# Orr v. United States > United States Court of Federal Claims · May 2, 2023 URL: https://www.frixlaw.com/law-library/cases/9391782 ## Case - **Court:** United States Court of Federal Claims - **Decided:** May 2, 2023 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9391782 ## How later opinions describe it (automated extraction) - stating that the “‘classic taking’” is one in which the government directly appropriates private property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002)) ## Opinion text In the United States Court of Federal Claims No. 18-1894L Filed: May 2, 2023 * * * * * * * * * * * * * * * * * ** * ELIZABETH ORR, et al., * * * Plaintiffs, * * v. * UNITED STATES, * * Defendant. * * * * * * * * * * * * * * * * * * * ** Brian K. Matise, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO for plaintiffs. With him were Nelson Boyle and Emily Lubarsky Quinn, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO. Brian R. Herman, Trial Attorney, Environment and Natural Resources Division, Natural Resources Section, United States Department of Justice, Washington, DC, for defendant. With him were Zachary T. West, and Frank J. Singer, Trial Attorneys, Environment and Natural Resources Division, Natural Resources Section, Jean E. Williams, Deputy Assistant Attorney General, Environment & Natural Resources Division, Natural Resources Section; and Todd S. Kim, Assistant Attorney General, Environment & Natural Resources Division. Bryan Wilson, Attorney-Advisor, Office of the Field Solicitor, United States Department of the Interior, Billings, MT, of counsel. OPINION HORN, J. Plaintiffs Elizabeth Orr, Howard Carman, and Lena Carman timely filed a complaint in which they assert “claims for taking of their real and personal property entitling them to just compensation under the Fifth Amendment to the United States Constitution” against the United States. During the month of September 2013, all plaintiffs were owners of real property in Larimer County, Colorado, on the Big Thompson River and within the Big Thompson River Canyon. Plaintiffs’ properties were located downstream of Olympus Dam, which is in Estes Park, Colorado and which is operated by the East Colorado Area Office of the United States Bureau of Reclamation, an agency of the United States Department of the Interior. Olympus Dam impounds Lake Estes and, as part of the Bureau of Reclamation’s Colorado-Big Thompson River (C-BT) Project, Olympus Dam releases water from Lake Estes downstream into the Big Thompson River through five radial gates located on a spillway. Between approximately September 9 and September 16, 2013, area around Estes Park, Colorado experienced heavy rainfall and consequential flooding. Plaintiffs allege that the Bureau of Reclamation’s operation of Olympus Dam during the September 2013 storm resulted in the plaintiffs losing “substantially all of their homes, the business owned by the Carmans, and their personal property,” as well as “large sections of the land and riverfront property owned by Plaintiffs,” which was “displaced or permanently removed when it was washed away in the floodwaters released by the Bureau of Reclamation.” Plaintiffs’ complaint alleges that “Defendant, through its agents and employees at the Bureau of Reclamation, made a conscious decision to release water from the Olympus Dam in such quantity as to create a probability, if not a certainty, that Plaintiffs’ real property, homes, business, and personal property would be destroyed.” Plaintiffs further state in their complaint that defendant’s decision to increase releases from Olympus Dam was “due to its concern for the integrity of the dam and the greater public good in preserving the dam and preventing the possible loss of lives if the dam broke versus Plaintiffs’ property.” Moreover, plaintiffs argue that damage to plaintiffs’ property “would not have occurred but for the Defendant’s actions,” and that the damage was the “foreseeable result of the Defendant’s actions, including the Defendant’s intentional discharge of water from the dam.” Plaintiffs claim entitlement to “the fair market value of their property that was taken, the fair value of the time they were dispossessed from their property, the actual cost to repair and replace the property that can be repaired and replaced; the fair lost market value in their properties due to the flooding,” as well as “pre and post-judgment interest as allowed by law,” plaintiffs’ “reasonable costs, litigation expenses, and attorney and witness fees,” “all other damages and compensation to which they [plaintiffs] are legally entitled,” and “such other and further relief as equity and justice may allow or require.” (alterations added). Plaintiffs’ complaint asserts one cause of action, “Inverse Condemnation,” in which plaintiffs include the claims of Ms. Orr, Mr. Carman, and Mrs. Carman. (capitalization and emphasis in original). In response to plaintiffs’ complaint, defendant filed a motion to dismiss plaintiffs’ complaint pursuant to Rule 12(b)(6) (2018) of the Rules of the Court of Federal Claims. After briefing, the court denied defendant’s motion to dismiss on the ground that “discovery is necessary to determine whether plaintiffs’ allegations demonstrate a taking, and, therefore, plaintiffs should be given the opportunity to develop facts in support of their claims.” Orr v. United States, 145 Fed. Cl. 140, 158 (2019). Following the denial of defendant’s motion to dismiss, the parties conducted extensive discovery proceedings. After the close of discovery, the court held a trial lasting nine days. After reviewing the exhibits entered into the record and the testimony offered by the witnesses at trial, among whom were the three plaintiffs, the court makes the following findings of fact. 2 FINDINGS OF FACT Olympus Dam and Lake Estes, which Olympus Dam impounds,1 are located on the Big Thompson River in Estes Park, Colorado. The United States Bureau of Reclamation owns and operates Olympus Dam as part of the Bureau of Reclamation’s C-BT Project, which the parties stipulated “is a water diversion and storage project that brings water from the west slope of the continental divide to the east slope, for agricultural, municipal, industrial, and hydroelectric generation purposes.” The parties further stipulated that the C-BT Project serves, without limitation, two purposes: “(1) transferring water from Colorado’s Western Slope to its Eastern Slope for use by the Northern Colorado Water Conservancy District (‘NCWCD’) [Northern Water]; and (2) the generation of electricity marketed by the Western Area Power Administration (‘WAPA’).”2 (alteration added). According to a Senate Report, dated June 15, 1937, titled “Synopsis of Report on Colorado-Big Thompson Project, Plan of Development and Cost Estimate Prepared by the Bureau of Reclamation, Department of the Interior,” (capitalization in original), the C- BT Project has five purposes: 1. To preserve the vest and future rights in irrigation. 2. To preserve the fishing and recreational facilities and the scenic attractions of Grand Lake, the Colorado River, and the Rocky Mountain National Park. 3. To preserve the present surface elevations of the water in Grand Lake and to prevent a variation in these elevations greater than their normal fluctuation. 4. To so conserve and make use of these waters for irrigation, power, industrial development, and other purposes, as to create the greatest benefits. 5. To maintain conditions of river flow for the benefit of domestic and sanitary uses of this water. The record before the court includes the Standard Operating Procedures of Olympus Dam, Estes Powerplant, and Lake Estes, dated April 2005, which were in effect at the time of the September 2013 storm. The Standard Operating Procedures provide, under the heading “PURPOSE OF THE PROJECT,” in relevant part: “The primary purpose of the Project is to provide supplementary water to 720,000 acres of irrigated 1 Witnesses at trial consistently testified that Olympus Dam “impounds” the Lake Estes reservoir, and the parties also use that term in their briefs. 2 Tim Miller, a hydrologist for the Bureau of Reclamation, described in his testimony that the WAPA is a hydropower wholesaler which markets to customers the power generated by the Bureau’s C-BT facilities. 3 land in northeast Colorado. The secondary purpose is to utilize the power potential of the water as it drops 2,800 feet between the Alva B. Adams Tunnel and the foothills storage system.” (capitalization and emphasis in original). Upstream of Olympus Dam in the C-BT Project is the Adams Tunnel, which the parties stipulated “brings water from the C-BT’s west slope facilities” through the mountains of the continental divide “to the east slope, depositing water in the East Portal Reservoir.” The maximum flow of Adams Tunnel is 550 cubic feet per second (cfs).3 According to the testimony of Carlos Lora, a hydrologic engineer and water scheduler in the Water Resources Group of the East Colorado Area Office of the Bureau of Reclamation, United States Department of the Interior, the flow of Adams Tunnel is measured at the East Portal Reservoir. According to the testimony of James VanShaar, who was the head of the Water Resources Group in the East Colorado Area Office of the Bureau of Reclamation, United States Department of the Interior, during the September 2013 storm, once the water from Adams Tunnel is deposited in the East Portal Reservoir, “[a]lmost all of it goes into the Marys Lake Powerplant,” which has a capacity of approximately eight megawatts. (alteration added). From Marys Lake Powerplant, water passes into Marys Lake and through the Estes Powerplant. Estes Powerplant has a capacity of 45 megawatts, divided between three 15-megawatt units. The water leaving Estes Powerplant then flows into Lake Estes alongside the Big Thompson River. Olympus Dam impounds Lake Estes. The parties stipulated that water comes into the Lake Estes reservoir through “the Estes Power Plant, the Big Thompson River above Lake Estes, Fish Creek, other smaller creeks and natural inflows, and rainfall over the reservoir.” The parties further stipulated that water leaves the Lake Estes reservoir “(1) through one or more of the five spillway gates into the Big Thompson River; (2) through a small slide gate into the Big Thompson River; and (3) through the Olympus Tunnel.” Water that leaves Lake Estes through the spillway gates or the slide gate of Olympus Dam enters the Big Thompson River, in the Big Thompson River Canyon, “below” or downstream from Olympus Dam. Water that leaves Lake Estes through the Olympus Tunnel enters another portion of the C-BT Project but, as the parties stipulated, may “re- enter the Big Thompson River near the mouth of the Big Thompson River Canyon,” downstream of plaintiffs’ properties. According to the parties’ stipulations, “[i]n most normal operating circumstances, and absent appropriate state authorization, natural runoff into the C-BT is not project water” belonging to the Bureau of Reclamation, and, therefore, “the majority of water in Lake Estes is C-BT water.” (alteration added). According to the parties’ joint stipulations, water that passes through Olympus Dam flows into the Big Thompson River, and joins a tributary downstream, the North Fork Big Thompson River at the confluence at Drake, Colorado, within the Big Thompson River Canyon. According to the testimony of James VanShaar and a diagram of the C-BT Project admitted as a joint exhibit at trial, when the Big Thompson River reaches the mouth of the Big Thompson River Canyon, a portion of the water passes through the City of Loveland Powerplant, also identified as the Idylwilde Powerplant, before rejoining the 3 Two abbreviations of “cubic feet per second” appear throughout this Opinion, “cfs” and “ft3/s.” The abbreviations “ft3/s” or “ft3” (cubic feet) appear only in quotations. 4 Big Thompson River immediately thereafter. Downstream of the Idylwilde Powerplant, a portion of the water in the Big Thompson River is diverted through the Big Thompson Tunnel and the Dille Diversion Dam to flow through the Big Thompson Powerplant, while the majority of the water continues to flow in the Big Thompson River. Mr. VanShaar testified that the Big Thompson River is typically “a very small river, barely more than what they would call a creek in other parts of the country,” with an average flow of between 50 and 75 cfs, and shallow enough that, in most places, “you could walk across it.” According to the testimony of Anthony Curtis, chief of the Resource Division at the East Colorado Area Office of the Bureau of Reclamation, United States Department of the Interior, the majority of the water in facilities in the Eastern Slope portion of the C-BT comes from the Western Slope via the Adams Tunnel, and rights to most of that water are held by Northern Water. In the Eastern Slope facilities of the C-BT Project, water travels downstream in the direction of what Mr. Curtis described as the “terminus reservoirs” of Carter Lake and Horsetooth Reservoir, from which reservoirs it is delivered to the constituents of the project. Water that leaves Lake Estes through the Olympus Tunnel typically travels through the Bureau of Reclamation’s Pole Hill Powerplant. The Pole Hill Powerplant has a capacity of 35 megawatts. In the event that the Pole Hill Powerplant is taken offline, the Bureau can redivert water though a Rediversion Structure in Little Hells Canyon, Colorado. According to the testimony of Mr. VanShaar, water that is rediverted through Little Hells Canyon enters the North Fork of the Little Thompson River and then the Rattlesnake Canal and Tunnel. Mr. VanShaar also testified that “some small amount less than 550 cfs can be rediverted at the rediversion structure.” According to the testimony of Ralph Beall, facility manager of the C-BT Project at the Bureau of Reclamation, United States Department of the Interior, the Rediversion Structure is “made out of timbers, perhaps six-inch by six-inch, and they [the water] go through some gates that go into the afterbay of Pole Hill.” (alteration added). Water which is not rediverted away from the Pole Hill Powerplant travels through the Pole Hill Powerplant and into the Pole Hill afterbay, which, according to the testimony of Mr. Beall, “has a very small levee, to push that water through the siphon into Pinewood Reservoir.” Mr. VanShaar indicated that whether the water passes through the Pole Hill Powerplant or is rediverted through Little Hells Canyon, however, the water ultimately flows into the Pinewood Reservoir and the Flatiron Powerplant. The Flatiron Powerplant has three generators, two with 45-megawatt capacities, and one with a ten-megawatt capacity. Some of the water which passes through the Flatiron Powerplant is diverted to Carter Lake, one of the C-BT’s two terminal reservoirs, while the remainder of the water continues flowing into the Charles Hansen Feeder