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When recorded mail to:

Robert Mehlhaff

MEHLHAFF & HAY

Attorneys at Law

23950 S. Chrisman Road, Ste. A

P.O. Box 1129

Tracy, CA 95378-1129

Telephone: 209-835-3232

McGREGOR W. SCOTT

United States Attorney

YOSHINORI H. T. HIMEL

Assistant U. S. Attorney

501 I Street, Suite 10-100

Sacramento, California 95814

Telephone: 916-554-2760

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

WHITE LAKE MUTUAL WATER CO.,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant;

CIV. S-04-2565-LKK/DAD

STIPULATION AND ORDER FOR

COMPROMISE SETTLEMENT

UNITED STATES OF AMERICA,

Counterclaimant,

v.

WHITE LAKE MUTUAL WATER CO.,

Counterclaim Defendant.

WHITE LAKE MUTUAL WATER COMPANY, plaintiff and counterclaim defendant

("WLMWC"), and the UNITED STATES OF AMERICA, defendant and counterclaimant

("United States"), as the parties to the above-captioned action ("Parties"), through their

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undersigned attorneys, hereby agree and stipulate, subject to the approval of the Court as

provided for hereon, as follows:

1. The Parties enter into this agreement to establish a formula for cost sharing for the

operation and maintenance of certain drainage ditch segments and related facilities that handle

agricultural drainage from the service area of WLMWC and that are the subjects of reciprocal

drainage easements affecting the titles to the properties conveyed by the deed transfers

referenced in Appendix A hereto. The properties affected by the drainage easements consist

of properties conveyed by Burkhard Investment Company through intermediate transferees to

WLMWC (Appendix A, paragraph (a)) and to the United States (Appendix A, paragraph (b)),

the latter property being administered by the Fish and Wildlife Service, an agency of the

Department of the Interior.

2. Definitions: The "Boundary Ditch" is a drainage ditch segment whose center line is

described in Appendix B hereto. The "Lower Ditch" is a drainage ditch segment whose upper

end is the lower end of the Boundary Ditch and whose center line is described in the

approximate courses in Appendix C hereto. The "Terminal Pumping Station" is located at the

downstream terminus of the Lower Ditch; its two pumps and gravity drain convey drainage

waters at that location through a levee, to sloughs connecting to the San Joaquin River. 

"Cleaning" of ditches means removal of unconsolidated materials.

3. The parties contemplate that the Boundary Ditch and the Lower Ditch can be

operated in a manner that accommodates the drainage from the WLMWC service area without

any widening of the ditches beyond their present width. To the extent that operation in this

manner ceases to be possible, this agreement is subject to reopening and may be modified as

herein provided.

4. Cleaning of the Boundary Ditch and Lower Ditch, which is anticipated to occur

some time during the months of May through September, as well as preventive and corrective

maintenance on the Terminal Pumping Station, will be scheduled solely by the United States. 

During any calendar year the United States will determine whether unconsolidated materials

are obstructing ditch flow and may, in its discretion, forego cleaning. If WLMWC disputes

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the decision of the United States to forego cleaning and asserts that unconsolidated materials

are obstructing ditch flow to the degree that cleaning is required, and if the matter cannot be

resolved by negotiation within a reasonable time up to one month following written request by

WLMWC for such cleaning, then the Parties shall proceed to resolve the dispute as provided

in paragraph 23, below.

5. The costs of operating and maintaining the Boundary Ditch, the Lower Ditch and

the Terminal Pumping Station, incurred from 2003 until further order of this Court or further

written agreement of the Parties, shall be borne by the Parties in the following proportion: 

Forty-Four Percent (44%) by WLMWC, and Fifty-Six Percent (56%) by the United States.

6. Except for the Boundary Ditch and Lower Ditch defined above, WLMWC hereby

forever releases and waives all claims of easements or rights to drain across the land owned

by the United States and conveyed in the instruments listed in Appendix A, paragraph (b),

hereto. WLMWC shall hold harmless, indemnify and defend the United States from any

claim, by it or anyone else, for costs of operation and maintenance of any drainage ditch or

facility located on any of the property conveyed in the instruments listed in Appendix A,

paragraph (a), hereto.

