Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 1 of 21

IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE RICHARD A. FORSGREN REVOCABLE LIVING FAMILY PRESERVATION TRUST: CLAYTA FORSGREN, RICHARD A. FORSGREN, RICHARD E. FORSGREN, TERRI LYNN HAGER, and BARBARA ANN THOMPSON, TRUSTEES ) ) ) ) ) ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ________________________________________ )

No. 07-14 L Hon. Margaret M. Sweeney

ANSWER TO COMPLAINT Defendant, the United States, hereby submits its Answer to the Complaint, responding to each paragraph as numbered by Plaintiff as follows: 1. The allegations of the first sentence of paragraph 1 are a characterization of Plaintiff's case to which no response is required. To the extent that a response is deemed required, the United States denies that it has taken Plaintiff's property. The allegations of the second sentence of paragraph 1 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. In response to the third sentence of paragraph 1, Defendant admits that the modification of the CCC Ponds involved providing a more stable source of water for the ponds, and denies that water was restored to previously constructed but nonfunctional impoundment areas. In response to the fourth sentence of paragraph 1, Defendant denies that Plaintiff began to experience significant flooding in 1995, and avers that Plaintiff's property was subject to flooding before 1995. In response to the allegations of the fifth sentence of paragraph 1, Defendant is without knowledge or information sufficient to form a belief as to the truth of the

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 2 of 21

allegations and, therefore, they are denied. In response to the sixth sentence of paragraph 1, Defendant admits that a subsurface drain was installed on federal land managed by the Bureau of Land Management ("BLM") in 1999, and Defendant denies the remaining allegations of the sixth sentence and avers that other non-federal entities participated in the construction of the subsurface drain in 1999. In response to the seventh sentence of paragraph 1, Defendant admits that the subsurface drain was reported to be functioning properly in January 2000, and Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the seventh sentence of paragraph 1, and, therefore, they are denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the eighth sentence of paragraph 1 and, therefore, they are denied. 2. The allegations of the first sentence of paragraph 2 are conclusions of law to which no response is required; to the extent that matters of fact are alleged, they are denied. In response to the allegations of the second sentence of paragraph 2, Defendant admits that the referenced subsurface drain diverted water away from Plaintiff's property, but Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the second sentence of paragraph 2. The allegations of the third sentence of paragraph 2 are conclusions of law to which no response is required; to the extent that matters of fact are alleged, they are denied. 3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3 and, therefore, they are denied. 4. In response to the allegations of the first sentence of paragraph 4, Defendant admits that a subsurface drain was installed on federal land in 1999, and denies that the subsurface drain

-2-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 3 of 21

was installed solely at the federal government's expense, and avers that other, non-federal, entities participated in the funding and construction of the subsurface drain. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the first sentence of paragraph 4 and, therefore, they are denied. In response to the allegations of the second sentence of paragraph 4, Defendant admits that the subsurface drain diverted water away from Plaintiff's property, but Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the second sentence of paragraph 4 and, therefore, they are denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the third and fourth sentences of paragraph 4 and, therefore, they are denied. 5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 5 and, therefore, they are denied. 6. The allegations of paragraph 6 are conclusions of law to which no response is required. To the extent that a response is deemed required, the allegations of paragraph 6 are denied. Defendant specifically denies that there has been an uncompensated taking of private property. 7. Paragraph 7 contains conclusions of law to which no response is required. The United States admits that 28 U.S.C. § 1491 is the principal statute conferring jurisdiction on the United States Court of Federal Claims to hear Fifth Amendment takings claims. 8. Paragraph 8 contains a characterization of Plaintiff's case to which no response is required. 9. Defendant admits that venue lies in this court based on Plaintiff's allegation that it has

