Full opinion text
OPINION PER CURIAM: This ease is before the court on plaintiff’s exceptions to the report of Trial Judge Thomas J. Lydon. After consideration of the briefs and oral argument of the parties, we adopt the report, as modified, as an opinion of this court. Since we disagree with Part IV of the report, dealing with compensation for delay in payment, we have deleted that portion and submitted our own discussion in lieu thereof. The conclusion of law has been changed to reflect our view of the delay in payment issue. The trial judge’s report, as modified, follows: OPINION OF TRIAL JUDGE LYDON, Trial Judge: Some 3,368 acres of land owned by plaintiff in Humboldt County, California, were legislatively taken from it by Pub.L. No. 90-545, approved October 2, 1968, 82 Stat. 931, 16 U.S.C. § 79c(b)(l) (1976), relative to establishment of Redwood National Park. It is conceded that plaintiff is entitled to recover just compensation as a result of this taking. However, the parties have been unable to agree completely on the amount of just compensation that should be paid. A number of issues involved in this litigation have been resolved by the parties. The issues remaining for decision herein are: 1) whether plaintiff suffered severance damages to its remainder property as a result of the taking, and, if so, the amount thereof; 2) the appropriate rate of interest to apply as part of just compensation for the delay in payment of such severance damages; and 3) whether plaintiff is entitled to recover litigation expenses (including reasonable attorney, appraisal and engineering fees) incurred because of this proceeding under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub.L. No. 91-646, 91st Cong., 2d Sess., approved January 2, 1971, 84 Stat. 1894, 42 U.S.C. § 4651 (1976) (hereinafter Uniform Relocation Act). I A Plaintiff, a Georgia corporation, has its principal offices in Portland, Oregon. It has additional offices and major business sites located throughout the United States. Plaintiff is in the business, among other things, of growing, processing, manufacturing and marketing timber and forest products. It is a major forest products manufacturing concern with extensive holdings of fee timberlands. This litigation is only concerned with certain of plaintiff’s lands and holdings in Humboldt County, California, which, in plaintiff’s corporate organizational structure, were managed by its Samoa Division in 1968. As of October 2, 1968, plaintiff owned certain forest lands in Humboldt County known as the Big Lagoon tract. It appears plaintiff purchased this tract from the Hammond Lumber Company in 1956 or 1957. The tract consisted of roughly 88,000 acres of mostly commercial timberlands. This tract was managed and operated by the Samoa Division for the growth, harvest and manufacture of the timber located thereon. Old-growth redwood timber was the primary timber species on the Big Lagoon tract. However, there were also substantial volumes of old-growth Douglas fir, young-growth redwood and Douglas fir, as well as lesser volumes of other timber species. Plaintiff, and its predecessor owner, had harvested timber from this tract for several decades prior to October 2, 1968. On October 2, 1968, the tract consisted of a mixture of timber age classes and land conditions, ranging from uncut virgin timber areas to recent clear-cut and residual areas. As of March 1,1968, it was roughly estimated that this tract contained, at a minimum, some 1.7 billion board feet of timber, of which some 1.6 billion board feet was estimated to be old-growth timber. On October 2, 1968, a system of truck roads had been constructed, and were being maintained, on the Big Lagoon tract for the logging of timber. On October 2, 1968, plaintiff owned and operated, through its Samoa Division, a number of facilities to process and manufacture harvested timber in Humboldt County. These facilities included a redwood sawmill, a pulpmill, a studmill, a plywood plant, docks and loading facilities, shops, company housing, etc. These facilities were located on 449.58 acres of industrial land in Samoa, California. A sawmill was also located on the Big Lagoon tract. The Samoa facilities were about 10 miles southwest of the Big Lagoon tract. Plaintiff owned a railroad right-of-way which connected the Big Lagoon tract to the Samoa facilities, but as of October 2, 1968, it did not use this railroad for transportation purposes, utilizing instead truck transportation. None of plaintiff’s facilities described above were taken. The 3,368 acres of land taken from plaintiff consisted of roughly a 12-mile elongated and irregular, in width, portion of the northeastern section of the Big Lagoon tract. This relatively narrow strip of taken land, a portion of which was sometimes referred to as “the worm” area, was on the west side of Redwood Creek, following its course thus explaining its irregular shape, and extended roughly from the area east of the town of Orick, California, southward for some 12 miles. Of the total acreage taken, only some 295.9 acres represented nonstocked and nontimbered lands. The remainder of the taken lands contained valuable commercial timber, including large volumes of high-quality, old-growth redwood timber. It was estimated that the taking removed over 18 percent of the total timber volume on the Big Lagoon tract. In substance, the taking removed 3,368 acres of land from the northeast corner of the 88,-000-acre Big Lagoon tract. The tract itself was not bisected as a result of the taking. B Since pertinent language in Pub.L.No. 90-545, supra, (hereinafter “the Park Act”), plays an important role in plaintiff’s severance damages presentation, it is deemed necessary to set forth said language in full. The Park Act in its preamble stated that Redwood National Park was established: * * * in order to preserve significant examples of the primeval coastal redwood (Sequoia sempervirens) forests and the streams and seashores with which they are associated for purposes of public inspiration, enjoyment, and scientific study Section 2(a) of the Park Act severely restricted the authority of the Secretary of Interior as to the size of the park by providing that the “acreage within said park shall at no time exceed fifty-eight thousand acres, exclusive of submerged lands.” But the Secretary was given authority to modify the park boundary lines: * * * from time to time, with a view to carrying out the purpose of this Act and with particular attention to minimizing siltation of the streams, damage to the timber, and assuring the preservation of the scenery within the boundaries of the national park as depicted on said maps See Miller v. United States, 209 Ct.Cl. 135, 531 F.2d 510 (1976). Section 3 of the Park Act provided in pertinent part: (a) The Secretary is authorized to acquire lands and interests in land within the boundaries of the Redwood National Park and, in addition thereto, not more than ten acres outside of those boundaries for an administrative site or sites. Such acquisition may be by donation, purchase with appropriated or donated funds, exchange, or otherwise, but lands and interests in land owned by the State of California may be acquired only by donation. (d) The Secretary is further authorized to acquire, as provided in subsection (a) of this section, lands and interests in land bordering both sides of the highway between the present southern boundary of