Joint Appendix — Central Green Co. v. United States

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

| 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

py 4S po he ut. ntn claret malta sistant elds splat Da:

EXHIBIT C

te a > ad aa WME, AGO SMC) LEI: - MONDA / AdoT 22ND Vidi =~ om

ILNZIDISINSNI ATIVOF) NWivid unosSivn a7n02 = ONILLINO ‘SNOUSENO Tiv eet I

ubis 9759} ‘7 oun ~ Bid De

C0000 -

/ At. (*32nN0D Tezepedg

ut zedoid aq oste Aew udf30tpstanr) -90°000'’Sz$ JO SSeoxe UT 3ejz o7e

sebewep S,useipf TerQUeD Sse RANOD AOTAedns ut 4sezr TTTM UOTJOTpStane

TS RNP

| r 7! :. ne ahs on T ve paeaate OSes pe oP U mt

ttre ¥ g a -y ty. —~+ = «

tied a rt ©) OU as 1b) OVFAT $33 000U) OTe) pac ra ULL) OY a

7% ¥ y no bran 19 JOU} Bode * & fn. Aue We SY Y “— 1} aa YT

3S +O & > - ~¢ > \A i ,* . Aowhd UF JO. v . + roy ast BN ~ 2,0 x ‘s) DU Kor UA

- >

8 DENOs Penta EPO AY A Ip ; 00:0 | Ue Says ; ree a log unoures rer t- aaa

EST AVAILABLE COPY

— ew

“qebeuew ‘pIatTsue3s qog = IW 3e uosied RDeRQU0D

wow ee we a

—— <r

“<< Pare ° lt te Bi ye

Om ODE er ras OU jONE 2) EN dui I's IETS S Saw eu; 6 2 MED AY) CN}

Se ee eee Se tn lt

“* UOTJONPOIC

einznzy JO SSOT (pf pue ‘!sysod Hbutwzezy Teuotjtppe (¢ Ts0er) jo

YzePep (Z +S38e73 UT UOTZONpoAd ysed JO ssoT ({T epntout sebewep umouy

LL TS SS SS

JONEIUs SB 5010, 20)

; tn’ on C= <> Hones ND) eee

TTARLL 1/4 je ef dba i) ve © (je) Teyoe ODI On VOROORS SOUDGIOS0

> (PEE ONS)

-

“wyefo sip BulpseBes eawy Aww nod sydesBo,0yd hue Yorn “JLON

a

*peqoesse sie

$8073 OTYOReASTd sanjew Jo sezoe o¢ *xoArddy ‘3 {[NOTJJTpP pue satsusedxe

ibutasearey pue Hutwiey seyew pue seer} PeTITyY sey BbutpooTts suL - Teueo

ey} worz BbutyeeT useq sey pue st 7eRzeM SUL ‘*YoOueRT OTYSeAstd Aw jo

za 3ue5 3Bsu3 ubnoxzy3 sunz [TeueD ezspew suL ‘(VOgeuLOjUI S}e;KdWOoo ani6) peveddey yeu ney

* 1298ld MON) ‘owl MON) ‘2180

= or WZ

aan Peakedine t wv —_<S—< —S

f

[oo Pa HM? Aaj) SAY ONS WEIN WRITS COMEAMTES AQYS HCAS UTEYE EE IPT nP.Cans mp "a Aa s7 RS

LZ7LE6 |= — == = ee ee eas eee . sit.)

ouserg i} ‘ “Pur SA0ID “N 9997 B£9E6 Ww ’ eISpeW eaoqe se sures ~eqwnn evoug

“af *SOtr] *H WeETTTT™ b/T 8% “PY ZSZ7T (PAOqGe 88S) UseIDH TeIWUSD :ssasppy

| OTIeueTSey JO neeInmg IW *1hW-PTeTyueIs qog uTOD ATOD !STeeig ATICET :qwen

po Ne ee ede TAA lg yO )S SAAR gn corusyQuadiag <

i Soe UE DOES (SRT OER ALEK REASE RISA "1 Se a

a. 0087-228 (602) 28a¥nN ev0Ug

wv

| 8E9E6 WO “*PTOPOW *POZ “PU LELST :(sa)ssasppy

sjteezqg Aazey 0/9 ‘Auedwod useer5 Te1z3UuEed “owen

Sr “Jequwnu ovoyd puv ‘Wasd\)Ip y ssouppe Ouyjyeus ‘ssouppe ‘DWeN.

