Joint Appendix — Central Green Co. v. United States
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| Supreme Court, US.
\\ FILED
JUN 0 5 7000
No. 99-859 } Cc] ERK
IN THE
Supreme Court of the United States
Central Green Co.,
Petitioner,
v.
United States of America,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
JOINT APPENDIX
Thomas C. Goldstein Seth P. Waxman
Thomas C. Goldstein, P.C. Solicitor General
4607 Asbury Place, NW Department of Justice
Washington, DC 20016 Washington, DC 20530
(202) 237-7543 (202) 514-2217
Counsel for Petitioner Counsel for Respondent
where
TABLE OF CONTENTS
Exhibit B: Agreement Regarding Operation
And Maintenance Of Madera Canal
Exhibit C: FTCA Claim Form To Madera
Exhibit D: FTCA Response Of Madera
Exhibit E: FTCA Claim Form To Bureau
Exhibit F: FTCA Response Of Bureau
Plaintiff's Request For Inspection And Production Of
Documents To United States .............
5/21/96
5/21/96
6/27/96
6/27/96
7/2/96
7/2/96
7/2/96
7/11/96
DOCKET ENTRIES
COMPLAINT before Senior Judge
Robert E. Coyle referred to Magistrate
Judge Sandra M. Snyder Summons
issued; fee status paid; Receipt # 171910;
jury demand; Notice regarding Consent
forms (dg) [Entry date 05/22/96]
ORDER setting scheduling conference
for 9:00 7/25/96 before Magistrate Judge
Sandra M. Snyder (cc: all counsel) (dg)
[Entry date 05/22/96}
RETURN OF SERVICE executed upon
defendant -Madera Irrigation on 6/14/96
(fg) [Entry date 07/01/96]
RETURN OF SERVICE executed upon
defendant USA on 6/14/96 (fg) [Entry
date 07/01/96]
FIRST AMENDED COMPLAINT [1-1]
by plaintiff; jury demand (Im) [Entry date
07/05/96)
PROOF OF SERVICE by plaintiff of [1-
1} (Im) [Entry date 07/05/96]
PROOF OF SERVICE by plaintiff of [1-
1] summons and complaint (Im) [Entry
date 07/05/96]
7/16/96
8/6/96
9/19/96
9/26/96
9/27/96
10/10/96
5/29/97
10
12
13
2
7/25/96 to 10:00 9/26/96 (cc: all
counsel) fg) [Entry date 07/16/96]
ANSWER by - Madera Irrigation; jury
demand (rm) [Entry date 07/18/96]
ANSWER by defendant USA to pitf's
first amended complaint (fg) [Entry date
08/07/96}
SCHEDULING CONFERENCE
STATEMENT by plaintiff (rm) [Entry
date 09/20/96]
MINUTES of 9/26/96 before Magistrate
Judge Sandra M. Snyder scheduling
conference held on 9/26/96 order to
follow (rm) [Entry date 09/27/96]
SCHEDULING ORDER Magistrate
Judge Sandra M. Snyder expert
disclosure ddl 8/15/97; supplemental
expert disclosure ddl 9/12/97 ; discovery
ddl 11/7/97 non-dispositive motion ddl
11/24/97 ;dispositive motion ddl
12/15/97; pretrial conf 2:00 2/3/98 #4;
Jury Trial 10:00 3/24/98 #1; (cc: all
counsel) (rm) [Entry date 09/30/96]
LETTER to court from counsel for
plaintiff Central Green Co notifying the
court that Timothy Jones is counsel (pp)
[Entry date 10/11/96]
LETTER to court from counsel for
plaintiff regarding discovery documents
(Im) [Entry date 06/03/97)
7/18/97
7/21/97
8/11/97
8/18/97
8/25/97
9/18/97
16
17
19
21
3
MOTION for judgment on the pleadings
for lack of subject matter jursdiction by
deft USA before Judge Coyle Hearing
Set For 8/18/97 1:30 ctrm 1; points and
authorities (hl) [Entry date 07/21/97]
NOTICE: from H Nazaroff motion for
judgment on the pleadings for lack of
subject matter jursdiction by deft before
Judge Coyle [16-1] HEARING SET FOR
1:30 8/25/97 (hl) [Entry date 08/15/97]
[Edit date 08/15/97]
RESPONSE/memorandum of points and
authorities by pitf Central Green Co in
Opposition to motion for judgment on the
pleadings for lack of subject matter
jursdiction by deft USA [16-1] (hl)
[Entry date 08/12/97]
REPLY by deft USA to response in
Opposition to motion for judgment on the
pleadings for lack of subject matter
jursdiction by deft USA [16-1] (hl)
[Entry date 08/19/97]
MINUTES of 8/25/97 before Senior
Judge Coyle motion for judgment on the
pleadings for lack of subject matter
jursdiction by deft USA [16-1]
SUBMITTED C/R P Smith (hl)[Entry
date 08/26/97]
ORDER by Senior Judge Robert E.
Coyle ORDERING motion for judgment
on the pleadings for lack of subject
matter jursdiction by deft USA before
9/24/97
9/25/97
10/10/97
10/10/97
10/10/97
10/30/97
11/10/97
22
23
24
4
Judge Coyle [16-1] GRANTED
dismissing party USA for lack of subject
matter jurisdiction (cc: all counsel) (jv)
[Entry date 09/24/97)
LODGED substitution of attorneys by
plaintiff Central Green Co (th) [Entry
date 09/25/97]
ORDER by Magistrate Judge Sandra M.
Snyder ORDERING Timothy Jones to be
substituted as attorney of record (cc: all
counsel) (lh) [Entry date 09/26/97}
LODGED proposed order granting
plaintiff's motion for entry of final
judgment by plaintiff Central Green Co
(th) [Entry date 10/14/97]
NOTICE OF MOTION AND MOTION
for entry of final judgment by plaintiff
Central Green Co Motion Hearing Set for
11/17/97 at 1:30 pm (th) [Entry date
10/14/97]
MEMORANDUM by plamtiff Central
Green Co in support of motion for entry
of final judgment (1h) [Entry date
10/14/97}
RESPONSE by defendant USA to
motion for entry of final judgment by
plaintiff Central Green Co [23-1] (cc)
[Entry date 10/31/97]
MEMORANDUM by plamtiff Central
Green Co in support of motion to certify
11/14/97
11/17/97
11/18/97
11/20/97
12/3/97
27
28
31
5
order granting motion to dismiss and
request for stay [23-1] (jv) [Entry date
11/13/97]
LODGED stipulation to have judgment
entered and staying remaining issues
pending appeal by plaintiff Central Green
Co (Is) [Entry date 11/17/97]
MINUTES of 11/17/97 before Senior
Judge Robert E. Coyle motion for entry
of final judgment by plaintiff Central
Green Co [23-1] GRANTED C/R C.
Pickens (Is) [Entry date 1 1/18/97]
ORDER by Senior Judge Robert E.
Coyle ORDERING party USA
DISMISSED;, Case STAYED until the
9th Circuit rules on the Dismissal Order
(cc: all counsel) (Is) [Entry date
11/19/97]
JUDGMENT; it is ordered that the
United States is DISMISSED fror this
case (cc: all counsel) (Is)
NOTICE OF APPEAL by plaintiff
Central Green Co from District Court
decision, ( fee status paid) (jv) [Entry
date 12/04/97]
RECEIPT of $105/ Appeal Fee for pitf
Central Green Co by Wikins, Jones
Drolshagen Receipt # 175683 (jv) [Entry
date 12/04/97]
6 7
12/4/97 32 MAILED case information/docket fee ‘TIMOTHY JONES, #119841
payment notice copy of Notice of Appeal
and appealed 1 1/20/97 judgment to 9th McCORMICK, BARSTOW, SHEPPARD,
Circuit Court of Appeals copy of appeal WAYTE & CARRUTH LLP
and certified copy of docket sheet to all Prat ats ater oa
parties (jv) Fresno, California 93729-8912
Telephone: (209) 433-1300
W. ALLEN BENNETT, #171963
General Counsel, “ entral Green Company
15737 koad 204
Madera CA 93638
Telephone: (209) 822-2800
Attorneys for: CENTRAL GREEN COMPANY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CENTRAL GREEN COMPANY, CASE NO. CV-F-965541 REC SMS
)
Californm Limited Parmership, )
) FIRST AMENDED COMPLANT FOR
Plaintiff, ) DAMAGES FOR INVERSE
) CONDEMNATION; NUISANCE;
vs. ) TRESSPASS;AND NEGLIGENCE
)
UNITED STATES OF AMERICA; ) DEMAND FOR JURY TRIAL
MADERA IRRIGATION DISTRICT, )
)
Defendants. )
)
Plaintiff CENTRAL GREEN COMPANY alleges as follows:
JURISIDICTION AND VENUE
1. CENTRAL is a Limited Partnership duly
authorized and existing by virtue of the laws of the State of
California and doing business in Madera County, California
(“Plaintiff’ or “CENTRAL”).
2. Defendant the UNITED STATES of AMERICA
is, and at all times mentioned herein was, a governmental
organization authorized and existing by virtue of the laws of
8
the United States of America. The Department of the Interior of
the United States of America operates the Bureau of
Reclamation which, among other things, owns certain canals in
Madera County used for delivery of irrigation water to farmers
(“UNITED STATES”)
3. Defendant the MADERA IRRIGATION
DISTRICT (“DISTRICT”) is, and at all times herein mentioned
was, a public entity organized and existing under the laws of
the State of California.
4. Venue is appropriate in this Court since all of
the real property at issue in this action is located m Madera
County, California and the torts alleged herein occurred in
Madera County, California. Jurisdiction in this Court is based
on 28 U.S.C. § 1346(b) as to the UNITED STATES and the
pendant jurisdiction of this Court as to the DISTRICT
KGR ATION
5. At the time of Defendants’ acts complained of
herein, Plaintiff was the owner of the real property described in
Exhibit “A” attached hereto and incorporated herein.
6. The real property described in Exhibit “A”
consists of approximately 1000 acres. During the time that
Plaintiff has owned this property, it has continually used it for
the production of pistachios.
7. Plaintiff is informed and believes and thereon
alleges that defendant UNITED STATES planned, designed,
constructed, and/or mamtains the Madera Canal which is used
to convey irrigation water to various lands in the San Joaquin
Valley and which runs through Plaintiff's property as shown in
Exhibit “A”.
8. Plaintiff is informed and believes and based
thereon alleges that DISTRICT is under contract to the
UNITED STATES whereby it has the right to use, and the
obligation to maintain, the Madera Canal. A true and correct
copy of the contract between the UNITED STATES and
DISTRICT is attached hereto as Exhibit “B”.
9
9. The Madera Canal was constructed or has been
maintained in such a fashion that substantial amounts of water
leak and have leaked from Defendants’ canal causing
substantial subsurface flooding of portions of Plaintiff's
property. This subsurface flooding created an extremely
shallow water table condition resulting in irreparable damage to
portions of Plaintiff's pistachio orchard, as well as increased
farming and harvesting costs.
10. _— Plaintiff has been told by Defendants that the
water seepage/leakage problem would be taken care of and
remedied. Based on these representations, Plamtiff has
foregone legal action until the present time. Furthermore,
Plaintiff is informed and believes and thereon alleges that no
remedial work or efforts t thwart the leakage from the Madera
Cana! have been undertaken by Defendants.
11. | Onor about June 10, 1995 Plaintiff served its
claim for damages in an amount in excess of $25,000 on
Defendant DISTRICT in accordance with the law of the State
of California and DISTRICT’S procedures. A true and correct
copy of the claim served is attached hereto as Exhibit “C” and
12. Onor about June 29, 1995 Defendant
DISTRICT rejected Plaintiff's claim. A true and correct copy
of DISTRICT’S Notice of Rejection is attached hereto as
Exhibit “D” and incorporated herein.
13. | Onor about July 27, 1995 Plaintiff served its
claim for damages in an amount approximating $125,000.00 on
the UNITED STATES through the Department of the Interior
in accordance with the laws of the United States and
Department of the Interior’s procedures. A true and correct
copy of the claim served is attached hereto as Exhibit “E”.
14. | On or about December 11, 1995 Defendant
UNITED STATES through the Bureau of the Interior rejected
Plaintiff s claim. A true and correct copy of the UNITED
STATES’ Notice of Rejection is attached hereto as Exhibit “F”
-10
15. Plaintiff has received no compensation for the
damage to its property.
FIRST CLAIM
(Inverse Condemnation - All Defendants)
16. Plaintiff incorporates by referenced each and
every allegation contamed in paragraphs | through 15 above as
though fully set forth herein.
17. Asadirect and necessary result of Defendants’
negligent design, maintenance, and operation of the canal,
Plaintiff's property was and is being flooded and severe
property damage has been the result.
18. | This damage was caused by Defendants’ failure
to design and/or maintain the canal so that it would not leak
onto or under the land of adjacent property owners such as
Plaintiff.
19. Asaresult of the flooding of its real property,
Plaintiff has been damaged in an amount in excess of
$125,009.00 including but not limited to damage for loss of
trees on the property, decreased and lost production, replanting
costs, increased farming and harvesting costs, and other
damages to the property associated with the leakage.
20. In addition, Plaintiff has incurred and will
continue to incur attorneys’ fees, appraisal fees, and
engineering fees because of this proceeding, in amounts that
cannot yet be ascertained but which are recoverable in this
action under the provisions of Section 1036 of the California
Code of Civil Procedure.
SECOND CLAIM
(Continuing Nuisance - All Defendants)
21. Plaintiff incorporates by reference each and
every allegation contamed in paragraphs | through 20 above as
though fully set forth herein.
