Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 1 of 9

EXHIBIT A
 Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 2 of 9

THE L'NITED
IN TI-IE UNITED STATES COL'RT
COURT OF FEDERAL CLAIMS
CL.-\L\lS

)
ELDEN M. ELLIOTT; et al. )
)
Plaintiffs, )
) No. 92-309 L
5! )
) Honorable James F. :Vferow
Merow
THE
Tiffi UNITED STATES OF
u"NITED STATES OF AMERICA,
AMERICA. )
)
Defendant. )

STIPUIATION FOR Fl'TURE

JOINT STIPlTL.ATION FUTURE ENTRY OF
0F DIS.'.\1ISSAL
DISMISSAL

follows::
betmen counsel for the parties as follows
It is hereby stipulated between

WHEREAS, theParties
the Parties have been negotiating the tenns
have-beennegotiatingthe terms of an agreement to settle
ofan the
settlethe

aforesaid litigation;

WHEREAS, Plaintiffs
Plainfifis seek compensation for alleged takings of avigation easements

flights overflying
relating to flights preperty;
overflying or in the vicinity of 16 parcels of property;

Plaintifi's in the above-captioned matter have alleged that actions of the

WHEREAS, Plaintiffs

Defendant have resulted in the permanent

pennanent taking of an interest in their properties within the

ofthe
meaning of the Fifth Amendment to the United States Constitution and Defendant has denied such
and:

allegations and disagrees with the legal validity of such claims;

clm'ms;

WHEREAS, the parties are now in agreement

ageernent on the amount of any monetary payment

attorney’s
claiins, including all claims for attorney's
which should be expended for the settlement of all taking claims,

fees and costs; ‘

TIIBREFORE. Plaintiffs, through undersigned counsel,

THEREFORE, Plaintifi's, Defendant, through
Counsel, and Defendant.

tmdersigned counsel, jointly hereby stipulate and agree to dismissal of this case with prejudice
undersigned counseL

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 Case 1:19-cv-01407-EGB
1:19—cv-01407-EGB Document 1-2 Filed 09/12/19 Page 3 of 9

pursuant to Rule 41 (a)( 1)(ii) of the Rules of the Court of

41(a)(1)(ii) Federal Claims based upon the following
ofFederal

terms and conditions:

mutually acceptable settlement tenns

1. Defendant shall make a lump sum payment to Plaintiffs in the amount of

$750,000.00, in compromise and settlement of all claims which plaintiffs

plaintifl's brought,

or could have brought, in this litigation, including all claims for interest, attorneys'
attomeys’

fees and costs.

2. Each plaintiff retaining an interest in the property subject to a taking claim in this
Bach plaintifl‘retaining
I4

litigation shall execute and properly record the avigation easement pertaining to

their lot. The material terms of such avigation easements are attached as
ofsuch Exhibit
asExhibit

“A”.
"A".

3. fivePlaintifl‘s
As to the five Plaintiffs or their representatives who no longer retain an
ordteirrepresentativeswhonolongerretain interest in
aninteratin

the property subject

subjectto
to a taking claim in this litigation (and
takingclaimin (andthus grantsa
thus cannot grant

present interest in that property), Plaintiffs

Plaintifi's Francis, Hatch, Elliott (as to Parcel No.

S8440-00-00029-0), Turley, and the Clarence J. Newlin Marital Trust, it is agreed

ageed

that these Plaintiff's

Plaintiffs or their legally authorized representative will each execute and

record a stipulation with the following provision:

..
Pursuant to and in consideration for the settlement terms referenced
to,and
herein, it is hereby agreed that at a minimum an avigation easement
existed as to the Francis, Hatch, Elliott (Parcel No. S8440-00-
58440-00
00029-0), Turley and Newlin Trust properties at least as early as
1992 with the following attributes:
April 19, 19?2

