United States of America v. Riley et al

Filing 61

CONSENT DECREE; Granting 40 Stipulated Motion for Settlement Agreement and Consent Decree. The parties' Settlement Agreement and Consent Decree, attached to this Order as Exhibit 1, as well as the incorporated Exhibits 1A through 6, are ACCEPTED into the record as part of this Consent Decree. This file is CLOSED. Signed by Chief Judge Stanley A Bastian. (CLP, Case Administrator Team Lead)

Case 2:18-cv-00024-SAB

ECF No. 61

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Dec 21, 2022

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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UNITED STATES OF AMERICA,
Plaintiff,
v.

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WALTER RILEY & JANE DOE RILEY,
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composed thereof, d/b/a RILEY’S RIVER
13 RANCH,
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Defendants.
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No. 2:18-CV-00024-SAB
CONSENT DECREE

Before the Court is the parties’ Stipulated Motion for Settlement Agreement

17 and Consent Decree, ECF No. 60. The parties indicate they have entered into a
18 settlement agreement. They ask the Court to accept the agreement into the record
19 and issue a Consent Decree accordingly.
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Approval of a proposed consent decree is within the discretion of the

21 Court. United States v. State of Or., 913 F.2d 576, 580 (9th Cir. 1990). Before
22 approving a consent decree, a district court must be satisfied that it is at least
23 fundamentally fair, adequate and reasonable. Id. “The court need only be satisfied
24 that the decree represents a ‘reasonable factual and legal determination.’” Id. at
25 581 (citation omitted).
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The Court has reviewed the Settlement Agreement and Consent Decree and

27 the filings in this case. The Court concludes the plan is fair, reasonable, and legal,
28 and good cause exists to accept it into the record as a binding judgment.
CONSENT DECREE *1

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Accordingly, IT IS HEREBY ORDERED:

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1.

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The parties’ Stipulated Motion for Settlement Agreement and Consent

3 Decree, ECF No. 60, is GRANTED.
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2.

The parties’ Settlement Agreement and Consent Decree, attached to

5 this Order as Exhibit 1, as well as the incorporated Exhibits 1A through 6, are
6 ACCEPTED into the record as part of this Consent Decree,
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3.

The parties may seek enforcement of the requirements of the

8 Settlement Agreement and Consent Decree by motion to the Court under its
9 ongoing, continuing supervision. This Court shall retain continuing jurisdiction
10 over this action to enforce or modify the Consent Decree, consistent with
11 applicable law or to resolve all disputes arising hereunder, as may be necessary or
12 appropriate for construction or performance of the Settlement Agreement and
13 Consent Decree. During the pendency of the Consent Decree, any party may apply
14 to the Court for any relief necessary to construe and effectuate the intended
15 purpose of the Consent Decree.
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4.

Upon its entry by the Court, the Consent Decree shall have the force

17 and effect of a final judgment. Any modification of this Consent Decree shall be in
18 writing and shall not take effect unless signed by both the Plaintiff and the
19 Defendants, and approved and entered by the Court.
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IT IS SO ORDERED. The District Court Clerk is hereby directed to enter

21 this Order, provide copies to counsel, and close the file.
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DATED this 21st day of December 2022.

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Stanley A. Bastian

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Chief United States District Judge
CONSENT DECREE *2

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EXHIBIT 1

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ECF No. 61

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Vanessa R. Waldref
United States Attorney (EDWA)
Timothy M. Durkin
Derek T. Taylor
Assistant United States Attorneys
Post Office Box 1494
Spokane, WA 99210-1494
Telephone: [phone]

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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UNITED STATES OF AMERICA,
Plaintiff,
vs.
WALTER RILEY & JANE DOE
RILEY, individually and as the marital
community comprised thereof, d/b/a
RILEY’S RIVER RANCH,
Defendants.

)
) Case No. 2:18-cv-00024-SAB
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) SETTLEMENT AGREEMENT
) & CONSENT DECREE
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COMES NOW the Plaintiff, the United States of America, through its executive

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agency, the United States Army Corps of Engineers ("Corps" or “Plaintiff” or

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“USACE”), by its counsel with the United States Attorney's Office for the Eastern

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District of Washington ("USAO"), and the Corps’ Office of District Counsel (ODC),

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Walla Walla District, and the Defendants Walter Riley and Mrs. Jane Doe (Jeannie)

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Riley, husband and wife, and d/b/a/ Riley’s River Ranch, Mr. Riley as Trustee of the

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Lester Riley Trust, and Chad Lindgren as remainderman beneficiary of said Trust and

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any business or entity doing business as (d/b/a) Riley’s River Ranch (including

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officers / agents / manager(s)), individually and jointly (“Rileys” or “Defendants”),1

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through their counsel, Toni Meacham, Attorney at Law, PLLC, and stipulate and agree

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that they have reached a Settlement Agreement and Consent Decree (SACD) that

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provides for the mutual resolution of this case.

