In the United States Court of Federal Claims

No. 15-152 C

(E-Filed: January 29, 2016)

BEARD ET AL.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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Forest Service stewardship, breach of 

contract, contract interpretation, lost 

profits, reasonably foreseeable 

damages

David D. L. Horton, Palm Springs, CA, attorney for plaintiffs. 

Steven J. Gillingham and Vincent D. Phillips, United States Department of Justice, 

Commercial Litigation Branch, Civil Division, Washington, DC, for defendant.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge 

Plaintiffs Dennis and Kimberly Beard (“Plaintiffs” or “the Beards”) are the former 

owners of Dinkey Creek Inn, a seasonal resort located in the Sierra National Forest and 

subject to administration by the United States Forest Service (“Forest Service”). 

Plaintiffs operated this resort pursuant to a term special use permit (“permit” or “Permit 

Agreement”), which granted the Beards long-term use of the land in exchange for an 

annual fee. Plaintiffs allege that the Forest Service violated the terms of the permit by 

allowing a logging contractor to harvest timber in a manner that “unduly interfered” with 

the “rights and privileges” conferred on plaintiffs by the permit. Plaintiffs seek a wide 

array of damages, including lost profits and compensation for aesthetic harm and loss of 

timber.

On June 25, 2015, defendant moved for summary judgment, pursuant to Rule 

56(a) of the Rules of the Court of Federal Claims (“RCFC”). Defendant argues that its 

conduct did not breach the terms of the permit and was consistent with its statutory duty 
2

to reduce the risk of forest fire by conducting thinning operations and removing 

undergrowth. Defendant also argues that even in the event of a breach, it is entitled to 

summary judgment because the damages claimed by plaintiffs are speculative. For the 

following reasons, the court grants defendant’s motion for summary judgment.

I. BACKGROUND. 

A. The Forest Service’s Mission to Manage National Forests. 

The Multiple Use-Sustained Yield Act of 1960, Pub. L. 86-517, authorizes the 

Secretary of Agriculture to establish and administer national forests throughout the 

United States “for outdoor recreation, range, timber, watershed, and wildlife and fish 

purposes.” 16 U.S.C. § 528. The United States Forest Service is charged with 

administering and managing these forests. See, e.g., 16 U.S.C. §§ 551, 551a. 

One of the missions of the Forest Service is “to reduce wildfire risk to 

communities, municipal water supplies, and other at-risk Federal land through a 

collaborative process of planning, prioritizing, and implementing hazardous fuel 

reduction projects.” 16 U.S.C. § 6501(1). Consistent with this stewardship role, and with 

its role in managing the supply of timber as set forth in § 528, the Forest Service has the 

authority to sell timber by contracting with private timber harvesting companies. 16 

U.S.C. § 472a.

Also, pursuant to the Term Permit Act of 1915, the Forest Service has the 

authority to issue permits for the construction and operation of hotels and resorts in 

National Forests, for a term not exceeding thirty years. 16 U.S.C. § 497. Forest Service 

regulations define a permit as “a special use authorization which provides permission, 

without conveying an interest in land, to occupy and use National Forest System land or 

facilities for specified purposes, and which is both revocable and terminable.” 36 C.F.R. 

§ 251.51 (2013). 

B. The Permit Agreement Between the Beards and the Forest Service 

In 1981,1the Forest Service granted the Beards a Term Special Use Permit 

covering a 3.68 acre site subject to administration by the Forest Service. The site is 

located near Shaver Lake, California, in the Sierra Nevada Forest, and is home to the 

seasonal resort known as Dinkey Creek Inn. Term Special Use Permit, Def.’s App. at 1, 

June 25, 2015, ECF No. 11-1, (“Permit”); Sec. Am. Compl. ¶ 15, June 7, 2015, ECF No. 

10 (“Compl.”). 

 

1 The original permit was granted in 1981. The permit proffered by the parties is an 

updated version of the original permit, signed in 1991. 
3

The Forest Service granted this permit “for the purpose of [c]onstructing, 

maintaining, and operating” the following: “A Store for sale of general merchandise, off 

sale liquors and campfire-wood-bundles, with lunch counter, Gasoline, Butane and Oil 

Facility, Mailbox, Parking Area, ten (10) Rental Cabins[], Managers Residence[], Storage 

Building, Public Restrooms, Public Shower and Laundry, Water Storage Tank, enclosed 

system Dump Station, Restaurant with beer and wine service.” Permit (prefatory 

remarks), Def.’s App. at 1; Compl. ¶ 15; see also http://dinkeycreekinn.com. 

In exchange, plaintiffs agreed to pay an annual fee, which would be adjusted “on a 

basis commensurate with the value of use authorized by th[e] permit.” Permit ¶ 2, Def.’s 

App. at 1. To this end, the Permit Agreement required plaintiffs to submit financial 

statements detailing the costs and revenues from their use of the land. Permit ¶ 2A, 

Def.’s App. at 2-7. 

A number of the permit’s clauses impose requirements on plaintiffs. For instance, 

clause 5 states that “[t]he permittee shall maintain the improvements and premises to 

standards of repair . . . and safety acceptable to the forest officer in charge.” Clause 8 

requires the permittee to “take all reasonable precautions to prevent and suppress forest 

fires.” Clause 9, similarly, requires the permittee to “exercise diligence in protecting from 

damage the land and property of the United States” and to repay the government for any 

damage resulting from negligence on the part of permittee. Clause 21 prohibits the 

permittee from engaging in invidious discrimination against employees or customers. 

Clause 23 imposes on “[t]he holder” of the permit “responsibility [for] inspecting the 

site” to prevent and remove “hazardous conditions.” Clause 25 requires “the holder” to 

“protect the scenic esthetic values of the area under the permit,” and Clause 26 requires 

“the holder” to “take reasonable measures to prevent and discourage vandalism or 

disorderly conduct.” 

Other clauses impose obligations on both plaintiffs and the government. For 

instance, clause 42, which is entitled “Timber Cutting,” permits the Forest Service to 

“sell or otherwise dispose of standing merchantable timber to third parties” provided that 

this is done “without undue interference with the operation of the holder.” Clause 58 

requires the holder “to permit the free and unrestricted access to and upon the premises at 

all times.” However, such access must be for “lawful and proper purposes not 

inconsistent with the intent of the permit or with the reasonable exercise and enjoyment 

by the holder of the privileges thereof.” Finally, pursuant to clause 66, “the Forest 

Service reserves the right to use or permit others to use any part of the permitted area for 

any purpose” as long as “such use does not interfere with the rights and privileges hereby 

authorized.” The balance and application of these rights, as found in clauses 42, 58, and 

66, are subject to dispute in this case. 
4

C. Development Undertaken in Accordance with the Terms of the Permit 

Clause 37 requires the holder and the Forest Service to jointly prepare “a schedule 

for the progressive development of the permitted site and installation of facilities . . . by 

December 1, 1992, [setting] forth an itemized priority list of planned improvements and 

due date for completion. . . . . All required plans and specifications for site, 

improvements, and structures included in the development schedule shall be submitted to 

the Forest Service at least [45] days before the construction date stipulated in the 

development schedule.” In accordance with clause 37, plaintiffs submitted a site 

development plan in 1992. See Def.’s App. at 26 – 27. 

