[00:00:00] Speaker 04:
The next case for argument is 22-1210, Michael Johnson, Logging versus Secretary of Agriculture.

[00:00:09] Speaker 04:
Is it Mr. Hochhalter?

[00:00:11] Speaker 04:
Hochhalter.

[00:00:11] Speaker 04:
Hochhalter.

[00:00:12] Speaker 04:
We're ready whenever you are.

[00:00:15] Speaker 03:
Good morning, Your Honors.

[00:00:16] Speaker 03:
May it please the Court, my name is Kevin Hochhalter, and I represent Michael Johnson Logging.

[00:00:23] Speaker 03:
Today we ask the Court to reverse the contract board's denial

[00:00:28] Speaker 03:
of Johnson's claim for breach of the duty of good faith and fair dealing.

[00:00:33] Speaker 03:
Because that duty is based on the reasonable expectations under the contract, the first step is to examine and interpret the contract.

[00:00:43] Speaker 03:
A correct interpretation of the contract shows that Johnson's expectations of straight skid trails was reasonable.

[00:00:54] Speaker 03:
and thus formed a basis for that duty.

[00:00:58] Speaker 03:
The department's admitted adjustment of the skid trails to gain more reserve trees was a bait and switch, which appropriated extra value to the government at Johnson's expense.

[00:01:12] Speaker 03:
So let's look at the contract.

[00:01:14] Speaker 04:
But before we even get to the contract, didn't the board kind of have two alternative conclusions?

[00:01:20] Speaker 04:
And one was based on, irrespective of what the contract says, you didn't provide evidence with respect to the breach in terms of findings with regards to the skid trails.

[00:01:32] Speaker 04:
So how do you get past that hurdle notwithstanding the contract breach issues?

[00:01:37] Speaker 03:
So Your Honor, it does come back to the contract interpretation because the board

[00:01:45] Speaker 03:
viewed the contract as explicitly allowing the department to consider the reserve trees first and to move the skid trails in order to save more of those reserve trees.

[00:02:00] Speaker 03:
So if that's what the contract explicitly allows, then the expectations under that contract are very different.

[00:02:08] Speaker 03:
The expectation then would be

[00:02:10] Speaker 03:
purchaser looks at and says, oh gosh, I might not get my stitch straight skid trails.

[00:02:15] Speaker 03:
They might have, you know, reserve trees all over the place.

[00:02:20] Speaker 03:
And so what the board was looking for was, okay, we know, in fact the board acknowledged, this is at appendix nine in the board's findings, that the department did adjust the skid trails to save these reserve trees.

[00:02:36] Speaker 03:
So that did happen.

[00:02:38] Speaker 03:
That was proved.

[00:02:38] Speaker 03:
It was admitted by the department and found as fact by the board.

[00:02:43] Speaker 03:
But what the board was looking for was something more to say, if the expectation is that there's going to be some of these, then you can't breach the duty of good faith and fair dealing unless it's excessive.

[00:02:56] Speaker 00:
I thought that the, what are you referring to on page A9?

[00:03:01] Speaker 00:
Because my recollection was that there were only slight changes made.

[00:03:08] Speaker 00:
And the characterization of the government was that only slight changes were made to the planned requested skid paths.

[00:03:15] Speaker 00:
So what is it on page A9 that you're referring to for the evidence that would support that there were significant changes made?

[00:03:23] Speaker 03:
Well, so to be clear, it is that saying that there were slight changes made.

[00:03:28] Speaker 03:
That's admitting that there were changes made.

[00:03:30] Speaker 03:
That's what I'm saying.

[00:03:31] Speaker 00:
But where is there any evidence that there was any complaint about that or concern about that from the get-go?

[00:03:37] Speaker 03:
Well, there is evidence of that.

[00:03:39] Speaker 03:
That's a slightly separate issue, but it goes to the department's sort of waiver argument saying, well, you never complained.

[00:03:49] Speaker 03:
Johnson testified that he complained.

