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LEVEE WALL - EASEMENT CONTRACT & DEEDCONTENTS
The upcoming Board of Sups FLOOD meeting ignores the comments and requests from me and others, over the past years, on what needs to be in the EASEMENT CONTRACT and DEED . Here is what I (and AI) think needs to be in OUR CONTRACT and DEED.
On October 20th, 9am,
there is a Board of Supervisor's FLOOD meeting
https://www.marincounty.gov/departments/board/board-supervisors-meetings#meetingagendasandvideos PACKET: https://portal-marincounty.primegov.com/viewer?meetingTemplateId=1973&compileOutputType=1
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ice plant |
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cactus |
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agave |
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vegetation losses |
are legitimate compensation considerations.
High
Courts generally award money rather than preservation orders.
A judge is more likely to provide compensation than direct construction requirements.
These are negotiable but less likely to be ordered by the court.
Your proposed requirement:
three business days written notice before entry.
Moderate
This is often negotiated.
However, if the County obtains a perpetual maintenance easement, courts typically allow reasonable access necessary for maintenance.
A court is less likely to impose an operational rule of its own.
You wrote:
routine inspection only once every 2 years.
Low to Moderate
The County will argue engineering standards may change and inspections must remain available when needed.
Courts tend not to dictate maintenance schedules.
Your requests:
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maximum number of access points |
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disclosed locations |
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future changes disclosed in writing |
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gated and locked access points |
Moderate
If access points are shown on project plans, you have a decent argument that the easement should match the plans.
However, courts are reluctant to micromanage future maintenance operations.
These are often settled through negotiation.
You propose:
Homeowner access to the water shall never be denied.
Moderate
If existing access is being impaired, that can affect compensation.
But a court may hesitate to give an absolute perpetual guarantee, especially if future public safety concerns arise.
These are the items I believe would be difficult to compel in court.
You request:
all walls and TRBs have the same height throughout the levee system.
Low
Courts generally defer heavily to engineers on project design.
The County will argue different elevations require different wall heights.
A judge rarely redesigns public works projects.
What you may be able to obtain is evidence showing that your property is being uniquely burdened compared with neighboring parcels, which could support increased compensation.
Your proposed formula:
$15,000 inflation-adjusted per foot increase.
Very Low in litigation Moderate in negotiation
A court generally determines compensation based on actual appraisals at the time of any future taking.
A judge is unlikely to lock in a formula decades beforehand.
Your request:
Construction will not last more than four consecutive weeks.
Low
Schedule management is usually within agency discretion.
The court typically does not supervise construction duration.
What you can seek instead is greater compensation if a temporary easement lasts longer than represented.
You ask that workers use only two paths
across the property.
Low to Moderate
Negotiable.
Not commonly imposed by the court itself.
If I were evaluating this as an eminent-domain compensation case, I would devote the most energy to:
1. Narrowing the Easement Language
Prevent vague wording that grants unlimited future expansion rights.
2. Severance Damages
Prove the wall's effect on:
river view
visual appearance
marketability
buyer perception
enjoyment of waterfront location
3. Temporary and Permanent Easement Compensation
Challenge:
width of easement (6 ft vs 10 ft)
vegetation removal area
access impacts
construction impacts
These are areas where money awards can become significant.
I noticed something potentially important in your document: the County appears to want a permanent easement with perpetual access rights. Contract of Easement County Comparison
One of the first things I would ask your condemnation attorney to analyze is:
Does the easement actually grant only what is reasonably necessary for the current flood-wall project, or does it grant a much broader perpetual right to enter, modify, reconstruct, replace, enlarge, or improve the levee?
That single drafting issue may be worth more than many of the operational provisions because it directly affects both future control of your property and the value of the easement being condemned.
Based on California eminent domain law, I would rate your strongest courtroom issues as:
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Issue |
Court Strength |
|---|---|
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Limit scope of easement to current project |
Very Strong |
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Additional compensation for future expansion if not expressly acquired |
Strong |
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Severance damages from loss of view |
Strong |
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Temporary easement compensation |
Very Strong |
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Damage/restoration outside easement area |
Strong |
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Vegetation valuation |
Strong |
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Notice before access |
Moderate |
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Fixed access points |
Moderate |
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Water-access preservation |
Moderate |
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Inspection every 2 years |
Weak-Moderate |
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Uniform wall height system-wide |
Weak |
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$15,000-per-foot future formula |
Weak |
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Four-week construction limit |
Weak |
Given that you're in California and dealing
with a levee/flood-control project, the actual wording of the County's
proposed easement may matter more than anything in your document.
