Decisions of the United States Department of the Interior

March 2, 1964

case which is particularly dispositive of this appeal. The Court said: Rather, the adjective "unforeseeable" must modify each event set out in the "including" phrase. Otherwise, absurd results are produced,

The Court also quoted, with approval, a portion of the dissenting opinion of Judge Madden in the Court of Claims decision. Judge Madden stated in part:

The same is true of high water or "floods." The normally expected high water in a stream over the course of a year, being foreseeable, is not an "unforeseeable" cause of delay. Here plaintiff's vice-president testified that in making its bid plaintiff took into consideration the fact that there would be high water and that when there was, work on the levee would stop

The Supreme Court stated further:

Whether high water or flood, the sense of the proviso requires it to be unforeseeable before remission of liquidated damages for delay is warranted. Government's Exhibit F is a compilation of the days spent by appellant in repairs to the dike and in temporary repairs to the adjacent shore line in order to render the dike usable by the contractor's equipment. A total of 86 days was so spent, and although not all of these days represent total loss in the progress of the work, the major portion of the time involves work stoppage.

The remaining aspect of the claim of excusable delay has to do with the partial suspension of work during the winter months, from December 19, 1958, to March 19, 1959. The contracting officer charged the contractor with 14 days of contract time by reason of useful work performed during the suspension period. Appellant claims that no charge should be made, and that it is entitled to full credit for the entire suspension period.

Government's Exhibit H includes a Progress Analysis-Payment Chart, indicating that appellant earned the sum of $25,004.81 in pay estimates during the suspension period, equivalent to 15 days of contract schedule progress. However, since the contracting officer found that only 14 days of progress should be charged, we see no reason to disturb his decision.

The Board holds that appellant has failed to show, by preponderance of evidence, that the delays which were encountered in the performance of the contract were excusable within the meaning of the contract clause.

On the other hand, on the basis of the entire record before us, we consider that the delays complained of were avoidable on the part of

appellant. These delays include the administrative delays in connection with redesign of the bridge superstructure, discussed supra, as well as the failure to anticipate and provide sufficiently against the occurrence of high water greatly in excess of the 2,000 cfs estimated by appellant.

Accordingly, the appeal is denied as to Claim No. 2 and the contracting officer's assessment of liquidated damages of $4,500 for 30 days' delay in performance of the contract is affirmed.

CONCLUSION

The appeal is denied in its entirety.

I CONCUR:

PAUL H. GANTT, Chairman.

THOMAS M. DURSTON, Member.

CLAIMS OF ED BREWER, MYRON J. THOMPSON, DARRELL C. COOK, HAROLD E. COOK, W. J. AND VIOLET DENISON, FORREST W. MARTIN, AND COY BOWEN

TA-253 (Ir.)

Decided March 2, 1964

Irrigation Claims: Generally

Under the current Public Works Appropriation Act, and its predecessors, awards may be made only upon a finding that the damage was a direct result of non-tortious activities of employees of the Bureau of Reclamation. Irrigation Claims: Generally

In determining what proof a claimant must supply in support of his claim, due consideration must be given to the availability of the proof to the claimant on the one hand and to the Government on the other. All evidence in the administrative record must be given proper consideration regardless of its source, that is, whether it was presented by the claimant or by the Government.

Irrigation Claims: Water and Water Rights: Generally

In dealing with subterranean water, it is rare that conclusions can be drawn with mathematical precision. Such precision is not necessary. Reasonable and logical conclusions can and must be drawn from the evidence presented, and a decision will then be rendered consistent with the preponderance of the evidence.

Irrigation Claims: Generally

When the administrative record establishes a prima facie case in favor of the claimant, and there is nothing in the administrative record which adequately rebuts this prima facie case, the claimant is entitled to a determination in his favor.

March 2, 1964

APPEAL FROM ADMINISTRATIVE DETERMINATION

Ed Brewer, Myron J. Thompson, Darrell C. Cook, Harold E. Cook, W. J. and Violet Denison, Forrest W. Martin, and Coy Bowen, all of Prineville, Oregon, by and through their attorneys, Mr. James B. Minturn of Prineville, Oregon, and Cake, Jaureguy, Hardy, Buttler and McEwen of Portland, Oregon, have timely appealed from an administrative determination (T-P-227 (Ir.)) of December 4, 1962. By that determination, the Regional Solicitor, Portland Region, denied their claims in the following amounts:

All claimants allege that their water wells went dry as a result of the construction of a drainage ditch by the Bureau of Reclamation. It is alleged that the wells went dry within a few days after the ditch construction passed the respective properties during June and July of 1961.

