248 F.3d 1365 (Fed. Cir. 2001)
THE CONFEDERATED TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON and WARM SPRINGS FOREST PRODUCTS INDUSTRIES, Plaintiffs-Appellants,v.UNITED STATES,  Defendant-Appellee.
00-5002
United States Court of Appeals for the Federal Circuit
DECIDED: May 10, 2001

Appealed from: United States Court of Federal Claims
Judge Robert H. Hodges, Jr. [Copyrighted Material Omitted]
Martin E. Hansen, Karnopp, Petersen, Noteboom, Hansen, Arnett & Sayeg, LLP, of Bend, Oregon, argued for plaintiffs-appellants. On the brief were Dennis C. Karnopp, and Paul D. Dewey. Of counsel on the brief were Charles A. Hobbs, and Marsha K. Schmidt, Hobbs, Straus, Dean & Walker, LLP, of Washington, DC.
Elizabeth Ann Peterson, Attorney, Environment & Natural Resources Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief was John A. Bryson.
Before NEWMAN, SCHALL, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.


1
This case involves a claim for damages attributable to the government's  mismanagement of Indian timber resources. The two plaintiffs are the  Confederated Tribes of the Warm Springs Reservation of Oregon and Warm  Springs Forest Product Industries, a tribal corporation that engages in  timber transactions on behalf of the Confederated Tribes. For convenience,  we refer to the plaintiffs collectively as the Tribes. Following a trial on  the Tribes' complaint, the Court of Federal Claims found that the  government had mismanaged the Tribes' timber resources in several ways.  The court, however, held that the Tribes were not entitled to damages on  the issues that they have appealed to us. Because the trial court erred in  the analysis that led it to conclude that the Tribes are foreclosed from  obtaining a monetary recovery based on the acts of mismanagement complained  of on appeal, we vacate the judgment and remand the case to the trial court  for further proceedings.


2
* A


3
The Warm Springs Indian Reservation was created in 1855 by a treaty between  the United States and the Tribes of Middle Oregon. In 1972, Congress  resolved a longstanding dispute about the boundaries of the Warm Springs  reservation by enacting the McQuinn Act, Pub. L. No. 92-427, 86 Stat. 719  (1972), which added an area of forest land known as the McQuinn Strip to  the reservation. The McQuinn Act specified that timber within the McQuinn  Strip would be managed by the Bureau of Indian Affairs ("BIA") as trustee  for the Tribes and that timber harvested from the Strip would be sold at  auction but could not be sold for export until after January 1, 1992.


4
As part of its management responsibilities, the BIA developed a 20-year  management plan defining maximum anticipated timber harvests for the  McQuinn Strip. The plan was designed to implement the BIA's statutory  requirement for sustained yield management of timber lands that the BIA  managed as trustee. See 25 U.S.C. § 466.


5
By 1989, the total amount of timber harvested from the McQuinn Strip  exceeded the amount that was to be harvested under the 20-year management  plan. Accordingly, at the Tribes' request the BIA suspended timber harvests  on the McQuinn Strip. The suspension had two purposes: to ensure prudent  forest management by conforming to the maximum planned harvest, and to save  the timber on the McQuinn Strip until the export restrictions ended in  1992. The Tribes and the BIA anticipated that the export price for the  timber would be higher than the domestic price-perhaps as much as twice as  high-and that postponing the harvest would therefore produce much more  income for the Tribes.


6
During the winter of 1989-1990, windstorms caused severe damage to timber  on the McQuinn Strip, blowing down and damaging many trees. Because of the  risk that insects and disease would destroy the timber value of the downed  and damaged trees, the Tribes and the BIA agreed that the damaged timber  should be harvested immediately, despite the general moratorium on McQuinn  Strip logging.


7
In the summer of 1990, the BIA generated a plan to sell the damaged timber,  referred to as "blowdown timber." The BIA's plan included harvesting  limited amounts of healthy, standing timber, referred to as "green timber,"  to the extent necessary to provide access to the blowdown timber. The  Tribes' Timber Committee approved the proposed plan, which called for the  harvest of 18,570,000 board feet of timber. In so doing, the Tribes  reiterated their desire to save as much timber as possible until after  1992.


8
The BIA issued a sale prospectus for the blowdown timber contract. After  the prospectus was issued but before bids were received, the Tribes  objected to the amount of green timber that was included in the prospectus.  Accordingly, shortly before the sale, the BIA removed 1,500,000 board feet  of timber from the designated areas covered by the proposed contract.  Vanport Manufacturing, Inc., won the timber contract and began harvesting  on August 13, 1990.


