In the United States Court of Federal Claims

No. 20-288C

(Filed: June 21, 2021)

STATE OF OHIO,

Plaintiff,

v.

UNITED STATES,

Defendant.

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Suit for breach of contract; contract based 

on Water Supply Act of 1958, as 

amended, 43 U.S.C. § 390(b); crossmotions for partial summary judgment

Ian F. Gaunt, Assistant Attorney General, Environmental Enforcement Division, State of 

Ohio, Columbus, Ohio, for plaintiff. With him on the briefs were Dave Yost, Ohio Attorney 

General, Daniel J. Martin, and Amber Wootton Hertlein, Assistant Attorneys General, State of 

Ohio, Columbus, Ohio.

Ioana Cristei, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were 

Brian M. Boynton, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and 

Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., as well as Daniel Inkelas, Assistant Counsel, 

Office of the Chief Counsel, and Lauren R. Horner, Assistant District Counsel, Louisville 

District, United States Army Corps of Engineers.

OPINION AND ORDER

LETTOW, Senior Judge.

The State of Ohio seeks redress for the United States Army Corps of Engineers’ alleged

violation of a contract relating to flood control and water supply at the Caesar Creek Project (the 

“Project”) in Southwestern Ohio. The contract, executed by Ohio and the Corps in 1970 

pursuant to the Water Supply Act of 1958, Pub. L. No. 85-500, Title III, § 301 (codified at 43 

U.S.C. § 390b), stipulated that the parties would share the “annual experienced joint-use 

operation and maintenance costs of the Project.” First Am. Compl. Ex. A Art. 5.c.(1) (the 

“Contract”), ECF No. 23-2. Ohio alleges, inter alia, that “[t]he United States has charged—and 

continues to charge—the State of Ohio for costs not authorized by the . . . Contract.” First Am. 

Compl. ¶ 45, ECF No. 23-1.
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Pending before the court are the parties’ cross-motions for partial summary judgment. 

See Pl.’s Mot. for Partial Summ. J. (“Pl.’s Mot.”), ECF No. 26; Def.’s Resp. & Cross-Mot. for 

Partial Summ. J. (“Def.’s Cross-Mot.”), ECF No. 32. Following the completion of briefing, see

Pl.’s Reply & Resp. (“Pl.’s Reply”), ECF No. 33; Def.’s Reply, ECF No. 36, the court held a 

hearing on May 21, 2021. The court concludes that “joint-use operation and maintenance costs 

of the Project,” Contract Art. 5.c.(1), are those necessary “to maintain [the Project] as an efficient 

going concern,” Nampa & Meridian Irrigation Dist. v. Bond, 268 U.S. 50, 53 (1925), i.e., “to 

operate [the Project] effectively” for water storage, water availability, and flood control, id., and

“to remedy injurious effects resulting from the [P]roject’s subsequent operation,” Casitas 

Municipal Water Dist. v. United States, 543 F.3d 1276, 1284 (Fed. Cir. 2008). Because 

allegedly extraneous costs are at issue, plaintiff’s motion is GRANTED IN PART and the 

government’s cross-motion is DENIED. 

BACKGROUND1

A. The Flood Control Act and the Water Supply Act

The Flood Control Act of 1938 “[a]uthoriz[ed] the construction of certain public works 

on rivers . . . for flood control, and for other purposes.” Pub. L. No. 75-761, 52 Stat. 1215. 

Congress passed the Act in response to the Ohio River flood of 1937, see Ohio v. United States, 

150 Fed. Cl. 173, 176 (2020), and the Little Miami River in Ohio, of which Caesar Creek is a 

tributary, was identified as an appropriate site for a future reservoir in the Ohio River Basin, see 

id.; see also H.R. Rep. No. 75-2353, at 11 (1938). The Act specifically references the plan for 

the Ohio River Basin as a “general comprehensive plan for flood control and other purposes.” 

52 Stat. at 1217. Congress further adopted the Water Supply Act of 1958, and the Act’s 1963 

amendments, for a similar purpose, see Pub. L. No. 85-500, § 301(a) (1958) (codified as 

amended at 43 U.S.C. § 390b(a)); Pub. L. No. 88-140, 77 Stat. 249, and “authorized the U.S. 

