         In the United States Court of Federal Claims
                                     No. 15-152 C

                              (E-Filed: January 29, 2016)

                                         )
BEARD ET AL.,                            )
                                         )
                    Plaintiffs,          )
                                                Forest Service stewardship, breach of
                                         )
                                                contract, contract interpretation, lost
v.                                       )
                                                profits, reasonably foreseeable
                                         )
                                                damages
THE UNITED STATES,                       )
                                         )
                    Defendant.           )
                                         )

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

Steven J. Gillingham and Vincent D. Phillips, United States Department of Justice,
Commercial Litigation Branch, Civil Division, Washington, DC, for defendant.

                                  OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

       Plaintiffs Dennis and Kimberly Beard (“Plaintiffs” or “the Beards”) are the former
owners of Dinkey Creek Inn, a seasonal resort located in the Sierra National Forest and
subject to administration by the United States Forest Service (“Forest Service”).
Plaintiffs operated this resort pursuant to a term special use permit (“permit” or “Permit
Agreement”), which granted the Beards long-term use of the land in exchange for an
annual fee. Plaintiffs allege that the Forest Service violated the terms of the permit by
allowing a logging contractor to harvest timber in a manner that “unduly interfered” with
the “rights and privileges” conferred on plaintiffs by the permit. Plaintiffs seek a wide
array of damages, including lost profits and compensation for aesthetic harm and loss of
timber.
       On June 25, 2015, defendant moved for summary judgment, pursuant to Rule
56(a) of the Rules of the Court of Federal Claims (“RCFC”). Defendant argues that its
conduct did not breach the terms of the permit and was consistent with its statutory duty
to reduce the risk of forest fire by conducting thinning operations and removing
undergrowth. Defendant also argues that even in the event of a breach, it is entitled to
summary judgment because the damages claimed by plaintiffs are speculative. For the
following reasons, the court grants defendant’s motion for summary judgment.
I.     BACKGROUND.

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

       The Multiple Use-Sustained Yield Act of 1960, Pub. L. 86-517, authorizes the
Secretary of Agriculture to establish and administer national forests throughout the
United States “for outdoor recreation, range, timber, watershed, and wildlife and fish
purposes.” 16 U.S.C. § 528. The United States Forest Service is charged with
administering and managing these forests. See, e.g., 16 U.S.C. §§ 551, 551a.
        One of the missions of the Forest Service is “to reduce wildfire risk to
communities, municipal water supplies, and other at-risk Federal land through a
collaborative process of planning, prioritizing, and implementing hazardous fuel
reduction projects.” 16 U.S.C. § 6501(1). Consistent with this stewardship role, and with
its role in managing the supply of timber as set forth in § 528, the Forest Service has the
authority to sell timber by contracting with private timber harvesting companies. 16
U.S.C. § 472a.
        Also, pursuant to the Term Permit Act of 1915, the Forest Service has the
authority to issue permits for the construction and operation of hotels and resorts in
National Forests, for a term not exceeding thirty years. 16 U.S.C. § 497. Forest Service
regulations define a permit as “a special use authorization which provides permission,
without conveying an interest in land, to occupy and use National Forest System land or
facilities for specified purposes, and which is both revocable and terminable.” 36 C.F.R.
§ 251.51 (2013).
       B.     The Permit Agreement Between the Beards and the Forest Service

       In 1981,1 the Forest Service granted the Beards a Term Special Use Permit
covering a 3.68 acre site subject to administration by the Forest Service. The site is
located near Shaver Lake, California, in the Sierra Nevada Forest, and is home to the
seasonal resort known as Dinkey Creek Inn. Term Special Use Permit, Def.’s App. at 1,
June 25, 2015, ECF No. 11-1, (“Permit”); Sec. Am. Compl. ¶ 15, June 7, 2015, ECF No.
10 (“Compl.”).


1
 The original permit was granted in 1981. The permit proffered by the parties is an
updated version of the original permit, signed in 1991.
                                            2
        The Forest Service granted this permit “for the purpose of [c]onstructing,
maintaining, and operating” the following: “A Store for sale of general merchandise, off
sale liquors and campfire-wood-bundles, with lunch counter, Gasoline, Butane and Oil
Facility, Mailbox, Parking Area, ten (10) Rental Cabins[], Managers Residence[], Storage
Building, Public Restrooms, Public Shower and Laundry, Water Storage Tank, enclosed
system Dump Station, Restaurant with beer and wine service.” Permit (prefatory
remarks), Def.’s App. at 1; Compl. ¶ 15; see also http://dinkeycreekinn.com.
       In exchange, plaintiffs agreed to pay an annual fee, which would be adjusted “on a
basis commensurate with the value of use authorized by th[e] permit.” Permit ¶ 2, Def.’s
App. at 1. To this end, the Permit Agreement required plaintiffs to submit financial
statements detailing the costs and revenues from their use of the land. Permit ¶ 2A,
Def.’s App. at 2-7.
        A number of the permit’s clauses impose requirements on plaintiffs. For instance,
clause 5 states that “[t]he permittee shall maintain the improvements and premises to
standards of repair . . . and safety acceptable to the forest officer in charge.” Clause 8
requires the permittee to “take all reasonable precautions to prevent and suppress forest
fires.” Clause 9, similarly, requires the permittee to “exercise diligence in protecting from
damage the land and property of the United States” and to repay the government for any
damage resulting from negligence on the part of permittee. Clause 21 prohibits the
permittee from engaging in invidious discrimination against employees or customers.
Clause 23 imposes on “[t]he holder” of the permit “responsibility [for] inspecting the
site” to prevent and remove “hazardous conditions.” Clause 25 requires “the holder” to
“protect the scenic esthetic values of the area under the permit,” and Clause 26 requires
“the holder” to “take reasonable measures to prevent and discourage vandalism or
disorderly conduct.”
        Other clauses impose obligations on both plaintiffs and the government. For
instance, clause 42, which is entitled “Timber Cutting,” permits the Forest Service to
“sell or otherwise dispose of standing merchantable timber to third parties” provided that
this is done “without undue interference with the operation of the holder.” Clause 58
requires the holder “to permit the free and unrestricted access to and upon the premises at
all times.” However, such access must be for “lawful and proper purposes not
inconsistent with the intent of the permit or with the reasonable exercise and enjoyment
by the holder of the privileges thereof.” Finally, pursuant to clause 66, “the Forest
Service reserves the right to use or permit others to use any part of the permitted area for
any purpose” as long as “such use does not interfere with the rights and privileges hereby
authorized.” The balance and application of these rights, as found in clauses 42, 58, and
66, are subject to dispute in this case.