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I.

RECITALS

WHEREAS the Plaintiff holds legal title to certain public lands encompassing

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segment tracts 302, 303, 304-1, 309, and 312 in sections 4, 5, 8, and 9 of township

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13N and Range 40E, Willamette Meridian, located within what is now Central Ferry

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Habitat Management Unit (“HMU”) of the Little Goose Lock and Dam Project in

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Central Washington state, said land having been purchased by the United States for

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that Civil Works water resources project;
WHEREAS, Plaintiff has authority to hold title and to manage its federal lands

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pursuant to powers under the Constitution, primarily the Property Clause, which gives

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Congress the power to dispose of and make all needful Rules and Regulations

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respecting the Territory or other Property belonging to the United States. U.S Const.,

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Art IV. The Supreme Court has consistently interpreted this power to be extremely

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expansive, repeatedly observing that the power over the public land thus entrusted to

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the United States is without limitations. Kleppe v. New Mexico, 426 U.S 529, 539

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(1976); United States v. San Francisco, 310 U.S 16, 29 (1940). The United States has

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the right and authority to manage all of its lands. Kleppe, id.; State of Nevada v.

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Watkins, 914 F.2d 1545, 1552 (9th Cir. 1990), cert. denied 111 S.Ct. 1165;

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Plaintiff relies upon the accuracy of information provided by Defendants in
identifying those persons – entities having an ownership or operator or managerial
interest in Riley’s River Ranch’s business, and those having an interest in the real
estate upon which Riley’s River Ranch conducts its livestock business in Whitman
County, WA (EDWA).

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WHEREAS, the Corps’ multi-purpose Civil Works projects are generally

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authorized under the Commerce Clause (Article 1, Section 8, Clause 3) of the U.S.

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Constitution, with specific project authorization most commonly found in a series of

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River and Harbor and Flood Control acts passed by Congress. Acquisition of real

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property for civil works projects, provided for by law, is authorized in 33 U.S.C. 558b,

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591-595a and 701. See also, Chapter 5, Engineer Regulation 405-1-11;

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WHEREAS, the construction and future operation and maintenance of the Little

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Goose Lock and Dam Project was authorized by Congress in the River and Harbor Act

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of 1945 (Public Law 790-14). The Corps is charged by federal statute to manage,

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administer and protect the public lands encompassing the Little Goose Lock and Dam

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project. 16 U.S.C. § 460d. Public use (and unauthorized use) of water resources

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development projects administered by the Corps is governed by 36 C.F.R. Part 327;

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WHEREAS, Defendants own or have an interest in land (in fee) adjacent to the

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Plaintiff’s federal land in tracts 302, 303, 304-1, 309, and 312 in sections 4, 5, 8 and 9

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of township 13N and Range 40E, Willamette Meridian, which is used primarily as a

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livestock (e.g., cattle) ranch. Tract 303 was purchased from the Defendants’

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predecessor in interest for use in the Little Goose Lock and Dam Project, while the

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other tracts were acquired from other parties. Defendants maintain such lands were

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historically used for livestock production before the land was purchased by the United

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States;

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WHEREAS, the Plaintiff alleges that Defendants have, from at least 2011 to

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approximately 2021, failed to prevent livestock from entering USACE managed

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federal lands (i.e., primarily during winter calving and feeding operations); since at

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least 2011 to the present, have deposited other ranch equipment, materials and

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associated personal property (i.e., fence posts, feeders, etc.) on the USACE’s managed

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land; and, have made other disturbances - modifications to the public lands within

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Central Ferry HMU. These encroachments are shown in the attached maps of Exhibits

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1A, 1B2, and 2, which are incorporated herein.

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WHEREAS, Defendants deny the nature and extent of Plaintiff’s allegations,

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but acknowledge that their cattle have, from time-to-time, entered and remained upon

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the USACE managed federal lands. Defendants further admit that they, their

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employees/agents, predecessor in interest and/or third parties, have deposited, left

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and/or stored ranch equipment and other personal property (fence posts, feeders, etc.)