9
The BIA controlled the timber accounting procedures during the harvest.  Truckloads of timber were divided into two categories: merchantable loads  and cull loads. Payment for the merchantable loads, which contained clearly  merchantable logs, was based on the size and type of each log. For the cull  loads, which contained non-merchantable lumber, the Tribes received only a  small amount based on the overall weight of the removed material. The  logging company representatives designated a load as either cull or  merchantable lumber as the logs were loaded onto each truck.


10
Two methods were used to measure the amount of timber on each load.  Merchantable loads were "rollout" scaled. In rollout-scaling the logs are  taken off the truck and counted individually based on length,  circumference, and type of tree. Cull loads were "scan" scaled. In scan-  scaling the material remains on the truck, and the scaler walks around the  truck to determine that no merchantable logs are present. Additionally, the  Tribes identified records of 12 loads, designated as cull, for which  rollout-scaling was performed after an initial scan-scaling. For each load  (cull or merchantable) the scaler generated a truck ticket detailing the  results of that scale. The sum of all the truck tickets formed the accounting records that provided the basis for payment to the Tribes.


11
To verify the accuracy of the initial scaling, the BIA used "check-  scaling." In check-scaling, a certain percentage of the loads are diverted  to third-party scalers who perform independent rollout-scalings. These  independent scalings are compared to the corresponding truck tickets to  detect any systemic mistakes occurring in the initial scalings. In 1990,  BIA guidelines suggested check-scaling five percent of the loads, although  a BIA expert testified that the five percent guideline had not been used  since the 1970's. In the blowdown sale in this case, check-scaling was  actually performed on less than one percent of the merchantable loads.

B

12
Following the sale, the Tribes filed suit in the Court of Federal Claims,  contending that the BIA had mismanaged the sale in a manner that  substantially reduced the Tribes' income from the harvested timber. The  mismanagement, the Tribes contended, constituted a breach of the BIA's  fiduciary obligations and entitled the Tribes to recover damages from the  government for the diminution in value of the proceeds from the timber  harvest.


13
The Tribes presented several theories of fiduciary breach by the BIA, three  of which they continue to press on appeal. First, they asserted that too  much green timber was included in the sale. According to the Tribes, that  timber should have been preserved for harvest and sale after 1992, when it  could have been sold in the export market for a much higher price. Second,  they complained that as a result of serious errors in the BIA's accounting  procedures, the reported amounts of timber harvested substantially  undercounted the actual amount harvested from the designated areas. Third,  they asserted that trees were taken from areas that were not designated in  the timber contract, which constituted timber trespass as defined in the  timber contract and relevant Oregon statutes.


14
At trial, the Tribes offered "stump cruise" data to show a disparity  between the amount of timber taken and the amount for which they were paid.  In a stump cruise, researchers count the number, size, and type of stumps  in a subsection of a harvest area. Based on that sample, an estimate is  made of the total amount of timber taken from the entire harvest area. The  Tribes' stump cruise resulted in an estimate of the amount of harvested  timber that was substantially higher than the amount reflected in the BIA  records of the harvest. The BIA performed its own stump cruises, which  resulted in estimates of the amounts of harvested timber that closely  matched the BIA's harvest records.


15
After the trial, the court issued an opinion in which it agreed with the  Tribes that the BIA had mismanaged the timber sale in several respects.  First, the court found that the BIA erred by permitting the harvest of  healthy as well as damaged trees. In doing so, the court found, the BIA did  not take into account the fact that the annual allowable harvest for the  McQuinn Strip had already been exceeded and that Tribes' goal was to save  as much timber as possible until after 1992, when it could be sold in the  export market. The court noted that BIA officials admitted that including  green timber in the harvest was "a poor decision," and that although  instructions to remove green trees from the sale were passed down to BIA  employees, green timber that had been marked improperly was still  harvested. While the court noted that some green timber had to be removed  to ensure safety and to gain access to damaged timber, the court found that  those instances were "relatively few." The BIA acted "imprudently," the  court concluded, when it did not remove the majority of the green timber  from the salvage sale.


16
Notwithstanding its finding that the BIA breached its fiduciary duty to the  Tribes by improperly including green timber in the blowdown sale, the court  held that the Tribes were not entitled to damages for that breach. The  court explained that the Tribes had suffered no compensable loss because  the Tribes had received the full domestic price for the green trees that  were improperly cut. The court added that it could "only speculate on what  prices in the export market might have been at some hypothetical time"  after January 1, 1992, when the trees could have been sold for export, and  that "we have no way of knowing whether they would have cut the timber in  1993 or at some later date."


