             In the United States Court of Federal Claims
                                        No. 16-1001C
                                     (Filed: July 2, 2020)

                                                  )   Keywords: Motion for Summary
 SENECA SAWMILL COMPANY,                          )   Judgment; Breach of Contract;
                                                  )   Environmental Assessment; Supplemental
                       Plaintiff,                 )   Environmental Assessment; Timber
                                                  )   Sale Contract; Res Judicata; Termination
        v.                                        )   Provision; Mitigation of Damages;
                                                  )   Compliance with Injunction.
 THE UNITED STATES OF AMERICA,                    )
                                                  )
                       Defendant.                 )
                                                  )
                                                  )
                                                  )

Michael E. Haglund and Julie E. Weis, Haglund Kelley LLP, Portland, OR, for Plaintiff.

Daniel B. Volk, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, Washington, DC, for Defendant, with whom were Elizabeth M. Hosford, Assistant
Director, Robert E. Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney General.
Benjamin Hartman, Office of the General Counsel, United States Department of Agriculture,
Portland, OR, Of Counsel, for Defendant.

                                    OPINION AND ORDER

KAPLAN, Judge.

         Plaintiff, the Seneca Sawmill Company (“Seneca”), brings this action seeking damages
for breach of a timber sale contract it entered with the United States Forest Service. The timber
sales were to be undertaken in connection with the Trapper Project, a landscape management
effort in the Willamette National Forest in Oregon. The project was authorized following a 2003
environmental assessment (“2003 EA”) which found it would have no significant environmental
impact.

       The alleged breach of the timber sale contract occurred in the wake of a successful suit
environmental groups brought in 2010 alleging that—given new information and changed
circumstances—the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq.,
required the 2003 environmental assessment to be revisited. See Cascadia Wildlands v. U.S.
Forest Serv., 791 F. Supp. 2d 979 (D. Or. 2011). The district court ordered the timber sale
enjoined pending the preparation of a supplemental environmental assessment (“EA”) and
Decision Notice that addressed two issues: 1) the effect of the harvesting of timber on the
northern spotted owl and its habitat, and 2) whether new information called into question the
continued learning value of the project.

         In response to the injunction, the Forest Service conducted new environmental surveys
and prepared a revised EA and Decision Notice. The revised assessment addressed not only the
issues that had been the subject of the district court’s order; it also identified additional obstacles
to the timber harvest arising out of, among other things, the presence of red tree vole nests.
Based on the results of that revised assessment, the Forest Service removed all but twenty-seven
of the approximately 150 harvestable acres that were the subject of the contract and invoked its
authority under the contract to partially terminate it to comply with a court order.

        Seneca alleges that the Forest Service breached the timber sale contract when it issued a
new EA rather than a supplemental one limited to the issues identified in the court order.
According to Seneca, the Forest Service’s actions were not justified by the contractual provision
authorizing terminations to comply with a court order. In addition, it argues, the Forest Service
violated the duty of good faith and fair dealing implied in the contract by not limiting its
response to the court order to the specific deficiencies the district court identified.

        The government has moved for summary judgment. It argues that because Seneca was an
intervenor in Cascadia Wildlands, res judicata precludes it from arguing that the Forest Service
went further than necessary to comply with the district court’s order. Second, the government
contends that Seneca’s interpretation of the contract’s termination provision is erroneous. It
argues that Seneca’s good faith and fair dealing claim—which posits that the Forest Service had
an obligation to attempt to minimize injury to Seneca in responding to the district court order—is
without merit as a matter of law. The government further argues Seneca’s breach claim has been
waived because it actually performed under the modified contract. Finally, in the event that the
Court does not grant summary judgment as to liability, the government moves for summary
judgment regarding a proof of damages issue.

        For the reasons that follow, the government’s motion for summary judgment is denied-in-
part and granted-in-part.

                                          BACKGROUND

       The Origins of the Trapper Project 1

        As noted above, the Forest Service entered the timber sale contract at issue in this case as
part of its implementation of the Trapper Project. That Project was a product of the Blue River
Landscape Strategy (“BRLS”) which the Forest Service initiated in 1998 pursuant to the

1
  The Court’s opinion on the government’s motion to dismiss in this case contains a more
thorough recitation of the facts surrounding the formation of the contract. See Seneca Sawmill
Co. v. United States, 130 Fed. Cl. 774 (2017). The facts in this section are based on the
appendices to the government’s motion for summary judgment and the plaintiff’s response.
Unless specifically noted, the facts set forth are not in dispute.




                                                   2
Northwest Forest Plan (“NWFP”) for the Central Cascades Adaptive Management Area. Def.’s
Summ. J. App. (“Def.’s App.”) at 8–9, 15, 1005, ECF Nos. 48, 48-5. The Strategy involved
experimental timber harvesting and other measures intended to replicate the results of wildfires
for study by the Forest Service. Id. at 9. The Project involved, among other things, “using timber
harvesting techniques, prescribed fire and snag creation methods to approximate stand structures
resulting from historic high severity, stand-replacement fires and partial-stand replacement fires
on 155 acres.” Id. at 12.

        In accordance with section 7 of the Endangered Species Act, the Forest Service
formally consulted with the U.S. Fish and Wildlife Service (“FWS”) concerning the
Project. The FWS issued a Biological Opinion in September 1998 that found that the
project was “not likely to jeopardize the continued existence of the spotted owl or result
in the destruction or adverse modification of spotted owl critical habitat.” Id. at 70.

         In May of 2003, relying on this Opinion, among other things, the Forest Service
issued an EA and a Decision Notice and Finding of No Significant Impact for the Trapper
Project (“2003 FONSI”). Id. at 177–96. The district ranger concluded that the project was
“not a major Federal action that would significantly (40 CFR 1508.27) affect the quality
of the human environment (40 CFR 1508.14).” Id. at 194. Citing the FWS Opinion, the
district ranger determined that the project “may effect, but [was] not likely to adversely
affect” the northern spotted owl—a determination that served as partial justification for
the Trapper Project without preparing an environmental impact statement. Id. at 192; see
also id. at 194–95 (reporting under the heading “Finding of No Significant Impact” that
“Biological Evaluations . . . for . . . Threatened . . . species . . . indicated that the proposed
project will have no significant effects or adverse impacts to any species or their
habitats”).

        The Timber Sale Contract

        The Forest Service conducted an auction on October 14, 2003 and awarded the
Trapper Timber Sale Contract No. 000533 to Seneca on October 23, 2003. Id. at 222. The
contract granted Seneca the right to harvest timber, primarily from mature Douglas fir
trees of 140 years in age, over an area approximately 149 or 155 acres in size. Id. at 162–
72; 178. 2

        The contract contains a number of provisions that afford the Forest Service the
right to suspend the contract or partially terminate it in the event that environmental
issues arise during contract performance that affect its continued viability. The provision
relevant to this case is CT8.24, entitled “Termination.” Id. at 331, ECF No. 48-1. It states

2
  It is unclear from the record whether 149 or 155 acres were made available for harvest.
Compare Def.’s App. at 178 (2003 Decision Notice) (stating that the Trapper Project
encompasses 155 acres) with id. at 181 (2003 Decision Notice) (table identifying 149 total acres
for “timber harvest, prescribed fire, and snag creation techniques to approximate the structures
that resulted from historic stand-replacing and partial stand-replacing fires”). The existence of
this ambiguity is immaterial to the issues before the Court on the government’s motion.


                                                    3
in pertinent part that the Chief of the Forest Service may, by written notice, terminate the
contract in whole or in part:

       (a) To comply with a court order, regardless of whether this timber sale is named
       in such an order, upon determination that the order would be applicable to the
       conditions existing on this timber sale or

       (b) upon a determination by the Chief that the continuation of all or part of this
       contract would:

               (i) Cause serious environmental degradation or resource damage;

               (ii) Be significantly inconsistent with land management plans adopted or
               revised in accordance with Section 6 of the Forest and Rangeland
               Renewable Resources Planning Act of 1974, as amended;

               (iii) Cause serious damage to cultural resources pursuant to BT6.24;

               (iv) Cause serious damage to cave resources pursuant to BT6.26; or

               (v) Adversely affect species listed as threatened or endangered under the
               Endangered Species Act, 16 USC 1531, et seq., or a sensitive specifies
               identified by the Regional Forester pursuant to BT6.25.

Id. (hereinafter “provision CT8.24” or “CT8.24”).

        The contract also specifies the remedies available to Seneca where the Forest
Service exercises its rights to terminate under CT8.24. As pertinent to this case, it states
that “[c]ompensation for termination under paragraph (a) [to comply with a court order]
shall be calculated pursuant to CT9.53.” That section states in turn as follows:

       CT9.53 — SETTLEMENT FOR ADMINISTRATIVE APPEAL (07/2001)

       In the event of termination of this contract, in whole or in part, by the Chief as a
       result of an administrative appeal or litigation of the decision to sell timber
       included in this contract or pursuant to CT8.24, paragraph (a), Purchaser agrees
       that its sole and exclusive remedy shall be reimbursement for Out-of-Pocket
       Expenses, as defined by BT6.02. Purchaser agrees to provide receipts or other
       documentation to Contracting Officer that clearly identify and verify actual
       expenditures.

