United States v. Anchordoguy, et al.

Filing 45

CONSENT DECREE signed by Chief Judge Morrison C. England, Jr on 11/6/14: (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C) (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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No. 2:13-cv-848-MCE-CMK

v.
MATTHEW R. ANCHORDOGUY,
ANCHORDOGUY AND COMPANY
LIMITED PARTNERSHIP, and JOHN
R. BARLOW,
Defendants.

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Appendix C:

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Agreement Concerning Mitigation Funds

AGREEMENT CONCERNING MITIGATION FUNDS
This Agreement Concerning Mitigation Funds (“Agreement”) is entered by and between
Matthew R. Anchordoguy, Anchordoguy and Company Limited Partnership, and John R.
Barlow (collectively, “Funders”) and The Nature Conservancy (“Conservancy”), a District
of Columbia non-profit corporation acting through its California Operating Unit.
RECITALS
A. WHEREAS, on May 1, 2013, the United States, on behalf of the United States
Environmental Protection Agency (“EPA”), filed a complaint in the United States
District Court, Eastern District of California, United States v. Matthew R.
Anchordoguy, Anchordoguy and Company Limited Partnership, and John R. Barlow,
No. 2:13-cv-848-MCE-CMK, alleging that Funders violated the Clean Water Act by
discharging dredged or fill material into waters of the United States that included
vernal pools, wetland swales, streams tributary to Coyote Creek, and Coyote Creek,
in Tehama County, California, and Funders have denied any liability to the United
States arising out of the alleged activities;
B. WHEREAS, the United States and Funders have entered into a Consent Decree to
settle the above referenced enforcement action;
C. WHEREAS, the Consent Decree requires Funders to mitigate the alleged losses of
ecological functions resulting from the alleged violations by providing funding
(“Mitigation Funds”) in the amount of Seven Hundred Ninety-Five Thousand Dollars
($795,000) to the Conservancy, to be used for conservation of vernal pool, riparian
and salmon habitats in the Sacramento River watershed, with a special emphasis on
such habitats in Butte, Glenn, Shasta, and Tehama Counties, as set forth in this
Agreement, of which the United States approves;
D. WHEREAS, the Conservancy desires to accept the Mitigation Funds;
NOW, THEREFORE, the Parties agree as follows:
AGREEMENT
1. OBLIGATIONS WITH RESPECT TO FUNDERS
1.1.

Funders shall deliver the $795,000 Mitigation Funds in one lump sum by
certified check to the Conservancy at 190 Cohasset Road, Suite 177, Chico,
CA 95926, Attention: Jake Jacobson, or wire transfer to:

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Bank Name: Bank of America
Bank Address: 1111 E. Main Street, Richmond, VA 23219
ABA Routing Number: 026009593
Account Name: The Nature Conservancy
Account Number: 04112981822
by the fifteenth (15th) day after the Effective Date of the Consent Decree. For
purposes of this Agreement, if the fifteenth day after the Effective Date of the
Consent Decree should fall on a Saturday, Sunday, or legal holiday, Funders
shall make the delivery by the close of business of the next day that is not a
Saturday, Sunday, or legal holiday.
1.2.

Funders shall be deemed to have discharged their obligations and liabilities
under this Agreement upon full compliance with Paragraph 1.1.

2. OBLIGATIONS WITH RESPECT TO THE CONSERVANCY.
2.1.

The Conservancy’s obligations under this Agreement shall be conditioned on
its actual receipt of the full amount of the Mitigation Funds.

2.2.

The Conservancy may pool and invest the Mitigation Funds with other funds
that the Conservancy holds for similar purposes but shall separately account
for and track expenditures of the Mitigation Funds.

2.3.

The Conservancy shall use the Mitigation Funds exclusively for the purpose of
protecting, preserving, enhancing, restoring, maintaining, managing, and
monitoring vernal pool habitat and salmon and riparian habitats as natural
open space in perpetuity in the Sacramento River watershed, with a special
emphasis on such habitats in Butte, Glenn, Shasta, and Tehama Counties
(“Conservation Purpose”).

2.4.

