B-161173, APR. 20, 1967

B-161173: Apr 20, 1967

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THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS: INCIDENT TO THE CONSTRUCTION OF AN ACCESS ROAD TO DWORSHAK DAM IT BECAME NECESSARY TO MAKE A DEEP CUT ON LAND BELOW YOUR PROPERTY. SEVERAL OF THE DRAINS WERE CONSTRUCTED ON YOUR LAND AFTER OBTAINING A RIGHT-OF-ENTRY PERMIT FROM YOU WHICH WAS SIGNED ON JUNE 1. IT IS YOUR CONTENTION THAT THE CORPS OF ENGINEERS ACTIVITIES ABOVE DESCRIBED HAVE RESULTED IN A TAKING OF AN INTEREST IN YOUR PROPERTY ON THE GROUNDS THAT: (1) THE DRILLING AND INSTALLATION OF DRAIN PIPES HAVE CAUSED THE LOSS OF DOMESTIC AND STOCK WATER SUPPLY. (2) THE CONSTRUCTION OF THE ACCESS ROAD HAS CAUSED AND WILL FURTHER CAUSE YOUR PROPERTY TO SLIDE. YOU CONTEND THAT WHEN YOU EXECUTED THE RIGHT-OF-ENTRY PERMIT YOU WERE GIVEN VERBAL ASSURANCE FROM CORPS OF ENGINEERS PERSONNEL THAT IF YOU LOST YOUR WATER SUPPLY THE CORPS OF ENGINEERS WOULD PURCHASE YOUR PROPERTY.

B-161173, APR. 20, 1967

TO MRS. RONALD KIRSCH:

BY LETTER DATED MARCH 16, 1967, YOU, IN EFFECT, REQUESTED RECONSIDERATION OF OUR CLAIMS SETTLEMENT Z-2338381, DECEMBER 22, 1966, WHICH DENIED YOUR CLAIM FOR $30,000 DAMAGES ALLEGEDLY CAUSED BY CONSTRUCTION ACTIVITIES OF THE CORPS OF ENGINEERS IN CONNECTION WITH THE DWORSHAK DAM AND RESERVOIR PROJECT, IDAHO. PRESUMABLY THE $30,000 CLAIMED REPRESENTS YOUR ESTIMATE OF THE FULL VALUE OF YOUR PROPERTY.

THE FACTS GIVING RISE TO THIS MATTER ARE REPORTED HERE AS FOLLOWS:

INCIDENT TO THE CONSTRUCTION OF AN ACCESS ROAD TO DWORSHAK DAM IT BECAME NECESSARY TO MAKE A DEEP CUT ON LAND BELOW YOUR PROPERTY. TO AVOID LANDSLIDES ON THIS ROAD THE CORPS OF ENGINEERS FOUND IT NECESSARY TO DO CERTAIN DRILLING AND TO INSTALL 16 LATERAL DRAINS AND A NUMBER OF OTHER DRAINS. SEVERAL OF THE DRAINS WERE CONSTRUCTED ON YOUR LAND AFTER OBTAINING A RIGHT-OF-ENTRY PERMIT FROM YOU WHICH WAS SIGNED ON JUNE 1, 1965.

IT IS YOUR CONTENTION THAT THE CORPS OF ENGINEERS ACTIVITIES ABOVE DESCRIBED HAVE RESULTED IN A TAKING OF AN INTEREST IN YOUR PROPERTY ON THE GROUNDS THAT: (1) THE DRILLING AND INSTALLATION OF DRAIN PIPES HAVE CAUSED THE LOSS OF DOMESTIC AND STOCK WATER SUPPLY; AND (2) THE CONSTRUCTION OF THE ACCESS ROAD HAS CAUSED AND WILL FURTHER CAUSE YOUR PROPERTY TO SLIDE, THUS MAKING IT DANGEROUS TO INHABIT. YOU CONTEND THAT WHEN YOU EXECUTED THE RIGHT-OF-ENTRY PERMIT YOU WERE GIVEN VERBAL ASSURANCE FROM CORPS OF ENGINEERS PERSONNEL THAT IF YOU LOST YOUR WATER SUPPLY THE CORPS OF ENGINEERS WOULD PURCHASE YOUR PROPERTY. THE CORPS OF ENGINEERS DENIES THAT SUCH AN ASSURANCE WAS GIVEN.

WITH REGARD TO THE WATER LOSS, THE CORPS OF ENGINEERS REPORTS STATE THAT THE LOSS OF WATER WAS OCCASIONED BY NATURAL CONDITIONS UNCONNECTED WITH THE DWORSHAK PROJECT. WITH SPECIFIC REFERENCE TO THE GOVERNMENT CONSTRUCTION IN AND AROUND YOUR PROPERTY, THE CORPS REPORTS THAT YOUR SPRING IS SOME 1,000 FEET FROM AND AT AN APPROXIMATELY 100 FOOT HIGHER ELEVATION THAN THE GOVERNMENT CONSTRUCTION PURPORTED TO HAVE CAUSED THE LOSS OF WATER. WITH REGARD TO THE STOCK POND, THE CORPS REPORTS THAT THIS POND DOES NOT DEPEND ON THE SPRING FOR ITS WATER SUPPLY AND THAT YOU REPORTED ON APRIL 11, 1966, THAT THIS PONDHAD GONE DRY BY THE FIRST OF JUNE 1965. THE CORPS STATES THAT PRIOR TO JUNE 1, 1965, DRILLING ACTIVITIES WERE CONFINED TO AREAS CONSIDERED REMOTE FROM THE SPECIFIC AREA CLAIMED TO BE AFFECTED. THUS, SUCH ACTIVITIES COULD NOT HAVE CAUSED THE WATER LOSS OBSERVED IN JUNE 1965.

WITH REGARD TO THE SLIPPAGE OF SOIL ON YOUR PROPERTY, THE CORPS REPORTS THAT THE CRACKS THAT YOU HAVE OBSERVED ARE OLD ONES WHICH HAVE EXISTED FOR A LONG TIME AND CANNOT BE CONSIDERED EVIDENCE OF SLIDING. THEY WERE CHARTED ON TOPOGRAPHIC SHEETS IN MARCH 1965. THE CORPS FURTHER REPORTS THAT YOUR PROPERTY IS IN NO PHYSICAL JEOPARDY ON ACCOUNT OF EARTH MOVEMENTS RESULTING FROM PROJECT ACTIVITY AND THAT THE INSTALLATION OF DRAINS HAS SUCCESSFULLY STABILIZED PARTICULAR AREAS WHERE MOVEMENT IS APPARENT.

SUCH DIFFERENCES WHICH EXIST BETWEEN YOU AND THE CORPS OF ENGINEERS IN THE MATTER OBVIOUSLY RELATE TO THE FACTUAL ASPECTS OF YOUR CLAIM. WHERE THERE ARE SUCH DISPUTED QUESTIONS OF FACT CONNECTED WITH A CLAIM AGAINST THE GOVERNMENT, THIS OFFICE HAS NO ALTERNATIVE BUT TO ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY INVOLVED LEAVING THE CLAIMANT TO WHATEVER JUDICIAL REMEDIES MAY BE AVAILABLE TO HIM IN THE COURTS.

ACCORDINGLY, SINCE THE FACTS IN THE MATTER AS REPORTED BY THE CORPS OF ENGINEERS SHOW THAT THE MATTERS YOU COMPLAIN OF DID NOT RESULT FROM ANY GOVERNMENT ACTIVITY, OUR PREVIOUS ACTION IN DENYING YOUR CLAIM MUST BE SUSTAINED.