In 1993, the Forest Service approved a site development plan, which among other 

things permitted the Beards to construct and operate a restaurant and up to ten chalet 

cabins. Id. As plaintiffs points out, “[p]erformance of the duties under this Agreement 

required the Beards to make a substantial investment and take a substantial risk.” Compl. 

¶ 17. In fact, between 1993 and 2011, the Beards completed the construction of four 

cabins. See Beard Decl. at ¶¶ 5 – 6, 10, ECF No. 12.2

On May 3, 2001, however, plaintiffs sent a letter to Mr. Ray Porter, the District 

Ranger, advising that they had abandoned their plans to build a restaurant: 

We would also like to confirm our discussions about any future 

development under our current permit. As we discussed, the restaurant that 

is currently approved for construction will probably never happen. Sales in 

our current cafe are down and there is no apparent need for a full service, 

full size restaurant in the area.

Def.’s App. at 220. In that same letter, the Beards also addressed the matter of the six 

chalets that had been approved but not yet constructed: 

As for the Chalets, we explained that although they are full to capacity 

during the months of June, July & August, we currently do not have enough 

of a waiting list during the summer months to justify building additional 

cabins at this time. Our business during the winter months consists 

primarily of weekends, and the cabins are currently renting at a lower fee 

than those in Shaver Lake, probably due to our location. There may be a 

need in the future given the growth in California's population, but not 

currently.” 

Id. 

 

2 The Beard Declaration is attached to plaintiffs’ opposition brief. See Pl.’s Opp’n at 23-

30, July 27, 2015, ECF No. 12. 
5

The parties dispute whether plaintiffs’ plans to build the remaining chalets had 

been completely “abandoned,” as the government argues, or merely delayed, as plaintiffs 

argue. See Def.’s Mot., ECF No. 11, at 12-13; c.f. Beard Decl. at ¶¶ 5-6, 12, 14, ECF 

No. 12. Mr. Porter, the District Ranger who interacted directly with plaintiffs on the 

matter, avers the following: 

The Beards did not raise the issue of building new cabins again with me or 

my staff after sending this letter in 2001. I did not receive any further 

requests from the Beards to build new cabins at the site. If they had made a 

request to build new cabins after 2001, the Forest Service would have had 

to reevaluate the request because changes were implemented in the Forest 

plans in 2001 and 2004 that might not allow [the] Beards to construct new 

cabins on the land that they had proposed in the earlier 1990s. 

Decl. of Ray Porter, Def.’s App at 216, ECF No. 11-3. Characterizing the Beards’ 

decision not to build the additional cabins as “a business decision,” Mr. Porter explained 

that instead of building the additional cabins, the Beards decided to “focus[] on other 

streams of revenue like snowmobile trails and building an RV park.” Id. 

In response, plaintiffs argue that they did not express an intention to abandon 

construction of the remaining cabins in their 2001 letter; instead they had noted that 

“there may be a need in the future given the growth in California's population.” Beard 

Decl. at ¶ 6; Pl.’s Opp’n at 13. Plaintiffs assert that “as a result of the growth in 

California’s population, [they] began working on the infrastructure needed to support the 

final six (6) chalets authorized under the current permit—the permit issued prior to 

2002.” Pl.’s Opp’n at 13. As Mr. Beard points out in his Declaration, “[Ms.] Nancy 

Woolsey (retired FS officer in charge of my permit) understood [our intent] to build at 

some time in the future as she told me that since we already had installed the water, 

septic, and electric services in preparation of the additional chalets, [we] should look into 

the portable cabins like they were using at one of the resorts in Huntington Lake.” Beard 

Decl. at ¶ 10.

D. The 2011 Events Underlying Plaintiffs’ Claims

The events underlying plaintiffs’ complaint transpired in October and November 

2011. Plaintiffs argue that the removal of trees from a portion of the permitted area 

impeded their ability to construct three of the cabins that had been approved in 1993, 

pursuant to the site development plan. 

On January 24, 2011, the Forest Service issued a solicitation for “Dinkey North 

Stewardship.” See Dinkey North Stewardship Solicitation, Def.’s App. at 57 – 108. 

Project objectives included removing sawtimber and biomass materials in an effort to 

“[r]educe fire severity and restore a fire-resilient forest structure,” “[i]mprove forest 
6

health,” and “[e]nhance habitat conditions for sensitive species of plants and wildlife in 

the project area.” Id. at 62; see also Def.’s Mot. for Summ. J. at 5, June 25, 2015, ECF 

No. 11. 

This solicitation included many requirements, including the following: “So far as 

practical, Contractor shall protect roads and other improvements,” including “buildings” 

and “below-ground water pipes and storage tanks.” Id. at 87. The Solicitation also 

required the Contractor to “make timely restoration of any such improvements damaged 

by Contractor’s Operations.” Id. 

In October 2011, the Forest Service entered into a contract with Sierra Forest 

Products to remove timber from land that included the area covered by plaintiffs’ permit. 

Compl. ¶ 28; see also Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App. at 114. 

Plaintiffs allege that on October 12, 2011, Mr. Kirby Mullen of Sierra Forest 

Products informed them that at the earliest, “the logging crew would be removing trees 

near the Dinkey Creek Inn area in approximately one (1) week.” Pl.’s Mem. for Forest 

Service Claims Dep’t, Def.’s App. at 114. According to plaintiffs, Mr. Mullen assured 

them that they would be contacted before beginning the logging operation. Id. But when 

plaintiffs arrived at Dinkey Creek Inn on October 16, 2011, they found that 26,074 square 

feet (a little over half an acre) of the land covered by the permit had already been “clear 

cut” to create a log landing area.3

 Id at 116.; see also Beard Decl. at ¶ 21. Plaintiffs 

indicate that “approximately 120 merchant[able] trees were taken down” from the land 

cleared for the log landing area. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App. 

at 116. Plaintiffs add that they had not been provided with any warning. Id. at 114-15; 

see also Beard Decl. at ¶ 13. 

