Taylor Bay Protective Ass'n. v. Administrator, U.S. E.P.A., s. 88-2027
| Decision Date | 01 September 1989 |
| Docket Number | Nos. 88-2027,88-2168,s. 88-2027 |
| Citation | 884 F.2d 1073 |
| Parties | 20 Envtl. L. Rep. 20,086 TAYLOR BAY PROTECTIVE ASSOC.; Calvin Covington; Morgan William Berry; Edward C. Fitzhugh; Ray Fitzhugh, Appellees, v. ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Dick Whittington, in his official capacity as Regional Administrator, Region VI, U.S. Environmental Protection Agency, Village Creek and White River Levee District of Jackson County Arkansas; Mayberry Levee District of Jackson County Arkansas, Appellants. John O. Marsh, Jr., in his official capacity as Secretary of the Army U.S. Corps of Engineers; Anthony Y. Nida in his official capacity as District Engineer, Little Rock District Corps of Engineers. TAYLOR BAY PROTECTIVE ASSOC.; Appellant, Calvin Covington; Morgan William Berry; Edward C. Fitzhugh; Ray Fitzhugh, v. ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Dick Whittington, in his official capacity as Regional Administrator, Region VI, U.S. Environmental Protection Agency, Village Creek and White River Levee District of Jackson County Arkansas; Mayberry Levee District of Jackson County Arkansas, John O. Marsh, Jr., in his official capacity as Secretary of the Army U.S. Corps of Engineers; Anthony Y. Nida in his official capacity as District Engineer, Little Rock District Corps of Engineers, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Tim F. Watson, Newport, Ark., for Administrator, U.S. E.P.A., et al.
Thomas Bay Fitzhugh, Augusta, Ark., & O.H. Storey, Little Rock, Ark., for Taylor Bay Protective Assoc. et al.
Before FAGG and BEAM, Circuit Judges, and DUMBAULD, * District Judge.
These appeals arise out of the operation of a flood control project which allegedly caused high amounts of sediment to be deposited in a downstream watercourse. The Village Creek District, White River Levee District, and Mayberry Drainage District (Districts) appeal from a memorandum opinion and order of the district court 1 in which the court ruled in favor of the Taylor Bay Protective Association (Association) on its common-law nuisance claim. The Association appeals from an order of partial summary judgment in which the district court concluded that it could not review a report prepared by the Army Corps of Engineers (Corps). Additionally, the Association appeals from the memorandum opinion and order of the district court in which the court found that the Corps did not violate 16 U.S.C. Sec. 662(a) (1982) and that a claim against the federal defendants for failing to ensure that the Districts acquire title to two sump areas was time-barred under 28 U.S.C. Sec. 2401(a) (1982). We affirm.
The Association is a nonprofit corporation established for the purpose of restoring and improving the water quality of Taylor Bay. The Districts are improvement districts operating the Village Creek Project, which project consists of a system of levees, channels, and a pumping station. The federal defendants are as follows: Anne Gorsuch and her successor, past and present administrators of the Environmental Protection Agency; Richard Whittington, Regional Administrator of the Environmental Protection Agency, Region VI; John O. Marsh, Jr. and successor, Secretary of the Army; and Larry S. Bonine District Engineer, Little Rock District Corps of Engineers.
The Taylor Bay Watershed is located in Jackson and Woodruff Counties, Arkansas, and consists, in part, of Taylor Slough and Taylor Bay. Taylor Slough flows primarily southward to a levee, at which location culverts and pumps are located. From this point on the levee, the water enters Taylor Bay. Taylor Bay is divided into an upper and lower portion. The upper portion, Little Taylor Bay, runs southward from the levee. It extends for approximately seven miles and enters Big Taylor Bay. Big Taylor Bay, which is considerably wider, flows southward for three miles before entering the White River.