22. + Atall times mentioned herein, Defendants have
operated and maintained its canal in a manner which has
allowed water to leak from the canal and flood Plamtiff’s
property.
23. The aforementioned operation and maintenance
of the canal by Defendants which allows water to leak onto
Plaintiff's property constitutes a continuing nuisance within the
meaning of California Civil Code Section 3479 in that it
interferes with Plaintiff's use and enjoyment of the property.
24. Defendants, and each of them, have refused to
abate the nuisance and will continue to refuse to do so unless
restrained by this Court, will continue to maintain the nuisance
and continue the acts complained of and each and every act has
been and will be without the consent, against the will, and in
violation of the rights of Plaintiff.
25. | Unless Defendants are restrained by order of this
Court, it will be necessary for Plaintiff to commence many
successive actions against Defendants to seek compensation for
damages sustained thus requiring a multiplicity of suits and
Plaintiff will be threatened with flooding of its property each
time the Madera Canal has water in it.
26. | Unless Defendants are enjoined from continuing
their course of conduct, Plaintiff will suffer irreparable injury
as alleged above.
27. Plaintiff has no plain, speedy, or adequate
remedy at law.
28. Asa proximate result of the nuisance created by
Defendants’, Plaintiff has been, and will be, damaged in a sum
in excess of $125,000.00 resulting from the loss of trees,
reduced and lost production, replanting costs, lost business,
increased farming and harvesting costs, diminution in value of
Plaintiff's property and other repairs to put Plaintiff's property
in the condition it was in prior to the damage caused by
Defendants.
THIRD CLAIM
(Continuing Tresspass - All Defendants)
12
29. Plaintiff incorporates by reference each and
every allegation contained in paragraphs | through 28 above as
though fully set for the herein.
30.- Defendants have at various time and continuing
to the present, without Plaintiff's consent, caused water to be
released from the Madera Canal and onto Plaintiff's land
through their maintenance and operation of said canal. Said
actions constitute a continuing trespass.
31. | Asaproximate result of the Madera Canal
releasing water onto Plaintiff's property, Plaintiff's pistachio
orchard was damaged to such an extent that Plainuff suffered
decreased production, the destruction of parts of the pistachio
orchard thereby diminishing its value, replanting costs,
increased farming and harvesting costs, and other repairs
entitling Plaintiff to injunctive relief as alleged above and
damages in a sum in excess of $125,000.00.
FOURTH CLAIM
(Dangerous Condition of Real Property - All Defendants)
32. Plaintiff incorporates by reference each and
every allegation contained in paragraphs | through 31 above as
though fully set forth herein.
33. Defendants, acting through their agents and
employees, negligently and carelessly operated and maintained
the Madera Canal so as to allow water to escape from the canal,
causing subsurface flooding of Plaintiff's property. Such
negligence caused a dangerous condition that created a
substantial risk of the type of damage suffered by Plaintiff.
34. Asa proximate result of the negligent conduct of
Defendants and the dangerous conditions created thereby, water
seeped onto Plaintiff's property causing subsurface and surface
flooding, irreparable damage to Plaintiff's trees, diminution in
value of Plaintiffs property, decreased production of Plaintiff's
trees, replanting costs, increased farming and harvesting costs
and other expenditures that Plaintiff has expended in an attempt
to restore Plaintiff's property to the condition it was in prior to
13
the flooding. As a result of such injuries to Plaintiff's property,
Plaintiff has and will suffer damages in a sum in excess of
$125,000.00.
WHEREFORE, Plaintff prays for judgment as follows:
On the First Clai
1. For damages in excess of $125,000.00 with
interest thereon at the legal rate from the date of those
damages;
2. For reasonable attorneys, appraisal, and
a fees according to proof pursuant to C.C.P. Section
On the Second Claim
3. For general and specific damages in an amount
in excess of $125,000.00 according to proof at trial and
including but not limited to, the reasonable costs of replacing
the trees destroyed, the loss of use of the affected parts of the
orchard, production losses, increased farming and harvesting
costs, diminution in value of Plaintiff's property, and other
consequential damages arising from Plaintiff's attempts to
restore the property to its prior condition.
4. An injunction ordering Defendants to repair the
Madera Canal and prevent the release of water onto Plaintiff's
property.
On the Third Clai
5. For general and specific damages in an amount
in excess of $125,000.00 according to proof at trial and
including but not limited to, the reasonable costs of replacing
the trees destroyed, the loss of use of the affected parts of the
orchard, production losses, increased farming and harvesting
costs, diminution in value of Plaintiff's property, and other
consequential damages arising from Plaintiff's attempts to
restore the property to its prior condition.
14
6. An injunction ordering Defendants to repair the
Madera Canal and prevent the release of water onto Plaintiffs
property.
On the Fourth Claim
ws For general and specific damages in an amount
in excess of $125,000.00 according to proof at trial and
including but not limited to, the reasonable costs of replacing
the trees destroyed, the loss of use of the affected parts of the
orchard, production losses, increased farming and harvesting
costs, diminution in value of Plaintiff's property, and other
consequential damages arising from Plaintiff's attempts to
restore the property to its prior condition.
On All Claims
8. For interest on all damages at the legal rate
according to proof;
9. For reasonable attorneys’ fees according to
proof;
10. _—‘*For all costs of suit reasonably incurred herein;
and
11. For such other and further relief as the court
may deem proper.
Dated: July 1, 1996
McCORMICK, BARSTOW,
SHEPPARD, WAYTE & CARRUTH LLP
By: /s/
TIMOTHY JONES
Attorneys for CENTRAL GREEN
COMPANY
DEMAND FOR JURY
CENTRAL GREEN COMPANY hereby demands a
trial by jury on all issues triable thereby.
15
DATED: July 1, 1996 McCORMICK, BARSTOW,
SHEPPARD, WAYTE & CARRUTH
LLP
By: /s/
TIMOTHY JONES
16
EXHIBIT A
17
The real property which is the subject of this action is
located in Madera County, California and more particularly
described as: “that portion of parcel #5 described as
Government Lot 8 and the S. 4% of Government Lots 9 and 10
in Sec. 6 T11S and R. 21E together with the S. % of the S. % of
Sec. 1 T11S. R. 20E Recorded as Parcel #1 in Book 1206 Page
617 Madera County Records.”
EXHIBIT “A”
18
EXHIBIT B
19
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Central Valley Project, California
AND ASSOCIATED PROJECT WORKS
Table o f Conte ats
Pream ble 1
Explanatory R ecitals 1-2
l Definitwns
2 Term of Agreement 3-4
3 District to Assume Responsibility for Care,
Operation, and Maintenance of Madera Canal
and Associated Pwject Works 4-5
4 Termination of Agreement No. 3-FC-20-00240 6
5 United States to be Held H armless 6
6 Distrias to Relmquish Respoasibdity for
Operation and Mainenance of the
Madera Canal and Associated Project Works 7
7 Subm ittal of Prop osed B udgets 7-9
x Invoices and Paym ents (Allowable Costs) 9-12
9 Book s, Recor ds, and R eports 12
10 Title to Remain with the United States 13
1 Right of First Refusal by Federal Employees 13
12 Autho rization of Land U ses on R cal Property
of the United States 13-14
13 Rules, Regulatons, and Determinations 15
14 Notices 15
1s Assignment Limited—Successors and Assigns
Obligated 15-16
16 Equa! O pportun ity 16-18
17 Title VI, Civil Rights Act of 1964 18-19
18 Certificatwn of Nonsegregated Facilities 20-21
19 Contract W ork Hours and Safety S tandards A ct--
Overtime Compensation 21-23
20 Officials n ot to Ben efit 23
21 Contingent on Appropration or Allotment of
Funds 23
22 Clean Air and Water 23-25
23 Deleted 26
24 Utilization of Small Business Concerns and
Smal! Business Disadvantaged Concerns 26-27
25 Examination of Recoms 27-30
26 Limitatio a of Co sts 30-31
27 Inspectwn 31-32
28 Reclamation Reform Act 32
Signature Page 33
20
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Central Valley Project, California
THIS COOPERATIVE AGREEMENT made this 20th day
of September 1985, pursuant to the Act of June 17, 1902 (32
Stat. 388), Section 5 of the Act of August 13, 1914 (38 Stat.
687), and acts amendatory thereof or supplementary thereto, all
collectively hereinafter referred to as the Federal reclamation
laws, among the UNITED STATES OF AMERICA, herein
after referred to as the United States, the MADERA
IRRIGATION DISTRICT, and the CHOWCHILLA WATER
DISTRICT, hereinafter referred to as the Districts, public
agencies of the State of California, duly organized, existing,
and acting pursuant to the laws thereof, with their principal
places of business in Madera and Chowchilla, California,
respectively.
WITNESSETH THAT:
LANATORY ITALS
WHEREAS, the United States has constructed the
Friant Division, Central Valley Project, including Friant Dam
and Millerton Lake, Madera Canal, the Friant-Kern Canal, and
operating headquarters for storage, diversion, carriage and
distribution of the waters of the San Joaquin River for
agricultural, municipal, industrial, domestic, and other
purposes; and
21
WHEREAS, it is deemed to be in the best interest of the
United States for the Districts to assume the care, operation,
and maintenance of the Madera Canal; and
WHEREAS, the Districts, are willing to assume the
care, operation, and maintenance of these works pursuant to the
NOW THEREFORE, mm consideration of the covenants
herein contained, it is hereby mutually agreed as follows:
DEFINITIONS
1. When used herein, unless otherwise distinctly
expressed, or manifestly incompatible with the intent hereof,
the term:
(a) “Secretary” or “Regional Grants and
Cooperative Agreements Officer” hereinafter reterred to as
RGCAO shall mean the Secretary of the |pternor or his duly
authorized representative; >
(b) “Project works” shall mean the Madera Canal,
in-line control facilities, turnouts, measuring devices, Madera
Canal Equalizing Reservoir, associated water level control
devices and water level recording instruments, and other
appurtenant structures as described in the Performance Work
. Statement (PWS) including related O&M documents, which is
incorporated herein by reference;
(c) “Year” shall mean the period from and including
the first day of October of each calendar year through the last
day of September of the following calendar year;
(d) “Initial year” shall mean that year, or any part
thereof, in which the Dstricts initially assume the care,
operation, and maintenance of the Project works,
(e) “Quarter” shall mean each 3-month period
——s with the first day of October, January, April, or July;
(f) “O&M” shall mean the care, operation, and
maintenance of Project works.
22
TERM OF AGREEMENT
2. This agreement shall become effective on the date of
execution and shall remain in effect until February 28, 1992,
unless terminated as follows:
(a) Termination for cause.--The RGCAO may
terminate this Agreement in whole, or in part, at any time
before the date of completion, whenever it is determined that
the Districts have failed to comply with the conditions specified
herein. The RGCAO shall promptly notify the Districts in
writing of the determination and the reasons for the
termination, together with the effective date, which in no event
will be less than 90 days from the date of notice. Payments
made to the Districts or recoveries by the RGCAO should this
Agreement be terminated for cause shall be in accord with the
legal rights and liabilities of the parties.
(b) Termination for convenience. --The RGCAO or
both Districts acting together may terminate this agreement in
whole, or in part, when all parties agree that the continuation of
the agreement would not produce beneficial results
commensurate with the further expenditure of funds. The
parties shall agree upon the termination conditions, including
the effective date and, in the case of partial terminations, the
portion to be terminated. The Districts shall not mcur new
obligations for the termmated portion after the effective date,
and shall cancel as many outstanding obligations as possible.
The RGCAO shall allow full credit to the Districts for the
Federal share of the noncancellable obligations, properly
incurred by the Districts prior to termination.
(c) Termination by one District.--If, at any time, one
District desires to terminate their participation in this
Agreement, said District shall provide 90 days written notice to
both the RGCAO and the other District of such intent. Upon
receipt of such notice, the RGCAO will determine if it is in the
best interest of the United States for the remaining District to
assume all of the obligations under this Agreement. If the
RGCAO determines such assumption of obligations is in the
23
best interest of the United States, and said District wishes to
assume said obligations, said District hereby agrees to said
assumption. If the RGCAO determines such assumption is not
in the best interest of the United States, or the remaining
District opts not to assume the obligations of this Agreement,
this Agreement will be terminated as provided in (b) above.
TRICT T ITY F
OPERATION, AND MAINTENANCE OF MADERA
CANAL AND ASSOCIATED PROJECT WORKS
3. (a) Prior to the O&M of Project works by the
Districts, the parties will conduct a joint inspection of the
Project works. Subsequent to the inspection, the RGCAO will
furnish the Districts a written notice, specifying the schedule on
which O&M activities will be performed by the Districts,
describing any deficiencies observed by either party during the
joint inspection, and describing the actions to be taken to
correct such deficiencies. The Districts will accept the
responsibility for O&M of the Project works on October 1,
1985, and thereafter O&M said works in accordance with this
Agreement and the PWS and attached OMB circulars A-102, as
amended (Uniform Administrative Requirements for
grants-in-aid to State and local Governments), A-128
(Implementing the Single Audit Act) and A-87, as amended
(Cost Principles for State and local Governments).
(b) The Districts shall make no substantial change in
the Project works without first obtaining the written consent of
the RGCAO. The RGCAO’s determination as to whether any
change in any such works is or is not substantial shall be
conclusive and binding upon the parties hereto. The Districis
shall make promptly any and all repair to the Project works
which, in the opinion of the RCCAO, are deemed necessary for
the proper O&M of the same. In the event that the Districts
neglect, fail, or are unable to make such repairs within a
reasonable period of time, the United States may, upon giving
24
30 days’ written notice to the Districts, cause the repairs to be
made.
