-VPC United States of America v. 753.95 Acres of Land, more or less, in Washoe County, Nevada, etc., No. 3:2008cv00386 - Document 480 (D. Nev. 2011)
Court Description: FINAL JUDGMENT APPROVING 479 STIPULATION OF SETTLEMENT. Signed by Judge James C. Mahan on 12/15/2011. (Copies have been distributed pursuant to the NEF - DRM)
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-VPC United States of America v. 753.95 Acres of Land, more or less, in Washoe County, Nevada, etc. 1 2 3 Doc. 480 DANIEL G. BOGDEN United States Attorney GREG ADDINGTON Assistant United States Attorney Bar No. 6875 4 5 6 7 8 9 MICHAEL J. KRAINAK MICHAEL K. BAKER United States Department of Justice Environment & Natural Resources Division P.O. Box 561, Ben Franklin Station Washington, DC 20044 Phone: (202) 514-4485 Fax: (202) 305-0398 Attorneys for the United States 10 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 12 13 UNITED STATES OF AMERICA Plaintiff, Case No. 3:08-CV-00386-JCM-VPC 14 15 16 17 18 v. STIPULATION OF SETTLEMENT 753.95 ACRES OF LAND, MORE OR LESS, IN WASHOE COUNTY, NEVADA and INCLINE LAKE CORPORATION, et al. Defendants. 19 20 Plaintiff United States of America and all defendants to this action, each by and through 21 its/his/her counsel of record, except for James McBride, pro se, who also joins herein, 22 23 respectfully submit this Stipulation reflecting a settlement agreement as to the just compensation 24 to be paid for the subject property. This Stipulation fully resolves the above-titled action. The 25 parties request an order of final judgment in accord with the following stipulations: 26 1. This stipulation concerns approximately 754 acres of real property located in 27 28 Washoe County, Nevada, as more particularly described in the Declaration of Taking filed herein 1 Dockets.Justia.com 1 (the “Property”). The leased fee of the Property was formerly owned by Incline Lake 2 Corporation (“ILC”). 3 2. ILC acquired the Property in 1939. While ILC owned the Property, ILC issued a 4 5 series of 99-year restricted leases in portions of the Property to various ILC shareholders. The 6 former owners of 32 of these leasehold interests (the “Leasehold Interests”) are individual 7 defendants in this action and will be collectively referred to herein as the “Former Leaseholders”. 8 3. Beginning in 2005, ILC entered into discussions with the United States about the 9 possibility of selling the Property to the United States Forest Service. 10 11 4. According to the defendants, in July and August of 2008, all Former Leaseholders 12 except the MacLean Trust and Hawley MacLean negotiated with ILC for the value of their 13 Leasehold Interests and as a result of such negotiations entered into a Deposit Distribution and 14 Leasehold Assignment Agreement (“Deposit Distribution Agreement”) with ILC. Pursuant to 15 16 these agreements, the Former Leaseholders assigned their Leasehold Interest(s) to ILC and 17 negotiated a value and compensation that each would receive for their Leasehold Interests upon 18 payment from the United States Forest Service for the Property. 19 20 5. According to the defendants, in addition to the Deposit Distribution Agreements, on August 3, 2007, ILC entered into a Settlement, Release and Purchase Agreement with the 21 22 MacLean Trust. (“MacLean Settlement Agreement”). According to the defendants, on August 23 14, 2009, Hawley MacLean entered into a Consent to Distribution (“Consent to Distribution”) 24 with ILC. 25 6. 26 According to the defendants, pursuant to the Deposit Distribution Agreements, the MacLean Settlement Agreement, and the Consent to Distribution, ILC and the Former 27 28 Leaseholders negotiated and agreed that in the event the Property was sold, each Leasehold 2 Ca 1 Interest would be valued the same as all other Leasehold Interests, and that each Former 2 Leaseholder would be entitled to an initial payment of $1 million per Leasehold Interest from the 3 Deposit (hereinafter defined), with each Former Leaseholder to share equally in any additional 4 5 6 payments made by the United States for the full value of the Property. 7. ILC was unable to agree with the United States on a purchase price for the 7 Property. Accordingly, ILC and the United States agreed that the United States would acquire 8 the Property, pursuant to the Southern Nevada Public Land Management Act of 1998 (112 Stat. 9 2343 et seq.), 7 U.S.C. § 428a (the “Act”) and 40 U.S.C. §§ 3113-3114. 