[00:03:51] Speaker 03:
I think the most telling evidence here is if we look at appendix 1771 to 72, that's Johnson's testimony where he talks about

[00:04:05] Speaker 03:
the complaints that he made early on to Chris Anderson, and then later with Jana Carlson, the administrator.

[00:04:14] Speaker 03:
talking to her about the skid trails and saying, it's impossible for me to work like this.

[00:04:21] Speaker 03:
And according to his testimony, she said to him, well, the skid trails have to be laid out this way in order to protect the resource.

[00:04:30] Speaker 03:
Now, that's not a quote.

[00:04:31] Speaker 03:
That's a paraphrase.

[00:04:33] Speaker 03:
But then we compare that to Ms.

[00:04:35] Speaker 03:
Carlson's testimony at appendix 1855, where she acknowledges having this conversation with Mr. Johnson.

[00:04:45] Speaker 03:
In her testimony, she says in short answers to direct questions, no, I wasn't aware that he objected.

[00:04:56] Speaker 03:
But then she says this, quote, what I recall, the discussions I recall having with him were focused on this is what the contract says.

[00:05:07] Speaker 03:
These are the provisions.

[00:05:08] Speaker 03:
This is why what you proposed is not being approved by the Forest Service.

[00:05:14] Speaker 03:
So she's acknowledging she had that conversation with him about the skid trails and about the changes that she's been making, which she believes are according to the contract, because she suffers from the same misinterpretation that the board adopted.

[00:05:29] Speaker 03:
That is to say, the reserve trees get considered first, and you move the skid trails to avoid them.

[00:05:36] Speaker 03:
But that's not what the contract says.

[00:05:39] Speaker 03:
The contract says, and this is

[00:05:44] Speaker 03:
We look at a combination of provisions, but the central one is C2.35, which is the designation by description.

[00:05:54] Speaker 03:
It's got all the different descriptions that tell us which trees can be cut and which trees can't.

[00:06:02] Speaker 03:
But it says in that provision, quote, all skid trails slash roads and landing clearing limits shall be identified and approved

[00:06:13] Speaker 03:
before this provision, this designation by description provision, is implemented.

[00:06:20] Speaker 03:
So right there it says you do your skid trails first and then you figure out what the reserve trees are.

[00:06:31] Speaker 00:
It says, let me ask you something else.

[00:06:34] Speaker 00:
I understand your position on that.

[00:06:35] Speaker 00:
What do you make of the, if you look further up on this

[00:06:40] Speaker 00:
same page that you're looking at, which is A-739.

[00:06:44] Speaker 00:
It says, all Western redcedar will be cut except within the designated clearing limits or with approval.

[00:06:57] Speaker 00:
And none of the other provisions that are limitations indicate that there's any exception for within the clearing limits.

[00:07:05] Speaker 00:
And I understand that you're reading clearing limits to be the skid trails and the landings.

[00:07:11] Speaker 00:
So what do I think of that?

[00:07:13] Speaker 00:
I mean, I read that.

[00:07:14] Speaker 00:
How do I read that?

[00:07:15] Speaker 00:
Does that mean usually if there's a provision that applies to just one type of tree here, we'll say trees, it says,

[00:07:23] Speaker 00:
Western cedars, those can be cut within the clearing limits.

[00:07:27] Speaker 00:
But there's no provision like that for all of the other limitations found in Section C 2.35.

[00:07:34] Speaker 00:
So shouldn't I read that as meaning that in fact those provisions apply even within the clearing limits?

[00:07:41] Speaker 03:
I apologize, I don't have that page in front of me.

[00:07:45] Speaker 03:
Could I ask you to read one more time the specific provision that you're talking about?

[00:07:49] Speaker 00:
Yeah, so I'm reading all of C 2.35 and

[00:07:52] Speaker 00:
It has all those things that can't be cut, and it defies trees by diameter and different things.

[00:07:58] Speaker 00:
But there's one provision that talks, there's several provisions that talk about particular types of trees.

[00:08:04] Speaker 00:
And there's only one of them that talks about an exception for areas with clearing limits.

[00:08:10] Speaker 00:
It says, no western red cedar will be cut except within the designated clearing limits or with approval of the Forest Service personnel.

