OBP005283

From: (b) (6)

To: (b) (6)
Subject: Fw: Proposed DRAFT Response to CCC
Date: Friday, March 28, 2008 7:31:41 PM

(b) & (b)

(6) (6)
Below email chain will catch you up on CCC.

Let me know if u have any questions.

Have a great weekend.

- (b)
(6)
----- Original Message -----
From: (b) (6)
To: (b) (6)

Cc: (b) (6)

Sent: Fri Mar 28 19:29:29 2008

Subject: Re: Proposed DRAFT Response to CCC

Sounds good - we'll catch up Monday.

Have a great weekend,

(b)
(6)
----- Original Message -----
From: (b) (6)
To: (b) (6)
Cc: (b) (6)

Sent: Fri Mar 28 19:24:00 2008

Subject: RE: Proposed DRAFT Response to CCC

(b) --
(6)I will make myself available to you to discuss this on Monday. I should be here by 7:30 my time
(same as California). Please let me know what time works for you. Send me an e-mail about the time
and let me know if you want to call me (b) (6) or if I should call you (send me a
number). I'll check my e-mail 1st thing when I walk in the door on Monday. In addition to our regular
Monday conference call, I have another one scheduled on Monday at 9:30 my time, but will ditch it for a
call with you.
We should be OK on the appraisal because it does give a fee value in the before condition. Since it
is under (b) (6) (and I think it would be even with the fence--I should have more on that by Monday
afternoon), we can be using an informal opinion of value.
As to the road--If it is our property, we can exclude others to the extent we want. If we want the
road to be open, we can leave it open for traffic, but not necessarily to free roaming cattle. I'm not
sure about New Mexico being a free range state. But even if it is, that does not mean that we have to
let anyone's cattle onto our property if we don't want to. It means that if we don't want them on, the
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onus is on us to fence them out. Generally in a free range situation, each party suffers his own loss
(there's the liability issue again). Fencing in/fencing out issues are interesting in New Mexico because
there is a whole body of law about fencing and cattle which I found very confusing. We can discuss
that on Monday, too.
(b)
(6)
________________________________

From: (b) (6)

Sent: Friday, March 28, 2008 3:43 PM
To: (b) (6)
Cc: (b) (6) ; GEPHART, GREG A;
FLOSSMAN, LOREN W; (b) (6)
Subject: Re: Proposed DRAFT Response to CCC

Thanks (b)
(6)
Can we sync up on Monday on all this?

In light of your review of the appraisal, I am thinking that we now need a new appraisal since the old
one was for an easement interest rather than fee; also because it didn't factor in the value of the
existing wire fence on the border - whether we need to forestall the DT until the right kind of appraisal
is done is the question?

Regarding liability, I follow you in that right now it's a CCC road that the BP uses, and in the future it'll
be a gov't owned road. Although I don't know about your comment regarding that their cattle have no
right to be on the road once the govt acquires it? I thoght cattle could roam over our property because
it was a 'free range' state? That would be good to clarify and insert into the response, if they can't
come onto govt property, but I also think we're treating these patrol roads as though they're open for
public access...

Looking forward to gaining as much closure as possible on Monday.

V/r
(b)
(6)
----- Original Message -----
From: (b) (6)
To: (b) (6)
Cc: (b) (6)
GEPHART,
GREG A <greg.gephart@dhs.gov>; FLOSSMAN, LOREN W <loren.flossman@dhs.gov>; (b) (6)

Sent: Fri Mar 28 18:12:01 2008

Subject: RE: Proposed DRAFT Response to CCC

(b) -
(6) I did not see any need to change your liability language. I just wanted to make sure you were
answering the way you did on purpose. But we may need to change the language depending on
whether or not we have the right to use the road on CCC's property because we may be changing the
situation from what it is currently. Saying that the liability situation will not change from what it is now
may not be true. I am basing this on my understanding --which may be incorrect--that the road that is
there currently is on CCC's property, but is within the 60 foot strip we are acquiring. If that is an
incorrect understanding, then what follows is also not correct. Right now the road is on CCC's property
and our rights are limited to whatever right has been granted. CCC has a right to make use of the
road, and its cows crossing that road is CCC's right as the property owner. If we acquire the road, then
CCC no longer has the right to let its cows cross the road. So the situation is not the same from a
liability standpoint--we would now own the road (we did not before) and CCC's cattle would not have
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the right to wander onto the road (which right CCC has now).
I did look at the appraisal. The appraisal did not take the fence into account in the appraisal. But
the appraisal was for an easement, not a fee take, so the assumption was that the construction would
not interfere with the fence. If we were only taking an easement and CCC continued to own the
property and we put up our fence, our fence would have had the same effect as the current barbed
wire fence to keep the cows on CCC's property. But that changes with a fee take. In the before
condition, CCC had a fence (even if it was in poor condition) at the boundary of its property to keep its
cows on its property. In the after, CCC no longer has a fence to keeps its cows on its property. Our
border fence will keep the cows from wandering into Mexico, but will not contain the cows on CCC's
property. Thus, our taking the fence is an item of damage to the CCC property and should be
compensated, either in cash or in kind, as a cure for the damage we have caused.
I hope this makes sense to you. If not, please let me know and maybe we should talk.
(b)
(6)
________________________________

