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February 12, 1973

nomic duress may not be implied, The affidavits of the parties to the however, merely from the fact that June 9 meeting present a conflict as a hard bargain may have been to whether appellant was reluctant made.34

to accept Change Order No. 3. They Another contention advanced by show clearly, however, that the fithe appellant is that the circum- nancial position in which appellant stances attending the negotiations found itself at the time of the negoof Change Order No. 3 constituted tiations was not caused by the Nacoercion on the part of the Govern- tional Park Service. Even if appelment. The circumstances identified

lant had conclusively established its by the appellant as constituting reluctance, this of itself is not the such coercion were: (1) the Govern- equivalent of duress or business ment's knowledge that at the time

compulsion. There must, in addiof the negotiation the appellant was

tion, be proof of acts on the part of not in a cash position; (2) the pres

the Government to which the appelsure on appellant to commence

lant's difficulties are attributable.38 work on the project prior to the start of the summer rains; and (3)

Here, no such showing has been the dilemma confronting the appel

made. While we do not question that lant in having to choose between

the appellant was in straitened circonsenting to do the overlay work

cumstances at the time Change at contract unit prices or financing Order No. 3 was negotiated, 39 the such work entirely from its own case is considered to be governed in funds and thereafter submitting a this respect by the recent holding in claim.35 As we have previously LaCrosse Garment Mfg.Co. v. noted, appellant registered no dis- United States, 193 Ct. Cl. 168 satisfaction with the terms of

36 See Loral Corporation v. United States, Change Order No. 3 until six weeks

193 Ct. Cl. 473, 481-482 (1970), in which the after its execution,36 when the work Court stated :

"In discussing the law on duress, we feel was completed. Undisputed is the

that Fruhauf Southwest Garment Co. v. United contracting officer's sworn statement States, 126 Ct. Cl. 51, 111 F. Supp. 945 (1953),

even though it deals with a subsequent modifithat he "inquired of Mr. Bish as to

cation, is the clearest presentation of the posiwhether or not the contract unit tion of this court. In that case, 126 Ct. Cl. at prices were acceptable to him and 62, 111 F. Supp. at 951, we stated in respect

to economic duress or business compulsion gave him ample opportunity to

that:

"** * * In order to substantiate the allegaquote different prices * * *” but

tion of economic duress or business compulsion, that Mr. Bish “declined to avail

the plaintiff must go beyond the mere showing himself of such opportunity.” 37

of a reluctance to accept and of financial em

barrassment. There must be a showing of acts 34 Aircraft Associates & Mfg. Co., Inc. v.

on the part of the defendant which produced United States, 174 Ct. Cl. 886, 896 (1966).

these two factors. The assertion of duress must * Appellant's Brief, pp. 13-15.

be proven to have been the result of the de> Exhibit B-5.

fendant's conduct and not by the plaintiff's 37 Affidavit of Leroy E. Marcroft (note 12,

necessities.'” supra).

30 See Appendix,

(1970), in which at page 177 the Court states:

I

1

* * * A party induced by the want of money, to which the defendant has not contributed, to accept a lesser sum than he claims is due is not under legally recognized economic coercion or duress. Some wrongful conduct must be shown to shift to defendant the responsibility for bargains made by plaintiff under the stress of financial necessity. * **

We are unable to find that the appellant has sustained its burden of showing that it accepted Change Order No. 3 under duress. The appeal is therefore denied.

WILLIAM F. McGraw, Chairman.

I CONCUR:

SPENCER T. NISSEN, Member.

APPENDIX

Excerpt from Affidavit of

doing the overlay work at the original contract unit price. He explained to me that my only other alternative would be to do the overlay paving at my own expense and thereafter submit a claim for the amount of money I felt I should be entitled to. I did not have the money at that time to complete the overlay paving at my own expense. This fact was well known to Mr. Dave O'Kane who had been working with me on this project at the Grand Canyon for over

