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Buse Timber & Sales, Inc. v. United States

Citation: 30 ELR 20185
No. No. 98-725 C, 45 Fed. Cl. 258/(Fed. Cl., 11/04/1999)

The court holds that a timber company cannot bring a takings claim against the United States for canceling a timber sales contract in the Mount Baker-Snoqualmie National Forest in Washington State, but that the company can bring a breach of contract claim under the Contract Disputes Act (CDA). The U.S. Forest Service suspended and then canceled the contract because of the presence of the Endangered Species Act-listed marbled murrelet in the sale area. The court first holds that the timber company failed to state a claim upon which relief can be granted. Under the terms of the contract, the Forest Service maintained all right, title, and interest in the timber until it was cut, scaled, removed, and paid for at which time title would pass to the timber company. Therefore, the property interest allegedly taken was the right to performance under the contract rather than title to the unharvested timber. Moreover, the Forest Service maintained the right, pursuant to the contract, to suspend, modify, or cancel the contract. If the Forest Service's actions were unjustified or unreasonable, the timber company's rights emanate from the contract, not the Fifth Amendment. The court next holds that the timber company's breach of contract claims are within the jurisdiction of the court. The Tucker Act vests the court with jurisdiction to consider claims for breach of contract with the government. Additionally, the CDA did not bar the breach of contract claim because the timber company's takings claim, filed before a contracting officer's final decision, was not the same as the breach claim. Moreover, the fact that the takings claim was pending litigation prior to the issuance of the contracting officer's final decision did not withdraw the contracting officer's authority to issue a final decision on the breach of contract claims.

Counsel for Plaintiff
Alan I. Saltman
Saltman & Stevens
1801 K St. NW, Washington DC 20036
(202) 452-2140

Counsel for Defendant
Gerald M. Alexander
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000