Upon further inquiry, plaintiffs learned that Mr. John Martin, a Forest Service 

officer, approved the location of the landing area, without contacting plaintiffs, two days 

after Mr. Mullen had advised plaintiffs of the impending tree removal. Pl.’s Mem. for FS 

Claims Dep’t, Def.’s App. at 115. Mr. Martin later informed plaintiffs that he did not 

know that the landing area had been slated for the development of three chalets, under the 

terms of the permit. Id; Compl. ¶¶ 30 – 31. 

Three days after the approval of the landing area, plaintiffs visited the site 

with Mr. Martin and Mr. Keith Ballard, the Chief Forrester. According to plaintiffs, Mr. 

 

3 Defendant explains that “[t]ree removal involves more than just felling standing trees; 

after the standing timber is felled, it needs to be cut into smaller logs for transport to 

mills, and this task is completed on site in an area known as a log landing, which is where 

the logging company cut the trees and shredded the other debris.” Def.’s Mot. for Summ. 

J. at 5-6. 
7

Ballard “was astounded by the lack of communication [by] the forest service personnel 

and logging crew with the permittees and the destruction to their permitted land.” Pl.’s 

Mem. for FS Claims Dep’t, Def.’s App. at 115. According to Mr. Beard, when Mr. 

Ballard viewed the damage first hand, “[h]e appeared to be visibly very upset and stated 

that ‘[Mr. Martin] should have known better.’” Beard Decl. at ¶ 22. 

On October 29, 2011, plaintiffs left a voice message for Mr. Martin, requesting an 

estimate as to when the logging crew would return to their permitted area to 

finish the tree removal. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App. at 

115. Less than two weeks later, Mr. Mullen informed plaintiffs that his company would 

be logging in the Dinkey Creek area later that day. Id. 

That afternoon, plaintiffs met Mr. Joel Pelayo, of Joel Pelayo Logging, at Dinkey 

Creek. Mr. Pelayo had subcontracted with Sierra Forest Products to assist with the 

logging. Id. Plaintiffs showed the location of the septic tank and the gas and water 

lines to Mr. Pelayo, who assured them that he would avoid those areas. Id. But when 

plaintiffs returned to Dinkey Creek on November 20, 2011, they found a large mountain 

of slash piled on the area that had been flagged as the septic tank. Id. at 116. 

On November 23, 2011, plaintiffs received a phone call from Mr. Mullen, 

informing them that the lid of the septic tank had collapsed, and that the loader had fallen 

into the septic tank. He told plaintiffs that on November 28, 2011, a repair person would 

be dispatched to fix the septic tank lid. Id. The septic tank was repaired timely, but the 

repair was performed without a county permit, was not inspected and was not approved, 

nor were the leach lines inspected for damage. Id. 

E. Negotiations Between the Beards and the Forest Service 

Plaintiffs maintain that the decision to locate the landing within the permitted area 

was a mistake. Plaintiffs assert, and defendant does not dispute, that the Forest Service 

failed to inform the logging company about the location of their permitted area. As 

support for their claims, plaintiffs rely on the admission by Mr. Martin, a Forest Service 

officer, “that he would never have done it had he known that [the cleared area] was part 

of [the Beards’] permit (but he also never checked).” Beard Decl. at ¶ 23. Because the 

site for the landing was not chosen by necessity, plaintiffs contend that it could have been 

located elsewhere without compromising the Forest Service’s stewardship operation.

It does appear that the parties discussed options for addressing the harm caused to 

plaintiffs by the creation of the log landing. According to plaintiffs, upon viewing the 

landing site in person, Mr. Ballard, the Forest Supervisor, informed them that he would 

notify Mr. Porter, the District Ranger, about the miscommunication. Pl.’s Mem. for 

Forest Service Claims Dep’t, Def.’s App. at 115. Subsequently, plaintiffs met with Mr. 
8

Porter.4 Mr. Porter told plaintiffs that Mr. Ballard had recommended compensating 

plaintiffs “for the loss.” Beard Decl. at ¶ 25. According to plaintiffs, Mr. Porter also

suggested expanding the boundaries of the land covered by the permit “to make 

up/substitute for the destroyed section of [plaintiffs’] permit.” Id. Plaintiffs did submit an 

application proposing to expand the permitted area, consistent with Mr. Porter’s 

suggestion. Id. at ¶ 26. That proposal eventually was dismissed. Id. at ¶ 27.

Although the Forest Service rejected the proposal to expand the bounds of the 

permitted area, it does seem to have made other efforts to address the Beards’ grievances. 

On January 25, 2012, the Beards requested that the Forest Service restore vegetation to 

the area that had been cleared to make the log landing. See Letter from Ray Porter to the 

Beards, April 25, 2012, attached in Def.’s App. at 178, ECF No. 11-3. In a meeting held 

on March 12, 2012, the Forest Service agreed to replant the area with approximately 40 

trees, 10 of which would be from eight to twelve feet tall and 30 of which would grow 

three to four feet tall. Id. The Forest Service also agreed to place rock barriers along the 

edge of the road where the landing was located to prevent any access to vehicles. Id. 

The tree planting was completed on May 29, 2012. Def.’s Mot. at 7 (citing Def.’s 

App. at 211). But only one of the larger trees that were planted survived. Mr. Beard 

explains: “The property remains barren and uninviting. Even if all nine [larger trees] had 

survived, it would take no less than 30 years for them to be tall enough to provide any 

shade or aesthetic value; there were several one [to] two [foot] tall trees planted, which 

will take even longer [to grow].” Beard Decl. at ¶ 28.

Characterizing the reforestation efforts of the Forest Service as evidence of “good 

faith” rather than as mitigation efforts, defendant notes that replanting “was not required 

under the [p]ermit.” Def.’s Reply at 7, ECF No. 14. As to the death of many of the 

replanted trees, the government observes: “That some trees may not have survived 

supports neither a breach nor bad faith finding, especially in an area of the country 

experiencing persistent, devastating drought.” Id. 

F. Procedural History 

On July 27, 2012, the Beards filed an administrative claim with the United States 

Department of Agriculture. See Beards Adm. Claim, Def.’s App. at 111-25. The Beards 

argued that the decision to create a landing on the permitted area was negligent and a 

breach of the permit. The Beards sought, inter alia, lost rent, reasoning that the clear 

cutting prevented them from constructing three of the cabins that had been “slated for 

future development.” Id. at 119-25. 

 

4 The precise date of this meeting is unclear.
9

On September 2, 2014, the Forest Service denied the Beards’ administrative claim. 

