IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

) Plaintiff/Counter- ) Defendant, )

vs. ) 12cv434 JB-GBW )

GILBERT BORREGO, ) )

Defendant/Counter- ) Claimant. )

CONSENT JUDGMENT

This matter coming before the Court on the agreement of the parties, the Court

being fully informed in the premises, and it appearing that the parties agree and consent to a

judgment as set forth herein, all pursuant to a Settlement Agreement executed by the parties.

IT IS ORDERED, ADJUDGED AND DECREED THAT JUDGMENT be and it hereby is entered against Defendant GILBERT BORREGO in favor of the United States of America

on the Complaint filed in this case, and JUDGMENT be and it hereby is entered against

Defendant/Counterclaimant GILBERT BORREGO and in favor of the United States of America

on the Counterclaim filed herein.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT:

Title to the property described and depicted in Exhibit “A” hereto, referred to

hereinafter as the “subject property,” is forever quieted in favor of the United States

 

 

of America, and Defendant shall execute any and all documents deemed necessary by

the United States of America to affirm same, including but not limited to quitclaim

deed(s) and/or disclaimer(s) of interest.

From and after the date of entry of this Consent Judgment, Defendant shall not

place, build, or install any personal property, fixtures, structures or livestock, and shall

otherwise refrain from any unauthorized use of or entry on the subject property.

Following entry of this Consent Judgment, the United States, at its own expense and

subject to the availability of funding, may remove or cause to be removed from the

subject property any or all livestock, personal property (including but not limited to

automobiles, automobile or trailer parts and equipment), and fixtures (including but

not limited to a septic unit, structures and fencing). Removal of some or all

personal property and/or fixtures may, at the option of the United States, be

undertaken by demolition and removal of the resultant debris. With respect to any

structures or other fixtures that partially encroach onto the subject property, those

structures may be demolished entirely or in part, at the option of the United States.

The personal property, fixtures, and debris may be removed from the subject site at

the United States’ expense, and transported at the United States’ expense to one or

more sites selected by the United States. The United States shall not be liable to

Defendant for any loss, damage or liability of any kind arising from the United

States’ demolition, removal, transportation, sale or disposal of property, fixtures,

structures or livestock, and Defendant shall hold the United States harmless of and

from any such loss, damage or liability of any kind, and any loss or damages to him

 

 

arising from such demolishment, removal, transportation, sale or disposal. The

United States shall have no responsibility for storing, reassembling, rebuilding or

restoring any property, fixtures, debris, structures or other materials removed from the

subject property. Any such personal property, fixtures and debris may be sold or

otherwise disposed of, at the United States’ option, and may at the United States’

option, be sold or otherwise disposed of as scrap, rubbish, and/or salvage. Proceeds

from any sale shall first be applied to the costs of demolition, removal, transportation

and storage, and any remaining monies shall be paid to the Defendant. Within the

ninety (90) day period following the entry of this Consent Judgment, Defendant shall

discontinue and disconnect any and all electrical, telephone, and other utility services

that are currently serving any structures that are partially or wholly located on the subject

property. If Defendant does not do so within this period, the United States shall be

entitled to take such action as it deems appropriate with respect to utility services to or

on the subject property.

Defendant shall cooperate fully, and not interfere in any way, with the United States’

demolition, removal, transportation, impoundment, remediation, sale and

disposition efforts. As of the date of entry of this Consent Judgment, upon prior

notice to Defendant the United States shall have immediate and complete access to

the entirety of the subject property and, as the United States deems necessary, to the

adjacent private lands used or claimed by Defendant as his residence, in order to

survey, study, assess, and take whatever other measures it deems necessary to prepare

for demolition, removal, restoration, and environmental assessment and

remediation. Nothwithstanding anything to the contrary contained herein,

EXHIBIT A

BLM - Tract 240 330 660 990 1,320165 Feet

µNo warranty is made by the Bureau of Land Management as to theaccuracy, reliability, or completeness of these data forindividual use or aggregate use with other data, or for purposesnot intended by BLM. Spatial information may not meet National MapAccuracy Standards. This information may be updated without notification.Date: 2/24/2015

LegendGrant Boundary LineBLM - Tract 24

T22N.R08E

Black Mesa Grant(Private Surface)

Sebastian Martin Grant(Private Surface)

1   

SETTLEMENT AGREEMENT

This Settlement Agreement (Agreement) is entered into between the United States

of America, acting through the United States Department of Justice and on behalf of the

United States Department of the Interior, Bureau of Land Management (“BLM”), and

Gilbert Borrego (“Borrego”) (hereafter collectively referred to as "the Parties"), through their

authorized representatives.

RECITALS

A. The Parties are parties to a lawsuit in the United States District Court for

the District of New Mexico, 12cv434 JB/GBW (the Civil Action).