a year, Mr. O'Kane and I on numerous occasions had discussed my financial difficulties, due to another project in which I was involved with the U.S. Forest Service in Pennsylvania, and Mr. O'Kane was well aware that I did not have a cash position which would have perinitted me to finish the contract at my own expense. Mr. Purse asked for an immediate answer to his offer and said that he needed to know right away, inasmuch as it was approximately 12:30 p.m. and he was catching a 1:00 o'clock plane. I told him that I would need to talk his offer over with my subcontractor, Mr. Don Speer of D.C. Speer Construction Co. I immediately called Mr. Speer on the phone and discussed the Government's offer with him. Mr. Speer informed me that he was not in a position to finance the overlay paving and since he did not feel any responsibility for the erosion that he could only do the job for me for what it would cost him, and that I would have to pay the difference. Therefore, because I was not in a financial position to complete the project and pay the costs out of my own pocket, I told Nr. Purse that I would accept his offer even though it would not be possible to do the work at the original contract price. That at the time of these discussions, I was under extreme pressure to commence work on the project prior to the start of the summer rains, which would have further aggravated the erosion, a fact which was known to the Government personnel involved.

Russell Bish

6. * * * Mr. Purse informed me that he was willing to pay me to overlay pave the eroded areas at the original contract unit prices. I informed him that we could not possibly do that work at the original contract's price, because it would be impossible to place 450 tons of hot mix required for the overlay at the same unit price for which we had originally agreed to place more than 3,500 tons under the original contract. Obviously due to our fixed costs and economies of scale, we could not place 450 tons at the same price that we had agreed to place 3,500 tons of the hot mix. Mr. Purse then informed me that he was going to order me to do the overlay work and that if I was to be paid I would have to accept his offer of

February 14, 1973

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RIMROCK CANAL COMPANY Act of March 3, 1891, for a pumping sta

tion and irrigation system within a small 9 IBLA 333

cove of a reservoir withdrawn for a fish

and wildlife management area pursuant Decided February 14, 1973

to the Fish and Wildlife Coordination

Act, will be sustained where it was made Appeal from decision (Idaho 3002) of

in due regard for the public interest in Idaho Land Office, Bureau of Land

managing the area in light of that Act. Management, which rejected a right

APPEARANCES: James L. Morrison, of-way application.

for appellant. Affirmed.

OPINION BY MRS. THOUPRights-of-Way: Generally-Rights

SON, INTERIOR BOARD OF of-Way: Act of March 3, 1891

LAND APPEALS There is no grant of a right-of-way under James L. Morrison for Rimrock the Act of March 3, 1891, as to withdrawn

Canal Company has appealed a delands without approval of the Secretary of the Interior, who may deny an appli.

cision of the Idaho Land Office, Bucation and approval of maps filed there- reau of Land Management, dated under upon reasonable grounds, or con- September 15, 1970, which rejected dition approval as to the location of the

a right-of-way application for an improvements to be constructed.

irrigation system filed pursuant to Administrative Practice Fish and

the Act of March 3, 1891, 43 U.S.C. Wildlife Coordination Act: Gen

$ 946 (1970). The public land over erally-Rights-of-Way: Generally

which the right-of-way is sought is Rights-of-Way: Act of March 3, the S1 NE 14 sec. 35, T. 5 S., R. 4 1891--Withdrawals and Reservations:

E., B.M., Idaho. The SW 14 NE 14 Generally

of this section has been withdrawn Where land has been withdrawn for for a wildlife management area and state management as a wildlife area a federal power project. under the Fish and Wildlife Coordina

The application for the right-oftion Act, the Bureau of Land Manage

way was filed on June 6, 1969. It ment must consider the recommendations of the state and of the Bureau of Sport stipulated that if it were approved, Fisheries and Wildlife to assure conser- it would be subject to the applicable vation of the fish and wildlife before ap- regulations. The application was

. proving a right-of-way application under signed by James L. Morrison for the Act of March 3, 1891, for a pumping Rimrock Canal Company. It was

, site and irrigation system.

also originally signed by Dolly Applications and Entries: Generally

V. Morrison and Joe Morrison. Fish and Wildlife Coordination Act:

Thomas Timbers subsequently Generally-Rights-of-Way: General

signed the application on October ly-Rights-of-Way: Act of March 3,

13, 1970. 1891

The application includes a proA Bureau of Land Management decision posed water pumping site within the which rejected an application under the withdrawn area and on the shore of 497-456-73