Canal. The Charles Hansen Feeder Canal carries water to the Big Thompson Powerplant at the mouth of the Big Thompson River Canyon or to the Horsetooth Reservoir, according to the testimony of Mr. Beall and Mr. VanShaar. According to Mr. VanShaar, most of the water in the C-BT Project ultimately passes through a three-flow system known as the Trifurcation at the mouth of the Big Thompson River Canyon. The water which re-enters the Big Thompson River continues flowing south as far as Boulder, Colorado. The Trifurcation was described by Mr. Beall as “different ways that we [the Bureau] can move water through Big Thompson Powerplant” 5 after passing through the rest of the upstream C-BT system. (alteration added). First, Mr. Beall testified, water which is not sent through the Olympus Tunnel, but stays in the Big Thompson River is skimmed4 “at a diversion called Dille Tunnel, which is at the Narrows a couple miles upstream of the power plant,” and from there the water flows into the 930 Section of the Charles Hansen Feeder Canal and on to the Big Thompson Powerplant. Second, according to Mr. Beall, water may pass through the Olympus Tunnel and the Pole Hill Powerplant, Pinewood Reservoir and Flatiron Powerplant, Carter Lake and then into the 930 Section of the Charles Hansen Feeder Canal, which leads to the Big Thompson Powerplant. Third, water in the 930 Section, rather than flowing into the Big Thompson Powerplant, can instead flow north into another section of the Charles Hansen Feeder Canal, the 550 Section, and from there flow into Horsetooth Reservoir, according to Mr. Beall’s testimony. The parties stipulated that Olympus Dam is composed of “an earthen embankment portion [of the dam], with crest elevation 7,481 feet above sea level, and a concrete gravity dam featuring a spillway.” (alteration added). Through five release gates in the concrete gravity dam, also referred to interchangeably as “radial gates” and “spillway gates,” the Bureau of Reclamation can release water from Lake Estes into the Big Thompson River. Mr. VanShaar testified that the spillway release gates raise vertically to release water onto the spillway. The parties stipulated that when closed, “[t]he top of the spillway gates is elevation 7,475 feet above sea level.” (alteration added). At trial, Adam Northrup, an engineering technician with the Bureau of Reclamation, United States Department of the Interior, testified regarding the operation of the spillway gates, “there’s a cable that’s connected to the bottom of the radial gates,” which is connected to mechanisms, called trunnions, on the outside, or downstream side, of the gates, “and the trunnions are the hinge, and the cable pulls up from the bottom of the gate and there’s a motor on the cable to reel it in,” and by reeling the cable in, the mechanism opens the gate. The parties stipulated that the spillway of Olympus Dam has a “design capacity” of 21,200 cfs. Of the five spillway release gates, the Bureau of Reclamation office at Casper Control Center in Wyoming can operate one gate remotely, “up to a maximum release of approximately 900cfs.” According to the testimony of Mr. Beall, Gate 3, the middle gate, is the release gate which is typically operated remotely. According to the parties’ joint stipulations and the Post Incident Analysis Report on the September 2013 flood prepared by the Bureau of Reclamation (the Post Incident Analysis Report),5 a dam operator must be present at the dam in order to open the remotely operated gate further than a release of 900 cfs, or to open any of the four gates which are not remotely operated. Olympus Dam is classified by the Bureau of Reclamation as a “high hazard dam,” which the parties stipulated that the Bureau of Reclamation defines “as one in which more than six lives would be in jeopardy and excessive economic loss would occur as a direct 4 At trial, Mr. Miller testified that “skimming” water means to borrow water from the river for use in generating hydropower and returning the water to the river within 24 hours. 5The Post Incident Analysis Report on the September 2013 flood was jointly submitted by the parties as an exhibit and is dated October 2014. 6 result of dam failure.” According to the testimony of Mr. Northrup, in the event that the water in Lake Estes overtopped Olympus Dam, water would overtop the spillway gates first, which are lower than the earthen portion. According to the testimony of Mr. Beall, Olympus Dam is “an important link in the [C-BT] system.” (alteration added). Olympus Dam’s importance is due in large part to the fact that, absent Olympus Dam, the Bureau of Reclamation could not divert water through the Olympus Tunnel towards the Pole Hill and Flatiron powerplants. Mr. Beall explained that Olympus Dam is also necessary to the functioning of the facilities down the Olympus Tunnel because Olympus Dam, by impounding Lake Estes, creates the “head,” or difference in water elevation, necessary to drive water through the Olympus Tunnel and into the Pole Hill Powerplant and other downstream powerplants on that branch of the C-BT Project. The Standard Operating Procedures for Olympus Dam describe the dam as follows: The dam is a 1,951-foot-long composite structure, consisting of a zoned earth embankment with slopes of 3:1 H:V[6] upstream and 2:1 H:V downstream, and a concrete gravity dam containing a spillway overflow section. The upstream face of the earth embankment is protected by a layer of riprap and the downstream face is protected by a layer of rock and cobble fill. (footnote added). Further, according to the Standard Operating Procedures: The maximum structural height of the concrete gravity dam is 70 feet, at the contact with the earth embankment. The structural height of the embankment section is 70 feet with a crest width of 30 feet. The concrete portion of the dam has a crest width of 10.5 feet including the overhang of the parapet and curb, and a maximum base width of approximately 60 feet, not including the spillway apron. Construction of Olympus Dam was completed in 1949. The parties stipulated that “Olympus Dam is not a flood control dam,” meaning that the Lake Estes reservoir has a relatively small capacity: in the “operational range” of the reservoir, between 7,469.57 feet elevation and 7,474 feet elevation, “Lake Estes can store 740 acre-feet of water,” and the entire capacity of Lake Estes up to 7,474 feet elevation 6Neither the Standard Operating Procedures nor the witnesses at trial defined “H:V” as used in the Standard Operating Procedures. 7 While 7,469.5 feet in elevation is referred to as the bottom of the operational pool, according to the Standard Operating Procedures, “[n]ormally, the reservoir is maintained between elevations 7471 and 7475 for recreation,” which according to the testimony of Mr. VanShaar refers to the water level necessary for activities like boating and fishing. (alteration added). 7 is 3,069 acre-feet.8 With respect to the storage capacity of the reservoir, the Standard Operating Procedures for Olympus Dam refer to the elevation range between 7,450.25 feet and 7,475 feet as “Active Conservation Storage,” while the elevation range between 7,474 feet and 7,475 feet is labeled “Regulatory Reserve,” which the Standard Operating Procedures explain as “a sub pool within the active conservation storage containing water immediately below the spillway but above the normal water surface used for power generation, which should be used only in emergency situations.” Paula O’Brien, who at the time of the September 2013 flood was known as Paula Baty and who worked as a dam safety engineer at the East Colorado Area Office of the Bureau of Reclamation, United States Department of the Interior, testified that “there are a number of implications” to the fact that Olympus Dam is not a flood control dam, “the most important” of those implications being that “neither its outlets nor its size is designed to manage flood flows.” The Standard Operating Procedures for Olympus Dam require the keeping of an Operating Log, and state, under the heading “CERTIFICATION OF STANDING OPERATING PROCEDURES REVIEW BY OPERATING PERSONNEL:” “All operating personnel will certify the above and sign the Operating Log.” (capitalization and emphasis in original). The Standard Operating Procedures further state, under the heading “G. OPERATING LOG:” The purpose of the Operating Log is to have a chronological record of all important events to provide a continuing record of operating activities, and to provide clues to the possible cause of equipment trouble or the development of unusual conditions occurring at the dam. The Operating Log shall be kept in the control house in a bound book. A sample of an Operating Log (Form 7-1623) is shown in appendix B-2. All entries shall be in ink or other indelible material. Corrections in the logbook shall be made by crossing out the incorrect notation so that it is still legible, and adding the correct entry. Do not erase or eradicate entries in the logbook. A logged record shall be maintained by the operating personnel or designated alternate on duty. Portions of the information will be available from automatic recordings and monitoring equipment. Specific data may vary in form and content to fit the needs and conditions present at the dam. In general, the data shall include information such as: • Normal and emergency changes in operation of outlet works and/or spillways including individual gate changes and positions. • Water elevations and discharges. • Startup and stopping of mechanical equipment. • Testing of standby equipment or gate controls. 8The elevation of 7,474 feet also was referred to by Mr. Lora as the top of the “operational pool” and by Mr. VanShaar as the top of the “regulatory pool.” 8 • Minor and major maintenance activities including scheduled maintenance. • Reservoir surveillance. • Initial acknowledgement of unusual or emergency conditions. • Requests and concurrence to change from normal operation during unusual or emergency conditions. • Exercising of all gates and valves. • Communications network checks. • Record of names and address of official visitors and all Reclamation review teams. • Reports on acts of vandalism. • Certification of SOP [Standard Operating Procedures] review by Dam Operator and supervisor. • Record of Comprehensive/Periodic Facility Review and annual examinations. • Certification and type of Dam Operator’s training. • Miscellaneous items pertinent to operation and emergency or unusual incidents at the structures. • Record of performance of “Ongoing Visual Inspections.” Some other approved record forms are included in Appendix B. These records are also considered part of the dam operator’s Operating Log, and shall be accessible at all times. The Operating Log is kept in the control house at Olympus Dam. (capitalization and emphasis in original; alteration added). According to the testimony of Mr. VanShaar, the Operating Log for Olympus Dam was kept at Casper Control Center in Wyoming by Bureau personnel, and contained entries not only for Olympus Dam, but also for Lake Estes and other relevant C-BT Project facilities. Moreover, the Bureau of Reclamation’s Standard Operating Procedures, as included in the record before the court, provide for an Emergency Action Plan, which is dated May 2003 in the version included in the record before the court. The parties stipulated that, pursuant to the Standard Operating Procedures and the Emergency Action Plan, the Eastern Colorado Area Office designates an Incident Management Team9 in emergency situations. According to the parties’ stipulations, the “IMT [Incident Management Team] includes employees from various components of the ECAO [East Colorado Area Office]” and “is responsible for managing the ECAO’s response to the event.” (alterations added). According to the parties’ joint stipulations, “in the beginning 9 In his testimony at trial, water scheduler Mr. Miller referred to an “Incident Command Team,” which was tasked primarily with communication with the media, whereas the Incident Management Team was concerned with coordinating “the different emergency responders for the different cities and the sheriff’s offices and things like that,” as well as declare Response Levels. 9 of the September 2013 storm,” the East Colorado Area Office formed an Incident Management Team, and Ralph Beall was designated the “Incident Commander” of the Incident Management Team. The Post Incident Analysis Report prepared by the Bureau of Reclamation explains: The Colorado Big Thompson Facility Manager, Ralph Beal [sic], was the Incident Commander as delegated by the ECAO [East Colorado Area Office] Area Manager, Michael Collins (Agency Administrator). An Incident Management Team (IMT) concept was used which helped facilitate better span of control, chain of command, resource management, facilitate awareness of project operations and maintain situational awareness. ECAO had adopted Incident Command Systems (ICS) for incident management across its projects and has conducted ICS training and incorporated these concepts into their EAPs [Emergency Action Plans]. The ECAO Incident Commander has the authority to declare an emergency at Olympus Dam and activate the IMT. The ECAO ICS organizational structure for this event is shown in the figure below. (alterations added). The Post Incident Analysis Report indicates that, alongside Mr. Beall, the Incident Management Team consisted of the Liaison Officer, Jacklynn Gould, the Safety Officer, David Hartman, the Security Officer, Howard Bailey, the Agency Representatives to the City of Loveland Emergency Operations Center, James VanShaar and Andrew Gillmore, and the Public Information Officer, Kara Lamb, although the Post Incident Analysis Report does not specify at what times the members joined the Incident Management Team. Paula O’Brien, who, as noted above, was at the time serving as safety engineer in the East Colorado Area Office, testified at trial that she also joined the Incident Management Team sometime the morning of September 12, 2013. The Post Incident Analysis Report indicates that the Incident Management Team reported to the Agency Administrators for the East Colorado Area Office, identified as the Manager, Michael Collins, and the Deputy Manager, Jacklynn Gould, who, as noted above, also served as the Liaison Officer. At trial, Mr. Beall testified that, despite holding the title “Incident Commander,” he was not the “lead decision-maker,” and Mr. Beall identified three individuals who outranked him: Michael Collins and Jacklynn Gould, who Mr. Beall identified as “my boss’ boss and boss,” and Charles Pedersen, who Mr. Beall identified as “my direct boss” and who the Post Incident Analysis Report identifies as head of the Operations Section. 