Subject to Paragraphs 2.5 and 2.6, in carrying out the Conservation Purpose,
the Conservancy shall prioritize its usage of the Mitigation Funds as follows:
2.4.1. Within 18 months from the Effective Date of this Agreement, the
Conservancy shall use the Mitigation Funds to acquire and maintain a
conservation easement on the 515-acre Foor Ranch as natural open
space in perpetuity. The Foor Ranch is located in southern Tehama
County, California, just east of State Highway 99E and about 25
minutes north of Chico. The Conservancy represents that the
easement will protect the Foor Ranch’s vernal pools and vernal swales,
which provide wildlife habitat, support numerous at-risk species,
including endangered freshwater shrimp and rare plants, and function
as important Pacific Flyway “stop over” sites for migratory birds, while
allowing compatible cattle grazing to continue. The Foor Ranch is
entirely surrounded by conserved lands, with conservation easements

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encumbering lands to the west, north and east, and the Conservancy’s
4,600-acre Vina Plains Preserve of vernal pool and grassland habitats
to the south. The Foor Ranch’s excellent connectivity to other
conservation lands further increases its conservation value than if it
were a stand-alone site.
The Conservancy further represents that the Vina Plains Preserve is a
critical component and a crucial research site of the Conservancy’s
900,000-acre Lassen Foothills Project in eastern Tehama County and
southeastern Shasta County. With thirty conservation easements
acquired to date, mostly with working ranch families, the Lassen
Foothills Project protects wildlife habitat on ranches along key wild
salmon streams tributaries to the Sacramento River, riparian forests,
and vernal pool complexes. Acquisition of the Foor Ranch easement
will complete one of the last pieces of the Conservancy’s plan for the
Vina Plains Preserve.
Exhibit 1 is a vicinity map showing the in-holding position of the Foor
Ranch (with dark green indicating areas already under the
Conservancy’s protection). Exhibit 2 is a fact sheet on the
Conservancy’s Vina Plains Preserve. Both Exhibits are made part of
this Agreement.
2.4.2. Within 42 months after the Effective Date of this Agreement, the
Conservancy shall use the remaining funds, if any, for projects
consistent with the Conservation Purpose, subject to prior written
approval by the EPA.
2.5.

Subject to prior written approval by the EPA, the Conservancy may adjust the
timelines specified in Paragraph 2.4 above to better effectuate the protection
priorities and carry out the Conservation Purpose. Upon approval by the EPA,
the adjusted timelines shall be incorporated automatically and implemented as
part of this Agreement.

2.6.

If, after good faith efforts or due to changed circumstance, the Conservancy
determines that it is unable or does not desire to carry out any or all the
activities as specified in Paragraphs 2.4.1 and 2.4.2 above, the Conservancy
shall use the Mitigation Funds for suitable alternative projects to carry out the
Conservation Purpose, subject to prior written approval by the EPA. Upon
approval by the EPA, said alternative project shall be incorporated
automatically and implemented as part of this Agreement.

2.7.

The Conservancy shall provide an annual report to the EPA. The annual report
shall include a programmatic summary of the status of the activities
undertaken pursuant to this Agreement and a fiscal statement itemizing the
expenditure of the Mitigation Funds, including any accrued interest or

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investment income thereon made available to the local project, if applicable.
The Conservancy shall submit the report annually on or about January 31st of
each year, until such time as the Mitigation Funds have been fully expended.
2.8.

The Conservancy shall provide to the EPA the draft conservation easement for
each proposed acquisition under this Agreement and a conformed copy of the
conservation easement upon execution and recording.

2.9.

The Conservancy shall have the sole responsibility and discretion for the
terms and conditions of instruments used to acquire real property interests
with the Mitigation Funds.

3. TRANSFER OF ACQUIRED PROPERTY INTEREST.
3.1.

The Conservancy may transfer or sell any real property interest acquired with
the Mitigation Funds only to: (i) a governmental entity, or (ii) a tax-exempt
nonprofit organization that is qualified under Section 501(c)(3) of the Internal
Revenue Code and has as its primary purpose the preservation, protection, or
enhancement of land in its natural, scenic, or open-space condition.

3.2.

The Conservancy shall provide written notice to the EPA of any sale or
transfer of property interest acquired with the Mitigation Funds at least thirty
(30) business days prior to the date of the sale or transfer.

3.3.

The requirements set forth in this Paragraph shall survive any modification or
termination of this Agreement.

4. SUCCESSERS AND ASSIGNS.
4.1.

Funders may not assign this Agreement.

4.2.

The Conservancy may assign any or all portions of the Mitigation Funds to
another tax-exempt nonprofit organization that is qualified under Section
501(c)(3) of the Internal Revenue Code and has as its primary purpose the
preservation, protection, or enhancement of land in its natural, scenic, or
open-space condition, to carry out activities consistent with the Conservation
Purpose. The Conservancy shall provide written notice to the EPA at least
thirty (30) business days prior to the planned assignment and shall subject the
assignment to the terms and conditions of this Agreement.

5. THE EPA AS THIRD PARTY BENEFICIARY
5.1.

The Parties agree that the EPA is an intended third-party beneficiary under
this Agreement with the right to enforce the terms and obligations of the
Agreement.