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on Plaintiff’s federal lands, or made certain modifications thereto. However,

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Defendants do dispute and deny certain aspects of the alleged trespasses /

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encroachments (e.g., nature, length/frequency, etc.) and further maintain they acted in

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good faith due to confusion from the original government brass cap boundary

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monuments;

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WHEREAS, Plaintiff also alleges Defendants, their predecessor in interest, or

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persons at their direction, constructed (and have for decades maintained) a portion of a

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building that encroaches on Corps managed federal land, within the area that is now

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the Central Ferry HMU. See Exhibits 1A, 1B and 3;

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WHEREAS, the Plaintiff had the lands in question surveyed in 2014 and

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provided a copy of the survey to Defendants. Exhibit 6 (Survey Map). The survey

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generally confirmed the Corps’ understanding of the land boundary, though a small

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section of the Corps’ fence-line near Highway 127 was determined to have

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Exhibit 1A is the original January 12, 2018, image/map of encroaching equipment,
materials and other items Plaintiff alleges were put/placed on federal land by
Defendants since at least 2011, which are primarily associated with livestock ranching
operations. Exhibit 1B is an updated image/map showing encroaching items
remaining on federal land, which Defendants has agreed to remove in accordance with
the terms of this SACD, excluding the items identified in the approximate 1/3 acre of
federal land proposed for transfer to Defendants, unless such transfer does not occur
pursuant to the terms of this SACD.
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inadvertently veered off public land and was constructed on Defendants’ adjacent

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land, which Plaintiff has conveyed several offers to remove and realign. Id.;

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WHEREAS, after lengthy discussions and multiple efforts to resolve the

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parties’ dispute pre-suit failed, a Complaint was approved by the U.S. Attorney and

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the United States’ Department of Justice, and was filed against Defendants on January

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19, 2018;

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WHEREAS, the Plaintiff and Defendants now wish to reach a lasting resolution

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of the alleged trespasses by Defendant's livestock and ranch business, including

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personal property encroachments, the disturbances – modifications to the federal

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lands, and Defendants’ building partially constructed on federal lands;

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WHEREAS, Plaintiff and Defendants further agree that settlement of this case

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serves their interests as well as the public’s interest, and that entry of this Settlement

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Agreement and Consent Decree (SACD) is an appropriate method and means for

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resolving the Plaintiff’s claims against Defendants, and vice versa; and,

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WHEREAS, the Court finds that this SACD is a reasonable and fair resolution

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of the Plaintiff’s claims against Defendants and should serve to adequately protect the

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public’s interests as well.

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II.

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A.

SETTLEMENT AGREEMENT

Preamble. The Settlement Agreement and Consent Decree (SACD)

herein is made by and among the United States, through its agency, the United States
Army Corps of Engineers (“United States,” “Plaintiff” or “USACE”), and Walter
“Sonny” Riley and Mrs. Jane Doe (Jeannie) Riley, husband and wife, any person or
entity d/b/a/ Riley’s River Ranch, Mr. Riley as Trustee of the Lester Riley Trust, and
Chad Lindgren as remainderman beneficiary of said Trust, and any business or entity
doing business as (d/b/a) Riley’s River Ranch (including officers / agents /
manager(s)), individually and jointly (“Rileys” or “Defendants”). The parties
understand and agree the terms “United States” or “Plaintiff” used herein shall refer
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only to the United States Army Corps of Engineers (“USACE”). No other agency,

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instrumentality or agent of the United States shall be deemed to be a party to this

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SACD, nor shall any claims that any other agency, instrumentality or agent is, has or

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may be impaired or compromised in any way by this SACD.

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In the shared interest of avoiding the cost, expense and uncertainty of further

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litigation, the parties specify below the desired terms and condition of their SACD,

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which will settle, compromise and resolve the claims described in the United States’

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Complaint filed in this action. ECF 1. It is the intent of the parties, except as otherwise

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provided herein, that this SACD shall constitute the full settlement and satisfaction of

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the Plaintiff’s claims for trespass and damages against Defendants. Id. Pursuant to the

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terms – conditions of this SACD, the Plaintiff and Defendants mutually covenant and

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agree:

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1.

