Rexford logger wins case in appeals court

Nearly four years after the United States Forest Service terminated his logging contract, Enos Miller of Rexford was vindicated in federal appeals court.

Miller, owner of EM Logging, was awarded a timber contract in August 2010. The United States Forest Service terminated the contract in March 2011, citing “repeated and ongoing disregard for the terms of that contract almost from the start of the logging and hauling operations.”

According to documents filed with the court, the forest service argued Miller flagrantly disregarded statutory weight limits for his trucks and requirements for delayed delivery notifications to the forest service.

The Civilian Board of Contract Appeals, an agency established to adjudicate forest service contract disputes, ruled in support of the forest service’s claims. The United States Federal Appeals Court reversed that decision on Feb. 20.

The court ruled the only statutory violation of the weight limit clause of the contract stemmed from a ticket issued Jan. 20, 2011. EM Logging, through attorney Allan Payne, argued the only reason the ticket was issued was because the driver failed to reconfigure the truck to increase the length between the axles after coming down a twisting mountain road. Had he reconfigured the axles that day, he would not have been in violation of Montana law.

EM Logging further argued that one violation does not constitute flagrant disregard for the contract terms.

The second claim of the forest service is that two loads were delayed beyond the 12-hour delivery time frame allowed for trucks to reach a weighing location and that notifications of those delays were not provided in a timely manner.

In one of those instances, a further allegation of deviation from the approved route was also made. This incident took place Dec. 20, 2010, when an EM Logging driver detoured from his established route in order to see a doctor. He was diagnosed with bronchial pneumonia.

The second violation was not documented in the appellate court’s ruling, beyond stating that both deliveries were made within 48 hours of loading and both notifications were made to the United States Forest Service, one four days after the fact and the other, 13 days.

EM Logging argued the delays in notification were not unreasonable, and certainly not flagrant, due to the fact that both delays were reported before the forest service raised any concerns, It was, in fact, EM Logging’s notification of the delays that prompted the forest service’s concern.

The court ruled the violations claimed by the United States Forest Service in terminating the contract were minor technical violations, not a pattern of flagrant disregard.

“There was one instance of route deviation necessitated by illness, one load limit violation and two instances of delayed notifications. None of the alleged violations independently substantiate the Board’s finding of flagrant disregard. Even together, the four violations are not substantial evidence of a pattern of activity demonstrating that EM Logging’s actions were in flagrant disregard of the contract. Substantial evidence does not support the Board’s conclusion that EM Logging’s actions demonstrate flagrant disregard of contract terms.”

The original suit asks for damages in the amount of $2.5 million, in addition to repayment of the $231,000 down payment Miller made on the sale and the $119,000 performance bond. The $2.5 million is a result of the anticipated $4 million return from the sale of the logs, minus $1.5 million to be paid to the forest service for the logs.

Allan Payne, attorney for Miller, said further proceedings will be held in the Civilian Board of Contract Appeals to determine the exact damage amount.