# Appendix — Boston Ranch Co. v. Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2777%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1990 - **Citation:** 498 U.S. 998 ## Text 90-4 09 | FILED No. JOSEPH F. SPANIOL, JR. “% IN THE Supreme Court of the United States OcTOBER TERM, 1990 BOSTON RANCH COMPANY, EDWIN R. O’NEILL, WEST HAVEN FARMING CO., Petitioners, vs. UNITED STATES DEPARTMENT OF THE INTERIOR, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX TO PETITION FOR WRIT OF CERTIORARI WILLIAM M. SMILAND Counsel of Record Of Counsel. DONNELLY, CLARK, CHASE & SMILAND HAL S. SCOTT Twelfth Floor 1557 Massachusetts Avenue 601 West Fifth Street Cambridge, MA 02138 Los Angeles, California 90071 (617) 495-4590 (213) 891-1010 Attorneys for Petitioners Lawyers Bnef Service / Legal Printers / (213) 383-4457 / (714) 720-1510 No. IN THE Supreme Court of the United States OCTOBER TERM, 1990 BOSTON RANCH COMPANY, EDWIN R. O’NEILL, WEST HAVEN FARMING CO., Petitioners, vs. UNITED STATES DEPARTMENT OF THE INTERIOR, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX TO PETITION FOR WRIT OF CERTIORARI WILLIAM M. SMILAND Counsel of Record Of Counsel: DONNELLY, CLARK, CHASE & SMILAND HAL S. SCOTT Twelfth Floor 1557 Massachusetts Avenue 601 West Fifth Street Cambridge, MA 02138 Los Angeles, California 90071 (617) 495-4590 (213) 891-1010 Attorneys for Petitioners PT i TABLE OF CONTENTS Page OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AND DISSENT, FILED MARCH 16, 1990, AS AMENDED JUNE 7, 1990............. Al ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMENDING THE OPINION, DENYING THE PETI- TION FOR REHEARING, AND RE- JECTING THE SUGGESTION FOR REHEARING EN BANC, DATED oo RE IE eS ee Bl MEMORANDUM DECISION RE: MOTION TO ENFORCE JUDG- MENT, FILED AUGUST 10, 1988 AND ORDER DENYING MOTION TO ENFORCE THE JUDGMENT OF THE UNITED DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, FILED DECEMBER eR ee eee ee Cl ARTICLE I, SECTION 1, ARTICLE Ill, SECTIONS 1 AND 2, AND FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION ....D1 SECTION 9(e) RECLAMATION PROJECT ACT OF 1939, ch. 418, 53 Stat. 1193; 43 U:S.C. § 485h(e).......... El : - : aie o 14 « SECTION 46 OMNIBUS ADJUST- MENT ACT OF 1926, ch. 383, 44 Stat. 649; 43 U.S.C. § 423e.......... SECTION 203(b) (first sentence), SECTION 209(e), AND SECTION 205(c) RECLAMATION REFORM ACT OF 1982; 43 U.S.C. §§ 390cc(b) (first sentence), 390ii(e), 390ee(c)..... FORMER INTERIOR RULE 11(1)(4) (1983); FORMER 43 CFR § 426.11 CE a ies whe Me Rea dads. SECTION 5302 OMNIBUS BUDGET RECONCILIATION ACT OF 1987, adding inter alia § 224(h), RECLA- MATION REFORM ACT; 43 U.S.C. PN Sh Ghee s ded ks CURRENT INTERIOR RULE 11(i)(4) (1989); 43 CFR 426.11(i)(4) SELECTED EXCERPTS OF JUNE 5, 1963 CONTRACT BETWEEN THE UNITED STATES AND _ WEST- LANDS WATER DISTRICT PRO- VIDING FOR WATER SERVICE..... EXEMPLAR OF RECORDABLE CAEN 6 0a'0 + ARR RCRA ROR UE BO 8 EXEMPLAR OF AMENDATORY RECORDABLE CONTRACT........ Page - ili - Page SELECTED PARAGRAPHS OF DECEMBER 30, 1986 JUDGMENT ENTERED IN BARCELLOS AND WOLFSEN, INC., et al., v. WEST- LANDS WATER DISTRICT, et al., E.D. Cal. No. CV 79-106-EDP .......... Nl > a Game 2 ee > a at Sees ek an ¢ | ete rei gd ne an a 2 WA mp rapes ye ort: eantar Baa Yi jee ponds) Vinal $4 sess ‘en - .* vo. Vibe ‘ i , -« Ld 4 Ly i 1 hiv 4 ne ttre \ o/ : Pino bsg? TM Vi wi (3 MOGTAtiik 2 Lait ey ; PER? hee Lon or 7 x pet: “tent FORBES | ht PB 5: ard ‘ +7 Wye t Lest ays edt he Ae + x Pete eg Say wy te Stic far : AN + 7 - a yd te . ~ Pat ae ifrt uf y Ee te Th et. la ee Sere Ie -Hi.- FORMER INTERIOR RULE 11(i)(4) (1983); FORMER 43 CFR § 426.11(i)(4) (1983) Land under recordable contract which is held by a water user not subject to the discretionary provisions of title II may continue to receive irrigation water at the contract water rate for the extended term of the contract, except as provided in section 426.11(e). Land under recordable contract which is held by a qualified or limited recipient may continue to receive irrigation water deliveries at the contract rate for the original disposition period of the recordable contract. The water rate for. land under recordable contract held by a qualified or limited recipient during an extended contract period shall be determined as follows: The contract water rate shall apply until the date 18 months after the date the Secretary resumes the processing of excess land sales, or until the extended contract period expires, whichever occurs first, and after the date 18 months from the date the Secretary resumes the processing of excess land sales, water deliveries shall be made at full cost for the duration of the extended contract period. APPENDIX I ‘to SECTION 5302 OMNIBUS BUDGET RECONCILIATION ACT OF 1987, Pub. L. 100-203, 101 Stat. 1330-268 to 1330-269; adding inter alia § 224(h) Reclamation Reform Act, 43 U.S.C. § 390ww (h) SEC. 5302. RECLAMATION REFORM ACT AMEND- MENTS. (a) AUDIT. — Section 224 of the Reclamation Reform Act of 1982 (Public Law 97-293) is amended by adding the following new subsections after subsection (f): “(g) In addition to any other audit or compliance activities which may otherwise be undertaken, the Secretary of the Interior, or his designee, shall conduct a thorough audit of the compliance with the reclamation law of the United States, specifically including this