The Plaintiff will:

(a)

Administratively dispose to Defendants an approximate 1/3 acre of land

underlying the encroaching building and immediate appurtenances thereto (tentatively
identified in the red outline on the attached map (Exhibit 3)), and which will be more
precisely defined by a future disposal survey; See also Exhibit 4, Current estimate of
projected Phases and Costs of Administrative Disposition process;
(b)

Transfer the property subject to any reservation or limitation necessary

for the operation of the Little Goose Dam and Reservoir Project (e.g., flowage
easement, etc.);
(c)

Remove or realign the small section of the federal fence to parallel the

surveyed boundary;
(d)

Perform the administrative disposal in a timely manner in accordance

with all applicable USACE policies and procedures;
(e)

Bill Defendants the usual and customary administrative costs incurred in

a timely manner. These costs – expenses are those reasonably associated with
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USACE’s administrative disposition of the subject 1/3rd acre. The present estimated

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cost of the administrative disposition - transfer is approximately $50,000 - $100,000,

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with the actual cost dependent upon several review and disposition contingencies,

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which contingencies the USACE has no control over and which have been discussed

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and reviewed by the parties in advance of this SACD.

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(f)

Plaintiff shall return any unused funds to Defendants at the close of the

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process and as soon as reasonably possible after the land disposition is complete.

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Plaintiff has provided notice and Defendants acknowledge receipt of certain identified

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tasks/cost items that must be performed for the disposal action to be completed, along

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with a rough cost estimate (i.e., $50,000-$100,000). Plaintiff will endeavor to keep

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administrative costs to the reasonable minimum amount necessary for the Corps to

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complete required steps for the subject land disposition. Defendants may request an

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accounting at any point during the process, but such an accounting will itself require

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use of administrative funds, and will result in an administrative fee – cost; and,

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(g)

Once the SACD has been executed by the parties and approved, and

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entered by the U.S. District Court, and Plaintiff has timely received all required

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deposits from Defendants for the performance of the administrative disposal of the

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subject 1/3 acre property, and transfer of the 1/3 acre has occurred, and Defendants

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have performed all of their other obligations specified herein, Plaintiff will file and

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submit to the U.S. District Court a stipulation providing for the dismissal of the

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liability – damages aspect of Plaintiff’s current Complaint, leaving only the District

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Court’s jurisdiction for supervision – enforcement authority over the parties’ SACD.

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2.

Defendants will:

(a)

Pay all the Plaintiff’s reasonably incurred administrative costs associated

with the disposal of the 1/3-acre of land underlying the encroaching building and
immediate appurtenances thereto, and agree to voluntarily make the necessary

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deposits to cover the reasonable administrative costs, as determined by the Corps (see

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Section (c) below);

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(b)

Pay the fair market value associated with disposal of the 1/3-acre of

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federal land identified in Section II.2.(a) above, absent any improvements (e.g.,

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building) constructed by Defendants;

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(c)

Periodically make deposits to the USACE in advance of the incurred

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administrative costs – expenses – i.e., two deposits of $20,000 in 60-day intervals;

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with the last deposit of approximately $10,000 (or less and if necessary) within 45

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days after the second $20,000 deposit. These fees shall be used for the payment of the

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estimated costs of the administrative disposal of the 1/3-acre of land underlying the

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encroaching building and immediate appurtenances thereto;

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(d)

Remove all personal property – debris Plaintiff has alleged Defendants

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placed on federal lands – i.e., materials, equipment, fencing, junk, refuse, rubbish, etc.

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-- which are identified in Exhibit 1B, except for that portion of the concrete pad

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identified in Exhibit 1B. When marking the boundary, pursuant to Exhibit 5,

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Defendants surveyor shall mark with weather resistant paint any portion of the pad

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which falls upon federal land and Defendant take no action to maintain that portion of

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the pad. The removal of all other Exhibit 1B items will occur within 60 days of the

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date this SACD is signed and will be performed to Plaintiff’s satisfaction, which

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approval cannot be unreasonably withheld. Items identified in Exhibit 1B within the

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approximate 1/3-acre area of federal land proposed for transfer to Defendants do not

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require removal unless the transfer does not occur pursuant to the terms of this SACD.

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(e)

All parties shall have the right to document, at their own expense, the

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removal of the encroaching personal property and may have any experts they wish

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document such removal for the purpose of addressing any future dispute/disagreement

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over encroachment removal, subject to the access coordination requirements in

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Section III.C.4.

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(f)

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Prevent future livestock trespasses and associated encroachments on

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federal lands at the Central Ferry HMU, as shown on Exhibits 1A, 1B and Exhibit 2,

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by whatever means Defendants determine to be effective, including (as mentioned by

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Defendants) any experimental practices, such as cattle collars, etc.

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(g)

Complete certain limited restoration activities on the subject federal lands

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within the Central Ferry HMU, as outlined in Exhibit 5, but excluding the

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approximate 1/3-acre to be conveyed to Defendants. Restoration shall address injury -

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damages resulting from land modifications and other encroachments on USACE lands

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(e.g., two dirt/gravel roads), unless the Plaintiff determines (in writing to Defendants)

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to reduce or eliminate an identified restoration item as unnecessary.