In rejecting the claim, the agency noted that the Beards had a pending action in the 

District Court for the Eastern District of California, which the Beards had filed on July 2, 

2014. Id. at 183-84. 

In the district court action, the Beards asserted negligence and breach of contract 

claims against the Forest Service and the logging company. The Beards voluntarily 

dismissed their claims against the United States on December 3, 2014, and eventually 

settled the tort claims with the logging company for $15,000. The settlement agreement 

was executed on January 1, 2015. Id. at 204. 

On February 18, 2015, plaintiffs filed the present action. The Beards alleged that 

the harvesting action breached the terms of the permit. The Beards sought lost profits 

and an array of other damages, including damages for aesthetic harm, loss of resort 

revenue due to aesthetic harm, loss of merchantable timber, loss of esthetic value, and 

pre-judgment interest. Plaintiffs added a number of other claims based on tort and 

California state law. See Original Complaint, Feb. 18, 2015, ECF No. 1. 

On June 7, 2015, plaintiffs filed a second amended complaint.5 In addition to the 

breach of contract claims alleged in the original complaint, plaintiffs argued that the 

agency’s actions effected a taking of private property without just compensation, in 

violation of the Fifth Amendment of the United States Constitution. Sec. Am. Compl. ¶¶ 

53-67, 71-74, ECF No. 10. 

On June 25, 2015, defendants filed a motion for summary judgment, which is now 

ripe for a ruling. Mot. for Summ. J., ECF No. 11. 

II. APPLICABLE LEGAL STANDARDS 

The Tucker Act confers on the Court of Federal Claims jurisdiction over “any 

claim against the United States founded either upon the Constitution . . . or upon any 

express or implied contract with the United States . . . in cases not sounding in tort.” 28 

U.S.C. § 1491(a)(1). As explained above, plaintiffs press two claims against the Forest 

Service: one alleges a breach of contract with the United States, and the other alleges a 

taking of private property in violation of the Fifth Amendment of the U.S. Constitution. 

Properly understood,6 defendant does not dispute the court’s jurisdiction over these two 

 

5 Plaintiffs filed a first amended complaint on June 6, 2015, and a second amended 

complaint on June 7, 2015. The court cannot distinguish any difference between the two 

amended complaints.

6 Defendant argues that the court lacks jurisdiction to hear plaintiffs’ implied breach of 

contract claim on the ground that the government is not actually bound by the implied 
10 

claims, and the court finds that it does, in fact, have jurisdiction to hear them under the 

Tucker Act.

Rather, defendant, moves for summary judgment. Under RCFC 56(a), the court 

“shall grant summary judgment if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” “The 

purpose of summary judgment is not to deprive a litigant of a trial, but to avoid an 

unnecessary trial when only one outcome can ensue.” Vivid Techs., Inc. v. Am. Sci. & 

Eng’g, Inc., 200 F.3d 805, 806 (Fed. Cir. 1999). Accordingly, in considering a motion 

for summary judgment, the court must draw all reasonable inferences in favor of the 

nonmoving party without weighing the evidence or making credibility determinations. 

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Mere conclusory allegations are not sufficient to withstand summary judgment, for 

a dispute is “genuine” only if there are factual issues that “[might] reasonably be resolved 

in favor of either party.” Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 

(Fed. Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). 

Moreover, a factual dispute is “material” only if it “affect[s] the outcome of the suit” in 

light of the substantive law governing the suit. Marriott, 586 F.3d at 968 (quoting 

Anderson, 477 U.S. at 250). The party opposing the motion has the burden of proving by 

sufficient evidence that a genuine issue of material fact actually exists. Celotex Corp. v. 

Catrett, 477 U.S. 317, 324–25 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 

(1970). 

At the summary judgment stage, plaintiffs, as the non-moving party, are not 

required to succeed on the merits. Nonetheless, “on an issue for which the moving party 

does not have the burden of proof,” the moving party can prevail “by providing evidence 

that negates an essential element of the opposing party’s case” or by demonstrating “that 

the evidence [presented by plaintiffs] establishes no material issue of fact and that 

[plaintiffs] will not be able to prove an essential element of [their] case.” Vivid Techs., 

Inc., 200 F.3d at 807. 

 

duties identified by plaintiff. But, as the court explains in the discussion that follows, a 

failure of proof on the part of a plaintiff goes to the merits of an argument, not the court’s 

jurisdiction. See, e.g., Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307 (Fed. 

Cir. 2008). Otherwise, defendant does not dispute the court’s jurisdiction to hear 

plaintiffs’ breach of contract claims.
11 

III. DISCUSSION 

In the Amended Complaint, plaintiffs offer, in scattershot form, arguments based 

on an array of theories, including tort, California state law, implied breach of contract, 

express breach of contract, as well as a taking claim under the Fifth Amendment of the 

U.S. Constitution. 

As defendant points out in its motion for summary judgment, this court has no 

jurisdiction over claims sounding in tort or based on a violation of state law. Mot. 

Summ. J. at 19-20; see also 28 U.S.C. § 1491(a)(1) (expressly precluding jurisdiction 

over claims sounding in tort); Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988) 

(holding that federal contracting is a “uniquely federal interest” and is governed 

exclusively by federal law). Additionally, as defendant observes, a breach of rights 

voluntarily created under a contract with the United States cannot give rise to a taking 

claim. See Mot. for Summ. J. at 20-21 (citing Hughes Commc’n Galaxy, Inc. v. United 

States, 271 F.3d 1060, 1070 (Fed. Cir. 2001)). As defendant further observes, plaintiffs 

have contractual rights to use the permitted area, but have no property interest in the land 

itself, which as part of a national forest, is the property of the United States. Def.’s Mot. 

for Summ. J. at 20-21. 

It appears that plaintiffs have belatedly recognized the futility of these claims, as 

they elected not to discuss or defend them in their opposition to defendant’s motion for 

summary judgment. Accordingly, the court finds that plaintiffs have abandoned these 

claims and no further consideration of them is necessary. 

The court now turns to consider plaintiffs’ remaining claim: namely, that 

defendant’s conduct breached the terms of the permit by violating “implied reciprocal 

duties” as well as duties expressly set forth in the contract. 

A. Standards for Evaluating Breach of Contract Claims against the 

Government 

“To prevail on a breach-of-contract claim, the plaintiff bears the burden of 

proving: (1) the existence of a valid contract between the parties; (2) a duty arising from 

the contract; (3) a breach in duty; and (4) damages caused by the breach.” Liberty 

Ammunition, Inc. v. United States, 119 Fed. Cl. 368, 388 (2014) (citing San Carlos Irr. & 

Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)). “‘Whether a 

contract creates a duty is a legal question of contract interpretation,’ and therefore [is] 

amenable to summary judgment.” Grand Acadian, Inc. v. United States, 87 Fed. Cl. 193, 

198 (2009) (quoting San Carlos, 877 F.2d at 959). 
12 

“The remedy for breach of contract is [to award] ‘damages sufficient to place the 

injured party in as good a position as it would have been had the breaching party fully 

performed.’” Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. 

