Central Green Co. v. U.S., 97-17321

• Decision Date: 20 May 1999
• Docket Number: No. 97-17321,97-17321
• Citation: 177 F.3d 834
• Parties: 99 Cal. Daily Op. Serv. 3722, 1999 Daily Journal D.A.R. 4783 CENTRAL GREEN COMPANY, a California Limited Partnership, Plaintiff-Appellant, v. UNITED STATES of America; Madera Irrigation District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 834

177 F.3d 834

99 Cal. Daily Op. Serv. 3722, 1999 Daily

Journal D.A.R. 4783

CENTRAL GREEN COMPANY, a California Limited Partnership Plaintiff-Appellant, v. UNITED STATES of America; Madera Irrigation District Defendants-Appellees.

No. 97-17321.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 6, 1998.

Decided May 20, 1999.

Timothy Jones, Sagaser, Franson, Jamison & Jones, Fresno, California, for the plaintiff-appellant.

Constance A. Wynn, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, District Judge, Presiding. D.C. No. CV-96-05541-REC/SMS.

Before: HUG, Chief Judge, FLETCHER, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

I. OVERVIEW

Central Green Company ("Central Green") appeals a district court decision dismissing its claims against the United States for lack of subject matter jurisdiction. Central Green sued the United States under the Federal Tort Claims Act for damage to its pistachio farm caused by subsurface and surface water flooding from the Madera Canal. The district court dismissed the action for lack of subject matter jurisdiction, finding that Central Green's claims were barred by 33 U.S.C. § 702c immunity for management of flood control waters. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

II. BACKGROUND

Appellant Central Green owns one thousand acres of pistachio orchards in Madera County, California. The Madera Canal is a federal water management project that runs through Central Green's property, conveying irrigation water throughout the San Joaquin Valley. Although flood control is not one of the stated purposes of the Madera Canal, the Madera Canal is part of the Central Valley Project, which has flood control as one of its congressionally authorized purposes. The United States owns the Madera Canal but has entered into an agreement giving the Madera Irrigation District and the Chowchilla Water District authority to operate and maintain the Madera Canal.

Central Green sued the United States and the Madera Irrigation District alleging that due to negligent planning, design, construction, or maintenance, the Madera Canal is leaking, causing surface and subsurface flooding of Central Green's property. Central Green also alleges that subsurface flooding created a shallow water table, resulting in irreparable harm to Central Green's pistachio orchard and increasing farming and harvesting costs.

Asserting § 702c immunity, the United States moved for judgment on the pleadings. The district court granted the United States's motion and dismissed Central Green's claims against the United States. The district court also stayed Central Green's claims against Madera Irrigation District pending resolution of this appeal.

III. STANDARD OF REVIEW

A district court's conclusion that it lacks subject matter jurisdiction is reviewed de novo. H2O Houseboat Vacations Inc. v. Hernandez, 103 F.3d 914, 916 (9th Cir.1996).

IV. DISCUSSION

A. Immunity under § 702c

of the Flood Control Act

Section 702c confers broad immunity for claims arising from the design, operation, or management of federally authorized flood control projects. Specifically, it 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." 33 U.S.C. § 702c (1994). In United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986), the Supreme Court, in interpreting § 702c, noted that "[i]t is difficult to imagine broader language." Indeed, the only limitation in the plain language of the statute is that the United States is only immune from damage caused by "floods or flood waters."

B."Flood Waters"

Central Green's sole argument on appeal is that the water that caused damage to its pistachio farm was not "flood water" because it was held for irrigation purposes rather than flood control. For support, Central Green relies on the Supreme Court's decision in James. In James, the plaintiffs were injured when they were swept through a dam as water was released to control flooding. Id. at 599. The Supreme Court held that § 702c protected the government from damages caused by failure to warn boaters of impending danger caused by releasing water through federal flood control projects. Id. at 604. The Supreme Court also addressed the issue of what constituted "flood waters" and held that

[i]t 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.

Id. at 605.

Relying on this definition, Central Green argues that the Supreme Court created a two-part test to determine when water is "flood water." Central Green's proposed two-part test would require 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. Ultimately, Central Green argues that because the water that damaged its crops was held for irrigation and not flood control purposes, § 702c immunity should not apply.