B. The United States contends that it has certain civil claims against Borrego,

as reflected in the Civil Action, and Borrego has counterclaimed for quiet title.

To avoid the delay, uncertainty, inconvenience, and expense of protracted litigation

of the above claims, and in consideration of the mutual promises and obligations of this

Settlement Agreement, the Parties agree and covenant as follows:

TERMS AND CONDITIONS

1.

(a) Borrego shall provide to the United States a Warranty Deed for fee simple title

to a parcel of land, approximately 40 acres in Taos County, New Mexico, more specifically

described as T. 30 N, R. 9 E, Section 11, NW 1/4, SW 1/4, N.M.P.M (the “Taos County

Property”). The Taos County Property is depicted in Exhibit 1 hereto. The warranty deed

will provide title for the Taos County Property to the United States, to be managed

by the BLM. Borrego will grant this land and will receive no financial compensation from the

2   

United States for said grant, other than the release of claims asserted by the United States in

the Civil Action. Following completion of the BLM’s assessment of the Taos County

Property, the BLM will prepare a Warranty Deed and any other necessary documents to effect

the transfer of title. The BLM shall secure title insurance for the Taos County Property.

Upon notice from the BLM, Borrego shall execute the Warranty Deed and any other

necessary documents provided by the BLM within 10 days. Should Borrego fail or refuse

timely to deliver title to the Taos County Property, suitable and acceptable to the BLM in its

sole discretion, this settlement shall be null and void.

(b) Following successful completion of the steps set forth in paragraph 1(a) above, the

BLM will propose a direct sale of a certain portion of Tract 24, approximately 1.4 acres in size

(the “Direct Sale Property”). A cadastral survey of the Direct Sale Property is required before

the BLM can propose a direct sale in order to accurately describe the metes and bounds of

the property. The proposed direct sale to Borrego will be pursuant to the process outlined

in 43 C.F.R, Subpart 2710, subject to the terms and conditions of this agreement. The BLM

will initiate this process within 30 days of: (1) completion of the title transfer of the Taos

County Property provided for in paragraph 1(a) above, and (2) receiving the agreed upon cost-

share of Borrego, further explained in paragraph 1(d) below, through a Proffer of Monetary

Contribution Form.

(c) Borrego agrees that the United States may enter onto the Taos County

Property and land adjacent to Tract 24 occupied by Borrego (known as Parcel 3) as

necessary to complete the assessments required to execute the terms of this agreement.

3   

(d) Any and all transaction costs incurred by the United States in the direct sale

process and the acceptance of the Taos County Property will be shared between the

parties. Borrego agrees to assume and pay 40% of the costs. However, such costs assumed

and paid by Borrego will in no event exceed $15,000. The BLM will provide Borrego with a

Proffer of Monetary Contribution Form. Gilbert Borrego will complete the form and

provide the cost-share contribution of $15,000, of which $5,000 will be payable immediately

and any balance payable within sixty (60) days from the Effective Date of this Settlement

Agreement. Upon completion of the two transactions outlined in paragraphs 1(a) and 1(b),

the BLM will undertake an accounting of the associated costs and disclose the accounting

to Borrego. In the event that Gilbert Borrego’s contribution exceeds 40% of the total cost,

the BLM shall return the excess funds to Borrego within 60 days of such determination.

(e) Following the United States’ acquisition of the property identified in paragraph

1(a), Borrego may file an application for a disclaimer of interest regarding any portions of

the parcel of land lying between Parcel 3 and the Rio Grande (known as the accretion

land). Upon completion of the application pursuant to the requirements of 43 C.F.R.

Subpart 1864, the BLM will process the application. To the extent title records of the

United States show no legal interest in the lands the application references, the United

States will grant such disclaimer of interest. The BLM hereby agrees to waive the application

fee and any administrative costs typically associated with the processing of the application for

disclaimer of interest.

(f) Upon the successful completion of the direct sale proposed to Gilbert Borrego

in paragraph 1(b), Borrego shall execute a Quitclaim Deed, prepared by the United States,

4   

to the United States regarding the remaining portions of Tract 24. Borrego further agrees

that the United States is entitled to exclusive possession of Tract 24. As such, any further

use or occupancy of Tract 24, beyond casual use as defined in 43 C.F.R § 2801.5(b), is

prohibited and will be enforced at the sole discretion of the United States. Borrego agrees

forever to refrain from any unauthorized use or occupancy of Tract 24.

(g) Beyond the matters necessary to complete items required under the

Settlement Agreement, Borrego does not grant any further consent of access to the

United States, and the United States reserves any right it otherwise has under law to

access the land. Notwithstanding anything to the contrary herein, Borrego and the

United States agree that the United States retains a right of access of the approximately

1.4 acre tract referenced in paragraph 1(b) above in order to resolve any matters related

to liability under CERCLA.

