nomic duress may not be implied, however, merely from the fact that a hard bargain may have been made.34

Another contention advanced by the appellant is that the circumstances attending the negotiations of Change Order No. 3 constituted coercion on the part of the Government. The circumstances identified by the appellant as constituting such coercion were: (1) the Government's knowledge that at the time of the negotiation the appellant was not in a cash position; (2) the pressure on appellant to commence work on the project prior to the start of the summer rains; and (3) the dilemma confronting the appellant in having to choose between consenting to do the overlay work at contract unit prices or financing such work entirely from its own funds and thereafter submitting a claim.35 As we have previously noted, appellant registered no dissatisfaction with the terms of Change Order No. 3 until six weeks after its execution,36 when the work was completed. Undisputed is the contracting officer's sworn statement that he "inquired of Mr. Bish as to whether or not the contract unit prices were acceptable to him and gave him ample opportunity to ***" but quote different prices ** that Mr. Bish "declined to avail himself of such opportunity."

34 Aircraft Associates & Mfg. Co., Inc. v. United States, 174 Ct. Cl. 886, 896 (1966). Appellant's Brief, pp. 13-15.

38 Exhibit B-5.

Affidavit of Leroy E. Marcroft (note 12,

supra).

The affidavits of the parties to the June 9 meeting present a conflict as to whether appellant was reluctant to accept Change Order No. 3. They show clearly, however, that the financial position in which appellant found itself at the time of the negotiations was not caused by the National Park Service. Even if appellant had conclusively established its reluctance, this of itself is not the equivalent of duress or business compulsion. There must, in addition, be proof of acts on the part of the Government to which the appellant's difficulties are attributable.s Here, no such showing has been made. While we do not question that the appellant was in straitened circumstances at the time Change Order No. 3 was negotiated, the case is considered to be governed in this respect by the recent holding in LaCrosse Garment Mfg. Co. v. United States, 193 Ct. Cl. 168

39

38 See Loral Corporation v. United States, 193 Ct. Cl. 473, 481-482 (1970), in which the Court stated:

"In discussing the law on duress, we feel that Fruhauf Southwest Garment Co. v. United States, 126 Ct. Cl. 51, 111 F. Supp. 945 (1953), even though it deals with a subsequent modification, is the clearest presentation of the position of this court. In that case, 126 Ct. Cl. at 62, 111 F. Supp. at 951, we stated in respect to economic duress or business compulsion that:

In order to substantiate the allegation of economic duress or business compulsion, the plaintiff must go beyond the mere showing of a reluctance to accept and of financial embarrassment. There must be a showing of acts on the part of the defendant which produced these two factors. The assertion of duress must be proven to have been the result of the defendant's conduct and not by the plaintiff's necessities.'"

30 See Appendix.

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

*** 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 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

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 permitted 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 Mr. 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.

RIMROCK CANAL COMPANY

9 IBLA 333

Decided February 14, 1973

Appeal from decision (Idaho 3002) of Idaho Land Office, Bureau of Land Management, which rejected a rightof-way application.

Affirmed.

Rights-of-Way: Generally-Rightsof-Way: Act of March 3, 1891

There is no grant of a right-of-way under the Act of March 3, 1891, as to withdrawn lands without approval of the Secretary of the Interior, who may deny an application and approval of maps filed thereunder upon reasonable grounds, or condition approval as to the location of the improvements to be constructed. Administrative Practice-Fish Wildlife Coordination Act: Generally-Rights-of-Way: GenerallyRights-of-Way: Act of March 3, 1891 Withdrawals and Reservations: Generally

and

Where land has been withdrawn for state management as a wildlife area under the Fish and Wildlife Coordination Act, the Bureau of Land Management must consider the recommendations

of the state and of the Bureau of Sport

Fisheries and Wildlife to assure conser

vation of the fish and wildlife before approving a right-of-way application under the Act of March 3, 1891, for a pumping site and irrigation system. Applications and Entries: GenerallyFish and Wildlife Coordination Act: Generally-Rights-of-Way: Generally-Rights-of-Way: Act of March 3,

1891

A Bureau of Land Management decision which rejected an application under the 497-456-73-12

Act of March 3, 1891, for a pumping station and irrigation system within a small cove of a reservoir withdrawn for a fish and wildlife management area pursuant to the Fish and Wildlife Coordination Act, will be sustained where it was made in due regard for the public interest in managing the area in light of that Act. APPEARANCES: James L. Morrison, for appellant.

OPINION BY MRS. THOMPSON, INTERIOR BOARD OF LAND APPEALS

James L. Morrison for Rimrock Canal Company has appealed a decision of the Idaho Land Office, Bureau of Land Management, dated September 15, 1970, which rejected a right-of-way application for an irrigation system filed pursuant to the Act of March 3, 1891, 43 U.S.C. § 946 (1970). The public land over which the right-of-way is sought is the S12 NE 14 sec. 35, T. 5 S., R. 4 E., B.M., Idaho. The SW 14 NE 4 of this section has been withdrawn for a wildlife management area and a federal power project.

The application for the right-ofway was filed on June 6, 1969. It stipulated that if it were approved, it would be subject to the applicable regulations. The application was signed by James L. Morrison for Rimrock Canal Company. It was also originally signed by Dolly V. Morrison and Joe Morrison. Thomas Timbers subsequently signed the application on October

13, 1970.

The application includes a proposed water pumping site within the withdrawn area and on the shore of

C.J. Strike Reservoir, and also an irrigation pipeline and ditch rightof-way. On August 6, 1969, the Land Office notified James L. Morrison that the State of Idaho Department of Fish and Game and the Bureau of Sport Fisheries and Wildlife, United States Department of the Interior, objected to the proposed location of the pumping site in a small cove of the reservoir because it might adversely affect waterfowl hunting. The letter stated that the Fish and Game Department had no objection to the site if it were to be located at least 1,000 feet south of the proposed location. Morrison was invited to discuss any alternative proposals and to make a field inspection with state and federal officials to locate a new site.

Subsequently, on February 17, 1970, representatives of the Bureau of Land Management, the Idaho Department of Fish and Game, and the Bureau of Sport Fisheries and Wildlife, made a field trip with Morrison to inspect the proposed site. The Idaho Department of Fish and Game and the Bureau of Sport Fisheries and Wildlife continued their objection, but would consent to the application if the site were relocated 1,000 feet to the north or south.

The Land Office decision recited the history heretofore discussed and rejected the application. The rejection was for the reason the Bureau of Sport Fisheries and Wildlife and the Idaho Department of Fish and Game objected to the proposed location of the pumping plant in that

it would detrimentally affect the value of the cove site for fish and wildlife habitat and recreational purposes. The decision also held that the application was deficient in that: (1) the proper documents were not filed to evidence that the Rimrock Canal Company was legally organized as a corporation, association, or partnership; (2) evidence from the state was not submitted to show that the water right had been granted; (3) Thomas Timbers, whose name was in the mutual agreement and water permit application as a participant, was not included as an applicant in the rightof-way application or on the map. Although the application was rejected, appellant was given the right to amend the application by relocating the pumping plant to an acceptable location, and to correct the procedural deficiencies within 60 days of the decision. The decision advised appellant if additional time was needed to comply with the requirements, a written request would be given immediate consideration.

Appellant's letter of September 24, 1970, attempted to remedy the procedural deficiencies mentioned. Statements were made that Rimrock Canal Company is an unincorporated association composed of James Morrison, Dolly Morrison, Thomas Timbers, and Joe Morrison; and that Bernard Morgan, a former associate, quitclaimed his interest to James and Dolly Morrison. The letter also constitutes a notice of appeal. In it, appellant characterizes the refusal to grant the

right-of-way as arbitrary. It contends: (1) the Idaho Fish and Game Department and the Bureau of Sport Fisheries and Wildlife, who objected to the location of the pump site, can act only in an advisory capacity and have no jurisdiction in this matter; (2) the reclamation of 1,500 acres of land embraced in their desert land entries should have priority over maintaining a "semi" permanent duck blind; (3) the pump station would not interfere with hunting; (4) any negative effects created by the pump station would be offset by the crop residue from the reclaimed land which would benefit both waterfowl and upland game birds.

Appellant asserts that the pump site was selected because it was most feasible from an engineering standpoint in that: (1) the penstock covered the shortest possible distance across public lands; (2) the transmission lines would not mar the shoreline; and (3) detrimental dredging would not be required because the water was of sufficient depth. As to the suggested proposal to locate the site 1,000 feet to the north or south, it contends this would entail extensive dredging, would require an additional 1,000 feet of penstock on public lands, and the construction of a power transmission line along the shoreline.

In a further statement of reasons for appeal, appellant reiterates previous arguments and emphasizes that the pump site is aesthetically located because it is concealed from public view. It further contends

with respect to the pump site that: (1) the cove is not extensively used for recreational purposes; (2) it is a poor habitat for fish and wildlife; (3) the vegetation is sparse; (4) turbidity created by the pumps will be imperceptible; (5) the pump site would not have a deleterious effect on the shoreline; (6) the personnel who objected to the proposed location lack technical knowledge; (7) there are no other feasible sites; and (8) other pumping stations located on the reservoir and rightsof-way have been previously granted. It enclosed copies of the approved rights-of-way grants.

In addition to these objections to the denial of approval of the pump station site, appellant also raises a threshold issue as to whether he might construct the improvements without approval by Government officials. The short answer to this question based upon the facts in this case is that such an alternative is not available to appellant. This is evident because of the status of the land and applicable law.

As to the status of the land, prior to the date appellant's application was filed, the land was withdrawn as a power site. The administering agency of the power site reserve, the Federal Power Commission, has no objection to appellant's application. However, the site upon which the pumping station is planned, as has been indicated, has also been withdrawn "from all forms of appropriation under the public land laws *** for management by the State of Idaho as part of the C. J. Strike