Act, by legal entities and individuals subject to such law. At a minimum, the Secretary shall complete audits of those legal entities and individuals whose landholdings or operations exceed 960 acres within 3 years. The Secre- tary shall submit an annual written report to the Senate Committee on Energy and Natural Resources and the House Committee on Interior and Insular Affairs. Such report shall summarize the legal entities and individuals audited, the results of such audits, and the actions taken by the Secretary to correct any instances of noncom- pliance with the reclamation law. “(h) The provisions of section 205(c) are and have been applicable to all recordable contracts executed prior to October 12, 1982, and any decision, rule, or regula- tion promulgated by the Department of the Interior to the contrary is hereby revoked: Provided, That notwith- sag. standing the provisions of subsection (i), the Secretary shall not seek reimbursement for any amounts due under this subsection or section 205(c) which was due prior to the date of enactment of this subsection. “(i). When the Secretary finds that any individual or iegal entity subject to reclamation law, including this Act, has not paid the required amount for irrigation water delivered to a landholding pursuant to reclamation law, including this Act, he shall collect the amount of any underpayment with interest accruing from the date the required payment was due until paid. The interest rate shall be determined by the Secretary of the Treasury on the basis of the weighted average yield of all interest bearing marketable issues sold by the Treasury during the period of underpayment.”. (b) REVOCABLE TRUSTS. — Section 214 of the Reclamation Reform Act of 1982 (Public Law 97-293) is amended by inserting “(a)” after “214” and by adding the following new subsection at the end thereof: “(b) Lands placed in a revocable trust shall be attributable to the grantor if — “(1) the trust is revocable at the discretion of the grantor and revocation results in the title to such lands reverting either directly or indirectly to the grantor; or “(2) the trust is revoked or terminated by its terms upon the expiration of a specified period of time and the revocation or termination results in the title to such lands reverting either directly or indi- rectly to the grantor.”. J a , | > ; * : . ° | : ; . Ws : | | eae @2% | : ’ | . ° “ ; | | + — ; re E | : y ~ | . ’ i ol | : ; : ‘ : t ‘ } ; ; ’ > ae > | : eC 4 . : | : ‘ : : : | , “ ‘ | . : 2 . ‘ / . We ; : | . ‘ of Ar, , : 4 : = ; rs - e - . cer 2 . | Se . a ' | « | 4 - ** , : - * 1“ 6 . : : | of) ad . : rer’ Ase rth e; : re $ | | : o 4 ; AG -=Mi1- EXEMPLAR OF AMENDATORY RECORDABLE CONTRACT CONTRACT NO. 14-06-200-5783A AMENDATORY Recorded in Official Records of Kings County, California at____—C Min. Past 12 M NOV 5 1984 Fee 5 Joan L. Bullock County Clerk and Recorder UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION Central Valley Project, California AMENDATORY AGREEMENT PERTAIN- ING TO SALE OF EXCESS LAND EX- TENDING DISPOSITION PERIOD FOR SALE OF LAND This AMENDATORY AGREEMENT, made this 14th day of August, 1984, under the provisions of the Reclamation Reform Act of 1982, and acts amendatory thereof or supplementary thereto, between the UNITED STATES OF AMERICA, hereinafter referred to as the United States, represented by the Secretary of the Inte- rior or his duly authorized representative, and Boston Ranch Compny referred to as the Landowner. WITNESSETH, That: WHEREAS, on January 21, 1972, the United States and the Landowner entered into Contract No. 14-06- 200-5783A recorded in the official records of Kings County, Book 987, Page 928, hereinafter referred to as -M2- the Recordable Contract providing for the sale of excess land owned by the Landowner in the Westlands Water District; and WHEREAS, it is the desire of the United States to amend the maturity date of said Recordable Contract; NOW, THEREFORE, in order to make such amend- ment, the parties hereto agree as follows: 1. Article 11 of the Recordable Contract is hereby amended to read as follows: 11. The Landowner hereby irrevocably makes, constitutes, and appoints the Secretary of the Interior, United States Department of the Interior, his true and lawful attorney for him in his name, place, and steady, to sell and transfer at any time following the expiration of this contract on February 16, 1990, all of his then right, title, and interest in and to any or all of the excess land described in article 2 hereof, owned by the Landowner, beneficially or otherwise, by such instrument as may be agreed upon between the Secretary and any other parties: Provided, That such sale shall not be made at a price which is less than the appraised value as fixed pursuant to the procedure set forth in article 3 hereof, or such appraised value as amended pursuant to article 7 hereof: Provided further, That such sale of said excess land shall be only for cash or upon terms satisfactory to the Land- owner. The Landowner gives and grants irrevocably unto his said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done to transfer title to said prop- erty, as fully to all intents and purposes as the Land- owner might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that said attorney or his substitute shall lawfully do, or cause to be done, by virtue of these presents: -M3- 2. All references in the Recordable Contract to Article 11 thereof shall refer to such article as herein amended. 