Army Corps of Engineers ‘to impound water for present or anticipated future demand or need for 

municipal or industrial water’ in its reservoir projects.” Ohio, 150 Fed. Cl. at 176 (quoting 43 

U.S.C. § 390b(b)). The Water Supply Act, as amended, briefly addresses operation and 

maintenance costs, asserting that a state such as Ohio can obtain permanent rights to water 

storage space so long as the state “continue[s] payment of annual operation and maintenance 

costs allocated to water supply.” Pub. L. No 88-140, § 3 (codified at 43 U.S.C. § 390e). 

B. The Contract

In January of 1970, the parties established a flood control contract related to the Caesar 

Creek Reservoir Project in Ohio. Contract at 1. The Contract was entered pursuant to the Flood 

Control Act of 1938 and the Water Supply Act of 1958 to manage water supply needs and reduce 

flooding risks along various rivers, including the Little Miami River in Ohio. See id. The Corps

1 The recitations that follow are not findings of fact but rather are recitals attendant to the 

pending motions and reflected matters drawn from the complaint, the parties’ briefs, and the 

records and documents appended to the complaint and briefs.
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agreed to operate and enhance the Caesar Creek Project by adding water storage capabilities and 

supply. See id. Art. 1.d. Under the Contract, Ohio gained “the right . . . to utilize an undivided 

48.7 percent of the storage space in the Project between elevations 800.0 and 846.0 feet above 

mean sea level as deemed necessary by the State to impound water for municipal and industrial 

use and to make withdrawals therefrom at any time,” a storage space “estimated to be 80,400 

acre-feet.” Id. Art. 1.a. 

Article 5 of the Contract provided that Ohio agreed to pay the United States a variety of 

costs, including a portion of the Project’s operation and maintenance costs. Contract Art. 5. 

Specifically, the Contract stated that “[t]he State shall pay 12.70 percent of the annual 

experienced joint-use operation and maintenance costs of the Project” on an annual basis. Id. 

Art. 5.c.(1). The Contract did not define what costs could be considered operation and 

maintenance costs, but it did provide that the United States’ contracting officer possessed 

discretion to determine the appropriate amount of operation and maintenance costs. Id. Art. 

5.c.(3). Ohio could request additional operation and maintenance, but the State would be 

responsible for “the entire cost of such additional expense.” Id. 

C. Procedural History

Ohio filed suit in this court in March 2020. See Compl., ECF No. 1. Among other 

claims, Ohio disputed numerous “facially improper line items” charged by the Corps as 

operation and maintenance expenses. Compl. ¶ 30; see also First Am. Compl. ¶ 30. Ohio 

specifically challenged charges related to “birdseed, parking lots, pedestrian bridges, 

environmental management, water quality testing, travel orders, tree removal, and community 

outreach.” First Am. Compl. ¶ 30. Ohio anticipated identifying additional improper charges 

because “[m]any other expense items lacked sufficient detail to determine whether they relate to 

operation and maintenance for the flood control and water supply [P]roject.” First Am. Compl. ¶ 

31. 

The government subsequently moved to dismiss the complaint. Def.’s Mot. to Dismiss, 

ECF No. 9. The court granted the government’s motion in part, dismissing Ohio’s takings claim, 

but otherwise denied the motion. See Ohio, 150 Fed. Cl. 176. Ohio filed its first amended 

complaint on February 8, 2021. See First Am. Compl.; Order of February 8, 2021, ECF No. 24. 

The government filed its answer to the amended complaint on February 22, 2021. See ECF No. 

25. Four days later, Ohio filed its motion for partial summary judgment, contending that it “is 

entitled to partial summary judgment on the scope of the water supply contract’s definition of 

‘joint-use operation and maintenance costs of the Project’ as a matter of law.” Pl.’s Mot. at 5. 

The government filed a response and cross-motion for partial summary judgment, in which it 

countered that “Ohio is obligated to pay 12.7 percent of the annual joint-use operation and 

maintenance expenses that the contracting officer deems necessary to operate and maintain the 

[P]roject for its authorized purposes.” Def.’s Cross-Mot. at 12-13. The cross-motions were fully 

briefed, see Pl.’s Reply; Def.’s Reply, and the court held a hearing on May 21, 2021.2

2 The transcript of the hearing was filed on June 1, 2021 and will be cited as “Hr’g Tr. 

Page Number:Line Number,” omitting the hearing date from the citation.
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STANDARDS FOR DECISION

A. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of 

the Rules of the Court of Federal Claims (“RCFC”). A material fact is one that “might affect the 

outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (interpreting 

Fed. R. Civ. P. 56).3

 A genuine dispute exists when the finder of fact may reasonably resolve the 

dispute in favor of either party. Id. at 250.