(c) The Districts shall O&M the Project works in the
manner necessary to keep them in good condition and to satisfy
all valid obligations of the United States pertaining to the
diversion, carriage, and distribution of water m and from said
works.
(d) The Districts shall O&M the Project works in
accordance with the PWS and such documents shall be
maintained in current status at a location designated by the
Districts. .
(e) All contracts or subagreements for construction
or repair of Project works shall include a provision for
compliance with the Copeland “Anti-Kickback” Act (18 USC
874) as implemented in Department of Labor Regulations
(29CFR, Part 3).
INATION OF AG O. 3-FC-
4. Madera Irrigation District hereby waives the 90-day
termination notice for Agreement No. 3-FC-20-00240, entitled
“Cooperative Agreement Between the United States of
Amezica and the Madera Irrigation District Providing for
Operation of Madera Canal and Certain Additional Project
Works.” Said agreement will be terminated on September 30,
1985.
UNITED STATES TO BE HELD HARMLESS
5. The Districts hereby agree to indemnify and hold
harmless the United States, its agents and employees, from any
loss or damage and from any liability on account of personal
injury, death, or property damage of any nature whatsoever and
by whomsoever made arising out of the Districts’ failure to
properly perform their activities under this agreement. The
Districts do not assume any liability to or agree to hold
harmless the United States or any other person or persons for
25
damages or injuries caused by (1) faulty design or construction
of the Project works, (2) faulty or insufficient maintenance or
inspections prior to the transfer of said works to the District or
(3) performance by the Districts of specific operations or
procedures directed or approved by the RGCAO provided said
operations or procedures are performed by the Districts in a
customary or reasonable fashion.
DISTRICTS TO RELINQUISH RESPONSIBILITY FOR
OPERATION AND MAINTENANCE OF THE MADERA
CANAL AND ASSOCIATED PROJECT WORKS
6. The RGCAO shall at all times have access to the
Project works and may inspect and investigate the same for the
purpose of ascertaining if they are being kept in safe and proper
operating condition. If at any time, the RGCAO determines that
the Districts have not operated and maintained said works in
accordance with the provisions of this Agreement, the RGCAO
may, upon giving 90 days’ written notice to the District
suspend the Agreement and reassume the O&M of all or part of
the Project works including all equipment owned by the United
States which is then being used by the Districts to O&M the
Project works, and equipment purchased by the Districts with
funds obtained pursuart to this Agreement: Provided, That if in
the opinion of the RGCAO, an emergency or other condition
exists which would cause undue harm or damage to persons or
property if not remedied mmediately, such 90-day notice need
not be given, and the Districts hereby agree to surrender O&M
of the Project works, or any part thereof to the RGCAO,
immediately upon notification of such emergency. Any taking
back of responsibility for the O&M of said Project works by
the United States shall not relieve the Districts of any of their
obligations under this Agreement other than the obligation to
O&M said works during the period the United States is doing
so. The RGCAO may return the O&M responsibility of the
Project works back to the District upon 90 days’ written notice
to the Districts.
26
SUBMITTAL OF PROPOSED BUDGETS
7. (a) Madera Irrigation District, no later than June |
each year, shall submit on behalf of both Districts to the
RGCAO, in such detail as he may require, a proposed program
and budget, for the O&M of the Project works for the
subsequent year and a preliminary budget for the two
succeeding years. The budgets shall include all estimated O&M
costs (normal maintenance, replacement, additions and
extraordinary maintenance), administrative overhead, costs of
liability insurance, participation in a self insurance or pooling
agreement, including estimated retention of claims and legal
expense, and other costs similar to those that would normally
be incurred by the United States and which will be incurred by
the Districts under this Agreement. Subject to the terms of this
Agreement and provisions of Federal Acquisition Regulations
(FAR), Subpart 31.6, all indirect and overhead costs charged
against this agreement shall be apportioned in the same manner
as the Districts apportion similar costs annually incurred in the
Districts’ operations, and as limited by Article 8.(a). The
Madera Irrigation District shall notify the RGCAO as provided
in Article 26 with respect to all estimated costs in excess of the
estimated budget.
(b) The RGCAO shall, prior to July 1 each year,
give written notice of approval of the budget for the succeeding
year. If such written notice is not given by that date, the
Agreement will terminate October | of that year.
(c) Notwithstanding the provisions of Part (a) of this
article, the proposed program for O&M of the Project works
may, with the written approval of the RGCAO, be revised
during any year to meet unforseen contingencies. Provided,
That in the event of an emergency, Madera Irrigation District
may request and receive oral consent of the RGCAO for
expenditure of funds to alleviate the emergency, which oral
consent shall be confirmed in writing by the RGCAO within
five working days. If the expenditure of funds for emergency
purposes cause the total budget to be exceeded, Madera
27
erage Uewict shall subenit on behalf of both Districts 0
revi budget within 30 days of the request for emergency
ePemanture authority for approval in accordance with Article
INVOICES AND PAYMENTS (ALLOWABLE
COSTS)
8. (a) For the purposes of this Article, the term “costs”
shall include those recorded costs which result, at the time of
the request for reimbursement, for necessary and reasonable
direct and indirect costs incurred, but not necessarily paid, for
the operation and maintenance of the Project under terms of
depreciation, items or services purchased directly for operating
and maintaining the Project works, and other related costs.
Indirect costs charged to the Agreement shall be those normal
and necessary administrative and general costs of operations
that are equitably allocated to performing obligations under this
Agreement. The allowability of all costs under this Agreement,
including the basis for allocating indirect costs, shall be subject
ra ye oe ssaneuslieieme
veri
Article 9, hereunder. 7
| (b) For O&M of the Project works, the United States
will pay to the Madera Irrigation District on behalf of both
Districts, the allowable costs either through advance payments
or by reimbursement of allowable costs incurred.
; (1) Cash advances will be made in accordance
with the requirements set forth in current Treasury and
Departmental regulations and/or subsequent changes as they
may occur. If the advance payments method is used, the
amount of such payments will be the estimated costs as
specified in the approved budget, less any balance of funds
available from prior advances. Such payments shall not be
made more frequently than monthly in amounts approved by
28
AO. The Districts shall submit to the RGCAO a
proamesare tan toms during the month by the 25th of the
following month. The + enema? oe — =
vide both monthly and fiscal year-
wit (2) If the reimbursement method is used, Madera
Irrigation District shall submit, on behalf of both Districts in
such form and reasonable detail as the RGCAO may require,
monthly invoices supported by a statement of costs for
allowable costs incurred during the previous month. In
recognition of the Districts’ need for sufficient funds to meet
cash flow requirements of the Operation and Maintenance
activity, payment will be promptly processed after receipt of
each invoice. The Districts will normally receive payment
within 15 days after receipt of the invoices by the RGCAO.
(c) By October 31 of each year, Madera Irngation
District shall submit on behalf of both Districts a voucher for
all allowable costs for the year which ended the preceding
September 30 which were not previously paid. This final
voucher for each year will be accompanied by a statement
detailing the total incurred costs for the entire year «hich ended
the preceding September 30. This statement will be in such
format and provide such detail as the RGCAO requires.
(d) Any refunds, rebates, credits, or other amounts
(including any interest thereon) accruing to or received by
either District for activities performed under this Agreement
shall be paid or credited by said District to the United States to
the extent that they are properly allocable to costs for which the
Districts have been reimbursed by the United States under this
Agreement. Reasonable expenses incurred by the Districts for
the purpose of securing such refunds, rebates, credits, or other
amounts shall be allowable costs hereunder when approved by
sheer paneer. > som under this Agreement, the
Districts shall execute and deliver: .
(1) An assignment to the United States, in form
and substance satisfactory to the RGCAO, of future refunds,
rebates, credits, or other amounts (including any interest
29
thereon) properly allocable to costs for which the Districts have
been reimbursed by the Government under this Agreement; and
(2) A release discharging the United States, its
officers, agents, and employees from all liabilities, obligations,
and claims arising out of or under operation and maintenance
performed pursuant to this Agreement subject only to the
following exceptions:
(a) Specified claims in stated amounts or
in estimated amounts where the amounts cannot, at the time, be
determined exactly by the Districts; and
(b) Claims, together with reasonable
expenses incidental thereto, based upon liabilities of the
Districts to third parties arising out of the performance of this
Agreement. Provided, however, That such chims have not been
received by the Districts by the date of the execution of the
release; and provided further, that the Districts give notice of
such claims in writing to the RGCAO not more than 6 years
after the date of the release or the date of any notice to the
Districts that the United States is prepared to make final
payment, whichever is earlier.
(e) All funds advanced by the United States
pursuant to Section (b)(1) of this article shall immediately be
deposited by the Madera Irrigation District in a special account
in a bank that is a member of the Federal Reserve System, or, if
approved by RGCAO, in any fiduciary account in a manner
provided by the laws of the State of California, and such
account shall be maintained until all funds so advanced shall
have been expended or returned to the United States. Interest
credited on funds advanced shall be considered as advances by
the United States.
BOOKS, RECORDS, AND REPORTS
9. The Districts shall establish and maintain accounts
and other books and records pertaining to its financial
transactions, O&M of the Project works, and to other matters
relating to this Agreement as the RGCAO may require. Reports
30
shall be furnished to the RGCAO in such form as he may
require within thirty (30) days after the end of the year. Subject
to applicable Federal laws and regulations, each party shall
have the right during office hours to examine and make copies
of each other’s books and official records relating to matters
covered by this Agreement.
TITLE TO REMAIN WITH THE UNITED STATES
10. Title to all Project works shall remain with the
United States until otherwise provided by the Congress.
RIGHT OF FIRST REFUSAL BY FEDERAL EMPLOYEES
11. Within the first 6 months from the effective date of
this Agreement, the Districts shall give Federal employees
adversely affected or separated from employment by the United
States, as a result of this Agreement, the right of first refusal for
employment by the Districts in positions for which they are
qualified, in conformance with the respective Districts’
personnel policies in effect at that time.
AUTHORIZATION OF LAND USES ON REAL PROPERTY
OF THE UNITED STATES
12. (a) For the purposes of the Agreement, the
following terms are defined as follows:
(1) An “outgrant” is a term used to collectively
identify all instruments such as easements, licenses, permits,
leases, memorandum of understanding, etc., issued to third
parties by the United States authorizing the use of lands under
its jurisdiction.
(2) “Right of use” includes easements, leases,
licenses and permits issued to allow the occupying, using or
traversing of lands under the jurisdiction of the United States
and issued under authonty granted for that purpose
(synonymous with outgrant).
31
(3) “Right of use fee” means the fair market
value of the rights, privileges and interests granted by the
United States for the use of the land as determined by a
qualified appraiser using approved appraisal methods (43 CFR
429).
(b) In granting a third-party right of use of the canal
rights of way, the United States shall exercise care to assure
that:
(1) The request is compatible with O&M on the
canal rights of way;
(2) The encroachment is held to the minimum
area practical;
(3) There is no interference with water supply
operations on the right of way; and
(4) The outgrants issued conveys no more
interest in or privilege to use the land than is required.
(c) Third parties to outgrants shall be charged a
right-of-use fee. All right of use fees collected for outgrants
shall be deposited to the Reclamation Fund.
(d) When the Districts receive a request
(application) from a third party for an outgrant it shall be
handled in accordance with Section 5.7 of the PWS
(e)}-When the Districts find it necessary to construct
facilities on lands under the jurisdiction of the United States for
O&M of the Project works, the Districts shall not construct
such facilities unless and until:
(1) The Districts notify the RGCAO of its plans,
setting forth in detail the location, manner and extent of the
proposed use; and
(2) The RGCAO, upon finding the proposed use
to be reasonable and consistent with this Agreement and in
accordance with good engineering practices, shaii issue,
without cost to the Districts, an appropriately written outgrant
for such use.
RULES LATIONS, AND DETERMINATIONS
32
13. (a) The RGCAO shall have the right to make rules
and regulations governing the O&M of Project Works
consistent with the laws of the United States and to add to or to
modify them as may be deemed proper. The Districts hereby
agree to observe all such rules and regulations unless they are
inconsistent with the express terms of this Agreement.
(b) Where the terms of this Agreement provide for
action to be based upon the opinion or determination of any
party to this Agreement, whether or not stated to be conclusive,
said terms shall not be construed as permitting such action to be
predicated upon arbitrary, capricious, or unreasonable opinions
or determinations.
NOTICES
14. Any notice, demand, or request authorized or
required by this Agreement shall be deemed to have been
given, on behalf of the Districts, when mailed, postage prepaid,
or delivered to the Regional Director, Bureau of Reclamation,
2800 Cottage Way, Sacramento, California 95825, and on
behalf of the United States, when mailed, postage prepaid, or
delivered to the Madera Irrigation District, 12152 Road 28-1/4,
Madera, California 93637. The designation of the addressee or
the address may be changed by notice given in the same
manner as provided in this article for other notices.
ASS!G LIMITE ORS AND ASSIGNS
OBLIGATED
15. The provisions of this Agreement shall apply to and
bind the successors and assigns of the parties hereto, but no
assignment or transfer of this Agreement or any part or interest
therein shall be valid until approved by the RGCAO, and such
approval shall not be unreasonably withheld.
EQUAL OPPORTUNITY
33
‘16. The following clause is applicable for any subcontract
the Districts may enter into which is in excess of $10,000.
During the performance of this Agreement, the Districts will
include the following requirement in such subcontracts:
(a) The subcontractor will not discriminate against
any employee or applicant for employment because of race,
color, religion, sex, or national origin. The subcontractor will
take affirmative action to ensure that applicants are employed,
and that employees are treated during ~mployment, without
regard to their race, color, religion, sex, or national origin. Such
action shall include, but not be limited to, the following:
Employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training,
including apprenticeship. The subcontractor agrees to post in
conspicuous places, available to employees and applicants for
employment, notices to be provided by the RGCAO setting
forth the provisions of this nondiscrimination clause.
