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May 1, 1973 APPEAL OF IVERSON CONSTRUC- INTERIOR BOARD OF TION COMPANY (A/K/A ICONCO) CONTRACT APPEALS
This appeal stems from a contract Decided May 1, 1973
for the upgrading of a section of Contract No. 14_06_D_7193, Specifi
transmission line at an estimated cations No. DC-6898, Tower Footings price of $258,700, and consists of for Upgrading, Section of Malin
two claims. The first claim, in the Round Mountain 500-kv Transmis
amount of $80,304.95, arose out of an sion Line, Pacific Northwest-Pacific alleged acceleration in performance Southwest Intertie, Bureau of Recla
ordered by the Government. The
second claim is in the sum of $8,476 mation.
and is for additional concrete Denied Without Prejudice. required.
The appellant has made an apRules of Practice: Appeals: Gener
plication under Sec. 4.115 of the ally-Rules of Practice: Evidence
Board's rules to take oral deposiRules of Practice: Witnesses
tions of William C. Hart, John R. I contractor's application to take deposi- Merlino, John Chiolero, Donald tions of retired Bureau employees and of
Hildebrandt, and William Boyett a newspaper reporter will be denied,
(or "Bouett"), who are allegedly since such prospective witnesses are not under the control of the Government and employed by the Bureau of Reclathe Board has no jurisdiction over third mation, and of Dennis Smith, who parties.
is identified as an employee of a Rules of Practice: Appeals: Gener- newspaper in Burney, California. ally-Rules of Practice: Evidence- As specified in the application, the Rules of Practice: Witnesses
deposition of Mr. Smith, if allowed,
is intended for use as evidence and A contractor who fails to take advantage of Government offers to examine certain
the purpose of the other depositions information relative to its claims is not is discovery. entitled to have its application to take the In its application, appellant asdepositions of Government employees for serts that Messrs. Hart, Merlino, purposes of discovery granted, as the
Chiolero, Hildebrandt and Boyett contractor has not shown good cause as required by the Board's rule governing
are Bureau employees and inspecdiscovery (43 CFR 4.115).
tors who had control and authority APPEARANCES: Wade H. Hover,
to issue orders on the job and that
each actively participated in giving Attorney at Law, San Jose, California,
such orders. They are said to have for the appellant; William A. Perry,
"personal knowledge of the progress Department Counsel, Denver, Colo- of the work and orders of superrado, for the Government.
80 I.D. Nos. 5 & 6
The appellant also alleges that not occurred. In the Government's "these persons were all identified in view the extent, if any, of examinaGovernment records and their acts tion by deposition cannot be deterand conduct are well known to the mined in advance of inspection of Government but not to” the contrac- the documents. Finally, the Governtor. Appellant states that they have ment objects to the application on been interviewed by the Govern- the ground that the appellant has ment but not by it. Appellant be- failed to specify with particularity lieves that “some or all * * * have the scope of the respective examinamade written and oral statements tions to be conducted. which” it "believes will be helpful For the reasons hereinafter set to proof of its case."
forth, the application in its entirety Finally, the belief is expressed by is denied without prejudice to rethe appellant that the passage of newal. Messrs. Chiolero and Boyett time is prejudicial to its case, that are retired and no longer employed details may be forgotten, that "some by the Bureau of Reclamation, acare retired, and that as time passes cording to Department Counsel. Mr. others may become unavailable.” It Smith has not been employed by the is said that if they are produced Bureau. As such they are third for oral depositions, the "costs of parties over whom the Board has transporting [the witnesses at ]
no jurisdiction. In the absence of a [the] time of hearing will be cut showing that the Government has considerably.”
control over Messrs. Chiolero, BoyAppellant seeks to take Mr. ett, or Smith, the application as to Smith's deposition in the belief that them is denied ipso facto.? he has "research data available that For other reasons, the application will further prove" its appeal is denied as to Messrs. Hart, Merwhich it needs * * * for the fair lino and Hildebrandt. In the first
“* and proper presentation of its case
place, as we recently observed, the :*."
granting of applications to take The Government opposes the ap- depositions is discretionary with the plication for several reasons. First, Board. Even if good cause is it contends that there has been no showing of good cause made as re
1 Blackhawk Heating & Plumbing Co., Inc., quired by Sec. 4.115 of the Board's
of Donovan Construction Company, VACAB
No. 744 (September 23, 1968), 68-2 BCA par rules. Second, the motion is said to 7252;
VACAB Xos. 470 and 515 (August 12, 1968). be premature in that the Govern
68-2 BCA par. 7180. ment intended to cooperate in dis- 2 Id. In addition, Mr. Smith's relationship to covery proceedings without
this case appears remote at best. But even if it
can be shown that his testimony has relevance, formal request to the Board. Ac
an application for the taking of a deposition cording to Department Counsel, the
as evidence will not ordinarily be
permitted unless the deponent will be unavail. Government first anticipated ex- able for the hearing. Carl W. Olson & Sons Co., changing all unprivileged docu- IBCA-930–9–71 (April 18, 1973), 73–1 BCA ments with the appellant, which has