3. In all other respects, the Recordable Contract shall remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this agreement to be executed the day and year first above written. THE UNITED STATES OF AMERICA Acting /s/_Neil-W Schild Regional Director, Mid-Pacific Region Bureau of Reclamation Boston Ranch Company Landowner By /s/ J W Boswell James W. Boswell, President By /s/ JohnC. Sterling John C. Sterling, Secretary APPENDIX N wn? f a4 ¢ > > a 74 * = 8.9 4 ae 4 7 x } a2 é 1 “ ‘ : s - '* zt = 7 ty : ‘ J . ca . of ¢ 7 . 7 4 ~ —_ as ” a2 Se « wt - : . t “a , POP ATe ee ee ah Seah ~ a gene » ‘ “Ofe Pa “ ¥ - ’ ' a m4. SELECTED PARAGRAPHS OF DECEMBER 30, 1986 JUDGMENT ENTERED IN BARCELLOS AND WOLFSEN, INC., et al., v. WESTLANDS WATER DISTRICT, et al., E.D. Cal. No. CV 79-106-EDP 3. Enforcement of Judgment. A party may obtain relief from a violation of this Judgment only by (a) the filing of a new action, or (b) the filing of a motion in these present actions. Either of these proceedings against the Federal parties shall, except as otherwise specifically limited by Paragraphs 6.1, 12.1.1, 12.1.2 and 12.3 of this Judgment, be for the sole purpose of seeking an order directing the Federal parties to perform in accordance with the express terms of this Judgment; provided, that any other appropriate relief may be obtained against the Federal parties by the filing of a new action for violation of (a) Paragraph 5 below or (b) any contract or other right or obligation arising independently of this Judgment, notwithstanding that (i) it is required to be performed by this Judgment, (ii) its future creation is anticipated or encouraged by this Judgment, or (iii) it is otherwise a subject of this Judgment. A motion in these present actions to obtain relief from an alleged violation of this Judgment may be filed only after 60 days prior written notice to all other parties that such a motion will be filed if another party or other parties.fail or refuse to perform in the manner described in said notice. The parties entitled to file such a motion and to receive such prior written notice thereof in these present actions shall be limited to the Area representatives provided for in Paragraph 22 below (who shall represent the interests of the class members within the areas they represent), the United States, the District, and any landowners or water users who have heretofore ee appeared in these present actions on their own behalf. The parties shall not seek judicial enforcement of this Judgment in any other manner than described above. During the term of this Judgment, each party shall perform all acts it is obligated hereunder to perform. This Judgment shall not alter or impair, or deprive any party of, any existing legal rights or confer on any party any right except as expressly provided herein. 4. 1963 Contract. 4.1. Beginning the first day of the month after this Judgment is entered, the District and the United States shall perform the 1963 Contract; provided, that the District waives the right tc make payment for water requested and delivered under Articles 4(c) or 8 of said contract at the rate provided in Article 6 thereof so long as the rate charged for said water does not exceed the applicable Central Valley Project water rate as of the date of delivery; provided further, that to facilitate and implement the existing water conservation policies of the United States, (a) Article 1(f) of said contract shall be revised to state: “ ‘year’ shall mean the period com- mencing March 1 of each year through the last day of February of the following year”; (b) Article 6(b) of said contract shall be revised by substituting “March 1” for “January 1” and “September 1” for “July 1”; and (c) notwithstanding the provisions of Article 3(d) of said contract, the quantity of water the United States shall be obligated to furnish, and the District to pay for, pursuant to Article 3 of said cuntract during the period commenc- ing March 1, 2007, and ending December 31, 2007, shall be 811,000 acre-feet. The 1963 Contract is a valid, enforceable and implementable contract entitling the District through the end of 2007 to water and other service by the United States as specified therein. 88%. 4.2. The District acknowledges that it entered into the 1963 Contract for the benefit of Areas 1A and 1B and the lands therein. The District will enforce the prior rights of said areas to the benefits of said contract and acknowledges that water users in Areas 2A and 2B may purchase water under the 1963 Contract not purchased by water users in Areas 1A and 1B as provided in this Judgment. To the extent that water under the 1963 Contract is purchased by a water user in Area 2A or Area 2B, the District shall collect from such water user and pay the United States for such water the water service rate set forth in Article 6(a) of the 1963 Contract, Paragraph 4.4 below or 4.5.4 below, whichever is ap- plicable, plus a $0.50 per acre foot drainage service charge, until such water user becomes entitled to water service pursuant to the long-term contract described in Paragraph 12.1.1 below, whereupon the contracting improvement district of the District shall collect from such water user and pay the United States for such water the applicable rates set forth in such long-term contract. 