Cir. 2005) (citing San Carlos Irr. & Drainage Dist. v. United States, 111 F.3d 1557, 1562 

(Fed. Cir. 1997)). The injured party, however, may only recover if: “(1) the damages 

were reasonably foreseeable; (2) there is a causal connection between damages and the 

breach; and (3) the amount of recovery is not speculative.” Id. 

In determining whether a party is in breach of contract, the court applies the 

following rules of contract interpretation. “Contract interpretation begins with the 

language of the written agreement.” Bell/Heery v. United States, 739 F.3d 1324, 1331 

(Fed. Cir. 2014)) (quotations omitted). If the contract language is unambiguous, then it 

must be given its plain and ordinary meaning, such as “would be derived from the 

contract by a reasonably intelligent person acquainted with the contemporaneous 

circumstances.” TEG-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. 

Cir. 2006) (quoting Metric Constrs., Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999)). 

In construing the meaning of a contractual provision, the court does not interpret the 

disputed term or phrase in isolation, but “construes contract terms in the context of the 

entire contract, avoiding any meaning that renders some part of the contract inoperative.” 

Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1288 (Fed. Cir. 2008). 

B. The Court Rejects Plaintiffs’ Argument That the Forrest Service Breached 

“Implied Reciprocal Duties”

Plaintiffs assert that ¶ 9 of the permit creates an “implied reciprocal duty” on the 

part of the Forest Service to exercise diligence in protecting the property, and that ¶ 25, 

likewise, creates an “implied reciprocal duty” to protect the aesthetic and scenic value of 

the property. Compl. ¶¶ 40-45. Plaintiffs allege that the Forest Service’s decision to 

allow “clear cutting” of a portion of the permitted area to create a log landing area 

breaches both of these duties. Id. at 45 – 48. 

Clause 9 of the permit states: 

The permittee shall exercise diligence in protecting from damage the land 

and property of the United States covered by and used in connection with 

this permit, and shall pay the United States for any damage resulting from 

negligence or from the violation of the terms of this permit or of any law or 

regulation applicable to the National Forests by the permittee, or by any 

agents or employees of the permittee acting within the scope of their 

agency or employment. 

Permit ¶ 9. Clause 25, entitled “esthetics,” states: 
13 

The holder shall protect the scenic esthetic values of the area under this 

permit, and the adjacent land, as far as possible with the authorized use, 

during construction, operation, and maintenance of the improvements. 

Permit ¶ 25. 

As defendant points out, both clauses impose explicit obligations on “the 

holder” (that is, plaintiffs); but neither clause mentions the Forest Service. 

Defendant argues that “[t]his court ‘may only find an implied-in-fact contract 

when there is no express contract’” covering the same topic. Defendant contends 

that an express contract exists on the very subject matter, and that this deprives the 

court of “jurisdiction over the Beards’ implied claims.” Def.’s Mot. Summ. J. at 

10 – 11 (citation omitted). 

Cautioned by the Federal Circuit about confusing “the distinction between 

subject matter jurisdiction and the essential elements of a claim for relief,” the 

court finds that defendant erred in framing this as a jurisdictional issue. Engage 

Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (citing Arbaugh v. 

Y & H Corp., 546 U.S. 500, 503, 511 (2006). For purposes of establishing 

jurisdiction, it is sufficient that plaintiff make a non-frivolous allegation. Jan’s 

Helicopter, 525 F.3d at 1309 (distinguishing between jurisdiction and the merits in 

the context of a takings claim). “The merits of the claim [are] not pertinent to the 

jurisdictional inquiry.” Jan’s Helicopter, 525 F.3d at 1307 (discussing United 

States v. White Mountain Apache Tribe, 537 U.S. 465 (2003)). To be clear, 

jurisdiction is the court’s power to hear a case; jurisdiction “is not defeated . . . by 

the possibility that the averments might fail to state a cause of action on which 

petitioners could actually recover.” Do–Well Mach. Shop, Inc. v. United States, 

870 F.2d 637, 639 (Fed. Cir. 1989) (quoting Bell v. Hood, 327 U.S. 678, 682 

(1989)).

It is uncontroverted that a valid contract exists between plaintiffs and the 

Forest Service. Thus, the issue before the court is not whether the court has 

jurisdiction over these claims but whether the contract actually includes the 

implied duties identified by plaintiffs. This is not a jurisdictional question but a 

matter of contract interpretation, that is, a legal question rather than a factual one. 

The cases cited by defendant in support of the proposition that an implied contract 

cannot exist when an express contract already covers the same subject matter do 

not apply here. But similar principles of contract interpretation do support 

defendant’s position.

As plaintiffs concede, the actual language of clauses 9 and 25 impose duties 

on plaintiffs, not the government. See Compl. ¶ 40 (“Section 9 of the Permit 
14 

Agreement requires the Beards to exercise diligence in protecting the National 

Forest land”); Compl. ¶ 43 (“Section 25 of the Permit Agreement requires the 

Beards to protect the aesthetic and scenic value of the area under the Permit 

Agreement”). Specifically, clause 9 provides that “the permittee shall exercise 

diligence in protecting from damage the land,” and clause ¶ 25 states that “the 

holder shall protect the scenic and esthetic values of the area.” (emphasis added).

To infer a reciprocal agreement would be inconsistent with the plain 

language of these provisions. Clause 9 clearly defines a duty that is owed by

plaintiffs to the government: “The Permittee shall exercise due diligence in 

protecting from damage the land . . . and shall pay the United States for any 

damage resulting from negligence or from the violation of the terms of this 

permit.” Permit ¶ 9 (emphasis added). Similarly, clause 25 requires “the holder

[to] protect the scenic esthetic values of the area . . . during construction, 

operation, and maintenance of the improvements.” (emphasis added). Because 

this clause refers to improvements made by the holder, the duty to protect can be 

inferred only to the holder. 

In construing the permit, the court looks to the canon of textual 

interpretation that the expression of one thing implies the exclusion of others 

(expressio unius est exclusio alterius). See, e.g., Legal Aid Soc. of New York v. 

United States, 92 Fed. Cl. 285, 299 (2010) (“[I]t is well-settled that [w]here certain 

things are specified in detail in a contract, other things of the same general 

character relating to the same matter are generally held to be excluded by 

implication.”) (internal quotations omitted).