       In the event of modification by Contracting Officer or partial termination, changes
       to the contract shall be limited to those determined by Contracting Officer to be
       necessary for correction of the deficiencies raised by the appeal or lawsuit.
       Changes to the contract shall be limited to requirements with which Purchaser can
       reasonably comply.




                                                  4
Id. at 335 (hereinafter “provision CT9.53” or “CT9.53”). 3

       Intervening Developments

         Although the contract was awarded in 2003, Seneca did not attempt to begin performance
for some time thereafter. In addition, in accordance with CT9.110, Seneca’s right to perform
under the contract was suspended for brief periods of time between 2005 and 2007 because of
litigation. See id. at 334, 1183, ECF No. 48-6.

         In the meantime, opposition to the timber harvest grew in the community surrounding the
Trapper area. See, e.g., id. at 484–85, ECF No. 48-2 (local newspaper article entitled “Delay
revives logging debate” published August 24, 2010). In May of 2010, three scientists who had
been involved with the Andrews Experimental Forest and with the BRLS submitted comments to
the Willamette Forest Supervisor discussing community concerns (“Spies letter”). Id. at 470.
They opined that the passage of time had revealed that the “value of the anticipated lessons from
going forward with logging of the Trapper Timber Sale is very low relative to what was
anticipated when the sale and associated monitoring plans were developed in the 1990s.” Id.
They observed that, in their view, “pushing forward with the Trapper Timber Sale may undercut
efforts to undertake new discussions with the community about their future engagement with
Willamette National Forest lands,” and that “a positive atmosphere for those discussions has
greater value than moving forward with a highly contentious timber sale.” Id. Therefore, they
stated, they were not opposed to dropping the sale. Id.

       Two months later, in July of 2010, Seneca contacted the Forest Service to begin
performance under the contract. See id. at 472. A pre-work meeting was held, after which the
Forest Service conducted a review of “new information” concerning the presence of red tree
voles and northern spotted owls in the Trapper Project area. Id.4


3
  CT8.24 also cross references CT9.51 and CT9.52, which specify the compensation due for
termination under paragraph CT8.24(b). It states that compensation under CT8.24(b)(i) through
(iv) is calculated pursuant to CT9.52, and that compensation for termination under paragraph
(b)(v) is calculated pursuant to CT9.51. Def.’s App. at 331. Like the remedy for terminations to
comply with a court order, the remedy for termination under (b)(v) (to protect endangered or
sensitive species), set forth at CT9.51, consists only of out-of-pocket expenses. On the other
hand, compensation for terminations pursuant to (b)(i) through (b)(iv) also includes “[t]he
difference between current contract rates for the remaining uncut volume and the rates paid for
comparable timber on the same National Forest during the preceding 6-month period multiplied
by the remaining uncut volume.” Id. at 334.
4
  The northern spotted owl is a threatened species under the Endangered Species Act, 50 C.F.R.
§ 17.11(h). See Def.’s App. at 68–70. Red tree voles are “survey and manage species” that are
identified in the NWFP, id. at 1007, and are “an important food source for the threatened
northern spotted owl,” id. at 345.




                                                5
        In a review dated July 28, 2010, a Forest Wildlife Biologist noted that the presence of red
tree vole nests had been reported within areas covered by the Trapper timber sale since the
preparation of the 2003 FONSI. Id. However, he explained, under the 2001 Survey and
Management standards and guidelines in effect at the time of the 2003 EA, the Forest Service
was not obligated to conduct additional surveys for red tree voles and also was not required “to
apply further management to [red tree voles] in units that have been sold.” Id. at 473. At the
same time, the Biologist noted, an additional pair of northern spotted owls had been found within
the sale area and he recommended—in light of intervening litigation—that the Forest Service
“consider” this information to “decide whether or not to reinitiate consultation” with the FWS.
See id. at 478.

        Soon thereafter, the Forest Service in fact did reinitiate consultation with the FWS
regarding the effect of the Trapper timber sale on the northern spotted owl. Id. at 479. It
suspended sale operations on July 29, 2010 in accordance with BT6.25 (entitled “site specific
protection measures for threatened, endangered and sensitive species” (capitalization altered)).
See id. at 307, 481. On August 30, it issued a “Biological Assessment for Reinitiation of
Consultation for the Northern Spotted Owl.” Id. at 488, ECF No. 48-3. The Assessment reported
that “the removal of suitable habitat in the Trapper project may affect and is likely to adversely
affect this northern spotted owl pair.” Id. at 511. It also noted, however, that “[t]he activities of
the proposed action comply with the Record of Decision and the Standards and Guidelines of the
[NWFP] . . . and the Land and Resource Management Plan of the Willamette National Forest.”
Id. at 493.

        Thereafter, a Forest Wildlife Biologist reviewed a December 10, 2010 “Reinitiation of
the Biological Opinion regarding the Effects of the Trapper Timber Sale proposed by the
Willamette National Forest on the Northern Spotted Owl” 5 to determine whether the Forest
Service was legally required to conduct supplemental NEPA analysis. 6 Id. at 582. The Wildlife
Biologist found that there were no substantial changes in the proposed action. Id. at 582–83. Nor
did he find significant new circumstances relevant to the impact of the timber harvest on the
northern spotted owl beyond what had already been considered in the original analysis of the
Trapper sale that was reflected in the 2003 FONSI. Id. With respect to red tree voles, the
Biologist agreed that the Trapper sale had met the requirements of the 2001 Survey and Manage
Record of Decision and Standards and Guidelines and that no further action was required. Id.
at 585.

        Based on the review and formal consultation, the Willamette Forest Supervisor concluded
“that no additional NEPA analysis is needed for the Trapper Timber harvest treatments” because
the project remained unchanged, and because “the estimated effects to owls and red tree voles

5
    This document does not appear to be included in the record before the Court.
6
  This document explains that “NEPA requires an agency to prepare a supplemental NEPA
analysis when ‘[t]he agency makes substantial changes in the proposed action that are relevant to
environmental concerns; or . . . [t]here are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed actions or its impacts.’ 40 C.F.R.
§ 1502.9(c)(1).” Def.’s App. at 582.


                                                  6
based on the 2010 analysis are of the same magnitude as determined in the original project
analysis.” Id. at 585.

        In December of 2010, the Forest Supervisor decided to remove approximately six acres
from Seneca’s harvestable acreage based on the December 10, 2010 FWS Biological Opinion.
Id. at 586–87. The contract was modified accordingly. Id. at 587. Logging operations were
otherwise allowed to continue. Id.

       The Cascadia Wildlands Litigation

        In the meantime, in October of 2010, two environmental advocacy groups filed a
complaint in the United States District Court for the District of Oregon alleging violations of
NEPA and the Administrative Procedure Act (“APA”), and seeking to enjoin timber harvesting
pursuant to the Trapper timber sale. Id. at 564. The plaintiffs claimed that the Forest Service
violated NEPA “by failing to prepare a new or supplemental environmental analysis to address
changed circumstances and new information relevant to the Trapper timber sale.” Id. at 565; see
40 C.F.R. § 1502.9(c)(1)(ii) (requiring the supplementation of environmental assessments where
“[t]here are significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts”). 7 Specifically, according to the plaintiffs, the
“new information” concerned the effect of timber harvesting on both the northern spotted owl
and the red tree vole. Id. at 572–78. The government (along with Seneca, as intervenor) defended
the Forest Service’s determination that the new information upon which plaintiffs relied was not
significant and therefore did not trigger an obligation for it to supplement its 2003 EA. Id. at 637,
683, 1132.

       On May 24, 2011, the district court granted summary judgment to the plaintiffs. Cascadia
Wildlands, 791 F. Supp. 2d at 994. It found that “new and significant information” had arisen
showing that—contrary to the conclusions expressed in the 2003 FONSI—the Trapper timber
sale was “likely to adversely affect” the northern spotted owl. Id. at 991, ECF No. 48-4.
Therefore, the district court concluded, the Forest Service abused its discretion in “fail[ing] to
prepare a supplemental EA (or [environmental impact statement]).” Id.

