CBCA 5049

DENIED: May 11, 2017 CBCA 5049 JONATHAN NOELDNER, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Jonathan Noeldner, pro se, Eau Claire, WI. James L. Rosen, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN. DANIELS, Board Judge. The United States Forest Service, an entity within the Department of Agriculture, awarded to Jonathan Noeldner a contract to harvest ponderosa pine timber in the Inyo National Forest of California. The contract was awarded on August 17, 2006, and is known as the Sentry Fuelwood Sale contract. Mr. Noeldner states that he paid $14,514 for the privilege of cutting and removing the trees. Mr. Noeldner made fifteen separate, numbered claims under this contract. A Forest Service contracting officer denied them all in a single decision, and Mr. Noeldner appealed that decision to the Board. CBCA 5049 2 Mr. Noeldner submitted to us complaints for claims one, three, five, six, eight, nine, and ten, but none of the others; he later informed us that he was pursuing only the claims for which he had filed complaints. The parties agreed to submit the case for a decision on the basis of the written record, without benefit of a hearing. In briefing the case, Mr. Noeldner has addressed only claim one. We therefore conclude that he is now pursing solely this claim. With no justification supporting any of the other claims, we conclude that those claims have been abandoned, so we deny them. We analyze only claim one. Findings of Fact Claim one is entitled, “The costs of harvesting and disposing of trash trees erroneously marked the same as, and in addition to, trees counted and included in the Sentry Sale purchase.” The Forest Service had estimated, in advertising this sale, that the 109-acre sale area included approximately 3174 trees which would yield 410 hundred cubic feet (CCF) of ponderosa pine. The sale advertisement stated that in addition to the estimated quantity of 410 CCF of ponderosa pine, “there is within the sale area an unestimated volume of Other Softwood fuelwood that the bidder may agree to remove at a fixed rate.” According to the claim, “We soon realized there were way more trees marked for removal than what we originally purchased” – meaning 3174 trees. This is because what Mr. Noeldner labeled “junk trees” had the same markings as “trees included in the Sale.” “We feel,” he told the contracting officer, “that for the 104 [sic] acres of ‘junk trees’ we cut on the Sentry Sale Areas we should be paid $6000 times 104 acres, which is $624,000.00.” Under the contract, the “Purchaser agree[d] to purchase, cut, and remove Included Timber.” “Included Timber” consisted of “Standard Timber” – “[l]ive and dead trees and portions thereof that meet Utilization Standards under [clause] BT2.2 and are designated for cutting under [clause] BT2.3.” Clause BT2.2 required the purchaser to “fell and buck” trees that “equal or exceed tree diameters listed in clause AT2 and contain at least one minimum piece.” Clause AT2 set a minimum of six inches diameter at breast high (DBH) for ponderosa pine. Clause BT2.3 provided that the Forest Service would mark the trees for cutting. The agency’s sale administrator (its contracting officer’s representative) led the crew that marked the trees for the Sentry Fuelwood Sale in 2006. He tells us in a declaration that notwithstanding the contract minimum of six inches DBH, the crew marked only trees with a minimum of eight inches DBH. There is no evidence in our record that Mr. Noeldner began harvesting trees in the sale area earlier than May 2011. Although Mr. Noeldner maintains that he “complained to the Forest Service repeatedly regarding the fact there were way to[o] many trees designated for removal,” there is no evidence in our record that this issue arose earlier than August 2011. On August 15, 2011 – after Mr. Noeldner had cut approximately 75% of the marked trees in CBCA 5049 3 payment unit 1 (but none of the trees in the other payment unit, number 2) – the sale administrator, after consulting with the contracting officer, agreed that Mr.