Plaintiffs provide no grounds for ignoring this interpretive principle, other 

than stating in a conclusory manner that “the aesthetic and scenic value of the 

property is the only purpose for either party to enter into the Permit Agreement.” 

Compl. ¶¶ 41, 44 (emphasis added). The notion that “the only purpose” of the 

contract from the perspective of the government is aesthetic is plainly wrong: as 

explained above, the Forest Service has a statutory mission to protect and steward 

the national forests, which includes cutting down trees to reduce the risk of 

wildfire. See 16 U.S.C. § 6501(1). Consistent with this duty, the contract contains 

provisions that specifically allow defendant to engage in its stewardship activities. 

See, e.g., ¶¶ 42 (Timber Cutting), 58 (Area Access), and 66 (Nonexclusive Use). 

Moreover, plaintiffs’ implied reciprocal duty argument is inconsistent with 

the interpretive doctrine that a text must be construed as a whole. Bell/Heery, 739 

F.3d at 1331 (“A contract must also be construed as a whole and in a manner that 

gives meaning to all of its provisions and makes sense.”) (internal quotations 

omitted). As defendant points out, when defining the rights and duties of the 
15 

parties, the contract contains many provisions that single out defendant. For 

example, the phrase “the forest service shall...” appears in ¶¶ 5, 16, 21(e), 27, and 

59. Conversely, the permit also contains a number of clauses that single out 

plaintiffs. See, e.g., ¶ 2 (“the permittee shall pay to the Forest Service . . .”); ¶ 22 

(“the holder shall indemnify the United States”); ¶ 42 (“The holder agrees, as 

directed by the authorized officer, to cut into commercially usable lengths . . . any 

and all merchantable timber.”). Examining the contract as a whole, the court finds 

that clauses 9 and 25 impose obligations on plaintiffs only. 

Absent the imposition of a duty on the part of the government, plaintiffs 

cannot prevail on a breach of contract claim. Accordingly, the court grants 

defendant summary judgment as to plaintiffs’ “implied reciprocal duty” claims. 

C. Plaintiffs’ Express Breach of Contract Claim

1. The Permit Imposes a Duty on Defendant To Avoid “Undue 

Interference” with Plaintiffs’ Rights under the Permit

In addition to the implied reciprocal duty claims, plaintiffs also argue that clauses 

42, 58, and 66 of the Permit Agreement expressly impose on defendant a duty to avoid 

“undue interference” with the “rights and privileges” conferred on plaintiffs. Compl. ¶¶ 

36 – 37, 46 – 48. Plaintiffs argue that defendant’s decision to allow clear cutting of a 

portion of the permitted area to create a log landing area breaches this duty. Defendant, 

in turn, argues that no such express right exists; according to defendants, “[t]he permit 

expressly provides the Forest Service with the right to use the land under permit to the 

Beards in any manner and for any purpose, including removing trees to create a log 

landing to complete [its] stewardship activities.” Def.’s Mot. Summ. J. at 13. The court 

now considers the provisions at issue. 

Clause 42, which confers on the Forest Service the qualified right to cut and 

dispose of timber located in the permitted area, states:

The holder agrees, as directed by the authorized officer, to cut into 

commercially usable lengths and deck for disposal by the Forest Service, 

any and all merchantable timber, not needed by the holder for the permitted 

use, which is cut from the National Forest lands occupied hereunder. This 

material will be disposed of by the Forest Service provided that the Forest 

Service may sell or otherwise dispose of standing merchantable timber to 

third parties when such timber can be felled and removed without undue 

interference with the operation of the holder. Unmerchantable material, 

including tops and branches, shall be disposed of by burning or removal 

from National Forest Land. 
16 

Permit ¶ 42 (emphasis removed). Clause 58, in turn, confers on the Forest Service 

a qualified right to access the permitted area, stating: 

The holder agrees to permit the free and unrestricted access to and upon the 

premises at all times for all lawful and proper purposes not inconsistent 

with the intent of the permit or with the reasonable exercise and enjoyment 

by the holder of the privileges thereof. 

Permit ¶ 58. Finally, Clause 66 grants defendant a qualified right to use the 

permitted area, stating: 

This permit is not exclusive; that is, the Forest Service reserves the right to 

use or permit others to use any part of the permitted area for any purpose, 

provided such use does not interfere with the rights and privileges hereby 

authorized.

Permit ¶ 66. 

As an initial matter, the court notes that defendant has mischaracterized 

plaintiffs’ argument by suggesting that the Beards “do not believe the Forest 

Service had the right to use the land under permit to the Dinkey Creek Inn to 

conduct stewardship activities.” See Def.’s Mot. Summ. J. at 3. On the contrary, 

plaintiffs acknowledged defendant’s right under the permit, as well as defendant’s

statutory duty, to reduce the risk of fire by conducting stewardship activities like 

cutting. See, e.g., Pl.’s Opp’n at 6, n.1. Instead, plaintiffs contend that 

“defendant’s decision to locate a log-landing and clear-cutting over 16% of the 

permitted area interfered with its interest, rights and privileges, unnecessarily, and 

. . . in contravention with the purpose of the Special Use Permit and . . . unduly 

(unreasonably) interfered with plaintiffs’ resort operations.” Id. (original 

emphasis).

The court finds that defendant also has mischaracterized the permit 

provisions at issue. Notwithstanding defendant’s representations otherwise, the 

provisions do not give the Forest Service the right to use the permitted land “in 

any manner and for any purpose.” Def.’s Mot. Summ. J. at 13. Rather, the rights 

conferred by these provisions are qualified. For instance, clause 42 states that “the 

Forest Service may sell or otherwise dispose of standing merchantable timber to 

third parties when such timber can be felled and removed without undue 

interference with the operation of the holder.” Permit ¶ 42 (emphasis added). 

Similarly, clause 58 provides the Forest Service with the right to access the 

premises “at all times for all lawful and proper purposes not inconsistent with the 

intent of the permit or with the reasonable exercise and enjoyment by the holder of 

the privileges thereof.” Permit ¶ 58 (emphasis added). Finally, clause 66 states 
17 

that “the Forest Service reserves the right to use or permit others to use any part of 

the permitted area for any purpose, provided such use does not interfere with the 

rights and privileges hereby authorized.” Permit ¶ 66 (emphasis added). 

