United States Court of Appeals
for the Federal Circuit
__________________________
PACIFIC GAS & ELECTRIC COMPANY,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2010-5123
__________________________
Appeal from the United States Court of Federal
Claims in consolidated Case Nos. 04-CV-0074 and 04-CV-
0075, Chief Judge Emily C. Hewitt.
_________________________
Decided: February 21, 2012
_________________________
CARTER G. PHILLIPS, Sidley Austin, LLP, of Washing-
ton, DC, argued for plaintiff-cross appellant. With him on
the brief were VIRGINIA A. SEITZ and LOWELL J. SCHILLER.
Of counsel on brief was JERRY STOUCK, Greenberg
Traurig, LLP, of Washington, DC.
HAROLD D. LESTER, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, argued of Washington, DC, for
defendant-appellant. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
PACIFIC GAS & ELECTRIC v. US 2
Director, MARIAN E. SULLIVAN, Senior Trial Counsel, SETH
W. GREENE, ANTHONY W. MOSES and SCOTT SLATER, Trial
Attorneys. Of counsel on the brief was JANE K. TAYLOR,
Office of General Counsel, United States Department of
Energy, of Washington, DC.
__________________________
Before RADER, Chief Judge, PLAGER and LOURIE, Circuit
Judges.
RADER, Chief Judge
In this spent nuclear fuel case, the United States
Court of Federal Claims entered a damages judgment in
favor of Plaintiff-Appellee Pacific Gas & Electric Company
(“PG & E”). Because the new judgment accounts for the
proper causation times and principles, this court affirms
the trial court’s decision.
I.
This court heard this case earlier and will not repeat
the complete factual background. Pac. Gas & Elec. Co. v.
United States, 536 F.3d 1282, 1284-87 (Fed. Cir. 2008).
This case, like its predecessor, “involves the damages
calculation” for the Government’s partial breach of the
Standard Contract. Id. at 1284. In the earlier 2008
appeal, the trial court had relied upon the 1991 Annual
Capacity Report (“ACR”) and the “duty of good faith and
fair dealing.” This court determined that 1991 ACR was
an incorrect acceptance rate. Id. at 1284. Instead, this
court, at a time after the trial court’s ruling, had set the
1987 ACR as the appropriate acceptance rate for a causa-
tion analysis under the Standard Contract. Id. at 1291-
92. On remand, the trial court had “the opportunity to
calculate the damages owed to PG & E for [the Depart-
ment of Energy’s (“DOE”)] partial breach of the Standard
Contract.” Id. at 1292.
3 PACIFIC GAS & ELECTRIC v. US
On remand, the trial court “focuse[d] on whether the
costs claimed as damages by PG & E were incurred as a
direct and reasonably foreseeable result of defendant’s
partial breach of the [Standard Contract].” Pac. Gas &
Elec. Co. v. United States, 92 Fed. Cl. 175, 179 (2010).
Plaintiffs claimed the following six categories of damages:
(1) costs incurred related to the evaluation of stor-
age options and the licensing and construction of
an independent spent fuel storage installation
(ISFSI) and temporary racks at its Diablo Canyon
power plant; (2) costs incurred for maintaining its
Humboldt Bay power plant in custodial [safe stor-
age (“SAFSTOR”)] status after 1998; (3) costs in-
curred in the licensing and construction of an
ISFSI at its Humboldt Bay plant; (4) incremental
costs of removing the ventilation stack at its
Humboldt Bay plant while spent fuel continued to
be stored in the spent fuel pool; (5) evaluation of
Private Fuel Storage (PFS) off-site storage options
for both plants; and (6) internal and external legal
costs related to the activities contained in the
other categories.
Id. at 180. The Government did not dispute the amount
of damages in each category, but continued to dispute
PG & E’s entitlement to those damages. Id. Indeed the
Government “acknowledge[d] that PG & E [was] entitled
to recover approximately $82 million of its approximately
$92 million in damages claims on remand.” Id. Specifi-
cally, under the 1987 ACR, the Government acknowl-
edged that “PG & E [was] entitled to recover on remand
the following costs: (1) Humboldt Bay SAFSTOR costs
from 2000-2004, in the amount of $38,678,000; (2) Hum-
boldt Bay ISFSI costs in the amount of $7,945,000; (3)
Diablo Canyon ISFSI costs in the amount of $31,734,000;
(4) Diablo Canyon temporary rack costs in the amount of
PACIFIC GAS & ELECTRIC v. US 4
$2,663,807; and (5) Diablo Canyon Storage Options study
costs in the amount of $1,451,091.” Id. The trial court
found that PG & E would not have incurred these rea-
sonably foreseeable costs but for the Government’s
breach. Id. at 182. The trial court also found that the
record supported these amounts with reasonable cer-
tainty. Id.