If
you upload the actual easement and eminent-domain complaint, I can analyze
the specific clauses and identify where the County may be seeking rights
broader than what is necessary for the flood-wall project.
The contract is
heavily drafted in the County's favor and
contains several provisions that would concern a property owner,
particularly before signing away a permanent easement.
The Biggest Red Flag
Paragraph 16 states:
This Contract constitutes the entire agreement and shall relieve DISTRICT of all further obligations or claims on this account. Easement Contract 2026
Combined with the payment provision in Paragraphs 1 and 2, the County is attempting to settle essentially everything now for one lump sum. Easement Contract 2026
That means if you want protections concerning:
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future wall height |
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access rights |
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landscaping |
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inspection frequency |
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access points |
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vegetation |
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water access |
they need to be written into the deal before signing.
A court can interpret an easement later, but courts generally do not rewrite contracts after they are signed.
This may be your strongest issue.
The County's own project document states:
"the Project would be designed to enable raising the floodwall to 12 feet elevation, without replacing the entire structure."
That sentence immediately caught my attention.
The County is already contemplating future
raising of the wall.
Yet nothing in the Right-of-Way Contract limits
future increases.
Something like:
This easement authorizes only the wall shown on the approved plans.
Any future increase in wall height, width, footprint or maintenance corridor requires a new acquisition and additional compensation.
Very Strong
If the County refuses, your attorney would likely want to review the actual Easement Deed to see whether future increases are already being acquired.
This is the second major red flag.
Paragraph 3 grants the right:
remove and dispose of landscaping and improvements within the permanent easement area and TCE area.
Paragraph 4 goes even further:
DISTRICT may at its sole discretion remove any or all landscaping within the permanent easement and TCE areas.
Notice the phrase:
"at its sole discretion"
That is extremely broad.
Under the current draft there appears to be:
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no requirement to preserve ice plant |
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no protection for agaves |
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no relocation notice |
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no limit on vegetation clearing |
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no replacement obligation |
unless later addressed in Exhibit language.
Strong if tied to compensation.
Moderate if trying to force preservation.
The County can generally acquire the right to clear vegetation, but you can demand to be paid for what is removed.
I do not see anything in the agreement preserving homeowner water access. Easement Contract 2026
This means your proposed clause:
Homeowner access to the water shall remain in perpetuity
is not currently protected.
Moderate.
Not guaranteed.
But if existing access is impaired, that can become a severance-damages issue.
The contract provides:
72-hour notice before construction start.
But I see no ongoing notice requirement for future maintenance access.
Your desired provision:
3 days notice before routine entry
is not included.
Moderate.
This is quite reasonable in negotiations.
I would definitely request it.
This is not in the contract. The contract contains no inspection-frequency limit.
Weak to Moderate.
This is mostly a negotiation item.
I found no language limiting:
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number of access points |
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location of access points |
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fencing |
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locking |
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disclosure requirements |
in the draft.
Moderate.
If access locations are already shown on engineering plans, you have a stronger argument.
The County's own project description says:
approximately 90-120 workdays.
and
early May through end of October.
That conflicts somewhat with your desired four-week limitation.
A court is unlikely to require completion within four weeks.
However, you can seek:
compensation if occupancy exceeds stated periods.
That's a stronger legal position.
Court strength
Weak for a 4-week cap.
Moderate for additional compensation if extended.
A critical detail:
Paragraph 2 says the TCE expiration date is currently blank.
I would not sign with that blank.
The beginning date is undefined.
The ending date is undefined.
The duration is undefined.
Those are items that absolutely should be specified.
Court strength
Very Strong.
The taking should be clearly defined.
Good news:
Paragraph 11 is actually favorable.
It
provides:
DISTRICT agrees to indemnify and hold harmless OWNERS from liability arising out of DISTRICT'S operations.
and agrees to repair or pay for damages caused by its operations. Easement Contract 2026
I would keep this provision.
Paragraph 6 states:
placement of permanent improvements will not be permitted within the permanent easement area.
Before signing, I'd want to know exactly:
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easement width |
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wall width |
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maintenance corridor width |
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future restrictions |
because this restriction runs forever.
