April 8, 1971 also testified that he had first learned of the accesses proposed by the Bureau when he first reviewed the plans some 8 to 10 months after the contract was executed; 85 that he had personally examined the proposed accesses and had found them to be hazardous; and that thereafter, he had requested that the County be relieved of responsibility for the accesses in question.86 In most cases, the uncontradicted testimony summarized above would be determinative of the question presented. Here, however, the weight to be attached to Maccoun's testimony is seriously impaired by the fact that he was testifying to events which had occurred over two years prior to the hearing without the apparent benefit of contemporaneous notes of any kind. The record discloses that his memory was dim with respect to at least some aspects of the final negotiation sessions.87 It should be noted that there are contradictions between Maccoun's testimony and his letter of February 8, 1968 (Exhibit 9). The assertion that he did not become aware of the accesses planned outside the takeline (as Maccoun had defined it) until 8 to 10 months after the contract was executed,88 is clearly contrary to the knowledge disclosed by the aforementioned letter.89 Also it is significant that in the very same “*** I was concerned with all access to the road, whether it be private or public * * *” (Tr. 149). A short time later responding to an inquiry by Government Counsel as to his recollection concerning discussions to the effect that regulation by the County over accesses to Government property or that were to be for the purpose of the Gvernment was not within the realm of possibility, Maccoun stated: "Anything outside of the dam project purpose take-line I asked for control of and I thought received within the contract* * *." (Tr. 149, 150) 85 The following colloquy occurred on direct examination: "Q. When did you first learn that access had been granted or were planned outside the take-line? "A. When I *** first reviewed the plans. "Q. Was it before or after the contract was executed? "A. This is about-I would say eight-ten months *** or longer after the contract was executed." (Tr. 135) 86 Tr. 135-137. 87 Compare Maccoun's testimony on direct examination that Mr. King and he thought— Mr. Kadie or Mr. Horton were the Bureau conferees (Tr. 129) with his acknowledgment on cross-examination that Mr. Robert Smythe and Mr. Gordon Whitaker together with Mr. King may have been the Bureau representatives (Tr. 143, 144). 88 Note 85, supra. 89 Exhibit 9; letter of February 8, 1968, from Mr. Maccoun, to Mr. Rolin, pp. 2, 3 ("On your preliminary layout plans you have indicated an access on the right at approximately Station 94. We would request that this access be moved up to opposite the access at Station 103+35 ***. Basically, the reason for this is that the right hand traffic will be going slow in this area, it is on approximately a 7% grade, and the fast moving vehicles which would be the predominate cars using this turn-off would be attempting to pass slow moving vehicles and then to quickly change lanes to make this turn-off and also it is much more desirable to establish the traffic control in the left turn slots in one location and have the two access roads opposite each other, this is especially true in this area with the high gradiance of the roadway. We are cognizant of the fact that the plans for the park areas are not finalized and, therefore, we think that this should be brought to the attention of the Beaches and Parks State Engineers and be resolved.") letter-written only 23 days after the contract was executed-he clearly indicated that the questions he had raised concerning the proposed accesses should be resolved between the Bureau and the California Division of Beaches and Parks.90 This is precisely how the Bureau viewed the matter.91 Had we jurisdiction over the claims asserted, we would remand the case to the contracting officer for a finding on the question of the extent to which the allegedly hazardous condition with respect to the accesses proposed by the Bureau would have been present if the substitute road had been built on the alignment reflected in the L-4 route. In this connection we note that the County is hardly in a position to complain if the allegedly hazardous conditions are a concomitant 92 of the Bureau having built the substitute road with 7 and 8 percent grades after first having informed the County that accommodating its request to avoid taking any homes in either the Sylvan Vista or the Auburn areas would inevitably result in steeper grades. Decision The most basic issue raised by this appeal concerns our authority to provide a remedy for the wrongs alleged. Respecting the jurisdiction of the boards of contract appeals, the most recent authoritative statement is the Supreme Court's decision in United States v. Utah Construction and Mining Co., 384 U.S. 394 (1966), in which questions involving the basis for and the extent of the jurisdiction of the several boards were examined in considerable detail. The guidelines established in Utah have been discussed and applied by the Board in a number of cases. In American Cement Corporation, IBCA-496-5-65 and IBCA-578-7-66 (September 21, 1966),93 the Government vigorously contended that the claim by a supply contractor for loss of commercial business (lost profits) was cognizable under either the standard Changes Clause or the Extras Clause. We found otherwise. In MevA Corporation (note 20, supra), the question presented was whether the claims by a construction contractor were 90 Note 89, supra. 91 Exhibit 10; letter of April 8, 1968, to the Placer County Board of Supervisors, p. 3 ("*** The locations of the turnoffs to serve the recreation areas have been coordinated with the Division of Beaches and Parks and they have concurred with our locations.") 92 The record indicates that there is such a nexus. See, for example, the testimony of County witness Kokila upon direct examination and particularly the following exchange: "Q. In your opinion is there any objection to the design of these access locations? "A. Yes, because they approach this road at-on a grade of where the road is at seven per cent. This is on the easterly portion." (Tr. 64). 93 73 I.D. 266, 66-2 BCA par. 5849. The dismissal of the claim for lost profits was affirmed on reconsideration, 74 I.D. 15, 66--2 BCA par. 6065 (1967). April 8, 1971 cognizable under the terms of the contract where the increased costs claimed were attributed to the refusal of the Government to permit the substitution of a different subcontractor than the contractor had listed in its bid as required by the terms of a special subcontractor listing clause contained in the invitation and in the resulting contract. We found that they were not. Unlike the situations present in American Cement and MevA, supra, no question has been raised as to the Board's authority to pass upon the claims asserted. We have previously held, however, that the characterization of a claim as under the contract or for breach of contract is not determinative of our jurisdiction. Very recently another board has held that the jurisdictional question must be faced even though it had not been raised by either party to the dispute.95 96 94 This case differs from American Cement and MevA, supra, in another material respect. Here neither party has pointed to any contract provision under which relief of the type sought by the County could be provided upon a proper showing. Both the contracting officer's decision (Exhibit 30), and the notice of appeal (Exhibit 31) refer to the contract's Disputes clause.97 The inclusion of a Disputes clause in a contract does not convert what would otherwise be a claim for breach of contract, however, into a claim under the contract. This is clear from Utah in which the Supreme Court specifically rejected the Government's all Disputes clause argument." 98 94 Note 93, supra. 95 JCM Corporation, DOT CAB No. 70-6 (November 13, 1970), 70–2 BCA par. 8586, at 39,887 ("Although neither party has raised any question as to the Board's jurisdiction to hear and decide this appeal, we nevertheless must face this crucial threshold issue.") 96 The contract contains neither a Changes clause nor any other clause under which the County's complaints could be redressed. Cf. JCM Corporation, note 95, supra, at 39,887 ("The jurisdiction of boards of contract appeals is limited to claims under specific contract provisions authorizing the relief sought. * * *") 97 Note 12, supra. 98 See United States v. Utah Construction and Mining Co., cited in the text, in which at 403-404, the Supreme Court stated: 66 ** The Government reasserts here its position in the Court of Claims that the disputes clause authorizes and compels administrative action in connection with all disputes arising between the parties in the course of completing the contract. In its view, the disputes clause is not limited to those disputes arising under other provisions of the contract✶✶✶ that contemplate equitable adjustment in price and time upon the occurrence of the specified contingencies. *** "We must reject the government position, as did all the judges in the Court of Claims. the short of the matter is that when the parties signed this contract in 1953, neither could have understood that the disputes clause extended to breach of contract claims not redressable under other clauses of the contract *** (footnotes omitted)." Cf. McGraw Edison Company, IBCA-699-2-68 (October 28, 1968), 75 I.D. 350, 357, 68-2 BCA par. 7335, at 34,113 ("Neither the cases cited by the appellant nor our own research has disclosed any instance where this Board has had occasion to pass upon a Government claim for damages in the absence of a specific contract provision or provisions under which it was considered to be cognizable. * *"') * Conclusion The appeal is dismissed as beyond the scope of our jurisdiction. WILLIAM F. MCGRAW, Chairman. WE CONCUR: DEAN F. RATZMAN, Alternate Member. SHERMAN P. KIMBALL, Member. IBLA 70-16 MAX TANNER, CROSS (X) RANCH, CLARENCE A. ELQUIST, INTERVENOR Decided April 22, 1971 Grazing Permits and Licenses: Appeals An appeal to the director from a decision of a hearing examiner which is received after the period set by the rules of procedure for grazing cases will not be dismissed solely for being late, but the circumstances surrounding the appeal will be examined to determine whether in the exercise of discretion the late appeal should be allowed. Grazing Permits and Licenses: Apportionment of Federal Range Where the grazing capacity of the federal range has been greatly increased due to the efforts and expenditures of the licensee with the cooperation of the Bureau of Land Management, and the range is to be divided into separate allotments for that licensee and a group of others, it is proper to allocate the increased capacity to such a licensee apart from the allocation of grazing privileges based on natural forage, especially when the individual licensee suffers a greater reduction of his class 1 demand than do the others. Grazing Permits and Licenses: Advisory Boards-Grazing Permits and Licenses: Apportionment of Federal Range Where a proposed line dividing an area into spring/fall and summer use areas and the criterion on which it is based has been discussed many times before an advisory board, the district manager may use that line in allocating grazing privileges despite the fact that it has not been set out in an advisory board recommendation. Grazing Permits and Licenses: Federal Range Code The provisions of the Federal Range Code dealing with protests to a decision of the district manager are satisfied if a person is notified of his right to protest from an initial decision; if however, that decision is changed as a result of another's protest, those dissatisfied with the amended decision do ROSS WARBURTON, APPELLANTS, CLARENCE A. ELQUIST, INTERVENOR April 22, 1971 not have a further right to a protest hearing, but must take an appeal as the Range Code provides. Grazing Permits and Licenses: Apportionment of Federal Range A permittee or licensee has no right to any particular portion of that Federal Range under the Taylor Grazing Act or the Federal Range Code and, although historical use is a factor to be considered in the determination of grazing privileges, the selection of the particular area in which the range user may exercise his privileges in a matter committed to the discretion of the Department. BOARD OF LAND APPEALS Max Tanner, Cross (X) Ranch, Warren Rasmussen and Ross Warburton have appealed to the Secretary of the Interior from a decision of the Chief, Branch of Land Appeals, Office of HEARINGS AND APPEALS, Bureau of Land Management, dated October 8, 1968, which dismissed their appeal from a decision of a hearing examiner affirming the establishment by the District Manager of the Elko Grazing District, Nevada, of the boundary line between the appellants' group allotment and the individual allotment of Clarence A. Elquist on the ground that their appeal was not timely filed. The decision also said that if the appeal were to be decided on the merits, it would uphold the allotments as established by the district manager. The hearing examiner's decision is dated February 26, 1968. Under the provisions of the Federal Range Code for Grazing Districts effective at that time, the appeal, after several extensions had been granted, ought to have been filed in the Office of the Director on June 28, 1968. 43 CFR 1853.7(b). It was, in fact, mailed in Salt Lake City on June 27, 1968, and received on July 1, 1968. The Office of HEARINGS AND APPEALS held that the appeal was filed late and under the consistent rulings of the Department an appeal to the Director from a decision of a hearing examiner in a grazing case filed late must be summarily dismissed. The appellants contend that the regulations do not require the summary dismissal of a late appeal and that the Secretary may exercise his supervisory authority to relieve the appellants of the consequence of a late appeal. In a recent decision, Delbert and George Allan, 2 IBLA 35 (March 4, 1971); 78 I.D. 55, the Department reviewed its rulings on late grazing appeals. It concluded that since the courts have held that the term "subject to summary dismissal" in other than grazing cases does not justify a dismissal of an appeal without the exercise of discretion, it would follow the same rule for grazing appeals. It then held that a grazing appeal mailed within the appeal period and received one day late would not be dismissed solely for that reason, but that the circum |