[00:08:20] Speaker 00:
And so under a typical rule of contract interpretation, if there's an exception for just one designation, that means that inherently that exception doesn't apply to the other areas where you can't cut.

[00:08:35] Speaker 00:
Does that make sense?

[00:08:36] Speaker 03:
I think so.

[00:08:37] Speaker 03:
So if I'm understanding it correctly, what you're proposing is because it says red cedars, it's carving out that exception, that specification for red cedars.

[00:08:51] Speaker 03:
other trees are going to be treated differently.

[00:08:53] Speaker 00:
That's right.

[00:08:54] Speaker 00:
That means those exceptions apply even within the clearing limits.

[00:09:01] Speaker 03:
That's where I think we have to look at reading the contract as a whole.

[00:09:08] Speaker 03:
We have these other provisions that talk about the clearing areas.

[00:09:12] Speaker 03:
For example, specifically B2.32, where it says

[00:09:19] Speaker 03:
All timber is designated for cutting that is within the clearing limits.

[00:09:26] Speaker 03:
And so how do we reconcile those two, right?

[00:09:32] Speaker 00:
Doesn't the section of the provisions in C override the provisions in B?

[00:09:37] Speaker 00:
I mean, B, is it the general contract?

[00:09:39] Speaker 00:
And C then is the specific implementation for this contract?

[00:09:44] Speaker 03:
Right, but the fact that it says red cedars will not be cut within the contract area, it doesn't say that Douglas fir, or I'm sorry I misspoke, but you know the fact that it says something about red cedars within the clearing areas, it doesn't say specifically that some other tree will not be cut within those areas.

[00:10:11] Speaker 03:
So there's not really a

[00:10:14] Speaker 03:
conflict.

[00:10:14] Speaker 03:
There's not an overriding.

[00:10:16] Speaker 00:
Did you say read 2.32 is what you're reading?

[00:10:18] Speaker 03:
Yes.

[00:10:19] Speaker 00:
Yeah, but that says all timber is designated for... Okay.

[00:10:24] Speaker 03:
So everything within those clearing limits should be cut.

[00:10:28] Speaker 03:
Everything.

[00:10:29] Speaker 03:
That says everything.

[00:10:30] Speaker 03:
And then the specific thing says, oh yeah, red cedars should not be cut there.

[00:10:34] Speaker 03:
It doesn't say, for example, Douglas fir can remain standing.

[00:10:40] Speaker 03:
So there's not an overriding provision in C. There's only maybe an implied conflict.

[00:10:47] Speaker 03:
But we can't let an implied conflict override the express terms in B. And if we look at the contract as a whole and what it's supposed to be accomplishing, what is the bargain here?

[00:11:07] Speaker 03:
the purchaser needs to be able to move the equipment in and out of the forest in an efficient manner in order to make this an economically beneficial proposition.

[00:11:20] Speaker 03:
And so what the department, the bargain that the department made through this contract was, okay, purchaser, you get up to 20% of the total area for your landings and skid trails that will be completely cut down

[00:11:37] Speaker 03:
But we, in the other 80%, will keep our reserve trees.

[00:11:44] Speaker 03:
That's the bargain.

[00:11:45] Speaker 03:
And by misinterpreting the contract and designating the reserve trees first, the government betrayed that expectation.

[00:11:58] Speaker 01:
So when the government made adjustments to your proposed skid trail,

[00:12:04] Speaker 01:
those adjusted skid trails, did those still have trees in them?

[00:12:11] Speaker 03:
That's something that I was not clear on from the record.

[00:12:14] Speaker 03:
From Mr. Johnson's perspective, he had skid trails that had trees in them.

[00:12:19] Speaker 03:
From the department's perspective, they had skid trails that were moved so that the trees were not in the skid trails.

[00:12:27] Speaker 03:
But the end result was the same.

[00:12:29] Speaker 03:
Mr. Johnson had to do these back and forth turns while although they're slight, his equipment has treads.

