CBCA 6358

DENIED: January 7, 2022 CBCA 6358, 6567 GRIZ ONE FIREFIGHTING, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Scott A. Everard, Missoula, MT, counsel for Appellant. Jody M. Miller and Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges RUSSELL, GOODMAN, and DRUMMOND. DRUMMOND, Board Judge. These consolidated appeals arise under an incident blanket purchase agreement (I-BPA) between the Department of Agriculture, Forest Service (Forest Service or Government) and Griz One Firefighting, LLC (Griz One or appellant) and resource orders issued pursuant to the I-BPA for the rental of equipment and operators for fire suppression. In CBCA 6358, Griz One claims damages to a fire engine (engine or vehicle) and for the subsequent suspension of three engines and operators from the Tongue River Complex Fire. In CBCA 6567, Griz One claims damages for the alleged wrongful demobilization of its engines and operators from the Lolo Peak Fire. The parties submitted these consolidated appeals on the written record under Board Rule 19 (48 CFR 6101.19 (2020)). CBCA 6358, 6567 2 Judicial Notice As part of the record submission brief, Griz One moves that the record and evidence . . . include those items designated in Rule 9(a) as “Evidence” – e.g., the Rule 4 files, other documents or parts thereof that may be admitted, and “Other Material” – e.g., the Notice of Appeal, Complaint, Answer, Briefs . . . anything the Board may expressly admit or take notice of . . . etc. Appellant’s Record Submission Brief at 3. Griz One further moves that the Board take judicial notice of hundreds of pages of documents. These documents are generally described as the CBCA’s “own CBCA case files . . . Rules, Regulations, Government Publications, Government Notices, Government Records, etc. that may be cited herein and including website URL.” Id. Board Rule 9 dictates what constitutes the record in a case and draws a distinction between evidence and other material. Griz One seeks to deviate from the Board Rule in its motion, which we deny. The Board may take judicial notice consistent with the provisions of the Federal Rules of Evidence (Fed. R. Evid.). Tucci & Sons, Inc. v. Department of Transportation, CBCA 4779, 17-1 BCA ¶ 36,599 (2016); Twelfth & L Streets LTD Partnership, GSBCA 7599, 88-1 BCA ¶ 20,519. Judicial notice is reserved for information “not subject to reasonable dispute.” Fed. R. Evid. 201(b). When taking judicial notice pursuant to a request of a party, the tribunal must be “supplied with the necessary information.” Id. 201(c)(2). The rules do not explain what constitutes “necessary information.” Rather, the rules give the tribunal discretion to decide whether judicial notice is appropriate. See K/S Himpp v. Hear-Wear Technologies, LLC, 751 F.3d 1362, 1367 (Fed. Cir. 2014); Murakami v. United States, 398 F.3d 1342, 1355 (Fed. Cir. 2005). Griz One wishes the Board to take judicial notice of the Forest Service’s position on various topics and information and then contrast such information with the Government’s legal theories advanced in the present case. Griz One has failed to persuade the Board it would be appropriate to take judicial notice of such information. See Kvichak Marine Industries, Inc. v. United States, 118 Fed. Cl. 385, 388 (2014) (noting that plaintiff failed to establish that “articles it submitted [we]re properly the subject of judicial notice [or] that they [we]re necessary for the court’s review of the case.”). This information is not an “adjudicative fact” as set forth in Fed. R. Evid. 201(a), but rather a legal conclusion recognizing alleged conflicts between the legal positions in this case. See Big Easy Studios, LLC v. United States, 147 Fed. Cl. 539, 548 (2020) (finding contrast between agency’s position in its training and Government’s legal theories presented in the case not an adjudicative fact but rather a “legal conclusion recognizing alleged conflicts CBCA 6358, 6567 3 between the legal positions in the case.”).