7. Except as provided for herein, the United States forever releases and waives any

claims for costs of operation and maintenance of the Boundary Ditch, Lower Ditch and

Terminal Pumping Station defined above.

8. Except as provided for herein, WLMWC shall not be liable to the United States for

any costs of operation and maintenance of any drainage ditch or facility located on any of the

federal property conveyed in the instruments listed in Appendix A, paragraph (b), hereto.

9. Operation and maintenance costs for the Boundary Ditch, the Lower Ditch and the

Terminal Pumping Station have been incurred but not billed by the United States during

calendar years 2002, 2003, 2004 and 2005. The manner in which WLMWC shall pay its 44%

share of those costs is as follows: The United States has presented to WLMWC evidence of

2002, 2003 and 2004 expenditures by it totaling $54,300, and requests the 44% sharing as to

costs totaling $52,249. The United States will forego reimbursement of 2002 costs attributed

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to employee labor and services. The United States may present evidence of further such

expenditures incurred between January 1, 2005, and the filing date of the Order filed by the

Court approving this stipulation (hereinafter, "Order"; "pre-Order"). WLMWC may verify

that the expenditures reflected therein are in fact related to operation and maintenance of the

Boundary Ditch, the Lower Ditch or the Terminal Pumping Station. To pay WLMWC's 44%

share of such verified 2003, 2004 and pre-Order 2005 expenditures, WLMWC shall, upon

request by the United States, pay operation and maintenance costs incurred on or after the

filing date of the Order, directly and in full, until the cumulative total paid under this term by

WLMWC reaches 44% of the sum of the cumulative verified 2003, 2004 and pre-Order 2005

expenditures by the United States plus 44% of the operation and maintenance costs incurred

on or after the filing date of the Order.

10. After the filing date of the Order, the Parties contemplate that the United States

will perform or arrange for the performance of all of the operation and maintenance work

done on the Boundary Ditch, the Lower Ditch and the Terminal Pumping Station. Upon

request, WLMWC shall pay its 44% proportionate share of the cost thereof.

11. The United States may, to the extent it deems necessary, remove any beaver dams

obstructing the Boundary Ditch or the Lower Ditch. The United States shall not request

reimbursement therefor. WLMWC shall not remove any beaver dams on the Boundary Ditch

but may request that the United States remove beaver dams. If WLMWC disputes the

decision of the United States not to remove a beaver dam, and asserts the beaver dam is

obstructing ditch flow to the degree that removal is required, and if the matter cannot be

resolved by negotiation within a reasonable time up to one month following written request

for such removal by WLMWC, then the Parties shall proceed to resolve the dispute as

provided in paragraph 23, below.

12. Each of the Parties shall designate a person to serve as a point of contact, and the

designated persons shall confer not later than May of each year on operation and maintenance

work to be done, scheduling, and disposal arrangements for sediments and spoil. Should the

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annual conference not take place, the lack of the annual conference shall not affect any rights

of the Parties hereunder.

13. The sediments and spoil removed from the Boundary Ditch during annual

maintenance shall be placed at locations designated and agreed upon by Party representatives

during the annual conference. The locations shall be on the WLMWC side of the property

boundary in the next two years in which ditch cleaning is conducted after 2005. After the

second of the two post-2005 years mentioned in the preceding sentence, such sediments and

spoil shall be placed on the United States side for the next year in which ditch cleaning is

conducted, then alternated between the WLMWC side and the United States side for years in

which ditch cleaning is conducted thereafter.

14. If either Party, in its sole discretion, determines that the sediments and spoil

removed from the Boundary Ditch or the Lower Ditch by the maintenance contemplated

hereunder and placed upon, or to be placed upon, its land is detrimental to its land or land use,

it may elect to dispose of such sediments and spoil by hauling it to the nearest place of

disposal that will take such sediments and spoil. If the place of disposal is outside the lands

referred to in paragraph 1 hereof, the costs of such hauling and disposal shall be shared in the

proportions stated in paragraph 5 hereof.

15. The United States shall not be restricted from taking measures on its property, at

its sole expense, to protect habitats from the effects of the drainage in the Boundary Ditch that

occurs consistent with this agreement, including but not limited to improving the separating

berm, with or without the use of any and all sediments and spoil taken from the Boundary

Ditch or the Lower Ditch.