17
With respect to the Tribes' contention that the amount of timber removed  during the harvest was substantially undercounted, the court disagreed. As  to that issue, the court ruled that the Tribes bore the burden of showing  that they did not receive the full benefit of the timber harvested and that  although they "raised some issues and inconsistencies with regard to [the  BIA's] management and the procedures it used to account for the Tribes'  timber," they "did not prove that a substantial amount of timber was  missing."


18
With respect to the Tribes' timber trespass claim, i.e., the argument that  the BIA improperly allowed the contracting logging company to cut trees  that were not properly designated as part of the sale, the court understood  the Tribes' claim to rest on an Oregon statute that required proof of  willful misconduct on the part of the government. Because the court found  that the government's conduct with respect to the timber trespass claim was  not willful, the court denied the Tribes any recovery on that claim.


19
On appeal, the Tribes renew each of the three claims discussed above.  Other claims disposed of by the court have not been appealed. The  government has not challenged the court's finding that the BIA breached its  fiduciary duty to the Tribes by permitting green timber to be cut during  the blowdown sale, but it argues that notwithstanding the breach of  fiduciary duty, the Tribes have not established a basis for an award of  damages.

II

20
Pursuant to statute and regulation, the United States exercises  comprehensive control over the management and harvesting of timber on  Indian reservations. As a result, the United States has a fiduciary  responsibility to manage those timber resources "based upon a consideration  of the needs and best interests of the Indian owner and his heirs," 25  U.S.C. § 406(a), and the proceeds from the sale of timber harvested from  the reservations must be used for the benefit of the Indians or transferred  to them, see id. §§ 406, 407. The Secretary of the Interior is directed to  adhere to principles of sustained-yield forestry on all Indian forest lands  under government supervision, see United States v. Mitchell, 463 U.S. 206,  209 (1983), and to manage the forested reservation land so as to ensure  that the Indians receive "the benefit of whatever profit [the forest] is  capable of yielding," White Mountain Apache Tribe v. Bracker, 448 U.S. 136,  149 (1980). Tribes that own timber managed by the federal government enjoy  the right of an injured beneficiary to seek damages for alleged breaches of  the fiduciary obligations that are defined by the statutes and regulations  that give the federal government the responsibility to manage Indian timber  resources for the Indians' benefit. See Mitchell, 463 U.S. at 226 .


21
Under trust law generally, a beneficiary is entitled to recover damages for  the improper management of the trust's investment assets. In determining  the amount of damages for a breach of the trustee's fiduciary duty with  regard to investments of the trust property, courts attempt to place the  beneficiary in the position in which it would have been absent a breach.  See Roth v. Sawyer-Cleator Lumber Co., 61 F.3d 599, 604 (8th Cir. 1995);  Donovan v. Bierwirth, 754 F.2d 1049, 1058 (2d Cir. 1985); William F.  Fratcher, Scott on Trusts, § 208.3 (4th ed. 1987); George Gleason Bogert,  The Law of Trusts and Trustees §§ 701-06, 861 (1982). With respect to the  government's management of Indian timber resources, tribes whose timber  resources are mismanaged are entitled to "any fall-off from the income they  would have received from their forests and lands" resulting from the  breach. See Mitchell v. United States, 664 F.2d 265, 271 (Ct. Cl. 1981),  aff'd, 463 U.S. 206 (1983). In the case of a breach consisting of a sale of  timber assets for less than their full value, the tribes are entitled to  recover "the difference between the actual proceeds and the greatest  appropriate revenue which should have been obtained." Id.


22
Although the trial court held that the United States breached its fiduciary  duty by selling the green timber prematurely, the court denied the Tribes  any recovery for that breach on two grounds: (1) the Tribes "received full  value for the green trees cut improperly," i.e., the Tribes received the  full domestic price for those trees; and (2) the court could "only  speculate on what prices in the export market might have been at some  hypothetical time" in the future.


23
Neither of those grounds justifies refusing to award any damages for the  improperly harvested green timber. To deny recovery on the ground that the  Tribes recovered the full value of the trees in the unfavorable market in  which they were sold ignores the nature of the breach, which consisted of  harvesting and selling the trees on the domestic market rather than waiting  to harvest and sell them for export. It also disregards the legal  principle, recognized by the Court of Claims in the Mitchell case, that  Indian tribes in a case of improper sales of timber assets are entitled to  recover "the proceeds of the sales which should have been made under proper  management-not merely the actual proceeds of actual sales." Mitchell, 664  F.2d at 271.