4.3. The District shall not enter into any contract which would modify the rights and obligations under the 1963 Contract prior to 2008, except with the concurrence of Area I as provided in Paragraph 22.5 below; provided, that such concurrence may be obtained only by lack of objection by Area I representatives and not by an advi- sory election under said paragraph. 4.4. The agricultural water service component of the rates to be paid to the United States for water delivered under Article 3 of the 1963 Contract to lands which become subject to the Discretionary Provisions of the 1982 Act shall be the higher of (a) $7.50 per acre foot or (b) the appropriate rate as of the date of delivery established pursuant to the 1982 Act. ** * -N4- 6.3. Drainage Service Facilities heretofore con- structed by the United States are and, unless hereafter otherwise provided by statute, will be a work or works “connected with water supply and allocated to irrigation” and not any “irrigation water distribution work” as those terms are used in Section 9(e) of the 1939 Act. Section 9(d) of the 1939 Act does not prohibit the Federal Parties from presently providing water service or drain- age service under the 1963 Contract. Agreement by the District to repay the Costs of Construction by the United States of Drainage Service Facilities under said Section 9(d) is not a condition precedent to the United States’ or the Federal Parties’ duty to perform any term of the 1963 Contract. A per acre foot drainage service charge is a legal and valid method of repayment of the Costs of Construction by the United States of Drainage Service Facilities. 6.4. Because they are the drainage counterpart of the main conveyance facilities of the San Luis Unit, Drain- age Service Facilities authorized by the 1960 Act are not a part of “distribution systems and drains” as that term is used in Section 8 of the 1960 Act. 7. Drainage Trust Fund. 7.1. To aid in funding costs of Drainage Service Facilities and to encourage and expedite United States’ construction or acquisition thereof, beginning the first day of the month after this Judgment is entered, the District shall establish, maintain and use the Drainage Trust Fund exclusively for the purposes and in accor-. dance with the terms and conditions specified in Para- graphs 7.1.1 through 7.1.9 below. 7.1.1. Beginning the second year after this Judgment is entered, the District shall levy $5 million per year by assessments on all lands within the District, and deposit -N5- the money collected into the Drainage Trust Fund. Said $5 million per year may be increased by the District with Area I and Area II concurrence as provided in Paragraph 22.5 below. To the extent necessary to meet the pay- ment obligations from the Drainage Trust Fund under Paragraph 7.1.4 and 7.1.7 below, the District shall borrow and deposit additional money therein. The District may terminate the collection and deposit of said $5 million per year when the District Board of Directors finds and determines, based on reasonable projections of said payment obligations and of interest earned on the money in the Drainage Trust Fund, that there is suffi- cient money therein to meet said payment obligations. 7.1.2. Each year, the per acre average of said asséss- ments levied by the District within (a) the territory encompassing Areas 1A and 1B and lands adjacent thereto annexed to the District after June 29, 1965, shall be 1.7 times the per acre average of said assessments within (b) the territory encompassing Areas 2A and 2B and lands adjacent thereto annexed to the District after June 29, 1965. However, within each of the territories described in (a) and (b) in the preceding sentence, the District shall apportion said assessments as authorized by law, including but not limited to Water Code Sections 36577 and 36578. 7.1.3. The District Treasurer shall be trustee of the Drainage Trust Fund and shall make the payments required under Paragraphs 7.1.4 and 7.1.7 below. The trustee shall invest the money in the Drainage Trust Fund to earn the highest possible rate of interest in prudent, legally authorized investments pursuant to California Government Code Sections 53600-53683. The interest earned on said investment shali become part of the Drainage Trust Fund. 7.1.4. For each Federal fiscal year (hereinafter “fiscal year”) the trustee shall pay the United States from the -N6- Drainage Trust Fund, in accordance with the procedure and to the extent stated in Paragraph 7.1.5 below, a progress payment of 35 percent of the estimated Costs of Construction by the United States during that fiscal year of Drainage Service Facilities. As to facilities con- structed or acquired by the United States for drainage service which have capability te sczve others in addition to capability as Drainage Service Facilities, the 35 percent progress payment to be paid from the Drainage Trust Fund shall be reduced to reflect the District’s proportionate benefits from such facilities. The required progress payment to the United States from the Drainage Trust Fund for any fiscal year shall not exceed $500,000 per facility for design and preparation of plans and specifications and $15 million for total Costs of Con- struction of all facilities. The progress payments in the aggregate shall not exceed $100 million. Accumulated payments from the Drainage Trust Fund under Paragraph 7.1.7 below shall be credited toward meeting both the District’s fiscal year and aggregate progress payment obligations. 