A right of passage in and through the airspace above an elevation of

A
250 feet AGL over the Hatch and Twiey
Turley properties, and 1,000 feet
AGL over the Francis, Elliott, and Newlin Marital Trust properties,
together with the right 1) to cause in and through said airspace such
light ((1)
noise as has been inherent in the operation of A-3D, A-6E, EA-6B
EA-GB
lemer or comparable noise level or (2) to fly
or follow-on aircraft of lesser fly

-2-
-7.
H
Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 4 of 9

the aforementioned aircraft through said airspace no more than

flights per calendar year utilizing the Navy's
10,000 flights Navy‘s Outlying Field
“OLF Coupeville,”
Coupeville, hereinafter "OLF Coupeville,,. whichever is greater.
flights” in the foregoing sentence is based upon
“10,000 flights"
The term "10,000
the following calculation: one half of the level of operations
occurring at OLF Coupeville in 1969 passing through the airspace
reflect a historical 50/50 split in runway use (50%
of any parcel to reflect
nmway 14 and 50% of operations on runway 32),
of operations on runway
further divided in half
halfto reflect that two operations result in one
to reflect
flight.
flight, i.e., one operation is counted for each takeoff or landing,
(40,000 operations x Yz reflect historical 50/50 runway use] x Yz
V: [to reflect -'/z
reflect operation has two components]=
[to reflect flights per
components] = 10,000 flights
parcel).

Furthermore, Plaintiffs or his/her/their legally authorized

representative(s)
representativqs) agree to hold Defendant, United States of
hannless from any claim to compensation for the taking
America, harmless
claim settled by this stipulation or for any portion of the money paid
in order to settle this taking claim.
States'in
to Plaintiffs by the United States

4. flight operations in the avigation easements

It is understood that the descriptions of flight

and of the separate stipulations referenced at paragraph 3, supra, reflect

reflect actual

levels of
offlight
flight operations and their altitudes at OLF Coupeville which existed prior

to or on the date of
ofthe filing of
the filing the original complaint
ofthe in this litigation, April 19,
complaintin

1992.

5. Defendant will request that payment, in the form of a check (''the

(“the Check")
Check”) payable

to plaintiffs’
plaintiffs' counsel in the amount of $750,000.00 be transmitted by the

Department of the Treasury to the Department of the Navy ("the

ofthe Navy") at an
(“the Navy”)

address to be suppli~d
supplied at the time of the request.

6. The Navy will, upon receipt of the Check, notify 'Plaintifl's‘

Plaintiffs' counsel. Plaintiffs will

record and execute the easements and stipulations and will then exchange these
these for
for

the Check.

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Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 5 of 9

7. Within ten days

Within days after
after Plaintiffs
Plaintjfl's’' counsel receives the Check.
Check, Plaintiffs shall
shall? move
move. to
to
dismiss this case with prejudice.

8. No profision
~o provision of this Joint Stipulation will constitute or will be construed
constnted as a

connnitment or requirement
commitment requiremcnt that the United States or any of
ofits
its constituent agencies

or departments obligate or pay funds in contravention of the Anti-Deficiency

Anti-Deficiency Act,

31 U.S.C. § 1341, or any other applicable law or regulation. In the event that

Congress does not provide

pro-vi.de appropriations sufficient
sufiicient to fund the Defendant's
Defendant’s

Plaintifl's may continue with their legal

obligations under this Joint Stipulation, Plaintiffs

claims. In such event. the Defendant will have no further obligation to perform any

of the activities set forth in this stipulation.

ofthe

9. The parties have negotiated and executed this Joint Stipulation in good faith in

Stimulation does not and will not

litigtion. This Joint Stipulation
order to avoid protracted litigation.

comtitute an admission or adjudication \liith

constitute with respect to any allegation made by any

attomey’s fees or costs. Moreover, th.is

party, including any liability for attorney's this Joint

Stipulation does not and will not constitute an admission of any wrongdoing,

misconduct or liability by the United States, its departments or agencies, its officers
aficera

and employees (past or present) and their successors or assigns, or any contractors.