(b) The subcontractor will, in all solicitations or
advertisements for employees placed by or on behalf of the
subcontractor, state that all qualified applicants will receive
consideration for employment without discrimination because
of race, color, religion, sex, or national origin.
(c) The subcontractor will send to each
representative of workers, with which it has a collective
bargaining agreement or other contract or understanding, a
notice, to be provided by the RGCAO, advising the said
workers’ representative of the subcontractor’s commitments
under Section 202 of Executive Order 11246 of September 24,
1965, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
(d) The subcontractor will comply with all
provisions of Executive Order No. 11246 of September 24,
1965, as amended, and of the rules, regulations, and relevant
orders of the Secretary of Labor.
(e) The subcontractor will furnish all information
and reports required by said amended Executive Order and by
34
the rules, regulations, and orders of the Secretary of Labor, or
pursuant thereto, and will permit access to its books, records,
and accounts by the RGCAO and the Secretary of Labor for
purposes of investigation to ascertain compliance with such
rules, regulations, and orders.
(f) In the event of the subcontractor’s
noncompliance with the nondiscrimination clauses of this
subcontract or with any of the said rules, regulations, or orders,
this subcontract may be canceled, terminated, or suspended, in
whole or in part, and the subcontractor may be declared .
ineligible for further Government contracts in accordance with
procedures authorized in said amended Executive Order, and
such other sanctions may be imposed and remedies nvoked as
provided in said Executive Order, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by
law.
(g) The Districts will include the provisions of
paragraphs (a) through (f) in every subagreement, subcontract
or purchase order unless exempted by the rules, regulations, or
orders of the Secretary of Labor issued pursuant to Section 204
of said amended Executive Order, so that such provisions will
be binding upon each subcontractor or vendor. The Districts
will take such action with respect to any subagreement,
subcontract or purchase order as may be directed by the
Secretary of Labor as a means of enforcing such provisions,
including sanctions for noncompliance: Provided, however,
That in the event the Districts become involved in or is
threatened with litigation, with a subcontractor or vendor as a
result of such direction, the Districts may request the United
States to enter into such litigation to protect the interests of the
United States. .
Note: Equal Employment Opportunity provisions are directed
by Executive Order No. 11246 of September 24, 1965, (3 CFR
page 167, 1965 Supplement), as amended by Executive Order
No. 11375 or October 13, 1967, (3 CFR page 320, 1967
Compilation) and Executive Order No. 12086 of October 5,
1978.
35
TITLE VI. CIVIL RIGHTS ACT OF 1964
17. (a) The Districts agree that they will comply with
Title VI of the Civil Rights Act of July 2, 1964 (78 Stat. 241)
and all requirements imposed by or pursuant to the Department
of the Interior Regulation 843 CFR 17) issued pursuant to that
title, to the end that, in accordance with Title VI of that Act and
the Regulation, no person in the United States shall, on the
grounds of race, color, or national origin be excluded from
participation in, be demed the benefits of, or be otherwise
subjected to discrimination under any program or activity for
which the Districts receive financial assistance from the United
States and hereby gives assurance that it will immediately take
any measures to effectuate this Agreement.
(b) If any real property or structure thereon is
provided or improved with the aid of Federal financial
assistance extended to the Districts by the United States, this
assurance obligates the Districts, or in the case of any transfer
of such property, any transferee for the period during which the
real property or structure is used for a purpose involving the
provision of similar services or benefits. If any personal
property is so provided, this assurance obligates the Districts
for the period during which they retain ownership or possession
of the property. In all other cases, this assurance obligates the
Districts for the period during which the Federal financial
assistance is extended to them by the United States.
(c) This assurance is given in consideration of and
for the purpose of obtaining any and all Federal grants, loans,
contracts, property, discounts, or other Federal financial
assistance extended after the date hereof to the Districts by the
United States, including installment payments after such date
on account of arrangements for Federal financial assistance
which were approved before such date. The Districts recognize
and agree that such Federal financial assistance will be
extended in reliance on the representations and agreements
made in this assurance, and that the United States shall reserve
the right to seek judicial enforcement of this assurance. This
36
assurance is binding on the Districts, their successors,
transferees, and assignees.
R A NSE A
18. The Districts hereby certify that they do not maintain
or provide for their employees any segregated facilities at any
of their establishments, and that they do not permit their
employees to perform them services at any location, under their
control, where segregated facilities are maintained. They certify
further that they will not maintain or provide for their
employees any segregated facilities at any of their
establishments, and that they will not permit them employees to
perform their services at any location, under ther control,
where segregated facilities are maintained. The Districts agree
that a breach of this certification is a violation of the Equal
Opportunity clause in this Agreement. As used in this
certification, the term “segregated facilities” means any waiting
rooms, work areas. restrooms, and washrooms, restaurants and
other eating areas, time clocks, locker rooms and other, storage
or dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities
provided for employees which are segregated by explicit
directive or are in fact segregated on the basis of race, creed,
color, or national origin, because of habit, local custom or
otherwise. The Districts further agree that (except where they
have obtained identical certifications from proposed
subcontractors for specific time periods) they will obtain
identical certifications from proposed subcontractors prior to
the award of subcontracts exceeding $10,000 which are not
exempt from the provisions of the Equal Opportunity clause;
that they will retain such certifications in their files; and that
(except where the proposed subcontractors have submitted
identical certifications for specific time periods) the Districts
will forward the following notice to such proposed
subcontractors:
:
o
3
SP Poet yp Sil Om are He A 0 PE LOE LOL LEI EET ALCO GD og hh ee Te
37
NONSEGREGATED FACILITIES
A Certification of Nonsegregated Facilities must be
Submitted prior to the award of a subcontract exceeding
$10,000 which is not exempt from the provisions of the
Equal Opportunity clause. The certification may be
submitted either for each subcontract or for all
subcontracts during a period (i.e., quarterly,
semiannually, or annually). Note: The penalty for making
false statements in offers is prescribed in 18 U.S.C. 1001.
CO Ww. H AND TY STAND
ACT -- OVERTIME COMPENSATION
19. The Districts shall mclude the following provisions in
all subcontracts related to this Agreement that are in excess of
$2,000 for construction contracts or in excess of $2,500 for
other contracts involving the employment of mechanics or
laborers:
(a) Overtime requirements. - No contractor or
subcontractor contracting for any part of the work pursuant to
this Agreement which may require or involve the employment
of laborers, mechanics, apprentices, trainecs, watchmen, and
guards, shall require or permit any laborer, mechanic,
apprentice, trainee, watchman, or guard in any workweek in
which he is employed on such work to work in excess of 8
hours in any calendar day or in excess of 40 hours in such
workweek on work subject to the provisions of the Contract
Work Hours and Safety Standards Act unless such laborer,
mechanic, apprentice, trainee, watchman, or guard receives
compensation at a rate not less than one and one-half times his
basic rate of pay for all such hours worked in excess of 8 hours
in any calendar day or in excess of 40 hours in such workweek,
whichever is the greater number of overtime hours.
(b) Violation; liability for unpaid wages; liquidated
38
damages. - In the event of any violation of the provisions of
paragraph (a), the Districts and any subcontractor responsible
therefor shall be liable to any affected employee for his unpaid
wages. In addition, such Districts and subcontractor shall be
liable to the United States for liquidated damages. Such
liquidated damages shall be computed with respect to each
individual laborer, mechanic, apprentice, trainee, watchman, or
guard employed in violation of the provisions of paragraph (a)
in the sum of $10 for each calendar day on which such
employee was required or permitted to be employed on such
work in excess of 8 hours or in excess of his standard
workweek of 40 hours without payment of the overtime wages
required by paragraph (a).
(c) Withholding for unpaid wages and liquidated
damages. - The RGCAO may withhold from the Districts, from
any moneys payable on account of work performed by the
Districts or subcontractor, such sums as may admmistratively
be determined to be necessary to satisfy any liabilities of the
Districts or such subcontractor for unpaid wages and liquidated
damages as provided in the provisions of paragraph (b).
(d) Subagreements or subcontracts. - The Districts shall
insert paragraphs (a) through (d) of this clause in all
subagreements or subcontracts, and shall require their inclusion
in all subagreements or subcontracts of any tier.
(e) Records. - The Districts shall maintain payroll
records containing the information specified in 29 CFR
516.2(a). Such records shall be preserved for 3 years after the
termination of this Agreement.
OFFICIALS NOT TO BENEFIT
20. (a) No Member of or Delegate to Congress,
Resident Commissioner, or official of the Districts shall benefit
from this Agreement other than as a water user or landowner in
the same manner as other water users or landowners.
CONTINGENT ON APPROPRIATION OR ALLOTMENT
39
OF FUNDS
21. The expenditure or advance of any money or the
performance of any obligation of the United States under this
Agreement shall be contingent upon appropriation or allotment
of funds. No liability shall accrue to the United States in case
funds are not appropriated or allotted.
CLEAN AIR AND WATER
22. The Districts shall mclude the following provisions in
all subcontracts related to this Agreement that are in excess of
$100,000, or if a facility to be used has been the subject of a
conviction under the Clean Air Act [42 U.S.C. 1857c-8(c)(1)]
or the Federal Water Pollution Control Act [33 U.S.C. 1319(c)]
and is listed by EPA:
(a) The subcontractor agrees as follows:
(1) To comply with all the requirements of
Section 114 of the Clean Air Act, as amended (42 U.S.C., 1857
et seg., as amended by Public Law 91-604) and Section 308 of
the Federal Water Pollution Control Act (33 U.S.C., 1251 et
seq., as amended by Public Law 92-500), respectively, relating
to inspection, monitoring, entry, reports, and information, as
well as other requirements specified in Section 114 and Section
308 of the Air Act and the Water Act, respectively, and all
regulations and guidelines issued thereunder before the
execution of this Agreement.
(2) That no portion of the work required by this
Agreement will be performed in a facility listed on the
Environmental Protection Agency List of Violating Facilities
on the date this Agreement was executed unless and until the
— eliminates the name of such facility or facilities from such
sting.
. (3) To use their best efforts to comply with clean
air standards and clean water standards at the facility where the
Agreement work is being performed.
(4) To insert the substance of the provisions of
40
this article into any nonexempt subcontract, including this
paragraph (a)(4).
(b) The terms used in this article have the following
meanings:
(1) The term “Air Act” means the Clean Air Act,
as amended (42 U.S.C. 1857 et seg., as amended by Public Law
91-604).
(2) The term “Water Act” means Federal Water
Pollution Control Act, as amended (33 U.S.C. 1251 et seg., as
amended by Public Law 92-500).
(3) The term “clean air standards” means any
enforceable rules, regulations, guidelines, standards,
limitations, orders, controls, prohibitions, or other requirements
which are contained in, issued under, or otherwise adopted
pursuant to the Air Act or Executive order 11738, an applicable
implementation plan as described in Section 1 10(d) of the
Clean Air Act [42 U.S.C. 1857c-5(d)], an approved
implementation procedure or plan under Section 11 1(c) or
Section 111(d), respectively, of the Air Act [42 U.S.C.
1857c-6(c) or (d)] , or an approved implementation
under Section 112(d) of the Air Act [42 U.S.C. 1857c-7(d)]}.
(4) The term “clean water standards” means any
or other requirement which is promulgated pursuant to the
Water Act or contained in a permit issued to a discharger by the
Environmental Protection Agency or by a State under an
approved program, as authorized by Section 402 of the Water
Act (33 U.S.C. 1342), or by local government to ensure
compliance with pretreatment regulations as required by
Section 307 of the Water Act (33 U.S.C. 1317).
(5) The term “comply” means compliance with
clean air or water standards. Comply shall also mean
compliance with a schedule or plan ordered or approved by a
court of competent jurisdiction, the Environmental Protection
Agency or an air or water pollution control agency in
accordance with the requirements of the Air Act or Water Act
41
(6) The term “facility” means any building,
plant, installation, structure, mine, vessel or other floating craft,
location, or site of operations, owned, leased, or supervised by
the Districts or their subcontractor, to be utilized in the
performance of this Agreement. Where a location or site of
operations contains or mcludes more than one building, plant,
installation, or structure, the entire location or site shall be
deemed to be a facility except where the Director, Office of
Federal Activities, Environmental Protection Agency,
determines that independent facilities are collocated in one
geographical area.
23. DELETED
UTILIZATION OF SMALL BUSINESS CONCERNS AND
SMALL BUSINESS DISADVANTAGED CONCERNS
24. Itis the policy of the United States that small
business concerns and small business concerns owned and
controlled by socially and economically disadvantaged
individuals shal! have the maximum practicable opportunity to
participate in performing grants and cooperative agreements
awarded by any Federal agency.
The Districts hereby agree to carry out this policy in the
awarding of subagreements and contracts to the fullest extent
consistent with efficient grant/cooperative agreement
performance. The Districts further agree to cooperate in any
studies or surveys as may be conducted by the United States
Small Business Administration or the awarding agency of the
United States as may be necessary to determine the extent of
the recipient’s compliance with this clause.
As used in this agreement the term “small business
concern” shall mean a small business as defined pursuant to
section 3 of the Small Business Act and relevant regulations
promulgated pursuant thereto. The term “small business
concern owned and controlled by socially and economically
disadvantaged individuals” shall mean a small business
concein:
42
(a) Which is at least 51 percent owned by one or more
socially and economically disadvantaged individuals; or in the
case of any publicly owned business, at least 51 per centum of
the stock of which is owned by one or more socially and
economically disadvantaged individuals; and
(b) Whose management and daily business operations are
controlled by one or more of such individuals.