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5.2.

The requirements set forth in this Paragraph shall survive any modification or
termination of this Agreement.

6. NO ASSUMPTION OF LIABILITY.
6.1.

By accepting the Mitigation Funds, the Conservancy in no way assumes
responsibility or liability for any requirement or commitment that Funders may
have to the EPA or any other person or entity.

7. NOTICES.
7.1.

All notices, requests, approvals, and other communications pursuant to this
Agreement shall be made through the following persons and addresses, as
appropriate:
To Funders:
DOWNEY BRAND, LLP
Robert P. Soran, Esq.
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
[phone] (p)
[e-mail]
B. Demar Hooper, Esq.
3910 Knollwood Court
Sacramento, CA 95821
[phone] (p)
[e-mail]
Matthew R. Anchordoguy
P.O. Box 136
Vina, CA 96092
Anchordoguy and Company Limited Partnership
77 Talon Drive
Chico, CA 95973
John R. Barlow
77 Talon Dr.
Chico, CA 95973
To the Conservancy:
Jake Jacobson
Project Director

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11.TERMINATION. This Agreement shall terminate an its own terms.
12. EXHIBITS. The following Exhibits are attached to and part of this Agreement.
12.1. Exhibit 1: Foor Ranch Vicinity Map
12.2. Exhibit 2: The Nature Conservancy Vina Plains Preserve Fact Sheet

IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement
as of the last date entered below.
FUNDERS:

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Name: IVlatthew R. Anchordoguy
Date: ~~2 ~ y'

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John R. Barlow
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The Nature Conservancy’s
VINA PLAINS PRESERVE

SIZE: 4600 acres
LOCATION: The preserve is located at the southern edge of Tehama County bordering Highway
99, 13 miles north of Chico. The entry gate is on the east side of the highway, opposite Haille
Rd.
HISTORY: The Vina Plains was first inhabited by nomadic Maidu Indians. At that time, elk and
antelope roamed the grasslands. With the arrival of European settlers, cattle and sheep were
introduced to the Plain. Along with the settlers came many introduced non-native plants which
now coexist with native species. The Nature Conservancy, a private non-profit organization,
began purchasing property and conservation easements in the Vina area in 1982.
NATURAL CHARACTERISTICS: The Vina Plains is an excellent example of California
annual grasslands and vernal pools on the upper terrace of the Sacramento Valley. The shallow
soils are underlain by an impervious, rocky hardpan formed by volcanic mudflows a million or
more years ago. Subsequent weathering and wind erosion scoured out shallow depressions
which fill with water during the rainy season. Because of the impermeable substrate, the water
remains until it is lost by evaporation late in the spring. These temporary ponds support a wide
variety of plants, crustaceans, snails, flatworms, insects, and microorganisms. During winter the

ponds attract legions of waterfowl and shorebirds. Songbirds such as meadowlarks nest in the
grasslands and raptors can be seen hunting overhead.
From February through early May, the Vina Plains is ablaze with masses of showy wildflowers.
More than 280 species of plants offer excellent examples of adaptations to the Mediterranean
climate of wet winters and intensely hot dry summers. Of particular interest are vernal pool
plants, some of which are able to germinate and grow leaves underwater and then flower on land
as the water recedes in the spring.
There are several rare and endangered plant species on the Preserve, including Orcuttia pilosa,
Orcuttia tenuis, Tuctoria greenei, Fritillaria pluriflora and Chamaesyce hooveri.
PUBLIC TOURS: Public visitation is only by guided tours. They are conducted on selected
weekends from the first of March to the middle of May or until the ponds have dried.
For your safety and protection of the preserve, please adhere to the following regulations:
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Respect the scheduled tour hours for entering and leaving the property.
Pets, firearms, hunting, camping and campfires are not permitted.
Refrain from smoking.
Do not collect specimens without permission.
Park cars in designated areas only.
While on a tour, please stay close to the group.

MANAGEMENT: The mission of The Nature Conservancy is to preserve the plants, animals and
natural communities that represent the diversity of life on earth by protecting the lands and
waters they need to survive. Vina Plains is actively managed and monitored by Conservancy
Scientists to protect the unique life found in its vernal pools and grasslands. Both prescribed fire
and livestock grazing are used as tools to reduce non-native weedy plants.
ADDITIONAL INFORMATION: The Preserve is also dedicated to the education of the public
through its guided tours and to support instruction and research at California State University,
Chico and other educational institutions.
For further information contact The Nature Conservancy, Lassen Foothills Project, 190
Cohasset Road, Suite # 177, Chico CA 95926, [phone]