Although the purpose of clauses 42, 58, and 66 of the permit is to confer 

certain rights on the government, the clauses contain qualifying rights. Thus, 

defendant is prohibited from exercising its rights in a manner that poses “undue

interference” with the “rights and privileges” conferred on plaintiffs. In the view 

of the court, the qualifying language in these clauses imposes a duty on the 

government, a conclusion reached in other suits against the Forest Service. See, 

e.g., Son Broad., Inc. v. United States, 52 Fed. Cl. 815, 823-24 (2002) (finding 

that a nonexclusive use clause, similar to clause 66 of the instant permit, “imposes 

binding obligations on both parties”).

2. A Genuine Dispute of Material Facts Exists as to Whether the Forest 

Service Breached this Duty 

Finding that clauses 42, 58, and 66 impose duties on the government, the 

court next considers whether defendant actually breached those duties. As 

plaintiffs point out, “undue” means “unreasonable,” and a determination of 

whether defendant’s actions were unreasonable is a question of fact. Pl.’s Opp’n 

to Mot. for Summ. J. (“Pl.’s Opp’n”) at 10, July 27, 2015, ECF No. 12. 

To support their claims of undue interference, plaintiffs point to the admission of

Mr. Martin, a Forest Service officer, that when he approved the location of the landing 

area, he was not aware that the landing area had been slated for the development of three 

cabins, under the terms of the permit. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s 

App. at 115; Compl. ¶¶ 30-31. As further evidence of the unreasonableness of 

defendant’s action, plaintiffs also point to the reaction of Mr. Keith, the Chief Forester, 

who “was astounded by the lack of communication of the forest service personnel and 

logging crew with the permittees and the destruction to their permitted land.” Pl.’s Mem. 

for FS Claims Dep’t, Def.’s App. at 115. Plaintiffs add that Mr. Martin “told us after the 

fact that he would never have done it had he known that was part of our permit (but he 

also never checked).” Beard Decl. at ¶ 23. Moreover, plaintiffs state, Mr. Porter, the 

District Ranger, had suggested that the Beards apply to expand the bounds of the 

permitted area in order “to make up/substitute for the destroyed section of [the] permit.” 

Id. at ¶ 25. Defendant does not dispute any of these allegations directly, and plaintiffs’ 

claims seem to suggest that the Forest Service did not select the site for the landing out of 

necessity. Because the landing might have been located elsewhere without 

compromising the Forest Service’s stewardship activities, the court finds that a genuine 

dispute of material fact exists as to whether defendant’s actions constituted an “undue 

interference” with plaintiffs’ rights under the permit.
18 

3. Nevertheless the Court Finds That Plaintiffs Cannot Show Damages 

The court has determined that the permit imposes a duty on defendant to 

avoid using the permitted land in a way that “unduly interfer[es]” with plaintiffs’ 

contractual rights, and that a genuine issue of material fact exists as to whether 

defendant breached that duty. But to prevail on their breach of contract action, 

plaintiffs must also show, by a preponderance of the evidence, damages that are 

(1) reasonably foreseeable, (2) causally connected to the alleged breach, and (3) 

not speculative. Liberty Ammunition, Inc., 119 Fed. Cl. at 388. Although the 

Beards are not required to fully establish every element of their claim at the 

summary judgment stage, defendant can prevail by negating an essential element 

of plaintiffs’ claim. Vivid Techs., Inc., 200 F.3d at 807. 

Plaintiffs assert that the creation of the log landing on the permitted area 

caused them to suffer a wide array of damages. They argue, first and foremost: 

“[t]he aesthetic and scenic value of the land (particularly in the area where the 

Beards had began construction of the infrastructure for the additional chalets) has 

suffered harm; it is no longer viable to continue with the planned construction 

causing loss of future profits and loss of costs to date for planning and 

construction of the new chalets.” Compl. ¶ 50. Plaintiffs also argue that they 

“sub-let the permitted area and sold the improvements to a third party for a price 

that, as a direct result of the USFS breach of the Permit Agreement, was 

substantially less than its value prior to the USFS breach.” Compl. ¶ 52. In their 

prayer for relief, plaintiffs make additional demands, to include the loss of 

merchantable timber, restoration costs, and pre-judgment interest. 

a. Plaintiffs’ Claim of Lost Profits Was Not Reasonably 

Foreseeable and the Alleged Amount of Recovery is 

Speculative 

Defendant challenges plaintiffs’ claim of lost profits through lost rent by 

showing that the claim was not reasonably foreseeable and that the calculation of 

damages would be entirely speculative. 

On May 3, 2001, plaintiffs sent a letter to Mr. Porter, the District Ranger, 

informing him that construction of the restaurant “[would] probably never happen” 

due to low sales in the existing café. Def.’s App. at 220. Plaintiffs explained that 

they did not have sufficient demand to build more cabins: “[W]e currently do not 

have enough of a waiting list during the summer months to justify building 

additional cabins at this time. Our business during the winter months consists 

primarily of weekends, and the cabins are currently renting at a lower fee than 

those in Shaver Lake, probably due to our location.” Id. Plaintiffs concluded the 
19 

letter by speculating that “[t]here [might] be a need in the future [for the cabins] 

given the growth in California's population.” Id. Mr. Porter corroborates this 

writing by the Beards in his declaration and characterizes the Beards’ decision not 

to build additional cabins as “a business decision” rather than one made on 

account of the logging. Id. at 216. Mr. Porter adds that “[t]he Beards did not raise 

the issue of building new cabins again with me or my staff after sending this letter 

in 2001.” Id.

In their responsive briefing of this summary judgment motion, 

plaintiffs describe their 2001 letter as an effort to reserve the right to 

build more cabins should “growth in California’s population” drive up 

demand. But the court finds this writing, devoid as it is of any specificity, entirely 

inadequate. The mere possibility that demand might increase some time in the 

future due to a possible growth in California’s population does not give the Forest 

Officer any meaningful notice of any future construction 

plans. Furthermore, absent a timeframe for construction or evidence about how 

many cabins plaintiffs would have constructed but for the breach, the calculation 

of any damages would be entirely speculative. It is, for example, possible that 

“growth in California's population” might have created sufficient demand to 

justify the construction of one or two additional cabins, but not three. 