7.1.5. By July 1 of each year, the Federal Parties shall advise the trustee of the estimated Costs of Con- _ §$truction to be incurred by the United States during each quarter of the upcoming fiscal year. The trustee shall pay the United States the required portion of said esti- mated quarterly cost on October 1, January 1, April 1, and July 1 of that fiscal year, to the extent that the Congress has appropriated federal funds sufficient to cover the remainder of such estimated costs. In the event the trustee does not make such payment when due, the Federal Parties shall have the right to withdraw the required amount of money from the Drainage Trust Fund on behalf of the United States. At the end of each quarter, if the actual Costs of Construction incurred by the United States during such quarter were less than the ; “M7 - estimated costs, there shall be an appropriate credit against the next quarterly progress payment obligation from the Drainage Trust Fund. 7.1.6. On October 1 and April 1 of each year, or at other times as agreed in writing by the Federal Parties and the trustee of the Drainage Trust Fund, the trustee shall provide a statement to the Federal Parties specify- ing the amount of money in the Drainage Trust Fund. 7.1.7. Upon the District’s request, the Trustee shall pay the District from the Drainage Trust Fund: (a) (i) the Costs of Construction, both before and after the date of this Judgment, of Cost Effective and financially feasible Drain- age Service Facilities constructed or acquired by the District and the cost of Cost Effective and financially feasible Drainage Reduction Programs implemented by the District either before or after the effective date of this Judg- ment, or (ii) the amounts needed to repay District funds, or the principal of money borrowed by the District, used either before or after the effective date of this 'udgment to pay any of the foregoing costs; (b) a maximum of $5 million which may be used for any one or more of the following: (i) to pay the costs of studies and investigations of drainage problems and solutions, either before or after the effective date of this Judgment; (ii) to repay District funds or the principal of money borrowed by the District to pay the costs described in (i) immediately above; (iii) to pay the interest cost of money borrowed by the District, either before or after the effective date of this Judgment, to pay the Costs of Construction (not exceeding a total of $30 million) of Drainage Service Facilities constitut- -N8- ing “Alternative Means” under the agreement between the District and the U.S. Department of the Interior dated April 3, 1985 (a copy of which is attached hereto as Exhibit H); and (c) the amounts needed to repay the princi- pal of money borrowed and deposited into the Drainage Trust Fund by the District as required by Paragraph 7.1.1 above. The District shall consult with the Federal Parties before incurring any Costs of Construction of Drainage Service Facilities or any costs of implementing Drvinage Reduc- tion Programs, or borrowing any money to pay such costs. Construction or acquisition by the District of Drainage Service Facilities or implementation by the District of Drainage Reduction Programs paid for with money from the Drainage Trust Fund shall reduce, by the amount of the design capacity of such facilities or by the design amount of drainage reduction resulting from such programs, the legal obligation of the United States to the District, if any, to construct or acquire Drainage Service Facilities or provide drainage service. 7.1.8. The money then deposited in the Drainage Trust Fund, including accumulated interest, shall be released to the District free of any obligation to the United States if and when any of the conditions specified in Paragraphs 7.1.8.1 through 7.1.8.8 below occurs. 7.1.8.1 The Federal parties do not develop, adopt, and submit to the District the Drainage Plan by Decem- ber 31, 1991. 7.1.8.2. The Congress has not authorized the ap- propriation of funds for the construction or acquisition of at least one Drainage Service Facility described in the Drainage Plan by December 31, 1993. 7.1.8.3. The Federal Parties have not commenced actual construction or acquisition of at least one -N9- Drainage Service Facility described in the Drainage Plan by December 31, 1996. 7.1.8.4. After the authorization referred to in Para- graph 7.1.8.2, the Congress for any two consecutive fiscal years does not appropriate funds for construction or acquisition of Drainage Service Facilities. 7.1.8.5. After the Congress has appropriated funds for the construction or acquisition of Drainage Service Facilities, the Federal Parties do not diligently pursue construction or acquisition thereof. 7.1.8.6. The Federal Parties do not complete con- Struction or acquisition of at least one Drainage Service Facility by the date provided in the Drainage Plan schedule. 