-3-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 4 of 21

been damaged in excess of $10,000. 10. Defendant admits that the property at issue at 99 Riverside Drive in Pinedale, Wyoming, which is approximately 1,000 feet from an area known as the CCC Ponds Project. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 10 and, therefore, they are denied. 11. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 11 and, therefore, they are denied. 12. The United States admits that the Forest Service is a government agency within the Department of Agriculture responsible for managing federal lands within the National Forest System. The remaining allegations are conclusions of law to which no response is required. 13. The United States admits that the BLM is a government agency within the Department of the Interior responsible for managing certain federal lands. The remaining allegations in paragraph 13 are conclusions of law to which no response is required. 14. Admitted. 15. Defendant admits that, in 1944, the Highland Irrigation canal was rerouted to an area along the east side of the ponds. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 15 and, therefore, they are denied. 16. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the first and second sentences of paragraph 16 and, therefore, they are denied. In response to the allegations of the third sentence of paragraph 16, Defendant admits that the property at issue in this litigation is located approximately 1,000 feet from the CCC

-4-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 5 of 21

Ponds. 17. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 17 and, therefore, they are denied. 18. In response to the allegations of the first sentence of paragraph 18, Defendant admits that Plaintiff's property generally lies to the west of the CCC Ponds, and Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation that the Forsgren property lies to the west of the largest pond. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the second sentence of paragraph 18 and, therefore, they are denied. 19. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 19 and, therefore, they are denied. 20. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 20 and, therefore, they are denied. 21. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 21 and, therefore, they are denied. 22. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 22 and, therefore, they are denied. 23. Defendant denies the allegations of the first and second sentences of paragraph 23. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in the third sentence of paragraph 23 and, therefore, they are denied. 24. Defendant admits that, in 1993, representatives from the Forest Service, BLM, Sublette County Conservation District, the Wyoming Fish and Game Department, the Soil

-5-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 6 of 21

Conservation Service, and the Town of Pinedale, among others, met to discuss developing the CCC Ponds for outdoor classrooms, fish habitat, wetlands and fisherman access. 25. In response to the allegations of the first sentence of paragraph 25, Defendant admits that Mr. Forsgren spoke at a meeting held on June 22, 1993 and voiced concerns about the CCC Ponds Project. In response to the allegations of the second sentence of paragraph 25, Defendant admits that a Natural Resource Conservation Service ("NRCS") geologist visited the Forsgren property on August 26 and 27, 1993. In response to the allegations of the third sentence of paragraph 25, Defendant admits that the Soil Conservation Service is the predecessor of the Natural Resources Conservation Service. In response to the allegations of the fourth sentence of paragraph 25, Defendant admits that three monitoring wells were installed at or near the Forsgren property on or about August 26 and 27, 1993, and denies that five test holes were dug out in August 1993. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the fifth and sixth sentences of paragraph 25 and, therefore, they are denied. 26. In response to the first sentence of paragraph 26, Defendant admits that, in April 1994, the Forest Service and BLM issued an Environmental Assessment ("EA") on a proposed CCC Ponds Project for public comment. In response to the allegations of the second sentence of paragraph 26, Defendant denies that the proposed action involved the reconstruction of previously nonfunctional water impoundment facilities. In response to the allegations of the third sentence of paragraph 26, Defendant admits that the project anticipated providing a more reliable source of water to the CCC Ponds on a year-round basis, and denies the remaining allegations of the third sentence of paragraph 26.

-6-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 7 of 21

27. In response to the allegations of the first sentence of paragraph 27, Defendant admits that the apparent northernmost CCC Pond was approximately 4.5 acres in size prior to 1995, and denies the remaining allegations of the first sentence of paragraph 27. Defendant admits the allegations of the second sentence of paragraph 27. Defendant denies the allegations of the third sentence of paragraph 27. In response to the allegations of the fourth sentence of paragraph 27, Defendant admits that there is a small, one-acre pond which lies generally to the northwest of the project area, and avers that this pond was created and has been maintained by beavers. In response to the allegations of the fifth sentence of paragraph 27, Defendant admits that certain land surrounding the project is managed by either the Forest Service or the BLM. 28. In response to the allegations of the first sentences of paragraph 28, Defendant admits that the Forest Service and BLM provided technical assistance for the CCC Ponds Project, admits that BLM contributed funding for the CCC Ponds Project, and denies that the Forest Service contributed funding for the CCC Ponds Project. In response to the second sentence of paragraph 28, Defendant admits that the Forest Service and BLM made land available for the CCC Ponds Project. Defendant denies the allegations of the third sentence of paragraph 28. 29. The allegations of paragraph 29 are admitted to the extent they are consistent with the provisions of the April 1994, Environmental Assessment ("EA") referenced therein, and the Court is respectfully referred to that document which is the best evidence of its contents. 30. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 30 and, therefore, they are denied. 31. In response to the first sentence of paragraph 31, Defendant denies that the Record of Decision for the EA was issued on August 8, 1994, and avers that a "Decision Notice and -7-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 8 of 21