                                             3
       C.     Development Undertaken in Accordance with the Terms of the Permit

        Clause 37 requires the holder and the Forest Service to jointly prepare “a schedule
for the progressive development of the permitted site and installation of facilities . . . by
December 1, 1992, [setting] forth an itemized priority list of planned improvements and
due date for completion. . . . . All required plans and specifications for site,
improvements, and structures included in the development schedule shall be submitted to
the Forest Service at least [45] days before the construction date stipulated in the
development schedule.” In accordance with clause 37, plaintiffs submitted a site
development plan in 1992. See Def.’s App. at 26 – 27.
       In 1993, the Forest Service approved a site development plan, which among other
things permitted the Beards to construct and operate a restaurant and up to ten chalet
cabins. Id. As plaintiffs points out, “[p]erformance of the duties under this Agreement
required the Beards to make a substantial investment and take a substantial risk.” Compl.
¶ 17. In fact, between 1993 and 2011, the Beards completed the construction of four
cabins. See Beard Decl. at ¶¶ 5 – 6, 10, ECF No. 12.2
      On May 3, 2001, however, plaintiffs sent a letter to Mr. Ray Porter, the District
Ranger, advising that they had abandoned their plans to build a restaurant:
       We would also like to confirm our discussions about any future
       development under our current permit. As we discussed, the restaurant that
       is currently approved for construction will probably never happen. Sales in
       our current cafe are down and there is no apparent need for a full service,
       full size restaurant in the area.
Def.’s App. at 220. In that same letter, the Beards also addressed the matter of the six
chalets that had been approved but not yet constructed:
       As for the Chalets, we explained that although they are full to capacity
       during the months of June, July & August, we currently do not have enough
       of a waiting list during the summer months to justify building additional
       cabins at this time. Our business during the winter months consists
       primarily of weekends, and the cabins are currently renting at a lower fee
       than those in Shaver Lake, probably due to our location. There may be a
       need in the future given the growth in California's population, but not
       currently.”
Id.

2
 The Beard Declaration is attached to plaintiffs’ opposition brief. See Pl.’s Opp’n at 23-
30, July 27, 2015, ECF No. 12.
                                              4
       The parties dispute whether plaintiffs’ plans to build the remaining chalets had
been completely “abandoned,” as the government argues, or merely delayed, as plaintiffs
argue. See Def.’s Mot., ECF No. 11, at 12-13; c.f. Beard Decl. at ¶¶ 5-6, 12, 14, ECF
No. 12. Mr. Porter, the District Ranger who interacted directly with plaintiffs on the
matter, avers the following:
       The Beards did not raise the issue of building new cabins again with me or
       my staff after sending this letter in 2001. I did not receive any further
       requests from the Beards to build new cabins at the site. If they had made a
       request to build new cabins after 2001, the Forest Service would have had
       to reevaluate the request because changes were implemented in the Forest
       plans in 2001 and 2004 that might not allow [the] Beards to construct new
       cabins on the land that they had proposed in the earlier 1990s.
Decl. of Ray Porter, Def.’s App at 216, ECF No. 11-3. Characterizing the Beards’
decision not to build the additional cabins as “a business decision,” Mr. Porter explained
that instead of building the additional cabins, the Beards decided to “focus[] on other
streams of revenue like snowmobile trails and building an RV park.” Id.
        In response, plaintiffs argue that they did not express an intention to abandon
construction of the remaining cabins in their 2001 letter; instead they had noted that
“there may be a need in the future given the growth in California's population.” Beard
Decl. at ¶ 6; Pl.’s Opp’n at 13. Plaintiffs assert that “as a result of the growth in
California’s population, [they] began working on the infrastructure needed to support the
final six (6) chalets authorized under the current permit—the permit issued prior to
2002.” Pl.’s Opp’n at 13. As Mr. Beard points out in his Declaration, “[Ms.] Nancy
Woolsey (retired FS officer in charge of my permit) understood [our intent] to build at
some time in the future as she told me that since we already had installed the water,
septic, and electric services in preparation of the additional chalets, [we] should look into
the portable cabins like they were using at one of the resorts in Huntington Lake.” Beard
Decl. at ¶ 10.
       D.     The 2011 Events Underlying Plaintiffs’ Claims

      The events underlying plaintiffs’ complaint transpired in October and November
2011. Plaintiffs argue that the removal of trees from a portion of the permitted area
impeded their ability to construct three of the cabins that had been approved in 1993,
pursuant to the site development plan.
       On January 24, 2011, the Forest Service issued a solicitation for “Dinkey North
Stewardship.” See Dinkey North Stewardship Solicitation, Def.’s App. at 57 – 108.
Project objectives included removing sawtimber and biomass materials in an effort to
“[r]educe fire severity and restore a fire-resilient forest structure,” “[i]mprove forest
                                              5
health,” and “[e]nhance habitat conditions for sensitive species of plants and wildlife in
the project area.” Id. at 62; see also Def.’s Mot. for Summ. J. at 5, June 25, 2015, ECF
No. 11.

       This solicitation included many requirements, including the following: “So far as
practical, Contractor shall protect roads and other improvements,” including “buildings”
and “below-ground water pipes and storage tanks.” Id. at 87. The Solicitation also
required the Contractor to “make timely restoration of any such improvements damaged
by Contractor’s Operations.” Id.

      In October 2011, the Forest Service entered into a contract with Sierra Forest
Products to remove timber from land that included the area covered by plaintiffs’ permit.
Compl. ¶ 28; see also Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App. at 114.
        Plaintiffs allege that on October 12, 2011, Mr. Kirby Mullen of Sierra Forest
Products informed them that at the earliest, “the logging crew would be removing trees
near the Dinkey Creek Inn area in approximately one (1) week.” Pl.’s Mem. for Forest
Service Claims Dep’t, Def.’s App. at 114. According to plaintiffs, Mr. Mullen assured
them that they would be contacted before beginning the logging operation. Id. But when
plaintiffs arrived at Dinkey Creek Inn on October 16, 2011, they found that 26,074 square
feet (a little over half an acre) of the land covered by the permit had already been “clear
cut” to create a log landing area.3 Id at 116.; see also Beard Decl. at ¶ 21. Plaintiffs
indicate that “approximately 120 merchant[able] trees were taken down” from the land
cleared for the log landing area. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App.
at 116. Plaintiffs add that they had not been provided with any warning. Id. at 114-15;
see also Beard Decl. at ¶ 13.