10 Mr. Beall further testified that, when holding the tile of Incident Commander, he remained “the facility manager at the same time.” Mr. Beall described the decision-making process for the Incident Management Team: So the incident command team would meet. Water scheduling is watching and monitoring the precipitation event. They come in with data. We 10At trial, Mr. Northrup identified Mr. Pedersen as the “chief of Operating and Maintenance Division” at the time of the September 2013 flood. 10 collectively meet as a group, whether it’s by phone or in person. We assess the situation and what is occurring right at that moment. Then we look at the Emergency Action Plan to see if we need to go to an alert level, and then we pass on that information. And in my case, I’d be passing on information to my subordinates on infrastructure planning, making sure we’re ready for whatever the situation might be, and then there’s a contact string where, for instance, the Great Plains duty officer needs to be contacted, public information officer may need to outreach to people. So that’s kind of how the meeting would go. And then we would agree on an alert level and what possible changes could make us have to meet again, and agree on responsibilities throughout the organization. Mr. Beall further explained: Then my plan was to pass that information on to my foreman and then ultimately on to the staff to be ready to act as needed, and then there is a list of contacts that need to be made as you go through your alert levels, starting with internal alert, Level 1, Level 2, Level 3, et cetera. Our security officer, Howard Bailey, and emergency management man, at the very first meeting, he volunteered to make those notifications throughout our process and then confirmed with me after he had done that. Mr. Beall also testified that “[a]lways when you have a situation, you start with your Emergency Action Plan,” which Mr. Beall indicated was Bureau of Reclamation policy. (alteration added). While the Post Incident Analysis Report stated that the “Incident Commander, has the authority to declare an emergency at Olympus Dam and activate the IMT,” (alteration added), Mr. Beall testified that he did not “recall independently having the authority to declare an emergency at Olympus Dam,” but rather stated that “we [the Incident Management Team] start by meeting, using our collective knowledge and experience, and going through our documents and agreeing on what actions we’re going to take.” (alteration added). According to the Post Incident Analysis Report prepared by the Bureau, which was corroborated by the testimony of Mr. Beall and Mr. Miller, Mr. Bailey was responsible for public notifications from the Incident Management Team, as follows: Official notification of dam Response Levels and project operations including operational releases from Olympus dam were made by the ECAO Emergency Management Coordinator (Howard Bailey). Public information was coordinated directly with the public and the media by the ECAO Public Information Officer (PIO) (Kara Lamb). The official notification process was followed in accordance with the EAP [Emergency Action Plan] and Reclamation policy. The ECAO made Response Level notifications to the 11 Great Plains Region Duty Officer (GPRDO) in a timely fashion and provided sound information on incident details. (alteration added). According to Mr. Beall’s testimony, “the Incident Management Team met on a regular basis during the [September 2013] storm event.” (alteration added). According to the testimony of Mr. Miller, the Incident Management Team functioned mainly to pass on information and that the water schedulers, whose function was to make decisions regarding releasing water into the river. Ms. O’Brien testified that, in her role in the Incident Management Team, she “would relay information and requests about monitoring and what we needed to do and critical information about the engineering or structure of the facility” to Mr. Beall, and “let him know what resources we would need and when -- when we might need to do different things” with the operation of Olympus Dam. The Emergency Action Plan for Olympus Dam, as included in the record before the court and in effect during the September 2013 storm, provides for five levels of emergency response, which range from “Internal Alert,” the least severe response level, to Response Level 4, the most severe response level, indicating failure of Olympus Dam. In relevant part, the Internal Alert response level is defined by the Emergency Action Plan: 1. The Internal Alert Response Level is the least serious of the Response Levels. Declaration of the Internal Alert Response Level means that an “Internal Alert” will be conducted in which emergency response activities including internal notifications for affected organizations will be carried out. 2. This means that these organizations will observe and analyze the event, and that they will “stand-by” because nothing “serious” is happening yet. But indications are that something definitely IS happening that could develop into a potentially significant threatening event only if it intensifies. (capitalization and emphasis in original). Response Level 1 is defined in relevant part: 1. Declaration of Response Level 1 means that involved organizations need to “Standby” for additional information relative to developing conditions. Nothing significant really needs to be done for Response Level 1 except to stay aware of the event after it is detected, and observe and analyze it for possible action. Nothing significant has developed yet, but indications are that something definitely IS happening that could progress into a potentially significant threatening event if it continues or intensifies. 2. Local emergency management officials of jurisdictions downstream will receive, and be encouraged to conduct, a “communications check” during Response Level 1 to allow their response organizations to go into alert status. Response agencies generally do not mobilize resources for declaration of Response Level 1. 12 3. Response Level 1 does NOT represent an emergency YET, but may be perceived as such by the media or general public. Nor does Response Level 1 pose a hazard, either at the dam or to downstream populations at risk, at the time of observation. (capitalization and emphasis in original). The definition of Response Level 1 also provides: “Any developing events that belong in Response Level 1 will be identified as being of a level of intensity where they can be managed and brought under control by the dam operating personnel with NO NEGATIVE IMPACTS DOWNSTREAM.” (capitalization in original). Response Leve 2 is defined in relevant part: 1. Declaration of Response Level 2 means that conditions are now more serious than those in Response Level 1 but not yet serious enough to declare Response Level 3. 2. For this Response Level, the dam will not have failed, nor is failure imminent. However, the condition of the structure will currently be unstable, or operational releases will be such that they may become life-threatening. This means that the dam may yet be stabilized, or that operational releases may not actually impact populations at risk if conditions diminish in intensity or are brought under control, but circumstances are such that populations at risk MUST BE placed on “stand-by” status which means notifications to populations at risk should include directions to BEGIN PREPARATIONS to leave predetermined inundation areas for higher ground and safe shelter. It also means that conditions COULD worsen that WOULD require an evacuation if not brought under control effectively. 3. Upon notification of declaration of Response Level 2, local emergency management officials and response agencies will be encouraged to mobilize resources and position them at staging areas. For flood operations, initiate road access closures and begin staging evacuation of low areas as flood releases are staged up. (capitalization in original). The definition of Response Level 2 further provides: “Notification to designated downstream 24-hour warning points is a REQUIRED ACTION THAT WILL BE TAKEN whenever Response Level 2 is declared.” (capitalization in original). Response Level 3 is defined in relevant part: 1. Declaration of Response Level 3 means involved organizations must “GO” (initiate evacuation). Declaration and implementation of Response Level 3 means the situation is extremely serious. For this Response Level, major life-threatening operational releases will be made, major structural damage to the dam will occur, or the physical condition of the dam will have 13 deteriorated such that stabilization is not possible and the dam will most likely fail. 2. For this Response Level, one, or more, of the following emergency conditions will be present: a. OPERATIONAL RELEASES HAVE BECOME LIFE-THREATENING. b. THE DAM IS IN DANGER OF IMPENDING FAILURE. 3. Declaration of this Response Level means populations at risk are in IMMINENT DANGER and that evacuation of populations at risk in all or a portion of the dam failure flood inundation area is REQUIRED! (capitalization in original). The definition of Response Level 3 further provides: 5. Response Level 3 will be declared and initiated for all situations ANYTIME that it becomes obvious, through analysis of threatening events, that IMMEDIATE EVACUATION of populations at risk located downstream from the affected dam is necessary! Again, notification to the downstream 24-hour Warning Point(s) is a REQUIRED ACTION THAT WILL BE TAKEN whenever Response Level 3 is declared. 6. Declaration of Response Level 3 will be based on the certainty that LIFE- THREATENING floodwaters will affect populations at risk. 7. In cases where Response Level 3 is declared without passing through an Internal Alert or Response Levels 1 and/or 2 first, carrying out expected actions for Response Level 3 is the first priority. Expected actions for the Internal Alert or Response Levels 1 and 2 will be checked and completed only after having completed them for Response Level 3 first. 8. A protective action recommendation will be made that local authorities issue an [sic] public evacuation warning to immediately leave flood inundation areas for safe areas. 9. Local authorities are responsible for advising the public on safe evacuation routes and where to go for safe shelter. Response organizations will be encouraged to fully mobilize and physically implement evacuation procedures for Response Level 3. (capitalization in original). Response Level 4 is defined in relevant part: 1. Declaration of Response Level 4 means the dam is “GONE” (it has failed). This is the most dangerous Response Level. 14 2. For this Response Level, the following emergency conditions will be present: a. THE DAM IS FAILING/THE DAM HAS FAILED. b. RESULTANT RELEASES ARE EXTREMELY LIFE-THREATENING. 3. Declaration of this Response Level means populations at risk and response personnel conducting evacuations in inundation areas are in IMMINENT DANGER and that they should leave the dam failure flood inundation area IMMEDIATELY! (capitalization and emphasis in original). The Emergency Action Plan provides a set of “Initiating Conditions” for each of the emergency response levels. Under the heading “Decision-Making,” the Emergency Action Plan provides, in relevant part: The decision will be made by the Area Office to declare a specific response level based on an analysis of identified initiating conditions for Olympus Dam. For hydrologic events, the decision will be made by the Area Office based on the April 1996 Olympus Dam Early Warning System Decision Criteria Document. The dam operator will only declare a Response Level in the event communications between the dam and the Area Office is interrupted or the initiating conditions require going immediately to a Level 3 Response. The Emergency Action Plan categorizes initiating conditions for all response levels except for Response Level 4 as either “HYDROLOGIC EVENTS,” “EARTHQUAKE,” or “ALL OTHER EVENTS.” (capitalization in original). The Emergency Action Plan provides the following initiating condition for an Internal Alert response level with respect to hydrologic conditions: “It becomes evident, based on rainfall and streamflow data being received from the EWS [Early Warning System] basin-monitoring equipment, that releases of 1,000 ft 3/s will need to be made from the dam.” (alteration added). The Emergency Action Plan provides the following two initiating conditions for Response Level 1 with respect to hydrologic conditions: a. A Flash Flood Watch, Flood Watch, or Severe Storm Watch is issued by the National Weather Service for the Estes Park area or the Olympus Dam Drainage Basin. b. It becomes evident, based on rainfall and streamflow data being received from the EWS basin-monitoring equipment, that releases of 1,100 ft3/s will need to be made from the dam. An existing agreement requires Reclamation to contact the City of Loveland when a release of 1,100 ft 3/s will be made. 15 (capitalization and emphasis in original). The Emergency Action Plan provides the following four initiating conditions for Response Level 2 with respect to hydrologic events: a. A Flash Flood Warning, Flood Warning, or Severe Storm Warning is issued by the National Weather Service for the Estes Park area or the Olympus Dam Drainage Basin. b. It becomes evident, based on rainfall and streamflow data being received from the EWS basin-monitoring equipment, that releases of 1,500 ft 3/s will need to be made from the dam. It is at a flow of 1,500 ft 3/s in the Big Thompson River that water level first reaches the level of homes and businesses below Olympus Dam. c. Rainfall totals greater than 1.2 inches in 1 hour or 1.7 inches in 3 hours at half of the operating rain gauges. Refer to the April 1996 Olympus Dam EWS Decision Criteria Document. d. It becomes evident, based on rainfall and streamflow data being received from the EWS basin-monitoring equipment, that inflows to Lake Estes will reach 5,000 ft3/s. It is estimated that the Olympus Dam spillway will being plugging at inflow of about 5,000 ft3/s. (capitalization and emphasis in original). The Emergency Action Plan provides the following two initiating conditions for Response Level 3 with respect to hydrologic events: a. It becomes evident, based on rainfall and streamflow data being received from the EWS basin-monitoring equipment, that releases of 1,500 ft 3/s will need to be made from the dam. As mentioned earlier, it is at a flow of 1,500 ft3/s in the Big Thompson River that water level first reaches the level of homes and businesses below Olympus Dam. Also, most structures in the Big Thompson Canyon Below Olympus Dam are inundated at a flow of 6,000 ft3/s. Once Response Level 3 has been declared, continual contact will need to be established between Reclamation and downstream authorities so that evacuation of downstream populations can be coordinated with anticipated releases from the Dam. b. Rainfall totals greater than 1.5 inches in 1 hour or 2.2 inches in 3 hours at half of the operating rain gauges. Refer to the April 1996 Olympus Dam EWS Decision. (capitalization and emphasis in original). The Emergency Action Plan provides only one initiating condition for Response Level 4, without categorization: “Olympus Dam begins to fail, or has failed, from any cause.” 