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B.

Additional Terms – Conditions

1.

This Settlement Agreement may not be changed altered or modified

except in writing signed by all parties hereto. This Settlement Agreement may not be
discharged except by performance in accordance with its terms or by writing signed
by all parties.
2.

The parties agree to cooperate fully and act in good faith to execute any

and all supplementary documents (e.g., transfer deed) and to take all additional actions
that may be necessary or appropriate to give full force and effect to the terms and
intent of this Settlement Agreement and Consent Decree (SACD).
3.

Nothing in this SACD constitutes an agreement by the United States

concerning the allowable characterization of the amounts paid hereunder for purposes
of any proceeding under Title 26.
4.

This SACD is a civil agreement and is not intended to limit any criminal

enforcement authority or actions for future livestock trespasses, associated
encroachments, damage to federal property or other violations of law/regulation.

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This SACD may not be discharged except by performance in accordance

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with its terms or as otherwise agreed to and altered or modified in writing signed by

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all parties hereto.

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III.

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ORDER OF THE COURT

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THEREFORE, based on the foregoing recitals and stipulation, and before the

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taking of any testimony upon the pleadings, and without further adjudication of any

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issue of fact or law, and upon stipulation and consent of the parties hereto, by and

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through their authorized representatives, and in accordance with Federal Rules of

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Civil Procedure, Rule 54(b), it is hereby,
ORDERED, ADJUDGED and DECREED as follows:

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A.

Jurisdiction and Venue

1.

This Court has jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1345.
2.

Venue is proper in this district court because Plaintiff’s federal land and

its mandated management activities are within the exterior boundaries of the U.S.
District Court for the Eastern District of Washington (WAE). Further, Defendants’
land and ranching business is in Whitman County, Washington, and the actions –
conduct giving rise to Plaintiff’s claims occurred and/or are occurring in Whitman
County, Washington, which is also located within the WAE District. Further, the
Court has jurisdiction over the enforcement of the parties SACD.

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B.

Applicability

1.

The obligations of this Consent Decree shall apply to and be binding

upon Plaintiff and Defendants, including Defendants’ officers, directors, agents,
employees, successors and assigns and any person, firm, trust, association or
corporation who is or will be acting in concert or in participation with any of the
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Defendants, regardless of whether such person has notice of this Consent Decree. In

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any action to enforce this Consent Decree against Defendant(s), the Defendant(s) shall

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not raise as a defense the failure of any of its officers, directors, agents, employees,

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successors or assigns or any person, firm or corporation acting in concert or

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participation with the Defendant, to take any actions necessary to comply with the

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provisions herein.

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2.

Defendants shall provide written notice and a true copy of this Consent

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Decree to any successor(s) in interest and/or assigns as part of any transfer of

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ownership or other interest in Defendants’ land.

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C.

Scope of Consent Decree

1.

This Consent Decree shall constitute a complete and final settlement of

all of Plaintiff’s civil claims for relief against Defendants for their alleged past
encroachments / trespasses on the subject Central Ferry HMU public land, and for any
potential civil claim Defendants may have for the minor portion of the Plaintiff’s
fence that was inadvertently constructed outside the now surveyed boundary. Plaintiff
and Defendants will mutually cooperate to ensure performance of their respective
obligations by December 31, 2023, and at the earliest possible opportunity.
2.

Defendants’ obligations under this Consent Decree are joint and several.

3.

Except for the access permitted to all members of the public for

recreational purposes, or as required by this consent decree, Defendants are enjoined
from any further use of Central Ferry HMU and are specifically enjoined from using
the subject federal lands for any ranching or other business or commercial uses, or any
related activities (i.e., inter alia, livestock business, ranching, etc.).
4.

Defendants shall coordinate with USACE on the time and manner of the

access required to complete their responsibilities and the USACE shall cooperate and
coordinate with Defendants on the time and manner of the access required for
Defendants to complete responsibilities under this agreement.
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This Consent Decree in no way affects or relieves either Party of their

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responsibility to comply with any other applicable federal, state, or local laws,

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regulations and/or permit(s)

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6.

This Consent Decree in no way affects the relative rights of the Parties as

against any other person – entity that is not a party to this Consent Decree.
7.

Both Parties reserve all legal and equitable remedies available to enforce

the provisions of this SACD.
8.

Nothing in this Consent Decree shall constitute an admission of fact or

law by any party.

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D.

Plaintiff’s Obligations

1.