        The district court also considered the impact of the Spies letter on the Forest Service’s
obligations, focusing particularly on its statement that the “value of anticipated lessons” from the

7
  NEPA requires governmental agencies to prepare an environmental impact statement for
“major Federal actions significantly affecting the quality of the human environment.” Def.’s
App. at 984 (quoting 42 U.S.C. § 4332(2)(C)). If, as in this case, an agency decides based on an
EA that the project does not have a significant impact on the environment, then it may issue a
FONSI and it is not required to prepare an environmental impact statement. Cascadia Wildlands,
791 F. Supp. 2d at 983–84. As the district court explained, while the issuance of the FONSI
“marks the completion of the NEPA process,” additional action may be required if the agency
makes substantial changes to the proposed action relevant to environmental concerns, or
significant new information arises that will “affect the quality of the environment ‘in a
significant manner or to a significant extent not already considered.’” Id. at 983 (quoting March
v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989)).


                                                 7
Trapper Project was “very low relative to what was anticipated when the sale and associated
monitoring plans were developed in the 1990s.” See id. at 991–94 (quoting the Spies letter,
Def.’s App. at 470). The district court observed that the 2003 EA had “articulate[d] that [the]
Trapper [Project was] designed as a learning/research project.” Id. at 993. The Spies letter
constituted “new information” that “call[ed] into question the learning value of the project” and
that “should be evaluated as part of a supplemental EA.” Id.

       The district court issued an order enjoining the Trapper timber sale “pending the agency’s
preparation of a supplemental EA addressing the new information regarding the Northern
Spotted owl and learning value of the project and a supplemental Decision Notice.” Id. at 994.

       Seneca is Notified of Suspension of Operations

        On June 2, 2011, the contracting officer notified Seneca that logging operations under the
Trapper timber sale were suspended. Def.’s App. at 744. A few weeks later, on June 20, the
Willamette National Forest Supervisor and the contracting officer, among others, met with
Seneca representatives to discuss the actions the Forest Service intended to take to “supplement
the decision and EA (surveys, timeliness, analysis, likely outcomes).” Id. at 745.

        In an email sent the day of the meeting, the Forest Supervisor recorded that Seneca
expressed “surprise” at the Forest Service’s position that “the Judge[’]s decision meant that we’d
need to bring the EA and corresponding decision up to today’s standards.” Id. “Based on their
‘read’ of the decision,” the Supervisor observed, Seneca expected “a quick fix of the two things
the Judge asked us to correct.” Id. The Supervisor noted that he “went over the fact that the
judge[’]s decision requires a supplemental EA and new decision, and thus, this means updating
the surveys and meeting today’s NEPA analysis standards.” Id. He told Seneca’s representatives
“that there was a high probability that additional surveys would result in changes to the sale.” Id.

       Seneca’s Motion for Clarification

         On July 19, 2011, Seneca filed a motion for clarification with the district court. See id.
at 748. In its motion, Seneca observed that, in its view, “the Forest Service [was] unclear as to
the scope of analysis called for on remand.” Id. It further observed that this lack of clarity might
result in the Forest Service undertaking “a lengthy, costly analysis not focused on the
deficiencies identified by the Court.” Id. at 749. Seneca requested that the court clarify two
points: 1) “that the Order does not require the Court-ordered supplemental EA to start from
scratch on issues either not found deficient by the Court or not challenged by plaintiff”; and 2)
“that the Order was not intended to predetermine the outcome of the supplemental NEPA
process”; i.e., that the Court’s reference to a “supplemental Decision Notice . . . should not be
equated with a per se new decision as if Trapper were a new project.” Id. “Clarification is
warranted,” argued Seneca, “because, prior to preparing the supplemental EA ordered by the
Court, the Forest Service is not in a position to discern whether the Trapper Project should be
modified such that a supplemental decision is warranted.” Id.

        The government “t[ook] no position” on Seneca’s motion. Id. at 749. The plaintiffs, on
the other hand, opposed it, arguing that the Forest Service had “no lack of clarity, given that both
this court and the Ninth Circuit have addressed this exact situation at length and have provided



                                                  8
the Forest Service with ample guidance pertaining to its NEPA obligations on remand.” Id.
at 815.

        On October 4, 2011, the district court largely denied Seneca’s motion for clarification. Id.
at 895–98 (district court order on motion for clarification). The court noted that the Forest
Service, which would be responsible for preparing the supplemental EA and Decision Notice,
had “not joined in Seneca’s motion for clarification.” Id. at 896. Therefore, granting Seneca’s
motion “would require [the court] to speculate about whether and what aspects of [the court’s]
order may need clarification” and it also “might be construed as limiting the broad discretion the
Forest Service has in determining the scope of a supplemental EA.” Id. at 896–97. Although the
court agreed that its order “does not predetermine the results of the Forest Service’s analysis,” id.
at 898, it stated that leaving its original Decision Notice unchanged “d[id] not appear to be a
viable option” for the Forest Service because that would mean that the Forest Service would not
have corrected its initial erroneous finding that the Trapper timber sale would have “no
significant impact” on the northern spotted owl. Id. at 897 n.1.

       The Revised Environmental Assessment and Dissolution of the District Court
       Injunction

        On January 5, 2012, representatives from the Forest Service and Seneca met to discuss
the wildlife surveys the agency intended to conduct in connection with its supplemental EA. Id.
at 899. The contracting officer’s meeting notes reflect that the Forest Service advised Seneca
that:

       [D]ue to the amount of Red Tree Vole Nests and sensitive mollusks found
       throughout the sale area, and direction from the courts to redo the NEPA document
       and Decision Notice for the sale, th[e] sale would need to be modified to eliminate
       the acres where the Red Tree Vole and sensitive mollusks were found which would
       reduce the available volume to somewhere around two thirds.

Id.

        On February 11, 2013, the Forest Service issued a notice to the public announcing its
intent to prepare a revised EA for the Trapper Project and soliciting comments. Id. at 900. It
quoted the district court’s order directing that “the Trapper Timber sale is enjoined pending the
agency’s preparation of a supplemental EA addressing the new information regarding the
Northern Spotted owl and learning value of the project and a supplemental Decision Notice.” Id.
The Forest Service explained that the “supplemental EA [would] address new information
regarding the northern spotted owl [and] address the ‘value of learning.’” Id. In addition, it stated
that the EA would “bring the 2003 environmental analysis up to date with current policy and
direction.” Id.

       The Forest Service issued a “Revised Trapper Project Environmental
Assessment” in May of 2014 (“2014 EA”). Id. at 999. The 2014 EA explained that
“[b]ecause 10 years have passed since the original environmental assessment, [the Forest
Service was] completely revising [its] assessment and decision, rather than completing a
supplement.” Id. at 1006. It identified the “[s]pecific points of the court order” as



                                                 9
involving the new information regarding the northern spotted owl and the learning value
of the project. Id. “The supplemental analysis,” it stated, “will include discussion related
to meeting the original intent of the 2003 Trapper Project EA purpose and need and
updating the analysis and project to address current environmental standards and
guidelines.” Id.

        Based on the information obtained in connection with the revised 2014 EA, the
agency stated, it intended to reduce the available timber sale acres to thirty-three acres.
Id. at 1111 (Decision Notice). It specified that approximately six of the acres to be
removed from the sale were eliminated to protect northern spotted owl habitat. Id. at 998.
The Forest Service removed other harvestable acreage to protect axetail slugs, which had
been “identified as a new sensitive species” since 2003. Id. Additionally, the EA reflects
that surveys for red tree voles had identified twenty-three active nests for which
protective buffers were required under the NWFP’s standards and guidelines for survey
and manage species then in effect. Id. at 1007, 1037. In fact, the majority of the acreage
to be removed from the sale (approximately 79.4 acres) was removed to carve out
territory for these nests. Id. at 998.

        On July 12, 2014, the Forest Service signed and issued a revised “Decision Notice
and Finding of No Significant Impact.” Id. at 1111–22. On July 30, 2014, the contracting
officer notified Seneca of the new Decision Notice and that the Forest Service had
“started the required fieldwork to implement . . . the decision.” Id. at 1128. The
contracting officer requested a meeting with Seneca to review the changes under the
revised Decision Notice and discuss contract modification. Id.

        On August 14, 2014, the plaintiffs and the government filed a stipulated motion to
dissolve the district court’s injunction. Id. at 1129–30. Seneca did not respond to the
motion. Id. at 1136. The district court dissolved the injunction the day after the filing of
the stipulated motion. Id.

       Partial Termination and Modification of the Contract

        On September 30, 2014, the Regional Forester requested that, in light of the
results of the revised 2014 EA, the Chief of the Forest Service “partially terminate the
Trapper sale pursuant to contract provision CT8.24 (07/01), paragraph (b)(i), (ii), and
(v).” Id. at 1141. As explained above, those provisions allow termination of the contract
in whole or in part where the Chief determines that its continuation would “[c]ause
serious environmental degradation or resource damage”; “[b]e significantly inconsistent
with land management plans”; or “[a]dversely affect species listed as threatened or
endangered under the Endangered Species Act, 16 USC 1531, et seq., or a sensitive
specifies identified by the Regional Forester pursuant to BT6.25.” Id. at 331.