16 The Emergency Action Plan further provides tables of “EXPECTED ACTIONS” for each of the Response Levels. (capitalization and emphasis in original). The Emergency Action Plan states, under the heading “EXPECTED ACTIONS TABLES:” 1. Expected Actions of organizations have been arranged according to the severity and time of occurrence of the developing emergency event and then placed under the appropriate Response Levels. This means that the Expected Actions for each organization will be the response actions that organization will implement when that Response Level is declared. This operating methodology has been designed to help prevent organizations from over or under reacting to the observed and identified emergency event that is occurring. 2. The Expected Actions for each organization under each Response Level listed are presented in columnar format with three columns. 3. Column 1 presents the tasks or responsibilities an agency or individual will need to implement in response to declaration of the Response Level. In all cases, the responsible person (by title) who is responsible to ensure that the listed task and/or responsibility is carried out for each office is as follows: a. DAM OPERATIONS PERSONNEL: The Dam Operator and/or the Facility Supervisor, for the Estes/Marys Lake Powerplant. b. LOVELAND CONTROL CENTER (LCC): The LCC Operator and/or Foreman. c. EASTERN COLORADO AREA OFFICE (ECAO): Water Scheduling/Safety of Dams Staff or Division Chief and/or the Area Manager. d. GREAT PLAINS REGIONAL OFFICE (GPRO): Facility Operation Services Group Staff or Group Leader and/or the Infrastructure and Engineering Services Group Manager. 4. Column 2 provides space for personnel to date/time stamp when the listed task/responsibility was completed. This, in effect, becomes the documentation for final reports that must be submitted upon cessation of emergency operations. 5. Column 3 lists “Location of the Implementing Procedure”. [sic] This procedure may be located somewhere in the Emergency Action Plan, Standard Operating Procedures, or in some other procedural document for the organization. 6. The four Response levels shown are sequenced in ascending order of severity for each individual and/or organization. 7. Note: Although Reclamation can coordinate with downstream officials regarding the affect [sic] that Olympus Dam releases may have on downstream flooding caused by inflows below the dam, this EAP and the Olympus Dam EWS are for storm events occurring above the dam and cannot be relied upon by local officials for storm events occurring below the dam. 17 (capitalization and emphasis in original; alterations added). At trial, Tim Miller testified that “as the water scheduler that day,” meaning September 12, 2013, he “would have followed this portion of the Emergency Action Plan as applicable.” The Emergency Action Plan further provides for a series of “HAZARD SPECIFIC GUIDELINES.” (emphasis and capitalization in original). The “Hazard Specific Guidelines state at the outset: A. INTRODUCTION 1. All information contained in the following hazard specific guidelines is directed toward actions the dam operating personnel may need to take and data they will need to gather to help facilitate decision- making directed toward ensuring the structural integrity of Olympus Dam and appurtenances for specific incidents that could have an impact on the dam. 2. In all cases, regardless of the incident, the following shall apply: a. The first action taken by the dam operating personnel, or anyone receiving incoming data from the EWS shall be to implement the actions and notification procedures as specified in the Response Levels System for Olympus Dam; and, b. The dam operating personnel will then implement procedures to gather additional data and to preserve the structural integrity of Olympus Dam and appurtenant structures as specified in this Emergency Action Plan for specific events. 3. Information presented in the following guidelines is addressed primarily at making visual observations, taking instrumentation readings, and providing that data to decision-makers in the Eastern Colorado Area Office, and Great Plains Regional Office. B. REPORT OF EMERGENCY SITUATION OR UNUSUAL OCCURRENCE 1. A record of all telephone or radio reports of emergency situations or unusual occurrences shall be maintained at all steps of the communications network. The form on the following page shall be used in documenting the report. A supply of these forms should be kept on hand and filled out in event of an emergency report or the event should be recorded in the logbook. Each call should be recorded in a chronological order as necessary to maintain continuing records during an incident. 2. This report shall be considered part of the Operating Log and should be accessible at all times. (capitalization and emphasis in original). The “Hazard Specific Guidelines” within the Emergency Action Plan further provide, under the heading “C. FLOOD OPERATIONS OR LARGE RELEASES INTO THE DOWNSTREAM CHANNEL:” 18 1. Hazard Identification: There is no flood control space allocation in Lake Estes. The hydrologic loading condition, identified as being the most critical inflow scenario for warning purposes, is the Probable Maximum Flood whose peak discharge is 83,900 ft3/s and whose volume is 79,900 acre-feet. It has been estimated that failure of the dam from a flood of this size would result in a peak discharge of 108,000 ft3/s in the Big Thompson River with an average depth of 20 feet. 2. Operating Personnel: a. Flood operating Criteria (1) The dam will be attended 24 hours per day when major inflows occur which may endanger the safety of the dam and/or downstream residents. (2) The status of operations in the drainage area above Estes Power Plant should be established during an emergency. If necessary and conditions permit, dispatch an employee to search for a route from the flood area in order to advise higher authority of the situation and to re-establish communications. (3) When a heavy rainstorm develops in the Rocky Mountain National Park, within the Big Thompson River Drainage Basin, the Chief Ranger of the park will notify the Estes Power Plant Foreman. The Estes Power Plant Foreman will notify the Loveland Control Center (LCC),[11] who will relay this information to the Water Scheduling Division, Water and Land Operations Division, and Power Division of the Eastern Colorado Area Office (ECAO). ECAO will notify the Estes Park Police Department and Larimer County 24-Hour Warning Point that flooding may occur above and below Lake Estes. (4) IF OLYMPUS DAM APPEARS TO BE ENDANGERED (SUCH AS A SUDDEN SEVERAL FOOT RISE IN LAKE LEVEL AND THREATENS TO OVERTOP THE EMBANKMENT, immediately contact the ECAO. Information to be reported should include current reservoir water surface elevation, observed water surface rise rate, weather conditions in the vicinity(past, present and predicted), and discharge condition of the Big Thompson River above and below the reservoir. The ECAO will provide instructions regarding reservoir operation and further reporting based on this report. Also, immediately open the spillway gates. As long as the gates can be opened to increase flows through the spillway, there is a good chance of relieving pressure on the dam embankment before major damage to the dam occurs. 11Ralph Beall and Tim Miller testified that, by the time of the events of the September 2013 storm, the Loveland Control Center had been relocated to the Casper Control Center. 19 (5) A calculator program for flood routing is included in the SOP [Standard Operating Procedures] at the control house. This program will automatically compute changes in storage, inflow and outflow rates through Lake Estes, and can be used as a tool or aid to assist the operator during times of communication loss. This program should be used only by experienced operators familiar and competent with operation of the calculator and should not be used in lieu of criteria written in this Emergency Action Plan. (6) The LCC should notify the Estes Power Plant Foreman to contact all employees and schedule shifts for monitoring Olympus Dam. These shifts will consist of a minimum of three persons per 24 hour day, on a continuing basis, until the emergency no longer exists. When the water surface elevation at Lake Estes reaches 7,474.00 feet and a further increase is indicated, begin opening the No. 3 radial gate according to the following criteria: (a) Record the elevation at time of arrival. (b) Time the lake increase at 15-minute intervals, and record the elevation at the end of 15 minutes (c) Take the difference of the beginning and ending elevations at the end of 15 minute interval and multiply by 10. This calculation will provide the change in gate opening for radial gate No. 3. (d) Continue to operate the gate in this fashion for all elevations greater than 7,474.00 feet. (e) If the water surface elevation should reach 7,475.75 feet and a further increase is indicted, begin opening the remaining four radial gats according to these criteria: i. Record the elevation at 15-minute intervals. ii. Take the difference of the beginning and ending elevations at the end of the 15-minute interval and multiply by 5. This calculation will provide the range in gate opening for the remaining gates. iii. If the elevation should exceed 7,475.75 feet (within the 15 minute interval, use both equations to derive the gate settings. Note: Gate No. 3 uses a factor of 10 for the gate positions. The remaining gates use a factor of 5. These factors should not be used interchangeably as excess flows will occur. iv. When the lake level begins to recede, begin decreasing gate openings according to the previously mentioned criteria. (capitalization and emphasis in original; alteration and footnote added). Tim Miller testified at trial that, while the Hazard Specific Guidelines for floods would have been relevant to 20 the Bureau’s response to the September 2013 storm, events during the flood could have necessitated resort to other Hazard Specific Guidelines as well, such as “erosion,” “structural problems,” “failures of different items” including “operational equipment,” and “seeps.” Mr. Miller further testified to his belief that, with respect to the Hazard Specific Guidelines for floods, in particular, the instructions in paragraph (6) to raise Gate 3 at 7,474 feet of elevation, and the remaining gates at 7,474.75 feet of elevation, “[t]his whole part was null and void during the flood,” for the reason that “Gate 3 was not operable.” (alteration added). According to Mr. Miller, under normal circumstances, the Bureau would “open Gate Number 3 until it reached the maximum remote operation, and then” the Bureau could “bring people to the dam to manually open the other gates or to open Gate 3 further” as necessary. James VanShaar testified that he would not interpret the Emergency Action Plan “as indicating that we should not have opened Gate Number 3[12] until arrival at 7474,” and Mr. VanShaar stated that “[o]ther portions of the standing [sic] operating procedures gives us flexibility to operate the gates for other reasons and in other ways, and we did so.” (alterations and footnote added). Mr. VanShaar also testified, however, that when the Emergency Action Plan is triggered, specific Emergency Action Plan requirements trump more general rules in the Standard Operating Procedures, and that the Emergency Action Plan is followed by operators in the absence of direction from the water schedulers. A filled-out version of the form provided for in paragraph B.1. of the Hazard Specific Guidelines is included in the record before the court. The form, titled “REPORT OF EMERGENCY OR UNUSUAL OCCURRENCE,” indicates that it was completed by Howard Bailey, the Bureau’s security officer. (capitalization and emphasis in original). The Report of Emergency or Unusual Occurrences provides that Lake Estes reached an elevation of 7,473.89 at 11:30 p.m. on September 12, 2013, and that at 11:45 p.m. that night, Lake Estes experienced an inflow of 5,391 cfs and outflow of 5,377 cfs. The Report of Emergency or Unusual Circumstances further provides a brief summary of the events of the September 2013 storm at Olympus Dam: Water Scheduler Carlos Lora contacted Emergency Manager Howard Bailey at/around 02:00 hrs and notified him of a heavy rain storm in the Estes Park area. This rain storm and the subsequent runoff is likely to continue raising the reservoir elevation and resulting in increased releases from Olympus Dam. Carlos recommended an Internal Alert (IA) that was subsequently declared upon consultation with the ECAO IMT. C-BT [Colorado-Big Thompson] Facility Manager Ralph Beall was appointed as Incident Commander. (alteration added). 12Mr. VanShaar referred to Gate 3 in his explanation of the Emergency Action Plan, despite Gate 3 having been inoperable during the September 2013 storm. 