On remand, the trial court focused on the disputed
costs, i.e., Humboldt Bay SAFSTOR costs in 1999, Hum-
boldt Bay ISFSI costs for Greater Than Class C waste
(“GTCC”), evaluation of PFS off-site storage, costs associ-
ated with stack removal, as well as internal and external
legal costs. Id. at 182-203. With respect to the 1999 costs
at Humboldt Bay, the trial court determined that the
Government’s partial breach caused PG & E to incur
$4,744,000 in SAFSTOR costs. Id. at 183-86. The trial
court then offset this amount by the amount PG & E
would have paid to exchange its 1999 allocation for an
allocation right in the 1998 priority queue. After this
offset, the trial court awarded $4,044,000 for the Hum-
boldt Bay SAFSTOR costs in 1999. Id. at 188-89.
Concerning the Humboldt Bay ISFSI costs for GTCC,
the trial court, consistent with this court’s decision in
Yankee Atomic Electric Co. v. United States, 536 F.3d
1268 (Fed. Cir. 2008), awarded PG & E the full amount of
damages, totaling $9,534,000 which included $1,589,000
for the costs associated with storing the GTCC. Id. at
193. The trial court specifically found that it was “more
likely than not” that DOE would have collected the GTCC
when it collected the spent nuclear fuel (“SNF”). Id.
Regarding the PFS, the trial court determined: “Based on
a preponderance of the credible evidence . . . the costs
plaintiff incurred for the evaluation of the off-site storage
options were both caused by the government’s partial
breach of the Standard Contract and foreseeable as the
5 PACIFIC GAS & ELECTRIC v. US
natural and probable result of the government’s partial
breach.” Id. at 196-97. Thus, PG & E received an award
of $889,517 in damages. Id.
The trial court upheld its previous denial of the stack
removal costs because the “more persuasive testimony”
supported the finding that PG & E would have removed
the ventilation stacks for safety reasons. Id. at 197-98.
Therefore, the application of the 1987 ACR did not impact
this earlier finding. Id. Finally, the trial court deter-
mined that the mandate from this court and the statute of
limitations barred the claim for internal and external
legal costs because this claim could have been presented
at the initial trial but PG & E waited to present this claim
for the first time on remand. Id. at 199-202.
After totaling the damages award, the trial court set
the amount for PG & E at $89,004,415. Id. at 204. The
Government timely filed its appeal of the trial court’s
decision. On appeal, the Government contends that the
earlier mandate barred the trial court’s award of damages
for the PFS and the Humboldt Bay SAFSTOR 1999 costs
based on an exchanges model. As such, the Government
appeals $4,933,517 of the trial court’s damages award.
This court has jurisdiction under 28 U.S.C. § 1295(a)(3).
II.
This court reviews an interpretation of its own man-
date without deference. Laitram Corp. v. NEC Corp., 115
F.3d 947, 950-51 (Fed. Cir. 1997). “Upon return of its
mandate, the district court cannot give relief beyond the
scope of that mandate, but it may act on matters left open
by the mandate.” Id. at 951 (internal citations omitted)
(citing Caldwell v. Puget Sound Elec. Apprenticeship &
Training Trust, 824 F.2d 765, 767 (9th Cir.1987) (quoting
In re Sanford Fork & Tool Co., 160 U.S. 247, 256 (1895)).
This court has also stated that “it may be appropriate in
PACIFIC GAS & ELECTRIC v. US 6
some circumstances for a court to revisit an issue that
would otherwise be deemed waived and beyond the scope
of an appellate mandate.” Tronzo v. Biomet, Inc., 236
F.3d 1342, 1349 (Fed. Cir. 2001).