        The Director of Forest Management responded on behalf of the Chief, denying
the request to terminate and directing the Regional Forester to “attempt to work out [with
Seneca] the terms of a partial cancellation and environmental modification in the form of
a settlement agreement.” Id. at 1143. To that end, on January 21, 2015, the contracting




                                                 10
officer met with a representative of Seneca to present a “proposed [contract] modification
package.” Id. at 1145.

        Ultimately, the parties did not reach agreement concerning the modification of the
contract. Instead, on August 18, 2015, Seneca filed a fourteen-page certified claim with
the contracting officer, declaring that a material breach had occurred when the Forest
Service announced its intent to implement a revised Trapper Project, stating that it would
not perform further under the contract, and asserting entitlement to damages in the
amount of $4,440,369. Id. at 1146. In its claim, Seneca declared that “all of [its]
obligations and [the] Forest Service’s rights under the contract are terminated.” Id. At the
same time, however, Seneca advised the contracting officer that to “mitigate its loss” it
would perform on the revised Trapper Project “if and to the extent that doing so will not
prejudice this claim in any way.” Id.

        On April 8, 2016, the Regional Forester again requested that the Chief of the
Forest Service “partially terminate the Trapper sale pursuant to contract provision CT8.24
(7/01).” Id. at 1170. But this time he requested termination under paragraph (a)—based
on “the changes to the sale required in the court-ordered Revised Trapper Project EA and
[Decision Notice].” Id. The Regional Forester explained that the contracting officer
would complete an environmental “modification to the contract . . . that will allow
harvest of 27 of the original 149 acres in the sale” and that “[t]he modification will be
done in conjunction with the partial termination.” Id. at 1169–70.

        On May 9, 2016, the Acting Director of Forest Management approved the request
to partially terminate the Trapper contract pursuant to provision CT8.24(a) under the
authority delegated to him pursuant to 36 C.F.R. 223.116(b). Id. at 1172. In a letter to
Seneca notifying it of the partial termination, the Acting Director explained the “decision
to terminate the sale [was] the result of changes that the Willamette National Forest . . .
made to the Trapper Project following the district court’s [injunction].” Id. at 1171. The
Acting Director noted that the decision flowed from the issuance of the “Revised Trapper
Project EA on May 19, 2014” and the “new [Decision Notice, which] included
substantial changes to the original Trapper Timber Sale.” Id. The letter notified Seneca
that “[c]ompensation to [it] for this termination will be determined per CT8.24-
Termination (7/01) (a), to be calculated under CT9.53-Settlement for Administrative
Appeal or Litigation (7/01),” and that the contracting officer “has prepared and will
present [Seneca] with a modification to the Trapper Timber Sale contract reflecting the
required changes and partial termination.” Id. The partial termination eliminated harvest
on all but twenty-seven acres. Id.

        Also on May 9, the contracting officer issued his final decision denying Seneca’s
claim of material breach. Id. at 1173. The contracting officer explained that “[p]ertaining
to any partial cancellation and environmental modification of the Trapper Timber sale
offered to [Seneca], as stated in CT9.51 and CT9.53 ‘[Seneca] agrees its sole and
exclusive remedy shall only be Out-of-Pocket expenses.’” Id. at 1187. The contracting
officer determined that the government owed Seneca $141,327.98 in unrecovered out-of-
pocket expenses but was not entitled to the more than four million dollars in damages that
it claimed. Id. The contracting officer found that “the Forest Service complied with [the


                                                11
district court’s injunction in Cascadia Wildlands] and [the judge] was ultimately
satisfied,” and thus “the Forest Service did not breach the contract.” Id. at 1185. “The
contract anticipated and authorized suspensions to perform court-ordered environmental
analysis,” the contracting officer found, and moreover, the “Forest Service . . . applied the
contractually specified remedies for those suspensions.” Id.

       A few days later, on May 12, the contracting officer sent Seneca “the unilateral
modification of the sale which reflects the required changes and partial termination,” of
the contract, which “h[ad] been terminated in part as stated in the May 9, 2016[] letter
from Frank R. Beum, Acting Director of Forest Management.” Id. at 1189. The
contracting officer notified Seneca that, “[a]s stated in the CT9.53- Settlement for
Administrative Appeal or Litigation,” its “sole and exclusive remedy shall be
reimbursement for Out-of-Pocket Expenses,” which the contracting officer calculated as
$147,104.39. Id.; see also id. at 1192–95 (modified contract).

       Seneca Performs Harvesting Operations Consistent with the Modified Contract

        On March 10, 2017, Seneca sent an email to the contracting officer with questions
regarding the “revised contract.” Id. at 1196. The contracting officer responded by a letter dated
May 3, 2017. Id. at 1197. He requested that Seneca submit an updated General Plan of
Operations if it, in fact, “plan[ned] to operate the Trapper Timber Sale contract.” Id. The
contracting officer informed Seneca that the Forest Service “is not implicitly accepting Seneca’s
offer to mitigate its damages,” that it “maintains that the contract remains in effect” and that it
“disagree[d]” with Seneca’s assertion “that the contract has been breached.” Id. at 1197 (internal
punctuation omitted).

        Seneca responded by letter of May 5. Id. at 1200. It advised the contracting officer that
Seneca intended to “operate” the portion of the Trapper sale that was within the revised project
area. Id. At the same time, it acknowledged “that the parties have a difference of opinion as to
whether the Trapper Contract is in effect versus breached.” Id. According to Seneca, it and the
Forest Service were “basically agreeing to disagree while others work to resolve the legal
dispute.” Id. Seneca performed the timber harvest on the twenty-seven acres allowed under the
modified contract during the normal operating seasons in 2017 and 2018. Pl.’s Opp’n to Def.’s
Mot. for Summ. J. (“Pl.’s Resp.”) at 9, ECF No. 56.

       This Action

       Seneca filed its complaint in this court on August 12, 2016. ECF No. 1. On October 14,
2016, the government filed a motion to dismiss for failure to state a claim, ECF No. 6, which the
Court denied on March 29, 2017, ECF No. 15.

       Seneca filed an amended complaint on November 2, 2018. ECF No. 37. A period of
discovery followed after which the government filed the present motion for summary judgment
on July 25, 2019. ECF Nos. 47–49. Seneca filed its opposition to that motion and supporting
appendix on October 4, 2019, ECF No. 56, and the government filed its reply on October 25,
2019, ECF No. 60. Oral argument was held via video conference on April 15, 2020. ECF No. 65.




                                                 12
                                          DISCUSSION

I.     Jurisdiction

        The Tucker Act grants the United States Court of Federal Claims jurisdiction “to render
judgment upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated damages in cases not sounding in tort.” 28
U.S.C. § 1491(a). Further, the Court has “jurisdiction to render judgment upon any claim by or
against, or dispute with, a contractor arising under section 7104(b)(1) of title 41 [i.e., the
Contract Disputes Act].” Id. § 1491(a)(2). The Contracts Disputes Act requires a contractor to
submit a valid claim, meaning “a written demand that includes (1) adequate notice of the basis
and amount of a claim and (2) a request for a final decision.” M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010). Additionally, “the contractor must have
received the contracting officer’s final decision on that claim.” Id. (citing James M. Ellett Constr.
Co. v. United States, 93 F.3d 1537, 1541–42 (Fed. Cir. 1996)). An action in this court under the
Contracts Disputes Act “must be based on the same claim previously presented to and denied by
the contracting officer.” Scott Timber Co. v. United States (Scott Timber I), 333 F.3d 1358, 1365
(Fed. Cir. 2003) (internal quotation marks omitted). This requirement, however, does not
“require rigid adherence to the exact language or structure of the original [Contracts Disputes
Act] claim.” Id.

         The jurisdictional requirements are satisfied in this case. Seneca submitted a written
claim to the contracting officer on August 18, 2015 alleging a material breach of contract. Def.’s
App. at 1146. The claim contained both its basis and amount, and references a cause of action for
material breach of contract that is the same as the one it brings in this court. Id. at 1146–59. The
contracting officer issued a final decision on May 9, 2016. Id. at 1173, 1188. Seneca Sawmill
filed its complaint in this court on August 12, 2016—three months after receiving notice of the
final decision of the contracting officer. ECF No. 1.

II.    The Government’s Motion for Summary Judgment

               Applicable Standards

        The standards for granting summary judgment are well established. Summary judgment
may be granted where there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Rules of the Court of Federal Claims (“RCFC”) 56(a); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material if it “might affect the outcome
of the suit under the governing law.” Anderson, 477 U.S. at 248. An issue is genuine if it “may
reasonably be resolved in favor of either party.” Id. at 250.