The Districts shall presume that socially and
economically disadvantaged individuals include Black
Americans, Hispanic Americans, Native Americans,
Asian-Pacific Americans, Asian-Indian Americans and other
minorities, or any other mdividual found to be disadvantaged
by the Administration pursuant to section 8(a) of the Small
Business Act.
The Districts acting in good faith may rely on written
representation by their agents or contractors regarding their
status as either a small business concern or a small business
concern owned and controlled by socially and economically
disadvantaged individuals.
EXAMINATION OF RECORDS
25. (a) (1) The Districts agree to maintain books,
records, documents, and other evidence pertaining to the costs
and expenses of this Agreement (hereinafter collectively called
“records”) to the extent and in such detail as will properly
reflect all net costs, direct and indirect, or labor, materials,
equipment, supplies and services, and other costs and expenses
of whatever nature for which reimbursement is claimed under
the provisions of this Agreement.
(2) The Districts agree to make available at its
office(s) at all reasonable times during the period set forth in
subparagraph (4) below any of the records for inspection, audit,
or reproduction by any authorized representative of the
Comptroller General and RGCAO.
(3) In the event the Comptroller General or any
of his duly authorized representatives determine that his audit
43
of the amounts reimbursed under this agreement as
transportation charges will be made at a place other than the
offices of the Districts, the Districts agree to deliver, with the
reimbursement voucher covering such charges or as may be
otherwise specified within 2 years after reimbursement of
charges covered by any such voucher, to such representative as
may be designed for that purpose through the RGCAO, such
documentary evidence in support of transportation costs as may
be required by the Comptroller General or any of his duly
authorized representatives.
(4) Except for documentary evidence delivered
to the United States pursuant to subparagraph (3) above, the
Districts shall preserve and make availatle its records (i) until
expiration of 3 years after final payment under this Agreement
or of the time periods for the particular records specified in
Subpart 4.7 of the Federal Acquisition Regulations (48 CFR
Subpart 4.7), whichever expires earlier, and (ii) for such longer
period, if any, as is required by applicable statutes, by any other
clause of this Agreement, or by (a) or (b)below:
(a) If this Agreement is completely or
partially terminated, the records relating to the work terminated
shall be preserved and made available for a period of 3 years
from the date of any resulting settlement.
(b)Records which relate to (i) litigation or
the settlement of claims arising out of the performance of this
Agreement, or (ii) costs and expenses of this agreement as to
which exception has been taken by the Comptroller General or
the RGCAO, or any of their duly authorized representatives,
shall be retained by the Districts until such appeals, litigation,
claims, or exceptions have been disposed of.
(5) Except for documentary evidence delivered
pursuant to subparagraph (3) above, and the records described
in subparagraph (4)(b) above, the Districts may in fulfillment
of their obligation to retain their records as required by this
clause substitute photographs, microphotographs, or other
authentic reproductions of such records, after the expiration of
2 years following the last day of the month of reimbursement to
44
the Districts of the invoice or voucher to whic: such records
relate, unless a shorter period is authorized by the RGCAO
with the concurrence of the Comptroller General or his duly
authorized representative.
(6) The provisions of this paragraph (a),
including this subparagraph (6), shall be applicable to and
included in each subcontract hereunder which is on a cost,
cost-plus-a-fixed-fee, time-and-material, or labor-hours basis.
(b) The Districts further agree to include in each of
their subagreements or subcontracts, hereunder, other than
those set forth in subparagraph (a)(6) above, a provision to the
effect that the subcontractor agrees that the Comptroller
General and the RGCAO, or any of their duly authorized
representatives, shall, until the expiration of 3 years after final
payment under the subagreement or subvontract, have access to
and the right to examine any directly pertinent books,
documents, papers, and records, of such subcontractor,
involving transactions related to the subcontractor The terms
“subagreement or subcontract,” as used in this paragraph (b)
only, exclude (i) purchase orders not exceeding $10,000 and
(ii) subagreements or subcontracts or purchase orders for public
utility services at rates established for uniform applicability to
the general public.
LIMIT N OF T
26. (a) It is estimated that the total cost to the United
States for the performance of this Agreement for October 1,
1985 through September 30, 1986 is $298,091.00, and the
Districts agree to use their best efforts to perform the work
specified in the Agreement and all obligations under this
Agreement within such estimated cost. If, at any time, the
Districts have reason to believe that the costs which they expect
to incur in the performance of this Agreement in the next
succeeding 60 days, when added to all costs previously
incurred, will exceed 75 percent of the estimated cost, or if, at
any time, the Districts have reason to believe that the total cost
45
to the United States for the performance of this Agreement,
exclusive of any fee, will be greater or substantially less than
the then estimated cost, Madera Irrigation District shall notify
the RGCAO in writing to that effect, giving the revised
estimate of such total cost for the performance of this
Agreement.
(b) The following are estimates of budget amounts
for years two (2) through seven (7) of this Agreement. These
estimates are not binding on either of the parties and are for
informational purposes only:
Federal Fiscal Year Amount
1987 $ 312,996
1988 $ 328,646
1989 $ 345,078
1990 $ 362,332
1991 $ 380,449
1992 $ 399,471
(c) Except as required by other provisions of this
Agreement specifically citing and stated to be an exception
from this clause, the Government shall not be obligated to
reimburse the Districts for costs incurred in excess of the
estimated cost set forth in the annual O&M budget and the
Districts shall not be obligated to continue performance under
the Agreement or otherwise to incur costs in excess of the
estimated cost set forth in the annual O&M budget, unless and
until the RGCAO shall have notified the Districts in writing
that such estimated cost has been increased and shall have
specified in such notice a revised estimated cost which shall
thereupon constitute the estimated cost of performance of this
Agreement. No notice, communication, or representation in any
other form or from any person other than the RGCAO shall
effect the estimated cost of this Agreement. In the absence of
the specified notice, the United States shall not be obligated to
reimburse the Districts for any costs in excess of the estimated
cost set forth in the budget. When and to the extent that the
46
estimated cost set forth in the budget has been increased, any
costs incurred by the Districts in excess of the estimated cost
prior to such increase shall be allowable to the same extent as if
such costs has been incurred after the increase.
INSPECTION
27. The United States, through any authorized
representative, has the right at all reasonable times, to inspect,
or otherwise evaluate the work performed or being performed
hereunder and the premises in which it is being performed. If
any such inspection or evaluation is made on the premises of
the Project works, the Districts shall provide all reasonable
facilities and assistance for the safety and convenience of the
United States’ representatives in the performance of these
duties. All inspections and evaluations shall be performed in
such a manner as will not unduly delay the Districts’ activities
under this Agreement.
RECLAMATION REFORM ACT
28. This agreement does not constitute a contract or an
amendment to a contract with the United States as described in
Section 203 (a)(2) of the Reclamation Reform Act of 1982 or
the implementing rules and regulations.
|
:
|
47
IN WITNESS WHEREOPF, the parties have executed this
Agreement, on the date first above written.
THE UNITED STATES OF AMERICA
By /s/
Regional Grants and Cooperative
Agreements Officer
Bureau of Reclamation
MADERA IRRIGATION DISTRICT
(SEAL)
By /s/
President
Attest
_!s/
Secretary
CHOWCHILLA WATER DISTRICT
By /s/
President
Attest:
Secretary
48
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50
EXHIBIT D
51
MADERA
IRRIGATION
DISTRICT
12182 ROAD 28%
MADERA ,CA 93637 June 29, 1995
(209) 673-3514
(209) 268-2483 Central Green Company
FAX (209) 673-0564 15737 Read 204
Madera, CA 93638
BOARD OF DIRECTORS Dear Mr. Freeis:
H ROCKY TERANISHI NOTICE IS HEREBY given that he claim which you
Presudemi presen ted to the Madera Irrigation District on Ju ne 10,
1995 was rejected on its M erits
DONALD A SIMI
Vice Presudent
WARNING
JOHNNY DENIZ
RONALD H PISTORES!
3 FRED L. VALENZUELAJR Subject to certain exceptions, you have only six (6)
ROBERT | STANFIELD moaths from the date this notice was personally delivered
General Manager-Cluef Engineer ot Geposited in the mail © file a Sete Court Actwn on
CYNTHIA A. RASOOE thes chim. See Govemment Code Secton 956. Your ome
Secretary for filing an action in fe deral court may be less than this
PRANKLIN B SECARA six months. You may seek he advice of an atorncy of your
| easurer chotce im conne ction w ith this matter If you desire to
CHARLES | KETTER consul an atorney, you should do so immediatcly
: Controlier - Assessor ( ollector
. DENSLOW GREEN In providing this notice, or by any other action it
Lege: ( ownse’ bas taken on this claim, @e Madera Irrigation Distnct
does not intend to relmquish or waive any of your legal
claums re quirem ents or an y mghts or defense s potentia lly
; available to Madera Irrigation District of its officers,
: employees or agents
Should you file a lawsuit in this matter which is
determined to be in bad faith and without wasonable cause.
please be advise d that M adera Irrigation D istrict will
attempt to recover allof its defense costs from you as
. allowed by California Code of Civil Procedure aracies
y 128.5 and 1038.
If you have any questio: dout y our claim, or this
letter, please call the undersigned at 209-673-3514
Yours very truly,
/s/
Charles J. Ketter
Controller Assessor Collector
Enclosure
52
EXHIBIT E
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54
Attachment “A”
To
Claim For Damage, Injury, Or Death
6. Date and Day of Accident.
The canal continues to leak as of the date of this daim.
The date the canal first began to leak is presently unknown.
55
EXHIBIT F
OE FT et SS EET Me LNT NE REPT RS PO Het are NIP
56
United States Department of the
Interior
OFFICE OF THE SOLICITOR
Pacific Sou@west Region
i REPLY feme Fo 2800 Cottage Way
Room E-2753
Sacramento, Calfornia 95825-1890
LBR.PS.0402
T-S-168
erti il- ipt Re t
Central Green Company Claimant: (same)
River Ranch Date of Claim: 727/95
Attn: Larry Freels Date of Incident: 1995
15737 Road 204 Place of Incident: N ear M ile 2.9
Madera, CA 93638 Madera Canal, Central Valley Project
Dear Mr. Freels:
You bave filed a claim in the amo unt of $1 25,000 00, pursu ant to the F ederal T ort Claims Act,
28 U.S.C. §§ 2671-2680, which provides fr settlement of clams for damages caused by the
negligent act of omission of a government employee while actmg within the scope of his/her
employment under certain specified circumstances. This claim has been referred to this office
for considemtion.
The administrative recon fails w disclose amy factual orlegal bass to support a finding tha the
United States 1s res ponsib le for the in jury or damage claimed by you. Conse quently , this claim
must be and is herby denied.
If you are dissatisfied with this fin ding, you are entitled to resub mit this claim, toge ther with
your reasons fr resubmission, to the Regional Solicitor, Pacific Southwest Region, Attn: Frank
Wilson, ~600 Cottage Way, Room E-2753, Sacramento, California 95825, within sx months
from the date of the mailing of his decision, or you may file an action in the United States
Distria Court withm six months from the date of the mailing of this deciswn.
Sincerely,
/s/
David Nawi
Regional Solxitor
57
CHARLES J. STEVENS
United States Attorney
DANIEL E. BENSING
Assistant United States Attorney
Eastern District of California
3654 Federal Building
1130 0 Street
Fresno, California 93721
Telephone: (209) 498-7272
Attorneys for Plaintiff United States of America
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRiCT OF CALIFORNIA
CEN TRAL GREEN CO., ) CV-F-965541- REC-SMS
)
Plaintiffs, )
) ANSWER OF UNITED STATES
v. ) TO Plamtif™s FARST AMENDED
) COMPLAINT
)
)
)
)
UNITED STATES OF AMERICA,
MADERA IRRIGATION DISTRICT,
Defendants ’
)
Defendant, in answer to plaintiffs’ complaint, hereby
answer and assert affirmative defenses as follows:
ANSWER
1. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in the paragraph 1.
2. The allegations set forth in the first sentence of
paragraph 2 are admitted. In response to the allegations set
58
forth in the second sentence of paragraph 2, the United States
admits only that the Bureau of Reclamation is an agency within
the Department of the Interior of the United States and that the
Bureau of Reclamation, among other things, owns certain
canals in Madera County, California.
3. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in the paragraph 3.
4. The first sentence of paragraph 4 is a statement of
venue and, as such, is a lega! conclusion to which no response
is required. The second sentence of paragraph 4 is a statement
of jurisdiction and, as such, is a legal conclusion to which no
response is required
5. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in the paragraph 5.
6. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in the paragraph 6.
7. In response to the allegations set forth in paragraph 7,
the United States admits only that the United States planned,
designed, and constructed the Madera Canal which is used,
among other things, to convey water to various lands in the San
Joaquin Valley.
8. The United States admits the allegations set forth in
paragraph 8.
9. The United States denies the allegations set forth in
paragraph 9.
10. The United States denies the allegations set forth in
the first and third sentences of paragraph 10. The United States
lacks sufficient knowledge or information to form a belief as to
the truth or falsity of the allegations set forth in the second
sentence of paragraph 10.
11. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in paragraph | 1.
59
12. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in paragraph 12.
13. In response to the allegations set forth in the first
sentence of paragraph 13, the United States admits only that on
August 16, 1995, the Bureau of Reclamation received a claim
for damages in the amount of $125,000.00 from “Central Green
Company - River Ranch.” The United States denies the
allegations set forth in the second sentence of paragraph 13.