At the earliest opportunity after this Consent Decree becomes final, but

not later than December 31, 2023, the Corps shall remove or realign the section of
federal fence which was found not to adhere to the surveyed boundary. Corps staff
will coordinate with Defendants to schedule a reasonable time to accomplish the fence
removal or re-alignment work. Corps staff will remove any and all debris after
completion of the alignment work and will not cause damage to Defendants’ property
during the removal or re-alignment process;
2.

The Corps shall, upon receipt of funds by Defendants as outlined in

Section II.2 (above), timely begin work on the administrative disposal of the subject
1/3-acre land to Defendants, including timely review and coordination with
Defendants’ contractors/consultants.
3.

The Corps will make good faith efforts to complete the disposal in a

timely manner (i.e., within one year of receipt of the third deposit made in accordance
with Section II.2.C, which is contingent upon Defendants complying with all other
terms and conditions).
4.

The Parties understand that certain aspects of the land disposal will

require consultation with outside entities, which may result in delays over which
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neither party may have control. The parties mutually agree to exercise good faith in

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pursuing the timely processing – completion of the administrative land disposal.

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E. Defendants’ Obligations
1.

Defendants shall ensure that their livestock do not trespass on Central

Ferry HMU public lands in the future, as shown in Exhibits 1A, 1B and 2. The manner
of such prevention or dissuasion is left to Defendants’ discretion as capable livestock
owners. However, future cattle trespass operations may constitute violations of the
parties’ Consent Decree and may be the subject to a motion to show cause and a
request for remedial action deemed just and reasonable by the Court under its
continuing jurisdiction, as more specifically described in Section III.I.1 below;
2.

Defendants shall remove all remaining encroaching equipment, materials

and items on federal lands identified in Exhibit 1B, except for that portion of the
concrete pad identified in Exhibit 1B. When marking the boundary, pursuant to
Exhibit 5, Defendants’ surveyor shall mark with weather resistant paint any portion of
the pad which falls upon federal land and Defendant shall take no action to maintain
that portion of the pad. Defendants shall complete removal of Exhibit 1B items within
60 days of this SACD being signed. Items identified in Exhibit 1B within the
approximate 1/3-acre area of federal land proposed for transfer to Defendants do not
require removal unless the transfer does not occur pursuant to the terms of this SACD.
Defendants will not cause damage to federal property during the removal. Such
removal will be to the satisfaction of Plaintiff, which will not be unreasonably
withheld.
3.

All parties shall have the right to document, at their own expense, the

removal of such personal property and have any experts they wish document such
removal for the purpose of assisting that party with addressing any future
dispute/disagreement, subject to the access coordination requirements in Section
III.C.4 above.
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All parties shall perform in good faith the land disposal process for the

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transfer of the approximate 1/3-acre identified in Section II.A.1(a). The disposal land

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transfer will be directed by the Corps and performed in accordance with federal law

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and Corps regulations and policies. This includes receipt of required periodic deposit

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payments by Defendants to the Corp for applicable administrative fees, as well as the

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determined fair market value of the approximate 1/3-acre described in Exhibit 3. Said

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fair market value will be absent from any improvements (e.g., building) made by

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Defendants;

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5.

Defendants will timely provide contractor/consultant information/reports

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to the Corps for its review and administrative processing. Defendants shall also

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maintain communications with the Corps during the land disposal – transfer process.

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6.

Plaintiff will timely review said information/reports and will timely

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communicate to Defendants whether said information/reports satisfies various

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elements of administrative land disposal process. Plaintiff also agrees, barring changes

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in law/policy/circumstance, they shall follow the administrative process outlined on

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Exhibit 4 and will not add additional requirements to this process.

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7.

Defendants shall provide an initial administrative fee deposit of not less

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than $20,000 to the Corps in 60-day intervals beginning 60 days after the SACD is

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executed by the parties. See e.g., Exhibit 4, Current Projected Phases – Costs for

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administrative disposition process. A second deposit of $20,000 (if necessary) shall be

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made 60 days after the first deposit; and another deposit in the amount of $10,000 (if

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necessary and required by Defendant’s documented administrative review process)

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shall be paid 45 days after the second $20,000.00 deposit.

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8.

Plaintiff shall return any unused funds to Defendants as soon as

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reasonably practical after the disposal, and the other personal property removal and

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restoration settlement terms – conditions have been performed and are completed.

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Plaintiff has identified the tasks/cost items that must be performed to complete the

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administrative disposal process and have provided Defendants with a rough cost

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estimate of the administrative process. See Exhibit 4. Plaintiff will endeavor to keep

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administrative costs to the necessary minimum. Defendants may request an

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accounting at any point during the process, but such an accounting may itself require

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use of deposited administrative funds;

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9.