       “The moving party bears the burden of establishing the absence of any genuine issue of
material fact,” and all significant doubts regarding factual issues must be resolved in favor of the
party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387,
1390 (Fed. Cir. 1987). The court should act with caution in granting summary judgment and may
deny summary judgment “where there is reason to believe that the better course would be to
proceed to a full trial.” Anderson, 477 U.S. at 255.


                                                 13
               Merits

        In its amended complaint, Seneca contends that the Forest Service “breached its implied
duty to cooperate and not to hinder performance of plaintiff’s timber sale contract” by “go[ing]
beyond addressing the two deficiencies that led to the federal court injunction [and] proceeding
with an environmental assessment that reexamined the Trapper Timber Sale under then current
2013 policy and direction.” 1st Am. Compl. ¶ 13, ECF No. 37. “In addition,” Seneca alleges,
“the Forest Service breached its contractual obligation set out in . . . CT8.24 and CT9.53 not to
modify or terminate a timber sale contract to comply with a court order unless the contracting
officer made a determination that the modification or termination was ‘necessary for correction
of the deficiencies raised by the appeal or lawsuit.’” Id.

        The government seeks summary judgment as to liability for breach of contract on several
grounds. First, it argues that—because Seneca participated in the Cascadia Wildlands litigation
as an intervenor—the doctrines of issue and claim preclusion bar it from arguing that the Forest
Service went further than the district court’s order required when it issued the revised 2014 EA
that resulted in partial termination of the contract. Def.’s Mot. for Summ. J. (“Def.’s Mot.”) at
17, ECF No. 47. Second, it argues that Seneca cannot bring an action for breach of contract in
light of CT8.24, which authorizes the Forest Service to terminate the contract for a number of
reasons, including “to comply with a court order.” Id. at 20. Third, the government contends that
Seneca’s duty of good faith and fair dealing argument lacks merit as a matter of law. Id. at 21;
see also Def.’s Reply in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Reply”) at 7, ECF No. 60.
Finally, and in any event, the government contends, because Seneca performed on the modified
contract it cannot pursue a claim for total breach. Def.’s Mot. at 22.

         For the reasons set forth below, the Court: 1) holds that the government’s res judicata
arguments lack merit; 2) finds that—although neither party has addressed the question—it is
unclear that the Forest Service can rely on CT8.24(a) where, as here, the immediate result of the
court order is not to terminate the contract (in whole or in part), but instead to require the Forest
Service to conduct a new or supplemental EA that may or may not result in termination; 3)
concludes that, in any event, there is a factual dispute regarding whether the environmental
assessment the Forest Service did conduct was more extensive than required to comply with the
court order; 4) observes that even if Seneca ultimately demonstrates that CT8.24(a) did not
justify the partial termination of the contract, the government may be able to rely upon the
doctrine of constructive termination by establishing that it could have invoked any of the grounds
for termination set forth in CT8.24(b); 5) holds that the government is entitled to summary
judgment as to Seneca’s claim based on the duty of good faith and fair dealing; and 6) rejects the
government’s contention that Seneca’s performance on the modified contract precludes it from
bringing a claim for breach.

                        The Government’s Argument that Seneca’s Claims Are Barred by
                        Issue and/or Claim Preclusion

        As noted, the government argues that Seneca’s breach of contract claims are barred by
issue preclusion or, in the alternative, claim preclusion. Def.’s Mot. at 18. Neither argument is
persuasive.



                                                 14
                               Issue Preclusion

        The doctrine of issue preclusion “precludes a party from relitigating an issue actually
decided in a prior case and necessary to the judgment.” Lucky Brand Dungarees, Inc. v. Marcel
Fashions Grp., Inc., 140 S. Ct. 1589, 1594 (2020) (citing Allen v. McCurry, 449 U.S. 90, 94
(1980)); see also New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001)) (explaining that
issue preclusion prevents “successive litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior judgment, whether or not the issue
arises on the same or a different claim”). To establish issue preclusion, a party must show that
“(1) a prior action presents an identical issue; (2) the prior action actually litigated and adjudged
that issue; (3) the judgment in that prior action necessarily required determination of the identical
issue; and (4) the prior action featured full representation of the estopped party.” Stephen
Slesinger, Inc. v. Disney Enterprises, Inc., 702 F.3d 640, 644 (Fed. Cir. 2012) (citing Laguna
Hermosa Corp. v. United States, 671 F.3d 1284, 1288 (Fed. Cir. 2012)).

         These four criteria have not been met in this case because: 1) the issues presented in
Cascadia Wildlands and this case are different; 2) the issues presented here were not actually
litigated and adjudicated in Cascadia Wildlands; and 3) the judgment in that case did not require
determination of the issues before this Court. This is an action for damages based on breach of
contract, not an action under NEPA or the APA. To adjudicate the case, this Court must decide,
among other things: 1) whether the contract itself provided a remedy for the Forest Service’s
partial termination of the Timber sale contract, thereby foreclosing an action for breach of
contract; and 2) whether the implied duty of good faith and fair dealing required the Forest
Service to tailor the actions it took to comply with the district court’s order to reduce to the
greatest extent possible their impact on Seneca’s rights under the contract.

        The district court in Cascadia Wildlands did not address or decide any of these issues
because the only question before it was whether there was new information before the Forest
Service which obligated it under NEPA to revisit the decisions it made on the basis of the 2003
EA. The court answered that question in the affirmative and enjoined the timber sale pending the
Forest Service’s preparation of a supplemental EA and Decision Notice that addressed new
information regarding the northern spotted owl and “the learning value of the project.” Cascadia
Wildlands, 791 F. Supp. 2d at 993. It then dissolved the injunction pursuant to the parties’
stipulation that the revised 2014 EA and Decision Notice reflected compliance with that order.

         The district court had no occasion to address the issue Seneca presses here. That issue is
whether the agency’s revised 2014 EA and Decision Notice were tailored to address only the two
issues that were the subject of the district court’s order or whether the Forest Service violated the
duty of good faith and fair dealing by allegedly expanding its scope. In that regard, the Court is
not persuaded by the government’s argument that the district court effectively decided whether
the agency breached the contract when it ruled on Seneca’s motion for clarification. As described
above, Seneca asked the district court to clarify in advance the parameters of the agency’s
discretion in responding to the court’s direction that it prepare a supplemental EA to address the
two areas of concern the court identified. Specifically, Seneca requested that the district court
clarify that its order “[did] not require the Court-ordered supplemental EA to start from scratch
on issues either not found deficient by the Court or not challenged by plaintiff.” Def.’s App. at
749 (Seneca’s motion for clarification). The court declined to clarify its order as Seneca


                                                  15
requested because the Forest Service itself did not seek clarification and because the court did
not want to issue an order that “might be construed as limiting the broad discretion the Forest
Service has in determining the scope of a supplemental EA.” Id. at 896–97 (district court order
on Seneca’s motion for clarification).

         Neither the motion for clarification nor the district court’s ruling on the motion addressed
the breach of contract issues before this Court, as the government argues. For one thing, the
district court did not address the actions the agency actually took in response to the court order
because Seneca filed its motion before the agency acted. Moreover, the district court had no
occasion after the Forest Service issued its revised 2014 EA to decide whether, in fact, the Forest
Service had taken more than the minimum action required to comply with its order. To the
contrary, it dissolved the injunction based on the parties’ stipulation that the Forest Service had
completed a revised EA to address the court’s injunction and that on July 12, 2014 the agency
issued a Decision Notice authorizing a revised Trapper Project. Id. at 1130. Moreover, Seneca
could not have validly challenged the lifting of the injunction on the grounds that the Forest
Service exceeded the requirements the district court had imposed.

                               Claim Preclusion

        The government’s argument that this suit is barred by claim preclusion is also unavailing.
Claim preclusion forecloses litigation of matters in the second suit that were not but should have
been litigated in the earlier suit. Phillips/May Corp. v. United States, 524 F.3d 1264, 1267 (Fed.
Cir. 2008) (citing 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4402 (2d ed. 2002)). It applies where: “(1) the parties are identical or in
privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is
based on the same set of transactional facts as the first.” Cunningham v. United States, 748 F.3d
1172, 1181 (Fed. Cir. 2014) (citing Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.
Cir. 2003)).

         The doctrine of claim preclusion does not apply here because its underlying premise is
that Seneca could have litigated its breach claims in the district court. But jurisdiction over
breach of contract claims against the United States is vested exclusively in the Court of Federal
Claims where, as here, the plaintiff seeks an award of damages in excess of $10,000. 28 U.S.C.
§ 1346(a)(2). And as the court of appeals observed in Cunningham v. United States, claim
preclusion is inapplicable where a plaintiff is unable to “seek a certain remedy or form of relief
in the first action because of the limitations on the subject matter jurisdiction of the courts or
restrictions on their authority.” Id. at 1179 (quoting Restatement (Second) of Judgments
§ 26(1)(c) (Am. Law Inst. 1982)).