Very important valuation issue.
Affects compensation directly.
If eminent domain is merely threatened and has not yet been filed, my personal ranking would be:
#1 Limit Future Wall Expansion
The County's own documents mention future raising potential. Easement Contract 2026
Get explicit language that additional height or width requires a new acquisition and new compensation.
#2 Narrow Landscaping Rights
Strike:
remove any or all landscaping at its sole discretion.
and replace with specific limits.
#3 Require Defined Access Rights
Add:
72-hour notice for non-emergency entry
fixed access locations
gates locked when not in use
written notice of changes
These are reasonable requests and not unusual.
Given Page 101 of the County document says the floodwall is being designed for potential future raising, I would want language substantially like:
"The Easement granted herein authorizes only the construction, maintenance and replacement of the floodwall depicted in the plans reviewed by Owner.
No increase in height, width, structural footprint, or maintenance corridor shall be authorized unless separately acquired and compensated."
That single sentence may be worth more than all the vegetation clauses combined because it addresses a risk the County itself has already identified.
If you later upload the actual
Easement Deed (Exhibit B/C), that document will likely be even
more important than this contract because the deed, not the contract, is
what gets recorded against your property and defines the legal rights the
County permanently acquires.
This document is actually much more important
than the Right-of-Way Contract because this is the instrument
that gets recorded against your property and runs with the land forever.
EASEMENT DEED draft
is surprisingly short, which means a few words can make a huge difference.
My overall reaction is:
This draft is better than I expected in a few respects, but it still leaves several significant issues unresolved.
The deed says:
The easement expressly excludes flood control pump stations or flood gates.
That's good.
It also says:
does not permit access to the property by the general public.
Also good.
These provisions narrow the scope somewhat.
The easement grants a perpetual right to:
construct, maintain, repair, operate, inspect and replace a flood protection levee or floodwall, including all appurtenances thereto. EASEMENT DEED draft
The words that concern me are:
"replace"
and
"all appurtenances thereto"
Neither term is defined.
A future dispute could arise over whether replacing a floodwall means:
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replacing with the same dimensions, or |
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replacing with a significantly taller structure. |
Likewise "appurtenances" can be interpreted broadly.
I would absolutely ask for a limitation similar to:
This easement authorizes only the floodwall/levee shown in the final approved plans.
Any increase in height, width, footprint, structural capacity, maintenance corridor, or additional appurtenances beyond the approved plans shall require acquisition of additional property rights and additional compensation.
Why?
Because the County's own project documents state:
the Project would be designed to enable raising the floodwall to 12 feet elevation without replacing the entire structure. Easement Contract 2026
That statement tells me future height increases are already being contemplated.
Very Strong Candidates
1. Limit future wall height increases
Strongest item.
The current deed does not address height limits at all. [EASEMENT DEED draft]
I would definitely push for that.
2. Limit future wall width increases
Same reasoning.
The deed contains no width limitation.
Strong request.
3. Restrict use to the current floodwall project
You wanted:
no other construction will be made.
The current deed only excludes pump stations and flood gates.
There is room to narrow it further.
Strong request.
4. Termination if floodwall abandoned
Your rider proposed that the easement terminate if the wall is abandoned. Contract of Easement County Comparison
The current deed says perpetual and assignable.
You could request:
If the floodwall is permanently abandoned or removed, rights revert to the property owner.
This is legally recognizable language, although counties often resist it.
Moderate Candidates
5. Homeowner water access
Nothing in the deed currently protects water access.
I'd push for it. Whether they agree is another matter.
6. Notice before routine entry
Not addressed in the deed.
Reasonable request. More likely to belong in the contract than the deed.
7. Fixed access points
Again, not addressed. Reasonable but negotiable.
Weak Candidates For Inclusion In The Deed
These are generally construction-management issues.
Inspection every two years
Probably belongs in an operations agreement. Not usually deed language.
Four-week construction limit
Not deed language.
Two construction paths
Not deed language.
Agave and cactus preservation
Important, but usually handled through construction specifications or compensation, not the recorded easement.
The deed says:
owners retain the right to use the surface of the land to the extent such use does not interfere with grantee's rights.
That sounds favorable at first glance.
However, because the County's rights include:
maintain
operate
inspect
repair
replace
the County could later argue that many homeowner activities "interfere" with those rights.