10 11 8. The United States agreed to purchase, and defendant ILC agreed to sell, and to 12 bind all the other defendants hereto to sell, the Property pursuant to the terms and conditions of 13 that certain Land Acquisition Agreement, dated May 16, 2008 (the “Agreement”). 14 9. The United States is authorized to acquire the subject property, with the consent 15 16 of the owner, pursuant to the Southern Nevada Public Land Management Act of 1998 (112 Stat. 17 2343 et seq.), 7 U.S.C. § 428a (the “Act”) and 40 U.S.C. §§ 3113-3114. As provided by the 18 Agreement, and in accordance with § 5(c) of the Act, ILC and the United States agreed to the 19 commencement of the instant action as the means to transfer the Property and to determine its 20 fair market value. Agreement at ¶ III A-C. 21 22 10. On July 14, 2008, the United States initiated the instant condemnation action in 23 the United States District Court for the District of Nevada, captioned as United States of America 24 v. 735.95 Acres of Land, et al., Case No. 3:08-vc-00386-JCM-VPC (the “Condemnation 25 Action”). 26 11. When the United States initiated the Condemnation Action, it filed a Declaration 27 28 of Taking and subsequently on July 29, 2008, deposited $46 million into the Registry of the 3 1 Court, as provided in the Agreement (“the Deposit”). Upon the making of the Deposit into the 2 Registry of the Court, title to the Property, as set forth in the Declaration of Taking, vested in the 3 United States. 4 5 12. On August 11, 2008, ILC filed in the Condemnation Action a Motion for 6 Forthwith Disbursement of Deposit (“Motion to Disburse” – Doc. No. 42). As represented in its 7 Motion to Disburse, ILC sought disbursement of the Deposit to it so that ILC could make further 8 disbursements to the other defendants in the amount of $1,000,000 for each of their former 9 leasehold interests in the Property. According to ILC, this disbursement was in accord with 10 11 agreements by and among ILC and other defendants to this action. The Motion to Disburse also 12 provided that ILC would set aside $1,000,000 in escrow to pay for performance of certain of 13 ILC’s obligations under the Agreement. The United States filed a Response In Support of 14 Defendant Incline Lake’s Motion For Disbursement of Deposit (Doc. No. 67). Said Response 15 16 was filed in accordance with the Agreement, which provides that the United States will not 17 contest or oppose any distribution or disbursement of the Deposit. Doc. No. 67 at ¶ 9. On 18 September 9, 2008, the court in this action granted the Motion to Disburse (the “Disbursement 19 Order” – Doc. No. 75). In the Disbursement Order, the Court ordered disbursement of the entire 20 deposit to ILC, subject to the obligations to make the additional disbursements of the Deposit to 21 22 other defendants as spelled out in the Motion to Disburse. According to the defendants, the 23 Deposit was initially disbursed to ILC subject to ILC’s contractual obligations to further disburse 24 to the Former Leaseholders $32 million of the Deposit for the Leasehold Interests. According to 25 the defendants, ILC has disbursed to the Former Leaseholders $32 million of the Deposit. 26 13. ILC and the Former Leaseholders contend that the fair market value of the 27 28 Property on July 29, 2008 was more than the amount of the Deposit, and therefore they are 4 1 entitled to additional just compensation for their property interests that were acquired by the 2 United States. The United States contends that the fair market value of the Property on July 29, 3 2008 was less than the amount of the Deposit, and therefore it is entitled to return of any 4 5 6 overpayment. It is the intention of all parties to fully resolve the dispute regarding just compensation by this Stipulation. 7 8 14. In order to settle the Condemnation Action, the parties agree that $43,500,000, inclusive of interest, represents the full just compensation payable by the United States for its 9 acquisition of the Property pursuant to the Agreement. 10 15. 11 Defendants have negotiated among themselves the appropriate distribution of 12 $43,500,000 as payment for their various former interests in the Property as follows: (a) 13 $1,000,000 to each Former Leaseholder for each former leasehold interest in the Property 14 formerly owned by such defendant; and (b) the remainder to ILC. 15 16. 