14. In response to the allegations set forth in paragraph
14, the United States admits only that on December 11, 1995,
the United States, through the Department of the Interior,
denied the claim of “Central Green Company - River Ranch”
described in the previous paragraph and that Plaintiff's Exhibit
F is a true and correct copy of that denial.
15. The United States lacks sufficient knowledge or
information to form a belief as to the truth or falsity of the
allegations set forth in paragraph 15.
16. In response to the allegations of paragraph 16, the
United States incorporates by reference its responses to
paragraphs | through 15 above.
17. The United States denies the allegations set forth in
paragraph 17.
18. The United States denies the allegations set forth in
paragraph 18.
19. The United States denies the allegations set forth in
paragraph 19.
20. The United States denies the allegations set forth in
paragraph 20.
21. In response to the allegations of paragraph 21, the
United States incorporates by reference its responses to
paragraphs | through 20 above.
22. The United States denies the allegations set forth in
paragraph 22.
23. The United States denies the allegations set forth in
paragraph 23.
30. The United States denies the allegations set forth i
paragraph 30. :
31. The United States denies the allegations set forth i
paragraph 31. e
32. In response to the allegations of paragraph 32, the
United States incorporates by reference its responses to
paragraphs | through 31 above.
33. The United States denies the allegations set forth i
paragraph 33. ‘a
34. The United States denies the allegations set forth i
paragraph 34. ‘.
. Defendant denies that Plaintiffs are entitled to any of the
relief requested. Defendants hereby deny each and every
allegation not previously admitted.
FIRST AFFIRMATIVE DEFENSE
__ Plaintiffs’ Complaint fails to state a claim upon which
relief may be granted.
SECOND AFFIRMATIVE DEFENSE
61
This Court has no jurisdiction to hear Plaintiff's second,
third, and fourth claims because pursuant to 33 U.S.C. § 702c,
the United States has not waived its sovereign immunity in
cases involving flood control projects where damage is caused
by flood waters, as was the case here.
THIRD AFFIRMATIVE DEFENSE
This Court has no jurisdiction to hear Plaintiff's second,
third, and fourth claims because pursuant to 28 U.S.C. §
2680(a), the United States has not waivea its sovereign
immunity in cases where the alleged act or omission of an
employee of the United States is a discretionary function, as
was the case here.
FOURTH AFFIRMATIVE DEFENSE
This Court has no jurisdiction to hear Plaintiff's first
claim because pursuant to 28 U.S.C. § 1491(a)(1), the Court of
Federal Claims has exclusive jurisdiction to hear cases arising
under the Fifth Amendment of the United States Constitution
where the requested relief is greater than $10,000.
FIFTH AFFIRMATIVE DEFENSE
To the extent that plaintff is requesting relief for past
damages, pursuant to 28 U.S.C. § 2401(b), this Court lacks
jurisdiction to adjudicate damages occurring more than two
years prior to the submission of Plaintiff's adminstrative claim.
The United States therefore respectfully requests that this
Court issue an order
1. Dismissing the complaint with prejudice;
2. Assessing the costs of this litigation against plaintiffs;
and
3. Granting such other relief as the court may deem just
and proper.
Dated: 8- 6-96
62
Respectfully submitted,
CHARLES J. STEVENS
United States Attorney
By: /s/
DANIEL E. BENSING
Assistant U.S. Attorney
63
TIMOTHY JONES, #119841
McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP
Post Office Box 28912
5 River Park Place East
Fresno, California 93729-8912
Telephone: (209) 433-1300
W. ALLEN BENNETT, #171963
General Counsel, Central Green Company
15737 Read 204
Madera CA 93638
Telephone: (209) 822-2800
Attorneys for. CENTRAL GREEN COMPANY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CENTRAL GREEN COMPA NY,« CASE NO. CV-F-965541 REC SMS
Californe Limited Parmersbip,
REQUEST FOR INSPECTION AND
PRODUCTION OF DOCUMENTS
TO THE UNITED STATES OF AMERICA
Plawuff,
)
)
)
)
)
vs )
)
UNITED STATES OF AMERICA, )
MADERA IRRIGATION DISTRICT, )
)
Defendants. )
—
PROPOUNDING PARTY: Plaintiff, CENTRAL GREEN
COMPANY
RESPONDING PARTY: Defendant, THE UNITED
STATES OF AMERICA
SET NO.: ONE (1)
o4
Plaintiff CENTRAL GREEN COMPANY requests that
Defendant UNITED STATES OF AMERICA (“UNITED
STATES”) produce the following documents within thirty (30)
days pursuant to the Federal Rules of Civil Procedure 34.
The UNITED STATES is hereby requested to provide
all information and produce all documents within the
knowledge, Possession, custody, or control of its agents,
employees, attorneys, investigators, or any agents of the
ee wvailable cae -~ )
or avai to it, or from whom i mn thi
it can obtain this
. This request for document production shall be
continuing and supplemental responses hereto shall be required
An ae UNITED STATES obtains Serther or
ifferent information from the time the responses heret
made until the time of trial “es
aia oe definitions and instructions are to be
1 applicable with respectto each demand for producti
of documents contained herein. r si
A. —_ Definitions.
1. “CENTRAL GREEN” shall refer to the Plaintiff.
CENTRAL GREEN COMPANY andits atte ives
i i ney, representatives
2. “UNITED STATES” shall mean and refer to
Defendant, the Department of the Interior of the United States of
America, Bureau of Reclamation, and its officers, directors,
employees, attorneys, accountants, realtors, consultants, agents,
ee ne engaged by it or its attorneys as an expert
in any litigation or arbitration, and an
acted for or on its behalf. —_
3. “DISTRICT” shall refer to Defendant, MADERA
[IRRIGATION DISTRICT and its attorneys, representatives
employees and agents.
4. : “MADERA CANAL” shall refer to the canal
which gives rise to the subject litigation.
4. The terms “YOU” or “YOUR” shall refer to
65
Defendant UNITED STATES OF AMERICA and any counsel,
consultants, experts, investigators, employees, agents or other
persons acting on its behalf with the exception of its attorneys of
record herein.
5. “WRITING” shall be understood to apply to any
record or communication, including records of any telephonic
communications, that would be a “writing,” “recording” or
“photograph” as provided by the Federal Rule of Evidence 1001,
and shall include, without limitation, originals, duplications or
copies (with or without notes or changes thereon), drafts, working
papers, routing slips, and similar materials as well as machine
readable data stored on cards, disks, magnetic tapes or other
storage media.
6. The terms “DOCUMENT” or “DOCUMENTS” as
used herein shall mean the original and all non-identical copies,
duplicates, and reproductions on any medium from which
intelligence or information can be retrieved. The term shall
include, without limitation, any and all of the following:
Letters, books, rts, summaries, studies,
statemen.”*, , notebooks, invoices,
schedules, ial books and _ records,
checks, tele , telexes, recordings on
computer disk or tape or other data processing
storage devices, telecopier transmittals,
applications, agreements, appointment
endars, working papers, graphs, manuals,
brochures, contracts, memoranda, notes,
records, correspondence, diaries, bookkeept
entries, and any published matenals,
matter that concerns, reflects, embodies or
relates to oral communications.
The term shall include, without limitation, each and every
copy, duplicate, reproduction, prior draft, excerpt, note, summary,
or any matter prepared from any of the foregoing which differs
from the original due to corrections, alterations, notations,
deletions, marginalia, confirmation, routing instructions or
records, or otherwise.
66
B. _Instructions.
l. . CENTRAL GREEN requests that
all documents be produced in the form in which they are found in
their normal filing place, including the document file folder or
other — in which they are regularly maintained.
. Whenever a document is not produced in full, please state
with particularity the reason it is not being produced in full, and
describe, to the best of your knowledge, information and belief
and with as much particularity as possible, those portions of the
document which were not produced.
3. Privilege Log. As to any document that is
requested for which a privilege or other protection from disclosure
is asserted, specify the specific ground for each privilege or
protection claimed and identify the document with particularity,
including the date, author, subject matter, recipients thereof, and
number of pages. )
4. Construction of Conjunctives. The conjunctives
“and” and “or” as used herein shall be pan. both
conjunctively and disjunctively, and each shall include the other
wherever such dual construction will serve to bring within the
scope of this request any documents which would otherwise not
be brought within its scope.
REQUEST FOR PRODUCTION OF DOCUMENTS
REQUEST NO. 1:
Each and every document and/or writing, including plans,
drawings, specifications and/or maps which relate to the design
and construction of the MADERA CANAL.
REQUEST NO. 2:
Each and every document and/or writing which relate in
any manner to the as-built plans of the MADERA CANAL.
REQUEST NO. 3:
67
Each and every document and/or writing which relate in
any manner to any and all leaks and/or water seepage from the
MADERA CANAL.
REQUEST NO. 4:
Each and every document and/or writing which in any
manner relate to any testing performed with respect to leaks
and/or water seepage from the MADERA CANAL.
REQUEST NO. 5:
Each aad every document and/or writing which in any
manner relate to any repairs made at any location along the
MADERA CANAL with respect to leaks and/or water seepage
from the MADERA CANAL.
REQUEST NO. 6:
Each and every document and/or writing which support,
evidence or establish any agreements between defendants
UNITED STATES and the DISTRICT relative to the MADERA
CANAL.
REQUEST NO. 7:
Each and every document and/or writing which relate in
any manner to the maintenance of the MADERA CANAL.
REQUEST NO. 8:
Each and every document and/or writing which relate in
any manner to the operation of the MADERA CANAL.
REQUEST NO. 9:
Each and every document and/or writing contained in
YOUR entire file which relate in any manner to CENTRAL
GREEN.
REQUEST NO. 10:
Each and every document and/or writing contained in
YOUR entire file which relate in any manner to the DISTRICT. |
68
REQUEST NO. 11: F
All correspondence between the UNITED STATES and
anyone regarding leaks and/or seepage of water from the
MADERA CANAL onw or under CENTRAL GREEN or its
predecessor in interest’s real property.
DATED: September 12, 1996
McCORMICK, BARSTOW, SHEPPARD
WAYTE & CARRUTH LLP
By: /s/
TIMOTHY JONES
69
TIMOTHY JONES, #119841
ne Park Place East
Fresno, California 93729-8912
Telephone: (209) 433-1300
W. ALLEN om v4
General Counsel, Central Green Company
7 15737 Road 204
Madera CA 93638
Telephone: (209) 822-2800
Attorneys for: CENTRAL GREEN COMPANY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CENTRAL GREEN COMPANY, a CASE NO. CV-F-965541 RECSMS
Californe Limited Parmership,
)
)
) SCHEDULING CONFERENCE
Plawtiff, ) STATEMENT
)
vs. ) DATE: September 26, 1996
) TIME: 10:0 am.
UNITED STATES OF AMERICA; ) CTRM: 4
MADERA IRRIGATION DISTRICT, ) Trial Date: None
)
)
oun
Defendants.
PARTIES AND PLEADINGS
1. Plaintiff CENTRAL GREEN COMPANY is a limited
partnership which owns certain real property located in Madera
County, California most of which is planted to pistachios
(“CENTRAL GREEN”). CENTRAL GREEN is represented by
Timothy Jones of McCormick, Barstow, Sheppard, Wayte &
Carruth.
2. Defendant UNITED STATES OF AMERICA has
been sued because through the Department of Interior and the
Bureau of Reclamation the UNITED STATES OF AMERICA
70
owns the Madera Canal located in Madera County, California
used for the delivery of irrigation water which passes through
Plaintiff's real property (“UNITED STATES”). The UNITED
STATES is represented by Charles J. Stevens and Daniel E.
Bensing of the United States Attomey’s Office.
3. Defendant MADERA IRRIGATION DISTRICT has
an agreement with the UNITED STATES to operate and
maintain the Madera Canal (“MID”). MID is represented by
Rick Jensen of Hager, Trippel, Macy & Jensen.
4. The First Amended Complaint is styled in four claims
for Inverse Condemnation (First Claim), Continuing Nuisance
(Second Claim), Continuing Trespass (Third Claim) and
Dangerous Condition of Real Property (Fourth Claim). All of
the claims arise out of damages which allegedly have been and
are continuing to be incurred by CENTRAL GREEN for water
which is leaking out of the Madera Canal onto and under
Plaintiff's property damaging pistachio trees and increasing
cultural costs of the property.
5. UNITED STATES answered the First Amended
Complaint denying the material allegations thereof and alleging
affirmative defenses of failure to state a claim, lack of subject
matter jurisdiction, sovereign immunity and statute of
limitations. MID answered the First Amended Complaint
denying the material allegations thereof and alleging
affirmative defenses of failure to state a claim, bar of
limitations, laches, Plaintiff's negligence, Plaintiffs intentional
conduct, assumption of the risk, failure to mitigate damages,
intervening/superseding causes, act of God/natural condition,
prescriptive easement, coming to the nuisance, privilege, lack of
unreasonable interference, equitable estoppel, authorized
conduct, and intervening superseding cause.
LEGAL CONTENTIONS
71
A. Plaintiff's Legal Contentions
6. CENTRAL GREEN contends that water is leaking
from the Madera Canal onto and under its property thereby
constituting a trespass, nuisance and inversely condemning its
property since the escaping water has damaged the roots of its
trees and increased its cultural costs due to the problems
associated with having excess water on its property which
interferes with normal cultural practices. Additionally, the
value of the land is diminished to the extent the trespass and/or
nuisance cannot be completely abated such that defendants have
inversely condemned Plaintiff's property.
7. Plaintiff asserts that either or both the UNITED
STATES and MID are responsible for the leakage problem.