-12

a

C.J. Strike Reservoir, and also an it would detrimentally affect the irrigation pipeline and ditch right- value of the cove site for fish and of-way. On August 6, 1969, the wildlife habitat and recreational Land Office notified James L. Mor- purposes. The decision also held rison that the State of Idaho De- that the application was deficient in partment of Fish and Game and the that: (1) the proper documents were Bureau of Sport Fisheries and not filed to evidence that the RimWildlife, United States Department rock Canal Company was legally of the Interior, objected to the pro- organized as a corporation, associaposed location of the pumping site tion, or partnership; (2) evidence in a small cove of the reservoir be- from the state was not submitted cause it might adversely affect to show that the water right had waterfowl hunting. The letter stated been granted; (3) Thomas Timthat the Fish and Game Depart- bers, whose name was in the mutual ment had no objection to the site if agreement and water permit appliit were to be located at least 1,000 cation as a participant, was not infeet south of the proposed location. cluded as an applicant in the rightMorrison was invited to discuss any of-way application or on the map. alternative proposals and to make Although the application was rea field inspection with state and fed- jected, appellant was given the right eral officials to locate a new site. to amend the application by relo

Subsequently, on February 17, cating the pumping plant to an ac1970, representatives of the Bureau ceptable location, and to correct the of Land Management, the Idaho procedural deficiencies within 60 Department of Fish and Game, and days of the decision. The decision the Bureau of Sport Fisheries and advised appellant if additional time Wildlife, made a field trip with was needed to comply with the reMorrison to inspect the proposed quirements, a written request would site. The Idaho Department of Fish

be given immediate consideration. and Game and the Bureau of Sport Appellant's letter of September Fisheries and Wildlife continued 24, 1970, attempted to remedy the their objection, but would consent procedural deficiencies mentioned. to the application if the site were Statements were made that Rimrelocated 1,000 feet to the north or rock Canal Company is an uninsouth.

corporated association composed of The Land Office decision recited James Morrison, Dolly Morrison, the history heretofore discussed and Thomas Timbers, and Joe Morrirejected the application. The rejec son; and that Bernard Morgan, a tion was for the reason the Bureau former associate, quitclaimed his of Sport Fisheries and Wildlife and interest to James and Dolly Morrithe Idaho Department of Fish and son. The letter also constitutes a noGame objected to the proposed lo- tice of appeal. In it, appellant charcation of the pumping plant in that acterizes the refusal to grant the

February 14, 1973

right-of-way as arbitrary. It con- with respect to the pump site that: tends: (1) the Idaho Fish and Game (1) the cove is not extensively used Department and the Bureau of for recreational purposes; (2) it is Sport Fisheries and Wildlife, who a poor habitat for fish and wildlife; objected to the location of the pump (3) the vegetation is sparse; (4) site, can act only in an advisory turbidity created by the pumps will capacity and have no jurisdiction be imperceptible; (5) the pump site in this matter; (2) the reclamation would not have a deleterious effect of 1,500 acres of land embraced in on the shoreline; (6) the personnel their desert land entries should have who objected to the proposed locapriority over maintaining a "semi" tion lack technical knowledge; (7) permanent duck blind; (3) the there are no other feasible sites; pump station would not interfere and (8) other pumping stations with hunting; (4) any negative ef

located on the reservoir and rightsfects created by the pump station of-way have been previously would be offset by the crop residue granted. It enclosed copies of the from the reclaimed land which approved rights-of-way grants. would benefit both waterfowl and In addition to these objections to upland game birds.

the denial of approval of the pump Appellant asserts that the pump

station site, appellant also raises a site was selected because it was most threshold issue as to whether he feasible from an engineering stand- might construct the improvements point in that: (1) the penstock without approval by Government covered the shortest possible dis- officials. The short answer to this tance across public lands; (2) the question based upon the facts in this transmission lines would not mar case is that such an alternative is the shoreline; and (3) detrimental not available to appellant. This is dredging would not be required be

evident because of the status of the cause the water was of sufficient land and applicable law. depth. As to the suggested proposal As to the status of the land, prior to locate the site 1,000 feet to the to the date appellant's application north or south, it contends this was filed, the land was withdrawn would entail extensive dredging, as a power site. The administering would require an additional 1,000 agency of the power site reserve, the feet of penstock on public lands, and Federal Power Commission, has no the construction of a power trans- objection to appellant's application. mission line along the shoreline. However, the site upon which the

In a further statement of reasons pumping station is planned, as has for appeal, appellant reiterates pre

been indicated, has also been withvious arguments and emphasizes drawn “from all forms of approthat the pump site is aesthetically priation under the public land laws located because it is concealed from *** for management by the State public view. It further contends of Idahe as part of the C. J. Strike

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