Further, this court reviews the trial court’s legal con-
clusions without deference, Yankee Atomic, 536 F.3d at
1272, and its factual findings for clear error, Indiana
Michigan Power Co. v. United States, 422 F.3d 1369, 1373
(Fed. Cir. 2005). These factual findings include “the
general type of damages to be awarded . . . , their appro-
priateness . . . , and rates used to calculate them . . . ,”
Home Savings of Am. v. United States, 399 F.3d 1341,
1347 (Fed. Cir. 2005). “A finding may be held clearly
erroneous when . . . the appellate court is left with a
definite and firm conviction that a mistake has been
committed.” 422 F.3d at 1373 (quoting In re Mark Indus.,
751 F.2d 1219, 1222-23 (Fed. Cir. 1984)). This court
provides the trial court with broad discretion, “subject to
certain controlling principles,” in determining an appro-
priate quantum of damages. Hi-Shear Tech. Corp. v.
United States, 356 F.3d 1372, 1382 (Fed. Cir. 2004) (citing
Ferguson Beauregard v. Mega Sys., 350 F.3d 1327, 1345
(Fed. Cir. 2003)).
III.
The Government contends that the trial court erred
by interpreting this court’s mandate to allow for reconsid-
eration of PG & E’s claims for PFS damages and the 1999
Humboldt Bay SAFSTOR damages. In the original trial,
the Court of Federal Claims found that PG & E entered
into PFS “in the ordinary course of business, while it
continued to be possible that DOE would perform the
Standard Contract . . .” and this venture was “highly
speculative and uncertain.” Pac. Gas & Elec. Co. v.
United States, 73 Fed. Cl. 333, 430 (2006). Finding the
7 PACIFIC GAS & ELECTRIC v. US
facts similar to those presented in Indiana Michigan, the
trial court determined PG & E was not entitled to recover
these costs because they “were not foreseeable by the
government at the time of the parties’ contracting, and
were not the foreseeable result of the government’s failure
to begin collecting the utilities’ spent fuel by January 31,
1998.” Id. (citing Ind. Mich., 422 F.3d at 1373).
Again, this court changed the time to begin assess-
ment of the Government’s partial breach. This change
gave the trial court “the opportunity to calculate the
damages owed to PG & E for DOE’s partial breach of the
Standard Contract.” 536 F.3d at 1292. As such, the
mandate of this court required the trial court to recon-
sider the damages presented during the initial trial in
view of the 1987 ACR. The 1987 ACR “provide[d] the best
available pre-breach snapshot of both parties’ intentions
for an acceptance rate” and “contemplated full and timely
performance.” Id. Within this framework, the trial court
enjoyed considerable discretion to perform anew a causa-
tion analysis.
Based on this instruction, the trial court properly un-
dertook the task of reconsidering PG & E’s mitigation
efforts. This task included another examination of issues
properly before the court in the original trial, but, of
course, did not extend to damages sought for the first time
on remand, e.g., the internal and external legal costs.
Within this general procedural setting, this court observes
first that the issue of PFS off-site storage was properly
before the trial court in the first trial. Moreover, nothing
in this court’s 2008 decision considered, let alone adopted,
the trial court’s earlier analysis with regard to PFS.
Thus, the trial court retained full discretion to revisit and
reconsider the PFS issue. “For while a mandate is con-
trolling as to matters within its compass, on the remand a
lower court is free as to other issues.” Engel Indus., Inc.
PACIFIC GAS & ELECTRIC v. US 8
v. Lockformer Co., 166 F.3d 1379, 1382 (Fed. Cir. 1999)
(internal citations omitted) (quoting Sprague v. Ticonic
Nat’l Bank, 307 U.S. 161, 168 (1939); citing Laitram, 115
F.3d at 951)). Further, this court noted that “[w]e, of
course, remain mindful that the interpretation of the
scope of a court’s mandate may be uncertain and caution
that both the letter and the spirit of the mandate must be
considered.” 166 F.3d at 1383 (internal citations omitted).
This court determines that the trial court’s interpretation
of the mandate concerning the evaluation of PFS off-site
storage mitigation damages was within the letter and
spirit of the mandate. To hold otherwise would run the
risk of not properly allowing for reconsideration of the
mitigation damages sought, and deemed proven by the
trial court, and PG & E would not be made whole.
For these reasons, this court affirms the trial court’s
determination that the damages claim for evaluation of
off-site PFS storage was within this court’s mandate.
IV.