[00:12:41] Speaker 01:
When you have to turn... I guess what I'm trying to figure out is did Mr. Johnson have the unilateral right to define what and where the skid trails would be and what they would look like?

[00:12:57] Speaker 01:
Or did they need to be approved by the agency?

[00:13:00] Speaker 01:
In that way, the agency would have the power to make adjustments to those skid trails.

[00:13:08] Speaker 03:
Right.

[00:13:08] Speaker 03:
They needed to be approved, so the department had some discretion.

[00:13:12] Speaker 03:
But what the contract did not allow the department to do was to look at the reserve trees first and then change all the skid trails to reserve all of these trees.

[00:13:25] Speaker 03:
at Johnson's expense.

[00:13:28] Speaker 03:
At the very least, looking at it in terms of the duty of good faith and fair dealing, although they may have had the discretion, the power under the contract to make some adjustments, in doing so, they betrayed the expectations of the bargain.

[00:13:49] Speaker 03:
And so we ask the court to reverse, and I'll reserve what remains of my time.

[00:13:58] Speaker 02:
Good morning, your honor.

[00:13:59] Speaker 02:
May it please the court.

[00:14:01] Speaker 02:
This court should affirm the board's decision below because Mr. Johnson, the proprietor of Michael Johnson Locking.

[00:14:08] Speaker 01:
Is there anything in the record that clarifies whether the skid trails as approved and adjusted by the government still contain some trees?

[00:14:20] Speaker 02:
Your honor, there is unequivocal testimony from the contracting officer as an initial matter at appendix 1853.

[00:14:27] Speaker 02:
Ms.

[00:14:27] Speaker 02:
Carlson says, quote, there were no trees left in the skid trails or landings that were approved by the Forest Service.

[00:14:35] Speaker 02:
The appellant recognizes in the reply brief, at least, that this was established as testimony from the contracting officer in the record.

[00:14:43] Speaker 02:
And that is why there has been somewhat of a moving of the goalpost in this case.

[00:14:47] Speaker 02:
The opening brief discusses there being skid trails replete or full of trees

[00:14:53] Speaker 02:
The approved skid trails were full of trees that therefore caused allegedly inefficiency.

[00:14:58] Speaker 02:
In the reply brief, there's an allegation, well, now we recognize that, oh, well, maybe it's unclear that there were trees in those approved skid trails.

[00:15:06] Speaker 02:
Therefore, now we're talking about trees on the edges of the skid trails, making them undulate or weave in a certain way.

[00:15:13] Speaker 02:
Zigzag, as we laid out in our brief, is a overcharacterization of what happened, particularly in light of the appellant's proprietor's testimony that

[00:15:23] Speaker 02:
he having run the job.

[00:15:25] Speaker 01:
Does the government agree though that if there were trees in the skid trails as approved by the government, that that would be a real problem?

[00:15:35] Speaker 01:
That that would in fact, you know, to require Johnson Logging to operate on skid trails that had trees right in the middle of them would be a breach of the contract?

[00:15:50] Speaker 02:
Your Honor, no, we do not agree that this contract required the agency to approve skid trails.

[00:15:55] Speaker 01:
But you could imagine a lot of different problems there would be in trying to perform the contract if there were a bunch of trees right there in the skid trails.

[00:16:05] Speaker 02:
Your Honor, yes, one can intuit that there may be inefficiency caused by having to

[00:16:11] Speaker 02:
run around different trees within those skid trails.

[00:16:14] Speaker 01:
What if the tree was right smack dab in the middle of a 12 foot wide skid trail?

[00:16:21] Speaker 01:
What is one to do under those circumstances?

[00:16:23] Speaker 02:
In those circumstances, Your Honor, the purchaser here, Mr. Johnson, could have complained to the agency if that was the issue at the time.

[00:16:33] Speaker 02:
As the board found, based on substantial evidence in the record,

[00:16:36] Speaker 02:
There were no contemporaneous complaints in the almost 300 inspection reports that the parties executed throughout this job.

[00:16:45] Speaker 02:
And additionally, there was on those inspection reports routinely approval of the varying proposed skid trails from the purchaser.