I would want the deed to specify retained rights such as:
landscaping
groundcover
irrigation
pedestrian access
waterfront access
provided they do not damage the structure.
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Issue |
Legal Strength |
|---|---|
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Limit future height increases |
Very Strong |
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Limit future width increases |
Very Strong |
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Require new compensation for expansion |
Very Strong |
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Restrict easement to approved plans |
Very Strong |
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Terminate if wall abandoned |
Strong |
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Preserve owner landscaping rights |
Strong |
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Preserve water access |
Moderate |
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Notice before routine entry |
Moderate |
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Fixed access points |
Moderate |
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Inspection every 2 years |
Weak |
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Four-week construction limit |
Weak |
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Uniform wall heights along levee system |
Weak |
If I were in your position, the sentence I'd be most worried about is:
"construct, maintain, repair, operate, inspect and replace a flood protection levee or floodwall, including all appurtenances thereto"
combined with the County's separate statement that the wall is being designed so it can later be raised. Easement Contract 2026
Before signing anything, I would want the County to state in writing that the easement does not authorize future increases in floodwall height or width beyond the currently approved design without additional acquisition and compensation.
Of all the points in your rider, that one may have the greatest long-term financial value.
Flood Protection Levee Easement
Grantor hereby grants to Grantee a perpetual, non-exclusive easement over the property described in Exhibit A and shown on Exhibit B.
This deed and easement does not authorize:
(a) flood-control pump stations;(b) flood gates;(c) public trails, recreational facilities, public access facilities, utilities unrelated to flood protection, buildings, storage areas, staging areas, communication facilities, or similar improvements;(d) public access through the Easement Area; or(e) any increase in the height, width, footprint, structural capacity, or maintenance corridor of the floodwall beyond that shown on the approved plans.
In the event of conflict, the more restrictive interpretation of Grantee's
rights shall control.
END ----------------- END
The key point is that the future-height limitation remains in the deed itself, because that defines the property interest being conveyed.
But the words " construct, maintain, repair, operate,
inspect and replace" is in the DEED itself !
You cannot have an EASEMENT CONTRACT attached to the DEED that contradicts
that !
The DEED HAS to change !
I'd rather have a wall that will not increase in height (without a new
contract).
I would rather have a deed that limits future expansion than receive additional compensation today.
Money can be spent once; the deed will burden the property forever.
If the County wants the right to increase the levee wall height in the future, after future engineering studies, future approvals, and future funding, then I believe that the future project should require new negotiation and a new acquisition of rights.
I do not see why I should permanently surrender those future property rights today for a project that has not yet been designed or approved.
what about the argument that
the deed should not contain wordage that belongs in the Easement Contract ?
If the deed grants broad rights to "construct, maintain, repair, operate, inspect and replace" flood-control facilities,
isn't the County effectively embedding future operational and expansion rights into the property interest itself rather than limiting the deed to the easement actually needed for the currently approved project?
The deed appears to be doing more than defining the easement corridor being acquired.
It appears to grant a broad bundle of future operational and replacement rights that may extend well beyond the currently approved project.
Those are not merely survey or title matters; they materially affect the scope of the property interest being conveyed.If the current project is a levee wall of specified dimensions at a specified location,
why shouldn't the deed convey only those rights necessary for that project, with
future expansions, increased heights, or materially different facilities requiring a new acquisition of rights?
I would, however, be careful with one point.
Legally, the County will likely argue that terms such as:
"construct, maintain, repair, operate, inspect and replace"
are precisely the kind of rights that belong in an easement deed, because they define the estate being taken.
So I would not argue:
"Those words don't belong in a deed."
That argument is probably weak.
Instead, I would argue:
"Those words are too broad and acquire more rights than are reasonably necessary for the currently approved project."
That's a much stronger position.
In other words, the debate is probably not:
❌ "The deed should not contain operational rights."
The debate is:
✅ "The deed should contain only the operational rights reasonably necessary
for the approved project, and
should not grant open-ended future expansion rights that have not yet been
justified, designed, approved, or compensated."
That is an argument an eminent-domain attorney, appraiser, judge, or
negotiator is more likely to take seriously.
It focuses on the scope of the taking, which is often the
real issue in condemnation cases.
what if they blatantly disclose that the "approved project" includes unlimited height increases ?