24
The court was also wrong to refuse to award damages on the ground that any  award would be speculative. It is a principle of long standing in trust law  that once the beneficiary has shown a breach of the trustee's duty and a  resulting loss, the risk of uncertainty as to the amount of the loss falls  on the trustee. The Second Circuit applied that principle in setting forth  the proper damages analysis in Donovan v. Bierwirth, 754 F.2d at 1056:


25
Where several alternative investment strategies would have been equally plausible, the court should presume that the funds would have been used in the most profitable of these. The burden of providing that the funds would have earned less than that amount is on the fiduciaries found to be in breach of their duty. Any doubt or ambiguity should be resolved against them.


26
See also N.Y. State Teamsters Council Health & Hosp. Fund v. Estate of  DePerno, 18 F.3d 179, 182 (2d Cir. 1994) ("once the plaintiffs established  the trustees' breach of their duty of loyalty, the trustees bore the burden  of proving any `set off' to the extent of their liability"); Wooton Land &  Fuel Co. v. Ownbey, 265 F. 91, 99 (8th Cir. 1920) (burden of proof in an  accounting is on the fiduciary to prove the amount of any credit). That  principle stems from the English case of Armory v. Delamirie, 93 Eng. Rep.  664 (1722), the "Chimney Sweep's Jewel Case," in which the plaintiff  chimney sweep bailed a jewel with the defendant jeweler. When the jeweler  failed to return the jewel, the court ruled that unless the defendant  "produce the jewel, and shew it not to be of the finest water, [the jury]  should presume the strongest against him, and make the value of the best  jewels the measure of [the plaintiff's] damages."


27
In light of the trial court's findings that the BIA's failure to prevent  the logging of substantial amounts of green timber constituted a breach of  the BIA's fiduciary duty to the Tribes and that the Tribes and the BIA had  agreed to postpone the harvesting of the green timber until after January  1, 1992, when that timber could be sold at higher prices on the export  market, there is no question that the Tribes have established both a breach  and some loss. The only question is whether the proof of loss was too  speculative to support any recovery at all, as the trial court held. Under  the foregoing principles of trust law, the Tribes should not have borne the  risk of uncertainty as to precisely how much the green timber would have  sold for if it had not been prematurely harvested. That is particularly  true on the facts of this case, where resolving the issue of damages does  not require unguided speculation.


28
The Tribes introduced evidence that, even before the blowdown sale, they  intended to sell a substantial amount of timber during 1992 and 1993. They  also offered evidence as to the export prices for green timber during those  years. To be sure, there are unresolved factual issues that must be  addressed, such as (1) how much green timber was improperly sold; (2) how  much of that timber the Tribes would have sold during 1992 and 1993, and  (3) when, during those years, the Tribes would have sold the timber (the  prices varied during the 1992-93 period). Those factual issues, however,  are amenable to resolution within a reasonable degree of approximation,  which is sufficient to support an award. See Ace-Federal Reporters, Inc. v.  Barram, 226 F.3d 1329, 1333 (Fed. Cir. 2000) (quoting Locke v. United  States, 283 F.2d 521, 524 (Ct. Cl. 1960)) ("If a reasonable probability of  damage can be clearly established, uncertainty as to the amount will not  preclude recovery."); Elec. & Missile Facilities, Inc. v. United States,  416 F.2d 1345, 1358 (Ct. Cl. 1968) ("where responsibility for damages is  clear, it is not essential that the amount thereof be ascertainable with  absolute exactness or mathematical precision").


29
The government asserts that the Tribes could not have sold the green timber  in 1992 because the Tribes sold other timber assets during that year. The  government acknowledges, however, that there were no statutory or  regulatory limits on the amount of timber that the Tribes could have  harvested in 1992. The government's argument is therefore that any  additional timber the Tribes sold in 1992 would have depressed the market  price and thus reduced the proceeds from the 1992 sales. The trial court,  however, made no finding on that issue. We decline to affirm the ruling on  the green timber issue based on the government's unsupported suggestion  that selling additional timber from the Warm Springs reservation in 1992  and 1993 would have depressed the prices on the export market sufficiently  to deprive the Tribes of any economic advantage they would have enjoyed  from postponing the harvesting of the green timber that was improperly  taken in the blowdown sale. The question of the effect, if any, that the  Tribes' timber sale would have had on prices in the export market is a  factual question to be addressed on remand when the trial court seeks to  determine the proper damages for the breach of fiduciary duty.