Finding of No Significant Impact for CCC Ponds Project," was signed on August 10, 1994. In response to the second sentence of paragraph 31, Defendant denies that all of the CCC Ponds were reconstructed and recharged with water in the spring of 1995, and Defendant avers that a more reliable source of water was established for certain of the CCC Ponds in the spring of 1995. 32. Defendant denies that Dick Forsgren reported the first occurrence of water problems on the property at a meeting held on September 27, 1995. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 32 and, therefore, they are denied. 33. The allegations of the first sentence of paragraph 33 are admitted. Defendant denies the allegations of the second, third and fourth sentences of paragraph 33. 34. In response to the allegations of the first sentence of paragraph 34, Defendant admits that a possible source of flooding was groundwater percolating and seeping from Pine Creek onto the Forsgren property. In response to the allegations of the second sentence of paragraph 34, Defendant admits that Pine Creek constitutes the northen boundary of at least a portion of the Forsgren property line. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 34 and, therefore, they are denied. 35. Denied. 36. The allegations of paragraph 36 characterize a November 14, 1995 memorandum from P. Stan Mitchem, EcoRegional Geologist, NRCS, to Duane D. Klamm, NRCS, regarding Mr. Mitchem's visits to the Forsgren property, and the Court is respectfully referred to that document which is the best evidence of its contents. Defendant specifically denies that the allegations of paragraph 36 accurately characterize the NRCS geologist's conclusions. -8-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 9 of 21

37. In response to the first sentence of paragraph 37, Defendant denies the existence of a problem of excess surface water runoff from the stratified layer in the impoundment berm, and Defendant admits the remaining allegations of the first sentence of paragraph 37 to the extent that they are consistent with the November 14, 1995 memorandum of the NRCS geologist's visits to the Forsgren property, and the Court is respectfully referred to that document which is the best evidence of its contents. In response to the allegations of the second sentence, Defendant admits that the drain proposed would have been installed on BLM land, and Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the second sentence of paragraph 37 and, therefore, they are denied. 38. The allegations of paragraph 38 are admitted to the extent that they are consistent with the minutes of a CCC Ponds Committee meeting held on December 11, 1995, and the Court is respectfully referred to that document which is the best evidence of its contents. 39. In response to the allegations of the first sentence of paragraph 39, Defendant admits that the Forsgrens agreed to allow the ditch to be installed on their property. In response to the allegations of the second sentence of paragraph 39, Defendant admits that in June 1996, Dick Forsgren pursued permits from the U.S. Army Corps of Engineers for a surface ditch and outlet drain. In response to the allegations of the third sentence of paragraph 39, Defendant admits that a drainage ditch was constructed in the fall of 1996, and Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in the third sentence of paragraph 39 and, therefore, they are denied. In response to the allegations of the fourth sentence of paragraph 39, Defendant admits that the open ditch was constructed with an outlet drain to carry water to Pine Creek. In response to the allegations of the fifth sentence of paragraph 39, they are admitted to the extent they are consistent with a November -9-