10. The undersigned representatives of each Party certify that they are fully authorized
authorimd

by the Party or Parties whom they represent to enter into the terms and conditions

th.is written Stipulation and to legally bind them to it.

ofthis
of

11...
11 This written Stipulation is intended to be and is the final sale agreement
final and sole

between the Parties. The Parties agree that any other prior or contemporaneous

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 Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 6 of 9

written Stipulation,
representations or understandings not explicitly contained in this \\.ritten

whether written or oral, are of no fitrther

further legal or equitable force or effect.
efi‘eet. Any

subsequent modifications
modifications to this Stipulation must be in writing, and must be signed
stated

and executed by the Parties and approved by the Court.

12. The provisions of this agreement shall apply to the Parties and anyone acting on

their behalf.

13. In the event either party believes

beliews that a material failure to comply \\.'1th terms set
with the temts

occurred, notice of the purported material failw·e

forth herein has occun-ed, failure shall be sent by

express overnight mail to counsel for the opposing party. ~o

No further action seeking

relieffmm
relief ofthe
from any of the terms of this stipulation shall be pursued until at least 30 days
ofthis

have elapsed from the date of the notice to counsel for the opposing party.

DATED this flatly

DATED this ofFebruary, 2002.
/'!~day ofFebruary, 2002..
Respectfully submitted,

Counsel for Plaintifi's:

Plaintiffs:
~~ifu-=-
Layman.
Layman Layman & 8r. McKinley
601 South Division Street
Spokane, WA 99202-1335
509-455-8883

Counsel for Defendant and [A

Authorized Representative of the United States:
Authonzed
DAVID W. S
General · · tion
on Section
Envir~ent
Em'im‘fitent >fatural
& Natural Resources Division
Dtvmon
c/o NCAA
NOAA Damage Assessment
7600 Sand Point Way NE
Seanle. 98115-0070
Seattle. WA 98115·0070
206-526--l603
206-526-4603

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Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 7 of 9

UNITED STA
STATES
TES COURT OF FEDERAL CLAIMS

l
ELDEN M.
y[. ELLIOTT l
_ l
Plaintiffs.
Plaintiffs.- l
i No. 9'.!-309L
92-3091.
v.
V. i
) Honorable James F. Merow
UNITED STATES OF AMERICA.
STATES )
)
Defendant.
Defendant l
l

EXHIBIT "A"
“A”

Filed for Record at Request of: N4425501 RPOOG

N4425501RPOOG_

GRANT OF AVIGATION EASEMENT

Between the United States of America.

America, herein called the Government or GRANTEE, acting
through the Department of the Navy,
Navy. and ,. as his separate property as to
an undivided one-half interest and ,. as her separate property as to an
an-
interest. herein called the GRANTOR.
undivided one-half interest,

WHEREAS
WHEREAS., "GRANTOR."
"GRANTOR," is the owner in fee of those certain parcels of land situated in
the County of Island, State of Washington
Washington,, more particularly described as follows:

WlTNESSETH:
WITNESSETH: That for and in consideration of a lump sum settlement,
settlement. receipt of
which is hereby acknowledged,
acknowledged. "GRANTOR,"
"GRANTOR." does,does. for itself and all its successors and
assigns, hereby grant to the Government as "GRANTEE," its successors and assigns, a
assigns,
perpetual avigation easement for the use and benefit
benefit of the public, over and across the
GRANTOR'S property,
property, hereinafter referred to as the "avigation easement area,"
area." the terms
of which are described as follows:

I. GRANTEE shall have,

have, for AasD.
A-3D. A-6E, EA-68
EA—6B or follow-on
follow—on aircraft
aircraft of lesser or
comparable noise level:
level:

right of passage in and through the airspace above an elevation of _

_ _ feet
AGL over Grantor's
Grantor’s property underlying said avigation easement area, area.
together with the right (1) to cause in and through said airspace
airSpace such noise
as has been inherent in the operation of the aforementioned aircraft or (2) to
Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 8 of 9