16 The $46,000,000 deposit represents an overpayment of $2,500,000 for the 17 Property. Within five days after the entry of judgment in this case, $2,500,000 shall be returned 18 by ILC to the Registry of the Court in restitution to the United States of the overpayment. The 19 parties hereto agree to entry of final judgment disbursing said sum immediately to the United 20 States. 21 22 23 24 25 26 17. The parties shall be responsible for their own legal fees, costs and expenses (including attorneys’ fees, consultants’ fees, appraisers’ fees, and any other expenses). 18. The parties consent to the entry of all orders and judgments necessary to effectuate this Stipulation of Settlement and to bear their own costs and attorneys’ fees. 19. Defendants warrant to their knowledge that they were the sole owners of the 27 28 Property at the date of the acquisition, and that they have the exclusive right to just compensation 5 1 herein, and that no other party is entitled to the compensation or any part thereof by reason of 2 any recorded or unrecorded agreement executed by the defendants. 3 20. The U.S. Forest Service will cause a trail on the subject property to be named in 4 5 memory of Norman H. Biltz. 21. 6 The U.S. Forest Service will engage in a public process in accordance with the 7 National Environmental Policy Act of 1969 (42 U.S.C. § 4321(note)), and its implementing 8 regulations at 40 CFR § 1500, regarding the disposition of the existing dam and former reservoir 9 on the Property. 10 22. 11 Upon restitution to the United States of the $2,500,000 overpayment, the United 12 States releases the defendants and the defendants release the United States from any and all 13 claims relating to the payment of just compensation to the defendants for the United States’ 14 acquisition of the Property. The Joint Stipulation Concerning Remediation of Hazardous 15 16 17 18 19 20 Materials and Completion of Post DT Work filed herein (Doc. No. 294) remains in full force and effect. 23. The parties hereto will take no appeal from any ruling or judgments made by the Court in this action. 24. Undersigned counsel for the United States of America files this Stipulation on 21 22 23 behalf of all parties with consent of defendants and their counsel. All parties agree that this Stipulation may be executed in counterparts. 24 25 26 WHEREFORE, the parties request that the Court enter the attached proposed Final Judgment Approving Stipulation of Settlement. 27 28 6 1 Respectfully submitted, 2 GREG ADDINGTON Assistant United States Attorney Bar No. 6875 3 4 5 DANIEL G. BOGDEN United States Attorney Date: December 14, 2011 /s/Michael J. Krainak MICHAEL J. KRAINAK MICHAEL K. BAKER United States Department of Justice Environment & Natural Resources Div. P.O. Box 561, Ben Franklin Station Washington, DC 20044 Date: December 14, 2011 14 /s/ Todd Miller J. STEPHEN PEEK TODD MILLER Holland and Hart, LLP 5441 Kietzke Lane, 2nd Floor Reno, NV 89511 15 Attorneys for Incline Lake Corporation 6 7 8 9 10 11 12 13 16 17 Date: December 14, 2011 18 19 /s/ James McBride (By Michael Krainak) JAMES MCBRIDE PO Box 190 Glen Ellen, CA 95442 Pro Se Defendant 20 21 22 23 24 25 26 Date: December 14, 2011 /s/ Mark H, Gunderson MARK H. GUNDERSON CATHERINE REICHENBERG Gunderson Law Firm 3895 Warren Way Reno, NV 89509 Attorneys for all other defendants 27 28 7 CERTIFICATE OF SERVICE 1 2 3 I HEREBY CERTIFY that the foregoing document is being served in accordance with Fed. R. Civ. P. 71.1 on all counsel of record or pro se parties identified below by United States Mail unless otherwise specified on December 15, 2011. 4 /s/ Michael J. Krainak 5 6 7 8 9 10 11 Incline Lake Corporation c/o J. Stephen Peek Holland and Hart, LLP 5441 Kietzke Lane, 2nd Floor Reno, NV 89511 Automatically served via cmecf James McBride PO Box 190 Glen Ellen, CA 95442 12 13 14 15 16 17 MacLean Marital Trust u/t/d October 5, 1981 and all other defendants not listed above c/o Mark H. Gunderson Gunderson Law Firm 3895 Warren Way Reno, Nevada 89509 Automatically served via cmecf 18 19 20 21 22 23 24 25 26 27 28 8 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 2 3 4 Case No. 3:08-CV-00386-JCM-VPC UNITED STATES OF AMERICA Plaintiff, 5 FINAL JUDGMENT APPROVING STIPULATION OF SETTLEMENT v. 6 7 8 753.95 ACRES OF LAND, MORE OR LESS, IN WASHOE COUNTY, NEVADA and INCLINE LAKE CORPORATION, et al. Defendants. 