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 10 of 21

16, 1996 memorandum prepared by Mr. Daryle Bennett, District Conservationist, NRCS, to Lynn Cornia, State Irrigation Engineer, and respectfully refers the Court to that document which is the best evidence of its contents. 40. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the first sentence of paragraph 40 and, therefore, they are denied. Defendant admits the allegations of the second sentence of paragraph 40. Defendant denies the allegations of the third sentence of paragraph 40. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the fourth and fifth sentences of paragraph 40 and, therefore, they are denied. 41. The allegations of the first, second and third sentences of paragraph 41 characterize a May 20, 1997 letter from Mr. Forsgren to Mr. Jack T. Doyle of the CCC Ponds Committee, and Defendant respectfully refers the Court to that document which is the best evidence of its contents. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the fourth sentence of paragraph 41 and, therefore, they are denied. 42. Defendant admits that the Sublette County Assessor Janet Montgomery lowered the assessed value of the Forsgren property in June 1997, but Defendant denies that Ms. Montgomery cited water problems as the reason for the reduction in the assessed property value. 43. Defendant admits the allegations of the first sentence of paragraph 43. The allegations of the second through fourth sentences characterize an August 26, 1997 memorandum from Mr. P. Stan Mitchem, Engineering Geologist, NRCS, to Mr. Daryle Bennett, District Conservationist, NRCS; and Defendant admits these allegations to the extent they are consistent with that memorandum, and respectfully refers the Court to that document which is the best evidence of its contents. - 10 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 11 of 21

44. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 44 and, therefore, they are denied. 45. The allegations of paragraph 45 characterize an August 29, 1997 letter from Mr. Daryle Bennett, District Conservationist, NRCS, to Mr. and Mrs. Forsgren; and Defendant admits the allegations of paragraph 45 to the extent that they are consistent with that letter, and respectfully refers the Court to that document which is the best evidence of its contents. 46. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 46 and, therefore, they are denied. 47. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 47 and, therefore, they are denied. 48. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the first sentence of paragraph 48 and, therefore, they are denied. The allegations of the second sentence of paragraph 48 characterize a February 11, 1999 letter from Mrs. Forsgren to Leslie Theiss, BLM; and Defendant admits the allegations of the second sentence of paragraph 48 to the extent they are consistent with that letter, and respectfully refers the Court to that document which is the best evidence of its contents. 49. In response to the first sentence of paragraph 49, Defendant admits that representatives of the BLM, Forest Service and Ponds Committee met with Mrs. Forsgren on February 12, 1999 to discuss her complaint of water problems on the property; Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the first sentence of paragraph 49 and, therefore, they are denied. In response to the allegations of the second sentence of paragraph 49, Defendant admits that, during this February 12, 1999 meeting, the attendees discussed the possible installation of a subsurface - 11 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 12 of 21

drain; Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the second sentence of paragraph 49 and, therefore, they are denied. 50. In response to the first sentence of paragraph 50, Defendant admits that at least four options were discussed in May 1999. In response to the second sentence of paragraph 50, Defendant admits that the alternatives discussed included taking no action and the installation of a subsurface drain, and Defendant denies the remaining allegations of the second sentence of paragraph 50. Defendant avers that the subjects of the May 1999 discussion are reflected in a "Meeting Agenda," for a meeting held on May 25, 1999, and a May 20, 1999, "Cost Estimates for Surface Water Relief Alternatives Onto Forsgren Property," and Defendant respectfully refers the Court to those documents which are the best evidence of their contents. 51. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 51 and, therefore, they are denied. 52. The allegations of paragraph 52 characterize a June 17, 1999 letter from Mrs. Forsgren to "Soil Conservation"; Defendant admits the allegations of paragraph 52 to the extent they are consistent with that letter, and respectfully refers the Court to that document which is the best evidence of its contents. 53. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 53 and, therefore, they are denied. 54. Defendant admits the allegations of paragraph 54 to the extent they are consistent with the September 1999, Environmental Assessment referenced therein, and respectfully refers the Court to that document which is the best evidence of its contents. 55. In response to the first sentence of paragraph 55, Defendant admits that the Forest Service and BLM contributed materials or technical assistance in conjunction with the - 12 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 13 of 21

subsurface drain project; and Defendant avers that non-federal entities also contributed materials, technical assistance, and labor for the subsurface drain project. In response to the second sentence of paragraph 55, Defendant admits that both the Forest Service and BLM granted a right of way for the subsurface drain. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the third sentence of paragraph 55 and, therefore, they are denied. 56. Admitted. 57. In response to the first sentence of paragraph 57, Defendant admits that, pursuant to an express license granted by Plaintiff, Defendant temporarily used a portion of Plaintiff's property for the purpose of constructing a subsurface drain. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the second and third sentences of paragraph 57 and, therefore, they are denied. 58. In response to the first sentence of paragraph 58, Defendant admits that the subsurface drain was reported to be functioning properly at a CCC Ponds Project meeting held on January 13, 2000, and Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the first sentence of paragraph 58. Defendant denies the allegations of the second sentence of paragraph 58, and avers that nonfederal entities participated in the funding and construction of the subsurface drain. 59. Defendant admits that a portion of the subsurface drain is located on BLM land, and that the subsurface drain is located approximately twenty yards to the east of the Forsgren property. 60. Defendant admits that Plaintiff requested that the federal government perform work on the subsurface drain installed in 1999, however, Defendant denies the allegations of - 13 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 14 of 21