30
The government also argues that the "fatal flaw" in the Tribes' case at  trial was their failure to establish the volume of timber that reasonably  could have been left standing and was instead logged in the blowdown sale.  The trial court, however, did not base its decision on any alleged  inadequacy in the Tribes' proof as to the amount of improperly harvested  timber. On that issue as well, we decline the government's invitation to  affirm the judgment of the trial court on a ground not adopted by that  court.


31
On remand, the trial court must determine, as best it can under the  circumstances, how much green timber was improperly taken, when that green  timber would have been sold, and for what price. That sum must then be  compared with the amount received for the improperly harvested green timber  in the blowdown sale. Only in that manner will the Tribes receive the  "difference between the actual proceeds and the greatest appropriate  revenue which should have been obtained," Mitchell, 664 F.2d at 271, which  is the measure of damages applicable here.

III

32
Apart from the improper harvest of green timber, the Tribes contend that  they were not paid for a large amount of the damaged timber that was  harvested during the blowdown sale. That aspect of the Tribes' claim refers  to timber that the Tribes assert was properly removed under the contract  but not counted in the BIA records on which the payment to the Tribes was  based.


33
The Court of Federal Claims found that the Tribes had "raised some issues  and inconsistencies with regard to defendant's management and the  procedures it used to account for the Tribes' timber," but it declined to  award the Tribes any damages for the accounting irregularities because the  court found that the Tribes "did not prove a substantial amount of timber  was missing" and because the court concluded that it was unlikely that  significant numbers of logs would have been removed from the site  undetected. The court therefore concluded that there was insufficient  evidence "that logs were lost or stolen as a result of the BIA's handling  of the 1990 blowdown sale."


34
To the extent the court considered that the Tribes were required to prove  that "a substantial amount of timber was missing" before they could be  awarded damages, the court was mistaken. There is no threshold minimum of  loss that the Tribes were required to prove before being entitled to an  award. Even if the damages are minimal, the Tribes are entitled to recover  whatever damages they can prove.


35
The Tribes also contend that they should not bear the burden of proving  losses that cannot be established with certainty because of the BIA's  failure to keep adequate records of the timber that was removed during the  blowdown sale. Under trust law principles, if a trustee fails to keep  proper accounts, "all doubts will be resolved against him and not in his  favor." William F. Fratcher, Scott on Trusts, § 172 (4th ed. 1987); see  also Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 256, 265 (1946) ("[t]he  most elementary conceptions of justice and public policy require that the  wrongdoer shall bear the risk of the uncertainty which his own wrong has  created."). More generally, as the Second Circuit stated in Donovan v.  Bierwirth, 754 F.2d at 1058 (quoting Nedd v. United Mine Workers, 556 F.2d  190, 210 (3d Cir. 1977), "once the beneficiaries have established their prima facie case by demonstrating the trustees' breach of fiduciary duty,  `the burden of explanation or justification . . . shifts to the  fiduciaries.'"


36
The BIA had complete control over the accounts and accounting procedures  used in the blowdown sale, and the Tribes introduced evidence that the  accounting procedures followed by the BIA during the sale were seriously  flawed. For example, although BIA policy required check-scaling five  percent of all loads, in the 1990 sale the BIA check-scaled less than one  percent of the loads-a rate described by the BIA's own expert as "totally  unacceptable." In addition to that evidence regarding the overall problems  with the BIA's accounting procedures, the Tribes introduced specific  evidence with respect to three particular items that was sufficient to  establish a prima facie case of loss. With respect to those three items,  the Tribes' evidence was strong enough to call for a specific response from  the government and specific findings by the trial court, rather than a  general conclusion that it was unlikely that a significant number of logs  would have been removed from the harvest area undetected.


37
First, the Tribes identified stumps corresponding to 273 noble fir logs  that were not identified on any of the truck log tickets. The trial court  did not address the Tribes' evidence on that aspect of their claim, and the  government in its brief in this court has not directed our attention to  evidence indicating that the Tribes' claim is unfounded. On remand, the  trial court should specifically address the evidence pertaining to those  logs, determine whether they were taken and, if so, whether the Tribes were  paid for them.


38
Second, the Tribes complained that they received no payment for  merchantable timber found on up to 125 truck loads that were removed during  the blowdown sale. The BIA wrote a letter to the logging contractor  requesting payment for 121 of those loads, but during oral argument of this  appeal the government was unable to point to any evidence providing  satisfactory assurance that the Tribes were paid for those loads. The court  on remand should determine the status of the claim for payment for those  loads.