Defendant shall also promptly make any additional payments of

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administrative fees that are administratively incurred by the Corps, as needed to

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complete the land disposition – transfer process (i.e., Defendants’ payment will be

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provided to the Corps within 30 days of notice of amount due and an accounting or

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written explanation of the need for more funds). The Corps will use first those funds

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that were first deposited and Plaintiff shall provide timely payment of the deposits

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required in Section III.E.7, which will need to be paid before the Corps can work on

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steps necessary to effectuate the administrative property disposition process;

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10.

Defendants shall complete the restorations described in Section II.A.2(g)

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above, as outlined in Exhibit 5, in accordance with the timelines stated herein and will

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complete those obligations by no later than December 31, 2023. Plaintiff has alleged

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that these restoration activities are necessary due to actions by Defendants,

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Defendants’ employees, agents or predecessor in interest, or third parties, as

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previously discussed in Exhibit 5.

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11.

All parties shall have the right to document, at their own expense, the

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completion of such restoration activities and have any experts they wish document

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such restoration for the purpose of assisting that party with addressing any future

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dispute/disagreement, subject to the access coordination requirements in Section

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III.C.4.

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F.

Dispute Resolution

1.

Should any dispute arise with respect to the meaning or requirements of

this Consent Decree, the dispute(s) shall, in the first instance, be the subject of good
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faith negotiations in and among the parties to this SACD. The period for negotiations

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shall not extend beyond thirty (30) days, starting first with written notice by one party

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to the other affected party/parties that a dispute exists as to a term or condition of

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performance, which the party reasonably believes needs to be addressed – negotiated

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(unless the parties subsequently agree in writing to waiver this notice provision).

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2.

Following expiration of the 30-day negotiation period (or after waiver of

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the 30-day notice – negotiation requirement), if the affected parties are still unable to

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agree on the meaning or terms of performance in this SACD, any affected party may

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petition the Court (via motion on the parties’ Consent Decree) for resolution of any

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dispute;

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3.

Any petition or motion for resolution (or enforcement) shall briefly set

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forth the nature of the dispute and a proposal for its resolution. Any other affected

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party to this SACD shall have thirty (30) days in which to respond to the petition and

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shall respond with that party’s proposed resolution. In resolving the dispute between

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the parties, the controlling standard shall be which of the parties' proposals most

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appropriately fulfills the terms, conditions, requirements, and objectives of the parties’

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Consent Decree.

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4.

The filing of a Petition asking the Court to resolve a dispute between the

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Parties concerning this SACD shall not extend or postpone any other obligation the

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Parties may have under this Consent Decree.

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5.

Nothing in this Settlement Agreement and Consent Decree waives the

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right to seek other available civil and/or criminal remedies for future livestock

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trespasses, associated encroachments and/or damage to the Government’s property, or

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civil and/or criminal remedies that may be available to Defendant(s) relative to future

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actions taken by Plaintiff.

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///

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G.

2

All notices and communications required under this Consent Decree shall be

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made to the parties through each of the following persons and addresses:
1.

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TO THE CORPS:
Evan Carden, Esq.
Assistant District Counsel
United States Army Corps of Engineers
Walla Walla District
201 North 3rd Avenue, Walla Walla, WA 99362
[phone]
[e-mail]

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ADDRESSEES

2.

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TO THE UNITED STATES DEPARTMENT OF JUSTICE
Tim M. Durkin, Asst. U.S. Attorney or
Derek T. Taylor, Asst. U.S. Attorney
P.O. Box 1494, Ste. 340
Thomas S. Foley, Jr., Federal Courthouse
Spokane, WA 99210-1494
509 835-6319
[e-mail]

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3.

TO DEFENDANTS:
Walter Riley
c/o Toni Meacham
1420 Scooteney RD
Connell, WA 99326
509-488-3289
[e-mail]
Walter Riley
10505 SR 127
Pomeroy, WA 99347
Chad Lindgren
12802 SR 127
Pomeroy. WA 99347

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H.

Costs of Suit

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Except as otherwise stated above, each party to this Consent Decree shall bear

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its own costs and attorney's fees in this matter. However, should Plaintiff and/or

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Defendants subsequently be determined by the U.S. District Court to have materially

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breached or violated the terms - conditions of this SACD, or engaged in bad faith

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litigation, the offending party may be held, at the U.S. District Court’s discretion and

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in accordance with applicable law, to be liable for costs and/or attorney's fees

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resulting from that party’s noncompliance with obligations required by the SACD,

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and enforcement of the same.