Prairie Creek Redwoods State Park and a point on Redwood Creek near the town of Orick to a depth sufficient to maintain or to restore a screen of trees between the highway and the land behind the screen and the activities conducted thereon. (e) In order to afford as full protection as is reasonably possible to the timber, soil, and streams within the boundaries of the park, the Secretary is authorized, by any of the means set out in subsections (a) and (c) of this section, to acquire interests in land from, and to enter into contracts and cooperative agreements with, the owners of land on the periphery of the park and on watersheds tributary to streams within the park designed to assure that the consequences of forestry management, timbering, land use, and soil conservation practices conducted thereon, or of the lack of such practices, will not adversely affect the timber, soil, and streams within the park as aforesaid. As used in this subsection, the term “interests in land” does not include fee title unless the Secretary finds that the cost of a necessary less-than-fee interest would be disproportionately high as compared with the estimated cost of the fee. No acquisition other than by donation shall be effectuated and no contract or cooper^ ative agreement shall be executed by the Secretary pursuant to the provisions of this subsection until sixty days after he has notified the President of the Senate and the Speaker of the House of Representatives of his intended action and of the costs and benefits to the United States involved therein. C Both parties engaged the services of consultants with forest industry experience to serve as expert witnesses on the issue of severance damages. Plaintiff’s severance damage appraisal report was the product of the joint effort of consulting foresters Robert E. Kleiner (Kleiner) and Wesley Rickard (Rickard). Milton Mater (Mater), a consulting professional engineer, was utilized as an expert on one phase of Kleiner and Rickard’s severance damage appraisal, presumably because they did not consider themselves experts in the valuation of forest products facilities, the phase of their severance damage presentation covered by Mater. Defendant’s severance damage appraisal report was the product of the joint effort of consulting foresters Warren S. Halsey (Halsey) and Arnold F. Wallen (Wallen). Kleiner and Rickard and Halsey and Wallen were deemed qualified to offer expert opinions in the fields of forest management, forest appraisals and related forest practices and procedures. On balance, however, the experience and knowledge of Halsey and Wallen in the redwood region and with the redwood industry was much greater than that of Kleiner and Rickard. Mater was deemed qualified to express opinions in the area of forest products facilities such as sawmills and pulpmills. Halsey did not consider himself an expert in evaluating forest products facilities such as sawmills, etc. Accordingly, Wallen was responsible for dealing with such matters in defendant’s appraisal report and in his testimony. Because of his wide experience in all phases of the forest products industry, including sawmill appraisals, Wallen was considered qualified to offer opinions as to valuation of forest products facilities. Plaintiff also offered Raymond E. Granvall, Jr., a real estate appraiser, as a witness, not for purposes of expert appraisal testimony, but solely for the purpose of presenting one way of comparing logging costs that an appraiser could consider when two different logging methods were under scrutiny. Defendant made no objection to Granvall being offered as a witness for this limited purpose, i. e., comparative logging cost analysis. Halsey’s experience was more extensive and his testimony was found more persuasive than was Granvall’s experience and testimony on matters of comparative logging costs. Plaintiff called two additional witnesses, under what it deems “protest,” as experts, John E. Day (Day) and Ross Bowles (Bowles), after the trial judge denied plaintiff’s motion during trial, which motion was opposed by defendant, that the court appoint Day and Bowles as the court’s expert witnesses on the issue of severance damages under Rule 706 of the Federal Rules of Evidence. The fears expressed by plaintiff that it might be bound by the appraisal report and testimony of Day and Bowles are unfounded. In my analysis and conclusions, under the existing circumstances, neither party has been deemed bound by this report and attendant testimony. It is to be noted that pertinent procedures specified in Rule 706(a) relative to court appointment of an expert witness were not followed in the case, e. g., these witnesses had no contract with the court until they testified, and they received no instructions from the court as to their duties. Both parties rightly concede that court appointment of expert witnesses is within the discretion of the trial judge, Fugitt v. Jones, 549 F.2d 1001, 1006 (5th Cir. 1977). Divergence of opinions among the experts of the parties does not require that the court appoint experts to assist it in resolving such conflicts. Daly City v. Smith, 110 Cal.App.2d 524, 243 P.2d 46 (1952). See also Oatley v. Callender McAuslan & Troup Co., 72 R.I. 334, 51 A.2d 88 (1947). Here, the trial judge was of the view that additional experts would not serve to elucidate, clarify, or enlighten him, but instead would add more divergence and opinion differences in a cumulative manner. The trial record proved him right in this regard. Although continuing to press the appraisal report and testimony of Day and Bowles, on the court, to the extent favorable to it, plaintiff, paradoxically, during trial and in its briefs advised that it would rely on the findings and conclusions of its own experts, and only these findings and conclusions would be presented to the court for adoption. Defendant opposed consideration by the court of the Day and Bowles appraisal report and testimony. Suffice it to say that the appraisal report and testimony of Day and Bowles have been considered but have not been deemed helpful, under the circumstances of record, in resolving the issues at hand. Additional witnesses were presented by both parties. Plaintiff seeks to recover herein, as severance damages, the sum of $50,988,243. Defendant maintains that any award of severance damages in this case should not exceed $1,368,150. Plaintiff’s severance damage claim is based on the reduction in value of certain portions of its Big Lagoon tract as well as other lands owned by it and the reduction in value of certain of its mill facilities because of the taking from it of 3,368 acres of the Big Lagoon tract. As a general observation with reference to the experts presented by the parties in this case, the expected tendency of the opinions and testimony of these experts to incline too much towards the litigation position of the side that engaged them was manifested in varying degrees. See Seminole Indians of Florida v. United States, 197 Ct.Cl. 350, 361, 455 F.2d 539, 545 (1972). On this record, however, defendant’s experts presented a more balanced consideration of the thinking of a hypothetical buyer and seller than was the case with plaintiff’s experts who were, in my opinion, more buyer oriented. II There is agreement, and rightly so, by the parties that any evaluations herein must be determined as of October 2, 1968, the date of taking. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336 (1943). The parties also approach the problem of severance damages from the viewpoint of a hypothetical willing buyer and willing seller, neither being under compulsion to buy or sell, and both being reasonably informed as to all relevant facts. See Jack Daniel Distillery v. United States, 180 Ct.Cl. 308, 315-16, 379 F.2d 569, 574 (1967). Defendant’s experts relied on the following definition of severance damages: When the United States acquires only part of a single tract in one ownership, if the taking diminishes the value of the remainder, the owner is entitled to compensation for the losses as for a taking. Although “somewhat loosely spoken of as severance damages,” it is an element of value arising out of the relation of the part taken to the entire tract. This definition was based on language to be found in United States v. Miller, supra, 317 U.S. at 376, 63 S.Ct. at 281, and Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 976, 42 L.Ed. 270 (1897). While plaintiff’s definition of severance damage basically embraces the one set forth above, albeit, with different phraseology, plaintiff’s experts additionally believed that severance damage “ * * * can generally be seen when: * * * The reduction in value to the remainder is a direct result of the partial taking and/or the proposed use of the part taken.” (Emphasis supplied.) Plaintiff’s experts, in their appraisal analysis, took into account the use to which the United States put the land taken from plaintiff, i. e., use as part of a park. Defendant’s experts did not take into account, in their appraisal efforts, the use to which the taken land was put by the United States. In the context of a fifth amendment taking, just compensation has been interpreted to mean “the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.” Almota Farmers Elevator & Whse. Co. v. United States, 409 U.S. 470, 473-74, 93 S.Ct. 791, 794, 35 L.Ed.2d 1 (1973). The “monetary equivalent” referred to above has found acceptance in the concept of fair market value, which value is normally to be ascertained, with reference to the property in question, from what a willing buyer would pay in cash to a willing seller, neither being under any compulsion to buy or sell and both being fully informed knowledgeable about all relevant matters. See United States v. Miller, supra, 317 U.S. at 374, 63 S.Ct. at 280; United States v. Virginia Electric & Power Co., 365 U.S. 624, 633, 81 S.Ct. 784, 790, 5 L.Ed.2d 838 (1961). In circumstances where there is a partial taking of property, just compensation is mandated for any depreciation in value of the remaining property not taken which is occasioned by the partial taking. See United States v. Grizzard, 219 U.S. 180, 183-85, 31 S.Ct. 162, 163-64, 55 L.Ed. 165 (1911); Sharp v. United States, 191 U.S. 341, 351-52, 24 S.Ct. 114, 116, 48 L.Ed. 211 (1903). It is important to keep in mind that severance damage is not a separate and distinct item of just compensation. See United States v. 91.90 Acres of Land, 586 F.2d 79, 86 (8th Cir. 1978). In United States v. Fuller, 409 U.S. 488, 490, 93 S.Ct. 801, 803, 35 L.Ed.2d 16 (1973), the Supreme Court observed that “[t]he constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness * * as * * * [it] does from technical concepts of property law.” As a result, courts have had to adopt working rules in order to do substantial justice in just compensation cases. United States v. Miller, supra, 317 U.S. at 375, 63 S.Ct. at 280. The concept of just compensation, however, cannot be reduced to a formula, United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392 (1949), nor can it be confined to inexorable rules, United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 402, 70 S.Ct. 217, 221, 94 L.Ed. 195 (1949). Under the circumstances of this case fair market value is an appropriate and practical approach to a just compensation award herein, keeping in mind the observations noted above. Neither party used the standard “before and after” evaluation approach in their severance damage analysis. This is generally the simplest and perhaps the most widely used approach in severance damage determinations. This approach also serves to lessen the pitfalls and problems that arise when a series of factors affecting value are added together to arrive at a total severance damage determination. See United States v. 91.90 Acres of Land, supra, 586 F.2d at 86-87. In this case, the parties approached severance damages on a category-by-category basis, which plaintiff labeled a “modified before and after” approach, or on an item-by-item basis, wherein defendant attempted to determine where on the remainder land severance damage actually occurred or could have been reasonably anticipated as a result of the taking. Under plaintiff’s “modified before and after” approach, plaintiff’s experts identified the changes and economic factors affecting the property, which they deemed important to value, which factors and/or changes resulted, in their opinion, from the partial taking and the proposed use of the part taken. They identified these changes and factors and weighed their effect on the value of the property. As indicated previously, the determination of just compensation is not confined to any rigid “formula,” “inexorable rules,” or method. Further, it is recognized that market value determinations must be reached, even though valuation methods employed by the parties make the path to such determinations more difficult. See Cities Service Gas Co. v. United States, 217 Ct.Cl. 590, 597, 580 F.2d 433, 437-38 (1978). The approaches to severance damages herein represent practical efforts by the parties to reach valuation determinations in a very unique and complex set of circumstances. While these approaches are accepted for purposes of reaching severance damage determinations herein, it should be borne in mind that the burden of proof rests on plaintiff to establish depreciation of the value of the remaining property because of the partial taking. United States v. 329.05 Acres of Land, 156 F.Supp. 67, 71 (S.D.N.Y.1957), aff’d 263 F.2d 331 (2d Cir. 1959). The particular evaluation approach utilized by a party in severance damage situations can sometimes serve to increase the burden it must carry in persuading that speculation and conjecture are not the essence of its presentation. See United States ex rel. T. V. A. v. Robertson, 354 F.2d 877, 881 (5th Cir. 1966). As a general proposition, whether or not remainder property in a partial taking situation suffers resulting depreciation is a question of fact. Such a determination embraces all the facts and circumstances a reasonable, fully-informed and knowledgeable willing seller and willing buyer would consider at the time of a hypothetical transaction on the date of taking. See United States v. 3969.59 Acres of Land, 56 F.Supp. 831, 839 (D.Idaho 1944). Case law indicates that a wide range of factors are relevant in severance damage determinations and that, in general, they are essentially ad hoc factual inquiries. Depreciation of remainder land because of the use to which taken land is put is recognized as an evaluation factor that may be considered in a severance damage determination. Sharp v. United States, supra, 191 U.S. at 354, 24 S.Ct. at 117; United States v. Grizzard, supra, 219 U.S. at 183, 31 S.Ct. at 163; West Virginia Pulp & Paper Co. v. United States, 200 