Central Green's argument raises an apparent contradiction in the James decision. In the footnote to the definition of "flood waters," the Supreme Court favorably cited both Morici Corp. v. United States, 681 F.2d 645 (9th Cir.1982), and Hayes v. United States, 585 F.2d 701 (4th Cir.1978). James, 478 U.S. at 605 n. 7. Although both Morici and Hayes provide that there is no immunity for flooding caused by federal projects unrelated to flood control, Morici, 681 F.2d at 647, the two cases appear to be inconsistent. Morici applied the "not wholly unrelated" test and held that the purpose for which the project was being operated at the time of the flood damage was irrelevant to the issue of whether immunity applied. 681 F.2d at 648 ("Even if the project was being operated at the time of the negligence for a purpose other than flood control, the operation that caused the damage was not 'wholly unrelated' to a Congressionally authorized flood control project."). Conversely, Hayes held that whether immunity attached depended on the operation of the flood control project at the time of the injury. 585 F.2d at 702-3.

The apparent contradiction between these two cases and the resulting question about the definition of "flood waters" has been debated in the circuit courts. See Boudreau v. United States, 53 F.3d 81, 84-85 (5th Cir.1995) (discussing the split in the circuits over the correct application of James ); Dawson v. United States, 894 F.2d 70, 73 (3d Cir.1990) (noting the disagreement between the circuits). The circuits disagree over the degree of relation the injury must have with flood control activities before immunity will attach. Although we have held that immunity protects the government as long as the damage is not wholly unrelated to a project with flood control as one of its purposes, other circuits have found that standard to be too broad and require a more substantial nexus between flood control activities and the damage incurred. Compare Washington v. East Columbia Basin Irr. Dist., 105 F.3d 517, 519 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 364, 139 L.Ed.2d 284 (1997), with Holt v. United States, 46 F.3d 1000, 1004-05 (10th Cir.1995), and Boyd v. United States, 881 F.2d 895, 899-900 (10th Cir.1989).

Central Green's two-part test finds support in other circuits. The Fourth Circuit looks at the purpose for which the water was being held and ultimately released to determine whether immunity attaches. Hayes, 585 F.2d at 702-03 ("If the plaintiff could prove damage to his farm as a result of the dam's operation as a recreational facility without relation to the operation of the dam as a flood control project, he would avoid the absolute bar of § 702c."). The Seventh Circuit refuses to grant § 702c immunity unless flood-control activities increased the likelihood of the plaintiff's injuries. Bailey v. United States, 35 F.3d 1118, 1124 (7th Cir.1994) (remanding for a hearing to determine whether injuries resulted from flood control activities); Fryman v. United States, 901 F.2d 79, 82 (7th Cir.1990) (same). The Tenth Circuit has adopted the two part test that requires the existence of a nexus between flood control activity and the plaintiff's injury. Holt, 46 F.3d at 1004-05.

Despite support for the two-part test in other circuits, we have consistently focused on the "related to" language in the definition of "flood waters" and rejected Central Green's argument. See East Columbia Basin, 105 F.3d at 519-20; McCarthy v. United States, 850 F.2d 558, 562-63 (9th Cir.1988); Morici, 681 F.2d at 648. We first announced the "not wholly unrelated" test in Peterson v. United States, 367 F.2d 271 (9th Cir.1966). In Peterson, engineers at the Ladd Air Force base in Alaska dynamited ice and snow that was collecting and damming the flow of a river. Id. at 275. The explosion caused a large discharge of ice and water downstream, damaging Peterson's vessel. Id. We held that immunity did not protect the government's actions because "[t]he decision to dynamite the ice jam was wholly unrelated to any act of Congress authorizing expenditures of federal funds for flood control, or any act undertaken pursuant to any such authorization." Id. We also distinguished dynamiting the ice jam from government programs aimed at preventing or minimizing damage caused by floods. Id. at 275-76.

Later in Morici, we again addressed the scope of § 702c. In Morici, the plaintiff argued that negligent operation of a dam and reservoir resulted in excessively high levels of water in the Sacramento River which caused water to seep out, damaging plaintiff's farm. 681 F.2d at 646. Morici did not...