paragraph 60 to the extent that they imply that maintenance on the subsurface drain was necessary or that the government refused to perform work it had a duty to perform. Defendant is without knowledge or information sufficient to form a belief as to the truth of any remaining allegations contained in paragraph 60 and, therefore, they are denied. 61. Defendant denies that the drain stopped functioning in 2005 and required maintenance. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations asserted in paragraph 61 and, therefore, they are denied. 62. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 62 and, therefore, they are denied. 63. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 63 and, therefore, they are denied. 64. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations asserted in paragraph 64 and, therefore, they are denied. 65. Defendant admits that Plaintiff, through counsel, Peter Young of Schwartz, Bon, Walker & Studer, LLC, filed a complaint in the United States District Court for the District of Wyoming on July 28, 2003, denies that the action was captioned Forsgren v. United States, and avers that the action was captioned, Forsgren v. Board of County Commissioners of Sublette County, Wyoming, No. 03-CV-1040-B. 66. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 66. 67. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 67. 68. Defendant admits that the U.S. District Court for the District of Wyoming issued a - 14 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 15 of 21

"Notice of Impending Dismissal," on February 18, 2004, and the Court is respectfully referred to that document which is the best evidence of its contents. Defendant avers that the action filed in the United States District Court for the District of Wyoming was captioned, Forsgren v. Board of County Commissioners of Sublette County, Wyoming, No. 03-CV-1040-B. 69. In response to the allegations of paragraph 69, Defendant admits that the Wyoming District Court issued an order of dismissal in the action captioned, Forsgren v. Board of County Commissioners of Sublette County, Wyoming, No. 03-CV-1040-B on August 16, 2004. 70. Defendant admits that Plaintiff filed a complaint in this Court on July 27, 2004 (No. 04-1223 L). 71. The allegations of paragraph 71 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 72. Defendant admits that this Court issued an Opinion and Order dismissing Plaintiff's 2004 complaint on September 27, 2006. The grounds for the dismissal are as set forth in the Court's September 27, 2006 opinion, and the Court is respectfully referred to that opinion, which is the best evidence of its contents. 73. Defendant admits that Plaintiff filed a Motion for Reconsideration on October 12, 2006, and the Court is respectfully referred to that motion, which is the best evidence of its contents. 74. Defendant admits that the Court issued an Opinion and Order on Reconsideration on November 15, 2006, and the Court is respectfully referred to that opinion, which is the best evidence of its contents. 75. The allegations of the first, fourth and sixth sentences of paragraph 75 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, - 15 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 16 of 21

they are denied. In response to the second and third sentences of paragraph 75, Defendant admits that if filed a motion to dismiss Plaintiff's 2004 complaint on October 25, 2004 and did not at that time raise section 1500 as grounds to dismiss, and admits that this Court issued an Opinion on Defendant's October 25, 2004 motion on March 21, 2005. In response to the fifth sentence of paragraph 75, Defendant denies that it first raised section 1500 as an issue with Plaintiff when it filed a second motion to dismiss on April 28, 2006, and avers that Defendant raised the issue regarding section 1500 with Plaintiff on November 18, 2005. 76. The allegations of paragraph 76 are admitted to the extent they are consistent with the Fifth Amendment of the U.S. Constitution. 77. The allegations of paragraph 77 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 78. The allegations of paragraph 78 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 79. The allegations of paragraph 79 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 80. The allegations of paragraph 80 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 81. The allegations of paragraph 81 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 82. Defendant reasserts its responses to paragraphs 1 through 81 as if fully stated herein. 83. The allegations of paragraph 83 are conclusions of law to which no response is required; to the extent that matters of fact are alleged, they are denied. Defendant specifically denies it has taken Plaintiff's property. - 16 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 17 of 21

