Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00167-TCW

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Filed 08/28/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________) OTAY MESA PROPERTY, L.P., et al.,

No. 06-167 L (and consolidated cases) Hon. Thomas C. Wheeler (Electronically Filed August 28, 2008)

UNITED STATES' STIPULATION TO LIABILITY FOR THE PLACEMENT OF SENSORS AS TO PARCELS 1, 3, 4, 5 AND 10 COMES NOW Defendant, UNITED STATES, and hereby stipulates as follows: 1. The real property which is subject to this stipulation is located in San Diego County,

California, more particularly described as follows: a. Parcel 1: The Southwest Quarter of the Northeast Quarter; the Northwest Quarter of the Southeast Quarter; the South Half of the Southeast Quarter (Government Lots 2 and 3), all in Section Township 18 South, Range 1 East, San Bernardino Meridian, in the County of San Diego, State of California, According To The Official Plat Thereof. Excepting therefrom that portion which lies Southerly and Southeasterly of the following described line:

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Beginning at the Southwest corner of said Government Lot 2; thence along the Westerly line thereof, North 0E 22' 17" West a distance of 150.57 feet; thence leaving the Westerly line of said Government Lot 2, North 78E 25' 41" East, 1172.29 feet to a pont of intersection with the northeasterly boundary of the 120 foot wide San Diego Gas & Electric Transmission Line Easement, being Point "X" herein; thence retracing along the last bearing, South 78E 25'41" West 1172.29 feet to a point on the westerly boundary of said Government Lot 2; thence continuing North 0E 22' 17" West along the westerly boundary thereof, a distance of 40.78 feet to the TRUE POINT OF BEGINNING herein; thence leaving the westerly line of said Government Lot 2, North 78E 25'41" East 895.70 feet; thence North 11E 34'19" West 60.00 feet; thence North 78E 25'52" East 243.69 feet to a point on the Northeasterly boundary of the aforementioned 120 foot wide San Diego Gas & Electric Company easement; thence South 25E 35' 49" East along the Northeasterly boundary of said 120 foot easement, 103.07 feet to the aforementioned point "X;" thence leaving the Northeasterly boundary of the said San Diego Gas & Electric easement, North 78E 25' 41" East 215.99 feet to an intersection with the easterly boundary of said Government Lot 2; thence North 84E 37' 51" East 1340.20 feet to a point on the Easterly boundary of said Government Lot 3, said point bearing North 0E 14' 04" East, 301.44 feet from the southeast corner thereof.

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b.

Parcel 3: The South Half of the Northwest Quarter; the South Half of the Northeast Quarter; the North Half of the Southwest Quarter; the North Half of the Southeast Quarter; and Government Lots 1, 2, 3, and 4 all in Section 33, Township 18 South, Range 1 East, San Bernardino Meridian, in the County of San Diego, State of California, According To The Official Plat Thereof. Also excepting all oil, gas, and other hydrocarbons; all non-hydrocarbon gases, or gaseous substances; all other minerals of whatever nature, without regard to similarity to the above-mentioned substances; and all other substances that may be produced therewith; And all geothermal resources, embracing indigenous steam, hot water, and hot brines, steam, and other gases, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into subsurface formations; heat or other associated energy found beneath the surface of the earth; and byproducts of any of the forgoing such as minerals (exclusive of oil or hydrocarbon gas that can be separately produced), which are found in solution or association with or derived from any of the foregoing; And all water rights, riparian rights, and claims to water, in any, appurtenant thereto; Together with the sole and exclusive right from time to time to bore or drill and maintain wells and other works into and through the Property and adjoining streets, roads and highways below a depth of two hundred fifty feet (250 feet)

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below the surface thereof for the purpose of exploring for and producing energy resources; the right to produce, inject, store, and remove from and through said bores, wells, works, oil, gas, water and other substances of whatever nature; and the right to perform below said depth any and all operations deemed by grantee necessary or convenient for the exercise of such rights, without interfering in any manner with surface or subsurface of the herein described land above a depth of two hundred fifty feet (250 feet) and without causing subsidence or removal of subjacent or lateral support, as granted to D & D Landholdings by Quitclaim Deed Recorded May 28, 2003 as file No 2003-0621073 Official Records, without the right of surface entry onto said land lying above a plane of 50 feet below the surface thereof, as relinquished by Quitclaim Deed recorded August 29, 2003, as file No. 2003-1058749 Official Records. c. Parcel 4: The Northeast Quarter of the Southeast Quarter and the East Half of the Northeast Quarter of Section 32; the Northwest Quarter of the Northwest Quarter of Section 33, all in Township 18 South, Range 1 East, San Bernardino Meridian, in the County of San Diego, State of California, According To The Official Plat Thereof. d. Parcel 5: The Southeast Quarter of the Northwest Quarter; the Southwest Quarter of the Northeast Quarter; and the Northeast Quarter of the Southwest Quarter, all in Section 32, Township 18 South, Range 1 East, San Bernardino Meridian, in the