The levee on Taylor Slough was constructed in 1940 to aid in flood control. The levee runs in a northwesterly direction from the point that the slough enters Little Taylor Bay. It encloses approximately forty-eight square miles. This leveed area is principally drained by Mill Creek and Taylor Slough, with drainage areas of approximately twenty-two and twenty-six square miles, respectively. The water in Mill Creek drains through the levee into the White River by way of two culverts. The Taylor Slough water flows into Little Taylor Bay via three culverts in the levee. The area below the levee consists of a peninsula of land of roughly thirteen square miles, bounded by Taylor Bay on the east and the White River to the south and west.
In the Flood Control Act of 1962, Congress authorized improvements to the project, which improvements were completed in 1971. The improvements included cleaning, clearing, and enlarging about nineteen miles of existing channel, constructing two miles of new channel, cleaning out approximately three miles of the channel immediately below the levee, and constructing a pumping station at the levee capable of pumping 300,000 gallons per minute. Congress also authorized the acquisition of title to a 660-acre sump area directly north of the levee and a 220-acre sump area near Mill Creek. The Districts failed to acquire title to either sump area. Prior to the completion of the project, about one-half of the runoff from the area north of the levee drained through the Mill Creek outlet, and the remainder of the runoff was drained through the Taylor Slough culverts. When the improvements were added, a diversion ditch was constructed from Mill Creek to Taylor Slough. When the White River was low, about forty percent of the Mill Creek drainage was diverted to Taylor Slough and then into Taylor Bay. However, when the White River was high and blocked the Mill Creek outlet, all of the flow of Mill Creek was diverted to Taylor Slough. When completed, operation and maintenance of the project was relinquished to the Districts.
After the pumping station became operational, problems with sedimentation and turbidity occurred in Taylor Bay which conditions reduced fishing and other recreational activities. In 1977, due to the complaints concerning the water quality of Taylor Bay, the Corps was authorized by Congress to study the project. See The Flood Control Act of 1970, Pub.L. No. 91-611, Sec. 216, 84 Stat. 1818, 1830. The section 216 study resulted in a report in which the Corps concluded that most of the sedimentation was due to drainage from the row crop farmlands below the levee or due to White River overflows. Except for recommending that some revisions be made in the pumping procedures, the Corps advised that the project should not be otherwise modified.
The Association then brought suit against the Districts and federal defendants. The Association alleged, among other things, that the operation of the project constituted a nuisance, that the section 216 report was flawed and should be reviewed by the court, that the Corps failed to consult with the U.S. Fish and Wildlife Service when it completed the improvements to the project, and requested that the Districts be ordered to acquire title to the two sump areas. Pursuant to the federal defendants' motion for partial summary judgment, the court found that it did not have jurisdiction to review the findings and conclusions contained in the section 216 report. After a bench trial, the district court determined that the Districts' operation of the project resulted in the creation of a nuisance.
On appeal, the Association argues that the report is subject to judicial review and that the Corps was negligent or biased in its preparation of the report. The Districts, on appeal, argue that (1) they are immune from liability for nuisance, (2) the district court was clearly erroneous in its finding that the District's operation of the project resulted in a nuisance, and (3) the district court's remedies are clearly erroneous. In its memorandum opinion and order, the district court also found that the attack upon the Districts' assurance that they would acquire title to the two sump areas was time-barred and that the Corps did, in fact, consult with the Fish and Wildlife Service as required by section 662(a). The Association also disputes these conclusions.
Before reaching the merits of the Association's nuisance claim, we first address the Districts' contention that they are immune under 33 U.S.C. Sec. 702c (1982) from any liability arising out of operation of the project.
Section 702c provides in relevant part 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." Pursuant to this section, the district court granted the federal defendants partial summary judgment, dismissing the nuisance count against them. The Districts initially argued that as operators of the project they share the immunity granted to the United States under section 702c. However, the Districts waived this contention during oral argument. And, even if the immunity argument had not been waived, the situations to which the doctrine of shared immunity has been applied are distinguishable from the facts of this case. See Souter v. Carruthers, 237 Ark. 590, 374 S.W.2d 474, 475 (1964) ().
The district court determined that the proximate cause(s) of the sedimentation problems in Taylor Bay were: (1) use of the pumping facility at times when it was unnecessary or improper; (2) failure to make use of the sump area at all times during the year in order to permit the settlement of silt; (3) lateral drainage...
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