39
Third, the Tribes introduced evidence that, of the nearly 900 cull loads  removed during the harvest, 12 were scaled using both scan-scaling and  rollout-scaling. On eight of the 12 dual-scaled loads, according to the  Tribes' evidence, significant amounts of merchantable timber were detected  for which the Tribes were not paid. While 12 loads is a relatively small  sample, the size of the sample was the result of BIA's sampling procedure.  Again, the government has not directed us to evidence indicating that the  Tribes' evidence regarding the 12 dual-scaled loads is unreliable, and the  Tribes' evidence is sufficient to call for a specific response from the  government and specific findings by the trial court. On remand, the court  must determine whether the 12 dual-scaled loads are a reliable indicator of  a systemic undervaluation of the cull loads and whether it is reasonable to  assume that they were representative of all the cull loads taken out during  the harvest. In any event, if the court determines that the roll-out scale  accurately determined the amount of lumber in the 12 dual-scaled loads and  that the Tribes were not paid in accordance with that determination, the  court must at least award the Tribes damages for those loads.


40
In addition to the evidence regarding the 12 dual-scaled loads, the Tribes  introduced evidence that the average gross volume of timber on each of the  cull loads was approximately 8000 board feet per load, but that the Tribes  were paid for only 5000 board feet per cull load. A BIA expert conceded  that the amount of cull was underestimated by at least 1270 board feet per  load. In light of that evidence, the court on remand must determine whether  there was an underpayment for the cull loads and, if so, how much the  Tribes are entitled to recover on that account.


41
We recognize the difficulties involved in trying to reconstruct the events  that occurred during the harvest 11 years ago when the records are  incomplete and may be unreliable in some respects. In particular, we  recognize the problems presented by relying on stump cruises to determine  the amount of timber harvested from the reservation during the blowdown  sale. However, to the extent that the difficulty in determining the amount  of loss suffered by the Tribes is attributable to improper accounting  procedures followed by the BIA, the consequences of those difficulties  should not be visited upon the Tribes. And we are satisfied that,  notwithstanding the difficulties of proof, the Tribes have offered  sufficient evidence on the three items identified above to require specific  response from the government and specific findings by the court as to each  item.

IV

42
The Tribes' final contention relates to its claim of timber trespass. The  applicable regulation provides that in the event of timber trespass,  damages will be awarded in accordance with the law of the state in which  the trespass is committed, see 25 C.F.R. § 163.22(c), and the Bureau of  Indian Affairs Manual for Forestry provides that it is the BIA's policy "to  insure that unauthorized timber losses are expeditiously investigated,  reported, payment demanded, and just compensation made to the Indian  owners." 53 BIAM § 7.1. The Tribes sought damages from the United States on  the ground that the BIA had not complied with its duty to obtain  compensation for timber trespass pursuant to the regulation and the  contract (which provided for double damages for losses due to timber  trespass).


43
The Court of Federal Claims understood the Tribes' argument for damages  against the United States to be based on an Oregon statute that permitted  treble damages in the event of willful misconduct. The court therefore  construed the Tribes' claim to require proof of willful misconduct by the  United States, see Or. Rev. Stat. § 105.810. Based on that understanding,  the court dismissed the timber trespass claim on the ground that willful  misconduct had not been shown. In fact, the Tribes did not seek recovery  under the treble damages statute, but instead sought double damages under  the contract and the Oregon statute applicable to unintentional trespass,  Or. Rev. Stat. § 105.815. The Tribes are therefore entitled to have the  court reconsider their timber trespass claim.


44
On remand, the court should determine whether the BIA breached its duty to  prevent timber trespass and, if so, how much timber was taken that was not  designated for harvest under the logging contract. For that timber, the  Tribes should receive double damages, which is the measure specified in the  Oregon unintentional timber trespass statute.

V

45
To summarize, we vacate the judgment of the Court of Federal Claims and  remand for determination of damages. The Court of Federal Claims should  determine the following items in a manner consistent with this opinion: (1)  the amount that the Tribes would have earned from the sale of the green  timber that was improperly included in the blowdown sale; (2) the amount of  timber, if any, that was harvested under the logging contract but is  missing from the BIA records and did not result in payment to the Tribes;  and (3) the amount of timber that was harvested in trespass, if any, and  whether the BIA breached its duty to the Tribes by failing to prevent that  trespass. Damages should be awarded to the Tribes based on these  determinations.


46
VACATED and REMANDED.