[00:16:54] Speaker 02:
For example, the board cites, in its opinion, I think 10 of those reports.

[00:16:57] Speaker 02:
We have one here at appendix 1027 that talks about the approval of skid trails.

[00:17:03] Speaker 02:
On each of those inspection reports, Mr. Johnson could have deleted, if inapplicable, the phrase, I agree on behalf of purchaser.

[00:17:12] Speaker 02:
There therefore is a record of contemporaneous agreement to what was done.

[00:17:15] Speaker 02:
Additionally, there's a record of a contemporaneous good relationship between the parties performing the contract.

[00:17:24] Speaker 02:
There are no allegations of, there are no substantiated allegations of contract interference in this matter.

[00:17:31] Speaker 02:
If Mr. Johnson ran into an unworkable situation, there's testimony in the record from the contracting officer that her MO would have been to engage with Mr. Johnson and fix the situation as best they could.

[00:17:43] Speaker 02:
There is extensive evidence in this record of a

[00:17:47] Speaker 02:
a cooperative relationship regarding the planning, construction, and approval of both skid trails and landings.

[00:17:53] Speaker 01:
Do you have a couple examples you could highlight of where Mr. Johnson faced an unworkable situation, reached out to the contracting officer, and the contracting officer made adjustments in light of those complaints about an unworkable situation?

[00:18:08] Speaker 01:
I don't think there's an example where

[00:18:11] Speaker 01:
Johnson came forward and said, there is a tree right in the middle of the skid trail.

[00:18:15] Speaker 01:
I cannot work here with a tree right in the middle of the skid trail.

[00:18:20] Speaker 01:
But are there other examples?

[00:18:23] Speaker 02:
I did annotate the board's opinion.

[00:18:24] Speaker 02:
I can pull it here.

[00:18:26] Speaker 02:
The board's opinion at pages appendix nine through 10 cites approximately 10 inspection reports.

[00:18:34] Speaker 02:
And I have the annotations of the record citations for each of these.

[00:18:39] Speaker 02:
where adjustments to skid trails and landings were made at Mr. Johnson's request.

[00:18:44] Speaker 02:
I think we also have a footnote in our brief where we laid out these citations to the record.

[00:18:52] Speaker 02:
The first inspection report from December 1, 2010 is at Appendix 932 on Appendix 9.

[00:19:01] Speaker 02:
All of these 10 inspection reports essentially deal with adjustments being made to skid trails and landings in response to requests from the purchaser.

[00:19:09] Speaker 02:
What kinds of adjustments to the skid trails?

[00:19:12] Speaker 01:
Extending them?

[00:19:14] Speaker 02:
Extending them, permitting additional trees to be cut around them, with regard particularly to landings, enlarging them at their purchaser's request.

[00:19:24] Speaker 02:
Additionally, there's a note, and I think in the appellant's opening brief, it did cite to

[00:19:31] Speaker 02:
an objection actually being noted on an inspection report such that there is evidence that an objection could have been noted there.

[00:19:39] Speaker 02:
Therefore, the absence of objection there is even more appropriate about the fact that there was no relationship or contract interference here or problem with the way that the schedules were approved.

[00:19:49] Speaker 02:
And that's at Appendix 1076.

[00:19:52] Speaker 02:
And as we point out in our brief, that notation of an objection there is actually an objection to the purchaser's own layout crew having laid out skid trails in a way that went through skips and old stump growth, such that they could not drag the logs there.

[00:20:12] Speaker 02:
Fundamentally, Your Honor, this case does come down to a failure of proof on the part of the appellant before this court.

[00:20:20] Speaker 02:
to establish the facts that were alleged to have breached the contract.

[00:20:25] Speaker 02:
And that is, with regard to skid trails, the breaching facts being alleged that they were replete with trees in them.

[00:20:34] Speaker 02:
That is the allegation in the opening brief of the appellant before this court.

[00:20:38] Speaker 02:
That allegation is not substantiated in the record as the board found.

[00:20:42] Speaker 02:
Therefore, breach of contract with regard to skid trails fails.

