CBCA 7767

MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: March 12, 2024 CBCA 7767 WOIRHAYE LOGGING COMPANY, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Lawson E. Fite of Schwabe Williamson & Wyatt PC, Portland, OR, counsel for Appellant. Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SHERIDAN, and O’ROURKE. O’ROURKE, Board Judge. Appellant, Woirhaye Logging Company, LLC (Woirhaye), seeks reimbursement of expenses incurred when a wildfire consumed timber that had been cut and skidded but remained in the sale area. Woirhaye argues that the agency was negligent when it reassured Woirhaye that the fire would not reach the sale area, failed to take actions to protect the sale area, and then prohibited access to the sale area when there was still time to remove the timber. The agency contends that the Board lacks subject matter jurisdiction to decide disputes based on negligence because they are tort claims, not contract claims. Because we find a sufficient nexus between the agency’s alleged conduct and its obligations under the contract, we deny the motion. CBCA 7767 2 Background On September 21, 2021, the agency awarded the Tolan 1 Firewood Timber Sale contract to Woirhaye, under which the Forest Service agreed to sell, and Woirhaye to purchase, cut, harvest, and remove, timber and forest products from a specified area (the sale area). On February 1, 2022, Woirhaye ceased operations for the season. Woirhaye resumed work for the new season on August 17, 2022. On August 26, it received notice that a fire had started approximately four miles from the sale area. According to Woirhaye, the initial report relayed that the fire was at the end of a single log on flat terrain close to two roads and that it was being monitored. Woirhaye stayed in contact with fire personnel and the timber sale administrator, who reassured Woirhaye that the fire would not reach the timber sale. The Forest Service issued a closure order for the sale area on September 8, 2022, which required Woirhaye to cease operations and leave the sale area for safety reasons. At that point, Worihaye had cut and skidded approximately 75% of the sale area but had not removed all of the processed timber. By September 28, 2022, the fire had spread to the sale area and consumed the remaining timber product. After the closure order was lifted, Forest Service personnel surveyed the damage and determined that the remaining timber was “severely burned and no longer met minimum saw timber specifications.” The agency notified Woirhaye of its determination and formally closed the timber sale by letter dated December 20, 2022. Woirhaye submitted a claim to the contracting officer in the amount of $48,480 for “out of pocket expenses” incurred to pay for labor, equipment time, mobilization, administrative wages, fuel costs, and costs to process the product that was consumed by the fire. The contracting officer denied the claim on the basis that the contract did not permit recoupment of such expenses. Woirhaye timely appealed the decision to the Board. Woirhaye’s appeal and complaint blamed the agency for the costs it incurred due to the agency’s failure to take appropriate actions at the outset of the fire, when it could have easily been put out. Woirhaye contends that the agency was negligent because it allowed the fire to grow and expand into the sale area and consume timber that Woirhaye had purchased and cut but had not yet removed. Woirhaye further maintains that twenty days elapsed between the time that it received the notice of closure and when the fire burned through the remaining timber product. Woirhaye stated that it needed only four days to remove the processed timber, but the agency’s actions, and inaction, deprived Woirhaye of that opportunity. Had Woirhaye not received constant reassurance from agency personnel that the fire would not reach the sale, it would have ceased all other operations and removed the remaining cut timber. CBCA 7767 3 After docketing and submission of pleadings, the agency filed a motion to dismiss the appeal for lack of jurisdiction, arguing that Woirhaye’s claim of negligence cannot be heard by the Board because it sounds in tort, not in contract.