7.1.8.7. The Federal Parties state that they will not develop or implement the Drainage Plan. 7.1.8.8. The Congress conditions future appropria- tions for Drainage Service Facilities on cost sharing arrangements different from those provided in Paragraph 7.1.4 above, and the District, after 30 days written notice to its landowners and water users and opportunity for hearing, gives written notice to the Federal Parties that it desires release of the money as provided in Paragraph 7.1.8. Such notice to the Federal Parties shall be given within six months of the effective date of, and shall specify, the Act of Congress giving rise to the District’s right to a release of such money. 7.1.9. Each of the conditions specified in Paragraphs 7.1.8.1 through 7.1.8.7 above may be waived or the time extended by written agreement between the Federal Parties and the District, with Area I and Area II concur- rence as provided in Paragraph 22.5 below. 7.2. Upon release from the Drainage Trust Fund under Paragraph 7.1.8 above, the money not needed to discharge payment obligations previously incurred -N10- pursuant to Paragraph 7.1.7 above shall be paid by the District as a refund to the landowners whose assessment payments were the original source of the money in amounts proportionate to such assessments. 7.3. Except as provided in Paragraph 7.3.2 below, on request of the District, the United States shall reimburse the District for the progress payments which were previously made by the District to the United States from the Drainage Trust Fund pursuant to Paragraph 7.1.4 above, plus Statutory Interest from the date each progress payment was made to the date on which the money in the Drainage Trust Fund is released to the District, with respect to any uncompleted Drainage Service Facility for which progress payments have been made if (i) for two consecutive fiscal years the United States has not incurred any Costs of Construction with respect to such facility and (ii) at the time of such request, the United States has not resumed and does not thereafter diligently continue to incur Costs of Construc- tion of such facility. Such reimbursement shall be accomplished by credits against water service payments due from the District to the United States, commencing the first day of the month after the Drainage Trust Fund is released to the District, until the total progress pay- ments made pursuant to Paragraph 7.1.4 above have been reimbursed, with Statutory Interest on the unreim- bursed amount starting the first day of said month. Thereafter, the District shall be entitled to no further credit for said progress payments made pursuant to Paragraph 7.1.4 above. 7.3.1 Notwithstanding the credits provided for in Paragraph 7.3 above, (a) water users in the District shall pay the District for water service the same amounts of money as they would have been required to pay for water service in the absence of said credits, and (b) at the time payments for such water service would have -Nill- otherwise been made to the United States, the District shall deposit an amount of money equal to said credits into a special Assessment Refund Account of the Dis- trict, which the District shall invest to earn the highest possible rate of interest in prudent, legally authorized investments pursuant to California Government Code Sections 53600-53683. Said interest shall become a part of said Assessment Refund Account. The money deposited into the Assessment Refund Account plus the interest thereon shall be paid by the District periodically as soon as practicable as refunds to the landowners for the portion of their assessments not previously refunded from the released Drainage Trust Fund. . 7.3.2. No reimbursement shall be made to the District pursuant to Paragraph 7.3 above of any progress pay- ment previously made from the Drainage Trust Fund for any Drainage Service Facility if it is financially feasible | for the District to complete construction and to operate and maintain such facility. In such event, the District shall have the right, but not the obligation, to complete the construction of, and to operate and maintain, such facility. 7.4. Unless and until one of the conditions specified in Paragraphs 7.1.8.1 through 7.1.8.8 above occurs, the parties shall not seek judicial relief based on any claim that the United States or the Federal Parties have any statutory, contractual or other obligation, or are violating any such obligation, to caqnstruct Drainage Service Facilities or to provide drainage service. 7.5. Beginning upon completion of construction or acquisition by the United States of any Drainage Service Facilities included in the Drainage Plan and continuing through December 31, 2007, the District shall pay the United States for drainage service, in addition to the $0.50 per acre foot drainage service charge under the 1963 Contract, a drainage service charge per acre foot of -N12- Central Valley Project water delivered to the District sufficient, when combined with the $0.50 per acre foot charge, to cover the District’s share of the operation and maintenance costs of such Drainage Service Facilities. Such additional charge shall be adjusted by the Federal Parties annually in subsequent years after payment begins by the same percentage as the change in the annuai operation and maintenance costs of said Drainage Service Facilities; provided, that no increase in such charge shall be effective for any year unless written notice of the estimated increase is given by the Federal Parties to the District on or before September 1 of the previous year and written notice of the actual increase is given by the Federal Parties to the District on or before December 1 of the previous year. The United States shall credit the total drainage service charges collected, first, to payment of the District’s share of the operation and maintenance cost of said Drainage Service Facilities and, second, to the District’s share of the construction costs of said facilities. 