[00:20:45] Speaker 02:
With regard to landings equally, there is no record evidence of the operator being required to operate in what we call undersized landings.

[00:20:56] Speaker 00:
The contract doesn't... Can I just clarify?

[00:20:59] Speaker 00:
I don't think landings are an issue in this case, right?

[00:21:01] Speaker 00:
Not on appeal.

[00:21:02] Speaker 00:
I think it was argued below, but I don't think that's an issue on appeal.

[00:21:05] Speaker 00:
Am I misunderstanding that?

[00:21:07] Speaker 02:
Your Honor, the appellant has made an argument about landings.

[00:21:13] Speaker 02:
Granted, appellant's argument is not entirely clear, and I would be loathe to try to summarize it necessarily accurately.

[00:21:19] Speaker 02:
But the argument, as I understand it with regard to landings, was that there was no contract language supporting the board's interpretation.

[00:21:28] Speaker 02:
The board's interpretation of the landings provision was that the contract gave the appellant discretion, because it made operational efficiency the benchmark for approving landings.

[00:21:42] Speaker 02:
Therefore, the board found that that gave the purchaser discretion to determine the size of landings.

[00:21:47] Speaker 02:
Still, however, the board found at appendix 3, based on section B6.422, that the agency still had to agree with the appellant on where the location of those landings were going to be.

[00:22:03] Speaker 02:
So, contrary to the appellant's assertion, there is contract language for the board's

[00:22:09] Speaker 02:
that the appellant had discretion to decide the size of landings such that subject to the agency then approving their location.

[00:22:16] Speaker 02:
On the factual piece of the landings argument, the board found that the allegations and appellant contend or challenges the board's finding that the allegations around landing size being undersized because the contract actually allocated responsibility to the purchaser to decide the landing sizes

[00:22:38] Speaker 02:
that allegations being required to operate in an undersized landing was not evidence of breach, because that was the purchaser's responsibility under the contract.

[00:22:48] Speaker 02:
And even to the implied duty framing that the case has taken, there is no evidence in the record that the agency abused any discretion that it may have had in approving either the size or the location of landings under the contract, but rather there is a cooperative pattern of planning

[00:23:08] Speaker 02:
approval and construction of landings.

[00:23:12] Speaker 02:
And that cooperative pattern bears out, for example, that in the inspection reports at Appendix 932, Appendix 1027, Appendix 1041, and Appendix 1076.

[00:23:29] Speaker 02:
So again, to

[00:23:35] Speaker 02:
To finalize the response to Judge Stoll's question, I do believe landings is an issue in the case.

[00:23:40] Speaker 02:
However, it might be slightly different than the skid trail issue.

[00:23:48] Speaker 02:
Just to touch briefly on that covers, I believe, the dearth of evidence presented by the appellant, which makes the breach claims fail for failure to establish the facts that are alleged to have breached the contract.

[00:24:03] Speaker 02:
The court, therefore, need not actually reach the contract interpretation issue because failure to establish, as a matter of fact, the breaching facts, of course, negates the breach of contract claim.

[00:24:16] Speaker 02:
But under the contract, the agency was not required to permit the removal of all trees within skid trails.

[00:24:26] Speaker 02:
The tree prescription, as Jeff still pointed out, it does give ample indicia of it applying within the confines of approved skid trails at Appendix 739, that it does talk about all skid trails and landings having been identified and approved before the tree prescription is implemented.

[00:24:49] Speaker 02:
Yes, there is a temporal limitation in that clause.

[00:24:53] Speaker 02:
that this court's contract interpretation precedent must respect would cause the court to need to respect.

[00:25:01] Speaker 02:
And by categorizing or conceptualizing either a skid trail or a landing as a constructive clearing under B2.32, that would render that temporal limitation meaningless.

[00:25:14] Speaker 02:
Because if it were the case, as Appellant would have it, that all trees within skid trails and landings, regardless of whatever else was going on,

[00:25:22] Speaker 02:
must be cleared, then it doesn't matter when you apply the tree prescription vis-a-vis skid trails and landings.

