No. 99-859
In the Supreme Court of the United States
CENTRAL GREEN CO., PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUPPLEMENTAL BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 99-859
CENTRAL GREEN CO., PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUPPLEMENTAL BRIEF FOR THE UNITED STATES
Pursuant to Rule 15.8 of the Rules of the Court, the Solicitor General respectfully
files this supplemental brief to bring to the Court's attention new matter.
In its reply brief, petitioner asserts that the United States has been "seriously
disingenuous" (Pet. Reply 1, 5) in not properly acknowledging the procedural
posture in which the case comes to this Court, and has made representations
that are "false" (id. at 9). Petitioner is mistaken.
1. With respect to the procedural posture of the case, on page 2 of the
brief in opposition we noted that "[t]he United States moved for judgment
on the pleadings," which is exactly what the government did. See C.A.
R.E. 138.* Under Federal Rule of Civil Procedure 12(c), any party may move
for judgment on the pleadings. On page 3 of our opposition, we note that
"[t]he district court granted the government's motion for judgment
on the pleadings."
Petitioner is mistaken for two reasons in asserting that in view of that
procedural posture "the allegations of the complaint [that no flood
waters were involved in causing the damage to petitioner's property] must
be accepted as true." Pet. Reply 1. First, the complaint does not contain
any such allegation. While petitioner asserts that the "Complaint alleges
that the Madera Canal serves only irrigation purposes," id. at 2 (emphasis
added), the Complaint in fact alleges that the Madera Canal "is used
to convey irrigation water to various lands in the San Joaquin Valley"
(¶ 7); it does not allege that the waters were not also flood waters,
C.A. R.E. 2. Indeed, the allegations of the Complaint are wholly consistent
with our view that the presence of the water in the canal served both flood
control and irrigation purposes.
Second, the characterization of waters in this case as "flood waters"
for purposes of the Flood Control Act of 1928, 33 U.S.C. 702c, is not a
"fact" as to which the plaintiff's allegations must be taken as
true for purposes of a Rule 12(c) motion. As our motion for judgment on
the pleadings itself noted, "a court need not 'assume the truth of
legal conclusions merely because they are cast in the form of factual allegations.'"
C.A. R.E. 143 (quoting Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir.) (citations omitted), cert. denied, 454 U.S. 1031 (1981)). Thus,
even if the Complaint had alleged that the waters that caused the damage
to petitioner's property were irrigation waters and therefore not flood
waters, such an allegation would be just such a legal conclusion cast as
a factual allegation. In any event, the district court expressly concluded
that "[t]he parties do not dispute that one of the purposes of the
Madera Canal is flood control." C.A. R.E. 124-125.
Moreover, there is no basis for petitioner's contention that the brief in
opposition "fails to advise the Court that Petitioner repeatedly sought
to present its evidence on this factual question in the lower courts, but
Respondent successfully asserted that the allegations of the complaint should
be accepted as true and the case dismissed as a matter of law." Pet.
Reply 1. The district court filings in this case do not support petitioner's
assertion of having "repeatedly sought to present its evidence."
Ibid. See C.A. R.E. (collecting court submissions). In the district court,
petitioner never offered such evidence but only argued that the United States
had the burden to prove that the waters were "flood waters" and
that the government had failed to carry its burden. See C.A. R.E. 93. Petitioner
has not identified any evidence that it attempted to present but was precluded
from presenting. Our position then and now was that the Complaint should
be dismissed assuming its allegations were true.
2. The government's longstanding position has been that waters carried in
a multi-purpose project (of which flood control is one purpose) do not cause
the government to lose immunity under the Flood Control Act simply because
the principal purpose of a part of the multi-purpose project may be something
(like irrigation) other than flood control. As for the Central Valley Project
(CVP), of which the Madera Canal and Friant Dam are a part, the law has
been well-settled in the Ninth Circuit that the CVP "flood control
function and the relationship of that function to the project as a whole
have been described." Br. in Opp. 7 (citing cases). The government's
reliance on those cases in the district court and court of appeals is completely
proper advocacy. The fact that the government explained to the district
court in this case that it need not conduct fact-finding on whether the
waters that caused property damage to petitioner's property were "flood
waters" simply reflected that well-established case law.
Indeed, contrary to petitioner's assertion (Pet. Reply 2) that the United
States is making an argument in this Court inconsistent with its position
in the district court and court of appeals, the government's motion for
judgment on the pleadings makes precisely the same argument. That motion
states: "Accepting plaintiff's allegations as true, this Court should
hold plaintiff's claims barred by section 702c because the Madera Canal
is part of a federal flood control project, plaintiff's alleged injury was
not wholly unrelated to the [Central Valley] Project's operation, and an
alleged cause of the injury was floods or flood waters." C.A. R.E.
144-145. The government's motion goes on to aver that "the Madera Canal's
conceded status as part of the Central Valley Project establishes the requisite
flood control nexus." Id. at 145. Our motion for judgment on the pleadings
cites the uniform line of cases that have taken judicial notice of the fact
that the CVP "has a federal flood control purpose" (id. at 146)
and thus that property damage caused by flooding from CVP components qualifies
for immunity under the Flood Control Act. Ibid.