F.2d 100, 103-04 (4th Cir. 1952). Plaintiff’s experts, as indicated previously, believed that use of the taken land as a park would serve to depreciate the value of the remainder land, whereas defendant’s experts did not believe that such a use would have any such effect. Plaintiff argues that Halsey’s failure to consider the use to which the taken land was put is inconsistent with the legal definition of severance and constitutes error as a matter of law. This broad charge cannot be accepted. Indeed, Halsey’s definition of severance damage comports most favorably with the legal definition of severance damage used by the court in Coast Indian Community v. United States, 213 Ct.Cl. 129, 146-47, 550 F.2d 639, 648 (1977). Interestingly, Kleiner, plaintiff’s expert herein, was also the severance damage expert for the Coast Indian Community in the above-referred-to case. It seems obvious that the use to which taken land is put, in the context of severance damages, is merely an evaluation factor that may or may not be viable depending on the circumstances of each case. Reasonable experts can disagree on such a matter, depending on how they view a hypothetical buyer and seller. If an expert, in the eyes of a court, improperly fails to consider the factor of use, in a severance damage situation, less weight presumably would be given to his opinion. Plaintiff’s position that use must be considered in any severance damage appraisal cannot be accepted. Use may be considered if an expert believes it to be a proper evaluation factor. This is the holding to be gleaned from the many “use” cases cited by plaintiff. These cases also suggest that use of partially-taken land is best considered as a broad general factor, together with other factors, in a before-and-after evaluation approach to severance. When use is considered separately and apart from an overall evaluation of the total property, the problems of speculation and conjecture become more pronounced. See United States ex rel. T.V.A. v. Robertson, supra, 354 F.2d at 881. It is important to note that plaintiff’s remainder land was timbered forest land similar to the adjacent park take land. It is unquestioned that the park take land was to remain pristine and undisturbed, providing a cathedral-like environment. From a physical viewpoint, the establishment of the park created no actual nor potential physical hazard to the remainder land. Nor could one reasonably anticipate fears of possible physical damage because of the park’s presence. The taken land in this case was not to be used for military purposes which would damage and depreciate the remainder land (Sharp v. United States, supra); nor was the taken land herein permanently flooded such as to deprive the remainder land of access to a public road (United States v. Grizzard, supra); nor was the taken land to be used for the storage of gasoline for the Air Force with hazardous potential (West Virginia Pulp & Paper Co. v. United States, supra). See Boyd v. United States, 222 F.2d 493, 494-95 (8th Cir. 1955), where claimed severance damages for diminution in value to remainder land merely because said land was made to adjoin an Air Force base by reason of a partial taking was denied. The presence of a park is generally not considered to have a depreciating effect on the surrounding lands. See Reichelderfer v. Quinn, 287 U.S. 315, 318-19, 321, 53 S.Ct. 177, 178-79, 77 L.Ed. 331 (1932). As to the establishment of parks generally see Shoemaker v. United States, 147 U.S. 282, 297-304, 13 S.Ct. 361, 389-92, 37 L.Ed. 170 (1893). In this case, it is difficult to accept the view, without more, that the mere establishment of Redwood National Park served to depreciate in value the adjacent commercial timberlands of plaintiff. The use of the taken land as a park was not incompatible, on this record, with plaintiff’s commercial timberland operation. Redwood state parks existed in California before October 2, 1968, and there is no persuasive evidence in the record that timberland sales of lands adjoining said parks reflected depreciation in value of said lands merely because said lands bordered on the parks. Ill The determinative question in this case is what a reasonable and knowledgeable buyer and seller would pay on or about October 2, 1968, for plaintiff’s remainder property as a result of the partial taking. It is now time to answer that question in the context of plaintiff’s specific severance damage claims. Plaintiff advances five categories of claims for severance damage consideration, seeking recovery of the amounts in parenthesis: 1) reduction in timber volume harvest on remainder lands because of anticipated changes in logging methods ($25,834,-600); 2) increases in logging and supervision costs because of anticipated changes in logging methods and the anticipated necessity to protect the park ($17,563,348); 3) anticipated changes in management practices because of the park’s presence ($4,000,-000); 4) anticipated depreciation in value of certain manufacturing facilities because of reduced timber supply ($1,902,331); and 5) anticipated increased costs for replacing gravel supply, anticipated increased animal damage to remainder lands, and increased management costs because of anticipated conflicts resulting from the presence of the park ($1,751,312). As indicated previously, the total amount claimed as severance damages is $50,988,243. Categories 1 and 2 Severance Damages Plaintiff contends that as a result of the partial taking and the attendant creation of the park, a reasonable and knowledgeable buyer and seller of the remainder property would depreciate the market value of said property because they would anticipate that they would be unable to log timber on certain areas of this property in the same manner as before the taking. This anticipation, according to plaintiff, would rest on the awareness of a buyer and seller of the background of public controversy relating to redwood logging in California prior to creation of the park, the legislative history of the Park Act and the specific language of the Park Act itself. Plaintiff does not claim that all areas of its remainder property suffered a reduction in value because of the taking. Instead, it claims that there were five “Sensitive Areas” (sometimes hereinafter “SA”) in which it would have to utilize different logging methods and thus would anticipate greater logging expenses and less timber volume production which would, in turn, serve to depreciate the values of these sensitive areas. These five sensitive areas covered 8,551.28 acres and comprised less than 10 percent of the remainder property acreage. Sensitive areas 1, 2, and 3 are such that they can be considered together. The beginning postulate for plaintiff is that each of these areas would have been tractor logged in a clear-cut manner absent the taking in issue. Sensitive area 1 was located west of the park and east of the town of Orick and the Pacific Ocean. SA 1 began near the top of a ridge and adjoined the park on the east at the top of the ridge. It was in the northwest corner of the Big Lagoon tract. SA 1 sloped downward and westerly, away from the park. This area consisted of 592.6 acres containing an estimated 76,953,000 board feet (BF) of net redwood, Douglas fir and other timber species. This area was generally suitable for tractor logging. The record clearly indicates that this area could be tractor logged in a