The UNITED STATES constructed and generally has
maintained the Madera Canal for some period of time. The
UNITED STATES has entered into an agreement with MID
whereby MID is allowed to flow water through the canal in
return for which MID must maintain the canal to prevent
leakage of the type that is occurring.
8. While plaintiff understands that both MID and the
UNITED STATES want to point the finger at each other (MID
contends it is a construction problem while the UNITED
STATES contends it is a maintenance problem) one thing is
clear, the canal leaks and it is damaging Plaintiff's property.
9. Plaintiff asserts that jurisdiction is appropriate in this
Court since the UNITED STATES is a party and further that
venue is appropriate since the real property in issue is located in
Madera County, California.
B. Defendants Contentions
10. The UNITED STATES contends that the to the extent
any water is leaking from the Madera Canal it is MID’s
responsibility for maintaining the canal and that it either is
directly responsible to plaintiff for any such leakage or is
72
required to indemnify the UNITED STATES to the extent such
leakage occurs and is subject to the provisions of the agreement
between the UNITED STATES and MID.
11. The UNITED STATES further contends that this
Court is not the appropnate court for litigation of Plaintiff's
inverse condemnation claim and that the Court of Claims is the
only appropriate court, and that Plaintiff's claims are barred by
flood water immunity, discretionary function immunity and
statute of limitations.
. 12. MID contends that if the Madera Canal is leaking onto
Plaintiff's property it is a construction defect, not the subject of
its maintenance agreement with the UNITED STATES and
therefore MID is not responsible for the alleged leakage.
13. Defendants do not challenge venue in this Court but
ws UNITED STATES asserts lack of jurisdiction as mentioned
ve.
2. The UNITED STATES constructed the Madera
Canal through the Department of Interior, United States Bureau
of Reclamation.
3. The UNITED STATES entered into an agreement
with MID whereby MID was allowed to flow water through the
Madera Canal on the terms and conditions specifically set forth
in the agreement.
B. Contested Facts
73
1. Whether Water has been leaking from the Madera
Canal onto and under Plaintiff's property.
2. Whether the cause of water leaking from the
Madera Canal onto and under Plaintiff's property is a
construction defect or a problem caused by poor maintenance.
3. Whether sufficient water has leaked from the
Madera Canal to cause damage to Plaintiff's trees.
4. Whether sufficient water has leaked from the
Madera Canal to increase Plaintiff's cultural costs and the
extent of such increase.
5. Whether the water which has leaked from the
Madera Canal has inversely condemned Plaintiff's property by
causing damages of the type constituting inverse condemnation.
6. The value of Plaintiff's property.
7. The value of Plaintiff's trees which have been
damaged. ;
8. The amount of cultural costs plaintiff has incurred
in dealing with water which has leaked from the Madera Canal.
9. Whether plaintiff properly complied with
governmental claim statutes.
10. Whether defendants properly denied Plaintiff's
governmental claims.
11. Whether water leaking from the Madera Canal has
caused a nuisance on Plaintiff's property.
12. Whether water leaking from the Madera Canal has
caused a trespass to Plaintiff's property.
13. Whether water leaking from the Madera Canal has
created a dangerous condition of real property.
14. Whether plaintiff failed t timely file this
complaint under relevant Code of Civil Procedure §§ 337.1,
337.15, 338 and 343.
15. Whether plaintiff was negligent relative to its
operation of the subject real property and thereby caused any of
its own damages.
16. Whether plaintiff intentionally caused any of its
own damages.
74
17. Whether plaintiff assumed the risk of any of the
damages alleged in the complaint.
18. Whether plaintiff failed w mitigate its damages.
19. Whether actions of plaintiff were caused by
intervening or superseding causes unrelated to these defendants.
20. Whether the injunes to plaintiff were caused by a
natural condition and/or an act of God sufficient to bar any
claim by way of the First Amended Complaint.
21. Whether a prescriptive easement bars Plaintiff's
claims.
22. Whether plaintiff “came to the nuisance” thereby
barring it from any relief alleged in the First Amended
Complaint.
23. Whether or not any of defendants’ conduct was
privileged.
24. Whether defendants’ conduct does not constitute
an unreasonable interference with the use of Plaintiff's land.
25. Whether plaintiff is equitably estopped from
asserting the claims of the complaint.
26. The nature and extent of Plaintiff's claimed
damages.
27. When Plaintiff's injuries occurred.
28. Whether any actions by the UNITED STATES
which allegedly caused Plaintiff's injuries were motivated by
IV
AMENDMENTS, DATES AND OTHER ISSUES
A. Amendment Of Pleadings
14. The parties do not anticipate amending the pleadings
at this time.
B. Discovery Plan And Cut-Off Dates
75
15. The parties are ordered to complete all discovery on
or before November 7, 1997.
16. The parties are ordered t exchange expert witness
disclosures on or before August 15, 1997. Local Rule 253(b)
notwithstanding, the written designation of experts shall be
made pursuant to Federal Rule of Civil Procedure Rule
26(a)(2), (A) and (B) and shall include all information required
thereunder. The provisions of Federal Rule of Givil Procedure
Rule 26(b)(4) shall apply to all discovery related to experts in
their opinions. The parties shall be allowed to depose expert
witnesses whose depositions shall be completed on or before
November 7, 1997.
C. Pre-Trial Motions Schedule
17. All non-dispositive pre-trial motions, including any
discovery motions, are to be filed on or before November 24,
1997 and heard on Mondays at 10:00 a.m. in Courtroom 4
before the Honorable Sandra M. Snyder, United States
Magistrate Judge.
18. All dispositive pre-trial motions are to be filed on or
before December 15, 1997, and are to be heard on Mondays at
1:30 p.m. in Courtroom | before the Honorable Robert E.
Coyle, United States District Court Judge.
D. Pre-Trial Conference Date
19. February 2, 1998, at 2:00 p.m. in Courtroom 4 before
the Honorable Sandra M. Snyder, United States Magistrate
Judge.
E. Trial Date
20. March 24, 1998, at 10:00 a.m. in Courtroom | before
the Honorable Robert E. Coyle, United States District Court
Judge.
16
21. All parties except the UNITED STATES have
requested trial by jury. Counsel estimate that it will take 7
court days to try the case.
F. Settlement Conference
22. To be established by the Court.
23. Reserved.
H. Related Matters Pending
24. There are no pending related matters.
McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP
DATED: September 19, 1996 By: _/s/_
TIMOTHY JONES
HAGER, TRIPPEL, MACY
& JENSEN
DATED: September 19, 1996 By: /s/
RICK JENSEN
7 8
UNITED STATES ATTORNEY’S OFFICE IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DATED: September 19, 1996 By: _/s/
= DANIEL E. BENSING CENTRA L GREEN COMPANY, a CV-F-965541RECSMS
)
Californm Limited Parmership, )
) SCHEDULING CONFERENCE ORDER
Plaintiff, )
) Expert Disclosure Deadline:
vs. ) 8/15/97
)
)
)
)
)
)
UNITED STATES OF AMERICA, Supplem ental Expert
MADERA IRRIGATION DISTRICT, Disclosure Deadline:
9/12/97
Defendants.
Discovery Deadline:
11/7/97
Non-Dispositwe Motion
Filing Deadline:
11/24/97
, Dispositwe Motion Filing
Deadline: 12/15/97
Pre-Trial Conference Date:
2/3/98 , 2:00 pm, Ctrm. 4
Trial Date: 3/24/98, 1090
; am, Ctrm. | (JT - 7 days)
1. Date of Scheduling Conference:
September 26, 1996.
2. Appearances of Counsd:
Peter L. Simon of McCormick, Barstow, Sheppard,
Wayte & Carruth appeared on behalf of plaintiff. ,
Assistant U.S. Attorney Daniel E. Bensing appeared
on behalf of defendant, United States of America (“USA”).
Rick E. Jensen of Hager, Trippel, Macy & Jensen
appeared on behalf of defendant, Madera Irrigation District
(“MID”).
3. The Pleadings:
A. Summary of the Pleadings.
79
Plaintiff is a limited partnership which owns
certain real property located in Madera County, California,
most of which is planted to pistachios.
Defendant USA has been sued because through
the Department of Interior and the Bureau of Reclamation, the
USA owns the Madera Canal located in Madera County,
California, used for the delivery of irrigation water which
passes through Plaintiff's real property.
Defendant MID has an agreement with the USA to
operate and maintain the Madera Canal.
The First Amended Complaint is styled in four
claims for Inverse Condemnation, Continuing Nuisance,
Continuing Trespass, and Dangerous Condition of Real
Property. All of the claims arise out of damages which allegedly
have been and are continuing to be incurred by plaintiff for
water which is leaking out of the Madera Canal onto and under
Plaintiff's property damaging pistachio trees and increasing
cultural costs of the property.
Defendant USA answered the First Amended
Complaint denying the material allegations thereof, and
alleging affirmative defenses of failure to state a claim, lack of
subject matter jurisdiction, sovereign immunity, and statute of
limitations. Defendant MID answered the First Amended
Complaint denying the material allegations thereof, and
alleging affirmative defenses of failure to state a claim, bar of
limitations, laches, Plaintiff's negligence, Plaintiff's intentional
conduct, assumption of the risk, failure to mitigate damages,
intervening/superseding causes, act of God/natural condition,
prescriptive easement, coming to the nuisance, privilege, lack of
unreasonable interference, equitable estoppel, authorized
conduct, and intervening superseding cause.
Plaintiff’ s Contentions:
Plaintiff contends that water is leaking from the
Madera Canal onto and under its property thereby constituting a
trespass, nuisance, and inversely condemning its property since
the escaping water has damaged the roots of its trees and
80
increased its cultural costs due to the problems associated with
having excess water on its property which interferes with
normal cultural practices. Additionally, the value of the land is
diminished to the extent the trespass and/or nuisance cannot be
completely abated such that defendants have inversely
condemned Plaintiff's property.
Plaintiff asserts that either or both defendants are
responsible for the leakage problem. Defendant USA
constructed and generally has maintained the Madera Canal for
some period of time. Defendant USA has entered into an
agreement with defendant MID whereby MID is allowed to
flow water through the canal in return for which MID must
maintain the canal to prevent leakage of the type that is
occurring.
While plaintiff understands that both defendants
want to point the finger at each other (MID contends it is a
construction problem while the USA contends it is a
maintenance problem), one thing is clear that the canal leaks
and it is damaging Plaintiff's property.
Defendants’ Contentions:
Defendant USA contends that to the extent any
water is leaking from the Madera Canal, it is defendant MID’s
responsibility for maintaining the canal, and that it either is
directly responsible to plaintiff for any such leakage or is
required to indemnify the USA to the extent such leakage
occurs and is subject to the provisions of the agreement
between defendants.
Defendant MID contends that if the Madera Canal
is leaking onto Plaintiff's property, it is a construction defect,
not the subject of its maintenance agreement with the USA and,
therefore, MID is not responsible for the alleged leakage.
B. Orders Re: Amendment of Pleadings.
No amendments are proposed at this time.
C. Consent To Proceed Before U.S. Magistrate.
81
This case will not be assigned for all intents and
purposes, including trial, to the Honorable Sandra M. Snyder,
U.S. Magistrate Judge, as the parties do not so consent.
4. Factual Summary:
A. Admitted Facts which are deemed proven without
further proceedings.
(1) The Madera Canal passes through portions of
Plaintiff's property.
(2) Defendant USA constructed the Madera Canal
through the Department of Interior, United States Bureau of
Reclamation.
(3) Defendant USA entered into an agreement
with defendant MID whereby MID was allowed to flow water
through the Madera Canal on the terms and conditions
specifically set forth in the agreement.
B. Contested Facts.
(1) Whether water has been leaking from the
Madera Canal onto and under Plaintiff's property.
(2) Whether the cause of water leaking from the
Madera Canal onto and under Plaintiff's property is a
construction defect or a problem caused by poor maintenance.
(3) Whether sufficient water has leaked from the
Madera Canal to cause damage to Plaintiff's trees.
(4) Whether sufficient water has leaked from the
Madera Canal to increase Plaintiff's cultural costs and the
extent of such increase.
(5) Whether the water which has leaked from the
Madera Canal has inversely condemned Plaintiff's property by
causing damages of the type constituting inverse condemnation.
(6) The value of Plaintiff's property.
(7) The value of Plaintiff's trees which have been
damaged.
(8) The amount of cultural costs plaintiff has
incurred in dealing with water which has leaked from the
Madera Canal.
82
(9) Whether plaintiff properly complied with
governmental claim statutes.
(10) Whether defendants properly denied
Plaintiff's governmental claims.
(11) Whether water leaking from the Madera
Canal has caused a nuisance on Plaintiff's property.
(12) Whether water leaking from the Madera
Canal has caused a trespass to Plaintiff's property.
(13) Whether water leaking from the Madera
Canal has created a dangerous condition of real property.
. (14) Whether plaintiff failed to timely file the
complaint under relevant Code of Civil Procedure §§ 337.1,
337.15, 338, and 343.
. (15) Whether plaintiff was negligent relative to its
operation of the subject real property and thereby caused any of
its own damages.
. (16) Whether plaintiff intentionally caused any of
its own damages.
(17) Whether plaintiff assumed the risk of any of
the damages alleged in the complaint.
(18) Whether plaintiff failed to mitigate its
damages.
| (19) Whether actions of plaintiff were caused by
intervening or superseding Causes unrelated to these defendants.
(20) Whether the injuries to plaintiff were caused
by a natural condition and/or an act of God sufficient to bar any
claim by way of the First Amended Complaint.
(21) Whether a prescriptive easement bars
Plaintiff's claims.