fly the aforementioned aircraft through said airspace no more than 10,000

fly
flights per calendar year utilizing the Navy's
Navy’s Outlying Field Coupeville,
Coupeville.
hereinafter "OLF Coupeville,"
Coupeville." whichever is greater. The term "1 flights"
0,000 flights"
"10,000
in the foregoing sentence is based upon the following calculation: one half
of the level of operations occurring at OLF Coupeville in 1969 passing
through the airspace of any parcel to reflect
reflect a historical 50/50 split in runway
use (50% of operations on runway 14 and 50% of operations on runway 32), 32).
flight, i.e.,
further divided in half to reflect that two operations result in one flight,
one operation is counted for each takeoff or landing, (40,000(40.000 operations x
Y2 reflect historical 50/50 runway use] x Yi
‘/2 [to reflect 1A: [to reflect
reflect operation has two
components] = flights per parcel).
= 10,000 flights

11.
ll. GRANTOR shall not make use of the easement area in any manner that would create
obstruction. or hazard that would interfere with the landing and taking off of
an obstacle, obstruction,
aircraft at the Navy's
Navy’s Outlying Field Coupeville. Nor shall GRANTOR erect or permit the
erection of any structure or objects of natural growth that would create an obstacle,
obstruction, or hazard to navigable airspace.
airspace.

Ill.
lll. Federal Aviation Regulations. 14 C.F.R.
CPR. Part 77,
77. define
define "obstacles, obstructions,
obstructions. and
hazards to navigable airspace," establish obstruction standards and procedures,
procedures. and
establish procedures for dispute resolution. These regulations shall be incorporated into
this easement, by reference.
reference.

lV. GRANTOR shall submit a copy of any Notice of Construction or Alteration

IV. Alteration., required by
Officer. Naval Air Station,
14 CFR Part 77, to Commanding Officer, Station. Whidbey Island
Island,, 3730 Charles
Porter Road Oak Harbor,
Harbor. WA 98278.

TO HAVE AND TO HOLD said easement and all rights appertaining thereto unto
the Government as GRANTEE,
GRANTEE. its successors and assigns.
assigns, it being understood and
agreed that these covenants and agreements shall run with the land land.. GRANTOR shall,
shall.
prior to effectuating a transfer of the GRANTOR'S
GRANTOR’S property,
property. advise any purchaser,
purchaser. grantee
or donee of all or part of the parcel of the terms of this grant of an avigation easement.

It is UNDERSTOOD that this easement is part of the settlement agreement entered

filed in the United States Court of Federal Claims
into by the respective parties in the action filed
entitled: ELDEN M. ELLIOTI,
ELLIOTT. et al. v. United States, 92-309 92—309 L. The terms of the
filed therein.
agreement are set forth in the Stipulation filed

IT IS FURTHER UNDERSTOOD that this instrument conveys unto the Government

such avigation rights above described in and over the streets and roads leading into,
adjacent or contiguous to the GRANTOR'S
GRANTOR’S property before described to the full extent of
GRANTOR'S rights or interest therein.
therein.

GRANTOR covenants and agrees to warrant and defend said easement and rights
of the Government and its assigns against the lawful claims and demands of all persons
whatsoever.
 Case 1:19-cv-01407-EGB Document 1-2 Filed 09/12/19 Page 9 of 9

The foregoing easement is given subject to existing rights of way for public
highways,
highways. roads
roads.. and ways, and public utilities.
utilities, if any.

IN WITNESS WHEREOF.
WHEREOF. the GRANTOR. above named,
named. has hereunto set its
its,
hands this day of .. 2001
2001..

[GRANTOR] ' - [GRANTOR]

Dated: - -- - - - - - -- -
Dated: Dated: - - - - - - -- --
Dated:

. State of - - - - - - - )

County of
County of _ __ __ __ I)
II certify that II know or have satisfactory evidence that _ _ _ _ __
is the person who appeared before me. me. and said person acknowledged that he signed
this instrument and acknowledged it to be his free and voluntary act for the uses and
purposes mentioned in the instrument.

Dated: - -------
Notary Public

Printed Name

My appointment expires_ _ _ __