16. Nothing in this agreement shall be construed in a way that limits or restricts the

power of the United States or of the Fish and Wildlife Service to discharge fully their

responsibilities under applicable law.

17. WLMWC shall hold harmless, indemnify and defend the United States from any

actual or alleged liability or responsibility for the quality of the drainage water emanating

directly or indirectly from the lands in WLMWC's service area, including any claim of cost of

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cleanup or remediation related to such drainage water, or damage as a result of such drainage

water.

18. Each Party shall bear its own attorney's fees and costs related to this action.

19. Each Party hereby agrees to release and discharge the other Party of and from any

and all claims, demands, obligations, damages, liabilities, loss, cost or expense of any kind or

nature whatsoever, past or present, ascertained or unascertained, whether or not now known,

suspected or claimed, that relates to or arises from or is connected to the matters alleged in

their respective complaints and counterclaims, except the obligations created by this

Stipulation and Order for Compromise Settlement.

20. This release includes and is intended for the benefit of each of the Parties abovenamed, and any officers, employees, agents, accountants, attorneys, insurers, or insurance

carriers, or any other persons acting for, under, or in connection with such Parties, past or

present, and is a release of and from all claims, demands, actions, causes of action,

obligations, damages, liabilities, loss, cost or expense, of any kind or nature whatsoever,

including court costs and attorney's fees, past or present, ascertained or unascertained,

whether or not now known, suspected or claimed, except the obligations created by this

Stipulation and Order for Compromise Settlement.

21. Each Party hereby expressly waives the rights or benefits available under § 1542

of the Civil Code of the State of California, which provides that:

A general release does not extend to claims which the creditor

does not know or suspect to exist in his favor at the time of

executing the release, which if known by him must have

materially affected his settlement with the debtors.

22. This Stipulation and Order for Compromise Settlement is the compromise of

disputed claims and fully and finally settles all claims between the Parties, and is intended to

buy peace and to prevent any further involvement in the above-mentioned dispute. Neither

the payment of any consideration hereunder nor anything contained in this Stipulation and

Order for Compromise Settlement shall be interpreted or construed to be an admission on the

part of, nor to the prejudice of, any person or party named herein, and each such person or

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party hereto expressly denies any and all liability regarding the dispute or the transactions that

gave rise to the dispute.

23. The Parties agree that should conflicts, disagreements or grievances arise between

the parties concerning the terms or performance of this Agreement, and should good faith

negotiation fail to resolve the matter, the Parties shall make good faith efforts to resolve such

disputes through informal mediation or, by agreement in writing, through formal mediation,

before either Party commences any litigation.

24. The Parties understand and agree that this Stipulation and Order for Compromise

Settlement shall act as a full and final release of all claims, known or unknown, whether or

not asserted, arising from any dispute alleged, or that could have been alleged, in the

complaint and counterclaims in the above-entitled action. Each party fully understands that if

the facts in respect to which this Stipulation and Order for Compromise Settlement is

executed are found thereafter to be different from the facts now believed by any party

described herein to be true, each party expressly accepts and assumes the risk of such

possibility and of such different set of facts, and agrees that this settlement agreement and

release shall remain effective notwithstanding such difference.

25. Implementation of this agreement by the United States is subject to the

requirements of the Anti-Deficiency Act, 31 U.S.C. § 1341, and to the availability of

appropriated funds. The expenditure or advance of any money or the performance of any

obligation of the United States under this settlement shall be contingent upon appropriation or

allotment of funds. No breach of this agreement shall result and no liability shall accrue to

the United States if funds are not appropriated or allotted. To the extent permitted by law, the

San Joaquin River National Wildlife Refuge shall seek the appropriations needed to fulfill the

terms of this agreement.

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26. This Stipulation and Order for Compromise Settlement shall enure to the benefit

of each party hereto, their predecessors, successors, subsidiaries, affiliates, parentcorporations, representatives, assigns, agents, officers, directors, employees, and personal

representatives, past, present, and future, as well as anyone else who was or could be liable on

the claims that were or could have been raised in the complaint and counterclaim in this

action.

27. This Stipulation and Order for Compromise Settlement contains the entire

agreement of the Parties and may not be altered, amended, or modified in any respect, except

by a writing duly executed by the Party to be charged. Further, all prior agreements,

undertakings, oral agreements, and writings are expressly superseded hereby and are of no

force or effect.

Dated: November 2, 2005 WHITE LAKE MUTUAL WATER

COMPANY

By: MEHLHAFF & HAY

By: /s/ Robert Mehlhaff 

ROBERT MEHLHAFF

Attorneys for Plaintiff and

Counterclaim Defendant 

WHITE LAKE MUTUAL WATER

COMPANY

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Dated: October 31, 2005 McGREGOR W. SCOTT

United States Attorney

By: /s/ Y H T Himel 

YOSHINORI H. T. HIMEL

Assistant U. S. Attorney

Attorneys for Defendant and

Counterclaimant

UNITED STATES OF AMERICA

Of Counsel:

KAREN D. KOCH

Assistant Regional Solicitor

United States Department of the Interior

2800 Cottage Way, Room E-1712

Sacramento, CA 95825

Telephone: (916) 978-5687

Facsimile: (916) 978-5694

ORDER

It is APPROVED and SO ORDERED.

DATED: November 18, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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28 1 “735 OR 584” indicates the deed recorded at Vol. 735 of the Official

Records of Stanislaus County, at Page 584.

1

APPENDIX A

Paragraph (a):

The deeds from the Burkhard Investment Company (“BURKHARD”) to

the following persons and recorded at Volume and Page numbers

of the Official Records of Stanislaus County, California, as

indicated below, who transferred and assigned their water

rights and drainage obligations to WLMWC by subsequent the

grants and assignments, or who took title subject to a prior

transfer of those water rights and drainage obligations to

WLMWC, as shown in the recorded documents as indicated below:

(i) to Frank Goulart, a single man, dated 6/30/1941,

recorded 7/14/1941, at 735 OR 584 1 (referring to former

BURKHARD field No. 18A); water and drainage rights and

obligations transferred to WLMWC by grant and assignment

dated 9/13/1941 and recorded 10/30/1941, at 743 OR 279;

(ii) to Jose Alvarez and Lorenza Alvarez, husband and

wife, dated 8/27/1941, recorded 10/30/1941, at 740 OR 368

(referring to former BURKHARD fields No. 3, 17 and 9);

water and drainage rights and obligations transferred to

WLMWC by grant and assignment dated 9/13/1941, recorded

10/30/1941, at 740 OR 370;

(iii) to John J. Pedro and Olive Pedro, husband and wife,

dated 8/27/1941, recorded 10/30/1941, at 740 OR 375

(referring to former BURKHARD fields No. 4, 10 and 11N);

water and drainage rights and obligations transferred to

WLMWC by grant and assignment dated 9/13/1941, recorded

10/30/1941, at 740 OR 377;

(iv) to Fred E. Warner and Gertrude L. Warner, husband and

wife, dated 8/27/1941, recorded 10/30/1941, at 743 OR 281

(referring to former BURKHARD field No. 18); water and

drainage rights and obligations transferred to WLMWC by

grant and assignment dated 9/13/1941, recorded 10/30/1941,

at 743 OR 283;

(v) to May Flynn Jones, a widow, dated 8/27/1941, recorded

10/30/1941, at 743 OR 290 (referring to former BURKHARD

field 11S); water and drainage rights and obligations

transferred to WLMWC by grant and assignment dated

9/13/1941, recorded 10/30/1941, at 743 OR 291; and

(vi) to William R. Lewis and Viva L. Lewis, husband and

wife, dated 1/29/1942, recorded 3/13/1942, at 753 OR 44

(referring to former BURKHARD field No. 19); subject to

the prior transfer of water and drainage rights by

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BURKHARD to WLMWC dated 10/15/1941, and recorded

10/31/1941, at 743 OR 277

Paragraph (b): 

The deed from BURKHARD to Pietro Rampone, a single man, dated

6/12/1941, recorded on 7/14/1941 at 735 OR 588; title to which

later passed from Rampone to Frank Sarmento and Nancy Rampone

Sarmento, from the Sarmentos to Edwin E. and Hilma W. Hagemann

by deed recorded on 10/1/1965, at 2059 OR 610, and in 1999,

after Mr. Hagemann died, from his widow and her son (as cotrustee of the testamentary trust contained in Mr. Hagemann’s

will) to the United States of America by deed recorded on

1/29/1999 as Doc. No. 99-0009561-00 in the Official Records of

Stanislaus County, California.

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APPENDIX B

(Description of Boundary Ditch)

COMMENCING at the intersection of the centerline of the West

Stanislaus Irrigation District’s main intake canal, as shown

on the map recorded October 29, 1992, in Book 45 of Parcel

Maps, at Page 49, in the Office of the Stanislaus County

Recorder, with the centerline of West Stanislaus Road rightof-way, which is the most westerly corner of Parcel 2 per

Document #103387, Stanislaus County Records; thence leaving

said canal centerline and running along the center of the

right-of-way, North 45o17’58” East, 173.99 feet, to a 31⁄4 inch

U.S. Fish and Wildlife Service aluminum cap marked “7031, L.S.

4495, 1998”, on a #5 rebar on the easterly right-of-way of the

West Stanislaus Irrigation District main canal; thence leaving

said right-of-way, North 74o41’38” West, 208.99 feet, to a

P.K. nail with an aluminum washer marked “7032, L.S. 4495,

1998”; thence South 71o19’06” West, 111.06 feet, to a point on

the centerline of the BOUNDARY DITCH, from which a 31⁄4 inch

U.S. Fish and Wildlife Service aluminum cap marked “7033, L.S.

4495, 1998”, on a #5 rebar bears South 01o04’31” East, 16.64

feet, and the TRUE POINT OF BEGINNING of this description:

THENCE continuing along the centerline of said BOUNDARY DITCH

for the following 29 courses:

North 65o42’49” West, 539.22 feet;

North 48o45’49” West, 299.08 feet;

North 44o25’49” West, 382.03 feet;

North 06o19’49” West, 272.79 feet;

North 26o39’49” West, 253.39 feet;

South 89o38’11” West, 314.31 feet;

North 45o30’47” West, 88.32 feet;

North 45o40’49” West, 396.85 feet;

North 21o57’49” West, 366.74 feet;

North 36o29’49” West, 968.62 feet;

North 24o52’49” West, 270.15 feet;

North 28o39’49” West, 332.53 feet;

North 15o22’49” West, 307.47 feet;

North 26o39’11” East, 405.69 feet;

North 04o53’11” East, 479.73 feet;

North 36o33’48” West, 132.66 feet;

North 69o12’49” West, 369.19 feet;

North 67o48’49” West, 198.16 feet;

North 16o15’49” West, 148.90 feet;

North 02o12’49” West, 589.47 feet;

North 11o47’49” West, 256.77 feet;

North 03o39’49” West, 295.35 feet;

North 05o58’11” East, 531.75 feet;

North 23o45’11” East, 520.97 feet;

North 40o01’11” East, 778.41 feet;

North 22o32’11” East, 595.99 feet;

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North 32o14’10” East, 279.40 feet;

North 51o56’11” East, 819.84 feet;

North 18o34’11” East, 272.57 feet;

To the point of termination of the BOUNDARY DITCH.

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APPENDIX C

(Description of Lower Ditch)

COMMENCING at the point of termination of the BOUNDARY DITCH

described hereinabove; thence along the centerline of the

LOWER DITCH for the following 14 courses:

South 60o23’51” East, 490.31 feet;

North 04o03’13” West, 137.01 feet;

North 06o58’06” East, 222.15 feet;

North 76o15’49” East, 113.50 feet;

South 86o29’47” East, 120.28 feet;

North 80o32’16” East, 223.55 feet;

North 71o44’14” East, 258.00 feet;

South 80o08’03” East, 285.98 feet;

North 37o39’50” East, 100.24 feet;

North 00o30’58” West, 271.97 feet;

North 44o11’35” East, 246.03 feet;

North 56o21’32” East, 332.55 feet;

North 67o05’39” East, 188.84 feet;

North 37o15’59” East, 141.62 feet;

To the pumping station that pumps said DRAINAGE WATERS into

the San Joaquin River or the slough connecting to the San

Joaquin River (herein called the “TERMINAL PUMPING STATION”)

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