The movant bears the burden of demonstrating the absence of any genuine disputes of 

material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and must “cite[] to 

particular parts of materials in the record, including depositions, documents, electronically stored 

information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or 

other materials,” RCFC 56(c)(1)(A). The court may consider other materials in the record even 

if not cited by the parties. RCFC 56(c)(3). “[T]he inferences to be drawn . . . must be viewed in 

the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 

655 (1962)). If the record taken as a whole “could not lead a rational trier of fact to find for the 

non-moving party, there is no ‘genuine issue for trial’” and summary judgment is appropriate. 

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

When both parties have moved for summary judgment, “the court must evaluate each 

party’s motion on its own merits, taking care in each instance to draw all reasonable inferences 

against the party whose motion is under consideration.” Mingus Constructors, Inc. v. United 

States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation omitted). “The fact that both parties have 

moved for summary judgment does not mean that the court must grant judgment as a matter of 

law for one side or the other.” Id. “To the extent there is a genuine issue of material fact, both 

motions must be denied.” Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 969 (Fed. 

Cir. 2009) (citation omitted).

B. Interpretation of Contracts on Summary Judgment

The meaning of contract terms properly can be evaluated on summary judgment, 

provided that the contractual language is not ambiguous. See Lucent Techs., Inc. v. Gateway, 

Inc., 543 F.3d 710, 717 (Fed. Cir. 2008); Crown Laundry & Dry Cleaners v. United States, 29 

Fed. Cl. 506, 515 (1993) (citation omitted) (“Pure contract interpretation is a question of law 

which may be resolved on summary judgment.”). In interpreting a contract, a court begins with 

the language of the agreement. Jowett, Inc. v. United States, 234 F.3d 1365, 1368 (Fed. Cir.

2000); Record Steel & Constr., Inc. v. United States, 62 Fed. Cl. 508, 513 (2004). If the terms of 

3 Because RCFC 56 mirrors Fed. R. Civ. P. 56, the rules should be interpreted in pari 

materia. 
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the contract are unambiguous, the court must give effect to the plain meaning and may not look 

to extrinsic evidence as an interpretative guide. Barron Bancshares, Inc. v. United States, 366 

F.3d 1360, 1375 (Fed. Cir. 2004). In interpreting a contract, the court is to read the contract as a 

whole and endeavor to give a reasonable meaning to all its provisions. Jowett, 234 F.3d at 1368 

(citations omitted). 

Further, where a contract fulfills or implements a statutory requirement, the underlying 

statute must guide the court’s interpretation of the contract. Dalles Irrigation Dist. v. United 

States, 82 Fed. Cl. 346, 355 (2008). In these circumstances, “the express terms of the . . . 

contract are illuminated by the authorizing legislation . . . and, to a lesser extent, by other 

background legislation.” Id. at 355-56. As the Federal Circuit has explained: “[W]hen . . . the 

contract implements a statutory enactment, it is appropriate to inquire into the governing statute 

and its purpose.” Columbus Reg’l Hosp. v. United States, 990 F.3d 1330, 1345 (Fed. Cir. 2021) 

(quoting Roedler v. Department of Energy, 255 F.3d 1347, 1352 (Fed. Cir. 2001)).

ANALYSIS

A. Ohio’s Motion for Summary Judgment

Ohio seeks partial summary judgment, requesting that the court adopt a definition of the 

contractual term “joint-use operation and maintenance costs of the Project.” Pl.’s Mot. at 5. 

Ohio argues that the Contract imposes two limitations on the operation and maintenance costs: 

first, that “[t]he costs charged to the State must be for operation and maintenance,” and second, 

that “the costs charged to the State for operation and maintenance must be for the shared Caesar 

Creek Project.” Id. Under Ohio’s definition, operation and maintenance costs must be “related 

to flood control, water storage, and water supply,” id. at 7, and be spent “to operate and keep the 

[P]roject in working order or fix problems caused by the [P]roject,” id. at 5. Ohio avers that the 

plain language of the Contract controls, and that the authorizing statutes and their legislative 

histories inform its arguments. Id. at 5-13. The United States counters that, in support of its 

proposed definition, Ohio relies on extrinsic evidence. Def.’s Cross-Mot. at 7-11. By using this

evidence, the United States asserts that Ohio implicitly concedes that the contract language is 

ambiguous. Id. at 7-11. 