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I.

Continuing Jurisdiction of the Court

1.

The Parties may seek enforcement of the requirements of the SACD by

motion to the District Court under its ongoing, continuing supervision created
herewith and/or any other legal action or remedy available by law. This Court shall
retain continuing jurisdiction over this action to enforce or modify the Consent
Decree, consistent with applicable law or to resolve all disputes arising hereunder, as
may be necessary or appropriate for construction or performance of the SACD.
2.

The Parties may seek enforcement of the requirements of the SACD by

motion to the District Court under its ongoing, continuing supervision created
hereunder and/or any other legal action or remedy available by law.
3.

During the pendency of the Consent Decree, any party may apply to the

Court for any relief necessary to construe and effectuate the intended purpose of this
Consent Decree.
J. Modifications
Upon its entry by the Court, this Consent Decree shall have the force and effect
of a final judgment. Any modification of this Consent Decree shall be in writing and

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shall not take effect unless signed by both the Plaintiff and the Defendants, and

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approved and entered by the Court.

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K.

Force Majeure

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All parties shall perform the actions required under this SACD within the time

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limits set forth or approved herein, unless the performance is prevented or delayed

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solely by events which constitute a Force Majeure event. A Force Majeure event is

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defined as any event arising from causes beyond the control of parties, including their

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employees, agents, consultants and contractors, which could not be overcome by due

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diligence, and which delays or prevents the performance of an action required by this

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SACD within the specified time period. A Force Majeure event does not include, for

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example, increased costs of performance, changed economic circumstances, changed

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labor relations, normal precipitation or climate events, or changed circumstances

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arising out of the sale, lease or other transfer or conveyance of title or ownership or

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possession of a site, or actions by either party, their employees, agents, consultants or

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contractors. A Force Majeure event would include fire, flood, acts of third parties,

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wildlife, or other Act of God which prevented completion of tasks on schedule. In the

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event either party believes a Force Majeure event will prevent timely completion of a

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task, they shall contact the other parties to determine if there is a dispute over the

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event, or to create a replacement schedule, as appropriate. Even if delay is the result of

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a Force Majeure event, performance will still be completed at the earliest opportunity.

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IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this
Order and to provide copies to counsel.
DATED this _____ day of October 2022.

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STANLEY A. BASTIAN
Chief United States District Judge

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are incorporated by reference into the parties’ Settlement Agreement and Consent
Decree (SACD):
Exhibit 1A:

2016 Aerial Photograph of Corps’ and Defendants’ properties,
with identified trespass – encroachment items;

Exhibit 1b:

2022 Aerial Photograph of Corps’ and Defendants’ properties,
with identified trespass – encroachment items (post Central
Ferry fire – 2022);

Exhibit 2:

2015 Aerial Photograph of Corps’ and Defendants’ properties
with environmental effects identified;

Exhibit 3:

Tentatively identified disposal area aerial map;

Exhibit 4:

Current estimate of projected Phases and related Costs of the
USACE’s Administrative Disposition process for transferring
title of the proposed 1/3-acre of property to Defendant(s);

Exhibit 5:

Description and schedule of restoration actions Defendants are
to perform on the subject USACE’s federal lands within the
Central Ferry HMU.

Exhibit 6:

2014 Survey Boundary Map

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The following attached Exhibits have been identified and stipulated upon, and

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INDEX OF INCORPORATED EXHIBITS

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EXHIBIT 1A

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EXHIBIT 4

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Exhibit 5
Restoration Conditions:
Defendant shall complete the following restoration actions on the affected federal lands where
livestock operations have occurred. Prior to engaging in restoration activities on Corps-managed
federal land, Defendants shall coordinate with the Corps representative identified in II.C.4 of the
Settlement Agreement/Consent Decree for access:
1) Remove/obliterate the primitive gravel/dirt road leading from Riley private land to the
carcass pit(s);
2) Arrange and pay for the repair the boundary markers (any damaged or removed carsonite
and witness post), by a state licensed surveyor, in order to prevent disagreement or
confusion regarding the boundary. Defendants also agree not to damage boundary
markers in the future or allow his livestock to do so.
3) Remediate any known or discovered toxic, hazardous or contaminated waste resulting
from prior cattle ranching operations, livestock trespasses and associated / identified
encroachments. The parties further acknowledge and agree that the settlement agreement
and consent decree does not relieve either party from responsibility for hazardous, toxic
or contaminated waste under other applicable state - federal laws.

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