any of the services that they didn't like and continue the suspension of the contract while all this takes place if you will that under an injunction would have been the purview of the district court not the environmental plaintiffs this is often why have you stuck with precision hung there was certainly this a court order provision in the table so to speak during negotiations or even in the argument of the o n c action litigation targeting is is being used in these cases in the sense of taking something  think that they were targeting the veil and two they knew that an injunction was looming large waiting to get your your client is a timber company environment in the in the northwest of all in a geisha and that's going on yes sure what they weren't aware of is that there was a secret list of sailors they believed th from everything they were hearing from the forest service that these sailors were not in dire jeopardy of an immediate injunction under o n c our action to do that was a warning about litigation pending yes and that and they were told at when they received the about eight months had in fact passed and that now the award would be made and that as the court found that you could that the plaintiffs could proceed in the normal course of things no but we're not there certainly wasn't a representation of the word to proceed but where was the representation that they could proceed under the contract without a risk of a suspension there was a recognition there has to be a recognition that there is this general as as with any government contract that the government can at any point suspend an operation they can terminate that exists with regard to every federal contract and it certainly applies here what was different here is that the government knew but did not tell scott that your sale of these three sales are on a secret list the environmentalist want to attack that's different that's not true of every contract they also knew that their defense was viewed by the assistant attorney general fact that you knew about the litigation the possibility of a suspension sufficient and what you want notice to inquire further they did they did you run in the record shows that continuously through the process between the date of bidding and the datable word that scott diligently asked the forest service where do things stand on getting these contracts going the forest service never told them that there was a way to be different from asking about that the litigation that was supposedly holding up the awards had been resolved officially so that scott could proceed that's what and that's what the judge found blowing on him but he makes that finding under waited that long to raise this issue that they may have in fact waited i'm not aware of any case that says that if you waive reliance on a particular authority by failing to raise in a particular time we constantly that judge lefkow said that he did not believe that decision i had any implications at all so i don't consider i'm sorry it was considered in that sense it was considered yes your hon your honor the you indicated that after august of two thousand and one why did the injunction continue and i would say that that was improper as at that point if not well before that who we were talking with respect to the two parties with respect to the pick up parcels there was a continuing injunction i don't believe there was a continuing injunction on any of them your honor but it to the extent that there was no injunction there also  required determinations made under c six zero one so that for the government to have continued the injunction at that point was improper under those clauses i'm not sure i understand what you're saying level the same in some other sale they may suspend there was no such appropriate determination of an appropriate regional fork as such there would have been no way that they could six one properly at that point you on i want to make one point about no windfall you have here is really no different than if you take the situation of a trial or he's about ready to go to trial and for some reason the trumpets postponed and it gets postponed for here  he now has a hole in his pipeline you i was planning to do that trial next week a year comes later if he does a trial and at that point if he didn't have his vision postponed trial sort of done some other decision was in line inconsistent with the scott decision and for those reasons we certainly believe that the two cases are consistent and additionally the case that we have here it's did they extend to hear that there's a finding that they continued the suspension based on the mere infancy of litigation as opposed to the entry of an injunction and why isn't that an express survey requirements and things like that we would respectfully request that are we manned at that point would be necessary to make additional factual determination to find out the court failed to make the trial court failed to make those specific determination to be extended duration of the suspension simply that the foreign service could reasonably have lifted the suspension earlier  there was no determination o that is not the subsection of provision p p six point zero one that we are relying on we are relying on the subsection a which does not require any such determination and additionally just to go to the agreement that the foreign service entered