The starting point for this analysis is the contractual language. The Contract provides 

that the Project is “the Caesar Creek Reservoir on Caesar Creek, a tributary of the Little Miami 

River,” construction of which “was authorized by the Flood Control Act” of 1938 and would 

include “storage for municipal and industrial water supply.” Contract at 1. The Project is listed 

as a “multi-purpose project” with the goals of “flood control,” “water quality control,” and 

“water supply.” Id. Ex. B (emphasis omitted). Ohio agreed to pay costs in accordance with the 

provisions of the Water Supply Act of 1958, as amended. Id. at 1. Among other costs, the 

Contact specified that Ohio “shall pay 12.70 percent of the annual experienced joint-use 

operation and maintenance costs of the Project.” Id. at Art. 5.c.(1). Further, the contracting 

officer had discretion to determine “[t]he extent of operation and maintenance of the Project” and 

would provide records of such costs to Ohio “for inspection and examination.” Id. at Art. 5.c.(3). 

Ohio would “bear the entire cost” of operation and maintenance expenses that were above those

“deemed necessary by the Contracting Officer.” Id. 
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The parties’ arguments center around questions of the proper scope of the Project, the 

definition of operation and maintenance costs, and the definition of joint use. Ohio argues that 

the plain language of the Contract, binding precedent, and the associated statutes should guide 

the court’s analysis.4 The government avers, however, that the plain language of the Contract 

provides substantial discretion to the contracting officer to decide what charges count as 

operation and maintenance.

The court finds that the contractual language plainly places requirements on what can be 

operation and maintenance costs for which Ohio is obligated to pay. Operation and maintenance 

costs must be “joint-use” and they must be “of the Project.” Contract Art. 5.c.(1). While the 

United States is correct that the contracting officer retains discretion as to the appropriate amount 

of operation and maintenance costs to charge Ohio, see Def.’s Cross-Mot. at 12-13; Contract Art. 

5.c.(3), the contracting officer does not have discretion to determine the definition of the Project 

and attendant joint-use costs. Accordingly, the contracting officer cannot charge Ohio for costs 

that are not joint use, not for operation and maintenance, or not related to the Caesar Creek 

Project.

The parties focus on the definition of “joint use” in delineating the operating and 

maintenance expenses that can be charged to Ohio under the contract. The government states 

that joint use means that the costs can have “two or more purposes,” Hr’g Tr. 23:3-4, while Ohio 

implies that joint-use instead should be understood in the context of the shared Project at Caesar 

Creek, see Pl.’s Reply at 4; see also Hr’g Tr. 21:4-8 (United States: “[Ohio] also name[s] 

something that [it] call[s] the ‘shared project,’ but that’s not actually found anywhere in the 

contract, and nor does Ohio explain what this mean or if this is something that’s different from 

‘joint use,’ which is, in fact, found in the [C]ontract.”). 

The Contract contrasts “joint-use” with “specific-use.” See, e.g., Contract Ex. B, Sheet 5 

(line item 23 “Allocated construction costs of joint-use lands & facilities” lists multiple purposes, 

such as flood control, water quality and water supply, and recreation, while line item 24 

“Construction costs of specific-use lands & facilities” has a single purpose, recreation).

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 In 

short, joint-use costs refer to expenses which serve multiple purposes, while specific-use costs 

4 The language defining the Project, including the incorporation of the authorizing 

statutes, is stated in the contract’s recitals. See Contract at 1. Ohio indicated that it believes the 

recitals “comport with [its] analysis of the rest of the contract.” Hr’g Tr. 9:24 to 10:1. While 

courts generally “do not interpret recitals as binding contractual obligations,” Rocky Mountain 

Helium, LLC v. United States, 145 Fed. Cl. 662, 666 n.6 (2019) (citation omitted), recitals “may

be read in conjunction with the operative portions of a contract in order to ascertain the intention 

of the parties.” KMS Fusion, Inc. v. United States, 36 Fed. Cl. 68, 77 (1996), aff’d, 108 F.3d 

1393 (Fed. Cir. 1997). Therefore, the court will read the recitals together with the contract 

language to discern the meaning of the contractual terms at issue. 