Our brief in opposition in this Court is consistent with that view, and
we dispute the contention in the petition reply (at 5) that we have been
in any way "disingenuous." Because the settled understanding of
the Ninth Circuit as to the flood control functions of the CVP has no controlling
weight in this Court, we recited Congress's purpose in establishing the
CVP, with citations to the Department of the Interior report, to support
our position that the "irrigation waters" in the Madera Canal
are simply released "flood waters" made available from time to
time by discharges from the Friant Dam. "The inherent nexus between
flood control and damage caused by waters escaping from the integrated multi-purpose
CVP" (Br. in Opp. 8) is not a "newfound factual assertion"
(Pet. Reply 5), but rather our longstanding legal position.
In our view, the fact that the Madera Canal is principally used for irrigation
does not change the analysis under the Flood Control Act. The release of
flood waters from the Friant Dam in part contributes to making irrigation
from the Madera Canal possible. Such releases do not irrevocably transform
those waters into something that would deny the government immunity under
the Flood Control Act. Contrary to petitioner's assertion (Pet. Reply 5-6
& n.1), none of the Supreme Court cases cited holds that irrigation
is the only purpose of the Madera Irrigation District. See United States
v. Gerlach Live Stock Co., 339 U.S. 725, 753 (1950); City of Fresno v. California,
372 U.S. 627, 630 (1963); Dugan v. Rank, 372 U.S. 609, 613 (1963).
3. The petition reply (at 7 n.2) asserts that we raise a new argument in
the brief in opposition to defend the judgment below-that "immunity
applies to all waters 'that [flood control] projects cannot control'"-and
that the government is not believed ever before to have taken that position.
Pet. Reply 7 n.2. Again petitioner is mistaken. First, the government's
briefing for judgment on the pleadings made the very same argument. See
C.A. R.E. 76 (arguing, in the alternative, that "the leaking canal
waters are 'waters that such projects cannot control' under James").
Second, contrary to petitioner's statement that this argument has not been
raised "in any other case so far as we are aware" (Pet. Reply
7 n.2), the record excerpts filed by petitioner in the court of appeals
disprove the assertion it is now making. The appendix to the United States'
motion for judgment on the pleadings in this case contains an order in an
analogous case (Johnston v. United States, No. CIV F 96-5484 (E.D. Cal.
Dec. 31, 1996)), in which the district court had accepted the very same
argument. See C.A. R.E. 157 ("The record demonstrates that the damage
to Plaintiff's lands was caused by waters which could not be controlled
by the ponding basin adjacent to the San Luis Canal.").
4. The petition reply (at 8) is also mistaken in asserting that we have
changed positions from the argument we made in successfully opposing certiorari
in East Columbia Basin Irrigation District v. United States, 522 U.S. 948
(1997) (No. 96-2054). The only material difference between the petition
in that case and the one in this case is that petitioner's counsel in East
Columbia Basin-a distinguished law professor at Emory University-did not
contend (as does petitioner in this case) that the result would have come
out differently in the other circuits asserted as conflicting in the Central
Green petition. As we noted in East Columbia Basin, petitioner there did
not "argue that [the] case would have been decided differently under
any other circuit's approach." 96-2054 Br. in Opp. at 10. The apparent
difference in views among the petitioners in East Columbia Basin and in
this case does not support the conclusion that the government has changed
its position. Had petitioner in East Columbia Basin argued that the cases
invoked for an alleged conflict in fact did conflict, we would have taken
the position expressed in our brief in opposition in this case, that "no
court of appeals has disagreed with the holding of the court below: that
the federal government is immune from suit for property damages caused when
flood waters escape from a multi-purpose project with flood-control as one
of its purposes." Br. in Opp. at 4. Furthermore, petitioner offers
no support for the assertion in its reply brief (at 9) that "at the
time certiorari was denied in East Columbia, there was some prospect that
Congress would resolve the circuit conflict as suggested by Justice Stevens,
see Hierche v. United States, 503 U.S. 923 (1992)." This Court denied
certiorari in East Columbia only slightly over two years ago (and five years
after Hiersche), and there has been no intervening legal development to
warrant a different outcome here.
We take very seriously the statements in petitioner's reply that representations
made by the United States are "false" (Pet. Reply 9) and "seriously
disingenuous" (id. at 1, 5). It appears that petitioner has been led
by disagreement with us on a question of law to the mistaken view that we
have misrepresented and failed to disclose facts to the Court. The United
States has argued, and the district court and court of appeals have agreed,
that even if irrigation is the principal purpose of the Madera Canal, its
waters have the relationship to flood control or flood waters required by
the Flood Control Act, because flood waters are held by the Friant Dam until
discharged into the Madera Canal, the discharge is at times necessary for
flood control purposes, and the discharge enables the irrigation function
of the canal to proceed. Petitioner apparently disagrees with that view
of the statutory term "flood waters," contending that if waters
serve an irrigation function they are by virtue of that fact not flood waters.
That difference of opinion should not be transformed into a charge of misrepresentation
or disingenuousness.
* * * * *
For the foregoing reasons, and those stated in our brief in opposition,
the petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
MARCH 2000
* References to C.A. R.E. are to Central Green's Excerpts of Record filed
by petitioner in the court of appeals. For the convenience of the Court,
we have lodged copies of it with the Clerk.