        Further, and in any event, the claims the parties presented to the district court in Cascadia
Wildlands arose under NEPA. Neither the plaintiffs nor the government suggested that the
contract between the Forest Service and Seneca had any bearing on those claims. Claim
preclusion therefore does not apply because—even if the district court could have exercised
jurisdiction—it is doubtful that Seneca, a permissive intervenor, had the right to add a new issue
like breach of contract, which was not raised by the parties in the case before the district court.
7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1921 (3d ed. 2020) (noting that it is up to the discretion of the court whether a permissive


                                                 16
intervenor can raise permissive counterclaims and if “a proposed counterclaim will cause undue
delay or prejudice to the existing parties, intervention should be denied”).

        The government’s reliance on Oregon Natural Resources Council Action v. United States
Forest Service to support its claim preclusion argument is misplaced. 445 F. Supp. 2d 1211, 1220
(D. Or. 2006). In that case, the Forest Service defended the narrow scope of the actions it took on
remand in a NEPA suit on the basis of certain timber sales contracts. Its supplemental EA started
with “the premise that it has already awarded contracts for the harvest of the six timber sales, and
that the purchasers of those contracts have existing legal rights to harvest the timber sales subject
to certain limited authority in the agency to modify or terminate the contracts in defined
circumstances.” Id. at 1219–20. The district court rejected the government’s argument on the
merits, holding that the contracts did not constrain the Forest Service’s discretion to act in
response to the court’s order. In fact, the district court observed, the Forest Service had the
authority under the contracts to terminate them in whole or in part to prevent environmental
damage.

        According to the government, the fact that the court considered the impact of the timber
sales contracts in Oregon Natural Resources Council means that “if Seneca believed that it had a
right—whatever the source—to limit the scope of the Forest Service’s response to the district
court’s order, it needed to present those arguments to the district court.” Def.’s Reply at 5. But in
Oregon Natural Resources Council, the court interpreted the contract for purposes of determining
the Forest Service’s obligations under NEPA, and not, as in this case, to decide whether a
contractor is entitled to damages for its breach. In that case, unlike this one, the contract was
interjected into the litigation by the government to defend the sufficiency of its actions under
NEPA. Because neither party raised the contract as an issue in Cascadia Wildlands, Seneca, as
intervenor, lacked the right to raise it on its own. Oregon Natural Resources Council is therefore
inapposite.

                       The Government’s Argument that the Termination Was Authorized
                       Under the Contract

        The government argues that Seneca cannot bring an action for breach of contract based
on the partial termination because the contract itself contemplates that the Forest Service had the
authority to terminate it and the contract provides specified remedies when that authority is
exercised. See Def.’s Mot. at 19–22. Therefore, according to the government, “[t]o establish a
breach of contract, Seneca would need to establish that neither the termination provision,
CT8.24, nor any other contract provision, covers the circumstances giving rise to its claim.” Id.
at 20.

        The principle of law the government cites is well established. “[A] contractor cannot
maintain a breach claim for which [] contractual relief is available.” Hoel-Steffen Constr. Co. v.
United States, 456 F.2d 760, 768 (Ct. Cl. 1972)); see also Crown Coat Front Co. v. United
States, 386 U.S. 503, 511 (1967). Nonetheless, the Court disagrees that it was Seneca’s burden to
show that none of the provisions in the contract authorized the partial termination. The Forest
Service relied on a particular contractual provision: CT8.24(a). Therefore, as discussed below in
connection with “constructive termination” precedent, if the government wishes to avoid liability
for breach on grounds other than the applicability of CT8.24(a), it is the government’s burden to


                                                 17
show that it could have invoked other provisions of the contract to effect the partial termination.
But its motion for summary judgment does not address the issue at all.

        In addition, summary judgment is inappropriate because the Court is not convinced that
CT8.24(a) was properly invoked. As noted above, CT8.24(a) states in pertinent part that the
Chief of the Forest Service may terminate the contract in whole or in part “[t]o comply with a
court order.” Def.’s App. at 331. In this case, the district court did not order the partial
termination of the contract; it ordered the Forest Service to conduct a supplemental EA to
address new information regarding the presence of an endangered species and the continued
learning value of the Trapper Project. It was the Forest Service that made the decision that partial
termination was required on the basis of the results of the revised 2014 EA.

         As the district court in Cascadia Wildlands recognized when it denied Seneca’s motion
for clarification, “[t]he Forest Service has ‘considerable discretion’ in determining the scope of
its supplemental National Environmental Policy Act (NEPA) analysis.” Id. at 897 (quoting N.W.
Res. Info. Ctr. Inc. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir. 1995)). The
district court expressly declined to restrict the Forest Service in its exercise of that discretion in
the wake of its decision. Although Seneca has not so argued (and neither party has briefed the
question), it is unclear to the Court that CT8.24(a) covers terminations in these circumstances
where, as here, the intervening decisions of the Forest Service and not compliance with a court
order itself is their immediate cause.

        In any event, even if CT8.24 could be read to apply where the court order is not the
immediate cause of the termination of the contract, the Court agrees with Seneca that factual
disputes exist regarding whether the Forest Service prepared the revised EA on which the partial
termination was based for reasons other than—or at least in addition to—bringing the project
into compliance with the district court’s decision. For example, the district court’s order required
the Forest Service to conduct a “supplemental” EA to address the two categories of new
information it specified. The Forest Service decided, however, that “[b]ecause 10 years have
passed since the original environmental assessment,” it would “completely revis[e] [its]
assessment and decision, rather than complet[e] a supplement.” Id. at 1006 (emphasis supplied);
see also id. at 900 (public notice) (stating that in conducted its environmental assessment the
Forest Service intended to “address new information regarding the northern spotted owl, address
the ‘value of learning,’ and bring the 2003 environmental analysis up to date with current policy
and direction” (emphasis supplied)).

       In addition, the record shows that in his September 30, 2014 request to terminate the
contract, the Regional Forester recommended terminating pursuant to provisions other than
CT8.24(a) (to comply with a court order). Specifically, he recommended termination pursuant to
CT8.24(b)(i), (ii), and (v) (based on environmental degradation, compliance with certain land
management plans, and threatened and endangered species, respectively). See id. at 1141. In fact,
he specified the amount of acreage that he believed should be removed from the sale based on
each provision. Id. (table stating that ninety-eight out of the 149 total acres subject to the sale
should be removed pursuant to CT8.24(b)(i) and (ii), and that twenty-four acres should be
removed pursuant to CT8.24(b)(v)).




                                                 18
       For these reasons, the Court agrees with Seneca that the government is not entitled to
summary judgment as to whether termination under CT8.24(a) was justified. It does not agree,
however, with Seneca’s argument that the Forest Service failed to comply with CT9.53, the
provision under which compensation for terminations under CT8.24(a) is calculated.

         Seneca’s argument is based on the second paragraph of CT9.53, which provides that “[i]n
the event of modification by [the] Contracting Officer or partial termination, changes to the
contract shall be limited to those determined by the Contracting Officer to be necessary for
correction of the deficiencies raised by the appeal or lawsuit.” Id. at 335. According to Seneca,
that provision required the contracting officer to independently determine what changes were
required to correct the deficiencies that the district court identified in Cascadia Wildlands. But
here, Seneca observes, the contracting officer made no determination regarding what changes the
court order required. For example, it notes that the contracting officer admitted during his
deposition that he did not assess “whether or not addressing Red Tree Voles was something [the
district court’s] order required” or “whether a particular change to the Trapper Sale contract to a
particular unit was actually required [by the district court] or not.” Pl.’s Resp. at 16.

         Seneca has misinterpreted CT9.53. The “partial termination” to which the cited proviso
refers is effected by the Chief of the Forest Service under CT8.24(a), and the remedy to which
Seneca was entitled as a result of that termination (out-of-pocket expenses) is set forth in the first
paragraph of CT9.53. The second paragraph of CT9.53 tasks the contracting officer with
determining what changes are needed in the language of the contract to implement the Chief’s
partial termination decision under CT8.24(a).

        It is unreasonable to interpret the cited paragraph as requiring the contracting officer to
determine what actions the Forest Service was required to take to comply with the district court’s
order in Cascadia Wildlands. By the time the contracting officer modified the contract here, the
scope of the partial termination had already been determined by the Chief of the Forest Service
exercising his authority under CT8.24(a). See Def.’s App. at 1189 (letter from contracting officer
to Seneca accompanying contract modification) (“Trapper Timber Sale has been terminated in
part as stated in the May 9, 2016, letter from Frank R. Beum, Acting Director of Forest
Management.”). Further, it would be anomalous for a contracting officer to be tasked with
deciding what actions the Forest Service was or was not required to take to comply with the
court order or with NEPA. Those kinds of determinations are the province of the agency’s
program staff, counsel, and other NEPA experts. The contracting officer’s job is to make the
changes to the contract language that are needed to implement those decisions.