       Upon further inquiry, plaintiffs learned that Mr. John Martin, a Forest Service
officer, approved the location of the landing area, without contacting plaintiffs, two days
after Mr. Mullen had advised plaintiffs of the impending tree removal. Pl.’s Mem. for FS
Claims Dep’t, Def.’s App. at 115. Mr. Martin later informed plaintiffs that he did not
know that the landing area had been slated for the development of three chalets, under the
terms of the permit. Id; Compl. ¶¶ 30 – 31.

      Three days after the approval of the landing area, plaintiffs visited the site
with Mr. Martin and Mr. Keith Ballard, the Chief Forrester. According to plaintiffs, Mr.


3
  Defendant explains that “[t]ree removal involves more than just felling standing trees;
after the standing timber is felled, it needs to be cut into smaller logs for transport to
mills, and this task is completed on site in an area known as a log landing, which is where
the logging company cut the trees and shredded the other debris.” Def.’s Mot. for Summ.
J. at 5-6.
                                             6
Ballard “was astounded by the lack of communication [by] the forest service personnel
and logging crew with the permittees and the destruction to their permitted land.” Pl.’s
Mem. for FS Claims Dep’t, Def.’s App. at 115. According to Mr. Beard, when Mr.
Ballard viewed the damage first hand, “[h]e appeared to be visibly very upset and stated
that ‘[Mr. Martin] should have known better.’” Beard Decl. at ¶ 22.

        On October 29, 2011, plaintiffs left a voice message for Mr. Martin, requesting an
estimate as to when the logging crew would return to their permitted area to
finish the tree removal. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s App. at
115. Less than two weeks later, Mr. Mullen informed plaintiffs that his company would
be logging in the Dinkey Creek area later that day. Id.
        That afternoon, plaintiffs met Mr. Joel Pelayo, of Joel Pelayo Logging, at Dinkey
Creek. Mr. Pelayo had subcontracted with Sierra Forest Products to assist with the
logging. Id. Plaintiffs showed the location of the septic tank and the gas and water
lines to Mr. Pelayo, who assured them that he would avoid those areas. Id. But when
plaintiffs returned to Dinkey Creek on November 20, 2011, they found a large mountain
of slash piled on the area that had been flagged as the septic tank. Id. at 116.
       On November 23, 2011, plaintiffs received a phone call from Mr. Mullen,
informing them that the lid of the septic tank had collapsed, and that the loader had fallen
into the septic tank. He told plaintiffs that on November 28, 2011, a repair person would
be dispatched to fix the septic tank lid. Id. The septic tank was repaired timely, but the
repair was performed without a county permit, was not inspected and was not approved,
nor were the leach lines inspected for damage. Id.
       E.     Negotiations Between the Beards and the Forest Service

        Plaintiffs maintain that the decision to locate the landing within the permitted area
was a mistake. Plaintiffs assert, and defendant does not dispute, that the Forest Service
failed to inform the logging company about the location of their permitted area. As
support for their claims, plaintiffs rely on the admission by Mr. Martin, a Forest Service
officer, “that he would never have done it had he known that [the cleared area] was part
of [the Beards’] permit (but he also never checked).” Beard Decl. at ¶ 23. Because the
site for the landing was not chosen by necessity, plaintiffs contend that it could have been
located elsewhere without compromising the Forest Service’s stewardship operation.
        It does appear that the parties discussed options for addressing the harm caused to
plaintiffs by the creation of the log landing. According to plaintiffs, upon viewing the
landing site in person, Mr. Ballard, the Forest Supervisor, informed them that he would
notify Mr. Porter, the District Ranger, about the miscommunication. Pl.’s Mem. for
Forest Service Claims Dep’t, Def.’s App. at 115. Subsequently, plaintiffs met with Mr.


                                              7
Porter.4 Mr. Porter told plaintiffs that Mr. Ballard had recommended compensating
plaintiffs “for the loss.” Beard Decl. at ¶ 25. According to plaintiffs, Mr. Porter also
suggested expanding the boundaries of the land covered by the permit “to make
up/substitute for the destroyed section of [plaintiffs’] permit.” Id. Plaintiffs did submit an
application proposing to expand the permitted area, consistent with Mr. Porter’s
suggestion. Id. at ¶ 26. That proposal eventually was dismissed. Id. at ¶ 27.

        Although the Forest Service rejected the proposal to expand the bounds of the
permitted area, it does seem to have made other efforts to address the Beards’ grievances.
On January 25, 2012, the Beards requested that the Forest Service restore vegetation to
the area that had been cleared to make the log landing. See Letter from Ray Porter to the
Beards, April 25, 2012, attached in Def.’s App. at 178, ECF No. 11-3. In a meeting held
on March 12, 2012, the Forest Service agreed to replant the area with approximately 40
trees, 10 of which would be from eight to twelve feet tall and 30 of which would grow
three to four feet tall. Id. The Forest Service also agreed to place rock barriers along the
edge of the road where the landing was located to prevent any access to vehicles. Id.

       The tree planting was completed on May 29, 2012. Def.’s Mot. at 7 (citing Def.’s
App. at 211). But only one of the larger trees that were planted survived. Mr. Beard
explains: “The property remains barren and uninviting. Even if all nine [larger trees] had
survived, it would take no less than 30 years for them to be tall enough to provide any
shade or aesthetic value; there were several one [to] two [foot] tall trees planted, which
will take even longer [to grow].” Beard Decl. at ¶ 28.

        Characterizing the reforestation efforts of the Forest Service as evidence of “good
faith” rather than as mitigation efforts, defendant notes that replanting “was not required
under the [p]ermit.” Def.’s Reply at 7, ECF No. 14. As to the death of many of the
replanted trees, the government observes: “That some trees may not have survived
supports neither a breach nor bad faith finding, especially in an area of the country
experiencing persistent, devastating drought.” Id.

         F.     Procedural History

       On July 27, 2012, the Beards filed an administrative claim with the United States
Department of Agriculture. See Beards Adm. Claim, Def.’s App. at 111-25. The Beards
argued that the decision to create a landing on the permitted area was negligent and a
breach of the permit. The Beards sought, inter alia, lost rent, reasoning that the clear
cutting prevented them from constructing three of the cabins that had been “slated for
future development.” Id. at 119-25.