If they explicitly say: "Yes, we are seeking the right to raise the levee to any future height
without obtaining additional easements or compensation," then the argument changes significantly. At that point, the issue is no longer whether the deed is overbroad by
accident. The issue becomes: The County is intentionally condemning future development rights
that have not yet been designed, approved, or quantified. That creates two possible arguments.
You could argue:
If the County intends to acquire the right to build a future structure of greater height, then the extent of that future right should be explicitly defined.
A property owner should not be required to convey an unlimited property interest whose ultimate physical dimensions are unknown.
Put differently:
How can just compensation be determined if nobody can describe the full extent of the rights being acquired?
That's a fair question.
This may actually be the stronger legal position.
You could say:
If the County insists that the easement includes the right to repeatedly increase levee wall height in the future without further negotiation, then the valuation cannot be based solely on the structure being built today.
The County is acquiring a much broader property interest, and compensation should reflect the value of those future rights.
In other words:
| 11-foot wall = one burden |
| 13-foot wall = greater burden |
| Unlimited future increases = still greater burden |
The value should increase as the rights increase.
I understand that the County may ultimately have authority to condemn whatever easement rights it can establish as reasonably necessary.
However, if the County is intentionally seeking the right to increase the levee height indefinitely in the future without obtaining additional property rights, then it appears to be acquiring far more than is required for the structure being built today.My objective is not simply to increase compensation.
I would strongly prefer that the deed itself limit future expansions and require a new acquisition if a materially larger structure is proposed.
If the County refuses such limitations and instead seeks perpetual rights for unlimited future enlargement, then the appraisal and compensation analysis should reflect the value of those additional rights being condemned.In short, either the future rights should be limited, or they should be fully valued and compensated.
Personally, Al, I think your position is fundamentally:
"I don't object to today's levee. I object to signing away control over tomorrow's levee."
That's a reasonable distinction.
If the County truly wants the right to build a substantially higher levee
decades from now without coming back to affected owners, then they are
acquiring a much larger bundle of property rights than a
typical maintenance easement, and
that should be the focus of both the deed language and the compensation
analysis.
======================
You're identifying a very important legal distinction. If the
recorded easement deed says: "construct, maintain, repair, operate, inspect and replace" then a separate side agreement that effectively says: "but they cannot replace it with something larger" may not protect you if it conflicts with the recorded property right
itself. In other words, the easement deed defines the property interest
being acquired. So your position to the attorney could be: My concern is that limitations contained only in a
separate agreement may not adequately constrain the property right being
acquired. Therefore, I am not seeking a side agreement that
conflicts with the deed. If that language cannot be achieved, I would like
to understand the legal reason why, rather than simply being told it is
unlikely. Frankly, Al, I think this is the right question to keep pressing. replace within the existing
footprint or reconstruct consistent with the
approved plans or reconstruct without material
enlargement The real issue is not whether the County wants such
limitations. That is exactly why you are focused on the deed language rather than
compensation. A useful question for the attorney may be: If the County recorded a deed tomorrow that expressly limited the levee
to the design elevations shown on the approved plans and required a new
easement acquisition for any future increase in height, would that
limitation be legally valid? If yes, then the issue is not whether the deed can be drafted that way.
The issue is whether the County is willing to accept it. That question gets to the heart of the matter. It forces a distinction
between: Those are very different positions. Based on everything you've described so
far, I would want the attorney to answer that question directly.
Once recorded, future owners, future County officials, engineers, and courts
will first look at the deed language.
The recorded easement DEED itself grants the legal right.
If the deed authorizes the County to construct, maintain, repair,
operate, inspect, and replace the flood-control improvements without
further limitation, then future County officials may argue that those rights
include replacing the existing structure with a larger or higher structure.
I am asking whether the deed itself can be revised to define the
scope of the easement more precisely.
For example, the deed could state that the easement is limited to the
flood-control improvements shown on the approved plans, and that any
material increase in height, footprint, or capacity requires a new
acquisition of property rights and additional compensation.
The issue is whether the County is seeking a property interest broad enough
to support future levee expansions without coming back to affected owners.
=====================================
I think your instinct is
reasonable, but I'd phrase it carefully. The attorney may be right that you
cannot force the County to accept a rewritten DEED if it decides to
condemn broader rights.