clear-cut fashion subsequent to the taking without causing any physical damage to, or encroaching in any way, on the park. Plaintiff seeks to recover in sensitive area 1 category 1 severance damage of $1,545,236.50, based on the value of anticipated lost timber volume because this area would have to be cable logged in a selective fashion, and category 2 severance damage of $1,420,528, based on anticipated extra costs which would be associated with cable logging this area selectively. Sensitive area 2 was located on the west side of the Big Lagoon tract and lies east of a body of water known as the Big Lagoon. SA 2 was traversed by and exposed to full view from Highway 101, a main west coast north-south public highway. SA 2 was 6 to 8 miles from the nearest park boundary line and could not be seen from the park because of an intervening tall ridge. SA 2 covered 333.40 acres containing an estimated 61,049,000 BF of net redwood, Douglas fir and other timber species. This area was most suitable for tractor logging. There is no question but that this area could be tractor logged in a clear-cut fashion subsequent to the taking without causing any physical damage to, or encroaching in any way, on the park. Plaintiff seeks to recover in sensitive area 2 category 1 severance damage of $1,201,730.50, based on the value of anticipated lost timber volume because it felt this area would have to be cable logged in a selective fashion, and category 2 severance damage of $1,126,927, based on anticipated extra costs which would be associated with cable logging this area selectively. Sensitive area 3 was located southwest of SA 2 and was some 8 to 10 miles from the nearest park boundary line. This area could not be seen from the park. Most of SA 3 is east of Highway 101, which bisects the area in the northern portion. Generally, SA 3 is exposed to full view from Highway 101. SA 3 covered 443.44 acres and contained an estimated 53,679,000 BF of net redwood, Douglas fir and other timber species. This area was most suitable for tractor logging. There is no question but that this area could be tractor logged in a clear-cut manner subsequent to the taking without causing any physical damage to, or encroaching in any way, on the park. Plaintiff seeks to recover in sensitive area 3 category 1 severance damage of $1,113,-761.50, based on the value of anticipated lost timber volume because it felt this area would have to be cable logged in a selective manner, and category 2 severance damage of $990,891, based on anticipated extra costs which would be associated with cable logging this area selectively. Kleiner’s rationale for severance damages as to sensitive areas 1, 2, and 3 did not involve considerations of possible damages to the park relative to the choice of logging methods. As indicated earlier these three areas could be tractor logged in a clear-cut manner without damaging the park in any way. Kleiner advised he included these areas in his severance damage determinations because these areas were visible to the traveling public from Highway 101 and/or the town of Orick. If these areas, in Klein-er’s opinion, were tractor logged clear-cut, subsequent to October 2, 1968, such a logging operation would sear these areas and generate such adverse public opinion as to cause possible retaliatory action by the Secretary of Interior (Secretary) and/or Congress in the form of restrictive measures on the remainder lands or possible additional taking of remainder lands. It is appropriate to note here that the probability of change being brought about by future eminent domain action is of doubtful viability in an evaluation process. See McGovern v. City of New York, 229 U.S. 363, 372, 33 S.Ct. 876, 57 L.Ed. 1228 (1913). See also United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 285, 63 S.Ct. 1047, 1057, 87 L.Ed. 1390 (1943). In order to prevent a crescendo of adverse public opinion which might induce Secretarial and/or Congressional retaliatory action against the remainder land property, Kleiner believed a buyer and seller would conclude these sensitive areas would have to be cable logged selectively, a logging method that would serve to reduce the value of these areas as of October 2, 1968, because such a method would be less productive and more expensive. These fears, i. e., possible future restrictions and/or additional takings, on the part of a hypothetical buyer and seller, advanced by Kleiner, even if within the realm of possibility, have not been shown, on this record, to be reasonably probable as of October 2, 1968. As a result, plaintiff’s severanee damage claims for sensitive areas 1, 2, and 3 must be regarded as too remote and speculative to have any legitimate effect on the valuation of these areas. Olson v. United States, 292 U.S. 246, 257, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934). See also United States v. 158.24 Acres of Land, 515 F.2d 230, 232 (5th Cir. 1975); Miller v. United States, 137 F.2d 592, 595 (3d Cir. 1943); Coast Counties Gas & Electric Co. v. Miller & Lux, Inc., 118 Cal.App. 140, 144, 5 P.2d 34, 35 (1931); In re City of Meriden, 88 Conn. 427, 91 A. 439, 440-41 (1914). There is no probative evidence in the record that there was a sufficient likelihood that retaliatory action by the government would ensue if these sensitive areas were tractor logged clear-cut. See Iriarte v. United States, 157 F.2d 105, 111 (1st Cir. 1946). Indeed, on this record, it appears that the areas designated as sensitive areas 1, 2, and 3 by plaintiff were not viewed as critical or important areas as far as the park was concerned by the Secretary or other informed and knowledgeable people on or after the date of taking. While there is expected conflict between the experts of the parties on the matter, the record preponderates in favor of a finding that a reasonable and knowledgeable buyer and seller of plaintiff’s remainder property would not reduce the value they would otherwise attach to said property because of sensitive areas 1, 2, and 3. Indeed, the record supports a finding that such a buyer and seller would conclude, as of the date of taking, that these sensitive areas could be logged tractor clear-cut if the landowner desired to do so. Sensitive area 4, as conceived by Kleiner, embraced an elongated portion of the Big Lagoon tract remainder land along the west boundary of the park, generally paralleling the course of Redwood Creek. This elongated area had a width from the park boundary line into the remainder lands ranging from a few hundred feet to approximately 1 mile depending on the nature of the terrain and the tree cover. In length, the area ran from above McArthur Creek on the north, below sensitive area 1, and extended along the park’s west boundary line to the southern end of the park. Sensitive area 4, as designated by Kleiner, consisted of 1,844.81 acres containing an estimated 266,469,000 BF of net timber. Roughly one-third of the southern half of SA 4 and most of the northern half of SA 4 were heavily forested with old-growth redwood, Douglas fir and other timber species. There were some areas on the southern half of SA 4 that had been logged years before 1968, while there were other areas that had been logged by plaintiff just prior to October 2, 1968. Some logging had also been done in the northern half of SA 4 prior to the date of taking. While some portions of SA 4 were suitable for tractor logging prior to October 2, 