(22) Whether plaintiff “came to the nuisance”
thereby barring it from any relief alleged in the First Amended
Complaint.
(23) Whether any of defendants’ conduct was
privileged.
83
(24) Whether defendants’ conduct does not
constitute an unreasonable interference with the use of
Plaintiff's land.
(25) Whether plaintiff is equitably estopped from
asserting the claims of the complaint.
(26) The nature and extent of Plaintiff's claimed
damages.
(27) When Plaintiff's injuries occurred.
(28) Whether any actions by defendant USA
which allegedly caused Plaintiff's injuries were motivated by
economic and social policy factors.
5. Legal Issues:
A. Uncontested.
(1) Venue 7”
B. Contested.
(1) Defendant USA contends that this court is not the
appropriate court for litigation of Plaintiff's inverse
condemnation claim, that the Court of Claims is the only
appropriate court, and that Plaintiff's claims are barred by flood
water immunity, discretionary function immunity, and statute of
limitations.
6. Discovery Plan and Cut-Off Dates:
The parties are ordered to complete all discovery on or
before November 7, 1997.
The parties are ordered to disclose all expert witnesses, in
writing, on or before August 15, 1997, and all supplemental
expert witnesses, in writing, on or before September 12, 1997.
Local Rule 253(b) notwithstanding, the written
designation of experts shall be made pursuant to F.R.Civ.P.
Rule 26(a) (2), (A) and (B), and shall include all information
required thereunder. Failure to designate experts in
compliance with this Order may result in the court excluding
the testimony or other evidence offered through such experts
that are not disclosed pursuant to this Order.
The provisions of Fed R.Civ.P. 26(b) (4) shall apply to all
discovery relating to experts and their opinions. Experts must
84
be fully prepared to be examined on all subjects and opinions
included in the designation. Failure to comply will result in the
imposition of sanctions.
7. Pre-Trial Motion Schedule:
All Non-Dispositive Pre-Trial Motions, including any
discovery motions, are to be filed on or before November 24,
1997, and are heard on Mondays at 10:00 a.m. in Courtroom
No.4 before the Honorable Sandra M. Snyder, U.S. Magistrate
from calendar.
In scheduling such motions, the Magistrate Judge may
grant applications for an order shortening time pursuant to
Local Rule 142(d). However, if counsel does not obtain an
order shortening time, the notice of motion must comply with
Local Rule 251.
All Dispositive Pre-Trial Motions are to be filed on or
before December 15, 1997, and are heard on Mondays at 1:30
p.m. in Courtroom No.1! before the Honorable Robert E. Coyle,
United States District Court Judge. In scheduling such motions,
counsel shall comply with Local Rule 230.
8. Pre-Trial Conference Date:
February 3, 1998 at 2:00 p.m. in Courtroom No4 before
the Honorable Sandra M. Snyder, U.S. Magistrate Judge.
The parties are ordered to file a JOINT Pre-Trial
Statement pursuant to Local Rule 281(a) (2). The parties are
further ordered to submit an additional copy of their Joint Pre-
Trial Statement on a 3'4” computer disc, formatted for
WordPerfect 6.1 for Windows, directly to the Magistrate
Judge’s chambers, Third Floor, Room 3419. The computer disc
will not be returned unless the parties so request and a
self-addressed stamped envelope or mailing container is
provided.
Counsels’ attention is directed to Rules 281 and 282 of
the Local Rules of Practice for the Eastern District of
California as to the obligations of counsel in preparing for the
85
Pre-Trial Conference. The court will insist upon strict
compliance with those Rules.
9. Trial Date:
March 24, 1998 at 10:00 a.m. in Courtroom No.1! before
the Honorable Robert E. Coyle, United States District Court
Judge.
A. This is a jury trial.
B. Counsels’ Estimate of Trial Time:
7 days.
C. Counsels’ attention is directed to Rule 285 of the
Local Rules of Practice for the Eastem District of California.
10. Settlement Conference:
Should the parties desire a Settlement Conference, they will
jointly request one of the court, and one will be arranged. In
making such request, the parties are directed to notify the court
as to whether or not they desire the undersigned to conduct the
Settlement Conference or to arrange for one before another
Judicial officer.
11. Request for Bifurcation, Appointment of Special Master,
or other Techniques to Shorten Trial:
Not applicable at this time.
12. Related Matters Pending:
There are no pending related matters.
13. Compliance with Federal Procedure:
The court requires compliance with the Federal Rules of
Civil Procedure and the Local Rules of Practice for the Eastern
District of California. To aid the court in the efficient
administration of this case, all counsel are directed to
familiarize themselves with the Federal Rules of Civil
Procedure and the Local Rules of Practice for the Eastern
District of California, and to keep abreast of any amendments
thereto. The court must msist upon compliance with these Rules
if it is to efficiently handle its increasing caseload. Sanctions
will be imposed for failure to follow the Rules as provided in
both the Federal Rules of Civil Procedure and the Local Rules.
14. Effect of this Order:
86
The foregoing Order represents the best estimate of the
court and counsel as to the agenda most suitable to bring this
case to resolution. The trial date reserved is specifically
reserved for this case. If the parties determine at any time that
the schedule outlined in this Order cannot be met, counsel are
_ ordered to notify the court immediately of that fact so that
adjustments may be made, either by stipulation or by
subsequent Status Conference.
Stipulations extending the deadlines contained herein will
not be considered unless they are accompanied by affidavits or
declarations and, where appropriate, attached exhibits which
establish good cause for granting the relief requested.
FAILURE TO COMPLY WITH THIS ORDER
SHALL RESULT IN THE IMPOSITION OF SANCTIONS.
DATED: Sept. 27, 1996
/s/
SANDRA M. SNYDER,
UNITED STATES MAGISTRATE JUDGE
87 88
IN THE UNITED STATES DISTRICT COURT APPEARANCES OF COUNSEL:
EASTERN DISTRICT OF CALIFORNIA
HON. ROBERT E. COYLE
CENTRAL GREEN COMPANY, a
) _— 7
California Limited Partnership, ) For the Plaintiff: McCORMICK, BARSTOW, SHEPPARD,
) WAYTE & CARRUTH LLP
Plaintiff, CIV-F-96-5541 REC SMS satin
vs. ) Defendant's Motion for 5 River Park Place East
UNITED STATES OF AMERICA: . — ms Fresno, CA 93720
MADERA IRRIGATION DISTRICT, ) BY: TIMOTHY JONES
)
Defendants. )
)
For the Defendant: YOSHINORI HIMEL
Fresno, California Monday, August 25, 1997 Assistant U.S. Attamey
555 Capitol Mall, Ste. 1550
Sacramento, CA 95814
REPORTER’S TRANSCRIPT OF PROCEEDINGS
Peggy J. Smith, Official Reporter
Monday, August 25, 1997 Fresno, California
THE CLERK: Number 27 on the calendar,
Civil-F-96-5541 REC, Central Green versus United States,
defendant’s motion for judgment on the pleadings.
MR. JONES: Timothy Jones, McCormick, Barstow, on
behalf of Central Green.
MR. HIMEL: Good day, your Honor, Yoshinon Himel,
Assistant United States Attorney, representing defendant
movant.
THE COURT: Mr. Jones, Mr. Himel, this is the
government’s motion in this matter.
Mr. Himel.
MR. HIMEL: Your Honor, I’m prepared to answer
questions. I believe that the briefing covers everything that I
would have said today.
THE COURT: Mr. Jones?
MR. JONES: Your Honor, it seems to me the question
that needs to be addressed here is whether the term
“floodwaters” means anything within the immunity provision of
the Act, and as interpreted by James, and it seems to me that the
U.S.” position is that they read that term right out of the statute
and right out of the James court analysis.
Our position is that the Sumner Peck case was a very
thorough analysis of exactly what is in issue and why the term
“floodwaters” cannot be eliminated from the analysis, and the
cases that have gone the other way have followed the Hayes
line and then the analysis of the Hayes line of cases to really
focus on whether or not the project itself has as one of its
purposes flood control
If they find that to be the case, that swallows up the whole
test of whether or not the immunity applies, and every Ninth
Circuit case, except for the State of Washington case, has
discussed the floodwater question.
Reference is made to McCarthy, and as we pointed out in
90
McCarthy, the court said that they adjusted the level of the lake
and that satisfied, from the factual standpoint, whether or not it
was floodwater because it was adjusted based on incoming
flows.
In the Morici case, which is relied on heavily by the U.S.,
in that case, the court said very clearly Morici does not argue in
this court that the waters involved were anything other than
floodwaters within the meaning of the statute. And so if that
was not an appropriate consideration, the court, you know,
would not have voted it or whatever. It would have read it out.
THE COURT: Doesn’t each Columbia River Basin
Irrigation District case pretty well state it can be a
multi-purpose and if it’s a flood project and one of the purposes
is generating electricity or irrigation water, the mmunity
remains? It’s still a flood project.
MR. JONES: You are referring to the State of Washington
versus U.S. case, your Honor? That's a Ninth Circuit case?
THE COURT: As well as James. | think James also gives
MR. JONES: Weill, in James, my recollection is James
involved injuries that occurred in lakes or people who pass
through meters, I think # was something like that, and in that
case, that’s where the court talks about the floodwater issue and
the court says that floodwater was not an issue there because
there was no dispute as t whether these waters were
floodwaters, but the court gave a definition of what is
floodwater. That is something that passes through the project
for the purpose of or related to flood control.
And if it didn’t intend some factual analysis on the issue
of what the water was passing through the project for, all it had
to say was any water passing through a project that has flood
control as any purpose, any part of its purpose would effectively
be subject to immunity, and the court didn’t say that in James.
The court said you have to look at the water and say, one,
it passed through the project; and, two, it passed through for
91
flood control purposes.
And that’s exactly what Judge Wanger did in Sumner
Peck. That issue was raised specifically on the motion for
reconsideration. And Judge Wanger said, yes, that it was a
project, the purpose had as one of its purposes flood control, but
the court had to look at whether or not the water passed through
for that purpose or not. It’s a factual question that is related to -
flood control and that’s what he decided the case on. It was a
question of fact. And he said that they would have to go beyond
the motion to dismiss stage.
It seems a bit unfair to immunize the government for any
possible occurrence related downstream in an irrigation canal if
they are using that water, selling it for irrigation purposes and
they are not maintaining that project, if the water is being
maintained and let out --
THE COURT: I don’t disagree with you. It seems unfair.
The question is whether or not the government is immune.
MR. JONES: First you start with the question of whether
or not -- I think it’s an issue of fairness. Is it an intended
immunity to protect the government from this type ofa
circumstance? Most of the cases have been accident cases. Most
of them are accident cases, and the courts note that whether or
not it’s a floodwater is not an issue.
How can you avoid the McCarthy statement that the court
looked into whether or not the level of the lake was adjusted to
handle incoming flows? If that’s not an issue, why would the
court have looked at it? If it was not important of what was
floodwater, why would the Morici court say the parties didn’t
raise it?
THE COURT: If this is out through a separate channel
rather than the regular channel of the river, obviously, it was
released under your defmition, I would think, provide more
space for floodwaters later on in the season.
MR. JONES: If you look at McCarthy, the way the court
looked at it, the court said are they adjusting the level of the
92
lake to accommodate floodwater. Impliedly, that means if they
are not adjusting the level of the lake to accommodate waters
coming in for flood control purposes, then they are adjusting the
level of the lake for some other reason.
If it’s adjusted for some other reason, there is a question
as to whether or not that’s a floodwater. If they are adjusting the
level of the lake, let’s say, because rather than allowing for
incoming flows of the river that might overflow the dam, if they
are adjusting the level of the lake for the sole purpose of
maintaining water to irrigate later in the season, that has
nothing to do with protecting people from floods.
Our position is that consistent with James, consistent with
McCarthy and consistent with the discussion in Morici and
absolutely on all fours with Judge Wanger’s opinion in Sumner
Peck. The immunity either doesn’t apply or it certainly creates a
question of fact.
THE COURT: I guess what the Court has to decide then,
is Judge Wanger right in interpreting the Ninth Circuit and |
agree with his interpretation of Columbia, and I would rule in
your favor. If I disagree with that interpretation, then I don’t. I
guess that’s what that --
MR. JONES: We are walking along his analysis relatively
carefully, your Honor, but I still think that to disagree with the
interpretation, you have to read out the language in McCarthy,
you have to read out some of the language in the definition of
floodwater in James. And | think it really will do violence to
what was intended by the Act. As broad as it might be, I think it
is an overreaching.
THE COURT: Anything further on behalf of the
government?
MR. HIMEL: Yes, your Honor, very briefly. Plaintiff's
counsel conceded that under the test that he argues, if the sole
purpose of the releases from the dam that will resulted in water
going through the irrigation canal were flood control, then he
would concede that the government was immune from releasing
93
the releases of that water.
The point that the court — that the Ninth Circuit decided
and this Court has repeated in some of its decisions in the Ninth
Circuit’s Morici case was the difficulty of assigning a purpose |
to particular releases, and because of that factual difficulty, the 3 e
plaintiff has conceded, too, that he thinks it’s a factual question, 4 |
and thinks it’s necessary to make a factual issue.
It’s the difficulty of that factual issue that caused the
Ninth Circuit, as one of its reasons in Morici, to reach a result
that is contrary and rules contrary to what the plamtiff argues
for. Thank you very much, your Honor.
THE COURT: Thank you. The matter stands submitted. q io
(The proceedings were concluded.) } ae
l, PEGGY J. SMITH, Official Reporter, do hereby .
certify the foregoing transcript as true and correct.
DATED: 12-16-97 (sl aes oe Ree ee ia an 3h
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.