84. Defendant admits that the Plaintiff has not granted Defendant an express flowage easement across it's property; Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations asserted in paragraph 84 and, therefore, they are denied. 85. Denied. 86. Denied. 87. The allegations of paragraph 87 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 88. Defendant denies the allegations of the first sentence of paragraph 88, and avers that Plaintiff's property flooded before 1995. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the second, third and fourth sentences of paragraph 88 and, therefore, they are denied. 89. The allegations of paragraph 89 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 90. The allegations of paragraph 90 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 91. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 91 and, therefore, they are denied. 92. The allegations of paragraph 92 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 93. In response to the first sentence of paragraph 93, Defendant admits that heavy equipment was driven over the Forsgren property during the construction of the subsurface drain, and avers that Plaintiff granted an express license to Defendant to bring equipment onto the - 17 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 18 of 21

property. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the second sentence of paragraph 93. The allegations of the third sentence of paragraph 93 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 94. The allegations of paragraph 94 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 95. The allegations of paragraph 95 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 96. The allegations of paragraph 96 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 97. The allegations of paragraph 97 are argument and conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 98. Defendant reasserts its responses to paragraphs 1 through 97 as if fully stated herein. 99. The allegations of paragraph 99 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. Defendant specifically denies that it has taken Plaintiff's property. 100. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 100 and, therefore, they are denied. 101. Defendant admits Plaintiff requested that the federal government perform work on the subsurface drain installed in 1999, however, Defendant denies the allegations asserted in paragraph 101 to the extent that they imply that maintenance work on the subsurface drain was required or necessary and that the government refused to perform maintenance that it had a duty to perform. Defendant is without knowledge or information sufficient to form a belief as to the - 18 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 19 of 21

truth of any remaining allegations contained in paragraph 101 and, therefore, they are denied. 102. The allegations of paragraph 102 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 103. The allegations of paragraph 103 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. Defendant specifically denies that it has taken Plaintiff's property. 104. The allegations of paragraph 104 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. 105. The allegations of paragraph 105 are conclusions of law to which no response is required; to the extent matters of fact are alleged, they are denied. Plaintiff's Request for Relief: Defendant denies that Plaintiff is entitled to any of the relief requested. General Denial: Any allegations not specifically admitted or otherwise responded to are hereby denied. AFFIRMATIVE DEFENSES FIRST DEFENSE This Court lacks jurisdiction over this action, which is time-barred under the applicable statute of limitations, 28 U.S.C. § 2501, as it fails to assert a new cause of action but, rather, arises from or is grounded upon the 1995 modifications to the CCC Ponds. SECOND DEFENSE Plaintiff fails to state a claim upon which relief can be granted. THIRD DEFENSE Plaintiff's claims are barred in whole or in part by acquiescence or waiver. - 19 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 20 of 21

FOURTH DEFENSE This Court lacks jurisdiction over the subject matter of this action, which is grounded in tort. FIFTH DEFENSE Plaintiff's action is barred in whole or in part by the doctrine of laches.

WHEREFORE, Defendant respectfully requests that this Court enter an order: 1. Dismissing the complaint with prejudice; 2. Assessing the costs of this litigation against plaintiff; and 3. Granting such other relief as the Court may deem just and proper.

// // // // // // // // // // //

- 20 -

Case 1:07-cv-00014-MMS

Document 27

Filed 06/16/2008

Page 21 of 21

Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

/s/ Bruce K. Trauben BRUCE K. TRAUBEN Environment & Natural Resources Division Natural Resources Section United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Tel.: (202) 305-0238 Fax: (202) 305-0506

OF COUNSEL: Steven M.K. Hoffman Attorney Office of the Solicitor Rocky Mountain Regional Office U.S. Dept. of Interior 755 Parfet Street, Room 151 Lakewood, Colorado 80215

Diane M. Connolly Attorney Office of the General Counsel Mountain Region U.S. Dept. of Agriculture Post Office Box 25005 Lakewood, Colorado 80225

Dated: June 16, 2008

- 21 -