Because the trial court enjoyed the discretion to re-
hear the PFS issue on remand, this court reviews the
damages awarded in that category for clear error. On
remand, the trial court found that PG & E’s duty to
mitigate arose before 1998 when the Government
breached the Standard Contract and that 1994 was the
“latest possible date for the utility’s duty to mitigate, not
the earliest.” 92 Fed. Cl. at 195 (citing Ind. Mich., 422
F.3d at 1375; quoting Yankee Atomic, 536 F.3d at 1275).
The trial court determined it was likely PG & E developed
a reasonable belief as early as 1988 that DOE would not
perform according to the timeline recited by the Standard
Contract. Id. (quoting 536 F.3d at 1291 (stating that “in
its June 1988 report, DOE explained that the linkage
provisions made ‘operations and waste acceptance at a
9 PACIFIC GAS & ELECTRIC v. US
DOE facility significantly before 2003 unlikely’”). As
such, the trial court properly determined that the statute
of limitations began to run on January 31, 1998. Further,
these costs could be awarded even though the costs were
incurred more than six years before because PG & E
incurred these costs after it developed a reasonable belief
that the Government would not timely perform. Id.
The trial court accurately stated the question as
“[would] PG & E . . . have been more likely than not to
explore off-site storage in 1987.” Id. at 196. As such, the
trial court determined that, in a non-breach world,
PG & E would not have explored PFS in 1987 when the
parties still expected the Government to perform. There-
fore, the record showed that the trial court’s pre-remand
finding that PG & E explored PFS “in the early 1990s in
the ordinary course of business” could not stand. By the
early 1990’s PG & E no longer expected timely perform-
ance by the Government. Id. Thus, in the early 1990’s
PG & E already justifiably foresaw that the Government
would not perform. The record also showed that PG & E
had ample justification to prepare for the impending and
foreseeable breach. The trial court determined that the
“loss” caused by the Government was PG & E’s “continued
need to store its spent fuel in the absence of government
performance under the parties’ Standard Contract.” Id.
at 197. Accordingly PG & E was “not precluded from
recovery to the extent that it has made reasonable but
unsuccessful efforts to avoid loss.” Id. at 196-97 (internal
citations omitted) (citing Ind. Mich., 422 F.3d at 1375
(quoting Restatement (Second) of Contracts § 350(2)
(1981)); Yankee Atomic, 536 F.3d at 1276).
For these reasons and based on the “preponderance of
the credible evidence,” the trial court determined that the
Government’s partial breach caused these foreseeable
PFS costs. Id. at 195, 197. As this court previously
PACIFIC GAS & ELECTRIC v. US 10
determined and as properly noted by the trial court,
PG & E is not precluded from recovering these damages
because its mitigation efforts were unsuccessful. See Ind.
Mich., 422 F.3d at 1375; Yankee Atomic, 536 F.3d at 1276.
In Indiana Michigan, this court stated that
“[m]itigation is appropriate where a reasonable person, in
light of the known facts and circumstances, would have
taken steps to avoid damage.” 422 F.3d at 1375 (citing
Robinson v. United States, 305 F.3d 1330, 1334 (Fed. Cir.
2002) (citing Restatement (Second) of Contracts § 350
cmt. B (1981))). This court determined that a utility must
“prove foreseeability, causation, and reasonableness,” to
support a claim for pre-breach mitigation damages. Id. at
1376. In the present action, the record amply supports
the trial court’s findings that off-site PFS storage costs
were foreseeable at the time of contract, that the Gov-
ernment’s partial breach of the Standard Contract caused
PG & E to undertake these expenses, and that these costs
were reasonable in view of the facts known to PG & E at
that time.
In Dairyland Power Cooperative v. United States, this
court acknowledged that a utility could receive damages
for the cost of investing in a PFS to the extent that it was
done for mitigation purposes. 645 F.3d 1363, 1375 (Fed.
Cir. 2011). In Dairyland, this court determined that the
utility “had the burden to prove how much, if any, of its
PFS investment was speculative as opposed to mitigation-
oriented.” Id. at 1376. Unlike Dairyland, this action is
not speculative because PG & E and the Government
agreed to the total costs at issue, presented testimony and
evidence that allowed these costs to be determined to a
reasonable certainty, and the trial court made its deter-
mination to award damages “[b]ased on a preponderance
of the credible evidence.” 92 Fed. Cl. at 196-97.
11 PACIFIC GAS & ELECTRIC v. US
Additionally, “[f]oreseeability is a question of fact re-
viewed for clear error.” Bluebonnet Sav. Bank, F.S.B. v.
United States, 266 F.3d 1348, 1355 (Fed. Cir. 2001). As
established by State Industries, Inc. v. Mor-Flo Industries,
Inc.,
The weighing of conflicting evidence is a
task within the special province of the trial judge
who, having heard the evidence, is in a better po-
sition than we to evaluate it. Particularly where,
as here:
a trial judge's finding is based on his deci-
sion to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.
948 F.2d 1573, 1577 (Fed. Cir. 1991) (quoting Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1985)). In this
case, the record contains plausible evidence to support the
trial court’s determination to award damages for PG & E’s
evaluation of off-site PFS storage. For instance, PG & E’s
management testified that they originally believed this
project to be “the only viable alternative” to DOE per-
formance and that on-site storage at Humboldt Bay was
not technologically feasible in the early-1990s because of
the seismic activity in that part of California. J.A. 27. As
such, the record supports the trial court’s finding that
PG & E undertook PFS off-site storage to mitigate the
impending and foreseeable breach and this court finds no
error in the corresponding damages awarded.
V.
This court now turns its attention to the trial court’s
award of costs for PG & E’s 1999 Humboldt Bay
SAFSTOR damages based on an exchanges model. Dur-
PACIFIC GAS & ELECTRIC v. US 12
ing the initial trial, PG & E asserted it would have used
the exchanges provision to receive allocation rights in the
priority queue for 1998 so that its SNF would have been
removed before the impending SAFSTOR costs in 1999 in
a non-breach world. Therefore, PG & E sought the costs
associated with this mitigation effort. 92 Fed. Cl. at 183.
The trial court was not persuaded that the exchanges
provision would have been used to reduce SNF storage
costs and granted the Government’s motion in limine to
exclude the expert testimony offered by PG & E. 73 Fed.
Cl. at 413, 435-36. The trial court reached this conclu-
sion, in part, because the expert could not provide helpful
testimony concerning the rate of acceptance. Id. During
the first appeal, this court found it was within the trial
court’s discretion to grant this motion in limine. This
court did not, however, address the exchanges model and
certainly did not brand that model as “speculative.” To
the contrary, this court noted that the exchanges model
had appeared in other cases before the trial court. 536
F.3d at 1292 (noting no difference between the testimony
presented in the earlier trial and testimony offered in
Yankee Atomic Elec. Co. v. United States, 73 Fed. Cl. 249,
299-303 (2006)).
On remand, the trial court stated that the 1987 ACR
changed the nature of the parties’ “conduct and inten-
tions.” 92 Fed. Cl. at 183-84. From that time perspective,
the exchanges model no longer seemed speculative, but
was instead “helpful to the court in its resolution of this
case on remand.” Id.; see also Dairyland, 645 F.3d at
1371 (“The question of whether Dairyland's model is or is
not too speculative to be reliable is, again, a fact issue on
which we owe deference to the Court of Federal Claims.”).
The trial court allowed the presentation of new evidence
and testimony based on the 1987 ACR, including testi-
mony by PG & E’s expert concerning the exchanges
13 PACIFIC GAS & ELECTRIC v. US
model. The trial court then found that “Plaintiff estab-
lished by a preponderance of the evidence” that exchanges
would have been used and that the Government’s partial
breach caused PG & E to incur the 1999 SAFSTOR costs
for Humboldt Bay. 92 Fed. Cl. at 185-86.
“Absent contrary instructions, a remand for reconsid-
eration leaves the precise manner of reconsideration—
whether on the existing record or with additional testi-
mony or other evidence—to the sound discretion of the
trial court.” State Indus., 948 F.2d at 1577 (citing Adelson
v. United States, 782 F.2d 1010, 1012 (Fed. Cir. 1986)).
Because this court instructed the trial court to undertake
a recalculation of damages consistent with the 1987 ACR,
the trial court enjoyed broad discretion to allow the testi-
mony of PG & E’s expert on the exchanges provision of the
Standard Contract. Indeed this court has allowed the use
of the exchanges model to show likely occurrences in the
non-breach world. See, e.g., Dairyland, 645 F.3d at 1369
(finding no error in the trial court’s adoption of the util-
ity’s exchanges model in its damages analysis). In sum,
this court discerns no abuse of discretion in the trial
court’s allowance of testimony by an expert concerning an
exchanges model.
VI.
This court now reviews the grant of the costs awarded
for the 1999 Humboldt Bay SAFSTOR damages on re-
mand for clear error. Based on PG & E’s expert testimony
that a market for exchanges would develop and other
evidence, the trial court determined:
Under the 1987 ACR acceptance rates, PG & E
had sufficient allocations in years 1998 and 1999
that all of its Humboldt Bay SNF would have been
picked up by DOE no later than
1999. . . . Through the use of exchanges, PG & E,
PACIFIC GAS & ELECTRIC v. US 14
to a reasonable certainty in the nonbreach world,
would have arranged for all of its SNF to be
picked up in 1998, thereby avoiding SAFSTOR
costs in 1999.
92 Fed. Cl. at 185. The trial court found that PG & E
“established by a preponderance of the evidence that it
would have used the exchanges provision” to avoid the
1999 SAFSTOR costs. Id. at 185-86. The trial court offset
the SAFSTOR costs by the amount PG & E would have
paid to receive an earlier allocation right, and awarded
$4,044,000 in costs for damages for the 1999 Humboldt
Bay SAFSTOR. Id. at 186-89.
Under this court’s decision in Yankee Atomic, dam-
ages for partial breach of contract can only be awarded if
the record shows that the breach caused the damages.
536 F.3d at 1273. As such, the trial court has the respon-
sibility to determine likely events in a non-breach world
to ensure that the breach does not receive responsibility
for events that would have transpired anyway. The trial
court determined that PG & E “established by a prepon-
derance of the evidence” that the 1999 Humboldt Bay
SAFSTOR damages were caused by the Government’s
breach of contract. 92 Fed. Cl. at 185-86. The trial court
cited supporting evidence that PG & E would have been
“incentivized” to participate in the market for exchanges
because an earlier allocation right would have allowed it
to avoid almost $5 million in SAFSTOR costs and the
utility was obligated to do so by an agreement requiring it
to “make efforts” to receive an earlier allocation right. Id.
at 186. Specifically, the record includes testimony from a
former executive of PG & E supporting the trial court’s
determination that the utility would have participated in
the market for exchanges and PG & E would have been
“incentivized” to do so. See J.A. 1590, 1937 (“Licensee
further agrees to reasonably pursue the highest DOE
15 PACIFIC GAS & ELECTRIC v. US
priority for the removal of the Humboldt Bay . . . spent
fuel assemblies.”). By the agreement between PG & E, it
was required to “ship the spent fuel assemblies presently
stored at the Humboldt Bay Power Plant 3 to the [DOE]
as soon as the DOE has a repository . . . capable of receiv-
ing the spent fuel assemblies under the [Standard Con-
tract] . . . .” J.A. 1937. The amount of damages sought by
PG & E in costs as SAFSTOR damages for 1999 was not
in dispute; the parties disputed the entitlement of PG & E
to said damages and the amount of offset that the trial
court should apply. 92 Fed. Cl. at 188. Under the ex-
changes model, PG & E’s expert testified that the utility
would have expended “from $400,000 to $1.5 million, with
$700,000 representing the exchange costs under the base
case analysis” and the Government argued that the
testimony supported an estimate ranging from $700,000
to $1 million. Id. The trial court offset the award of these
SAFSTOR costs by $700,000, which represented PG & E’s
exchange costs. Id. To make this determination, the trial
court credited testimony concerning the nuclear utility
industry and found it unlikely that PG & E would have
received an earlier allocation right. Id. The record sup-
ports the trial court’s award of damages for PG & E’s 1999
Humboldt Bay SAFSTOR costs and this court discerns no
error in the trial court’s determination concerning the
entitlement and offset applied.
VII.
This court hereby affirms the trial court’s holding that
the mandate did not bar the trial court’s reconsideration
of PG & E’s claims for PFS and the 1999 Humboldt Bay
SAFSTOR mitigation damages. This court affirms the
damages awarded for PG & E’s PFS off-site storage and
Humboldt Bay SAFSTOR 1999 mitigation damages.
AFFIRMED.