Plaintiffs contend that there “was no reason to ‘request’ to build the final 

six (6) chalets, as they were already authorized under the original permit.” Pl.’s 

Opp’n at 13. The court, however, disagrees. Permit clause 37 requires the 

permittee to submit to the Forest Service “a schedule for the progressive 

development of the permitted site and installation of facilities,” with “an itemized 

priority list of planned improvements and the due date for completion.” (emphasis 

added). Clause 37 also requires the permit holder to submit any construction plans 

at least “forty-five (45) days before the construction date stipulated in the 

development schedule.” Although plaintiffs initially complied with clause 37 by 

submitting a site schedule in 1992, plaintiffs departed from the timeline set forth in

the schedule by abandoning construction of the restaurant and indefinitely 

deferring the construction of the six remaining cabins. Without the required “due 

date for completion” and the 45-day notice for construction, further consultation 

with the Forest Service would have been necessary to build any additional cabins, 

and as Mr. Porter stated in his declaration, even if the Beards had changed their 

minds about constructing the additional cabins, their construction plan would have 

been subject to re-evaluation due to changes “in Forest plans in 2001 and 2005 

that might not [have] allow[ed] [them] to construct new cabins on the land that 

they had proposed in the earlier 1990s.” Decl. of Ray Porter, Def.’s App at 216.
20 

Mr. Beard insists that “Nancy Woolsey ([the] retired FS officer in charge of 

[our] permit) understood that [we] intended to build at some time in the future as 

she told me that since we already had installed the water, septic, and electric 

service in preparation of the additional chalets, [we] should look into the portable 

cabins like they were using at one of the resorts in Huntington Lake.” Beard Decl. 

at ¶ 10; see also Pl.’s Opp’n at 13. In the court’s view, the nature of this 

understanding is vague. But drawing every inference in favor of plaintiffs, the 

court finds that an informal familiarity with Mr. Beard’s intention to build 

additional chalets “[at] some time in the future” did not provide defendant with 

adequate notice. The court cannot award damages on the mere possibility that 

plaintiffs might have built the additional cabins some time in the future, but for the 

breach. 

Moreover, drawing every inference in plaintiffs’ favor, the court finds that 

plaintiffs cannot meet this burden of proving that their damages are (1) reasonably 

foreseeable, (2) causally connected to the alleged breach, and (3) not speculative. 

Liberty Ammunition, Inc., 119 Fed. Cl. at 388. In light of plaintiffs’ abandonment 

of the 1993 development schedule and the 2001 letter apprising Mr. Porter of their 

plans to indefinitely defer construction of any additional chalets, the court finds 

that defendant had no reasonable notice of any impending construction. Even 

assuming that Ms. Woolsey and Mr. Beard had some sort of an understanding that 

Mr. Beard intended to build “[at] some time in the future,” the absence of any 

concrete plan or timeframe dooms plaintiffs’ case. 

Accordingly, the court finds that even if a breach of contract did occur, 

plaintiffs cannot recover their alleged damages as they were speculative and not 

reasonably foreseeable by the Forest Service. 

b. The Court Denies Plaintiffs’ Claim of Lost Value on the Sale 

of the Improvements and the Sublease of the Permitted Area 

Plaintiffs argue that they “sub-let the permitted area and sold the 

improvements to a third party for a price that, as a direct result of the USFS breach 

of the Permit Agreement, was substantially less than its value prior to the USFS 

breach.” Compl. ¶ 52.

As the court has already found, plaintiffs’ claim of lost profits from the 

cabins was not reasonably foreseeable because the Beards had effectively 

abandoned construction of the cabins; thus, any lost income is too speculative to 

calculate. This same reasoning also precludes plaintiffs from obtaining relief on 

their claims for lost value on the sale of the improvements and the sublease of the 

permitted area; that is, because the construction of the cabins was not foreseeable, 
21 

the possibility that plaintiffs might decide to sell those improvements and sublet 

the permitted area due to the frustration of their putative development plans is 

equally unforeseeable. The court finds no proximate causal relationship between 

the alleged breach and plaintiffs’ decision to sell the improvements. Neither the 

timing of plaintiffs’ decision to sell the improvements nor the market conditions at 

the time was foreseeable.

c. The Court Finds No Grounds for an Award of Other Damages 

Claimed by Plaintiffs 

Although plaintiffs primarily seek damages for their inability to build the 

three cabins located in the area cleared by the logging company, plaintiffs also, in 

the barest of terms, allege damage to “the overall aesthetic and scenic value of the 

property,” that caused a loss of resort revenues. Compl. ¶ 51. The court finds this 

general claim of aesthetic harm speculative and not amenable to calculation. 

Plaintiffs provide no evidence whatsoever as to how the removal of trees in 16% 

of the permitted area negatively affect resort revenues. Nor have plaintiffs made 

any showing that demand for the four existing cabins had declined. 

Moreover, plaintiffs’ demand for loss of merchantable timber cannot stand 

because the property interest in the cut timber belongs to the government, not 

plaintiffs. See, e.g., Permit ¶ 4—Development (“Trees or shrubbery on the 

permitted area may be removed or destroyed only after the forest officer in charge 

has approved, and has marked or otherwise designated that which may be removed 

or destroyed. Timber cut or destroyed will be paid for by the permittee as follows 

. . .”) (emphasis added); Permit ¶ 46—Timber Payment (“All National Forest 

timber cut or destroyed [by permittee] in the construction of the permitted 

improvements shall be paid for at current stumpage rates for similar timber in the 

National Forest”); see also Permit ¶ 42 (conferring on the Forest Service the right 

to dispose of merchantable timber). 

Plaintiffs also seek “restoration costs.” But plaintiffs are not entitled to 

recover for the costs of restoring the vegetation to the area cleared for the log 

landing because plaintiffs do not have a property interest in the land itself or in the 

timber located in the land. Rather, plaintiffs have a right to use of the land without 

undue interference. This right of use must be balanced against the Forest 

Service’s contractual right to dispose of timber and its statutory duty to prevent 

forest fires. In light of plaintiffs’ apparent abandonment of the construction of the 

additional cabins, the court finds that plaintiffs cannot recover these costs. 

Finally, plaintiffs request pre-judgment interest. The Court of Federal 

Claims, however, is without authority to grant interest on a claim unless a contract 
22 

or statute expressly provides for such an award. 28 U.S.C. § 2516(a). Neither the 

permit nor any pertinent statute contains a provision for interest payments in this 

case. 

Thus, although the court finds that a genuine dispute of material fact exists 

as to whether defendant breached the terms of the permit, the court also finds 

plaintiffs’ demand for damages must fail. A showing of damages is an essential 

element of a breach of contract claim. Liberty Ammunition, Inc., 119 Fed. Cl. 368 

at 388. Because plaintiff cannot make a prima facie claim of breach of contract, 

defendant is entitled to summary judgment. 

IV. Conclusion 

For the reasons set forth above, defendant’s MOTION for summary judgment is 

GRANTED. The Clerk is directed to enter judgment accordingly. 

IT IS SO ORDERED. 

 

s/ Patricia Campbell-Smith 

PATRICIA CAMPBELL-SMITH

Chief Judge