21 Plaintiffs’ Properties Downstream of Olympus Dam, in Drake, Colorado, an unincorporated community in the Big Thompson River Canyon, is the confluence of the Big Thompson River and a tributary, the North Fork Big Thompson River. The parties stipulated that the North Fork Big Thompson River “has a separate watershed from the Big Thompson River,” and above the confluence, releases from Olympus Dam do not affect flow in the North Fork Big Thompson River. The parties further stipulated that, at the time of the September 2013 events relevant to the case currently before the court, plaintiffs Howard and Lena Carman and Elizabeth Orr were owners of properties on the Big Thompson River downstream of both Olympus Dam and of the confluence at Drake, Colorado. The parties also stipulated that water released from Olympus Dam takes multiple hours to reach the properties of the plaintiffs, although the parties disagree on the approximate number of hours from the time of release from Olympus Dam before released water reaches the Orr and Carman properties. Because plaintiffs’ properties were both downstream of Olympus Dam, in the Big Thompson River Canyon, as well as being downstream of the confluence at Drake, the primary events of the September 2013 storm which are relevant to this case occurred at Lake Estes and Olympus Dam or downstream thereof. The relevant releases from Olympus Dam are all downstream into the Big Thompson River, towards plaintiffs’ properties. The parties stipulated that Ms. Orr owned in September 2013, and continues to own, property off Highway 34 in Loveland, Colorado, “more than twelve-and-a-half miles downstream from Olympus Dam and more than half-a-mile downstream of the confluence of the rivers at Drake.” Ms. Orr testified that at the time of the September 2013 flood, the property off Highway 34 was the site of a cabin originally built by Ms. Orr’s grandfather, which was expanded in 2003 and 2004 into the structure that existed in September 2013. Ms. Orr testified that she has been the sole owner of the property off Highway 34 since 1976. Ms. Orr testified, to her recollection, that the Big Thompson River flooded once prior to the September 2013 storm, on July 31, 1976. According to Ms. Orr, during the events of the 1976 flood, “it had rained off and on for several days,” but there was not “particularly heavy rain in the canyon,” and in the Big Thompson River, “the water level was less than in the 2013 [flood].” (alteration added). When asked about the damage of the 1976 flood to the property, Ms. Orr testified: “We did lose our septic system, and we lost our well, our water well, but there was no damage at all to the house.” Ms. Orr further testified that the United States Army Corps of Engineers added “riprapping” to the banks of the Big Thompson River following the 1976 flood. At the time of the September 2013 storm, Ms. Orr testified that her house was located approximately 150 feet from the bank of the Big Thompson River, although the older portion of the house, which was built by Ms. Orr’s grandfather, was located closer than 150 feet to the river. Ms. Orr’s property is located on the southern, or right, bank of the Big Thompson River and was connected to Highway 34 by a bridge over the Big Thompson River. At the time of the September 2013 storm, there were multiple structures on the property, including Ms. Orr’s house, a barn, a second house identified by Ms. Orr 22 as “a play house for our children,” and a playground. According to Ms. Orr’s testimony, prior to the September 2013 flood, the Big Thompson River flowed “much closer to the highway” than it currently does, and Ms. Orr’s property had a large yard between the river and the house, as well as a buried septic system located in front of the house, approximately 150 feet from the Big Thompson River, which had been installed after the 1976 flood. Between the yard and the house were a rock wall, described by Ms. Orr as two-and-a-half to three feet high, the driveway that originally led to the older portion of the cabin, and a second rock wall. Ms. Orr testified that her house was “15 to 20 feet” higher in elevation than the Big Thompson River. The parties stipulated that, at the time of the September 2013 flood, Howard and Lena Carman, a married couple, owned two adjacent parcels of land on Highway 34 in Loveland, Colorado. According to the parties’ stipulations, the Carmans’ home was located on one parcel on Highway 34, and on the adjacent parcel on Highway 34 was located the business the Carmans owned and managed, the Big Thompson Indian Village store (Indian Village store).13 According to the parties’ stipulations, the parcels owned by the Carmans “were about fifteen miles downstream from Olympus Dam and at least two miles downstream of the confluence of the rivers at Drake,” approximately one-and-a-half miles downstream from Ms. Orr’s property. Mr. Carman testified, corroborated by the Carmans’ deed to their property, that the Carmans, also owned an access easement over the eastern portion of an adjacent parcel, owned by Larimer County, Colorado, immediately to the west of the Carmans’ property. According to the testimony of Mrs. Carman at trial, the Carmans’ property was approximately 1,000 feet lower in elevation than Estes Park. Mrs. Carman testified that the Carmans first moved into their property in 1971, based on an agreement to lease the property for five years before purchasing it. Mr. Carman testified that the Carmans purchased their property in 1976. Mr. Carman testified, similar to Ms. Orr, that prior to the September 2013 flood, the Big Thompson River had flooded in 1976. Mr. Carman testified that in the 1976 flood, falling power lines damaged the back corners of the Indian Village store, and the only damage to the Carmans’ house was to the basement, where a “four-foot section” of wall and corner “collapsed” and were “knocked out” by the 1976 flood. Mr. Carman further testified that the Carmans also lost a “guest cabin” and a barn in the 1976 flood. The Carmans purchased their property shortly after the 1976 flood, and the real estate contract by which the Carmans purchased the properties indicates that the Carmans were aware that the properties “may be located and situate in a flood plain.” At trial, the Carmans testified that because the lower portion of their property was located in a flood plain, the Carmans did not construct any permanent structures on that portion of their land. According to a plat included in the warranty deed which conveyed the Carmans’ properties to the Colorado Department of Transportation in 2016, the flood plain occupied a substantial portion of both parcels owned by the Carmans along the north bank of the Big Thompson River. 13 According to the testimony of Mr. Carman, at the Indian Village store, the Carmans sold “Indian stuff, rugs, pottery, jewelry, moccasins,” as well as “T-shirts” and “curio items.” 23 The Carmans’ parcels were located on the northern, or left, bank of the Big Thompson River, along a bend of the river. The Carmans testified that they had multiple structures across the property, including the Carmans’ house, the Indian Village store, a large, roughly S-shaped concrete wall which created a higher area of ground on the Highway 34 side of the property, as well as a horse trailer and a Connex14 box located on the lower portion of the property. On a grassy lawn by the river, behind a horse trailer and Connex box, the Carmans kept two horses15 in corrals which at the back were approximately four or five feet from the Big Thompson River. Mr. Carman testified at trial that at the highest point, the property was approximately 14 or 15 feet higher in elevation than the riverbank, and 20 or 21 feet higher in elevation than the water. According to the testimony of Mrs. Carman and a map of the property she had drawn, the Carmans’ property was approximately 200 feet wide at the widest portion, from the parking lot of the Indian Village store to the Big Thompson River, while the house and store were approximately 75 feet from the Big Thompson River. On the north side of Highway 34, across from the parking lot in front of the Indian Village store, was a lower section of ground, which Mr. Carman at trial estimated was approximately six feet lower than the parking lot of the store and was referred to as the “borrow ditch.” Behind the Indian Village store, the Carmans had a footbridge which reached across the Big Thompson River, which also carried a pipe which brought non-potable water from a hydroelectric plant located across the river. Events of the September 2013 Storm According to the parties’ joint stipulations, under ordinary circumstances, “[t]he Bureau of Reclamation constantly releases water from Lake Estes into the Big Thompson River throughout the year,” in order “to serve downstream water rights or environmental purposes,” and the Bureau of Reclamation “must release a minimum amount of water,” which “ranges between 25cfs and 125cfs depending upon the time of year,” “from behind Olympus Dam into the Big Thompson for environmental purposes.” (alteration added). The parties also stipulated that in the Big Thompson River Canyon, “[b]eginning at a flow level of 1,500cfs, water begins to flood permanent residences,” while most structures “are inundated at flows of 6,000cfs.” (alteration added). The parties stipulated that, beginning on September 9, 2013, and lasting until around September 16, 2013, “significant rainstorms stalled over Larimer County, Colorado, including over Olympus Dam and the town of Estes Park.” During the September 2013 storm, Estes Park, where Lake Estes and Olympus Dam are located, received 11.54 inches of rain, while the average annual rainfall for Estes Park is 16.32 inches, and the average September monthly rainfall is 1.40 inches. Drake, the location of the confluence of the Big Thompson River and North Fork Big Thompson River upstream 14Mr. Carman testified that a Connex box is “what you see like a semi going down the road with.” 15In the parties’ filings, including the joint stipulations, as well as testimony at trial, the Carmans’ animals are described interchangeably as “two horses” and as “a horse and a mule.” 24 of plaintiffs’ properties, received 16.20 inches of rainfall during the September 2013 storm, while the average annual rainfall for Drake is 16.84 inches and, and the average September monthly rainfall is 1.50 inches. The parties stipulated that, in total, “15,640 acre-feet of water flowed into Lake Estes” during the September 2013 storm. According to the parties’ joint stipulations, “[t]he peak of the storms” was a 48-hour period “between September 11 and 13, 2013:” 3.90 inches of rain fell in Estes Park from 7:00 a.m., September 11, to 7:00 a.m., September 12, and 3.74 inches fell in Estes Park from 7:00 a.m., September 12, to 7:00 a.m., September 13. (alteration added). The parties’ stipulations also indicate that “[t]he annual exceedance probability of the September 2013 storm event ranged as low as 0.1%. In other words, the September 2013 storms may have been a 1,000-year storm event.” (alteration added). The parties stipulated that on September 12, 2013, multiple emergencies were declared by federal, state, and local governments. Also according to the parties’ stipulations, “then-President Obama declared a federal emergency due to the storms and flooding;” “then-Colorado Governor John Hickenlooper declared a disaster emergency due to flooding in both Boulder and Larimer Counties;” and “[t]he city manager for the city of Loveland, Colorado declared a local disaster on September 12, 2013 due to heavy rains, flash flooding, closed roads, and property damage.” (alteration added). According to the Post Incident Analysis Report prepared by the Bureau of Reclamation, however, “[b]efore and throughout the flood event, the Olympus Dam Early Warning System did not transmit any precipitation warnings.”16 (alteration added). According to the testimony of Carlos Lora, who was the water scheduler on duty at the East Colorado Area Office of the Bureau of Reclamation from the night of September 11, 2013, until the afternoon of September 12, 2013, the Early Warning System’s failure to transmit a precipitation was not the result of any malfunction in the system, but rather reflected that “the rainfall was so slow coming,” and therefore did not trigger a warning. Ms. Orr testified that on September 9 and 10, 2013, the area experienced “rain showers” and the water in the Big Thompson River near her property was approximately two feet below the riprap on its banks. The parties stipulated that prior to approximately September 11, 2013, the Bureau of Reclamation “was releasing 80cfs through Olympus Dam into the Big Thompson River,” as well as “diverting 560cfs through Olympus Tunnel. The water level of Lake Estes was approximately 7,473.2 feet.” Mrs. Carman testified at trial that on September 8, 9, and 10, 2013, it was raining “off and on,” including a break in the rain the morning of September 10, 2013, and during that time the Big Thompson River was not noticeably higher than its normal flow. Based on weather forecasts, however, Mrs. Carman testified that she understood that there would be “a large storm coming, to expect heavy rain,” especially “through Boulder, Lyons, and Estes Park,” upstream from plaintiffs. 16 The Post Incident Analysis Report states that the Early Warning System at Olympus Dam “was calibrated to transmit warnings for extremely intense rainfall events (0.75 inches in 30-minutes or 1.50 inches in 1-hour). This rainfall event did not exceed these intensity thresholds, but other early warning systems elsewhere in Rocky Mountain National Park were triggered by the event.” 25 According to the testimonies of Tim Miller and Anthony Curtis, the Bureau of Reclamation Resources Division chief, a team of water schedulers, operating within the Water Resources Group of the Resources Division of the Bureau, direct water releases from Olympus Dam, and “develop[] daily water schedules and long-term water schedules for movement of water to deliver to participants and contractees” in the C-BT Project. (alteration added). According to the testimony of Mr. Miller, the water schedulers’ function is to determine at what times and places to release water into the Big Thompson River as it is requested by contract holders. Commonly the water schedulers will release water into the river at the points where demand for power is the highest, so as to maximize power generation with their releases. According to the testimony of Mr. VanShaar, “[t]he Water Resources Group is responsible for issuing the water orders” each day, which “describes and prescribes the actions to move water through the system,” as well as “oversee[ing] portions of the Frying Pan, Arkansas, project, [sic17] and provid[ing] an oversight role for the Trinidad project in Southeastern Colorado.” (alterations and footnote added). According to Mr. VanShaar, water schedulers rely on “physical and statistical modeling, a role for forecasting, data analysis, data issuing,” as well as “maintain the data flow from various gauges.” According to the testimony of Anthony Curtis, the water schedulers develop water orders which “specify the number of acre-feet [of water] to be delivered through each facility” of the C-BT based on requests submitted by Northern Water. (alteration added). The water schedulers send water orders to a number of entities, including Northern Water and WAPA, discussed above, and “the State Engineer’s Office, the district engineers, Colorado Parks and Wildlife, and counties and cities within the C-BT,” according to the testimony of Mr. Curtis. According to Mr. VanShaar and Mr. Lora, the water order for each day typically is released between 3:30 p.m. and 5:30 p.m., and contains a record of the instructions from that day as well as prospective instructions for the remainder of that day and for the next day. At trial, Mr. VanShaar and Mr. Lora testified that the water scheduler on duty for September 11, 2013, into the morning of September 12, 2013, was Mr. Lora. Mr. VanShaar testified that during the storm, particularly between September 11, 2013, and September 13, 2013, the Bureau of Reclamation deviated from the water orders’ instructions, “[s]ometimes as frequently as once an hour or maybe slightly more frequent,” due to changes in the rain and runoff, and accompanying impacts on C-BT Project facilities. (alteration added). Mr. Lora issued a water order in the afternoon of September 10, 2013, which contained prospective changes to flow in the C-BT Project through September 11, 2013. The September 10, 2013, water order states: The Adams Tunnel flow will be reduced this evening to 450 cfs due to the stormy weather impacting the area. Depending on weather condition and 17“Frying Pan, Arkansas, project” is how the name of that project appears in the transcript, however, the name of that Bureau of Reclamation project is actually spelled “Fryingpan- Arkansas Project.” 