A concise response could be: I understand that eminent domain may ultimately allow the County to
acquire the easement even if I disagree. However, I'm struggling to
understand why the DEED language itself cannot be negotiated before
condemnation is finalized. My primary concern is not additional compensation. For example, if the levee is approved at a specific height today, why
couldn't the easement provide that any future increase in height or material
expansion of the flood-control structure would require a new easement+deed
acquisition, amendment, or additional compensation? Is your position that the County is legally unable to accept such
language, or simply that it is unlikely to agree to it? Personally, I think that is the key question. Your goal is not: "I don't want a levee." Your goal is: "I don't want to give away unlimited future rights that may never be
needed." That is a much more defensible position. In fact, one of the strongest negotiating points may be: If the County insists on acquiring the right to raise the levee
indefinitely in the future without further consent, then it is acquiring far
more than the currently approved project, and that broader bundle of rights
should either be limited or separately compensated. A judge may ultimately allow condemnation of those broader rights if the
County can prove they are reasonably necessary. But that does not
mean it is unreasonable for you to ask: "Why should I sign away the right to object to a
2-foot, 4-foot, or 8-foot future increase when that future project has not
even been designed or approved yet?" That is a policy and valuation question, not merely a compensation
question. That is probably the strongest argument for narrowing the DEED language
rather than simply seeking more money.
However, that is different from saying the DEED language is non-negotiable.
Rather, I would prefer an easement that is limited to the currently approved
project.
If I were in your position, I would continue pressing the distinction between:
===============================
I would respectfully push back on the attorney's statement, but only partially.
The attorney is probably correct about one thing:
If the County proceeds all the way through eminent domain and obtains a condemnation judgment, the court is unlikely to rewrite the DEED simply because you prefer narrower language.
However, that is not the same as saying:
"There is practically no way to get the DEED language changed."
Many DEED terms are negotiated before a final taking.
You might say something like:
"I understand the County may ultimately have the power to condemn an easement+deed.
My question is different.
Before condemnation is completed, what prevents the County from voluntarily accepting narrower DEED language if it still fully satisfies the project's engineering requirements?"
Or:
"I'm not arguing that the County can't acquire an easement+deed.
I'm asking whether the County truly needs a DEED with unlimited future expansion rights and unlimited future levee wall heights.
Has anyone required the County to justify why those broader rights are necessary?"
Another useful question:
"If the approved project is a levee wall of a specific height and design, why should compensation be based on an easement+deed that allows substantially larger structures in the future?
Isn't that acquiring rights beyond the presently approved project?"
That gets to the heart of the issue.
Suppose the project approved today is:
| 11-foot wall |
| specific footprint |
| specific alignment |
Yet the DEED says:
construct, reconstruct, enlarge, raise, alter, replace and maintain flood-control facilities forever
Then the County is arguably acquiring rights extending beyond today's project.
You can reasonably ask:
Why shouldn't the easement+deed be limited to the currently approved project dimensions, with any future enlargement requiring either:
| a new deed+easement, |
| an amendment, |
| or additional compensation? |
That is not an irrational position.
The County will likely say:
We need flexibility for future sea-level rise, engineering changes, regulatory requirements and future flood-protection needs.
That's their strongest argument.
Then the discussion becomes:
If you're taking rights for future expansions that may never occur, shouldn't I be compensated for those broader rights today?
That is often where valuation and easement scope intersect.
If I were in your position, I would ask:
"Assume the County wants an easement+deed allowing a future wall of unlimited height.
Assume I propose an easement limiting the wall height to the dimensions shown on the approved construction plans.
Is your position that:(1) the County would never agree,
(2) the County is legally prohibited from agreeing, or
(3) you simply think it is unlikely?"
Those are very different statements.
Many attorneys say "you can't" when what they really mean is:
"The odds are low and the litigation cost isn't worth the fight."
Your leverage may not be:
"You must change the deed."
Instead it may be:
"If you insist on unlimited future rights, then those rights have value and should increase compensation."
That argument is often more persuasive because it accepts the County's power to condemn while highlighting that broader rights should cost more.
So if an attorney tells you there is "practically NO legal way" to limit future levee height, my follow-up would be:
"Is the problem that the County has the legal power to condemn those broader rights, or is the problem simply that nobody has enough leverage to force the County to accept narrower language? Those are not the same thing."
That question will usually reveal whether the obstacle is a true legal barrier or merely a negotiating reality.
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