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County of San Diego, State of California, according to the Official Plat thereof. e. Parcel 10: The South One Half of Section 29, the North Half of the Northwest Quarter and the Northwest Quarter of the Northeast Quarter of Section 32, all in Township 18 South, Range 1 East, San Bernardino Meridian, According To Official Plat Thereof, In The County of San Diego, State of California, Excepting therefrom that portion which lies within the East Half of the Southeast Quarter of Section 29. Also excepting therefrom that portion which lies within the land conveyed to Otay Hills LLC by deed recorded February 8, 2002 as instrument No. 20020114753 Official Records. 2. Pursuant to 8 U.S.C. Section 1357, U.S. Customs and Border Protection,

Department of Homeland Security, has authority to enter onto private property within twenty-five miles of any external boundary of the United States for the purposes of patrolling the border in order to prevent the illegal entry of aliens into the United States. 3. As part of its patrol of the border area, the Border Patrol has the need to place

seismic intrusion sensors (hereinafter, "sensors") at various underground locations on undeveloped property in the vicinity of the border for the purposes of apprehending aliens attempting illegal entry. These sensors are each approximately one cubic foot in size. Once buried in the ground, an approximately one foot long antenna extends above ground from the sensor. 4. In order to preserve the effectiveness of the sensors, the Border Patrol does not

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disclose the precise location of any sensors to non-Border Patrol personnel. 5. Defendant has installed the following 14 sensors on various parcels of Plaintiffs'

property on the following specified dates and locations: Sensor Numerical Designation 606-1 607-1 609-1 610-1 611-1 611-2 628-1 629-1 630-1 631-1 606-2 607-2 603-1 603-2 6. Date Installed September 2004 September 2005 November 2005 August 2004 August 2003 July 2005 September 2004 September 2004 April 1999 August 2003 October 2004 September 2005 September 2004 September 2004 Location Parcel 3 Parcel 4 Parcel 1 Parcel 4 On border between Parcels 4 & 1 Parcel 4 Parcel 1 Parcel 1 Parcel 3 Parcel 1 Parcel 5 Parcel 5 Parcel 10 Parcel 10

For purposes of the following cases only, Defendant hereby stipulates that by virtue

of its placement of the 14 sensors specified above on the listed parcels of land, it has taken a property interest in the nature of an easement over the parcel of land on which the sensors have been placed: Otay Mesa Property, L.P. v. United States, Case No. 06-167 L: Parcels 1, 3 and 5; and 6

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D & D Landholdings, L.P. v. United States, Case No. 06-877 L: Parcel 10. 7. This easement is more particularly described as follows: A perpetual and assignable easement to locate, construct, operate, maintain and repair or replace the specified underground seismic intrusion sensors on the specified parcels, including the right to ingress and egress to each sensor location. The easement shall be deemed to have commenced on the date the sensor is listed as having been installed, and will continue until the sensor is no longer needed or the property is developed. Each sensor is and shall be located so as to not affect the functionality of the property. Should the landowner desire to develop any portion of the subject parcel, the sensor will be removed or redeployed upon 30 days written notice that a grading permit has been issued by the County of San Diego permitting development of all or a portion of the property. Upon removal of a sensor, the portion of the easement relating to that sensor shall terminate. This easement is subject to existing easements for public roads, highways, public utilities, railroads and pipelines. This easement reserves to the landowner, his heirs, executors, administrators, successors and assigns such rights and privileges as may be used and enjoyed without interfering with or abridging the rights of the easement being

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acquired. No rights other than those specifically enumerated in this paragraph are being acquired. 8. The United States does not intend that this stipulation affect any property interests

other than those specifically enumerated herein. The United States makes this stipulation as to these cases only, and specifically disclaims its use as precedent or argument in any other case. Dated: August 28, 2008. Ronald J. Tenpas Assistant Attorney General Environment & Natural Resources Division

____s/ Susan V. Cook_______________ Susan V. Cook, Senior Attorney Natural Resources Section Environment & Natural Resources Division Department of Justice P.O. Box 663 Washington, D.C. 20044 (202) 305-0470 phone (202) 305-0506 fax Attorney for Defendant and Designated Representative of the Attorney General

IT IS SO ORDERED. 8

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Dated: ______________________

_____________________________ Thomas C. Wheeler Judge 492570.1

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