26 the runoff situation, we may decide to adjust that flow again tomorrow. The reduction will affect Marys and Estes powerplants output. Despite the wet weather the region is experiencing today and tomorrow, we expect the Adams Tunnel to continue running high flows for the next several days. But towards the end of the month, conditions will change, and the diversions through Adams Tunnel will have to be reduced. After September 26th the flow will be reduced to only match demands for C-BT water. The reason for the flow reduction late this month is the outages scheduled for Flatiron Powerplant unit #3 and for the Charles Hansen Feeder Canal 550 Section. The annual maintenance for Flatiron unit #3 is scheduled to begin on September 23rd and will last 6 weeks, while the Charles Hansen Feeder Canal 550 Section work will begin on September 27th and will last only 2 weeks. Pumping to Carter Lake will likely resume late this week and will continue for 7 to 10 days. The Estes Powerplant will have 800 acre-feet of water scheduled for power generation on Wednesday, a significant reduction from today’s volume. Meanwhile, Flatiron units #1 and #2 will have 1,100 acre-feet available. The September 10 water order includes among its “summary of flow changes,” at midnight, September 11, “[a]djust the Adams Tunnel flow from 500 cfs to 450 cfs,” and at 7:00 a.m., September 11, “[a]djust the Big T [Thompson] Powerplant flow from 230 to 237 cfs.” (alterations added). With respect to the order to reduce flow through the Adams Tunnel, Mr. Lora testified that “during the day there had been rain in the area, so we wanted to make sure that we didn’t go over the capacity of the system.” Mr. Carman testified at trial that on September 11, 2013, the Carmans did not open their store because the day was forecast to be rainy and cold, and the Carmans believed that “people would stay in the house.” Mr. Carman also testified that the water in the Big Thompson River on September 11, 2013, was “a little higher” than it would otherwise have been, “like a spring runoff,” while Mrs. Carman testified that the river on September 11 was “[w]ell within its banks.” (alteration added). Ms. Orr testified at trial that on September 11, 2013, as late as approximately 8:00 p.m., she drove from Estes Park to her property down Highway 34, and at that time “[i]t wasn’t raining hard at all,” while the river was “still below the riprap” and within its banks. (alteration added). At trial, Mr. Beall testified that, at some point prior to the peak precipitation of the September 2013 storm, he visited the Pole Hill Powerplant, the Flatiron Lake Powerplant, and the Big Thompson Powerplant. Mr. Beall was unable to identify the specific day or days that he visited the powerplants, but he noted that, with respect to the road to the Pole Hill Powerplant, a stream which crosses the road “got too large to cross, because we ended up stranding one of our work trucks there.” Mr. Beall testified that “we had 550 [cfs] coming through our power plant in the afterbay, and whatever the gates at the bottom of Hells Canyon that was picking up this natural flow was delivering.” (alteration added). Mr. Beall states that “PS-2 Jeff Cross and I got personnel together,” and went “back down to the bottom of Hells Canyon, and go out in the concrete structure where the stem valves 27 are and lower those gates to get us back to 550 at the [Pole Hill] afterbay,” with the intent “[t]o close them so they’d quit diverting all the flood water that was coming down Little Hells Canyon into our very small afterbay.” (alterations added). Moreover, Mr. Beall testified that at Flatiron Reservoir, he observed that “Cottonwood Creek, which normally runs very, very small, was bringing enough water into Flatiron [Reservoir] that our reservoir elevation was rising, and water scheduling wanted us to go check out the elevation circuits, make sure they were reading correct.” (alteration added). At the Big Thompson Powerplant, Mr. Beall testified that he disconnected the “regular power before it tripped” and “made the decision to get a generator on the deck of the power plant and tie it in to the sump pumps,” in order to ensure “that we had emergency power for our sump pumps to try and save that power plant.” In the afternoon of September 11, 2013, Mr. Lora issued a water order containing a summary of that day’s changes and prospective changes to flow in the C-BT Project through September 12. The September 11, 2013 water order states: The Adams Tunnel flow has now been reduced to 225 cfs due to the rainy weather and the high runoff. The change has impacted power generation for Marys and Estes powerplants. Inflow to Lake Estes tripled overnight, and is now over 300 cfs. With more rain predicted for tonight and tomorrow, there is a possibility that the generation for Marys and Estes powerplants may have to be curtailed at some point. The situation will be closely monitored. Any decisions will be made in a way that allows Western Area Power Administration and other parties as much time as possible to adjust to the changes. Tomorrow at 0900 hours, the Flatiron unit #3 will begin pumping to Carter Lake once again. We expect the pump to run between 7 and 10 days. The Estes Powerplant will have 520 acre-feet of water scheduled for power generation on Thursday, a significant reduction from today’s volume. Meanwhile, Flatiron units #1 and #2 will have 1,225 acre-feet available. The September 11 water order includes among its “summary of flow changes,” at 7:00 a.m., September 12, “[a]djust the Big Thompson Powerplant flow from 237 to 385 cfs.” (alteration added). The September 11 water order also indicates, in its detailed list of flow changes, the instruction to “[m]aintain a flow of 550 cfs,” in the Olympus Tunnel for both September 11 and 12, 2013, as well as instructions to “[m]aintain a flow of 75 cfs” of releases through the Olympus Dam into the Big Thompson River for both September 11 and 12, 2013. (alterations added). With respect to the Water Resources Group’s motivation for reducing the Adams Tunnel flow, Mr. Lora testified that “we probably anticipated that we were going to have a little bit more runoff than we had had the previous days.” Mr. Lora further testified that flow in the Adams Tunnel was reduced “to accommodate water from the Big Thompson River that was coming into the system,” with the result that the powerplants at Marys Lake and Lake Estes would experience reduced power generation. 28 At trial, Mr. Lora testified that when he left work at the Bureau of Reclamation’s Fort Collins office the evening of September 11, 2013, he “called Casper Control Center and asked them” to call him if the water in the Big Thompson River above Lake Estes reached a flow of 525 cfs. According to the parties’ joint stipulations, the Bureau of Reclamation’s response operations to the storm began “just after 11:30 p.m. on September 11, 2013,” at which time “no dam operator was present at Olympus Dam.” The Bureau of Reclamation’s Operating Log for the events of the September 2013 storm, kept by the Casper Control Center, is included in the evidence before the court. According to the Operating Log as it appears in the record before the court, at 11:40 p.m. on September 11, 2013, the gauge in the Big Thompson River above Lake Estes, which measured the inflow to Lake Estes from the Big Thompson River, was reading a flow rate of 525 cfs, an increase of 200 cfs from 7:00 p.m. earlier that evening. 18 At 11:40 p.m., Casper Control Center called Mr. Lora, pursuant to his earlier instructions. In response, Mr. Lora instructed that the inflow from Adams Tunnel be reduced to 30 cfs, from 200 cfs, and that the Estes Powerplant, through which water enters Lake Estes from Marys Lake, be shut down. According to the parties’ joint stipulations, at that time the Bureau of Reclamation reduced the inflows to Lake Estes as Mr. Lora instructed. Mr. Lora testified at trial that he “direct[ed] operations from [his] home” the night of September 11. (alterations added). The Operating Log provides that at 12:18 a.m., September 12, 2013, “Lora called to verify Estes [Powerplant] units were off line; notified him that BT [Big Thompson River] Above is rising fast (now @ 650 cfs),” and that at 12:19 a.m., “Lora had me [Woodruff, the Casper Control Center employee on duty] raise BT Below Oly [Olympus Dam19] Rad [Radial] Gate #3 to verify we can control.” (capitalization in original; alterations and footnote added). According to the parties’ joint stipulations, a short time after midnight on September 12, 2013, the Bureau of Reclamation “began increasing its releases into the Big Thompson River via remote operation of a single spillway gate” at Olympus Dam. The Bureau would typically do this by remotely controlling Gate 3, the center gate, however, as reflected above, Gate 3 “was not in service during the September 2013 storm and the Bureau controlled spillway gate number 4 by remote operation.” At trial Mr. Beall confirmed that “Radial Gate Number 3 was not operating at the time of the 2013 storm” and the Bureau was “using Gate Number 4 in place of number 3 for the Casper Control Center to operate” during the September 2013 storm. Mr. Beall testified that instructions contained in the Emergency Action Plan for Gate 3 in emergencies would be understood to apply to Gate 4, or Gate 2, depending on which gate was under remote operation. The Post Incident Analysis Report prepared by the Bureau provides, in relevant part: 18For comparison, according to the testimony of Mr. VanShaar, “the average inflow into Lake Estes in September” is “around 75 CFS.” 19“Olympus," Olympus Dam,” and “Olympus Tunnel” are in some quotations abbreviated “Oly,” “Oly Dam,” or “Oly Tunnel.” 29 As a precautionary measure, Gate No 3 was taken out of service prior to the flood due to a gear box issue. The gear box parts had been ordered and had not yet been installed; therefore, Gate No. 3 was not used for the duration of this incident. Prior the [sic] flood, Gate No. 4 was transferred to remote operation and was operated by CCC [Casper Control Center] up to the 2.5 foot limit when the dam operator arrived at the dam. Upon arrival, the operator was able to open Gate numbers 1, 2 and 5 to regulate reservoir operation per instruction from water scheduling through CCC operators. This storm event required opening of 4 of the 5 functioning gates and required manual measurement of gate opening for determining operational releases from the dam. For a single dam operator this is an arduous task at best. (alterations added). At 12:40 a.m. on September 12, 2013, the Operating Log states: “Per Lora BT Below to 180 cfs (+100 cfs); BT Above is now 731 cfs. Carlos [Lora] is calling Burke to see if he can get personnel to E [Estes] PP [Powerplant].” (alterations added). At 12:50 a.m. on September 12, the Operating Log states: “BT Below to 280 cfs (+100 cfs) per Lora, BT Above is 796 cfs.” According to the parties’ joint stipulations, during this period, the water elevation in Lake Estes rose, and by “1:00 a.m. on September 12, the water level of Lake Estes had risen to 7,473.5 feet.” The Operating Log at 1:05 a.m. on September 12, states: “BT Below to 380 cfs (+100 cfs).” Mr. Jonathan Haywood, a Bureau of Reclamation engineer, testified at trial that he received a phone call from Casper Control Center around 1:00 a.m. on September 12, asking Mr. Haywood to “come up and operate the [Olympus] dam to alleviate the water coming in.” (alteration added). The Operating Log at 1:30 a.m. on September 12, 2013, states: “BT Below to 480 cfs (+100 cfs); BT Above 1007 cfs.” The Operating Log at 1:35 a.m. further states: “Lora called CCC; said to increase more out of BT Below +200 cfs to 680 cfs.” Mr. Haywood testified that around 1:45 a.m., he arrived in Estes Park, and he described the weather as “torrential rain, like I hadn’t seen before.” The Operating Log at 1:57 a.m. states: “Per Lora BT Below to 900 cfs (+220 cfs); BT Above 1145 cfs E [Estes] FB 7473.62.” 20 (alteration added). According to the testimony of Mr. Lora, between approximately 1:30 a.m. and 2:00 a.m., September 12, the gauge reading the flow in the Big Thompson River below Olympus Dam was lost, and as a result, through approximately the morning of September 13, the Bureau of Reclamation did not have an accurate measurement of the flow out of Olympus Dam. The Operating Log at 2:01 a.m., September 12, 2013, states: “MLPP [Marys Lake Powerplant] off (East Portal [Adams Tunnel] flow @ 200 cfs).” (alterations added). 20The meaning of “FB” in the context of the Operating Log is unclear from the evidence before the court. Further, while it is not stated, the figure “7473.62” appears to indicate that the elevation of the water in Lake Estes at 1:57 a.m. on September 12, 2013, was 7,473.62 feet. 30 According to the testimony of Mr. VanShaar, Marys Lake Powerplant, through which water from the Western Slope flowed before reaching Lake Estes, “has a lower limit of about 200 cfs, at which point it shuts off,” but Mr. VanShaar indicated he did not know if Marys Lake Powerplant had been turned off by the Bureau of Reclamation or if the powerplant had turned off upon reaching its lower limit. According to the parties’ joint stipulations, Mr. Haywood “arrived at Olympus Dam at approximately 2:13 a.m. on September 12, 2013,” in order to operate the spillway gates, and the Operating Log also records Mr. Haywood’s arrival time as 2:13 a.m., September 12. Mr. Haywood testified that he “had to operate the gates of Olympus Dam outside” in the rain, and that he was “out standing on top of the dam.” At trial, Mr. Lora testified that sometime “after midnight” on September 12, 2013, he called “the person in charge of declaring those [internal alerts] and woke him up” in order to “let him know that we may have to, you know, declare some kind of alert.” (alteration added). According to the parties’ joint stipulations, “at approximately 2:30 a.m., the Bureau of Reclamation declared an internal alert at Olympus Dam,” which is “the first and lowest of five alert levels at the dam.” According to the Operating Log, the Internal Alert was declared “due to high inflows @ BT [Big Thompson River] Above, rain storm in area.” (alteration added). Mr. Lora testified at trial that, upon the declaration of the Internal Alert at Olympus Dam, he did not “look to the Emergency Action Plan to determine how to adjust the outflows from Olympus Dam,” but instead made adjustments “based on whatever the inflow at that point was into the dam,” in part because Mr. Lora directed the operations of Olympus Dam from his home from the night of September 11 and September 12, and he did not have a copy of the Emergency Action Plan at his home. According to the parties’ joint stipulations, “[j]ust before 3:00 a.m.” on September 12, 2013, Mr. Haywood raised each of the four operational gates at Olympus Dam to an opening of “approximately six inches.” (alteration added). The Operating Log states at 2:55 a.m. on September 12: “Haywood going to open all 5 Oly Radial Gates ½’ [foot] per Lora ≈ 1100cfs.” (alteration added). At trial, Mr. Lora confirmed that he instructed that all five of the radial gates at Olympus Dam be opened one-half foot, for an approximate release of 1,100 cfs into the Big Thompson River. According to the testimony of Mr. VanShaar, the release effected by Mr. Haywood opening the gates to six inches “would certainly qualify” for a declaration of Response Level 1. The Operating Log indicates at 3:40 a.m. on September 12, 2013: Per Haywood, Oly radial Gate #3 Gear Box is not working [and] there is no indication of gate opening – estimate is Gates 1, 2 & 5 are open 1’ [one foot] each & gate #4 in CCC [Casper Control Center] indicates 1.39’ [feet] BT Below ≈ 1200 cfs; BT Above 1285 cfs E [Estes] FB 73.81.[21] (alterations and footnote added). The parties stipulated that the Bureau of Reclamation declared Response Level 1 for Olympus Dam at 3:42 a.m. on September 12. According 21“E FB 73.81” in the Operating Log appears to indicate that the water in Lake Estes had reached an elevation of 7,473.81 feet by 3:40 a.m. on September 12, 2013. 31 to the parties’ joint stipulations, following this declaration, at 3:45 a.m., the releases of water through the spillway gates increased to more than 1,500 cfs into the Big Thompson River. The parties’ joint stipulations further provide that the water in Lake Estes by this point had risen to an elevation of 7,473.8 feet, leaving 2.4 inches of vertical space in the reservoir’s operational pool. The Operating Log at 4:15 a.m. on September 12, 2013, states that “Oly Gates 1,2, 4 & 5 are open ≈ 1 ½’ [feet] each,” and 25 minutes later, at 4:40 a.m., “Oly Gates 1, 2, 4 & 5 are open ≈ 2’ [feet] each, flow of 1400 cfs BT Below.” (alterations added). According to the parties’ joint stipulations, the Bureau of Reclamation declared Response Level 2 for Olympus Dam at 5:15 a.m. on September 12, 2013, indicating releases of at least 1,700 cfs, and the Operating Log states at 6:00 a.m. on September 12: “Per Howard Bailey; Response level 2 @ Olympus Dam; outflows expected to reach 1700 cfs.” The parties further stipulated that the National Weather Service, at 5:52 a.m. on September 12, issued a flood warning for the area including the Big Thompson River Canyon and other areas below Olympus Dam. According to the testimony of Mr. VanShaar, Response Level 2 was declared “because at that time the outflows [from Olympus Dam] were expected to reach 1700 cubic feet per second,” in excess of the threshold for Response Level 2 set by the Emergency Action Plan. (alteration added). At 6:09 a.m. on September 12, Paula Baty22 sent an email to Mr. Bailey, Ms. Lamb, Mr. Northrup, Mr. Pedersen, and four others, which indicated that Response Level 2 had been declared, and stated that “[o]ur releases are expected to flood cabins in the canyon.” (alteration added). At 6:15 a.m., September 12, the Operating Log states: “Per Lora lower Oly Gates 1, 2, 4 & 5 to ≈ 1.5’ [feet] each.” (alteration added). Mr. VanShaar testified that on the morning of September 12, 2013, “[t]he rain was still strong and without break, which is a little unusual for Colorado,” that “[t]his was a sustained rain” and “continual,” while “there was limited visibility” in the direction of the mountain, and “[t]here were no breaks in the clouds.” (alterations added). Beginning on the morning of September 12, 2013, the Water Resources Group “moved from a regular eight-hour shift” to alternating shifts of twelve hours on and off, “around the clock, for the next several days.” According to the testimony of Mr. Carman, on the morning of September 12, 2013, the Big Thompson River “was running bank full” and “was coming up on the sides of that riprap” near the Carmans’ property. Mrs. Carman similarly testified that the Big Thompson River was “flowing pretty heavily,” that it was “two or three feet” below the edge of the bank, approximately half of the five to six feet distance from the bottom of the river to the banks, and because of the water’s movement “you couldn’t see the bottom of the river.” According to Mrs. Carman, because of the increased height of the river and weather forecasts, Mr. Carman moved much of his equipment, including his backhoe, out of the 22As noted above, at trial Ms. Baty, a safety engineer at the Bureau of Reclamation’s East Colorado Area Office, went by the name Paula O’Brien. 32 lower portion of the Carmans’ property, located in a floodplain, to the higher section of their property closer to the highway. The Operating Log at 7:10 a.m. on September 12, 2013, states: “Per Carlos [Lora], lower BT-below radial gates ¼’ [foot] or 3” [inches] = 1:10 on gate # 4, gates # 1, 3 & 5 show no indication.”23 (alterations added). At 7:14 a.m. on September 12, the Operating Log further states: “Per Carlos [Lora], Take Big-T-PP [Big Thompson Powerplant] off & just pass extra water to flow-North (Big-T # 1 off)?” (alterations added). Mr. Miller testified at trial that at 7:32 a.m. on September 12, he sent a text message to Mr. Lora and Ms. Lamb at the Bureau of Reclamation indicating that the Bureau could begin capturing water, and that the Big Thompson Powerplant and the Wasteway24 should be turned off to allow the water to be captured at Horsetooth Reservoir.25 Mr. Miller was unaware, however, of whether Mr. Lora or Ms. Lamb took his advice and began storing water as Mr. Miller had suggested. Ms. Orr testified that between approximately 7:30 a.m. and 9:00 a.m. on September 12, 2013, she received a recorded emergency “reverse 911” phone call to her home landline telephone informing her of the need to evacuate her home.26 According to 23The Operating Log does not clarify the meaning of “no indication” at 7:10 a.m., September 12, 2013. 24 At trial, Mr. VanShaar referred to the Wasteway as “the second portion of the trifurcation.” 25 Mr. Miller’s advice to begin capturing water appears to indicate that the Big Thompson River was in a “free river condition.” In his testimony at trial, Mr. Curtis defined a “free river condition” as one where the water in the river system exceeds the amount of water allocated to those holding rights to the water. Mr. Curtis explained at trial that during a free river condition, water can be captured from the river system without regard to priorities or rights in that water. According to the testimony of Mr. Beall, during a free river condition the Bureau can capture water by diverting it via the 550 Section of the Charles Hansen Feeder Canal to the Horsetooth Reservoir. 26 Admitted at trial without objection, but not testified to, is defendant’s exhibit 2006, a “Broadcast Detail Report” which states it is “provided by Everbridge” and was described by defendant’s counsel at trial as the “certified business records of the Larimer Emergency Telephone Authority” documenting “emergency broadcasts to the Big Thompson Canyon during the 2013 storm.” The Broadcast Detail Report includes records of two emergency calls which appear to have been made in the window of time in which Ms. Orr testified she received her “reverse 911” phone call. One “Broadcast Summary” included in the Broadcast Detail Report indicates that an emergency call was sent to 183 “Members” on September 12, 2013, between 7:11:24 a.m. and 8:11:00 a.m. The Broadcast Detail Report indicates that another emergency call was made, also on September 12, 2013, to 71 “Members,” between 7:21:53 a.m. and 8:21:00 a.m. Both calls, according to maps included in the Broadcast Detail Report, were made to locations along Highway 34, the highway along which the Orr and Carman properties were located. 33 Ms. Orr’s testimony, Ms. Orr did not evacuate her home upon receiving the call, and afterwards, based on a conversation she had with an unidentified person who “came down as far as they could on Highway 34,” she understood that Highway 34 was out both towards Estes Park and towards Loveland, further down the Big Thompson River Canyon. Around the time she received the recorded call, Ms. Orr testified that the water in the Big Thompson River had risen two feet from its usual height, above the riprap on the bank, and had come onto the grassy yard fronting the river on her property. Water from the Big Thompson River continued to flow onto Ms. Orr’s property for the remainder of the day, while Ms. Orr testified that she remained at her home. According to Lake Estes elevation data, jointly submitted by the parties, for the period from September 11, through September 13, 2013, at 8:00 a.m. on September 12, 2013, the elevation of the water in Lake Estes was 7,472.16 feet, approximately 1.65 feet lower than its elevation at around 3:40 to 3:45 a.m. that same morning. Beginning between 8:00 a.m. and 8:30 a.m. on September 12, the elevation of Lake Estes rose until 1:30 p.m. on September 12, when the elevation reached 7,473.7 feet. The Operating Log at 9:30 a.m. on September 12, 2013, states: “Adams tunnel to 0 cfs per Carlos [Lora].” (alteration added). Mr. VanShaar testified that this closing of the Adams Tunnel gate was the first attempt to stop flows entering from the Western Slope of the Continental Divide. At 9:39 a.m. on September 12, 2013, Mr. Lora sent an email to Michael Collins, Jacklynn Gould, Charles Pedersen, Ralph Beall, Carlie Ronca, David Burke, Howard Bailey, Paula Baty, Adam Northrup, Kara Lamb, and James VanShaar, all of the Bureau of Reclamation, which Mr. Lora testified was unusual but done “to inform management of what was happening.” In the email, Mr. Lora stated: “1- Last night releases from Oly Dam were increased to perhaps as much as 2,000 cfs (estimated). The rating for the gage below does not go that high, so the flow could not be measured.” (alteration added). Mr. Lora testified at trial that estimation of the releases was necessary because the flow gauge below Olympus Dam had been lost between approximately 1:30 a.m. and 2:00 a.m. on September 12, and was not providing accurate information during September 12 and the morning of September 13. In the email, Mr. Lora further stated: 2- Inflow to Lake Estes exploded rapidly after midnight. 3- The Adams Tunnel was shutdown at midnight, while the generation for Marys ad [sic] Estes Powerplants was stopped. 4- Four gates were used to chase the flood.[27] 5- Notifications began just after midnight among ECAO personnel, and later expended to outside agencies (Howard [Bailey] and Kara [Lamb]). 27 At trial, Mr. Lora explained that when the Bureau of Reclamation was “chas[ing] the flood,” “[w]e were increasing releases until we were able to match the inflow.” (alterations added). 34 6- The reservoir level reached 7473.8 ft before we were able to turn it around. The upper operational limit is 7474.0 ft. 7- Currently the reservoir level is approximately 7472.50 ft and we are in the process of reducing releases. 8- We estimate the current reservoir release to be approximately 1,400 cfs, although we continue to adjust. 9- Big T [Thompson] Powerplant is now off. We are now in priority to capture Big Thompson River water. (alterations and footnote added). Mr. Lora testified at trial that at the time the email was sent, “the inflows to the reservoir dropped unexpectedly, and even though we were trying to level off the reservoir, it kept dropping and dropping. It’s a very small pool, so it’s very reactive.” Mr. Lora further testified that at the time the email was sent, the State of Colorado was allowing the Bureau of Reclamation “to capture as much water as we could use in the lower part of the system to generate power,” and “we could actually keep the water and put it Horsetooth Oregon [sic28] Carter Lake.” (alteration added). At approximately 10:00 a.m. on September 12, 2013, Mrs. Carman testified that she received a recorded emergency “reverse 911” phone call to her home landline telephone, and the call left Mrs. Carman with the impression “that the Olympus Dam was going to open one gate and that we were to expect some high water.”29 Mr. Carman testified that at approximately 10:00 a.m., water from the Big Thompson River began to flow onto the lawn of the Carmans’ properties, and Mr. Carman began relocating items from the basement of the Carmans’ house to the first floor, in anticipation of the water entering the basement. Additionally, according to Mrs. Carman’s testimony, Mr. Carman moved the Carmans’ horses up from the corrals in the floodplain and the Carmans “locked them in the yard between the house and the store” at the highest level of the property. Mr. VanShaar testified that, around 10:30 a.m. on September 12, 2013, the Pole Hill Powerplant, through which water flows when released from Lake Estes via the Olympus Tunnel, was experiencing overheating problems. Mr. VanShaar indicated that the crew at the Pole Hill Powerplant attempted to keep the plant operational for approximately the next hour. Mr. Lora further testified that the Pole Hill Powerplant during this time was “tripping,” or going offline, because of the sediment being carried by the floodwaters, and that when the powerplant went offline, water could no longer flow through it. Mr. Beall also testified that at the Pole Hill Powerplant, “[t]he water was so dirty 28The trial transcript records Mr. Lora as saying “Horsetooth Oregon Carter Lake.” Based on the context in which Mr. Lora was speaking, it is more likely he actually said “Horsetooth or in Carter Lake.” 29 The Broadcast Detail Report included in the record before the court does not appear to document a “reverse 911” phone call which was made to the area in which the Carmans lived within the approximate time frame stated by Mrs. Carman. 