7.6. During the duration of this Judgment, the Dis- trict shall not pay a total of more than $100 million (exclusive of any interest other than the $5 million referred to in Paragraph 7.1.7(b) above) for Costs of Construction of Drainage Service Facilities and costs of implementing Drainage Reduction Programs by either or both the District and the United States. If, however, the United States and the District agree to an amount greater than $100 million and the Area I and Area II concur- rences are obtained as provided in Paragraph 22.5, the District shall pay such additional amount. 7.7. Nothing in Paragraph 6 above or this Paragraph 7 shall be deemed to prevent the Congress from con- ditioning future appropriations for Drainage Service Facilities on cost sharing arrangements different from those provided in this Judgment. -N13- 8. Refunds to District for Net Overpayments and Deposits. The parties agree that, as a result of overpayments and underpayments by the District to the United States for water service since June 30, 1978, and deposits by the District to the Existing Trust Fund since January 1, 1982, the District is entitled to the money referred to in Paragraphs 8.1 and 8.2 below. 8.1. The entire amount in the Existing Trust Fund at the end of the month in which this Judgment is entered, including principal and interest, (which was a total of $37,960,287.75 as of February 28, 1986) shall be re- leased to the District from said trust at the end of said month. As soon thereafter as possible, the money shall be used, first, for payment of court costs and attorneys’ fees and expenses as provided in Paragraph 19 below and, second, to refund water users in the District having net credits as provide in Paragraph 9 below. 8.2. As of the end of the month in which this Judg- ment is entered, the District shall be entitled to a refund from the United States of a sum which was $6,900,091.00 as of February 28, 1986, as shown in Exhibit I attached hereto, which amount includes Statutory Interest. Said refund amount shall be adjusted to reflect overpayments and underpayments and Statutory Interest thereon from March 1, 1986, to the end of the month in which this Judgment is entered. 8.3. The adjusted refund referred to in Paragraph 8.2 above shall be applied as a credit against payments due from the District to the United States as provided in Paragraph 13.2 below. 8.4. Notwithstanding the credit provided for in Paragraph 8.3 above, (a) in the first year after this Judgment is entered, the District shall levy, and -N14- apportion within the District as authorized by law, and the landowners in the District shall pay to the District assessments in the total amount of said credit and (b) the District shall deposit the assessments so paid into a special Overpayment Refund Account of the District, which the District shall invest to earn the highest possi- ble rate of interest in prudent, legally authorized invest- ments pursuant to California Government Code Sections 53600-53683. Said interest shall become a part of the Overpayment Refund Account. The money in the Overpayment Refund Account shall be refunded or used as provided in Paragraphs 9.6.2 and 9.6.3 below. 9. Overpayment Credits and Underpayment Debits to Water Users. 9.1. The District shall establish a bookkeeping account for every District water user who purchased water from the District for use during the Bookkeeping Account Period. 9.2. Each water user’s bookkeeping account shall show, as a credit, the amount of overpayments to the District and, as a debit, the amount of underpayments to the District for the various categories of water purchased by such water user for use during the Bookkeeping Account Period and the amount of Statutory Interest properly attributable thereto as determined by the Dis- trict. Exhibit J attached hereto shows the totals of all overpayments and underpayments to the District for the Bookkeeping Account Period for the various categories of water as of February 28, 1986. Said totals shall be adjusted to reflect overpayments and underpayments from March 1, 1986, through the end of the month in which this Judgment is entered. In allocating these adjusted totals and Statutory Interest thereon among the various water user’s bookkeeping accounts, the District -N15- shall be guided by the principles set forth in Paragraphs 9.2.1 through 9.2.5 below. 