Irrigation Claims: Generally

Under the current Public Works Appropriation Act, as well as under its predecessors, awards may be made upon a showing that the damage was the direct result of nontortious activities of the Bureau of Reclamation. Torts: Generally

The immunity granted to the United States by 33 U.S.C. 702c from liability of any kind for any damage from or by floods or flood waters at any place is available to the United States as a defense in suits brought under the Federal Tort Claims Act.

Irrigation Claims: Generally-Torts: Generally

The Flood Control Act, 33 U.S.C. 702c, is an immunity statute. Such a statute is necessary, and therefore applicable, only where there would be liability without it.

Irrigation Claims: Generally

The immunity granted to the United States by 33 U.S.C. 702c does not bar payment of claims under the Public Works Appropriation Act where floods or flood waters are involved because there is no legal liability upon the Government to pay claims under the Public Works Appropriation Act. Therefore, there exists no reason to have recourse to an immunity statute in order to avoid payment of such claims.

Irrigation Claims: Generally

The provisions of the Public Works Appropriation Act, concerning the activities of the Bureau of Reclamation, do not vest in anyone a stautory right to compensation. The payment of claims under these provisions is discretionary with, and not mandatory upon, the Secretary of the Interior.

APPEAL FROM ADMINISTRATIVE DETERMINATION

Mr. Bill Powers, of Othello, Washington, by and through his attorney, Mr. George R. Huff of Othello, Washington, has timely appealed from the administrative determination (T-P-254 (Ir.)), dated April 23, 1963, of the Regional Solicitor, Portland, Oregon, denying his claim in the amount of $395 for loss of crops and erosion damage on farm unit 214, Irrigation Block 49 of the Columbia Basin Project of the Bureau of Reclamation.

In presenting his claim, Mr. Powers stated:

Flood waters washed out ditch destroying 2.1 acres of peas and caused extensive erosion which required repairs by heavy equipment.

*

Flash flood on hill above property came into bureau lateral and through my weir, washing out my ditches and eroding my field.

In the original determination, the Regional Solicitor denied the claim under the Federal Tort Claims Act1 and stated: "It is settled law that the activities of the Bureau of Reclamation, in connection with the construction of irrigation structures, constitute discretionary acts within that [the discretionary function] exception to the Federal Tort Claims Act." He denies the claim under the Public Works 1 28 U.S.C., 1958 ed., sec. 2671 et seq.

June 8, 1964

Appropriation Act, 1963, 2 stating: "This case is squarely in point" with Hedrick v. United States. 3

The appellant, through his attorney, excepts to the original determination for the following reasons:

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1. The damage was caused by water collecting and running into the lateral in numerous gullies, not in one gully as stated in the original determination. The danger from these gullies was "apparent at time of the planning and construction of the water delivery system Failure to make proper allowances for this situation was a failure to exercise ordinary care (negligence) and not *** an exercise of a discretionary function."

2. The original determination did not "consider the fact that the Bureau of Reclamation originally planned to install concrete spillways to alleviate the uncontrolled waters, but, at the time of construction, such portion of the plan relating to the spillways was negligently omitted ***99

3. "An error in the construction of the water system in failing to take reasonable precautions to prevent harm to Mr. Powers, when the Bureau of Reclamation knew, or should have known, that the manner in which said construction was accomplished, without remedial action concerning the uncontrolled waters, would cause damage to Mr. Powers. This type of error is not a discretionary act as excepted under the Federal Tort Claims Act."

The original determination states the following facts:

Farm Unit 214 is located approximately 10 miles southwest of Othello, Washington, on the slope of a low range of hills called the Saddle Mountains. Although rainfall only averages 7 inches a year, the slopes of these hills are eroded into numerous small gullies. One such gully, running down this hillside, borders the east side of Farm Unit 214. The PE16.4M lateral, a structure of the Bureau of Reclamation, flowing westward supplies water to claimant's farm. The lateral crosses a well defined gully a few feet from claimant's turnout. There is no culvert under the lateral at this gully crossing. In its natural state, prior to the construction of the lateral, storm waters flowing down this gully would completely bypass Farm Unit 214 to the east.

During the evening of June 4, 1961, there was a cloudburst in the hills above claimant's farm. These waters collected in this gully adjacent to claimant's turnout, flowed directly into the PE16.4M lateral, and were carried along with the irrigation water already in the lateral. This raised the lateral's water level, and a large volume of water passed through claimant's turnout into his head ditches and overflowed onto the farm-washing out 2.1 acres of peas and causing erosion damage.

As shown by the record, the problem of storm waters entering the lateral had been considered by Bureau of Reclamation design engineers prior to the original construction of this facility. In order to serve farm lands lying on the slope

276 Stat. 1216. This appeal will be decided under the Public Works Appropriation Act, 1964, 77 Stat. 844, which is the current Act.

184 F. Supp. 927 (D.N.M. 1960).

of the Saddle Mountains, it was necessary that the lateral be laid out across the face of this hillside. Along its route, the lateral crossed numerous gullies including the one adjacent to claimant's unit. To provide for the storm waters that would flow down the hillside through the gullies into the lateral, this structure was designed with a large bank on the downhill side to give it additional freeboard.

*

As constructed, the lateral dead ends at the boundary between Farm Units 214 and 53. There is no channel to outlet emergency flows from the lateral; however, the owner of Farm Unit 53 has built an overflow device at his turnout which diverts increased lateral flows to an adjacent ravine. No culverts were built at the several gully crossings along this lateral in accordance with existing construction policy of the Bureau of Reclamation. *

**

The appellant's three exceptions will be considered in the order in which they were previously stated.

From the quoted portions of the original determination, it appears that the first exception is correct in that water from several gullies, not from just one gully, ran into the lateral and contributed to the damage to appellant's property. However, this in itself is not suf ficient grounds to reverse the determination, since the fact that more than one gully was involved would not affect whether or not the damage arose from the exercise of a discretionary function. The part of this exception which states that the danger was "apparent at the time of planning and construction" is in error. The administrative record establishes that the danger was neither apparent nor realized at that time.

The administrative record establishes that the second exception is in error. The Bureau of Reclamation did not originally plan to install spillways in this facility. There is no evidence in the administrative record of such an original plan.

The third exception is based on the assumption that the Government "knew or should have known" at the time of planning and constructing that a lateral such as was constructed "would cause damage to Mr. Powers." The administrative record establishes that the Government did not know at the time of the planning and construction of the lateral that such a lateral would cause damage to anyone. Further, there is no evidence in the administrative record to lead to the conclusion that the Government should have known of the danger at that time.

There is nothing in the appellant's three exceptions, nor in the administrative record which provides sufficient grounds for reversing the conclusion in the original determination that the decision to build the lateral without placing culverts under the lateral "was a decision made at the policy and planning level and, as such, constitutes a discretionary act," within the meaning of the discretionary function exception of the Federal Tort Claims Act. The situation presented

28 U.S.C., 1958 ed., sec. 2680 (a).

June 8, 1964

is analogus to the one presented in United States v. Ure. In Ure the court pointed out that a decision not to line an entire canal, but to line only part of it, fell within the discretionary function exception. Decisions of this type affect the feasibility of an entire project. No danger was apparent at the time of planning and construction.

Therefore, we sustain the denial of the claim by the Regional Solicitor, Portland Region, under the Federal Tort Claims Act.

Under the current Public Works Appropriation Act, as well as under its predecessors, awards may be made upon a showing that the damage was the direct result of nontortious activities of the Bureau of Reclamation. In denying the claim under the Public Works Appropriation Act, the original determination relied largely upon the Hedrick case, supra, two other Federal cases, and on T. J. Savell. However, Savell only stands for the proposition that a claim under the Public Works Appropriation Act must be denied when damage to a claimant's land does not result from activities of the Bureau of Reclamation.

6

The Federal court cases cited, including Hedrick, were suits brought under the Federal Tort Claims Act. These cases considered whether or not the immunity granted to the Government by 33 U.S.C., sec. 702c from "liability of any kind *** for any damage from or by floods or flood waters at any place," is available to the United States as a defense in suits under the Federal Tort Claims Act. The Court held that the defense is available in such suits.

Another Federal court case decided under the Federal Tort Claims Act which discusses the extent of the applicability of the Flood Control Statute is Stover v. United States. In that case the United States Court of Appeals for the Ninth Circuit stated:

We hold that 33 U.S.C., sec. 702c is an immunity statute covering even ordinary negligent construction or maintenance of flood works and to hold otherwise would be a repudiation of our Clark case, Clark v. United States, 218 F. 2d 446. True, as appellants point out, sec. 702c was only one of the legs on which Clark stood, and one of the other legs was sufficient for the case. But we cannot call it pure dicta. If it was half dicta, we believe it good dicta. Also, the leading case, National Manufacturing Co. v. United States, 8 Cir., 210 F. 2d 263, holds sec. 702c to be an immunity statute. And it is a well reasoned case. We affirm on the ground, negligence or no negligence, sec. 702c precludes recovery here.

Appellants say the section applies to natural but not to man made floods. They rely heavily on the draft form of the 1928 Flood Control Bill out of which the present sec. 702c emerged. Also, they rely strongly on Congressional colloquy at the time of the adoption of the 1928 flood control bill. But all the colloquy just cannot overcome plain language. And there really would not be any reason to legislate on damage caused purely by nature.

5 225 F. 2d 709 (9th Cir. 1955).

National Manufacturing Co. v. United States, 210 F. 2d 263 (8th Cir. 1954); Guy F. Atkinson Co. v. Merritt-Chapman & Scott Corp., 126 F. Supp. 406 (N.D. Cal. 1954). 7T-326 (Ir.) (April 3, 1951).

8 Civil No. 18,275, 9th Cir., April 7, 1964.

Stover, then, holds that the Flood Control Act is an immunity statute, and such a statute is necessary, and therefore applicable, only where there would be liability without it. The Public Works Appropriation Acts do not impose liability upon the Government to pay for damage caused by nontortious activities of employees of the Bureau of Reclamation. Rather, they provide for such payment within the policy of the Department of the Interior which is stated in Solicitor's Regulation 5, Amendment 1:"

Sec. 3. Irrigation claims-Administrative Policy. Neither the act of February 20, 1929 (25 U.S.C., sec. 388) [Indian Irrigation Act], nor the provision recurring in the annual Public Works Appropriation Acts respecting the activities of the Bureau of Reclamation vests in any person a statutory right to compensation.

With relation to the statutory provision regarding reclamation, the Solicitor has stated in pertinent part as follows:

*** the payment of claims under this statutory provision is discretionary with, and not mandatory upon, the Secretary of the Interior. No claimant has a legal right to demand compensation for property damage arising out of nontortious activities of the Bureau of Reclamation. Congress has merely granted a permissive power to pay such claims if it seems desirable to do so as a matter of policy. *** Sol's Op. M-36064, 60 I.D. 451, 454 (1950).

Since there is no legal liability upon the Government to pay claims for damage arising out of nontortious activities of the Bureau of Reclamation, there certainly is no need to have recourse to an immunity statute in order to avoid such payment, anymore than it is necessary to have recourse to such a statute in order to avoid paying for damages caused by nature. Therefore, it follows that this immunity statute does not bar the payment of claims under the Public Works Appropriation Acts.

In Charles H. Reaves,10 we held that the statutory defense under consideration barred recovery under the Federal Tort Claims Act. The statute was not mentioned in our consideration of the claim under the Public Works Appropriation Act. The claim was denied under that Act because:

In the case under consideration, the break in the Acequia was caused by an arroyo flow into the Acequia far in excess of the capacity of the Acequia. The heavy arroyo flow was caused by heavy rainfall. The arroyo flow is not shown to have been diverted from its true natural course by any work performed by the Bureau of Reclamation. In short, the damage to claimant's property was not directly caused by nontortious activities of employees of the Bureau of Reclamation but was caused by the forces of nature. (Italics added.)

The instant case presents the reverse of the Reaves case in that the administrative record as reflected in the quoted part of the original determination establishes that the storm waters flowing down the gully or gullies "would completely bypass Farm Unit 214," except for the construction. But for the lateral, the water would not have been

924 F.R. 1877.

10 TA-234 (Ir.) (February 17, 1964).