From: (b) (6)

Sent: Thursday, March 27, 2008 4:49 PM
To: (b) (6)
Cc: (b) (6) GEPHART, GREG A;
FLOSSMAN, LOREN W; (b) (6)
Subject: Re: Proposed DRAFT Response to CCC

Thanks for the prompt feedback!

I was counselled to tone down the letter - in my original version, I actually used similar verbage as you
like "your assertion...." Etc., but I can tweak it to incorporate your lingo.

As for the liability issue, we have to address it in our rsponse, so if you want to take time to track
change that section, feel free, that would be helpful. I was not intending to assign liability to us or
them, just to state that after we're done it will be the same situation as it is today, and that BP covers
these matters with that form. Therefore liability isn't a basis for demanding wire fence from the govt.

I've only seen a picture of the existing border wire fence - it's so old and in such bad shape, the
depreciated value couldn't be much. It would be wise to see if it was incorporated into the appraisal
though if anyone can look into that.

Regarding fence relocation obloigation, it's a good question that we'll need to hash through...can u run
through your interpretation with (b) and (b) ?
(6) (6)
Thanks again,
(b)
(6)
----- Original Message -----
From: (b) (6)
To: (b) (6)
Cc: (b) (6)

Sent: Thu Mar 27 19:10:40 2008

Subject: RE: Proposed DRAFT Response to CCC

(b) --
(6) Thanks for the opportunity to comment on the proposed letter form Mr. Giddens to CCC.
As to the issue of the barbed wire fence--I like your approach that it was part of negotiations and
was not embodied in a final agreement. I suggest that the last paragraph of that section of the letter
be changed to read something like: "Your assertion that the government is being disingenuous assumes
that issues discussed during negotiations must always make their way into a contract. That is not true,
as is the case here, when the terms of the negotiation are subject to review and approval of a higher
OBP005286

authority before acceptance. The terms relating to the fence were negotiated, but were never
accepted."
I have another thought that I hate to bring up at this late date because I do not know if it was
looked at before. I don't know what has been considered in the way of either compensating for the
fence (Is the fence realty we are taking? Was it valued in the appraisal? If I am to get this to you
quickly, I don't have time to study the appraisal in EKO to see if it was included.) or if we have
relocation obligations (Is it considered personalty that we are not taking?). If the current state of the
CCC property is that it has a boundary line fence that we are taking, we may have to look at our
obligation to pay for it or relocate that fence to make CCC whole. Relocation obligations are in addition
to the compensation for the land acquisition, so it may not matter if the fence was discussed as during
the negotiations.
As to the liability issue--We do not address CCC's demand that the government hold CCC harmless
for injury or death that could take place on the to-be-acquired property. I don't know if that was
intentional or not. The United States, as a property owner, is liable for what happens on its property to
the extent permitted by law (primarily the Federal Tort Claims Act). There is an inference in your draft
about that by including the claim form, but it wasn't totally clear if that was where you were headed.
(b)
(6)
________________________________

From: (b) (6)

Sent: Thursday, March 27, 2008 2:42 PM
To: (b) (6)
Cc: (b) (6) ; GEPHART, GREG A;
(b) (6)
FLOSSMAN, LOREN W
Subject: Proposed DRAFT Response to CCC
Importance: High

(b) (6)

As (b) (6) is on travel this evening, she directed me to forward you this proposed response
letter for comment. We are looking to get this letter to Mr. Giddens as soon as possible, so your
attention is very much appreciated.

Following your review, we will ask DOJ to review it as well since they will soon be inheriting the issue
once this case moves into condemnation.

We will also run it by Border Patrol leadership and CBP Legal for concurrence.

We will then run any edits by you prior to release.

Hopefully we can release this by COB tomorrow.

Thanks much in advance,

OBP005287

(b) (6)

Secure Border Initiative - Tactical Infrastructure

Program Management Office

Office: (b) (6)

Blackberry: (b) (6)