1968, the record suggests that other areas, either because of steep terrain and/or unstable soils, would probably be more suitable for cable logging prior to October 2, 1968. Plaintiff seeks to recover in sensitive area 4 category 1 severance damage of $5,629,-733, based on the value of anticipated lost timber volume because this area would have to be cable logged in a selective fashion, and category 2 severance damage of $4,918,915, based on anticipated extra costs which would be associated with cable logging this area selectively as well as extra costs for additional logging supervision to insure that harvest operations in the area did not damage the park. Plaintiff maintains that all of SA 4 would have been tractor logged in a clear-cut manner absent the taking. I am persuaded by the record that some portions of SA 4 would probably have been cable logged pri- or to October 2, 1968, because of unstable soils. Plaintiff contends that a buyer and seller would anticipate, as a result of the taking, having to cable log SA 4 in a selective fashion. As indicated previously (see note 11, supra), selective cable logging would be an unreasonable anticipation on the part of a buyer and seller as of October 2, 1968. Kleiner’s rationale for sensitive area 4 severance damages was as follows. The proximity of SA 4 to the park, a boundary line separated plaintiff’s SA 4 remainder lands from the park, meant that users of the park, concerned about protecting the park, would be very watchful and critical of any logging operations or forest management activities in this area. Accordingly, the owner of SA 4 after the partial taking would feel he would have to log SA 4 in such a manner as to minimize the possibility of causing public concern such as would move the Secretary in the future to consider enlarging the park so as to incorporate remainder land property into the park, under the provisions of section 2(a) of the Park Act, or to consider imposing restrictive measures on harvest operations on the remainder land under the provisions of section 3(e) of said Act. In Kleiner’s view a purchaser and seller, on reading these two provisions, would conclude they had better plan on harvesting SA 4 by cable logging said area in a selective manner and thus would accordingly reduce the value they otherwise would have attached to SA 4 had there been no partial taking. As was the case with sensitive areas 1, 2, and 3, Kleiner’s theory for sensitive area 4 severance damage rests on the anticipated fears of a buyer and seller that if SA 4 were tractor logged clear-cut, retaliatory action directed at the remainder lands by the Secretary might ensue. On this record, I am of the opinion that these anticipated fears of future restrictive Secretarial actions or takings relative to plaintiff’s remainder lands if SA 4 were not cable logged selectively are too remote and speculative to have any viable effect on the valuation of SA 4 as of October 2, 1968. See Olson v. United States, supra. Plaintiff’s fear of public concern generated by public use of the park as a whole provides a most tenuous basis for its SA 4 depreciation in value claim. See United States v. Pope & Talbot, Inc., 293 F.2d 822, 826 (9th Cir. 1961). The proximity of SA 4 to the park and the fact that the boundary line created by the taking was in a forest with no dominant landmarks such as a creek or a road would undoubtedly cause a reasonable purchaser and seller to recognize that some adjustments in logging methods in SA 4 would be necessary as a result of the partial taking and thus would reasonably anticipate that some additional costs would be incurred in logging SA 4 after the taking. Accordingly, there is a valid basis to consider the viability of severance damages within SA 4 quite apart from plaintiff’s theory of SA 4 severance damages. Halsey’s element 1 severance damage allowance dealt with anticipated logging efforts after the partial taking in portions of Kleiner’s sensitive area 4. Halsey believed that a buyer of plaintiff’s remainder land subsequent to October 2, 1968, aware of the Park Act, would be concerned about the investment he was about to make. However, the seller of said remainder land would not diminish the value he set on said timberlands merely because it was next to the park. In Halsey’s view the prime concern of both a buyer and seller of the remainder land after the partial taking would be the ability to log the timber on said land. If the timber could be logged then the parties would undoubtedly negotiate a sale price without any value diminution. To the extent that the partial taking would make logging more expensive and difficult, then Halsey agreed there would be a resulting diminution in value recognized by the buyer and seller to reflect this fact. Halsey’s views were more attuned, in my judgment, to those of both a reasonable and knowledgeable buyer and seller interested in negotiating a sale of the remainder property on or about October 2, 1968, than were the views of Kleiner and Rickard. Halsey recognized that logging problems were created along the remainder land boundary line by the irregular boundary line established by the Park Act. Subsequent to October 2, 1968, Halsey believed that a prospective purchaser and seller would recognize that different logging methods and practices would have to prevail after the partial taking in order to prevent trees from falling into the park. They would also recognize, according to Halsey, that the boundary line changed, in places, the topography available for logging such as to require that areas that would have been tractor logged before the taking would have to be cable logged after the taking to prevent intrusions onto parkland. These changes in logging methods and procedures would generate additional costs and expenses which a buyer and seller of SA 4, according to Halsey, would translate into a depreciation in value of said remainder land. This approach to severance damages does not embrace fears of remote or contingent possibilities of damage but “identifies severance damages as an element of value arising out of the relation of the part taken to the entire tract,” United States v. Miller, supra, 317 U.S. at 376, 63 S.Ct. at 281, and attempts to meet the obligation created when the “part not taken is left in such shape or condition as to be in itself of less value.” Bauman v. Ross, supra, 167 U.S. at 574, 17 S.Ct. at 976. Such an approach also provides a more “direct and identifiable element of depreciation in value consideration.” See Boyd v. United States, supra, 222 F.2d at 495. Halsey restricted his severance damage consideration to an 800-foot distance on the remainder land from the park boundary, along the 12 miles of park boundary line. Halsey selected this 800-foot distance because it corresponded to an average cable yarding (haul) distance. Cable logging was viewed by Halsey as the operation that would be envisioned if tractor logging was not feasible in this area. Halsey believed that a prospective purchaser and seller would recognize, on or about October 2, 1968, that timber immediately adjacent to the park would be more difficult to log because of the park boundary line, and that they would consider the 800-foot strip as the maximum distance that would be affected by said conditions which were brought about by the partial taking. Halsey and Wallen utilized 1974 aerial photographs of the boundary line area, which were examined with special equipment, to obtain initial topographical and other information about the area. Plaintiff is critical of Halsey because he did not visit the property prior to writing the appraisal report. The record, however, reveals that Halsey was familiar with the property in question having cruised plaintiff’s lands previously. More importantly, Wallen, who was his joint partner in the appraisal effort, did visit the property prior to putting the report together. Further, Wallen had considerable personal experience with the Redwood Creek area. After the appraisal report was prepared, Halsey also made a ground inspection of the area in question. Those areas in the 800-foot strip along the boundary line, on the remainder property, where the topography was flat and/or gentle and conducive to tractor logging without any possibility of causing intrusions into the park, Halsey believed a prospective buyer and seller in 1968 would anticipate tractor logging. On the other hand, those areas in the 800-foot strip where the topography was steep, and thus less conducive to tractor logging or where the park boundary line forced uphill logging, and the possibility of intrusions into the park existed, Halsey believed a prospective buyer and seller in 1968 would anticipate cable logging in a clear-cut manner. Halsey, utilizing a timber classification map of the pertinent area, superimposed on said map the results of the investigation of the 800-foot strip area along the park boundary line indicating thereon those areas which a prospective buyer and seller would anticipate would be cable logged and those areas which they would anticipate would be tractor logged. Halsey’s area of severance damage consideration embraced 1,066 acres containing an estimated 132,450,000 BF of net timber. Since over 90 percent of the timber in this area was redwood, Halsey treated all timber in this area as old-growth redwood. This practical approach is not considered unfair under the difficult circumstances of this case where estimates generally are the prevailing volume yardstick. As to the 1,066 acres, Halsey believed 521 acres containing an estimated 53,040,000 BF of net timber would be tractor logged, and 545 acres containing an estimated 89,410,000 BF of net timber would be cable logged. In view of the redwood experience of Halsey and Wallen, particularly with plaintiff’s remainder lands, these volume estimates are considered to be reasonable and acceptable. It is conceded that in cable logging operations involving old-growth redwood a greater amount of breakage occurs than would be the case if tractor logging were utilized. The parties disagree, and the record is conflicting on the matter, as to the extent of the excess breakage that occurs in such circumstances. Such excess breakage does represent a loss of merchantable timber volume. Further, such a loss in volume is directly related to circumstances created by the partial taking and is a factor a reasonable prospective buyer and seller of the remainder land would consider in negotiating a sale of said land on or about the date of taking. See United States v. 3969.59 Acres of Land, 56 F.Supp. 831, 838 (D.Idaho 1944). See also Hurley v. American Enka Corp., 93 F.Supp. 98, 103 (E.D.Tenn.1950). For reasons discussed in full in the findings of fact, I am persuaded that, on balance, Halsey’s estimate that 10 percent excess breakage occurs when old-growth redwood timber is cable logged in a clear-cut manner rather than tractor logged is both reasonable and acceptable. Halsey computed an anticipated net timber loss of 8,941,-000 BF (10 percent of 89,410,000 BF of net timber in the cable log areas) because of the necessity to cable log rather than tractor log the pertinent 545 acres. In the absence of any clarifying evidence in the record, it has been assumed that none of this acreage would have been cable logged in any event prior to October 2,1968. The parties stipulated that the value of old-growth redwood timber as of October 2, 1968, was $86 per thousand board feet (MBF) Humboldt short-log scale. Utilizing this figure, the value of the timber loss due to excess breakage is $768,926 (8,941,000 X $86 per MBF). In addition to the excess breakage loss discussed above, Halsey was of the opinion that within the 800-foot strip area along the boundary line there was another severance damage element that deserved consideration. Because of the partial taking, trees on the remainder land within 250 feet of the boundary line would have to be harvested with extreme care to insure by means of special harvesting techniques that no trees fell onto park property. Such would not have been the case prior to the taking because Redwood Creek provided a buffer zone on plaintiff’s eastern boundary. These special harvesting techniques, e. g., wedging, jacking, etc., would engender additional costs, a fact Halsey observed would be considered by a prospective buyer and seller in negotiating a sale of the remainder land. See in this regard note 9, supra. Consideration of such excess costs is deemed appropriate in this case. See Potts v. United States, 130 Ct.Cl. 88, 92, 126 F.Supp. 170, 172 (1954), Oregon Mesabi Corp. v. C. D. Johnson Lumber Corp., 166 F.2d 997, 1002, 1003 (9th Cir. 1947), cert. denied, 334 U.S. 837, 68 S.Ct. 1494, 92 L.Ed. 1762 (1948). Halsey estimated, based on his investigation of data pertinent to this 250-foot strip area along the 12-mile boundary line, that this area contained 10,348,000 BF of net timber which would require special harvesting methods and attendant additional costs. Halsey estimated this additional cost to be $3.50 per MBF. Such a figure would produce total extra costs of $36,218 (10,348,000 X $3.50 per MBF), which are considered directly attributable to the necessity of utilizing special harvesting techniques because of the partial taking. Halsey’s approach here seems reasonable and acceptable. On the 521 acres that Halsey believed a prospective buyer and seller would tractor log, Halsey noted that the boundary line established by the taking was such as to require some uphill logging. This was so because the irregular park boundary line was drawn without regard for topography. Uphill tractor logging does entail additional costs, which Halsey estimated to be $2 per MBF. This cost figure took into account the fact that not all of this acreage required uphill logging. Since Halsey estimated these 521 acres contained 43,040,000 BF of net timber, the additional logging costs on this acreage would amount to $86,080 (43,-040,000 X $2 per MBF), a sum Halsey believed a reasonable buyer and seller would consider as depreciating remainder land value as of October 2,1968. Halsey’s approach here is deemed reasonable and acceptable. The parties agree that cable logging is more expensive a harvesting operation than tractor logging. The parties are in wide disagreement as to the cost spread between these two logging methods. There was conflicting evidence in the record on the matter. On balance, I am persuaded by Halsey’s opinion, based on his redwood experience, that, on average, cable logging in a clear-cut manner on or about October 2, 1968, would cost $4 more per MBF than tractor logging. As indicated previously, Halsey anticipated that 545 acres along the park boundary line would be cable logged. This acreage contained an estimated 89,-410,000 BF of net timber. The additional costs, in Halsey’s opinion, which a prospective buyer and seller would anticipate because this acreage would have to be cable logged as a result of the partial taking would be $357,640 (89,410,000 BF X $4 per MBF). Both Kleiner and Halsey believed that the partial taking and the establishment of the irregular boundary line would increase logging supervision costs along the boundary line on the adjacent remainder lands. However, each approached the calculation of appropriate severance damages to reflect this element in a different manner. Halsey approached the problem in terms of the need for an extra forester in this area until the timber was harvested. He envisioned the use of a forester full time, at $20,000 per year, for a 5-year period, or the use of a forester part time, at $10,000 per year, for a 10-year period. In either case, the result would produce additional costs of $100,000 for extra logging supervision resulting from the partial take. Kleiner, on the other hand, computed extra supervisory expense on the basis of cost per MBF. For example, in sensitive area 5, which will be discussed, infra, where Klein-er anticipated cable clear-cut logging, Kleiner estimated additional supervisory costs of $0.18 per MBF; in the Redwood Creek watershed areas outside the sensitive areas, which it was anticipated would be tractor logged clear-cut, Kleiner estimated additional supervisory costs of $0.34 per MBF. The presentations of the parties relative to determination of extra supervisory costs left much to be desired. Neither presentation was persuasive in totality. However, it seems reasonable to conclude that additional logging supervision would be required along the remainder land boundary line as a result of the partial taking. Such a finding justifies an allowance of severance damages in some amount. See Cities Service Gas Co. v. United States, supra, 217 Ct.Cl. at, 580 F.2d at 437-38. Utilizing Halsey’s severance damage approach, i. e., 521 acres to be tractor logged and 545 acres to be cable logged clear-cut, and accepting plaintiff’s supervision cost estimates, supra, an estimate of extra supervision costs of $30,727 is obtained (tractor log area-521 acres containing 43,040,000 BF X $0.34; cable log area-545 acres containing 89,410,000 BF X $0.18). Admittedly this approach has flaws in it. However, on this record, and in view of the manner in which the parties presented their positions on an “all or nothing” basis, it was the best the trial judge could do with what he had. It is felt that it represents a fair and reasonable resolution of the matter. In summary, the parties are in general agreement that severance damages are appropriate relative to remainder lands along the western boundary of the park. The parties disagree as to the scope of said damages. The record is conflicting on many of the factors germane to a severance damage determination in this remainder land area. It is my opinion that Halsey’s approach to severance damage is more attuned to case law, and it is my best judgment, on the totality of this record, that his severance damage analysis is more reasonable and thus more persuasive. See United States v. Miller, supra, 317 U.S. at 374-75, 63 S.Ct. at 280; United States v. Smith, 94 U.S. 214, 219, 24 L.Ed. 115 (1876). Plaintiff is entitled to severance damages emanating from the partial taking and related to the remainder lands adjacent to the park’s western boundary line in the amount of $1,279,591, consisting of $768,926, representing the value of timber lost because of excess breakage due to cable logging; $36,-218, reflecting excess costs attributable to the utilization of special harvesting techniques; $86,080, manifesting excess costs related to uphill tractor logging; $357,640, indicating excess cable logging costs; and $30,727, reflecting the necessary costs of additional logging supervision. Sensitive area 5, as identified by Kleiner, consisted of a series of land segments all of which were within the boundary of the Big Lagoon tract, except for two land segments which were east of the tract and completely surrounded by land owned by another timber company. Sensitive area 5 was designed by Kleiner to embrace remainder land property owned by plaintiff which was located on Redwood Creek or located in the watersheds of streams which drained into Redwood Creek. It is important to note that SA 5 was located away from the park. As designated by Kleiner, SA 5 contained some 5,336.7 acres and was estimated to contain 853,065,000 BF of net timber volume. While not crystal clear in the record, it would appear that most of Kleiner’s SA 5 acreage was uncut as of October 2, 1968, and said acreage contained a large volume of old-growth timber. The record further supports a view that the areas included in SA 5, as of October 2, 1968, appeared to be in generally good condition with no major erosion events predictable. However, there were areas where soil problems and land slippage possibilities were present. Plaintiff seeks to recover in sensitive area 5 category 1 severance damage of $16,367,-629.50, based on the value of anticipated lost timber because this area would have to be cable logged in a clear-cut fashion, and category 2 severance damage of $8,742,917, based on anticipated extra costs which would be associated with cable logging this area as well as extra cost for additional logging supervision to insure that harvest operations in the area did not damage the park. Kleiner believed that all of SA 5 would have been tractor logged in a clear-cut manner prior to the date of taking. I am persuaded, on the basis of this record, that a prudent timber operator, before and after October 2, 1968, would anticipate both clear-cut cable logging and tractor logging operations on SA 5 depending on topographical and soil conditions and the exercise of sound forest harvest and management judgment practices. Kleiner’s rationale for SA 5 severance damage rests heavily on a buyer and seller’s reading of section 3(e) of the Park Act, supra, as well as H.R.Rep.No. 1630, part of the legislative history of said Act, wherein the concerns of Congress are expressed as to the possible effects logging operations in the areas embraced by SA 5 might have on the parklands and waters. Kleiner believed that a prospective purchaser of SA 5, aware of congressional concern for the park, would feel compelled to cable log these areas to hold down land erosion and slippage which tractor logging would exacerbate, and to provide additional supervision to insure that the creeks and streams were not degraded by logging operations. A prospective purchaser, according to Kleiner, would feel compelled to cable log instead of tractor log SA 5 because of possible retaliatory actions by the Secretary and/or Congress. These anticipated fears, on this record, are too remote and speculative to serve as a basis on which remainder land depreciation in value can be considered. See Olson v. United States, supra. Rather paradoxically, Kleiner felt that in the upper reaches of streams in the watershed areas, on favorable terrain, a prospective purchaser would feel free to tractor log. Halsey and Wallen did not consider the watershed areas outside the park, which areas were controlled by the State’s Forest Practice Rules in effect on October 2, 1968, as providing a basis for severance damage. They saw nothing in the Act, or its legislative history, that restricted harvesting timber in