In the original determination, the Regional Solicitor denied the claims under the Federal Tort Claims Act1 because none of the claimants alleged any negligence on the part of the Government, and the administrative record contained no evidence of negligence on the part of the Government. The claims were denied under the Public Works Appropriation Act, 1963,2 because:

It is incumbent upon a claimant to supply proof in support of his claims. A review of the various claims submitted indicates that the claimants have merely alleged the facts that their domestic wells went dry and have pointed out that shortly prior to that time the United States, through the Bureau of Reclamation, constructed a drain ditch. The Government, nevertheless, investigated the claims filed, but nowhere is there any evidence uncovered from which to conclude that the act of the Government in constructing the drain ditch was a cause without which the injury would not have occurred, and which by itself is a self-sufficient cause of the injury, the injury in this case being the drying up of the domestic wells. To the contrary, the investigation indicates that other wells similarly situated did not dry up. Further, as the investigating officer observes, the wells went dry during a summer when a severe drought condition existed in the area. Considering all the evidence

128 U.S.C., 1958 ed., sec. 2671 et seq.

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

submitted, it does not appear that the activities of the Bureau of Reclamation resulted in the injuries claimed and, therefore, these claims cannot be settled under the Public Works Appropriation Act, 1963, supra.

The claimants through their attorneys contend that the original determination erred in concluding that:

1. The injuries to the claimants were not directly caused by the activities of the Bureau of Reclamation.

2. There was no causal connection between the construction of the drainage ditch and the drying up of the claimants' wells.

3. The claimants were not entitled to relief under the Public Works Act.

It is clear from the notice of appeal that the appellants do not seek to have the original determination reversed on any theory of negligence on the part of the Government. The appellants do not allege negligence, nor does the investigation reveal any negligence. Therefore, the denial of the claims under the Federal Tort Claims Act in the original determination is sustained.

In determining what proof a claimant must supply in support of his claim, due consideration must be given to the availability of the proof to the claimant on the one hand and to the Government on the other. In a determination which discusses the principles of proof of claims presented to the Department of the Interior for administrative determination, it was stated:

It is usually difficult, and often impossible, for the claimant in an accident such as this to secure such information. However, in order to be able to render a determination that is fair and equitable to all parties, the Department of the Interior in the assembly and consideration of the evidence resembles more an impartial judicial body than a party litigant. Further, since the Department is usually in a better position to secure the evidence, it has assumed the burden of investigating claims and of obtaining all available material evidence.

The instant case involves water wells and their water supply. The problems of subterranean water are present. Therefore, it is well to remember that:

& Wilbur B. Cassady, TA-235 (Ir.) (November 7, 1962), 69 I.D. 193, and authorities cited therein.

Hannah Cohen, TA-247 (May 22, 1963), 70 I.D. 188.

March 2, 1964

As the two foregoing quotations show, all evidence in the administrative record must be considered, regardless of its source, and reasonable and logical conclusions must be drawn, even though this cannot be done with mathematical precision.

The administrative record relating to the instant claims contains evidence establishing the following:

1. The claimants' wells went dry within a matter of days after drainage ditch passed the claimants' properties.

2. The wells had supplied necessary water to the claimants for several years prior to the construction of the ditch.

3. While the excavation for the ditch progressed north to the highway near the properties in question, very little water was encountered. However, when the excavation turned east parallel to this highway and began to pass the claimants' properties, a substantial flow of water was intercepted.

4. The water table at the ditch is now seven to eight feet lower than it was before the ditch was constructed.

5. The ditch has had no noticeable affect on some, at least, of the other wells in the area.

6. There was a drought in the area at the time in question.

7. The drainage ditch was constructed because "With the prospect of additional lands to be irrigated at higher elevations within the district it is estimated the present water table would rise in certain areas. In order to prevent this water table from rising and to remove excess surface water Drain D-2 [drainage ditch in question] was constructed to keep the adjacent lands in production." The most reasonable and logical conclusion to be drawn from the first four circumstances is that the construction of the drainage ditch caused the wells to go dry.

The fifth circumstance appears to oppose this conclusion. How. ever, a review of the information in the administrative record concerning the wells which went dry and those which did not reveals that the unaffected wells had depths of seventy to seventy-two feet, while the wells which went dry had depths of fourteen to sixty-five feet with only one of them deeper than forty-six feet. The unaffected wells penetrated, moreover, to elevations that were from nine to eleven feet below the average elevation, and from one to three feet 'Harold D. Jensen, TA-227 (Ir.) (March 14, 1963), 70 I.D. 97.

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