        Finally, while the Court is not prepared to conclude as a matter of law that CT8.24(a)
authorized the partial termination the Forest Service effected, neither party has briefed the
question whether, and to what extent, the Forest Service might have instead partially terminated
the contract based on one or more of the contingencies set forth in CT8.24(b), as the Regional
Forester originally recommended. If so, then the government may be able to rely upon the theory
of constructive termination to limit Seneca to the remedies it would be entitled to under those
provisions. See Maxima Corp. v. United States, 847 F.2d 1549, 1553 (Fed. Cir. 1988) (finding of
constructive termination “may be appropriate ‘in situations in which the government has stopped
or curtailed a contractor’s performance for reasons that turn out to be questionable or invalid’”)
(quoting Torncello v. United States, 681 F.2d 756, 759 (Ct. Cl. 1982)); G.C. Casebolt Co. v.


                                                 19
United States, 421 F.2d 710, 712 (Ct. Cl. 1970) (stating that where a contract contains a
termination-for-convenience provision, “a Government directive to end performance of the work
will not be considered a breach but rather a convenience termination—if it could lawfully come
under that clause,” even if the government “wrongly calls it a cancellation, mistakenly deems the
contract illegal, or erroneously thinks that [it] can terminate the work on some other ground”);
John Reiner & Co. v. United States, 325 F.2d 438, 443–44 (Ct. Cl. 1963) (holding that although
the original grounds for terminating the contract were not valid, the contract could have been
cancelled pursuant to the termination for convenience clause and therefore damages would be
limited to those allowable under that provision); Reservation Ranch v. United States, 39 Fed. Cl.
696, 720–21 (1997), aff’d, 217 F.3d 850 (Fed. Cir. 1999) (holding that even had the Forest
Service termination of the timber harvest contract pursuant to provisions related to protecting
threatened or endangered species been inappropriate, cancellation could have been sustained
because there existed two other “independent adequate ground[s]” for termination, namely for
protection of “sensitive species” or “to comply with a court order”).

        For reasons that are not apparent, the government has not invoked constructive
termination as a basis for summary judgment and neither party has discussed it in their
supporting briefs. The applicability of that doctrine is critical to determining whether, in fact,
Seneca’s breach claim is a viable one. In the meantime, for the reasons set forth above, the
government’s motion for summary judgment must be denied to the extent that it is predicated on
the position that the partial termination of the contract was authorized under CT8.24(a).

                       Seneca’s Contention that the Forest Service Breached the Implied
                       Duty of Good Faith and Fair Dealing

        In addition to arguing that the Forest Service lacked grounds to partially terminate the
contract under CT8.24(a), Seneca contends that—in any event—the agency breached its implied
duty of good faith and fair dealing in the course of responding to the court order in Cascadia
Wildlands. Specifically, Seneca alleges that the agency breached the implied duty to cooperate
and not hinder performance of plaintiff’s timber sale contract when it decided “to go beyond
addressing the two deficiencies that led to the federal court injunction by proceeding with an
environmental assessment that re-examined the Trapper Timber Sale under then current 2013
policy and direction.” 1st Am. Compl. ¶ 13. According to Seneca, the implied duty of good faith
and fair dealing obligated the Forest Service “to modify the contract only as necessary to comply
with the terms of the court order.” Pl.’s Resp. at 17. The Court disagrees.

        A duty of good faith and fair dealing is implied in all contracts with the United States. It
“imposes obligations on both contracting parties that include the duty not to interfere with the
other party’s performance and not to act so as to destroy the reasonable expectations of the other
party regarding the fruits of the contract.” Centex Corp. v. United States, 395 F.3d 1283, 1304
(Fed. Cir. 2005) (citing, among others, Restatement (Second) of Contracts § 205 (Am. Law Inst.
1981)). As the court of appeals has observed, the duty “prevents a party’s acts or omissions that,
though not proscribed by the contract expressly, are inconsistent with the contract’s purpose and
deprive the other party of the contemplated value.” Metcalf Constr. Co., Inc. v. United States,
742 F.3d 984, 991 (Fed. Cir. 2014). In fact, “prohibit[ing the government] from interfering with
the plaintiffs’ enjoyment of the benefits contemplated by the contract . . . is among the core



                                                 20
functions served by the implied covenant of good faith and fair dealing.” Centex Corp., 395 F.3d
at 1306.

        In general, “what th[e] duty entails depends in part on what th[e] contract promises (or
disclaims).” Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 830 (Fed. Cir. 2010).
“That is evident,” the court of appeals has explained, “from repeated formulations that capture
the duty’s focus on ‘faithfulness to an agreed common purpose and consistency with the justified
expectations of the other party.’” Metcalf Constr. Co., 395 F.3d at 991 (quoting Restatement
(Second) of Contracts § 205 cmt. a (Am. Law Inst. 1981)).

        As noted, Seneca’s contention here is that the agency violated its duty of good faith and
fair dealing when it employed the Forest Service’s updated NEPA guidance and standards to
determine the timber sale’s environmental consequences, where the court’s order allegedly did
not require it to do so. In effect, according to Seneca, the terms of the timber sale contract
constrained the agency’s exercise of its discretion to assess the ongoing environmental impact of
the Project and to take action as it deemed necessary to address that impact.

        Seneca’s argument puts the contract on a collision course with NEPA, because “[e]ven
after awarding the timber sale contracts, the Forest Service had the obligation to comply fully
with NEPA, including, potentially, uncovering new information and objectively considering in
the course of the remand whether the contract ‘would cause serious environmental degradation,’
requiring its termination.” Or. Nat. Res. Council, 445 F. Supp. 2d at 1220. In fact, “[t]he Ninth
Circuit has made it clear that an agency may not limit its obligations to prepare an environmental
assessment that complies with NEPA by entering into a contract.” Id. (citing Metcalf v. Daley,
214 F.3d 1135, 1139 (9th Cir. 2000)).

        The court of appeals’ decision in Precision Pine is instructive. That case, like this one,
involved timber sale contracts that were interrupted as a result of a court order. In Precision Pine,
the district court ordered a suspension of further timber harvesting under the contracts until the
Forest Service consulted with the FWS about the pertinent land resource management plans, as
required by the Endangered Species Act. 596 F.3d at 822–23. Although the contract authorized
the suspension to comply with a court order, the plaintiffs contended that the actions the Forest
Service took during the court-ordered suspension caused it to be unreasonably prolonged,
thereby violating the implied duty of good faith and fair dealing.

        The court of appeals observed that “[c]ases in which the government has been found to
violate the implied duty of good faith and fair dealing typically involve some variation on the old
bait-and-switch.” Id. at 829. “First,” it observed, “the government enters into a contract that
awards a significant benefit in exchange for consideration.” Id. “Then, the government
eliminates or rescinds that contractual provision or benefit through a subsequent action directed
at the existing contract.” Id.

        The court held that the Forest Service did not breach the implied duty of good faith and
fair dealing in Precision Pine because: 1) there was no evidence that the delays were undertaken
“for the specific purpose of eliminating an express, bargained-for benefit in the contracts”; and
2) the Forest Service “did not reappropriate any ‘benefit’ guaranteed by the contracts, since the
contracts contained no guarantee that the Precision Pine’s performance would proceed


                                                 21
uninterrupted.” Id. at 829–30 (citing Centex Corp., 395 F.3d at 1306). To the contrary, the court
of appeals observed, “the plain language of the contracts state their provisions may be modified,
suspended, or even canceled to comply with the ESA.” Id. at 830–31. “If anything,” therefore,
the contract “expressly contemplate[d] and allow[ed] the Forest Service to interfere with
Precision Pine’s performance.” Id. at 831. The court of appeals concluded that the provisions
governing the contract’s suspension or termination “ma[d]e clear that one ‘benefit’ the parties
did not contemplate, and which Precision Pine is thus not entitled to under the contracts, is the
guarantee of uninterrupted performance.” Id.

         In this case, there is similarly no evidence (or even argument by Seneca) that the Forest
Service specifically targeted Seneca’s benefits by conducting an EA that went beyond the
specific deficiencies the district court identified in Cascadia Wildlands. To the contrary, the
undisputed evidence shows that the Forest Service initially declined in 2010 to revisit the 2003
EA and Decision Notice, that it then defended its decision in the district court, and that it was not
until it was ordered by the court to prepare a supplemental EA that it revisited the determinations
it made in 2003. See Def.’s App. at 585, 677–713.8

         Moreover, Seneca—like Precision Pine—could not have reasonably expected to harvest
all of the acreage in the contract in the event that the agency reasonably concluded that changes
were needed either to comply with a court order or because of new information relevant to the
sale’s environmental impact. To the contrary, the contract’s suspension and termination
provisions were designed to address those contingencies. Therefore, here, as in Precision Pine,
the government did not appropriate a benefit that Seneca could have reasonably contemplated it
would enjoy under the contract.