5 At this juncture, the court need not resolve the question of whether the sheets appended 

to Exhibit B of the Contract are actually part of the Contract itself. For purposes of the crossmotions, the court will take them into account.
7

refer to expenses for recreational purposes only. See id. Looking at the Contract as a whole, 

Jowett, 234 F.3d at 1368, the court determines that the Contract defines “joint-use” as pertaining 

to more than one contractually specified use and that this definition applies throughout the 

Contract. 

The court next turns to the core argument—the definition of operation and maintenance. 

The Contract does not provide a direct definition of operation and maintenance costs, other than 

the statements included in Article 5. See Contract Art 5.c. Both parties rely on Nampa & 

Meridian Irrigation District v. Bond, 268 U.S. 50 (1925), and Casitas Municipal Water District 

v. United States, 543 F.3d 1276 (Fed. Cir. 2008), in support of their arguments. See, e.g., Pl.’s 

Mot. at 6; Def.’s Cross-Mot. at 12. In Nampa, the Supreme Court of the United States provided 

a definition for what could be considered an operation and maintenance charge. Nampa, 268 

U.S. at 53. Generally, costs are considered “maintenance and operating expenses” when those 

“expenditures [are] made to maintain [the system] as an efficient going concern, and to operate it 

effectively to the end for which it was designed.” Id. The Federal Circuit, relying upon Nampa, 

further stated that “costs . . . incurred after the project was completed to remedy injurious effects 

resulting from the project’s subsequent operation” were properly characterized as operation and 

maintenance costs. Casitas, 543 F.3d at 1284. Costs of the initial construction of the Project, for 

example, could not be charged as operation and maintenance, but later remedial construction

could be classified as such. See id. at 1283-84. Accordingly, expenses charged to Ohio as 

operation and maintenance costs must be (1) “to maintain [the Project] as an efficient going 

concern,” Nampa, 268 U.S. at 53, (2) “to operate [the Project] effectively to the end[s] for which 

it was designed,” id., or (3) “to remedy injurious effects resulting from the [P]roject’s subsequent 

operation,” Casitas, 543 F.3d at 1284.

The purposes and goals of the Project are relevant to this analysis both as to the scope “of 

the Project” as well as to whether expenses are, in fact, “operation and maintenance costs.” See 

Contract Art. 5.c.(1). The Contract provides that “construction” of the Project and “storage” of 

water “for municipal and industrial water supply,” id. at 1, as well as “flood control,” and “water 

quality control,” id. Ex. B, are purposes of the Project. The court’s analysis is further informed by 

the authorizing statutes referenced by the contract. See Dalles Irrigation, 82 Fed. Cl. at 355 

(“[T]he express terms of the . . . contract are illuminated by the authorizing legislation.”). The 

parties agree that the underlying legislation is relevant and important to proper resolution of this 

issue. See Hr’g Tr. 25:4-6 (United States: “[T]he underlying legislation is absolutely important to 

look at in making this determination.”); id. 11:2-5 (Ohio: “Our position is that [the statutes] . . . 

are helpful guidance in interpreting the contract.”). The Flood Control Act of 1938 authorized 

construction, such as the Caesar Creek Project, “for flood control, and for other purposes.” Pub. 

L. No. 25-761, 52 Stat. 1215. The declared policy of the Water Supply Act of 1958 was to 

“develop[] water supplies for domestic, municipal, industrial, and other purposes” and to facilitate 

cooperation “in connection with construction, maintenance, and operation of Federal navigation, 

flood control, irrigation, or multiple purpose projects.” 43 U.S.C. § 390b(a). The statutory 

provisions authorizing the parties to enter into this Contract, combined with Nampa and Casitas, 

indicate that “operation and maintenance costs” should be interpretated as those necessary “to 

maintain [the Project] as an efficient going concern” “to operate [the Project] effectively” for the 

Project’s water storage, water availability, and flood control purposes, or “to remedy injurious 

effects resulting from the [P]roject’s subsequent operation.” Nampa, 268 U.S. at 53; Casitas, 543 
8

F.3d at 1284.6

 Expenses that fit within the above definition can be properly charged as operation 

and maintenance expenses. 

