No. 99-859
In the Supreme Court of the United States
CENTRAL GREEN CO., PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
DAVID C. FREDERICK
Assistant to the Solicitor General
ROBERT S. GREENSPAN
IRENE M. SOLET
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether 33 U.S.C. 702c, which provides that "[n]o liability of any
kind shall attach to or rest upon the United States for any damage from
or by floods or flood waters at any place," bars petitioner's tort
action arising from property damage sustained as a result of allegedly negligent
construction and maintenance of an irrigation canal that is part of a multi-purpose
federal flood control project.
In the Supreme Court of the United States
No. 99-859
CENTRAL GREEN CO., PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-9) is reported at 177 F.3d
834. The opinion of the district court (Pet. App. 10-20) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on May 20, 1999. A petition
for rehearing was denied on September 7, 1999 (Pet. App. 21). The petition
for a writ of certiorari was filed on November 19, 1999, and was granted
on March 20, 2000. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
STATUTE INVOLVED
33 U.S.C. 702c, in pertinent part, is in App., infra, 1a.
STATEMENT
The Flood Control Act of 1928, 33 U.S.C. 702c, provides that "[n]o
liability of any kind shall attach to or rest upon the United States for
any damage from or by floods or flood waters at any place." Petitioner
claims that the waters that damaged its property-allegedly the result of
a leak from the Madera Canal in the Friant Division of California's Central
Valley Project (CVP)-were irrigation waters and not flood waters, and that
the court of appeals used the wrong test to determine that they were flood
waters. To place this issue in context, it is necessary to understand the
interrelated history of irrigation and flood control in California's Central
Valley, the purposes and operations of the CVP and its Friant Division,
and the relationship of the Madera Canal to both irrigation and flood control.
1. History of Flooding in the Central Valley. The Central Valley consists
of the basins of the Sacramento River in the north and the San Joaquin River
in the south. Bordered on the east by the Sierra Nevada Mountains and on
the west by the Coast Range, the valley extends almost 500 miles and includes
more than one third of the State. The two rivers flow toward each other
and join in the Sacramento-San Joaquin delta, eventually emptying into San
Francisco Bay and, from there, into the Pacific Ocean. S. Doc. No. 113,
81st Cong., 1st Sess. 83 (1949) (S. Doc. No. 113).
Efforts to address the problem of flooding in the Central Valley began as
early as 1880. See Report of the State Engineer To The Legislature of California-Session
of 1880, Pt. II, at 5 (1880). California's State Engineer reported that
the low lands of the Sacramento and San Joaquin valleys "have been
and still in a great measure are subject to annual inundation." Ibid.
According to the State Engineer, the Sacramento River "brings down
a formidable flood volume almost every year, inundates a large area of country,
and seriously threatens with devastation several hundred thousands of acres."
Ibid. The San Joaquin was "in correspondingly high flood" approximately
once every four years. Ibid. Periodic flooding in the winter contrasted
with generally inadequate sustained rainfall during the summer, making "the
use of irrigation imperative for production of most agricultural crops."
S. Doc. No. 113, at 85.
Beginning early in the 20th century, California actively pursued a coordinated
approach to flooding and water shortages. In 1915, the state legislature
authorized the convening of a conference "[f]or the purpose of considering
and recommending a unified state policy with reference to irrigation, reclamation,
water storage, flood control, municipalities, and drainage, with due regard
to the needs of water power, mining, and navigation." H.R. Doc. No.
416, 84th Cong., 2d Sess. Pt. 1, at 109 (1956) (H.R. Doc. 416).1 The following
year, the State Water Problems Conference issued its report. Even at that
early planning stage, the Conference recognized that the use of dams and
their resulting reservoirs for both flood control and irrigation involved
a careful balancing of "antagonistic interests." Id. at 128. The
report explained that "[a] reservoir for highest economic efficiency
in flood control should be kept empty until actual flood" and then
gradually emptied "to give storage for another flood. That same reservoir,
if used for power or irrigation would, on the contrary, be filled as soon
as possible-before actual flood if conditions permitted-and kept full, lest
there should not be subsequent flood to fill it." Id. at 129.
2. Early Federal Involvement in Central Valley Flood Control. In 1893, Congress
established the California Debris Commission, a panel of three Army engineers
appointed by the President. Congress directed the Commission to adopt plans
to address flooding and navigation problems caused by tailings from hydraulic
mining that had clogged the channels of the Sacramento and San Joaquin Rivers.
Caminetti Act, ch. 183, 27 Stat. 507; see also H.R. Doc. 416, at 50.2 In
1917, Congress authorized the Secretary of War to carry out the Commission's
plans to control floods on the Sacramento River. Act of Mar. 1, 1917, ch.
144, § 2, 39 Stat. 949. That Act authorized expenditure of $45 million
for flood control work on the Mississippi River, conditioned upon contributions
of at least half that amount from "local interests protected thereby."
§ 1, 39 Stat. 948. Congress continued to link flood control in the
Central Valley and along the Mississippi in the Flood Control Act of 1928,
Act of May 15, 1928, ch. 569, § 1, 45 Stat. 534-535, which contains
the immunity provision at issue in this case (§ 3, 45 Stat. 535-536).
That Act increased the authorized federal expenditures for flood control
on the Sacramento River to a total of $17.6 million (§ 13, 45 Stat.
539).
3. Construction of the Central Valley Project and Friant Dam. As the federal
government was making its first investments in flood control on the Sacramento
River, California was investigating a coordinated approach to water problems,
including flood control, throughout the Central Valley. See H.R. Doc. 416,
at 139-256. Those investigations culminated in 1931 in a State Water Plan
submitted to the California legislature by the State's Director of Public
Works. Id. at 257. That plan addressed California's "twofold"
water problem, "involving first the conservation and utilization of
its water resources, and second, the control of floods." Id. at 258-259.
The plan called for a system of dams, reservoirs, and canals in the Central
Valley that would, among other functions, pump water from the Sacramento-San
Joaquin delta into the San Joaquin basin, at Mendota, for irrigation. That
system would permit the waters of the San Joaquin to be diverted from farther
upstream, at Friant, to irrigate previously arid upstream lands. Id. at
261.
The 1931 State Water Plan specifically called for construction of Friant
reservoir, as well as the Madera and Friant-Kern Canals to be fed by that
reservoir. H.R. Doc. 416, at 271-272. Moreover, the plan proposed "[t]he
reservation of space and its operation for flood control * * * in each of
the major reservoirs on the more important streams." Id. at 295. The
plan further specified the quantity of storage space to be reserved for
flood control in each of 14 proposed reservoirs, including Friant, and explained
that "operation of these reservoirs for flood control would not materially
impair their value for conservation purposes, nor materially decrease the
amount of value of the electric energy generated by water released from
them." Id. at 295. Operating the reservoirs "specifically for
flood control * * * would result in a substantial reduction of floods and
in an increased degree of protection to the areas subject to overflow."
Id. at 297.3
In 1933, the California legislature authorized construction of a coordinated
water project along the lines of the State Water Plan. That planned "Central
Valley Project," which included both Friant Dam and the Madera Canal,
was to be financed by the sale of revenue bonds. H.R. Doc. 416, at 412,
423. Almost from the beginning, however, state financing appeared infeasible
and federal involvement became essential to the project's realization. Id.
at 522. In 1935, the State legislature acknowledged those facts and authorized
the State's Department of Public Works "to prosecute efforts to secure
Federal aid and assistance in financing the construction of the Central
Valley project." Id. at 555.
In the ensuing years, the federal government acted to advance construction
of the CVP and, ultimately, to make it an entirely federal project. In 1935,
Congress authorized the Army Corps of Engineers to undertake construction
of Kennett Dam (now called Shasta Dam) on the Sacramento River, one of the
major components of the coordinated project that was initially planned and
authorized by the State. Rivers and Harbors Act of 1935, ch. 831, 49 Stat.
1038; see also H.R. Doc. 416, at 544-555. Also in 1935, the President approved
a report by the Secretary of the Interior on the feasibility of the entire
Central Valley Project as a reclamation project pursuant to federal reclamation
laws. H.R. Doc. 416, at 562-567.4 As described in that report, the CVP included
among its principal features Kennett Reservoir on the Sacramento River,
pumping plants and canals to deliver water from the Sacramento-San Joaquin
delta to Mendota, Friant Reservoir on the San Joaquin River, and the Madera
and Friant-Kern Canals to be fed by the Friant reservoir. Id. at 564-565.
In 1936, Congress appropriated funds specifically for "construction
of Friant Reservoir and irrigation facilities therefrom." Act of June
22, 1936, ch. 689, 49 Stat. 1622.
Finally, in 1937, Congress transferred responsibility for construction of
the CVP from the Corps of Engineers to the Secretary of the Interior. Rivers
and Harbors Act of 1937, ch. 832, § 2, 50 Stat. 850. The same statute
provided that:
the entire Central Valley project * * * is hereby reauthorized and declared
to be for the purposes of improving navigation, regulating the flow of the
San Joaquin River and the Sacramento River, controlling floods, providing
for storage and for the delivery of the stored waters thereof, for the reclamation
of arid and semiarid lands and lands of Indian reservations, and other beneficial
uses, and for the generation and sale of electric energy as a means of financially
aiding and assisting such undertakings and in order to permit the full utilization
of the works constructed to accomplish the aforesaid purposes.
Ibid. Congress also specified that the project's dams and reservoirs "shall
be used, first, for river regulation, improvement of navigation, and flood
control; second, for irrigation and domestic uses; and, third, for power."
Ibid.
Construction of Friant Dam began in October 1939 and the dam was in partial
operation by November 1942. U.S. Army Corps of Engineers, Report on Reservoir
Regulation for Flood Control, Friant Dam and Millerton Lake, San Joaquin
River, California 2 (Dec. 1965, rev. Aug. 1980) (Friant Flood Report) (lodged
with the Clerk). Much of the remaining construction work on the dam and
related features of the project was deferred during the Second World War
(ibid.), but by February 1947, the dam itself was "largely constructed,"
the Madera Canal was "essentially complete," and construction
of the Friant-Kern Canal was underway. H.R. Doc. No. 146, 80th Cong., 1st
Sess. 2 (1947). Friant Dam and its reservoir, named Millerton Lake, were
completed in 1949. U.S. Army Corps of Engineers, Post-Flood Assessment for
1983, 1986, 1995, and 1997, Central Valley, California 3-32 (1999) (Post-Flood
Assessment).5
Congress confirmed the flood control role of Friant Dam while it was still
under construction. In the Flood Control Act of 1944, ch. 665, 58 Stat.
887, Congress centralized responsibility for flood control operations at
federal reservoirs by directing the Secretary of War to prescribe regulations
governing such operations at "all reservoirs constructed wholly or
in part with Federal funds provided on the basis of [flood control or navigation]
purposes." § 7, 58 Stat. 890. The House report on the 1944 Act
described the "widespread and damaging floods [that had] occurred in
several of the major river basins of the Nation" in 1942 and 1943,
with particular emphasis on floods in "the lower San Joaquin Valley."
H.R. Rep. No. 1309, 78th Cong., 2d Sess. 1, 2 (1944) (H.R. Rep. No. 1309).