35 and carrying so much sediment that it was plugging up our filters, our strainers that we use to intake water for cooling water for our bearings as we generate.” (alteration added). According to the Post Incident Analysis Report, the Bureau of Reclamation decided at approximately 10:30 a.m. on September 12, 2013, “to allow reservoir to rise slightly (store water).” According to the testimony of Mr. VanShaar, the Bureau made the decision to allow the reservoir to rise because [w]e were buying time for our neighbors and our partners to respond to what had happened overnight, both the folks that might be trying to get in the canyon and get people out. The City of Loveland, which is about seven, eight hours downstream of the dam, we were buying time for them to respond as best they could. If we could use a little bit of that space and delay further increases, we decided to do that. (alteration added). According to the Post Incident Analysis Report, at 10:30 a.m. on September 12, Mr. VanShaar was “announced as representative to the Loveland EOC [Emergency Operations Center]” as well as “technical specialist,” and at this time, “[c]ontinuous staffing by an ECAO technical specialist at the Loveland EOC begins.” (alterations added). Mr. VanShaar described his work as the ECAO’s representative as “interact[ing] with the City of Loveland and their response to help them understand what we were doing on the river” for the duration of the storm. (alteration added). Mr. VanShaar testified that at that time, the Bureau anticipated further “releases that could threaten lives or property,” and that they “were buying time for the emergency response to move forward, some of which would have been people to evacuate,” out of concern regarding the water the Bureau had already released as well as potentially worsening conditions. According to the parties’ joint stipulations, the Bureau of Reclamation declared Response Level 3 for Olympus Dam at 11:30 a.m.30 on September 12, 2013, the highest response level declared during the course of the September 2013 storm. The parties further stipulated that the declaration of Response Level 3 by the Bureau of Reclamation did not reflect a belief of “any danger of impending failure of Olympus Dam.” At trial, Mr. VanShaar testified that “[w]hen we entered into Response Level 3, we knew we were dealing with flows that would impact property and had the potential to impact the safety of human life downstream.” (alteration added). Mr. Beall testified that the time between the declaration of an Internal Alert and the declaration of Response Level 3, “[e]ight or nine hours,” was the shortest such span of time that he could recall. (alteration added). The Operating Log, however, does not record the declaration of Response Level 3 until 1:00 p.m. on September 12, 2013 The Operating Log at 11:39 a.m. on September 12, 2013, states: “PH [Pole Hill Powerplant] #1 to local, taking unit off do [sic] to personnel safety reasons so crew can 30 Mr. Miller testified that he recalled attending a meeting at which the declaration of Response Level 3 was decided, which occurred during “the night of the -- of the 12th,” rather than the morning of September 12, 2013, as indicated in the parties’ joint stipulations and the Operating Log. 36 leave the area.” (alterations added). According to Mr. VanShaar, by 11:46 a.m. on September 12, no water was flowing through the Pole Hill Powerplant. Mr. VanShaar testified that with the Pole Hill Powerplant shut down, the water in the Olympus Tunnel was then rediverted through the Pole Hill Rediversion Structure in Little Hells Canyon, and from there into Pinewood Reservoir. The Operating Log at 12:00 p.m. on September 12, 2013, states: “Per Carlos [Lora] +6” [inches] each Radial gate at Estes dam in 5 min [minute] increments.” (alterations added). Mr. Miller testified at trial that “at noon on September 12th,” Olympus Dam was releasing “approximately 3400 cfs,” per the notes taken by Mr. Miller contemporaneous with the September 2013 flood event. The Post Incident Analysis Report states that “[a]t around 1:00 p.m. on the 12th, unusually high local runoff” caused increased flow which “raised the water surface elevation of Marys Lake above 8040.0 feet, pushing it into Internal Alert.” (alteration added). The Operating Log at 1:00 p.m. on September 12 states: “Per Carlos [Lora] Oly Tunnel -150 = 400 [cfs] total. Per Howard Bailey Estes is now at Response level #3, also Marys is now in an Internal Alert.” (alterations added). At trial, Mr. Miller testified that the water schedulers decided to lower the flow through the Olympus Tunnel because the Pole Hill Powerplant had been shut down, in order to prevent the full 550 cfs flow from entering Little Hells Canyon. Mr. Miller testified that, because Marys Lake, which was upstream of Lake Estes, had reached a water elevation of 8,040.29 feet, near the top of its operational pool, due to increased flows from the storm and triggering an Internal Alert, the water schedulers decided to allow water from Marys Lake to pass downstream through the Estes Powerplant and into Lake Estes. The Operating Log at 1:10 p.m. on September 12 additionally states: “Per Carlos [Lora] increase Oly Radial Gate #4 (3”) & gate #2 (3”).” (alterations added). The parties stipulated that as a result of taking the Pole Hill Powerplant offline, the Rediversion Structure in Little Hells Canyon was inundated with flows from Olympus Tunnel as well as natural inflows. Mr. VanShaar testified that the 1:00 p.m. on September 12 reduction in Olympus Tunnel flow occurred because “prior to that reduction, the 550 [cfs] would have been bypassed and landed in that natural channel [Little Hells Canyon], where it would have joined with natural runoff from the rain, flowed down to the rediversion site,” with the effect that “more water was being diverted into the rediversion than could be handled by the infrastructure.” (alterations added). Mr. VanShaar further testified that, as a result of the high flows, United States government property, including the “canal banks” of the Rediversion Structure, was damaged. Mr. Beall explained in his testimony that water had to be diverted away from the Pole Hill Powerplant as a result of the influx of sediment, rather than simply shutting the power generation off and allowing water to continue flowing through, “[b]ecause it has to run through our turbine, and the bearings, when you make electricity, generated a lot of heat. The bearings are water-cooled, and that cooling water has protection circuits of flow and pressure that will not allow the unit to run unless they’re satisfied.” (alteration added). To continue to run water through the turbines while the plant was shut down, Mr. Beall testified, would have caused “catastrophic bearing failure.” 37 Mr. Beall further testified that “clos[ing] the gates between Pole Hill afterbay and Little Hells Canyon” also was done “to prevent the very small levee of the Pole Hill afterbay from being overtopped” between Pole Hill Powerplant and Pinewood Reservoir, and thereby prevent the levee from sustaining damage. (alteration added). According to Mr. Beall’s testimony, the Bureau of Reclamation also sought to “lower the water in the 930 section [of the Charles Hansen Feeder Canal],” in order to prevent adding water to the Trifurcation system near the mouth of the Big Thompson River Canyon, downstream of plaintiffs’ property. (alteration added). Mr. Beall further explained that in the previous flood in 1976, a siphon located in the Trifurcation tore away after its “supports eroded and washed away,” and the Bureau’s “concern was to lower the water in the 930 section so that in the event the siphon tore away during this [September 2013] flood, we would not be adding water to the river through the 930 section.” (alteration added). Mr. Beall testified that “there was already flooding at the mouth of the canyon” near Loveland when the Bureau decided to reduce the water in the 930 Section of the Charles Hansen Feeder Canal, and the flooding was “from the main fork and the north fork of the Big Thompson River, primarily, plus all the rainfall.”31 Mr. Beall indicated that water from the 930 Section of the Charles Hansen Feeder Canal would contribute to the downstream flooding in Loveland, which is “why we [the Bureau] turned off that source” by stopping additional water from flowing into the 930 Section. (alteration added). According to Mr. Beall, the decision to stop flows into the 930 Section impacted “the operation of the Olympus Tunnel” because “[l]ong term, we have to have Olympus Tunnel closed to quit moving water through the 930 [Section] unless we’re pumping to Carter [Lake] with Unit 3 at Flatiron.” (alterations added). When asked to clarify that shutting off water flowing into the 930 Section did not necessitate closing the Olympus Tunnel, because “you [the Bureau] would pump that to Carter [Lake],” Mr. Beall answered: “Right. We have – we have done that many times, yes.” (alterations added). According to the testimony of Mr. Lora, around 3:00 p.m. on September 12, 2013, Mr. Lora returned to his home to rest and Mr. Miller assumed water scheduling duties. According to the testimony of Tim Miller, after Carlos Lora left, the only schedulers on duty at the Loveland office were Tim Miller and Ron Thomasson. The Operating Log at 3:00 p.m. on September 12 states: “Per Bailey releases out of Oly Dam are now @ 3600 cfs, still Response level 3.” (alteration added). According to Mr. Miller’s testimony at trial, supported by Mr. Miller’s notes taken contemporaneously with the Bureau’s response to the September 2013 flood, at 3:00 p.m. on September 12, flows through the Flatiron Powerplant were lowered such that power generation was reduced by twenty megawatts, while at the Estes Powerplant, flowing into Lake Estes, heightened flows increased power generation by five megawatts. The Operating Log reflects the decision to increase flows through the Estes Powerplant into Lake Estes, stating at 3:10 p.m. on September 12, “E [Estes] #3 on per Miller as Marys Lake is to [sic] full (5 mw’s).” (alterations added). At 3:15 p.m. on September 12, 2013, the Operating Log further states: “Oly Tunnel -100 cfs = 300 per Miller.” (alteration added). Mr. Miller’s testimony and his 31 Mr. Beall clarified that, with respect to flooding in Loveland, he did not “know whether flooding in Loveland came from other sources besides the Big Thompson River,” and stated: “I don’t know where all that water came from.” 38 contemporaneous notes, which were admitted as an exhibit at trial, corroborate that the Olympus Tunnel flow was decreased to 300 cfs, although Mr. Miller’s notes indicate that such decrease occurred at 3:00 p.m. rather than 3:15 p.m. Mr. Miler testified that this decrease of 100 cfs was ordered to “reduce the flow through Little Hells Canyon.” Mr. Miller further testified that, assuming all other inflows into and outflows from Lake Estes remained constant, the effect of reducing flows through the Olympus Tunnel would be to increase the elevation of water in Lake Estes.32 The Operating Log at 6:00 p.m. on September 12, 2013, states: “Oly Tunnel -100 cfs = 200 per Miller.” (alteration added). At trial, Mr. Miller explained that “we were still in bypass [of the Pole Hill Powerplant], over the Little Hells Canyon diversion dam, and it [Olympus Tunnel] was just adding more flow to that canyon that didn’t belong there.” (alterations added). Mr. Miller testified that the water flowing into Little Hells Canyon “was going over the top of that diversion structure,” and that the Bureau employees “weren’t able to capture it” in order to “bring it back to Pinewood Reservoir” and the terminal reservoirs. Mr. Miller further testified that “assuming all other inflows and outflows remained the same,” that “reducing outflows through the Olympus Tunnel” by 100 cfs “would have increased” the elevation of water in Lake Estes “by 100 cfs” as a result. Mr. Miller testified, supported by his contemporaneous notes from the September 2013 flood, that at approximately 7:00 p.m. on September 12, 2013, Olympus Dam Gates 1 and 5 were opened an additional three inches, leading to an increase in releases of 217 cfs. The Operating Log at 7:15 p.m., September 12, 2013, states: “Per Miller Increase Oly Radial Gates by 217 cfs total of ½’ [foot] increase.” (alteration added). According to an email, dated September 12, 2013 at 7:52 p.m. and verified by the testimony of Ms. O’Brien, at 7:15 p.m., releases from Olympus Dam were approximately 3,800 cfs, while “[i]nflow into Lake Estes is estimated to be 3,900 cfs.” (alteration added). The Operating Log states at 7:25 p.m. on September 12, 2013, that “Oly Radial Gate #1 & Gate #5 increased by 3” [inches] each – total opening 24” [inches].” (alterations added). Mr. Miller testified at trial that the “total opening [of] 24” [inches]” on the Operating Log reflected the “estimated” amount of the openings of Gates Numbers 1 and 5 by the Bureau personnel at that time. (alterations added). The Operating Log further states at 7:35 p.m. on September 12, “Per Miller @ 2000 CHFC from 450 cfs to 350 cfs.” Mr. Miller testified at trial that the entry at 7:35 p.m. on September 12 reflects an instruction he had given to reduce flow through the Charles Hansen Feeder Canal, the canal downstream of the Big Thompson River Canyon, by 100 cfs at 8:00 p.m. that same day. At trial, Paula O’Brien testified that she agreed with the statement, contained in a Bureau of Reclamation email from 7:52 p.m., that “[t]he dam is safe and performing well,” (alteration added), and Ms. O’Brien explained that “the dam was being operated as we needed it to be operated. We were able to pass the flows safely without experiencing any particular damage to the facility that could affect the structure or the operation of the facility.” The Operating Log further states at 7:55 p.m. on September 12, “[p]er Miller Increase Oly 32According to the testimony of Mr. VanShaar, no water order was issued in the afternoon of September 12, 2013. 39 Radial Gates by ½’ [foot] – increase 3” [inches] on Gate #2 & Gate #4.”33 (alterations added). Mr. Miller testified, supported by his contemporaneous notes from the September 2013 flood, that at approximately 8:00 p.m. on September 12, releases through Olympus Dam increased by 220 cfs over the amount being released an hour previously, for a total approximate flow, as the Bureau estimated at that time, of 4,000 cfs. In an email sent by Ms. Baty to East Colorado Area Office personnel, including Mr. Northrup, at 8:29 p.m. on September 12, 2013, Ms. Baty stated that “[d]am operators have conducted visual inspections” of the Marys Lake Dikes, Olympus Dam, and the East Portal Dam, “using the monthly OVIC forms[34] for guidance. There are no issues of concern at any of the facilities in terms of the stability of those structures.” (alteration and footnote added). Ms. Baty’s email further stated: We intend to stay below First Fill at Mary’s [sic] and barring any unforeseen equipment issues, are confident that we will be able to maintain control of the reservoir level. Another issue we are dealing with, that is influencing our flow operations, is the condition of the Little Hells [Canyon] Diversion Dam. This is a low hazard dam[35] but has significant affect [sic] on our operations of the Pole Hill powerplant and the way we run water through the cbt [Colorado-Big Thompson] system. If you recall it is associated with the afterbay of the Pole Hill powerplant. We have been taking some of the inflows into Lake Estes and running them through the Oly Tunnel to minimize river releases. 33 At trial, Mr. Miller did not fully clarify the meaning of the 7:55 p.m. entry. Mr. Miller appeared to indicate that the notation “increase 3” [inches] on Gate [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9391782. Public record. Not legal advice.