[00:25:29] Speaker 02:
So that B.2.32 argument ultimately is meritless for running the tree prescription, meaningless as the board found.

[00:25:39] Speaker 02:
There was no unilateral right as the panel concluded with the appellant.

[00:25:44] Speaker 02:
There was no unilateral right.

[00:25:46] Speaker 01:
Just to really follow up quickly on the tree prescription provision.

[00:25:49] Speaker 01:
You're saying that the government had the right under the contract to first define where the skid trails were going to be and then second had the right to require trees to not be cut down in the middle of those skid trails.

[00:26:09] Speaker 01:
I mean, is that a reasonable reading of the contract?

[00:26:13] Speaker 01:
That the government has the right to

[00:26:17] Speaker 01:
to have a blockade of trees in the skid trail?

[00:26:21] Speaker 02:
Your honor, that contractual right exists under the contract.

[00:26:25] Speaker 02:
However, in this case, there has been no abuse of the government's right to do so.

[00:26:31] Speaker 02:
No abuse has been established by the appellant.

[00:26:35] Speaker 02:
And for the court's awareness as well, I should have pointed out at appendix, I believe it's a 730.

[00:26:44] Speaker 02:
Appendix 738 has the beginning of the tree prescription, the C provision, C 2.35.

[00:26:51] Speaker 02:
The second sentence of that provision on Appendix 738 is that additional timber to be cut, if any, will be designated for cutting in accordance with section B 2.37.

[00:27:02] Speaker 02:
And that is the section that the contracting officer testified to before the board as the one that she relied upon to permit the purchaser to clear all trees

[00:27:13] Speaker 02:
within the confines of the approved skid trails.

[00:27:17] Speaker 02:
And that testimony is at Appendix 1823 and also at Appendix 1852.

[00:27:24] Speaker 02:
So ultimately, we're arguing in this case about something that was failed to be proven.

[00:27:30] Speaker 02:
We're arguing about circumstances, trees in skid trails or trees along skid trails that cause skid trails to be inefficiently

[00:27:39] Speaker 02:
zigzagging throughout the forest when there actually is no proof as a matter of fact that that's what happened, but rather there is substantial countervailing evidence that the board weighed.

[00:27:51] Speaker 02:
And this court, of course, does not reweigh the evidence on appeal to conclude conclusively that there was no evidence of contract interference when it came to approval of skid trails and landings

[00:28:05] Speaker 02:
And for that reason, and those in our briefs, we respectfully request that this court affirm the decision of the board.

[00:28:11] Speaker 02:
Thank you.

[00:28:15] Speaker 03:
Thank you.

[00:28:15] Speaker 03:
I'd first like to just reiterate that what is clear that was proven that the board accepted was that the skid trails were adjusted to move around reserve trees.

[00:28:27] Speaker 03:
And under the contract, that's not supposed to happen.

[00:28:31] Speaker 03:
The skid trails come first.

[00:28:33] Speaker 03:
then the reserve trees get designated after, not the other way around.

[00:28:39] Speaker 03:
As to landings, the purchaser does not have unfettered discretion under the contract to decide the size of the landings.

[00:28:48] Speaker 03:
And so we take issue with the board's conclusion that Johnson did.

[00:28:52] Speaker 03:
It's not true.

[00:28:54] Speaker 03:
And we can just look at some of the inspection reports that council highlighted where Johnson had to specifically ask, can I cut a few more of these trees to expand my landing?

[00:29:08] Speaker 03:
The fact that he had to ask shows us that he's not in control of the size of the landings as just a practical matter.

[00:29:17] Speaker 03:
The department was in charge of that.

[00:29:19] Speaker 03:
And the contract says that the department has to approve.

[00:29:21] Speaker 03:
And so they used that approval authority to impose the landings that they wanted.

[00:29:27] Speaker 03:
And my time is up.

[00:29:29] Speaker 03:
So I'll just, again, ask the court to reverse and remand back to the board.

[00:29:34] Speaker 03:
Thank you.

[00:29:35] Speaker 04:
We thank both sides in the case to submit.

[00:29:38] Speaker 04:
Thank you.