9.2.1. All the water purchased by agricultural water users in Areas 1A and 1B has been “San Luis agricul- tural” (“SL AG”) water. The remaining SL AG category water not purchased by agricultural water users in Areas 1A and 1B for use in each year has been purchased by agricultural water users in Areas 2A and 2B in propor- tion to the total amount of water purchased by each such water user for use in such year. However, as an excep- tion to the first sentence of Paragraph 9.2.1 above, SL AG water is deemed to have become “San Luis Agricul- tural operation and maintenance” (“SL AG O&M”) water to the extent the water was delivered for use to lands subject to the operation and maintenance water rate pursuant to Section 208 of the 1982 Act. 9.2.2. Agricultural water users in Areas 2A and 2B have purchased all the “Mendota Pool agricultural water” (“MP AG”) each year in proportion to the total amount of water purchased by each such water user for use in such year. 9.2.3. The remainder of the total amount of water which has been purchased by each agricultural water user in Area 2A and 2B for use in each year has been “San Luis agricultural excess” (“SL AG EX”) water. 9.2.4. All the water which has been purchased by agricultural water users in areas annexed to the District after June 29, 1965, has been SL AG EX water. 9.2.5. Municipal and industrial water users in the District have purchased and used only “San Luis Munici- pal and Industrial” (“SL M&I”) water. 9.3. Each water user’s bookkeeping account shall also show, as a debit, such water user’s share of the total payment by the District of court costs and attorneys’ fees and expenses as provided for in Paragraph 19 below. -N 16- Each water user’s share shall be the same proportion of said total payment as the total amount of water pur- chased by such water user from the District for use during the Bookkeeping Account Period is of the total amount of water purchased by all water users from the District for use during the Bookkeeping Account Period. 9.4. Each water user’s bookkeeping account shall also show such water user’s net credit or net debit, taking into account the credits and debits described in Paragraphs 9.2 and 9.3 above. 9.5. Each water user having a net debit in such water user’s bookkeeping account shall be obligated to pay the District the amount thereof, together with Statutory Interest on the unpaid balance beginning the first day of the month after this Judgment is entered. The District shall take such action as it deems appropriate to collect the amount owed, including but not limited to adding such amount to such water user’s water purchase pay- ment obligations. The amount collected shall be deposited into and become part of the Overpayment Refund Account established by Paragraph 8.4 above. 9.6. The net credits in the water users’ bookkeeping accounts shall be refunded as provided in Paragraphs 9.6.1 through 9.6.3 below. 3 9.6.1. The total amount of money released to the District from the Existing Trust Fund under Paragraph 8.1 above, less the amount paid for court costs and attorneys’ fees and expenses as provided in Paragraph 19 below, shall be apportioned among and paid to all the water users having net credits in proportion to their net credits. 9.6.2. When the required money has been deposited in the Overpayment Refund Account under Paragraphs 8.4 and 9.5 above, the money therein shall be appor- tioned among and paid by the District as soon as -N17- practicable to all the water users having net credits in proportion to their net credits. Upon such payments being completed, said net credits shall be deemed fully refunded. 9.6.3. If the District is unable to locate a particular water user to refund the net credit to which such water user is entitled, the amount due such water user shall be used as determined by the District. * * * 15. Past Contracts, Water Allocation and Pricing. All parties have voluntarily dismissed with prejudice all claims for relief pleaded in these actions arising out of any Interim Contract, Exhibit H, any Internal Alloca- tion Rule or any Internal Pricing Rule, except that the District and the United States retain any claim for relief arising out of Exhibit H. No party shall recover any damages or obtain any other judicial relief in any action against any other party based on such past actions, except as provided in Paragraphs 8 and 9 above and Exhibit H. Notwithstanding the foregoing, any land- owner or water user may assert in any other action any claim for relief referred to in Paragraphs 14.1.6 and 14.1.7 above and seek any remedy provided by law with respect thereto. * * * 17.6. Except as provided in Paragraph 7.3.1 above and Paragraph 18 below, the District shall not charge any water user more for water service or Drainage Service than the charges required to be paid to the United States for such service, plus any appropriate District charges to cover District costs reasonably necessary in making such service available within the -N 18- District and in operating the District, including but not limited to compliance with this Judgment. Except as required by the 1982 Act and as provided in Paragraph 18 below, the District shall adopt no Internal Pricing Rule in the future which imposes a water service charge for the water allocated to Area 1A and Area 1B which is greater than the price of water which the District is obligated to pay under the 1963 Contract, plus the appropriate District charges referred to in the preceding sentence. * * * 23. Judgment and Stipulation for Compromise Settlement Not a Contract. Neither this Judgment nor the Stipulation for Com- promise Settlement is a contract or an amendment to a contract with the Urited States as described in Section 203(a) of the 1982 Act. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2777%3A2. Public record. Not legal advice.