        There is no merit to Seneca’s contention that the decisions in Zip-O-Log Mills, Inc. v.
United States, 113 Fed. Cl. 24 (2013), and Wetsel-Oviatt Lumber Co. v. United States, 38 Fed.
Cl. 563, 564 (1997), show that the Forest Service may be held liable for a breach “where the
government’s action in response to a court-ordered injunction failed, as here, to comply with its
duty to modify the contract only as necessary to comply with the terms of the court order.” Pl.’s
Resp. at 17. To the contrary, neither case involved a claimed violation of the duty of good faith
and fair dealing or addressed the Forest Service’s liability for allegedly exceeding the terms of a
court order in its modification of a timber sales contract.

        In Zip-O-Log Mills, the court analyzed the issue of how to identify the precise time at
which a timber sale contract was terminated for purposes of calculating compensation under the
contract’s termination clause. 113 Fed. Cl. at 26. A district court had enjoined the sale pending
the preparation of a supplemental EA. The court held that the effective termination date of the
contract was the date that the Forest Service decided not to prepare the supplemental EA because
that decision “had the effect of preventing the possibility of any logging on the affected sales.”

8
  Although the court of appeals has since clarified that Precision Pine’s proof of “specific
targeting” is not generally required to establish a violation of the duty of good faith and fair
dealing, that requirement remains in cases like the present one, where imposition of the duty may
“trench on responsibilities imposed on the contracting agency independent of contracts.” Metcalf
Constr. Co., 742 F.3d at 993.


                                                 22
Id. at 30. In Wetsel-Oviatt Lumber, the court similarly held that two timber sale contracts had
been effectively terminated where the Forest Service suspended portions of these contracts,
deleted timber from the contracts for environmental reasons, and conceded that it did not intend
to ever release the timber to the plaintiff. 38 Fed. Cl. at 567–68, 570.

        As is readily apparent, what was at issue in both of these cases was the implementation of
the contracts’ express termination provisions, not any implied obligation of good faith and fair
dealing. The opinions in those cases have no bearing on Seneca’s claims. Therefore, for the
reasons set forth above, the Court concludes that Seneca cannot rely on the duty of good faith
and fair dealing to challenge the agency’s decision to partially terminate the contract in
compliance with the revised EA it prepared after the court issued its decision in Cascadia
Wildlands.

                        The Government’s Argument that Seneca Waived Its Right to Seek
                        Damages for Breach under the Original Contract by Performing on
                        the Modified Contract

       It is well established that where there has been a material breach of contract the non-
breaching party may choose to either cancel the contract or continue it. Cities Serv. Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976). In particular, the non-breaching party “cannot
continue after a material breach by the other . . . , act as if the contract remains fully in force . . . ,
run up damages, and then go suddenly to court.” N. Helex Co. v. United States, 455 F.2d 546,
551 (Ct. Cl. 1972).

        The government contends that in this case, although Seneca stated in its August 18, 2015
certified claim that the Forest Service was in material breach of the original contract, it opted to
continue performance on the modified contract, thereby waiving its right to bring a suit for
breach of contract. Def.’s Mot. at 22–23 (citing Cities Service Helex, Inc., 543 F.2d at 1314
(“The continued acceptance of benefits under the contract is the most common and clearest case
of election by contract.”)). This argument lacks merit.

        “Waiver is an affirmative defense,” which the breaching party must prove. Westfed
Holdings, Inc. v. United States, 407 F.3d 1352, 1360 (Fed. Cir. 2005) (citing Seaboard Lumber
Co. v. United States, 308 F.3d 1283, 1299 (Fed. Cir. 2002)). And “[w]hen the government knows
of the non-breaching party’s timely reservation of rights in protest to the breach, the acceptance
of [benefits] from the government does not waive the party’s rights arising from the breach.” Id.
(citing N. Helex Co., 455 F.2d at 555); cf. Ling-Temco-Vought, Inc. v. United States, 475
F.2d 630, 637 (Ct. Cl. 1973) (finding waiver where “[n]ot only was performance continued
normally, but no reservation of rights was made known”).

        A reservation of rights may be express or implied. Westfed Holdings, 407 F.3d at 1360.
Here, Seneca expressly reserved its rights and made the Forest Service aware of its position
before the contract was terminated. Specifically, when Seneca filed its certified claim alleging
material breach of contract, it notified the contracting officer that “[t]o mitigate its loss, Seneca
stands ready, willing and able to perform the portion of the Trapper timber sale contract that is
encompassed within the Revised Trapper Project if and to the extent that doing so will not
prejudice this claim in any way.” Def.’s App. at 1146. In addition, before it began performance


                                                    23
on the modified contract some two years later, Seneca advised the Forest Service of its intent to
“operate the Trapper Timber Sale, i.e., that portion of the Trapper Sale within the revised project
area.” Id. at 1200. It further “acknowledge[d] that the parties have a difference of opinion as to
whether the Trapper Contract is in effect versus breached,” but stated that “Seneca and the Forest
Service are basically agreeing to disagree while others work to resolve the legal dispute.” Id. The
undisputed facts show therefore that the Forest Service was aware of Seneca’s reservation of its
rights, even if, as the government notes, it took exception to Seneca’s position. Def.’s Mot. at 23;
see N. Helex, 455 F.2d at 553 (noting that the breaching party’s “assent is not a prerequisite” to a
proper reservation of rights (citing U.C.C. § 1-207 (Am. Law Inst. & Unif. Law Comm’n
1990))).

        The government argues nonetheless that the holding in Northern Helex—that there is no
waiver where a non-breaching party continues to perform while expressly reserving its rights—is
inapplicable to this case. It so argues because of the unique justifications the non-breaching party
offered for its continued performance in Northern Helex. The Court finds the distinctions the
government has identified immaterial.

         Northern Helex involved an alleged failure of the government to make payments under a
helium sales contract. The contractor continued to perform and deliver helium to the government
in part because the properties of helium made it impracticable for it to cease production. On the
other hand, the government notes, it was feasible for Seneca to refrain from harvesting timber
once the material breach occurred. Def.’s Reply at 15 (stating that “the trees were not going to
escape into the atmosphere and be wasted” if Seneca ceased performance). But as the Court of
Claims later clarified in Ling-Temco-Vought, Inc. v. United States, the unique circumstances
found relevant in Northern Helex were not indispensable to the outcome because the decision
“rested, equally, on the significant facts that th[e] contractor had made an express reservation of
its rights when it continued performance.” 475 F.2d at 637 (discussing N. Helex, 455 F.2d at
552–53, 553); see also Precision Pine & Timber, Inc. v. United States, 62 Fed. Cl. 635, 649
(2004) (citing N. Helex, 455 F.2d at 552) (stating that the “most glaring distinction” between
Northern Helex and the case before it was the former’s “emphasis” on it finding that the
“plaintiff’s continued performance . . . was founded on the required reservation”). Further,
Seneca also had good reason for continuing to harvest timber under the modified contract,
notwithstanding the breach. It had an obligation to mitigate its damages. And in light of the
unique characteristics of the timber being sold, the best way to do that was to continue to
perform, notwithstanding that the acreage available under the modified contract was greatly
reduced because of the alleged breach.

       In short, the government’s argument that Seneca waived its rights by performing on the
modified contract lacks merit. The government’s motion for summary judgment on this ground is
therefore denied.

               The Government’s Motion Concerning the Calculation of Damages

        The government asks the Court to grant partial summary judgment regarding the measure
of damages and hold as a matter of law that “Seneca’s method of claiming ‘replacement log
costs,’ based on catalog prices rather than its actual cost data, is inadequate.” Def.’s Mot. at 24.
The Court concludes that it would be premature to determine whether Seneca is entitled to rely


                                                24
upon catalog prices in the context of a motion for summary judgment. For one thing, if the Court
ultimately finds constructive termination of the contract under CT8.24(b), then it will be
unnecessary to decide the issue because Seneca would be entitled only to the damages remedy
provided in the applicable provisions of CT9.51 or CT9.52. In addition, should it be necessary to
reach the question, the Court believes that the propriety of Seneca’s proposed methodology
should be decided on the basis of a full record, including the expert testimony Seneca intends to
present. The government’s motion for partial summary judgment as to calculation of damages is
therefore denied.

                                        CONCLUSION

        The government’s motion for summary judgment is GRANTED as to Seneca’s claim
that the government violated the duty of good faith and fair dealing. It is otherwise DENIED.
The parties shall file a joint proposed pre-trial schedule within thirty days, consistent with
Appendix A to the Rules of the Court of Federal Claims.

       IT IS SO ORDERED.


                                                    s/ Elaine D. Kaplan
                                                    ELAINE D. KAPLAN
                                                    Judge




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