€9€6 WO

‘eRTepeW ‘b/T BZ “PU ZSTZT *39TAISTA UOTZIeHTAIT STSPEW spr IS1q so aw

—-

os

(yeYyaq sny VO BuNnde VOSJIOd eB Aq 40 yURWIE}D a AQ pajuasasd oq EUS WIE} Y)

AdoOy WJO4 WIe|D

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

TT I Se oe TERE ENT remem we

?

.

-

+

.

53

— MEO 40) fet 1D ADDO IRIOS tet UE Jorn AnMPO SNOme

‘Sus (66 NNO) OIVUNVIS, eror 619 00 0842 NSN 20t-

PS0000 (6c DENIC Ce

(1001 £2802 DSN Gt Coy) MON» SWIG Pomp) og AQ PoOuNYSNS SODkwOEp pO pUNOUM Ou BQMOP sr

Sood & uvuL 270s JOU 1) FUOVIUOSUDUR 10 000'D1S YEUI D:0w OU ;O dun 5 000 Z$ 1© wAS du) SUIS POHUN aur 0} ABD PUR a)0; EUS PURUHE!D aul

SANIW3LVIS 3S1V4 ONINVW BO WiVID

AN3J MONVYS ONILNIS3Ud YO ALIVWN3d IWNIWIND

4) L2/[ 0082-228 (602) es

WivtD 30 31 wi |AsoreuGrs 50 saQWNU av0Ug af) ( @PIS OS1@ABs VO SUOYDNI uw SPs) ANWAIV1D 30 3UNLYNODIS ®&

; WIV1D SIHA JO 1N3W31113S AYNIZ ONY a 113 NI ANNOY

Ol¥S 1d3DIV OL JBVOV ONY ZAOBY ANZO!IDOV 3H1 AB O3SNVD S3IVAFNI ONY S3DVWYVO AINO s¥3h09 WIV? JO INNOWM3HI LWHIL AZILY3:

_ /

WiV?D INI WMONVYSs

ONULN3S3Ud YOS Al PYN3d WAND

. ’ /

Bs... 00°000’SzTs

esne> Aew Ayoeds 0} esnyey) W101 P21 HLV30 INSONOWM 221 AMNPNI WWNOSH3d QZ! JOVWYC ALw3adOud *i

(ss@yOp ut) WIVID 40 LNNOWY (@S/@A@s VO SUONINIISU OOS) *;

LE96 WO ‘eTepew ‘b/T BZ “PU ZSTZT ‘*°3Sta “Hrazzr ezepew PTetzueIs qog

“UOTIeUeTOSeY jo neeing “ae SOM] WETTTt

“BACdY 38S - *OD useID5 Tere sutoy A210

*“BACTdW 88S - “OD useIy5 TerQUeD sjeezg Arzey

(@pod or7 ple ‘e1erS ‘A> ‘eens ‘2QWON) SS3HOOYV 3WYN

S3SS3NLIM

"1N303930 YO NOSY3d G3YNFNI 40 Bw

31V1S “LNVWIV1D NVH1 BSHLO JI WIV1D 3H1 4O SISV8 3H SWUOS HOIMM "HLW30 4O 3SNY2 HO ABOOM Hoye 40 “T: '

HLV30 MSUNUGAVAGIN NM IY MU ooseu oa

*peqoeyye ore seer OTUMeRSTd samjew jo serzle OF “KOAddy ‘Ajredoid O32 DUTPOOTY

tuoT3onpoad eznjng # ySsed JO SSOT pecueTtedxe oaeH ‘PETIT used SAPY SeeTQ OCTIpRRSTd smmaQRK

