Flood Control Act of 1928 Example of Preservation

Flood Control Act of 1928 Example of Preservation of Immunity after the FTCA

Flood Control Act of 1928 n n What happened in 1927? What are the immunity provisions? n Flood Control Act of 1928, 33 U. S. C. § 702 c - which states 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" Why did Congress provide this immunity? Does it say this is limited to flood control 2 projects?

The Compensation Clause n n "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 this Act 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 War 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. "

How do you get into Court in Flood Act Cases? n n n Is there jurisdiction in the Flood Control Act? Are these Bivens cases? FTCA n What do you need to do before you go to court? n What do you need to show about the feds decisionmaking?

Does FCA Immunity Survive the FTCA? n n n National Mfg. Co. v. US, 210 F. 2 d 263 (8 th Cir. 1954) Negligent failure of the government to warn about flood waters coming down the river. Plaintiffs argue that had they been warned, they could have taken precautions. 5

Does the FTCA Create New Causes of Action? n It is settled in Feres v. United States, supra, quoted in Dalehite v. United States, 346 U. S. 15, 43, 73 S. Ct. 956, 972, 97 L. Ed. 1427, that the Tort Claims Act "did not create new causes of action where none existed before. * * * Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and 6

Is this an Established Cause of Action? n n "By a long line of cases it has definitely been settled that neither the government nor its instrumentalities would have to respond in damages arising in the development and maintenance of waters for purposes of navigation and flood control, including claims for negligence. It may be noted that this position is not because of governmental immunity from suit but on the grounds of public policy. “ 7 Does this explain why there was an

What did the Court say about Repeal? n n The Tort Claims Act contains no expressions which indicate affirmatively that Congress intended to depart from the established prohibition of federal liability for any damages from or by floods or flood waters at any place. … "We cannot impute to Congress such a radical departure from established law in the absence of express congressional

Consequences of FCA Immunity Surviving the FTCA? n n n Can plaintiff’s claim go forward? Why might weather and river level forecasting also be very hard to beat under the discretionary authority defense? Should this apply to Katrina Levee Breach cases?

Central Green Co. v. United States, 531 U. S. 425 (2001) n n California Water Project - irrigation n Take water from one area and spread it around the state Land is damaged by seepage from the canal n Is this covered by the flood control act immunity? n The feds say that any flood control purpose puts the every water related 10 damage under flood control act

Is there a Flood Control Purpose at All? n What happens when the snow melts too fast or there is a big rain in this system? n Does the irrigation system also handle flood water? n Does this make it entirely a flood control project, so that any damage is immunized? 11

The Holding in Central Green n The text of the statute does not include the words "flood control project. " Rather, it states that immunity attaches to "any damage from or by floods or flood waters. . " Accordingly, the text of the statute directs us to determine the scope of the immunity conferred, not by the character of the federal project or the purposes it serves, but by the character of the waters that cause the relevant damage and the 12 purposes behind their release.

Sorting out a Dual Purpose n n If water project like an irrigation system also has a flood control purpose, the Act does not grant immunity if the damage was not related to a flood. n Would this mean, however, that even a dual purpose project would be immune it was a flood? However, if the only purpose of the project is flood control, such as a levee, are all damages covered by the flood control act immunity? n How do you analyze this? 13

Between Betsy and Katrina n n n 40 years Corps initial plans are rejected in favor of ring levees n Critically, canals are left open n Lots of issues in construction n Huge problem of lack of maintenance n A lot of subsidence between 1965 and 2005 Katrina - not just levees breaking n A lot of overtopping - there would have been a lot of flooding without a levee break 14