9 10 11 Upon consideration of the Stipulation of Settlement executed by the United States of America and all defendants herein, it is hereby ORDERED, ADJUDGED AND DECREED that: 12 13 1. The United States is authorized to acquire the subject property, with the consent of the 14 owner, pursuant to the Southern Nevada Public Land Management Act of 1998 (112 Stat. 2343 15 et seq.), 7 U.S.C. § 428a (the “SNPLMA”) and 40 U.S.C. §§ 3113-3114. 16 2. The United States agreed to purchase, and defendant Incline Lake Corporation 17 (“ILC”) agreed to sell, and to bind all other defendants to this action to sell, the subject property 18 19 20 21 22 pursuant to the terms and conditions of that certain Land Acquisition Agreement, dated May 16, 2008 (the “Agreement”). 3. As provided by the Agreement, and in accordance with § 5(c) of SNPLMA, the parties agreed to the commencement of the instant action as the means to transfer the subject property 23 and to determine its value. Agreement at ¶ III A-C. 24 25 4. Following commencement of this action, on July 29, 2008, the United States deposited 26 the amount of $46,000,000 into the Registry of this Court, as provided by the Agreement. 27 Agreement at ¶ IV C. At that time, title to the subject property, to the extent set forth in the 28 Declaration of Taking filed in this case, vested in the United States. 1 1 2 5. On September 9, 2008, the Court ordered disbursement of the entire deposit to ILC, subject to the obligations to make the additional disbursements from the Deposit to other 3 Defendants as spelled out in the Motion for Forthwith Disbursement of Deposit filed by ILC 4 5 (Doc. No. 42). 6 6. The parties have agreed that $43,500,000, inclusive of interest, represents the full just 7 compensation payable by the United States for its acquisition of the subject property pursuant to 8 the Agreement. 9 7. The said sum of $43,500,000 is the final and just compensation for the subject 10 11 property and in full satisfaction of any and all claims of whatsoever nature against the United 12 States by reason of the Agreement and the institution and prosecution of this action. 13 8. Defendants have negotiated among themselves the appropriate distribution of 14 $43,500,000 as payment for their various former interests in the subject property as follows: (a) 15 16 17 18 19 $1,000,000 to each defendant for each former leasehold interest in the Property owned by such defendant; and (b) the remainder to ILC. 9. The $46,000,000 deposit represents an overpayment of $2,500,000 for the subject property. Within five days of the entry of this judgment, ILC shall return $2,500,000 to the 20 Registry of the Court in restitution to the United States of the overpayment. Once deposited, said 21 22 sum shall be immediately disbursed by check made payable to the United States Forest Service, 23 as a refunded appropriation to be returned to the SNPLMA special account. Said check shall be 24 made available by the Clerk to be picked-up in person by Asst. U. S. Attorney Greg Addington at 25 the Clerk’s Office in the Federal Courthouse in Reno, Nevada. 26 10. The parties shall be responsible for their own legal fees, costs and expenses 27 28 (including attorneys’ fees, consultants’ fees, appraisers’ fees, and any other expenses). 2 1 2 11. Defendants have warranted that to their knowledge that they were the sole owners of the subject property at the date of the United States’ acquisition, that they have the exclusive 3 right to just compensation herein, and that no other party is entitled to the compensation or any 4 5 6 7 8 part thereof by reason of any recorded or unrecorded agreement executed by the defendants. 12. The United States Forest Service will cause a trail on the subject property to be named in memory of Norman H. Biltz. 13. The United States Forest Service will engage in a public process in accordance with 9 the National Environmental Policy Act of 1969 (42 U.S.C. § 4321(note)), and its implementing 10 11 regulations at 40 CFR § 1500, regarding the disposition of the existing dam and former reservoir 12 on the subject property. 13 14. The parties hereto will take no appeal from any ruling or judgments made by the 14 Court in this action. 15 16 17 15. Following restitution to the United States and disbursement to the United States Forest Service as set forth in ¶ 9 above, this case is closed. 18 19 20 December 15, 2011 Date:__________________ ______________________________________ UNITED STATES DISTRICT COURT JUDGE 21 22 23 24 25 26 27 28 3
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