‘youey OTUSeISTd - TeATY uTMbecr ues pue H0Z “PU - YueY FOATY S,USSTID [TETIUSD (eps esserey

suvonoAysu eS) ‘G3193dSNI 38 AVW ALU3dOWd 3H3HM NOUYDO7 3H ONY 3DVWYO JO LNSLXG ONY SUNLYN ‘ALU3dOUd 3H 38INOS3O A133

(epod az pue ‘ejeIS ‘AyD eens ‘JEQWAN) INVIIWID NVHL Y3HLO JI Y3NMO JO SS3YOO0V ONY 3

ZOVWVO AlwsdOud

_

“uexe3 oq TI =|

uoT_Oe TeTpewez eu pesTword aaey pue Aqredord ayy 03 Ueeq aARPY SeATIEQUeSeIde-

neering se sueTqozd suj JO a7emMe ST NeelINg ey JO ‘SOM] WETTTIM ‘“PpesPezDUT SSK i

ButTurrez pue 3soT uoTIONpord ‘peT[Ty ueeq eArPy Seer, “PIePYOIO sy JO sured o: we)

BuTpootj ezeaes Butsne> ‘Buryee, useq sey pue ST TeUROD SUL *Aqredoad ou: 1

ybnozy3 sunz Teued> exopew cul “Yyouez oTypeqstd aehre,T e ST Yury JeATY UseID TerQue CO |

(Asesseceu y seOed peuvoRyppPe eS/)) O8JOY) @SNFD OY) PUB @2VEINIDO JO BOER

ey) ‘pessoa Avedosd puke svosied BulAjjvepy ‘yeep 10 ‘unis ‘eewep ey) Guipve)j)® S@DUE}SWNIIO PUR $}2B/ UMOUY OY) PE)OD UF O)BIS) WHBID JO STS¥G <tr |

wV¥, JUSULPPQIQY ses NYA OO OANvIren O —

(we vO Wy) Bw 2 AN30IDO¥ JO AVO ONY 31V0 °9| SfuviS IwiIvW S| 9 HIMIB 3O 31VO »| INSWAOIMWS JO 3dAL eee

sjee1g Aare] 0/5 La

8f9f6 WO ‘erepeW ISST-LZLE6 BTUIOZTTeO ‘ouser Fw

pOz Ppeow LELST 90T# “20 TeTAISNPUT SACIAD *N 999: —

yourey FeaTyY - Auedwop use75 TerQUEeD 3pury ATA *uUyQ3 ed

(ODOD HZ PB S18IS “AyD "}00n3 “VeQWAN) ( OS/0A0) VO SYOHDNISUN ees) uot QewejTsey jo Nese»wny cs) ;

AUR “@ANB1VOSOs00) EU0SI0d § jUBWIE)D DUB 1URWE}D 10 SSODPY “OWEN Z A2uedy Rv0pe 4 eyeudosddy 0, ywant ;

| oPete Saanexe * SUONDNNSUH RVONPPE 10) OPS @S10A0) BOS AseSSOD0U Hiva0a vO ABAENE + —

+ (Sh@2US ~eVOINPEe a° w su jos WIO©Q VO Po}seNnbo) VOHeWwI0;u 4° 71S ‘

Care Te ” xe ene crass : cuoronntw out Ayome pees eseag snouon vi| JSOWWWO YOS WIV? |

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

* 5 ’ : ‘

& / ” Fad a”

“ *

7 . “ 4 ~

peers te , ny: « ¥

e ¥ foty . ~

Ns 7s SoMa Ie y “|

i a ¢ : fn ot x ‘

’ ie + a Sle

7 pari «

P ’ bie

: : . r

| . . .

Ls 2 . < it

‘ ‘ P - # a

Vee hes — -

‘ ‘* 4

=

~ 4 “

F -

/

.

i

r) :

a

.

+4 ,*

C3

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.