That report further stated that recent experience "in the operation
of multiple-purpose reservoirs during major floods has demonstrated that
* * * reservoirs constructed wholly or in part with federal funds * * *
should have their flood-control features operated under the supervision
of the Chief of Engineers in accordance with regulations prescribed by the
Secretary of War." Id. at 7. In addition, however, the 1944 Act expressly
approved the plan "for flood control and other purposes on the Lower
San Joaquin River and tributaries * * * in accordance with the recommendations
of the Chief of Engineers" and authorized $8 million for "initiation
and partial accomplishment of the plan." § 10, 58 Stat. 901.
4. Operation of Friant Dam and the Madera Canal. Friant Dam, located 25
miles northeast of Fresno, is a concrete structure that can store 520,500
acre-feet of water. Friant Flood Report 11. Water is released from the dam
into the Madera and Friant-Kern Canals as well as down the river either
through outlets in the dam or over its spillway. Id. at 15. The 36-mile
long Madera Canal extends northward from the dam, crossing the Fresno River
and emptying into the Chowchilla River. Id. at 11; see App., infra, at 2a
(diagram depicting Central Valley Project). Approximately the first 7.7
miles of the canal, including the portion that traverses petitioner's property,
is lined by concrete, with the remainder unlined and formed by dug-out clay
and rock. The Friant-Kern Canal extends 152 miles southward from the dam
and connects to the Kern River. Friant Flood Report 11; Post-Flood Assessment
3-32.
Friant Dam is owned by the United States and operated by the Department
of the Interior as part of the CVP. Post- Flood Assessment 3-32. The Madera
Canal, likewise part of the CVP (see S. Doc. No. 113, at 130), is owned
by the United States (through the Department of the Interior) and operated
by the Madera Irrigation District (and its legal successor) under contract
with and supervision of the Department. J.A. 8, 19-47. The Department's
Bureau of Reclamation controls irrigation operations in all parts of the
CVP, including the Friant Division. Friant Flood Report App. A.
Pursuant to the Flood Control Act of 1944, however, the Friant Division's
flood control operations are regulated by the Corps of Engineers. 33 C.F.R.
208.11. In 1955, the Corps first promulgated regulations governing "the
use and operation of Friant Dam and Reservoir on San Joaquin River, California,
for flood control purposes." 20 Fed. Reg. 9181. In 1976, the Corps
replaced the regulations specifically addressing Friant Dam, and similar
regulations for other individual reservoirs, with new regulations governing
the operation of all projects covered by the 1944 Act or otherwise subject
to the Corps' authority to direct flood control operations, other than those
owned and operated by the Corps itself. 41 Fed. Reg. 20,400 (1976).
Under those regulations (which list covered projects, including "Friant
Dam and Millerton Lake," by name), each project's flood control operations
are governed by a "water control plan and manual" prepared by
the Corps of Engineers specifically for that project. 33 C.F.R. 208.11(d)(4).
The project owner commits to the terms of the plan and manual in a "letter
of understanding" or a "field working agreement" with the
Corps. 33 C.F.R. 208.11(c)(3). See Friant Flood Report App. A. The Corps'
plan for the Friant Division is designed to address two kinds of floods
that occur in the Central Valley-floods caused by rain and floods caused
by melting snow. Rainfloods, which typically occur in late fall and winter,
are characterized by high peak discharges lasting only a few days at a time.
Notwithstanding their short duration, such rains historically have flooded
natural river channels unimproved by man-made levees and dams. In contrast,
snow-melt floods, which occur during the late spring and summer, produce
sustained, moderate flows over a period of two to three months and result
in a much larger volume of total runoff. Id. at 9-10. Those runoffs require
extensive monitoring to ensure against flooding.
The plans in effect pursuant to 33 C.F.R. 208.11 for flood control operations
of Friant Dam and its related canals address both rain and snow-melt floods.
Regulations require each project to have a "Flood Control Diagram"
describing the multiple uses of storage space behind the dam over the course
of the year. 33 C.F.R. 208.11(d)(5)(i). The Friant diagram shows that for
ten months of the year (October through July), the reservoir stores water
both to serve irrigation needs and to control floods. Friant Flood Report
App. A, Chart A-11. "The flood control operation is determined daily
as described on chart A-11." Id. at A-2. The Flood Control Diagram
also shows that during some portions of the year, depending on the weather,
the total quantity of stored water necessary to satisfy irrigation needs
and to control floods may exceed the storage capacity of the dam. Id. Chart
A-11. At those times, "supplemental releases"-releases solely
for flood control-are mandatory. Ibid. Some of those flood releases are
made through the Madera and Friant-Kern Canals. Post-Flood Assessment 3-32
to 3-33.6 The Corps of Engineers has estimated that operation of Friant
Dam reduced flood damage by $23,690,000 in 1983, $33,190,000 in 1986, $54,310,000
in 1995, and $3,320,000 in 1997. Id. at 5-15, 5-27, 5-38, 5-48.
5. This Litigation. Petitioner Central Green Company, the owner of pistachio
orchards in Madera County, California, brought this action against the United
States under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., alleging
that negligent design, construction, or maintenance of the Madera Canal
by the federal government resulted in property-damaging leakage of water
from the canal. Pet. App. 2; J.A. 8-9.7 The district court granted the government's
motion for judgment on the pleadings. Pet. App. 20. Rejecting petitioner's
contention that the Flood Control Act of 1928, 33 U.S.C. 702c et seq., did
not apply because the waters carried through the Madera Canal are used for
irrigation purposes and not for flood control, the district court observed
that "[t]he legislative history [of Section 702c] * * * is very clear
that the scope of the immunity is very broad." Pet. App. 19. The district
court concluded that petitioner had "cited nothing that allows the
undermining of the scope of that immunity when a multi-purpose project is
involved." Id. at 19- 20.
The court of appeals affirmed. Pet. App. 1-9. The court recognized that
Section 702c "confers broad immunity for claims arising from the design,
operation, or management of federally authorized flood control projects."
Id. at 2. Petitioner's "sole argument" against application of
the immunity here, according to the court, was that the water that damaged
its property was not "flood water" within the meaning of Section
702c because it was held "for irrigation purposes rather than flood
control." Id. at 3. The court concluded that its own decisions, both
before and after this Court's decision in United States v. James, 478 U.S.
597 (1986), compelled rejection of that argument because the Madera Canal
is part of a federal flood control project, the CVP. Pet. App. 5-8.
SUMMARY OF ARGUMENT
I. In United States v. James, 478 U.S. 597 (1986), this Court construed
the Flood Control Act of 1928 to confer broad immunity from suit against
the United States for damages by flood waters, which the Court defined as
"all waters contained in or carried through a federal flood control
project for purposes of or related to flood control, as well as to waters
that such projects cannot control." Id. at 605. That definition is
satisfied in this case.
II. In several statutes, Congress expressly provided that the entire Central
Valley Project (CVP) is a flood control project. Both as it was originally
conceived by Congress and as it operates in practice, the CVP's flood control
functions depend on the integrated operations of the project's numerous
subdivisions, which include Friant Dam and the Madera Canal. The timing
and amount of water releases at each place in the CVP have consequences
for flood control. Moreover, Congress also specified in the Flood Control
Act of 1944 that the Friant Division (of which the Madera Canal is a part)
is a flood control project by incorporating into the legislation a set of
Corps of Engineers' recommendations that clarified the important flood control
purpose of the Friant Dam and the use of the Madera Canal for releases of
flood waters.
The 1944 Act also conferred legislative rulemaking authority on the Corps
of Engineers to promulgate flood control rules for multiple-use projects.
In 1955, the Corps promulgated such regulations for the Friant Division.
That authoritative determination, which has been maintained consistently
by the Corps since that time, is entitled to deference. United States v.
Gerlach Live Stock Co., 339 U.S. 725 (1950), is not to the contrary. The
issue in that case was whether the reclamation laws required the government
to compensate downstream water rights owners. In upholding the claims of
the owners, the Court did not foreclose the Friant Division from being deemed
a flood control project under Section 702c.
III. Not only is the Friant Division (and the Madera Canal) a flood control
project, but also the Madera Canal carries flood waters within the meaning
of James. For ten months of the year, Millerton Lake stores water to control
floods and to serve irrigation needs. Petitioner's approach rests on an
untenable theory of legal distillation of those waters: that at some point
in the process of capturing, storing, and releasing those waters it is possible
to identify some as "flood waters" and some as "irrigation
waters." That theory is belied by (A) the regulatory requirements governing
flood releases from Friant Dam, which may be satisfied only by channeling
some of those releases into the Madera Canal; (B) the contract with the
Madera Irrigation District, which expressly provides for flood waters to
be released into the Madera Canal; and (C) the historical record of water
flows in the canal, which establish empirically that more water has been
released into the Madera Canal for flood control than for principally irrigation
purposes over the past twenty years. There thus can be no question that
the Madera Canal is a flood control project and the waters that allegedly
leaked from the canal were "for purposes of or related to flood control."
James, 478 U.S. at 605. Moreover, petitioner's allegation that water leaked
from the canal is sufficient by itself to satisfy the alternative definition
of "flood waters" in James as "waters that such [flood control]
projects cannot control." Ibid.
IV. In this Court petitioner advances for the first time a novel construction
of the Flood Control Act not heretofore adopted by a single court: that
the immunity applies only where the waters causing damage are "primarily"
for the purpose of flood control. That approach conflicts with the broad
immunity recognized by the James Court as compelled by the plain language
of Section 702c. Petitioner's approach is unworkable since it requires courts
to engage in an analysis of a project's "primary" purpose that
Congress itself does not specify when enacting multiple-use water projects.
Petitioner's approach also produces the result- plainly inconsistent with
congressional intent-that scores of multiple-use projects recognized by
the Corps under its delegated rulemaking authority as flood control projects
would be ineligible for Section 702c immunity.
ARGUMENT
I. UNITED STATES v. JAMES ESTABLISHES THAT THE IMMUNITY PROVIDED BY THE
FLOOD CONTROL ACT MUST BE BROADLY CONSTRUED TO INCLUDE ALL DAMAGES CAUSED
BY FLOOD WATERS IN A FLOOD CONTROL PROJECT
In the Flood Control Act of 1928, Congress embarked upon a multi-decade
program of unprecedented scope to construct dams and other structures for
flood control. See United States v. Sponenbarger, 308 U.S. 256, 262 (1939).
Congress limited the government's exposure to financial liability for damages
resulting from flood control activities by including in the 1928 legislation
a provision that "[n]o liability of any kind shall attach to or rest
upon the United States for any damage from or by floods or flood waters
at any place." 33 U.S.C. 702c.
A. The James Test Confers Immunity From Liability For Damage From Waters
Carried In Flood Control Projects That Either Are Related To Flood Control
Or Cannot Be Controlled In The Project
In United States v. James, 478 U.S. 597 (1986), this Court rejected a narrow
construction of Section 702c immunity, construing it to extend to both property
damage and personal injury. Id. at 605. Noting that it "is difficult
to imagine broader language" than Section 702c, the Court held that
the "sweeping language" of the text and the "equally broad
and emphatic language" of its legislative history support recognition
of a broad immunity for the United States. Id. at 604, 608. The Court added
that "Congress' choice of the language 'any damage' and 'liability
of any kind' further undercuts a narrow construction." Id. at 605 (quoting
33 U.S.C. 702c).8
Justice Powell's opinion for the Court in James emphasized that a broad
immunity is consistent with the purpose of Section 702c. The Court explained
that "the legislative history of § 702c shows a consistent concern
for limiting the Federal Government's financial liability to expenditures
directly necessary for the construction and operation of the various projects."
478 U.S. at 607. The Court also stressed that "[n]umerous statements
concerning the immunity provision confirm that it was intended to reaffirm
sovereign immunity in such a dangerous and extensive project," including
this statement from the Chair of the House Rules Committee:
I want this bill so drafted that it will contain all the safeguards necessary
for the Federal Government. If we go down there and furnish protection to
these people- and I assume it is a national responsibility-I do not want
to have anything left out of the bill that would protect us now and for
all time to come. I for one do not want to open up a situation that will
cause thousands of lawsuits for damages against the Federal Government in
the next 10, 20, or 50 years. 69 Cong. Rec. 6641 (1928) (remarks of Rep.
Snell).
Ibid. Accordingly, Section 702c "safeguarded the United States against
liability of any kind for damage from or by floods or flood waters in the
broadest and most emphatic language." Id. at 608 (emphasis added) (quoting
National Mfg. Co. v. United States, 210 F.2d 263, 270 (8th Cir.), cert.
denied, 347 U.S. 967 (1954)). The language the Court chose to define the
scope of that immunity was correspondingly broad: "The Act concerns
flood control projects designed to carry floodwaters. It is thus clear from
§ 702c's plain language that the terms 'flood' and 'flood waters' apply
to all waters contained in or carried through a federal flood control project
for purposes of or related to flood control, as well as to waters that such
projects cannot control." 478 U.S. at 605 (emphasis added).9 Under
James, therefore, the government is entitled to immunity in this case because,
as we show below, it is a matter of public record that: (1) the Madera Canal
is part of a federal flood control project and (2) the waters that caused
the flood either (a) are carried in the project "for purposes of or
related to flood control" or (b) are "waters that such projects
cannot control." Ibid.
B. The Court Of Appeals Properly Upheld The Government's Immunity Under
James
The courts below properly dismissed petitioner's claims on the ground that
petitioner was seeking compensation for "damage from or by floods or
flood waters," within the meaning of the immunity conferred by 33 U.S.C.
702c. The court of appeals correctly held that the James test was satisfied
because the Madera Canal is part of the Central Valley Project, which is
indisputably a flood control project, and thus all waters in the Project
are contained in or carried through it for purposes that are at least related
to flood control. Pet. App. 3-8. Petitioner has questioned that determination,
drawing support from the court of appeals' statement that the Madera Canal
itself "is not a flood control project and serves no flood control
purpose." Id. at 9. That observation, which was made without citation
to any sources, is both inaccurate and legally irrelevant.
As we demonstrate in Part II, infra, numerous statutory and regulatory authorities
establish not only that the CVP is a flood control project, but also that
the Friant Division of the CVP-of which the Madera Canal is a critical component
-is a flood control project. In addition, as we demonstrate in Part III,
infra, judicially-noticeable materials establish that the Madera Canal itself
serves important flood control pur-poses.
Moreover, regardless of the purposes for which the water is contained in
or carried through the Madera Canal, the allegations in petitioner's complaint
establish the second prong of the James test: that the property was damaged
by waters that a federal flood control "project[] cannot control."
478 U.S. at 605. The complaint alleges that the "Madera Canal was constructed
or has been maintained in such a fashion that substantial amounts of water
leak and have leaked from [respondent's] canal," and that petitioner's
property was damaged by those alleged leaks. J.A. 9. Thus, if the Court
concludes that the Madera Canal is part of a flood control project as set
forth in Part II, the legal requirements for immunity under both prongs
of the James test have been satisfied. That alternative ground for affirmance
(the second prong of the James test) is consistent with the analysis of
the court of appeals in Morici Corp. v. United States, 681 F.2d 645 (9th
Cir. 1982), on which the court below relied. Pet. App. 6. In Morici, the
Ninth Circuit had held that the government was immune from suit for flooding
caused by waters that could not be controlled in the CVP because of water
seepage from the Sacramento River. 681 F.2d at 646-648.
II. CONGRESS UNAMBIGUOUSLY ESTABLISHED THE FRIANT DIVISION OF THE CENTRAL
VALLEY PROJECT AS A FLOOD CONTROL PROJECT
A. The Entire Central Valley Project Is A Federal Flood Control Project
In the Rivers and Harbors Act of 1937, ch. 832, § 2, 50 Stat. 850,
Congress authorized all of the Central Valley Project, including its irrigation
canals, as a federal flood control project. In particular, that statute
provides: "[T]he entire Central Valley project, California, * * * is
hereby reauthorized and declared to be for" purposes including "controlling
floods" (emphasis added).10 Petitioner is mistaken that the 1937 Act's
authorization of the CVP for flood control purposes extended only to its
"'dam[s] and reservoirs' but not its irrigation canals." Br. 27
(quoting text of statute).11 To the contrary, Friant Dam and the Madera
and Friant-Kern Canals were expressly included in plans for the CVP. H.R.
Doc. 416, at 564-565.
As originally conceived and as operated for more than 50 years, the CVP's
flood control operations have been integrated among the various subdivisions
of the project. Because the Sacramento and San Joaquin Rivers eventually
merge at a delta near San Francisco Bay, waters released from any dam on
either river (or their tributaries) will affect the volume of water in the
delta and such releases throughout the project must be coordinated carefully
to avoid floods. Thus, courts in the Ninth Circuit have uniformly held that,
notwithstanding its multiple purposes, the entire CVP is a federal flood
control project for which the flood immunity applies. See, e.g., Morici
Corp., 681 F.2d at 648 (government immune from suit for crop damages caused
by seepage from Sacramento River); Islands, Inc. v. United States Bureau
of Reclamation, 64 F. Supp. 2d 966, 969 (E.D. Cal. 1999); United States
v. Iron Mountain Mines, Inc., 881 F. Supp. 1432, 1439 (E.D. Cal. 1995).
A few examples using projects in the San Joaquin River basin illustrate
why the CVP is properly viewed as an integrated flood control project. See
App., infra, 2a (map with water release capacities). Three dams regulate
flows into the San Joaquin upstream of the Mariposa Bypass: Friant Dam (operated
by the Bureau of Reclamation) on the San Joaquin River; Hidden Dam (operated
by the Corps of Engineers) on the Fresno River, which flows into the San
Joaquin north of Mendota; and Buchanan Dam (operated by the Corps) on the
Chowchilla River, which flows into the San Joaquin River (roughly parallel
to but north of the Fresno River). The Madera Canal starts at the San Joaquin,
traverses the Fresno (with one bypass enabling water to be released into
the Fresno and another to send water underneath the river), and empties
into the Chowchilla. The Corps has calculated flood channel flows-the maximum
amount of water that will not cause flooding-for those rivers in cubic feet
per second (cfs). The flood channel flow of the San Joaquin immediately
below Friant Dam is 8000 cfs; of the Fresno River below Hidden Dam, 5000
cfs; and of the Chowchilla River below Buchanan Dam, 5000 cfs. Thus, if
each dam releases the maximum that can be accommodated by its immediate
downstream channel, the releases would total 18,000 cfs. But the flood channel
flow for the San Joaquin River downstream of where the Fresno and Chowchilla
Rivers enter it is only 16,500 cfs. Accordingly, the three dams must coordinate
their releases so that not all three are releasing their maximum at the
same time, which would exceed channel capacity by 1500 cfs.
Likewise, when releases from Friant Dam must exceed 8000 cfs to avoid surpassing
the reservoir's capacity, the Bureau releases water into the Madera and
Friant-Kern Canals to avoid flooding on the San Joaquin below Friant Dam.12
Excess water from Friant may travel through the Madera Canal to be discharged
into the Fresno and/or Chowchilla Rivers to avoid flooding a narrow stretch
of the San Joaquin at Skaggs Branch before the Fresno flows into the San
Joaquin River. But such releases must be coordinated carefully with the
Corps of Engineers, which may be making releases of water from its Hidden
and Buchanan Dams. See Post-Flood Assessment 3-34 to 3-35 (noting that "[d]uring
flood management operations, floodwaters can be routed to the Fresno River
via the Madera Canal" and "flows from the Madera Canal can be
directed down Ash (5000 cfs) and Berenda (2000 cfs) Sloughs, about 10 miles
downstream from Buchanan Dam" on the Chowchilla River). These examples
of routine practice illustrate what is true of the entire Central Valley
Project: that the release of water at one place necessarily affects decisions
by Corps and Bureau personnel as to whether water should be released at
another place. The court below thus properly held that the United States
is immune from petitioner's suit because the CVP, of which the Madera Canal
is a part, is a flood control project. See Pet. App. 8.
B. Congress Specified That The Friant Division Of The CVP Is A Flood Control
Project
Even if Congress's intent had been unclear in designating the entire Central
Valley Project as a federal flood control project warranting application
of Section 702c immunity, any such ambiguity would be irrelevant here because
Congress has provided that the Friant Division is itself a federal flood
control project. Petitioner correctly identifies the reclamation purposes
of the Friant Division (Br. 27-31), but overlooks key enactments establishing
Congress' intent that the project also perform flood control functions.
In 1936, Congress "recognized that destructive floods upon the rivers
of the United States * * * constitute a menace to national welfare."
Flood Control Act of 1936, ch. 688, § 1, 49 Stat. 1570. Congress directed
the Corps of Engineers to embark on "Federal investigations and improvements
of rivers and other waterways for flood control and allied purposes,"
further providing that such investigations "not interfere with investigations
and river improvements incident to reclamation projects * * * undertaken
by the Bureau of Reclamation." § 2, 49 Stat. 1570-1571. Congress
specifically instructed the Corps "to cause preliminary examinations
and surveys for flood control at the following-named localities," specifying
further that "the Government shall not be deemed to have entered upon
any project for the improvement of any waterway mentioned in this Act until
the project for the proposed work shall have been adopted by law: * * *
San Joaquin River from Herndon to Antioch and its main east side tributaries."
§ 6, 49 Stat. 1592, 1595. The 1936 Flood Control Act required the Corps
to study scores of rivers and to implement flood control improvements in
dozens of others.
In 1938, Congress authorized an appropriation of $375 million for flood
control works nationwide over the five-year period ending June 30, 1944.
See Act of June 28, 1938, ch. 795, §9, 52 Stat. 1226. The following
year, a House report advocated "annual authorizations for flood-control
projects to protect lives and property in the orderly development of the
national policy of flood control." H.R. Misc. Rep. No. 799, 76th Cong.,
1st Sess. 2 (1939). By 1941, that general recognition of the widespread
need for a comprehensive flood control policy had expanded to multiple-use
projects. "Plans for control of destructive floodwaters should to the
extent practicable provide for their conservation and use for the benefit
of all the people * * * to meet urgent needs for flood control, irrigation,
and navigation and to satisfy the growing demands for electric power."
H.R. Misc. Rep. No. 759, 77th Cong., 1st Sess. 3, 5 (1941).
The Nation's entry into World War II delayed implementation of that policy,
but by 1944 Congress again turned its attention to flood control. The Flood
Control Act of 1944 confirms that Congress intended the Friant Division
(as well as many other multiple-use projects) to be a federal flood control
project. Section 1 expressed Congress's intent to "preserve and protect
to the fullest possible extent established and potential uses, for all purposes,
of the waters of the Nation's rivers" and "to facilitate the consideration
of projects on a basis of comprehensive and coordinated development."
58 Stat. 888. The Act mandated coordination between and among the Corps
of Engineers, the Bureau of Reclamation, and the Secretary of Agriculture
(who had responsibility for assessing flood effects on soil erosion and
watersheds) in the investigation, planning, and operation of projects. §
1, 58 Stat. 888-889.
In Section 7 of the 1944 Act, Congress provided specifically that multiple-use
projects operated by agencies other than the Corps be deemed federal flood
control projects, and that they would be operated for that purpose in a
manner prescribed by the Corps, pursuant to expressly delegated rulemaking
authority:
Hereafter, it shall be the duty of the Secretary of War to prescribe regulations
for the use of storage allocated for flood control or navigation at all
reservoirs constructed wholly or in part with Federal funds provided on
the basis of such purposes, and the operation of any such project shall
be in accordance with such regulations.
58 Stat. 890. See also H.R. Rep. No. 1309, at 7 (noting that such legislation
was necessary because "recent experiences in the operation of multiple-purpose
reservoirs during major floods has demonstrated that to assure the expected
flood-control benefits" such projects should adhere to Corps of Engineers
flood-control operational rules). The Corps has exercised that rulemaking
expressly with respect to the flood control operations of the Friant Division.
See pp. 27-30, infra.
The 1944 Act also specifically recognized the Friant Division as a federal
flood control project. As was its normal practice in those years, Congress
adopted the report and recommendations of the Corps of Engineers directly
in the text of the enacted legislation, thereby putting a con-gressional
imprimatur on the specific findings and policies proposed by the Corps.
Thus, in addition to the many other multiple-use projects authorized in
the Flood Control Act of 1944, Section 10 provided that: "The plan
of improvement for flood control and other purposes on the Lower San Joaquin
River and tributaries, including Tuolumne and Stanislaus Rivers, in accordance
with the recommendations of the Chief of Engineers in Flood Control Committee
Document Numbered 2, Seventy-eighth Congress, second session, is approved,
and there is hereby authorized $8,000,000 for initiation and partial accomplishment
of the plan." 58 Stat. 901.
In Flood Control Document No. 2, in turn, the Corps recommended operating
the Friant Division as a flood control project. See H.R. Comm. on Flood
Control Doc. No. 2, 78th Cong., 2d Sess., San Joaquin River and Tributaries
(Comm. Print 1944) (Flood Control Doc. No. 2). The Corps noted that "[t]he
floods of 1937 and 1938 resulted in widespread damage on the San Joaquin
River and its majortributaries and made evident the necessity for a comprehensive
plan of control embracing the entire San Joaquin River system." Id.
at 23. It further tabulated data indicating that the 1937 floods had produced
peak natural flow from rain floods on the San Joaquin River at Friant of
77,000 cubic feet per second (cfs). Id. at 26, Tab. 15. To place that huge
volume in proper context, the Corps recommended that Friant Dam be operated
so that no more than 7000 cfs would be released into the San Joaquin above
Skaggs Branch. Id. at 39, Tab. 22. Notwithstanding the paucity of economic
development along the San Joaquin in that era, the Corps estimated that
the 1937 floods caused flood damage of $1.46 million. Id. at 32, Tab. 20.
The massive flooding of 1937-1938 initiated a major re-orientation in the
thinking of the Corps and Congress. The Corps formally recommended a "plan
of improvement" for the Friant Reservoir [Millerton Lake] "to
obtain the maximum flood control possible without impairment of irrigation
yield, i.e., operation in accordance with criteria given in paragraph 82,(a)."
Flood Control Doc. No. 2, at 35. It is apparent that the Corps factored
in the use of the Madera and Friant-Kern Canals for flood control in its
calculations: "Present plans provide for gross storage of 520,000 acre-feet,
inactive storage (below canal outlets) of 130,000 acre-feet, and flood outlet
capacity exceeding 12,000 cubic feet per second before any of the active
storage space is occupied." Id. at 35. In calculating the 12,000 cfs
flood release from the Friant Dam, the Corps expressly noted that only 7000
cfs could be released from Friant Dam into the San Joaquin River without
causing a flood between Skaggs Branch and Mendota. See id. at 39, Tab. 22.
The capacities of the Madera Canal of approximately 1000 cfs and the Friant-Kern
Canal of approximately 4000 cfs, added to the 7000 cfs capacity that the
Corps calculated could be safely released from the dam into the river, thus
accounted for the Corps' conclusion that the project had a "flood outlet
capacity exceeding 12,000 cubic feet per second." Ibid.
In forwarding the Corps' recommendations to Congress, which the 1944 Act
subsequently enacted, the Chief of Engineers stressed that "[t]he plan
also contemplates that Friant Reservoir, now under construction as an element
of the Central Valley project, will be so operated as to afford the maximum
degree of flood control compatible with its primary use for irrigation."
Flood Control Doc. No. 2, at 3. The Corps recommended specific design features
for the project so that the flood control value of the total project costs
estimated at $3.5 million could be realized. Id. at 45. Operated according
to plan, "about 82 percent of the total average annual flood damage
for the period of record would be prevented." Ibid. The 1944 Act and
its legislative history thus conclusively refute petitioner's assertion
(Br. 40) that "there simply is no basis to conclude that Congress con-ceived
of [the Friant Division] as a 'flood control project.'"
C. The Corps of Engineers' Longstanding And Consistent Determination That
The Friant Division Is A Flood Control Project Is Entitled To Deference
1. In 1955, the Corps of Engineers first promulgated regulations pursuant
to the delegated rulemaking authority of Section 7 of the 1944 Act that
governed "the use and operation of Friant Dam and Reservoir on San
Joaquin River, California, for flood control purposes." 20 Fed. Reg.
9181. Those rules, which have since been augmented, establish three required
operational conditions that can only be achieved if the Madera and Friant-Kern
Canals are used for release of flood waters: (1) releases from Friant Dam
"shall be restricted to quantities which will not cause downstream
flows to exceed, insofar as possible, * * * 8,000 cubic feet per second
between Friant and Skaggs Bridge";13 (2) "[s]torage space in Friant
Reservoir [Millerton Lake] shall be kept available for flood control purposes
in accordance with the Flood Control Storage Reservation Diagram currently
in force," ibid.; and (3) "[i]n the event that the reservoir level
rises above elevation 578 at the dam (top of spillway gates), subsequent
operation of the dam shall be such as to cause downstream flows and stages
to exceed as little as possible the criteria prescribed in paragraph (a)
of this section," ibid. While the Corps' criteria do not expressly
specify use of the Madera and Friant-Kern Canals, they must be used for
the release of water in excess of 8000 cfs to comply with those rules. Since
the issuance of those formal rules in 1955, the Corps has included the Friant
Division in its list of projects operated by other agencies under Corps-directed
flood control rules pursuant to Section 7 of the 1944 Act. See 33 C.F.R.
208.11(e).14
2. Plans for the Friant Division adopted pursuant to those regulations address
the operation of the dam and its related canals. The Flood Control Storage
Reservation Diagram referenced in 20 Fed. Reg. at 9181 is Chart A-11 to
the Friant Flood Report. That Diagram shows generally what space should
be made available in Millerton Lake for various purposes at different times
during the average water year. From approximately October 1 through August
1, the Corps requires the Bureau to maintain space in Millerton Lake to
handle either rain floods (October 1 to March 15) or snow-melt runoff (March
15 to July 31). According to the Flood Control Diagram, "[w]ater stored
in rainflood space shall be released as rapidly as possible without exceeding
8,000 cfs below Little Dry Cr[eek] or 6,500 cfs at the near Mendota gage."
Friant Flood Report Chart A-11. Similarly, during the period of snow-melt
runoff, implementation of the Diagram requires that space referred to as
"conditional space" be reserved to meet the dual needs of accommodating
flood water and providing water for irrigation. "When water is stored
in the portion of conditional space required for flood control, a supplemental
release in addition to irrigation demand must be made." Ibid. The Corps
calculates the current maximum initial capacity of the Madera Canal as 1200
cfs, declining to 625 cfs at the canal's terminus at the Chowchilla River,
and of the Friant-Kern Canal as 4500 cfs declining gradually to 2000 at
its terminus. Id. at 11. As a general matter, flood releases into the Madera
and Friant-Kern Canals because of rain floods occur from December until
April, when irrigation demand is low. Thereafter, melting snow is the primary
source of flood releases into the canals. Such flood releases may coincide
with or far exceed irrigation needs. See pp. 37-40, infra.
The Corps' determination, through rulemaking, that the Friant Division operates
as a flood control project is entitled to this Court's deference. Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844
(1984); accord Christensen v. Harris County, 120 S. Ct. 1655, 1662 (2000).15
D. Petitioner's Reliance On Gerlach Is Misplaced
Petitioner erroneously contends (Br. 35-40) that this Court's decision in
United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950) (Gerlach),
establishes that Section 702c does not apply here because the Friant Division
is a reclamation project and not a flood control project. In Gerlach, property
owners downstream from Friant Dam who had rights to the waters of the San
Joaquin River had obtained awards from the court of claims for takings caused
by the dam's restriction of the river's flow. Challenging those awards,
the United States argued in this Court that it was not liable for any such
takings because the authorized purposes of the CVP as a whole included flood
control and navigation. The theory behind the government's reading of the
applicable statutes was that those purposes supported a "superior navigation
easement" that superseded the interests of the water rights owners
in downstream riparian rights. 339 U.S. at 736.
In disagreeing with that position, this Court held that Congress intended
to compensate owners of water rights. The Court explained that Congress
had made the Friant Division subject to federal reclamation law, which requires
recognition of all vested rights under state law, including water rights.
339 U.S. at 734-736. The Court also noted that, prior to that litigation,
the Bureau of Reclamation had consistently respected the water rights of
land owners affected by reclamation projects by, inter alia, requesting
appropriations to purchase such rights. Id. at 735 & n.9.
The Court did not decide in Gerlach that because the Friant Division is
a reclamation project, it is therefore not a flood control project. Indeed,
the Court noted that under a formula "approved by the President, *
* * multiple purpose dams [in the CVP] are the responsibility of the Bureau
of Reclamation," whereas "dams and other works only for flood
control are exclusively the responsibility of the Army Engineers."
339 U.S. at 733-734 (emphasis added). Thus, by concluding that the Friant
Division is a reclamation project subject to the reclamation laws, the Court
simply acknowledged that flood control is not its sole purpose. Gerlach
does not hold, or even suggest, that the Friant Division is not a "flood
control project" as this Court used those words in James.16 In any
event, even if Gerlach could be read as petitioner urges, the Corps of Engineers
determined five years later that the CVP's Friant Division is a federal
flood control project pursuant to its delegated rulemaking authority under
the Flood Control Act of 1944. See 20 Fed. Reg. at 9181.
III. THE MADERA CANAL CARRIES WATERS RELATED TO FLOOD CONTROL WITHIN THE
MEANING OF JAMES
Petitioner argues (Br. 23) that "flood waters" are distinct from
"irrigation water," and that only the latter flowed through the
Madera Canal, allegedly damaging petitioner's property. The fact that water
may be put to beneficial uses -such as irrigation-does not preclude it from
being "flood water" within the meaning of Section 702c. In James,
this Court provided a simple, functional definition for that term. Water
in a federal flood control project is "flood water" if it is carried
through the project "for purposes of or related to flood control"
or if it is "water[] that such [a] project[] cannot control."
478 U.S. at 605. The water in the Madera Canal meets both alternative facets
of that definition.17
A. Waters Released Into Madera Canal Cannot Be Segregated Into "Flood"
And "Irrigation" Waters
The Flood Control Diagram for Friant Dam shows that, during most of the
year (October through July), Millerton Lake stores water both to control
floods and to meet irrigation needs. Friant Flood Report App. A, Chart A-11.
Water can be released from the reservoir in three ways: (1) through the
canals, (2) through outlets in the dam that send water down the river, and
(3) over the dam's spillway, which likewise sends water down the river.
Id. at 15. Discharges to serve the respective demands of flood control and
irrigation are made from a single, undifferentiated body of water behind
the dam-Millerton Lake. As an empirical matter, it is not true that the
quantity of water released down the river always at least equaled the total
quantity that the Flood Control Diagram requires to be released to create
the necessary storage space for flood control. See pp. 37-40, infra. Even
if that were not so, it would be unreasonable to regard every drop of "flood
water" as going down the river (see Pet. Br. 25) and, concomitantly,
all water flowing into the Madera Canal as consisting purely of "irrigation
water." Petitioner's theory misperceives the Friant Division's operations
in practice and the historical record of releases of water into the irrigation
canals.
Between 1873 and 1979, the annual flows below Friant varied widely, with
a low of 361,500 acre-feet (representing approximately 60 percent of Millerton
Lake's storage capacity) in 1977 to a high of 4,367,800 acre-feet in 1906
(meaning that the reservoir would have been filled and emptied more than
eight times during the course of the year). The mean annual unimpaired flow
for that period is 1,790,700 acre-feet, which is three-and-one-half times
the storage capacity of the reservoir. See Friant Flood Report Chart 5.
Thus, except in the most severe drought years, the waters stored to prevent
floods behind Friant Dam are transferred to the canals (during the course
of the year) for both flood control and irrigation purposes in a manner
that is impossible to segregate. Releases for irrigation in high flow years
also serve a flood control purpose, and water released for flood control
may be stored by irrigators for later irrigation use or to recharge ground
water. That type of multiple-use was precisely what Congress intended for
the project. See pp. 7, 24-25, supra.
To characterize the water carried through the Madera Canal as "related
to flood control" (James, 478 U.S. at 605) is thus hardly "metaphysical,"
as petitioner asserts (see Br. 12). Rather, that label better describes
petitioner's conception that dammed water in a reservoir can somehow be
legally distilled into "irrigation" molecules and "flood
control" molecules. Water is stored and released when and where it
can best achieve the multiple purposes of the project. If a flood can be
avoided by releasing water into the canals, that water does not lose its
character as flood waters, and the government does not lose its immunity,
merely because the government has arranged to provide some of that water
to irrigators.18 Moreover, petitioner's insistence that the beneficial use
of stored water-here for irrigation- deprives it of legal status as "flood
water" is inconsistent with James. The Court held there that Section
702c applied to damages to recreational users of federal flood control lakes
who were dragged through dam gates when water was being released for flood
control purposes. According to petitioner, "James indicates that [Section
702c] encompasses waters originally stored and later diverted for purposes
of flood control notwithstanding that in the interim they may have provided
incidental benefits, including recreational activities such as boating."
Br. 19. That reasoning is unpersuasive. First, it erroneously assumes that
a singular purpose can be ascribed to water in a multiple-use project. Second,
there is no basis for petitioner's apparent position that water in a federal
flood control lake retains its character as "flood water" if its
beneficial use precedes its release from the dam, but not when its beneficial
use follows such release. Moreover, a single release may accomplish two
purposes concurrently; the flood control benefit of a release for irrigation
may rest in increasing storage capacity for an anticipated flood. Finally,
the allegations in petitioner's complaint in any event do not require the
Court to make such a fine distinction, because the leaks resulting from
long-term, structural damage asserted by petitioner cannot be ascribed to
a single purpose of the project.
B. The Madera Irrigation District Contract Expressly Provides For Flood
Water To Be Released Into Madera Canal
Because of the highly-variable water supply that flows into Millerton Lake,
the Bureau of Reclamation has entered into contracts reflecting the historical
reality that flood waters must be diverted into the Madera and Friant-Kern
Canals to optimize the multiple-use objectives of the project. The contract
with the Madera Irrigation District, for example, defines Class 1 water
as "a dependable water supply during each Year" and Class 2 water
as "undependable in character and will be furnished only if, as, and
when it can be made available as determined by the [Bureau of Reclamation]."
Interim Renewal Contract Between the United States and Madera Irrigation
District Providing for Project Water Service (MID Contract), Art. 1(c) and
(d). Class 2 water is "available for irrigation purposes during spring
months of wet years," Friant Flood Report 14 n.2, because it is "necessary
to evacuate Project Water from Millerton Lake to prevent or minimize a spill
or to meet flood control criteria," MID Contract, Art. 3(h)(1).19
The price charged for Class 1 water historically has been at about twice
the rate charged for Class 2 water. Because of its undependable character,
Class 2 water may be delivered at times that are inconvenient to all members
of the irrigation district, but whose individual members nonetheless may
wish to purchase that water to store it for later use, to recharge groundwater
supplies, or to irrigate in off-peak periods. Article 3(h)(1) of the MID
Contract specifically provides for the contingency of flood releases as
Class 2 water: "If, during the months of March through September, the
[Bureau of Reclamation official] determines it will be necessary to evacuate
Project Water from Millerton Lake to prevent or minimize a spill or to meet
flood control criteria, he may establish" periods of time in which
irrigators may be obligated to purchase Class 2 water.
Precisely because the availability of flood waters typically begins in the
months immediately preceding the irrigation season, the contract provides
incentives for the Madera Irrigation District to purchase Class 2 flood
water by obligating it either to pay for such water released into the Madera
Canal or to forfeit a certain percentage right to purchase Class 2 water
at a later date. Thus, if the irrigation contractor does not purchase flood
waters released into the Madera Canal in March, the contract provides for
forfeiture of up to 7% of the total Class 2 water supply it has contracted
to purchase for that year. Unpurchased Class 2 flood water in April may
lead to forfeiture of 12% of the contractor's Class 2 total annual water
supply, with the percentage rising to 16% for unpurchased Class 2 supply
for May, and to 20% for "any other month." MID Contract, Art.
3(h)(3). Flood water released into Madera Canal that is unpurchased as Class
2 water simply flows through the canal and is ultimately released into the
Fresno and/or Chowchilla Rivers. The contractual arrangement requires irrigators
to accept flood water in the canal, thereby demonstrating that the irrigation
purpose of the Madera Canal must coexist with, and at times be subordinate
to, the flood control purpose of the facility.
C. The Madera Canal Receives Water Intended Solely For Flood Control Purposes
1. In addition to the dual flood control and irrigation purposes that may
be served simultaneously by water releases into the Madera and Friant-Kern
Canals, releases serve solely a flood control function in periods of high
water flow or when capacity in Millerton Lake must be made available for
anticipated inflows. Without citation to any authority, petitioner asserts
(Br. 25) that all flood releases from Friant Dam automatically are made
into the San Joaquin River. The 1999 Corps report, however, conclusively
refutes that assertion: "Typically, during high snowmelt the Madera
Canal can be used to convey up to 1,200 cfs into the Fresno-Chowchilla River
system." Post-Flood Assessment 3-32. That report notes some of the
important discretionary considerations that the Corps and Bureau must take
into account that influence a decision to release flood water not intended
for irrigation into the Madera and Friant-Kern Canals. Even when a release
of water downstream could be made without exceeding the maximum release
level of 8000 cfs, for example, the Bureau (pursuant to Corps' rules) releases
flood waters into the canals for other reasons, including to ensure safer
recreational usage of the San Joaquin, to protect areas downstream, to avert
flooding downstream just below Friant Dam, and to avoid flooding at the
Mendota Dam. Id. 3-32 to 3-33. Releases into the Madera Canal serve those
purposes even when downstream releases would not exceed 8000 cfs. Id. at
3-33.
Petitioner thus erroneously describes the Field Working Agreement between
the Corps and the Bureau as "establish[ing] that a substantial proportion
of the water that damaged Petitioner's farm has no relationship to flood
control whatsoever" and in requiring releases "only into the river
bed, not the Madera Canal." Br. 25. Petitioner cites nothing in the
agreement itself to support those assertions, and the foregoing description
of the operations of the Friant Division is consistent with the proposal
made by the Corps that was adopted by Congress in 1944, the Corps' implementing
regulations in 1955, and more than four decades of experience of flood control
operations in the Friant Division.
2. The history of water releases from Friant Dam, as documented by publicly-available
data from the U.S. Geological Survey, also supports the conclusion that
the Madera and Friant-Kern Canals are routinely used for flood releases,
except in the most severe drought years. As of 1980, according to the Corps
of Engineers, 138,000 acre-feet of water each year is released into the
Madera Canal to meet requirements for supplying Class 1 irrigation water.20
During the twenty-year period between 1979 and 1999, however, the amount
of acre-feet of water released annually into the Madera Canal well exceeded
the 138,000 acre-feet intended predominantly for irrigation use (Class 1
water) in every year except the severe drought years of 1989-1990 (111,757
acre-feet) and 1991-1992 (126,750 acre-feet).21 In all other years (18)
of that twenty-year period, the amount of water released into the Madera
Canal exceeded the amount dedicated predominantly for irrigation. Moreover,
in eleven of those eighteen years, the amount of water released was far
greater than the amount needed to meet irrigation obligations by the Bureau
of Reclamation.22 Nor were the years in those two decades anomalous. Based
on a calculation of the mean total acre-feet per month released into the
Madera Canal between 1949 and 1999, the total yearly mean released in those
years was 264,740 acre-feet, or approximately double the amount of water
dedicated predominantly for irrigation purposes. Indeed, contrary to petitioner's
undocumented assertion that "a large proportion of the water that has
damaged Petitioner's farm has no relationship to flood control at all"
(Br. 22), data collected from the past twenty years establish that more
water has been released into the Madera Canal for flood control purposes
than for predominantly irrigation purposes.23
The Court thus need not go beyond the test it articulated in James to resolve
this case. All parts of the CVP and its Friant Division, including the Madera
Canal, operate as a federal flood control project, and the waters that allegedly
escaped from the canal and damaged petitioner's property both had a direct
relationship to flood control and constituted waters that the project could
not control. Petitioner simply misapprehends (Br. 19) the practical operation
of the Friant Division as demonstrated by statutory requirements, regulatory
implementation, and historical practice when asserting that "the Madera
Canal has at most an exceedingly attenuated relationship to flood control
activities."
IV. PETITIONER'S PROPOSAL TO LIMIT SECTION 702c TO DAMAGES CAUSED BY PROJECTS
WITH A PRIMARY PURPOSE OF FLOOD CONTROL IS FLAWED
Petitioner proposes a new test for Section 702c immunity: "[W]hether
the waters [causing the damage] were carried in a flood control project
'primarily for the purpose of flood control.'" Br. 19. Until its brief
on the merits in this Court, petitioner had not advanced that position in
this litigation; it had instead argued that "for water to be 'flood
water' it would have to (1) pass through a flood control project and
(2) be for the purposes of or related to flood control." Pet. App.
3. Petitioner's new approach, which has not been adopted by any court of
appeals, is flawed.
A. The "Primary Purpose" Test Conflicts With The Text Of Section
702c As Construed In James
1. Petitioner argues that its "primary purpose" test is the "most
consistent with Congress' intent." Br. 19. As this Court recognized
in James, however, the "starting point" for determining that intent
is "the language of the statute itself." 478 U.S. at 604 (quotation
omitted). In James the Court emphasized the "sweeping terms" of
Section 702c, noting the statute's reference to "'[n]o liability of
any kind * * * for any damage from or by floods or flood waters at any place.'"
Ibid. (quoting Section 702c). As the Court recognized, "[i]t is difficult
to imagine broader language." Ibid. That language, and the "equally
broad and emphatic language found in the legislative history," showed
that "Congress clearly sought to ensure beyond doubt that sovereign
immunity would protect the Government from 'any' liability associated with
flood control." Id. at 608. Far from being the "most consistent"
(Pet. Br. 19) with that intent, petitioner's reading of Section 702c would
considerably narrow the broad immunity set forth in the statutory language
and recognized in James.
2. Petitioner cites other statutory provisions that ostensibly would be
affected by a failure of this Court to adopt petitioner's approach. See
Pet. Br. 11-12 & n.2 (discussing 33 U.S.C. 702j-2), 14-16 (discussing
33 U.S.C. 702j). By their plain terms, however, those statutory references
are inapposite.
Petitioner cites (Br. 12) 33 U.S.C. 702j-2, for example, which was enacted
in 1936 as a specific immunity provision for the White River Levee District.
The provision afforded immunity from any damages-whether caused by flooding
or not-"on account of the use of said area [both submerged and unsubmerged
land] for reservoir purposes during said emergency." 33 U.S.C. 702j-2,
Act of June 15, 1936, ch. 548, § 5, 49 Stat. 1509. That provision does
not amend or limit Section 702c in any way, and its distinctive scope and
purposes are hardly rendered "superfluous" (Pet. Br. 12) by rejection
of petitioner's newly proposed "primary purpose" test.
Petitioner is similarly mistaken in asserting (Br. 14-16) that 33 U.S.C.
702j provides support for the "primary purpose" test. That provision,
which was enacted in 1928, directed the Corps of Engineers to submit plans
to Congress for flood control projects on tributaries to the Mississippi
River and to report on the possible beneficial effects of building a system
of reservoirs on those tributaries. 33 U.S.C. 702j. Petitioner points out
that Congress referred in Section 702j to waters, once they were contained
in reservoirs, as "reservoired waters." According to petitioner,
Congress thus must have meant to distinguish "reservoired waters"
in Section 702j from "flood waters" in Section 702c, and specifically
must have intended the latter term to exclude "waters stored and then
diverted for some beneficial purpose other than flood control." Br.
14 (emphasis added).
Petitioner's suggested dichotomy between "reservoired waters"
and "flood waters" goes too far, however, because flood control
dams accomplish all of their beneficial pur-poses, including flood control,
by converting the entire flow of the river into "reservoired waters."
Temporary storage of water in reservoirs permits its use for recreation,
irrigation, power generation, and the prevention of floods. Indeed, in James
the Court found that the government's immunity under Section 702c applied
to damage from reservoired waters that had been used for recreational purposes.
In James, as here, reservoired waters serving multiple uses were released
"to prevent flooding." 478 U.S. at 605-606 n.7. To distinguish
James, petitioner must ask the Court to hold that water entering a reservoir
as "flood water" retains that character if it is put to recreational
uses, but not if it is used for irrigation, or perhaps to hold that immunity
is defeated by beneficial use apart from flood control after release from
the reservoir but not by such non-flood beneficial use before release. Those
distinctions should be rejected. They have no relationship to the purpose
of the immunity in facilitating federal investment in flood control projects
by shielding the United States from liability for damages caused by flood
waters in these projects.
Petitioner also invokes the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671
et seq., to support its proposed "primary purpose" test, but James
definitively rebuts that argument. Petitioner points out (Br. 16-18) that
Congress considered, and failed to enact, exceptions to the FTCA that would
have explicitly covered flood control and irrigation projects. The result,
according to petitioner (Br. 18), is that negligent operation of federal
flood control projects is excluded from the FTCA's waiver of sovereign immunity
only if the negligent conduct is within the scope of the FTCA's "discretionary
function exception." 28 U.S.C. 2680(a). If that were so, however, the
Court in James would have had to determine first whether the negligence
alleged in that case was within the discretionary function exception. The
Court did not do so, but instead assumed that the alleged government negligence
fell outside the scope of any exception to the FTCA: "This case presents
the question whether [Section 702c] * * * bars recovery where the Federal
Government would otherwise be liable under the Federal Tort Claims Act."
478 U.S. at 598-599 (emphasis added). By determining that Section 702c immunity
applied to such a case, the Court held that the FTCA did not amend or displace
Section 702c.24
B. Petitioner's "Primary Purpose" Test Finds No Support In Court
Of Appeals' Decisions
The "primary purpose" test petitioner now proposes has not been
adopted by any court of appeals in the wake of James. See notes 26 &
27, infra. Nor would petitioner prevail (see Pet. 18, Pet. Reply 1) under
the approaches that have been adopted by other circuits. See Br. in Opp.
11-16. Contrary to petitioner's suggestion (Br. 7), Henderson v. United
States, 965 F.2d 1488 (8th Cir. 1992), did not articulate a "primary
purpose" test. On the contrary, the court of appeals in Henderson stated
that "section 702c immunity applies if 'governmental control of flood
waters was a substantial factor in causing [the plaintiff's] injuries.'"
Id. at 1492 (quoting Dewitt Bank & Trust Co. v. United States, 878 F.2d
246, 247 (8th Cir. 1989), cert. denied, 494 U.S. 1016 (1990)) (emphasis
added). The Eighth Circuit rejected immunity not because flood control was
"the primary purpose" of the project in question (which was power
generation), but rather because flood control was not even a substantial
factor in causing the injury.25
Unlike the "primary purpose" test advanced by petitioners, the
courts of appeals have not inquired into whether the government's flood
control activities were the proximate cause of the damages. Rather, courts
have examined the factual allegations of the complaint to determine whether
they describe a connection between the damages and flood control. Most often,
as here, that determination can be made on the pleadings alone. Where the
relation between the injury and flood control has been absent, courts have
denied immunity.26 Virtually every circuit, however, also has issued a reported
decision in which a district court judgment dismissing the complaint has
been affirmed because the factual relation to flood control is sufficiently
evident from the pleadings to justify the government's immunity under Section
702c.27 For that reason, and those stated in Parts II and III, the judgment
dismissing petitioner's complaint would have been uniformly affirmed by
the courts of appeals.
C. The "Primary Purpose" Test Would Deny The Government Flood
Immunity In Cases Involving Multiple-Use Projects
Adoption of the "primary purpose" test proposed by petitioner
would sharply limit the immunity created by Section 702c. Petitioner's test
casts doubt on whether the projects designated as flood control projects
by the Corps of Engineers pursuant to Section 7 of the Flood Control Act
of 1944 (see 33 C.F.R. 208.11(e)) would be covered by Section 702c.28 Indeed,
under petitioner's view, no part of the Central Valley Project, which is
owned and operated by the Bureau of Reclamation, would qualify for flood
immunity, since it was expressly authorized by Congress to be a multiple-use
project and Congress did not specify that flood control was the project's
"primary purpose." See p. 7, supra. Petitioner's rule thus threatens
to erase decades of settled law.29 Only projects owned and operated by the
Corps itself would likely have flood control as their primary purpose and,
even as to those, a congressional mandate that such projects also serve
multiple uses would introduce uncertainty into the scope of immunity.
Petitioner asserts (Br. 21) that its "primary purpose" test promises
"ease of administration," but that contention is incorrect. On
the contrary, it would require courts to calibrate precisely the respective
purposes served by multiple-use projects, a task that Congress itself does
not undertake when it authorizes such projects or when it subsequently amends
an original authorizing statute.30 Even if petitioner's proposed test were
limited to cases involving releases of water from federal flood control
reservoirs, it would still in many instances require courts to establish
priorities among multiple purposes without any evidence that Congress ranked
their relative importance. As the court in Morici concluded, "it is
very difficult, if not impossible, as a practical matter to segregate particular
. . . water releases into precise categories of purpose; a single release
may well serve multiple purposes, just as the project itself serves multiple
purposes." 681 F.2d at 648 (quotation omitted). Furthermore, petitioner's
proposed test would require complex evidentiary showings that Congress could
not have intended when it enacted Section 702c to "ensure beyond doubt
that sovereign immunity would protect the Govern-ment from 'any' liability
associated with flood control." James, 478 U.S. at 608.31 Petitioner's
approach also promotes inefficient government, because it denies an immunity
for damages when multiple objectives may be obtained and permits immunity
only when flood control is the primary purpose of the project.32 Finally,
adoption of petitioner's approach would not resolve the central issue in
this case: whether the leakage alleged to have been the result of accreted
water damage over time was caused by the flood control purpose or the irrigation
purpose of the Madera Canal.
Cases that give rise to assertions of immunity under the Flood Control Act
of 1928 involve a diverse array of factual characteristics that make articulating
a legal standard more specific than the James test a difficult task. Those
include: the nature of the claim (property damage versus personal injury);
the nature of the government's alleged negligence (e.g., structural or design,
human operational error, failure to warn); the relationship of specific
governmental actions to the injury (e.g., long-term operations versus discrete
actions); and the traceability of the injury to a particular purpose of
the project. None of those distinctions alone provides a sound basis for
determining that Section 702c does or does not apply. On the other hand,
the requirement of a nexus or relation between flood control and the injury
that has been applied by the courts of appeals has yielded consistent results
that implement Congress's intent to create a broad immunity for federal
flood control activities.
As we have shown, the Madera Canal is an integral part of the flood control
operations of the CVP's Friant Division, in its routine uses to serve irrigation
needs and to convey heavy flows in the San Joaquin River to downstream locations.
Because by regulation and historical practice a substantial quantity of
flood water has been released into the Madera Canal, as a matter of law
the United States is entitled to immunity from petitioner's suit.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
DAVID C. FREDERICK
Assistant to the Solicitor General
ROBERT S. GREENSPAN
IRENE M. SOLET
Attorneys
AUGUST 2000
1 This document is a compilation of state and federal materials pertaining
to the Central Valley Project. For ease of reference, we cite this document
rather than the original sources.
2 The Commission was abolished in 1986 and its functions transferred to
the Secretary of the Army. Water Resources Development Act of 1986, Pub.
L. No. 99-662, Tit. XI, § 1106, 100 Stat. 4229.
3 The Senate Committee on Irrigation and Reclamation recognized that California's
water plan as a whole, and Friant reservoir in particular, would serve an
important flood control function. In a 1933 report, the Committee stated:
"One of the important proposed objectives of the great central valley
project of California is the provision of additional flood protection on
the Sacramento and San Joaquin Rivers by the regulation of floods in the
two proposed major storage reservoirs, Kennett Reservoir on the Sacramento
River and Friant Reservoir on the San Joaquin River." H.R. Doc. 416,
at 500. The Committee compared the problem of flooding on the Sacramento
and San Joaquin Rivers "to that on the Mississippi river." Id.
at 499. It recognized that "[a]lthough of smaller magnitude than that
on the Mississippi River, the problem [of flood control on the Sacramento
and San Joaquin] is even more intensive, involving maximum flood flows ten
times as great per unit of drainage area than the maximum flood flow of
the Mississippi below Cairo or Arkansas City." Ibid. The Committee
thus predicted that the Kennett and Friant reservoirs "can be operated
to materially decrease the flood flows and will, therefore, greatly lessen
the frequency of floods and possible damage resulting therefrom." Ibid.
4 Under the Act of June 25, 1910, ch. 407, § 4, 36 Stat. 836, no reclamation
project could be undertaken unless recommended by the Secretary of the Interior
and approved by the President. Similarly, under the Act of Dec. 5, 1924,
ch. 4, § 4(B), 43 Stat. 702, no reclamation project could be approved
for construction until the Secretary of the Interior made a written finding
that the project was feasible and that its cost was likely to be repaid
to the United States.
5 In 1997, California experienced "one of the largest and most extensive
flood disasters in the State's history." Post-Flood Assessment, at
ES-1. The House Report on the bill ultimately enacted as the Energy and
Water Development Appropriations Act, 1998, Pub. L. No. 105-62, 111 Stat.
1320, states that, "[i]n response to the devastating floods of 1997,
the Committee has added funds and directs the Corps of Engineers to conduct
* * * a comprehensive post-flood assessment for the California Central Valley
(Sacramento River Basin and San Joaquin River Basin)." H.R. Rep. No.
190, 105th Cong., 1st Sess. 24 (1997). The Post-Flood Assessment report
responded to that directive.
6 Operation of the Friant Division to serve the functions of flood control
and irrigation requires extensive weather forecasting efforts by federal
and state agencies. Friant Flood Report 16. Accurate predictions of water
runoff historically have been difficult to make consistently. Between 1953
and 1978, for example, the error rate varied greatly, with underestimates
and overestimates of the forecasted runoff into Millerton Lake routinely
as great as 100 percent of the actual runoff. See id. Chart A-9. Given those
large discrepancies, which by no means have been limited to those years,
the task of managing the water level at Friant Dam requires great flexibility
and the need to make frequent, often daily adjustments to the amount of
water released.
7 Although for purposes of the motion for judgment on the pleadings the
allegations of the complaint must be accepted as true, the government denies
that leakage from the canal has caused harm to petitioners. See J.A. 58.
At times when the canal is completely dry, petitioner's land has been flooded,
which suggests that the problem in fact stems not from leakage from the
canal but from subterranean ground water or over-irrigation by petitioner
from the water it obtains from the San Joaquin River.
8 Protection of the United States from liability for flooding of land caused
by alleged construction failures of a federal flood control project was
central to Congress's concern in creating an immunity for federal flood
control activities. See James, 478 U.S. at 606-608; see also id. at 617
(Stevens, J., dissenting) (agreeing with majority that immunity under Section
702c should extend to "overflow damage to land").
9 The Court in James (478 U.S. at 605) adopted virtually verbatim the position
set forth in the government's brief: "Since Congress was legislating
with respect to flood control projects designed to carry flood waters, the
conclusion is inescapable that the statute refers to all waters contained
in or carried through such structures as well as waters the structures could
not retain." 85-434 U.S. Br. 17. The government noted that the Fifth
Circuit in James had viewed the statutory language as ambiguous "because
the damage that formed the basis for the tort claim might not be related
to the operation of a flood control project." Id. at 17 n.7. Rather
than broadly arguing for a test that reached well beyond the facts presented
in James, as petitioner asserts (Br. 10), the government in James specifically
noted that the Court did not need to decide whether the immunity applied
in other circumstances, because the damage in James "did result from
the release of flood waters from a federal flood control project."
Id. at 17 n.7. The Court itself agreed with that conclusion. See 478 U.S.
at 610 ("the release of the waters at the Millwood Reservoir and at
the Courtableau Basin was clearly related to flood control"). As we
establish on pp. 32-40, infra, that is also true in this case.
10 See p. 7, supra. Subsequent statutes authorizing additional features
of the CVP repeated or reincorporated that language. See, e.g., Act of Sept.
26, 1950, ch. 1047, § 1, 64 Stat. 1036 ("the entire Central Valley
project * * * is hereby reauthorized and declared to be for the purposes
of * * * controlling floods"); Act of Aug. 27, 1954, ch. 1012, §
1, 68 Stat. 879 ("the entire Central Valley project * * * is hereby
reauthorized" and declared to be for the purposes previously authorized).
11 Section 2 of the 1937 Act mentions the purpose of the CVP to be "controlling
floods" in two provisos, only the second of which is addressed by petitioner.
See 50 Stat. 850. The first proviso authorizes "the entire Central
Valley project" for the purpose of "controlling floods."
Ibid. Petitioner attempts to draw significance (Br. 27) from the fact that
the second proviso of Section 2 states that "the said dam and reservoirs
shall be used, first, for river regulation, improvement of navigation, and
flood control; second, for irrigation and domestic uses; and, third, for
power." Ibid. (emphasis added). The absence of any mention of "canals"
in the priority to be given to the respective uses of the project is not
surprising, since canals were thought to serve only irrigation and flood
control functions at that time. In any event, the omission of "canals"
in the second proviso cannot blunt the significance of the first proviso's
unambiguous intent that the "entire Central Valley Project"-which
unquestionably includes its canals-is for the purpose of "controlling
floods."
12 An additional complicating factor in release calculations from Friant
Dam is that the Little Dry, Big Dry, and Cottonwood Creeks empty into the
San Joaquin River just below Friant Dam, so their flow at peak levels must
be subtracted from the amount of water that may safely be released from
Friant Dam. That amount of water, in turn, must either be stored in Millerton
Lake until it can be safely released downstream or released into the Madera
and/or Friant-Kern Canals. See Post-Flood Assessment 3-33 to 3-34.
13 In its 1944 estimates, which were made prior to completion of Friant
Dam, the Corps had put this number at 7000 cubic feet per second. See Flood
Control Doc. No. 2, at 39, Tab. 22.
14 Even prior to the promulgation of those rules by the Corps, the Secretary
of the Interior recognized the Friant Division's important flood-control
role, reporting to the President in 1947 that "operation of Millerton
Lake for flood-control purposes will be such as to prevent the maximum discharge
under the worst flood conditions on the San Joaquin River, except one, between
1902 and 1943, from exceeding 8,000 cubic feet per second at Skaggs Bridge."
H.R. Doc. No. 146, 80th Cong., 1st Sess. 10-11 (1947). Similarly, the Interior
Department's 1949 report to Congress on the "Central Valley Basin"
contained repeated references to the flood control function of the CVP's
Friant component. S. Doc. No. 113, at 36 (referring to "flood-control
benefits from works in Sacramento and lower San Joaquin Valleys * * * including
the benefits from Shasta and Friant Reservoirs"); id. at 78 (referring
to "flood-control benefits from the comprehensive plan, includeing
those from the operation of Shasta and Friant Reservoirs"); id. at
93 (stating that "Millerton Lake, formed by Friant Dam * * * will regulate
floods and store San Joaquin River run-off for diversion into the Madera
and Friant-Kern canals"); id. at 132 (describing one of the functions
of Millerton Lake as "to provide flood control on San Joaquin River");
id. at 164 (referring to "additional protection" against flooding
along the San Joaquin River and in the Sacramento-San Joaquin delta provided
by "Millerton Lake (Friant) Reservoir"); id. at 167 (describing
future flood control benefits on the San Joaquin River and its tributaries
"attributable to Friant Reservoir, the various prospective reservoirs,
channel improvements, and other flood-control works").
15 The fact that the structures authorized in the Flood Control Act of 1928
to control floods on the Mississippi River may not have included the kind
of multiple-use projects later undertaken in the Western states and in other
parts of the country (see Pet. Br. 14 n.4) does not undercut the application
of Section 702c to such projects. The courts of appeals have consistently
held since long before James, and petitioner does argue to the contrary,
that Section 702c applies to flood control projects authorized by separate
statutes that succeeded the 1928 Act. See Aetna Ins. Co. v. United States,
628 F.2d 1201, 1204 (9th Cir. 1980), cert. denied, 450 U.S. 1025 (1981);
Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1086 & n.4 (6th
Cir. 1978); cf. National Mfg. Co., 210 F.2d at 270. The direct link between
the Flood Control Act of 1928 and Congress' subsequent enactments in the
area of flood control supports the longstanding interpretation of Section
702c to apply to projects in addition to those authorized in the 1928 statute.
See Flood Control Act of 1936, ch. 688, § 8, 49 Stat. 1596 (specifically
saving all provisions of the 1928 Act); Flood Control Act of 1944, ch. 665
§ 2, 58 Stat. 889 (referencing the 1936 Act). See also James, supra
(applying Section 702c to project authorized under the Flood Control Act
of 1946, ch. 596, 60 Stat. 647).
16 Petitioner places significance (Br. 38) on the statement in Gerlach that
"[t]he Central Valley basin development envisions, in one sense, an
integrated undertaking, but also an aggregate of many subsidiary projects,
each of which is of first magnitude." 339 U.S. at 733. In the context
of that case, however, the Court's reference to treating the subdivisions
of the CVP as each of "first magnitude" is most naturally understood
to mean that Congress had specifically directed that the reclamation laws
apply to the Friant Division. The Court in Gerlach did not address how such
a focus on the CVP's "subsidiary projects"-here, the Friant Division-would
affect the application of Section 702c. We have shown, however, that flood
control is a central purpose of the Friant Division, so even an enquiry
focused on that component of the CVP would not undercut application of the
immunity here.
17 Petitioner's complaint asserts only that the Madera Canal is used for
irrigation purposes, and not that its exclusive use is for irrigation. See
J.A. 8. Thus, accepting the allegations as true does not foreclose the government's
defense that the canal also carries flood waters, or that the irrigation
waters also serve a flood control function. In any event, even if the complaint
is liberally construed in petitioner's favor, the government is entitled
to judgment on the pleadings when "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
A court may take judicial notice of matters of public record-such as statements
in judicial opinions, regulatory documents, and historical records-that
refute the allegations in the complaint. See, e.g., Papasan v. Allain, 478
U.S. 265, 268 n.1 (1986) (in reviewing motion to dismiss under Fed. R. Civ.
P. 12, "we are not precluded in our review of the complaint from taking
notice of items in the public record"); Bowen v. Johnston, 306 U.S.
19, 23 (1939); Lamar v. Micou, 114 U.S. 218, 223 (1885); Menominee Indian
Tribe v. Thompson, 161 F.3d 449, 455-462 (7th Cir. 1998), cert. denied,
526 U.S. 1066 (1999).
18 Petitioner seemingly acknowledges that some of the water that flowed
through the Madera Canal was stored in Millerton Lake for the purpose of
controlling floods. See Br. 8 ("[a] large proportion of the waters
that damaged Petitioner were not 'flood waters' even when originally stored
behind Friant Dam") (emphasis added); id. at 22 ("a large proportion
of the water that has damaged Petitioner's farm has no relationship to flood
control at all") (emphasis added); id. at 23 ("a still much smaller
proportion of the contents of the Madera Canal could include those waters,"
referring to waters stored behind the dam that could otherwise have caused
flooding) (emphasis added).
19 In the district court petitioner stipulated to the fact that "[t]he
United States entered into an agreement with [Madera Irrigation District
(MID)] whereby MID was allowed to flow water through the Madera Canal on
the terms and conditions specifically set forth in the agreement."
J.A. 72; see also J.A. 81 (scheduling conference order confirming factual
stipulation). We have lodged copies of this contract with the Clerk.
20 "Class 1" water is that amount of water the irrigators can
rely on the Bureau to deliver except in the most severe drought years. As
such, the government commits to supplying at least that amount of water
each year to irrigators. Any other water supplied is conditional upon flood
flows. See Friant Flood Report 14 n.1; see also MID Contract, Art. 1(c).
21 The U.S. Geological Survey monitors water releases throughout California
(and elsewhere in the country). All of the data cited in the text and notes
is compiled from historical stream flow data for releases from Friant Dam
to the Madera Canal monitored at Gaging Station No. 11249500, which is available
on the U.S. Geological Survey web site <<http://water.wr.usgs.gov/index.html>>.
22 The following data, based on adding the monthly totals available from
USGS, are total acre-feet of water per year released into the Madera Canal:
1979-1980 (483,660); 1981-1982 (456,440); 1982-1983 (532,600); 1983-1984
(340,450); 1985-1986 (513,030); 1992-1993 (390,310); 1994-1995 (389,110);
1995-1996 (363,380); 1996-1997 (391,980); 1997-1998 (355,290); and 1998-1999
(323,150). Thus, even if one were to assume that the 138,000 acre-feet per
year released for Class 1 irrigation water supply has had no relation whatsoever
to flood control, most of the water released in those years had a flood
control purpose. E.g., 1979-1980 (483,660 - 138,000 = 345,660 acre-feet).
23 Between 1979 and 1999, a total of 5,965,161 acre-feet of water has been
released into the Madera Canal. Assuming the figure of 138,000 acre-feet
of Class 1 water per year, the total amount of water released to serve a
predominantly irrigation purpose was 2,760,000 acre-feet. The remainder-3,205,161
acre-feet-was water that served a flood control purpose.
24 Not only did this Court reject that argument in James, but every court
of appeals to consider that contention prior to James had also rejected
it. See, e.g., Aetna Ins. Co., 628 F.2d at 1204-1205; Callaway v. United
States, 568 F.2d 684 (10th Cir. 1978); Florida E. Coast Ry. v. United States,
519 F.2d 1184 (5th Cir. 1975); Parks v. United States, 370 F.2d 92 (2d Cir.
1966); Stover v. United States, 332 F.2d 204 (9th Cir.), cert. denied, 379
U.S. 922 (1964); National Mfg. Co. v. United States, 210 F.2d 263 (8th Cir.),
cert. denied, 347 U.S. 967 (1954).
25 The Henderson court used language more akin to the "wholly unrelated"
test: "We do not believe that section 702c bars Henderson's cause of
action in this case because the dam activity here was related to generating
electricity and not to flood control." 965 F.2d at 1492. The Corps
of Engineers released the water that caused Henderson's death on the order
of an electric utility, which under a contract with the United States had
the prerogative to make such a request of the Corps. Ibid. The precise claim
involved a failure by the Corps to warn recreational users of rapidly rising
water levels when water was released from the dam. Id. at 1491. As the court
made clear, its rationale rested not on the "primary purpose"
of the project or the discharge, but rather on the ground that the court
could not "conclude that 'governmental control of flood waters was
a substantial factor in causing [Robert Henderson's] injuries.'" Id.
at 1492 (citation omitted).
26 See Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) (no immunity
where injury occurred on dry land due to a condition with no association
to flood control); Cantrell v. United States, 89 F.3d 268 (6th Cir. 1996)
(no immunity from claim by recreational boater injured by allegedly negligent
driver of Army Corps of Engineers' boat); Henderson v. United States, 965
F.2d 1488 (8th Cir. 1992) (no immunity in death of fisherman where drowning
was caused by release of water, at direction of private power company, from
dam operated for hydroelectric power generation); Boyd v. United States,
881 F.2d 895 (10th Cir. 1989) (no immunity for allegedly negligent failure
to warn swimmers of hazard from boats, in death of snorkeler struck by privately
operated power boat at flood control lake); E. Ritter & Co. v. Department
of the Army, 874 F.2d 1236 (8th Cir. 1989) (no immunity for erosion caused
by rain waters that had not yet come in contact with flood control project);
see also Williams v. United States, 957 F.2d 742 (10th Cir. 1992) (concluding,
on basis of record evidence and language of authorizing statute, that particular
project was not a flood control project).
27 Reese v. South Fla. Water Management Dist., 59 F.3d 1128, 1130 (11th
Cir. 1995) (per curiam) (government immune from suit in drowning at federal
flood control lake caused by opening of water control device, noting that
"periodic release of water is fundamental to the operation of a flood
control project"); Boudreau v. United States, 53 F.3d 81, 84 (5th Cir.
1995) (based on facts of case, government immune from suit where there was
a "sufficient association" between injury to recreational boater
during Coast Guard rescue and activities of flood control), cert. denied,
516 U.S. 1071 (1996); Holt v. United States, 46 F.3d 1000, 1004 (10th Cir.
1995) (government immune from suit where there was a "sufficient nexus"
between car accident and mist, which was created by water released from
flood control project's dam and which caused an ice slick on an adjacent
road); Fisher v. United States Army Corps of Engineers, 31 F.3d 683, 685
(8th Cir. 1994) (government immune from suit where shallow level of water
as a result of operation of flood control project was a "substantial
factor" in a recreational diving accident); Thomas v. United States,
959 F.2d 232 (4th Cir. 1992) (Table) (government immune from suit in recreational
diving accident occurring at lake which, despite its commercial uses, had
flood control uses as well and which was "monitored and maintained
daily by the Army for the purpose of controlling floods"); Fryman v.
United States, 901 F.2d 79, 82 (7th Cir.) (government immune from suit for
injuries sustained at lake created as part of a flood control project which
"increase[d] the probability" of injury), cert. denied, 498 U.S.
920 (1990); Dawson v. United States, 894 F.2d 70, 74 (3d Cir. 1990) (government
immune from suit for recreational swimming accident caused by unsafe depth
of water due in part to releases of water for flood control purposes); Mocklin
v. Orleans Levee Dist., 877 F.2d 427, 430 (5th Cir. 1989) (government immune
from suit for drowning caused by deep water in a flotation channel that
had been excavated for a flood control project).
28 That regulation lists 112 projects operated by entities other than the
Corps for a variety of purposes. By law those projects must follow the regulations
promulgated by the Corps. See 33 C.F.R. 208.11(e) (Table).
29 Not only has the Ninth Circuit consistently held that multiple-use projects
operated by agencies other than the Corps of Engineers are entitled to flood
immunity, see, e.g., Aetna Ins. Co., supra; Morici, supra; but other courts
have likewise upheld flood immunity for multiple-purpose projects operated
by the Corps, the Bureau, and the Soil Conservation Service. See, e.g.,
Lenoir, 586 F.2d at 1084; Taylor v. United States, 590 F.2d 263 (8th Cir.
1979); Callaway v. United States, 568 F.2d 684 (10th Cir. 1978); Hedrick
v. United States, 184 F. Supp. 927 (D.N.M. 1960).
30 The following are examples of statutes that specify multiple purposes
of projects, including flood control, without indicating any priority among
the purposes specified: Act of Sept. 20, 1966, Pub. L. No. 89-596, 80 Stat.
822 (Scoggins Dam); Act of Aug. 24, 1962, Pub. L. No. 87-594, 76 Stat. 395
(Arbuckle Dam); Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat. 156 (B.F.
Sisk Dam); Act of Aug. 1, 1956, ch. 809, 70 Stat. 775 (Prosser Creek Dam,
Stampede Dam, and Marble Bluff Dam); Act of Dec. 29, 1950, ch. 1183, 64
Stat. 1124 (Sanford Dam); Act of June 5, 1944, ch. 234, 58 Stat. 270 (Hungry
Horse Dam); Act of Aug. 11, 1939, ch. 699, 53 Stat. 1414 (Sumner Dam).
The following are examples of statutes in which Congress has specified that
the "principal purposes" of the projects include, inter alia,
flood control: Act of Aug. 16, 1957, Pub. L. No. 85-152, 71 Stat. 372 (Twin
Buttes Dam); Act of Aug. 6, 1956, ch. 981, 70 Stat. 1059 (Little Wood River
Dam); Act of Feb. 25, 1956, ch. 71, 70 Stat. 28 (Fort Cobb Dam). Even in
those statutes, however, Congress did not prioritize among the various "principal
purposes." The Corps of Engineers has included all of the projects
referenced above in its flood control regulations pursuant to 33 C.F.R.
208.11.
31 For that reason as well, there is no basis for thinking that the Court's
application of immunity in this case will cause any of the hypothesized
harms suggested by petitioner (Br. 22) under 42 U.S.C. 4022(a)(2)(B), 22
U.S.C. 277d-12, or 30 U.S.C. 877(f). The absence of any case citations in
petitioner's brief suggests that the likelihood of such harm is remote.
In any event, if Section 702c "is to be changed, it should be by Congress
and not by this Court." James, 478 U.S. at 612.
32 For that reason as well, petitioner's suggestion (Br. 31-33) that the
applicability of Section 702c immunity should turn in part on whether the
government is reimbursed for the construction costs of the project in question
should be rejected.
APPENDIX
33 U.S.C. 702c, provides, in pertinent part:
No liability of any kind shall attach to or rest upon the United States
for any damage from or by floods or flood waters at any place: Provided,
however, That if in carrying out the purposes of sections 702a, 702b to
702d, 702e to 702g, 702h, 702i, 702j, 702k, 702l, 702m, and 704 of this
title it shall be found that upon any stretch of the banks of the Mississippi
River it is impracticable to construct levees, either because such construction
is not economically justified or because such construction would unreasonably
restrict the flood channel, and lands in such stretch of the river are subjected
to overflow and damage which are not now overflowed or damaged by reason
of the construction of levees on the opposite banks of the river it shall
be the duty of the Secretary of the Army and the Chief of Engineers to institute
proceedings on behalf of the United States Government to acquire either
the absolute ownership of the lands so subjected to overflow and damage
or floodage rights over such lands.
[The last page of the printed brief is a map of the San Joaquin River System,
Flood Channel Design Flows and Project Levees, which is not available
in postable electronic form.]