(h) The Parties agree to execution and entry of a Consent Judgment in the Civil

Action, in the form attached hereto as Exhibit 2.

2. Subject to the exceptions in Paragraph 3 (concerning excluded claims)

below, and conditioned upon Borrego’s full compliance with the terms of this Settlement

Amount, the United States releases Borrego from any civil monetary claim the United

States has asserted against Borrego in the Civil Action.

3. Notwithstanding the release given in paragraph 2 of this Agreement, or any

other term of this Agreement, the following claims of the United States are specifically

reserved and are not released:

a. Any liability arising under Title 26, U.S. Code (Internal Revenue

5   

Code);

b. Any criminal liability;

c. Except as explicitly stated in this Agreement, any administrative

liability, including the suspension and debarment rights of any

federal agency;

d. Any liability to the United States (or its agencies) for any conduct

other than the claims asserted by the United States in the Civil

Action; and

e. Any liability based upon obligations created by this Agreement.

4. Nothing in this Agreement constitutes an agreement by the United States

concerning the characterization of the Settlement, including the Taos County Property,

for purposes of the Internal Revenue laws, Title 26 of the United States Code.

5. Borrego fully and finally releases the United States, its agencies, officers,

agents, employees, and servants, from any claims (including attorney’s fees, costs, and

expenses of every kind and however denominated) that Borrego has asserted, could have

asserted, or may assert in the future against the United States, its agencies, officers, agents,

employees, and servants, related to the Civil Action and the United States’ investigation

and prosecution thereof. Further, Borrego specifically agrees to dismiss with prejudice his

claims for quiet title asserted in the Civil Action.

6. This Agreement is intended to be for the benefit of the Parties only.

7. Each Party shall bear its own legal and other costs incurred in connection

with this matter, including the preparation and performance of this Agreement.

6   

8. Each party and signatory to this Agreement represents that it freely and

voluntarily enters in to this Agreement without any degree of duress or compulsion.

9. This Agreement is governed by the laws of the United States. The exclusive

jurisdiction and venue for any dispute relating to this Agreement is the United States

District Court for the District of New Mexico. For purposes of construing this Agreement,

this Agreement shall be deemed to have been drafted by all Parties to this Agreement and

shall not, therefore, be construed against any Party for that reason in any subsequent

dispute.

10. This Agreement constitutes the complete agreement between the Parties.

This Agreement may not be amended except by written consent of the Parties.

11. The undersigned counsel represent and warrant that they are fully

authorized to execute this Agreement on behalf of the persons and entities indicated

below.

12. This Agreement may be executed in counterparts, including scanned or

facsimile copies thereof, each of which constitutes an original and all of which constitute

one and the same Agreement.

13. This Agreement is binding on Borrego’s successors, transferees, heirs, and

assigns.

14. All parties consent to the United States’ disclosure of this Agreement, and

information about this Agreement, to the public.

15. This Agreement is effective on the date of signature of the last signatory to

 

 

EXHIBIT 1

Ta o s C o .Ta o s C o .R i o A r r i b a C o .R i o A r r i b a C o .

Río Grande del Norte National Monument

5 136

8

6 245

4

1

7

3

2

9

22

26

36

1318

28

32

14

30

24

36

11

3431

3431

10

33

15

21

35

17

20

12

33

27

35

19

29 25

23

32

T30N R09E

£¤285

Red Hill

La Segita Peaks

San Antonio Mountain

T30N. R09ESurface Management Status

0 0.5 10.25Miles

µNo warranty is made by the Bureau of Land Management as to theaccuracy, reliability, or completeness of these data forindividual use or aggregate use with other data, or for purposesnot intended by BLM. Spatial information may not meet National MapAccuracy Standards. This information may be updated without notification.Date: 4/7/2015

Settlement Agreement Property(40 Acres)

Legend

Río Grande del Norte National MonumentBureau of Land ManagementForest ServicePrivateStateCounty Boundary

Settlement Agreement Property40 Acres

 

 

EXHIBIT 2

 

 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

) Plaintiff/Counter- ) Defendant, )

vs. ) 12cv434 JB-GBW )

GILBERT BORREGO, ) )

Defendant/Counter- ) Claimant. )

CONSENT JUDGMENT

This matter coming before the Court on the agreement of the parties, the Court

being fully informed in the premises, and it appearing that the parties agree and consent to a

judgment as set forth herein, all pursuant to a Settlement Agreement executed by the parties.