3 Carl W'. Olson & Sons, note 2, supra.
May 9, 1973
shown, as required under Sec. 4.115, application is necessary or approa deposition will not be authorized priate at this stage. should it appear that the appeal Parties should avail themselves will not be expedited thereby.4 of the opportunities open to them
It has been said that the term through a voluntary exchange of in"good cause shown” in a rule regu- formation. Before coming to the lating discovery is flexible and has Board for formal relief, all such no fixed or definite meaning; each informal avenues should be exapplication thereunder is to be eval- hausted. In this case the appellant uated upon the circumstances ap- has not demonstrated that the inpearing from the pleadings and formation it seeks to elicit is not then determined by the sound dis
available to it through less costly cretion of the adjudicatory body be
and burdensome means than the fore whom it is made."
taking of oral depositions. Here the complaint is stated in
We hold that the appellant has broad, general terms. The claims do
not shown good cause entitling it to not appear unusual in complexity or
the examinations requested. The apmagnitude. The appellant has not particularized in its application the
plication is accordingly denied
without prejudice to renewal upon nature of the inquiries it intends to
a demonstration of good cause make. The purpose to be served by
therefor. the taking of the depositions is by no means clear. The Government,
SHERMAN P. KIMBALL, Member. on the other hand, has offered to make available to the appellant all
I CONCUR: unprivileged documents relating to
WILLIAM F. McGraw, Chairman. the appeal. Under the circumstances it does not appear that the
E. L. CORD, DONALD E. WHEELER, * Id. Of. National Construction Company,
EDWARD D. NEUHOFF
10 IBLA 363
Decided May 9, 1973 covery, and the record as it stands at the time of consideration of the motion or application does not either disclose such good cause,
Appeals from separate Bureau of Land or that an order upon the opposing party to
Management decisions (ES 4532produce the information or documents sought would serve the general purposes of pre-trial 4536, 6801, 4529) rejecting applicadiscovery procedures to imit the issues to
tions for cash redemption of forest be tried, to lead to stipulation as to matters of fact, to preclude surprise at the hearing, or lieu selection rights. otherwise contribute to a just and equitable disposition of the appeal without undue delay, the Board will not issue such an order."
See Westinghouse Electric Corporation, 5 Tholander v. Tholander, 111 A.2d 643, 644 AEC BCA No. 68-2-70 (April 1, 1970), 70-1 (N. J. Super. 1955).
BCA par. 8214.
Railroad Grant Lands—Scrip: Generally A release filed by a land-grant railroad pursuant to section 321 (b) of the Transportation Act of 1940, 54 Stat. 954, extinguishes the right of the railroad or its attorneys-in-fact to select lands or receive compensation in lieu of lands originally acquired by it under the Act of July 27, 1866, in aid of construction of the railroad but relinquished under the Act of June 4, 1897.
seq. Each decision recited that the alleged rights derived through the Santa Fe Pacific Railway Company (hereafter Santa Fe), had been released and relinquished by Santa Fe and were not valid. The gravamen of the several appeals is substantially similar. The appellants deny that their rights were extinguished by the release. They assert that they hold valid subsisting scrip and that they are entitled to satisfaction as provided by the Act of August 31, 1964, supra. The appeals, therefore, are consolidated for the purposes of this decision.
Appellants' scrip stems from the interaction of several statutes granting lands or lieu rights to Santa Fe. Certain lands were patented to the railroad under the grant made by the Act of July 27, 1866, 14 Stat. 292. They were reconveyed by the railroad to the United States pursuant to the Forest Exchange Act of June 4, 1897, 30 Stat. 36, as
Scrip: Payment in Satisfaction
Where a railroad's forest lieu selection rights are extinguished by a release given to the United States, the rights (if any) of a purchaser of the selection rights from the railroad are also extinguished.
APPEARANCES: Edward D. Neuhoff, Esq., pro se and for E. L. Cord; Thomas Trimble, Esq., of Jennings, Strouss & Salmon, for Donald E. Wheeler.
OPINION BY MR. RITVO INTERIOR BOARD OF
E. L. Cord, Donald E. Wheeler, and Edward D. Neuhoff seek review of separate Bureau of Land Management decisions rejecting their respective applications for cash redemptions of certain forest lieu selection rights made pursuant to the Act of August 31, 1964, 43 U.S.C. $ 274 (1970), and the pertinent regulation 43 CFR 2012.1 et
1 The names of the applicants, their application numbers, the date of the Bureau of Land Management decision and the appeal numbers are as follows:
E. L. Cord:
IBLA 7192 ES 4534. ... December 14, IBLA 71-150.
1970. ES 4534 May 26, 1971.. IBLA 71-318. ES 4536 January 8, IBLA 71-165.
1970. Neuhoff: ES 4529.. .-November 2, ILBA 73–198.