4
    The precise date of this meeting is unclear.
                                                   8
       On September 2, 2014, the Forest Service denied the Beards’ administrative claim.
In rejecting the claim, the agency noted that the Beards had a pending action in the
District Court for the Eastern District of California, which the Beards had filed on July 2,
2014. Id. at 183-84.
        In the district court action, the Beards asserted negligence and breach of contract
claims against the Forest Service and the logging company. The Beards voluntarily
dismissed their claims against the United States on December 3, 2014, and eventually
settled the tort claims with the logging company for $15,000. The settlement agreement
was executed on January 1, 2015. Id. at 204.
       On February 18, 2015, plaintiffs filed the present action. The Beards alleged that
the harvesting action breached the terms of the permit. The Beards sought lost profits
and an array of other damages, including damages for aesthetic harm, loss of resort
revenue due to aesthetic harm, loss of merchantable timber, loss of esthetic value, and
pre-judgment interest. Plaintiffs added a number of other claims based on tort and
California state law. See Original Complaint, Feb. 18, 2015, ECF No. 1.
       On June 7, 2015, plaintiffs filed a second amended complaint.5 In addition to the
breach of contract claims alleged in the original complaint, plaintiffs argued that the
agency’s actions effected a taking of private property without just compensation, in
violation of the Fifth Amendment of the United States Constitution. Sec. Am. Compl. ¶¶
53-67, 71-74, ECF No. 10.
       On June 25, 2015, defendants filed a motion for summary judgment, which is now
ripe for a ruling. Mot. for Summ. J., ECF No. 11.
II.    APPLICABLE LEGAL STANDARDS

       The Tucker Act confers on the Court of Federal Claims jurisdiction over “any
claim against the United States founded either upon the Constitution . . . or upon any
express or implied contract with the United States . . . in cases not sounding in tort.” 28
U.S.C. § 1491(a)(1). As explained above, plaintiffs press two claims against the Forest
Service: one alleges a breach of contract with the United States, and the other alleges a
taking of private property in violation of the Fifth Amendment of the U.S. Constitution.
Properly understood,6 defendant does not dispute the court’s jurisdiction over these two

5
 Plaintiffs filed a first amended complaint on June 6, 2015, and a second amended
complaint on June 7, 2015. The court cannot distinguish any difference between the two
amended complaints.
6
 Defendant argues that the court lacks jurisdiction to hear plaintiffs’ implied breach of
contract claim on the ground that the government is not actually bound by the implied
                                             9
claims, and the court finds that it does, in fact, have jurisdiction to hear them under the
Tucker Act.
       Rather, defendant, moves for summary judgment. Under RCFC 56(a), the court
“shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” “The
purpose of summary judgment is not to deprive a litigant of a trial, but to avoid an
unnecessary trial when only one outcome can ensue.” Vivid Techs., Inc. v. Am. Sci. &
Eng’g, Inc., 200 F.3d 805, 806 (Fed. Cir. 1999). Accordingly, in considering a motion
for summary judgment, the court must draw all reasonable inferences in favor of the
nonmoving party without weighing the evidence or making credibility determinations.
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
        Mere conclusory allegations are not sufficient to withstand summary judgment, for
a dispute is “genuine” only if there are factual issues that “[might] reasonably be resolved
in favor of either party.” Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968
(Fed. Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
Moreover, a factual dispute is “material” only if it “affect[s] the outcome of the suit” in
light of the substantive law governing the suit. Marriott, 586 F.3d at 968 (quoting
Anderson, 477 U.S. at 250). The party opposing the motion has the burden of proving by
sufficient evidence that a genuine issue of material fact actually exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 324–25 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159
(1970).
        At the summary judgment stage, plaintiffs, as the non-moving party, are not
required to succeed on the merits. Nonetheless, “on an issue for which the moving party
does not have the burden of proof,” the moving party can prevail “by providing evidence
that negates an essential element of the opposing party’s case” or by demonstrating “that
the evidence [presented by plaintiffs] establishes no material issue of fact and that
[plaintiffs] will not be able to prove an essential element of [their] case.” Vivid Techs.,
Inc., 200 F.3d at 807.




duties identified by plaintiff. But, as the court explains in the discussion that follows, a
failure of proof on the part of a plaintiff goes to the merits of an argument, not the court’s
jurisdiction. See, e.g., Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1307 (Fed.
Cir. 2008). Otherwise, defendant does not dispute the court’s jurisdiction to hear
plaintiffs’ breach of contract claims.
                                             10
III.   DISCUSSION

       In the Amended Complaint, plaintiffs offer, in scattershot form, arguments based
on an array of theories, including tort, California state law, implied breach of contract,
express breach of contract, as well as a taking claim under the Fifth Amendment of the
U.S. Constitution.
        As defendant points out in its motion for summary judgment, this court has no
jurisdiction over claims sounding in tort or based on a violation of state law. Mot.
Summ. J. at 19-20; see also 28 U.S.C. § 1491(a)(1) (expressly precluding jurisdiction
over claims sounding in tort); Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988)
(holding that federal contracting is a “uniquely federal interest” and is governed
exclusively by federal law). Additionally, as defendant observes, a breach of rights
voluntarily created under a contract with the United States cannot give rise to a taking
claim. See Mot. for Summ. J. at 20-21 (citing Hughes Commc’n Galaxy, Inc. v. United
States, 271 F.3d 1060, 1070 (Fed. Cir. 2001)). As defendant further observes, plaintiffs
have contractual rights to use the permitted area, but have no property interest in the land
itself, which as part of a national forest, is the property of the United States. Def.’s Mot.
for Summ. J. at 20-21.
       It appears that plaintiffs have belatedly recognized the futility of these claims, as
they elected not to discuss or defend them in their opposition to defendant’s motion for
summary judgment. Accordingly, the court finds that plaintiffs have abandoned these
claims and no further consideration of them is necessary.
       The court now turns to consider plaintiffs’ remaining claim: namely, that
defendant’s conduct breached the terms of the permit by violating “implied reciprocal
duties” as well as duties expressly set forth in the contract.


       A.     Standards for Evaluating Breach of Contract Claims against the
              Government

       “To prevail on a breach-of-contract claim, the plaintiff bears the burden of
proving: (1) the existence of a valid contract between the parties; (2) a duty arising from
the contract; (3) a breach in duty; and (4) damages caused by the breach.” Liberty
Ammunition, Inc. v. United States, 119 Fed. Cl. 368, 388 (2014) (citing San Carlos Irr. &
Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)). “‘Whether a
contract creates a duty is a legal question of contract interpretation,’ and therefore [is]
amenable to summary judgment.” Grand Acadian, Inc. v. United States, 87 Fed. Cl. 193,
198 (2009) (quoting San Carlos, 877 F.2d at 959).


                                              11
       “The remedy for breach of contract is [to award] ‘damages sufficient to place the
injured party in as good a position as it would have been had the breaching party fully
performed.’” Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1373 (Fed.
Cir. 2005) (citing San Carlos Irr. & Drainage Dist. v. United States, 111 F.3d 1557, 1562
(Fed. Cir. 1997)). The injured party, however, may only recover if: “(1) the damages
were reasonably foreseeable; (2) there is a causal connection between damages and the
breach; and (3) the amount of recovery is not speculative.” Id.
        In determining whether a party is in breach of contract, the court applies the
following rules of contract interpretation. “Contract interpretation begins with the
language of the written agreement.” Bell/Heery v. United States, 739 F.3d 1324, 1331
(Fed. Cir. 2014)) (quotations omitted). If the contract language is unambiguous, then it
must be given its plain and ordinary meaning, such as “would be derived from the
contract by a reasonably intelligent person acquainted with the contemporaneous
circumstances.” TEG-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed.
Cir. 2006) (quoting Metric Constrs., Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999)).
In construing the meaning of a contractual provision, the court does not interpret the
disputed term or phrase in isolation, but “construes contract terms in the context of the
entire contract, avoiding any meaning that renders some part of the contract inoperative.”
Pac. Gas & Elec. Co. v. United States, 536 F.3d 1282, 1288 (Fed. Cir. 2008).
       B.     The Court Rejects Plaintiffs’ Argument That the Forrest Service Breached
              “Implied Reciprocal Duties”

        Plaintiffs assert that ¶ 9 of the permit creates an “implied reciprocal duty” on the
part of the Forest Service to exercise diligence in protecting the property, and that ¶ 25,
likewise, creates an “implied reciprocal duty” to protect the aesthetic and scenic value of
the property. Compl. ¶¶ 40-45. Plaintiffs allege that the Forest Service’s decision to
allow “clear cutting” of a portion of the permitted area to create a log landing area
breaches both of these duties. Id. at 45 – 48.
       Clause 9 of the permit states:
       The permittee shall exercise diligence in protecting from damage the land
       and property of the United States covered by and used in connection with
       this permit, and shall pay the United States for any damage resulting from
       negligence or from the violation of the terms of this permit or of any law or
       regulation applicable to the National Forests by the permittee, or by any
       agents or employees of the permittee acting within the scope of their
       agency or employment.
Permit ¶ 9. Clause 25, entitled “esthetics,” states:


                                             12
       The holder shall protect the scenic esthetic values of the area under this
       permit, and the adjacent land, as far as possible with the authorized use,
       during construction, operation, and maintenance of the improvements.
Permit ¶ 25.
       As defendant points out, both clauses impose explicit obligations on “the
holder” (that is, plaintiffs); but neither clause mentions the Forest Service.
Defendant argues that “[t]his court ‘may only find an implied-in-fact contract
when there is no express contract’” covering the same topic. Defendant contends
that an express contract exists on the very subject matter, and that this deprives the
court of “jurisdiction over the Beards’ implied claims.” Def.’s Mot. Summ. J. at
10 – 11 (citation omitted).
        Cautioned by the Federal Circuit about confusing “the distinction between
subject matter jurisdiction and the essential elements of a claim for relief,” the
court finds that defendant erred in framing this as a jurisdictional issue. Engage
Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (citing Arbaugh v.
Y & H Corp., 546 U.S. 500, 503, 511 (2006). For purposes of establishing
jurisdiction, it is sufficient that plaintiff make a non-frivolous allegation. Jan’s
Helicopter, 525 F.3d at 1309 (distinguishing between jurisdiction and the merits in
the context of a takings claim). “The merits of the claim [are] not pertinent to the
jurisdictional inquiry.” Jan’s Helicopter, 525 F.3d at 1307 (discussing United
States v. White Mountain Apache Tribe, 537 U.S. 465 (2003)). To be clear,
jurisdiction is the court’s power to hear a case; jurisdiction “is not defeated . . . by
the possibility that the averments might fail to state a cause of action on which
petitioners could actually recover.” Do–Well Mach. Shop, Inc. v. United States,
870 F.2d 637, 639 (Fed. Cir. 1989) (quoting Bell v. Hood, 327 U.S. 678, 682
(1989)).
        It is uncontroverted that a valid contract exists between plaintiffs and the
Forest Service. Thus, the issue before the court is not whether the court has
jurisdiction over these claims but whether the contract actually includes the
implied duties identified by plaintiffs. This is not a jurisdictional question but a
matter of contract interpretation, that is, a legal question rather than a factual one.
The cases cited by defendant in support of the proposition that an implied contract
cannot exist when an express contract already covers the same subject matter do
not apply here. But similar principles of contract interpretation do support
defendant’s position.
       As plaintiffs concede, the actual language of clauses 9 and 25 impose duties
on plaintiffs, not the government. See Compl. ¶ 40 (“Section 9 of the Permit

                                              13
Agreement requires the Beards to exercise diligence in protecting the National
Forest land”); Compl. ¶ 43 (“Section 25 of the Permit Agreement requires the
Beards to protect the aesthetic and scenic value of the area under the Permit
Agreement”). Specifically, clause 9 provides that “the permittee shall exercise
diligence in protecting from damage the land,” and clause ¶ 25 states that “the
holder shall protect the scenic and esthetic values of the area.” (emphasis added).
        To infer a reciprocal agreement would be inconsistent with the plain
language of these provisions. Clause 9 clearly defines a duty that is owed by
plaintiffs to the government: “The Permittee shall exercise due diligence in
protecting from damage the land . . . and shall pay the United States for any
damage resulting from negligence or from the violation of the terms of this
permit.” Permit ¶ 9 (emphasis added). Similarly, clause 25 requires “the holder
[to] protect the scenic esthetic values of the area . . . during construction,
operation, and maintenance of the improvements.” (emphasis added). Because
this clause refers to improvements made by the holder, the duty to protect can be
inferred only to the holder.
       In construing the permit, the court looks to the canon of textual
interpretation that the expression of one thing implies the exclusion of others
(expressio unius est exclusio alterius). See, e.g., Legal Aid Soc. of New York v.
United States, 92 Fed. Cl. 285, 299 (2010) (“[I]t is well-settled that [w]here certain
things are specified in detail in a contract, other things of the same general
character relating to the same matter are generally held to be excluded by
implication.”) (internal quotations omitted).
       Plaintiffs provide no grounds for ignoring this interpretive principle, other
than stating in a conclusory manner that “the aesthetic and scenic value of the
property is the only purpose for either party to enter into the Permit Agreement.”
Compl. ¶¶ 41, 44 (emphasis added). The notion that “the only purpose” of the
contract from the perspective of the government is aesthetic is plainly wrong: as
explained above, the Forest Service has a statutory mission to protect and steward
the national forests, which includes cutting down trees to reduce the risk of
wildfire. See 16 U.S.C. § 6501(1). Consistent with this duty, the contract contains
provisions that specifically allow defendant to engage in its stewardship activities.
See, e.g., ¶¶ 42 (Timber Cutting), 58 (Area Access), and 66 (Nonexclusive Use).
        Moreover, plaintiffs’ implied reciprocal duty argument is inconsistent with
the interpretive doctrine that a text must be construed as a whole. Bell/Heery, 739
F.3d at 1331 (“A contract must also be construed as a whole and in a manner that
gives meaning to all of its provisions and makes sense.”) (internal quotations
omitted). As defendant points out, when defining the rights and duties of the
                                             14
parties, the contract contains many provisions that single out defendant. For
example, the phrase “the forest service shall…” appears in ¶¶ 5, 16, 21(e), 27, and
59. Conversely, the permit also contains a number of clauses that single out
plaintiffs. See, e.g., ¶ 2 (“the permittee shall pay to the Forest Service . . .”); ¶ 22
(“the holder shall indemnify the United States”); ¶ 42 (“The holder agrees, as
directed by the authorized officer, to cut into commercially usable lengths . . . any
and all merchantable timber.”). Examining the contract as a whole, the court finds
that clauses 9 and 25 impose obligations on plaintiffs only.
      Absent the imposition of a duty on the part of the government, plaintiffs
cannot prevail on a breach of contract claim. Accordingly, the court grants
defendant summary judgment as to plaintiffs’ “implied reciprocal duty” claims.
       C.     Plaintiffs’ Express Breach of Contract Claim

              1.      The Permit Imposes a Duty on Defendant To Avoid “Undue
                      Interference” with Plaintiffs’ Rights under the Permit

        In addition to the implied reciprocal duty claims, plaintiffs also argue that clauses
42, 58, and 66 of the Permit Agreement expressly impose on defendant a duty to avoid
“undue interference” with the “rights and privileges” conferred on plaintiffs. Compl. ¶¶
36 – 37, 46 – 48. Plaintiffs argue that defendant’s decision to allow clear cutting of a
portion of the permitted area to create a log landing area breaches this duty. Defendant,
in turn, argues that no such express right exists; according to defendants, “[t]he permit
expressly provides the Forest Service with the right to use the land under permit to the
Beards in any manner and for any purpose, including removing trees to create a log
landing to complete [its] stewardship activities.” Def.’s Mot. Summ. J. at 13. The court
now considers the provisions at issue.
      Clause 42, which confers on the Forest Service the qualified right to cut and
dispose of timber located in the permitted area, states:
       The holder agrees, as directed by the authorized officer, to cut into
       commercially usable lengths and deck for disposal by the Forest Service,
       any and all merchantable timber, not needed by the holder for the permitted
       use, which is cut from the National Forest lands occupied hereunder. This
       material will be disposed of by the Forest Service provided that the Forest
       Service may sell or otherwise dispose of standing merchantable timber to
       third parties when such timber can be felled and removed without undue
       interference with the operation of the holder. Unmerchantable material,
       including tops and branches, shall be disposed of by burning or removal
       from National Forest Land.

                                              15
Permit ¶ 42 (emphasis removed). Clause 58, in turn, confers on the Forest Service
a qualified right to access the permitted area, stating:
       The holder agrees to permit the free and unrestricted access to and upon the
       premises at all times for all lawful and proper purposes not inconsistent
       with the intent of the permit or with the reasonable exercise and enjoyment
       by the holder of the privileges thereof.
Permit ¶ 58. Finally, Clause 66 grants defendant a qualified right to use the
permitted area, stating:
       This permit is not exclusive; that is, the Forest Service reserves the right to
       use or permit others to use any part of the permitted area for any purpose,
       provided such use does not interfere with the rights and privileges hereby
       authorized.
Permit ¶ 66.
          As an initial matter, the court notes that defendant has mischaracterized
plaintiffs’ argument by suggesting that the Beards “do not believe the Forest
Service had the right to use the land under permit to the Dinkey Creek Inn to
conduct stewardship activities.” See Def.’s Mot. Summ. J. at 3. On the contrary,
plaintiffs acknowledged defendant’s right under the permit, as well as defendant’s
statutory duty, to reduce the risk of fire by conducting stewardship activities like
cutting. See, e.g., Pl.’s Opp’n at 6, n.1. Instead, plaintiffs contend that
“defendant’s decision to locate a log-landing and clear-cutting over 16% of the
permitted area interfered with its interest, rights and privileges, unnecessarily, and
. . . in contravention with the purpose of the Special Use Permit and . . . unduly
(unreasonably) interfered with plaintiffs’ resort operations.” Id. (original
emphasis).
        The court finds that defendant also has mischaracterized the permit
provisions at issue. Notwithstanding defendant’s representations otherwise, the
provisions do not give the Forest Service the right to use the permitted land “in
any manner and for any purpose.” Def.’s Mot. Summ. J. at 13. Rather, the rights
conferred by these provisions are qualified. For instance, clause 42 states that “the
Forest Service may sell or otherwise dispose of standing merchantable timber to
third parties when such timber can be felled and removed without undue
interference with the operation of the holder.” Permit ¶ 42 (emphasis added).
Similarly, clause 58 provides the Forest Service with the right to access the
premises “at all times for all lawful and proper purposes not inconsistent with the
intent of the permit or with the reasonable exercise and enjoyment by the holder of
the privileges thereof.” Permit ¶ 58 (emphasis added). Finally, clause 66 states
                                             16
that “the Forest Service reserves the right to use or permit others to use any part of
the permitted area for any purpose, provided such use does not interfere with the
rights and privileges hereby authorized.” Permit ¶ 66 (emphasis added).
        Although the purpose of clauses 42, 58, and 66 of the permit is to confer
certain rights on the government, the clauses contain qualifying rights. Thus,
defendant is prohibited from exercising its rights in a manner that poses “undue
interference” with the “rights and privileges” conferred on plaintiffs. In the view
of the court, the qualifying language in these clauses imposes a duty on the
government, a conclusion reached in other suits against the Forest Service. See,
e.g., Son Broad., Inc. v. United States, 52 Fed. Cl. 815, 823-24 (2002) (finding
that a nonexclusive use clause, similar to clause 66 of the instant permit, “imposes
binding obligations on both parties”).
              2.     A Genuine Dispute of Material Facts Exists as to Whether the Forest
                     Service Breached this Duty

        Finding that clauses 42, 58, and 66 impose duties on the government, the
court next considers whether defendant actually breached those duties. As
plaintiffs point out, “undue” means “unreasonable,” and a determination of
whether defendant’s actions were unreasonable is a question of fact. Pl.’s Opp’n
to Mot. for Summ. J. (“Pl.’s Opp’n”) at 10, July 27, 2015, ECF No. 12.
        To support their claims of undue interference, plaintiffs point to the admission of
Mr. Martin, a Forest Service officer, that when he approved the location of the landing
area, he was not aware that the landing area had been slated for the development of three
cabins, under the terms of the permit. Pl.’s Mem. for Forest Service Claims Dep’t, Def.’s
App. at 115; Compl. ¶¶ 30-31. As further evidence of the unreasonableness of
defendant’s action, plaintiffs also point to the reaction of Mr. Keith, the Chief Forester,
who “was astounded by the lack of communication of the forest service personnel and
logging crew with the permittees and the destruction to their permitted land.” Pl.’s Mem.
for FS Claims Dep’t, Def.’s App. at 115. Plaintiffs add that Mr. Martin “told us after the
fact that he would never have done it had he known that was part of our permit (but he
also never checked).” Beard Decl. at ¶ 23. Moreover, plaintiffs state, Mr. Porter, the
District Ranger, had suggested that the Beards apply to expand the bounds of the
permitted area in order “to make up/substitute for the destroyed section of [the] permit.”
Id. at ¶ 25. Defendant does not dispute any of these allegations directly, and plaintiffs’
claims seem to suggest that the Forest Service did not select the site for the landing out of
necessity. Because the landing might have been located elsewhere without
compromising the Forest Service’s stewardship activities, the court finds that a genuine
dispute of material fact exists as to whether defendant’s actions constituted an “undue
interference” with plaintiffs’ rights under the permit.
                                             17
              3.     Nevertheless the Court Finds That Plaintiffs Cannot Show Damages

        The court has determined that the permit imposes a duty on defendant to
avoid using the permitted land in a way that “unduly interfer[es]” with plaintiffs’
contractual rights, and that a genuine issue of material fact exists as to whether
defendant breached that duty. But to prevail on their breach of contract action,
plaintiffs must also show, by a preponderance of the evidence, damages that are
(1) reasonably foreseeable, (2) causally connected to the alleged breach, and (3)
not speculative. Liberty Ammunition, Inc., 119 Fed. Cl. at 388. Although the
Beards are not required to fully establish every element of their claim at the
summary judgment stage, defendant can prevail by negating an essential element
of plaintiffs’ claim. Vivid Techs., Inc., 200 F.3d at 807.
        Plaintiffs assert that the creation of the log landing on the permitted area
caused them to suffer a wide array of damages. They argue, first and foremost:
“[t]he aesthetic and scenic value of the land (particularly in the area where the
Beards had began construction of the infrastructure for the additional chalets) has
suffered harm; it is no longer viable to continue with the planned construction
causing loss of future profits and loss of costs to date for planning and
construction of the new chalets.” Compl. ¶ 50. Plaintiffs also argue that they
“sub-let the permitted area and sold the improvements to a third party for a price
that, as a direct result of the USFS breach of the Permit Agreement, was
substantially less than its value prior to the USFS breach.” Compl. ¶ 52. In their
prayer for relief, plaintiffs make additional demands, to include the loss of
merchantable timber, restoration costs, and pre-judgment interest.
                     a.     Plaintiffs’ Claim of Lost Profits Was Not Reasonably
                            Foreseeable and the Alleged Amount of Recovery is
                            Speculative

      Defendant challenges plaintiffs’ claim of lost profits through lost rent by
showing that the claim was not reasonably foreseeable and that the calculation of
damages would be entirely speculative.
       On May 3, 2001, plaintiffs sent a letter to Mr. Porter, the District Ranger,
informing him that construction of the restaurant “[would] probably never happen”
due to low sales in the existing café. Def.’s App. at 220. Plaintiffs explained that
they did not have sufficient demand to build more cabins: “[W]e currently do not
have enough of a waiting list during the summer months to justify building
additional cabins at this time. Our business during the winter months consists
primarily of weekends, and the cabins are currently renting at a lower fee than
those in Shaver Lake, probably due to our location.” Id. Plaintiffs concluded the

                                             18
letter by speculating that “[t]here [might] be a need in the future [for the cabins]
given the growth in California's population.” Id. Mr. Porter corroborates this
writing by the Beards in his declaration and characterizes the Beards’ decision not
to build additional cabins as “a business decision” rather than one made on
account of the logging. Id. at 216. Mr. Porter adds that “[t]he Beards did not raise
the issue of building new cabins again with me or my staff after sending this letter
in 2001.” Id.
        In their responsive briefing of this summary judgment motion,
plaintiffs describe their 2001 letter as an effort to reserve the right to
build more cabins should “growth in California’s population” drive up
demand. But the court finds this writing, devoid as it is of any specificity, entirely
inadequate. The mere possibility that demand might increase some time in the
future due to a possible growth in California’s population does not give the Forest
Officer any meaningful notice of any future construction
plans. Furthermore, absent a timeframe for construction or evidence about how
many cabins plaintiffs would have constructed but for the breach, the calculation
of any damages would be entirely speculative. It is, for example, possible that
“growth in California's population” might have created sufficient demand to
justify the construction of one or two additional cabins, but not three.
        Plaintiffs contend that there “was no reason to ‘request’ to build the final
six (6) chalets, as they were already authorized under the original permit.” Pl.’s
Opp’n at 13. The court, however, disagrees. Permit clause 37 requires the
permittee to submit to the Forest Service “a schedule for the progressive
development of the permitted site and installation of facilities,” with “an itemized
priority list of planned improvements and the due date for completion.” (emphasis
added). Clause 37 also requires the permit holder to submit any construction plans
at least “forty-five (45) days before the construction date stipulated in the
development schedule.” Although plaintiffs initially complied with clause 37 by
submitting a site schedule in 1992, plaintiffs departed from the timeline set forth in
the schedule by abandoning construction of the restaurant and indefinitely
deferring the construction of the six remaining cabins. Without the required “due
date for completion” and the 45-day notice for construction, further consultation
with the Forest Service would have been necessary to build any additional cabins,
and as Mr. Porter stated in his declaration, even if the Beards had changed their
minds about constructing the additional cabins, their construction plan would have
been subject to re-evaluation due to changes “in Forest plans in 2001 and 2005
that might not [have] allow[ed] [them] to construct new cabins on the land that
they had proposed in the earlier 1990s.” Decl. of Ray Porter, Def.’s App at 216.


                                             19
        Mr. Beard insists that “Nancy Woolsey ([the] retired FS officer in charge of
[our] permit) understood that [we] intended to build at some time in the future as
she told me that since we already had installed the water, septic, and electric
service in preparation of the additional chalets, [we] should look into the portable
cabins like they were using at one of the resorts in Huntington Lake.” Beard Decl.
at ¶ 10; see also Pl.’s Opp’n at 13. In the court’s view, the nature of this
understanding is vague. But drawing every inference in favor of plaintiffs, the
court finds that an informal familiarity with Mr. Beard’s intention to build
additional chalets “[at] some time in the future” did not provide defendant with
adequate notice. The court cannot award damages on the mere possibility that
plaintiffs might have built the additional cabins some time in the future, but for the
breach.
        Moreover, drawing every inference in plaintiffs’ favor, the court finds that
plaintiffs cannot meet this burden of proving that their damages are (1) reasonably
foreseeable, (2) causally connected to the alleged breach, and (3) not speculative.
Liberty Ammunition, Inc., 119 Fed. Cl. at 388. In light of plaintiffs’ abandonment
of the 1993 development schedule and the 2001 letter apprising Mr. Porter of their
plans to indefinitely defer construction of any additional chalets, the court finds
that defendant had no reasonable notice of any impending construction. Even
assuming that Ms. Woolsey and Mr. Beard had some sort of an understanding that
Mr. Beard intended to build “[at] some time in the future,” the absence of any
concrete plan or timeframe dooms plaintiffs’ case.
        Accordingly, the court finds that even if a breach of contract did occur,
plaintiffs cannot recover their alleged damages as they were speculative and not
reasonably foreseeable by the Forest Service.
                     b.     The Court Denies Plaintiffs’ Claim of Lost Value on the Sale
                            of the Improvements and the Sublease of the Permitted Area

       Plaintiffs argue that they “sub-let the permitted area and sold the
improvements to a third party for a price that, as a direct result of the USFS breach
of the Permit Agreement, was substantially less than its value prior to the USFS
breach.” Compl. ¶ 52.
        As the court has already found, plaintiffs’ claim of lost profits from the
cabins was not reasonably foreseeable because the Beards had effectively
abandoned construction of the cabins; thus, any lost income is too speculative to
calculate. This same reasoning also precludes plaintiffs from obtaining relief on
their claims for lost value on the sale of the improvements and the sublease of the
permitted area; that is, because the construction of the cabins was not foreseeable,

                                             20
the possibility that plaintiffs might decide to sell those improvements and sublet
the permitted area due to the frustration of their putative development plans is
equally unforeseeable. The court finds no proximate causal relationship between
the alleged breach and plaintiffs’ decision to sell the improvements. Neither the
timing of plaintiffs’ decision to sell the improvements nor the market conditions at
the time was foreseeable.
                     c.      The Court Finds No Grounds for an Award of Other Damages
                             Claimed by Plaintiffs

       Although plaintiffs primarily seek damages for their inability to build the
three cabins located in the area cleared by the logging company, plaintiffs also, in
the barest of terms, allege damage to “the overall aesthetic and scenic value of the
property,” that caused a loss of resort revenues. Compl. ¶ 51. The court finds this
general claim of aesthetic harm speculative and not amenable to calculation.
Plaintiffs provide no evidence whatsoever as to how the removal of trees in 16%
of the permitted area negatively affect resort revenues. Nor have plaintiffs made
any showing that demand for the four existing cabins had declined.
         Moreover, plaintiffs’ demand for loss of merchantable timber cannot stand
because the property interest in the cut timber belongs to the government, not
plaintiffs. See, e.g., Permit ¶ 4—Development (“Trees or shrubbery on the
permitted area may be removed or destroyed only after the forest officer in charge
has approved, and has marked or otherwise designated that which may be removed
or destroyed. Timber cut or destroyed will be paid for by the permittee as follows
. . .”) (emphasis added); Permit ¶ 46—Timber Payment (“All National Forest
timber cut or destroyed [by permittee] in the construction of the permitted
improvements shall be paid for at current stumpage rates for similar timber in the
National Forest”); see also Permit ¶ 42 (conferring on the Forest Service the right
to dispose of merchantable timber).
       Plaintiffs also seek “restoration costs.” But plaintiffs are not entitled to
recover for the costs of restoring the vegetation to the area cleared for the log
landing because plaintiffs do not have a property interest in the land itself or in the
timber located in the land. Rather, plaintiffs have a right to use of the land without
undue interference. This right of use must be balanced against the Forest
Service’s contractual right to dispose of timber and its statutory duty to prevent
forest fires. In light of plaintiffs’ apparent abandonment of the construction of the
additional cabins, the court finds that plaintiffs cannot recover these costs.
      Finally, plaintiffs request pre-judgment interest. The Court of Federal
Claims, however, is without authority to grant interest on a claim unless a contract

                                             21
or statute expressly provides for such an award. 28 U.S.C. § 2516(a). Neither the
permit nor any pertinent statute contains a provision for interest payments in this
case.
        Thus, although the court finds that a genuine dispute of material fact exists
as to whether defendant breached the terms of the permit, the court also finds
plaintiffs’ demand for damages must fail. A showing of damages is an essential
element of a breach of contract claim. Liberty Ammunition, Inc., 119 Fed. Cl. 368
at 388. Because plaintiff cannot make a prima facie claim of breach of contract,
defendant is entitled to summary judgment.


IV.    Conclusion


    For the reasons set forth above, defendant’s MOTION for summary judgment is
GRANTED. The Clerk is directed to enter judgment accordingly.


       IT IS SO ORDERED.



                                               s/ Patricia Campbell-Smith
                                               PATRICIA CAMPBELL-SMITH
                                               Chief Judge




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