IT IS ORDERED, ADJUDGED AND DECREED THAT JUDGMENT be and it hereby is entered against Defendant GILBERT BORREGO in favor of the United States of America

on the Complaint filed in this case, and JUDGMENT be and it hereby is entered against

Defendant/Counterclaimant GILBERT BORREGO and in favor of the United States of America

on the Counterclaim filed herein.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT:

Title to the property described and depicted in Exhibit “A” hereto, referred to

hereinafter as the “subject property,” is forever quieted in favor of the United States

 

 

of America, and Defendant shall execute any and all documents deemed necessary by

the United States of America to affirm same, including but not limited to quitclaim

deed(s) and/or disclaimer(s) of interest.

From and after the date of entry of this Consent Judgment, Defendant shall not

place, build, or install any personal property, fixtures, structures or livestock, and shall

otherwise refrain from any unauthorized use of or entry on the subject property.

Following entry of this Consent Judgment, the United States, at its own expense and

subject to the availability of funding, may remove or cause to be removed from the

subject property any or all livestock, personal property (including but not limited to

automobiles, automobile or trailer parts and equipment), and fixtures (including but

not limited to a septic unit, structures and fencing). Removal of some or all

personal property and/or fixtures may, at the option of the United States, be

undertaken by demolition and removal of the resultant debris. With respect to any

structures or other fixtures that partially encroach onto the subject property, those

structures may be demolished entirely or in part, at the option of the United States.

The personal property, fixtures, and debris may be removed from the subject site at

the United States’ expense, and transported at the United States’ expense to one or

more sites selected by the United States. The United States shall not be liable to

Defendant for any loss, damage or liability of any kind arising from the United

States’ demolition, removal, transportation, sale or disposal of property, fixtures,

structures or livestock, and Defendant shall hold the United States harmless of and

from any such loss, damage or liability of any kind, and any loss or damages to him

 

 

arising from such demolishment, removal, transportation, sale or disposal. The

United States shall have no responsibility for storing, reassembling, rebuilding or

restoring any property, fixtures, debris, structures or other materials removed from the

subject property. Any such personal property, fixtures and debris may be sold or

otherwise disposed of, at the United States’ option, and may at the United States’

option, be sold or otherwise disposed of as scrap, rubbish, and/or salvage. Proceeds

from any sale shall first be applied to the costs of demolition, removal, transportation

and storage, and any remaining monies shall be paid to the Defendant. Within the

ninety (90) day period following the entry of this Consent Judgment, Defendant shall

discontinue and disconnect any and all electrical, telephone, and other utility services

that are currently serving any structures that are partially or wholly located on the subject

property. If Defendant does not do so within this period, the United States shall be

entitled to take such action as it deems appropriate with respect to utility services to or

on the subject property.

Defendant shall cooperate fully, and not interfere in any way, with the United States’

demolition, removal, transportation, impoundment, remediation, sale and

disposition efforts. As of the date of entry of this Consent Judgment, upon prior

notice to Defendant the United States shall have immediate and complete access to

the entirety of the subject property and, as the United States deems necessary, to the

adjacent private lands used or claimed by Defendant as his residence, in order to

survey, study, assess, and take whatever other measures it deems necessary to prepare

for demolition, removal, restoration, and environmental assessment and

remediation. Nothwithstanding anything to the contrary contained herein,

 

 

Defendant does not have authority to allow access to the United States over lands

owned by third parties. Further, notwithstanding anything to the contrary herein,

the United States shall not remove any personal property, including fences on the

portion of Tract 24 to be proposed for sale in the Settlement Agreement, unless the

Settlement Agreement has been breached.

This Consent Judgment is entered pursuant to the terms of the attached Settlement

Agreement executed by the parties. In order to resolve any disputes that may arise during the

performance of this Consent Judgment, this Court retains jurisdiction over this case during the

period in which this Consent Judgment will be performed.

JAMES O. BROWNING UNITED STATES DISTRICT JUDGE

APPROVED: DAMON P. MARTINEZ United States Attorney

HOWARD R. THOMAS FRANK LUPO ROBERTO D. ORTEGA Attorney Advisor Assistant U.S. Attorneys Office of the Solicitor

Southwest Region U.S. Department of the Interior

Dated: Dated:

 

 

ERNEST L. PADILLA GILBERT BORREGO Attorney for DEFENDANT GILBERT BORREGO

Dated: Dated:_______________________

EXHIBIT A

BLM - Tract 240 330 660 990 1,320165 Feet

µNo warranty is made by the Bureau of Land Management as to theaccuracy, reliability, or completeness of these data forindividual use or aggregate use with other data, or for purposesnot intended by BLM. Spatial information may not meet National MapAccuracy Standards. This information may be updated without notification.Date: 2/24/2015

LegendGrant Boundary LineBLM - Tract 24

T22N.R08E

Black Mesa Grant(Private Surface)

Sebastian Martin Grant(Private Surface)