The United States suggests that the definition of operation and maintenance cannot be 

determined absent discovery as to the specific charges Ohio alleges it was wrongly charged as 

operation and maintenance. Def.’s Cross-Mot. at 12 (“Additional discovery is needed to 

determine both the costs at issue and any facts rendering those costs not properly chargeable 

under the contract.”) The government argues that, as the Supreme Court stated in Nampa, “[t]he 

same kind of work under one set of facts may be chargeable to construction and under a different 

set of facts may be chargeable to maintenance and operation.” Nampa, 268 U.S. at 54 (citation 

omitted); see also Nampa & Meridian Irrigation Dist. v. Bond, 288 F. 541, 541 (9th Cir. 1923), 

(“[T]he term ‘operating expense’ is a broad and comprehensive one, and its meaning in a given 

case depends on the nature and amount of the expenditure, and all the surrounding 

circumstances.”), aff’d, 268 U.S. 50. Therefore, the United States avers that the court cannot 

establish a definition for this contract term absent knowledge of the specific costs alleged to be 

inappropriately charged. Def.’s Cross-Mot. at 12. The court finds, however, that adopting a 

definition for joint-use operation and maintenance costs does not run afoul of Nampa. Contrary 

to the government’s suggestion that granting summary judgment for Ohio requires this court to 

decide “what costs this contract language applies to,” Def.’s Reply at 2, providing a working 

definition of the contractual term at issue here does not determine whether the specific charges 

Ohio challenges are properly chargeable as operation and maintenance. Those determinations 

require a factual record currently being developed through discovery and, as such, would be 

inappropriate for the court to evaluate on summary judgment. See Anderson, 477 U.S. at 248 

(“[T]he requirement is that there be no genuine dispute of material fact.”) (emphasis omitted).

The United States further contends that by granting summary judgment, the court is 

issuing an advisory opinion because it does not resolve “any claim or part of a claim.” Def.’s 

Cross-Mot. at 11. The United States is correct that Rule 56 of the Rules of the Court of Federal 

Claims provides that a party moving for summary judgment must “identify[] each claim or 

defense—or the part of each claim or defense—on which summary judgment is sought.” RCFC 

56(a); see Def.’s Cross-Mot. at 11. Nonetheless, a grant of partial summary judgment to Ohio 

would not offend Rule 56. Ohio’s suit seeks to establish that the United States is incorrectly 

overcharging it for joint-use operation and maintenance costs under the Contract, see First. Am. 

Compl. ¶¶ 23-36, 43-45, and Ohio’s motion for summary judgment clarifies part of this claim by 

establishing a definition for this contractual term, see generally Pl.’s Mot. The government’s

argument as to Rule 56, therefore, lacks merit.

6 The Contract provides that the costs must be for operation and maintenance of the 

Project. Thus, operation and maintenance costs can apply to “only . . . expenses necessary to 

operate and maintain the flood control, water supply, and water storage [P]roject.” Pl.’s Mot. at 

7.
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B. United States’ Motion for Summary Judgment

The government seeks partial summary judgment, requesting that the court find “that Ohio is 

obligated to pay 12.7 percent of the annual joint-use operation and maintenance expenses that the 

contracting officer deems necessary to operate and maintain the [P]roject for its authorized 

purposes.” Def.’s Cross-Mot. at 12-13. Ohio agrees with the United States’ interpretation

insofar as it correctly quotes the contractual language. Pl.’s Reply at 2 (“To the extent that the 

Government quotes the language of the [C]ontract, Ohio agrees that the [C]ontract says what the 

[C]ontract says.”) Ohio suggests that the United States’ request comports with a grant of 

summary judgment for Ohio because “the Government does not identify any interpretation other 

than the one Ohio asks this Court to confirm.” Id. The court agrees. As the court previously 

stated, see supra, the Contract does not grant the contracting officer discretion to define 

operation and maintenance or joint use as contractual terms, but rather he or she can determine 

the appropriate amount of expenses necessary to operate and maintain the Project and then

charge Ohio accordingly. The United States’ request, therefore, goes beyond the plain language 

of the Contract.

CONCLUSION

Under the Contract, joint-use operation and maintenance costs are those necessary “to 

maintain [the Project] as an efficient going concern,” Nampa, 268 U.S. at 53, “to operate [the 

Project] effectively” for water storage, water availability, and flood control, id., or “to remedy 

injurious effects resulting from the [P]roject’s subsequent operation,” Casitas, 543 F.3d at 1284, 

that pertain to more than one purpose of the Project. Therefore, plaintiff’s motion is GRANTED 

IN PART, and the government’s cross-motion is DENIED. 

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge