Konecny v. United States

• Decision Date: 12 December 1967
• Docket Number: No. 18789.,18789.
• Citation: 388 F.2d 59
• Parties: Frank J. KONECNY, Appellant, v. UNITED STATES of America and Red Lake Drainage & Conservancy District, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

388 F.2d 59 (1967)

Frank J. KONECNY, Appellant, v. UNITED STATES of America and Red Lake Drainage & Conservancy District, Appellees.

No. 18789.

United States Court of Appeals Eighth Circuit.

December 12, 1967.

Whitney E. Tarutis, Bemidji, Minn., for appellant.

William M. Cohen, Attorney, Land & Natural Resources Division, Dept. of Justice, Washington, D. C., for appellees; Edwin L. Weisl, Jr., Asst. Atty. Gen., and S. Billingsley Hill, Attorney, Washington, D. C., and Patrick J. Foley, U. S. Atty., Minneapolis, Minn., and Lloyd E. Boline, Asst. U. S. Atty., Minneapolis, Minn., on the brief.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Minnesota dismissing the claim of Frank J. Konecny against the United States for the alleged taking and damaging of his property resulting from the construction and operation of the Red Lake-Clearwater River Flood Control Project.

On March 3, 1964, Konecny commenced an action against the United States Army Corps of Engineers and the Red Lake Drainage and Conservancy District, a public corporation of Minnesota. On June 11, 1964, the District Court by Order dismissed the action as to the Corps of Engineers and the Drainage District, and made the United States party defendant. Subsequently, the United States brought in the Drainage District as a third-party defendant because of an indemnification agreement between them.¹

The United States filed a Motion to Dismiss or in the Alternative for Summary Judgment. On August 3, 1966, the District Court ruled that Konecny had no claim for relief under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)² because no "wrongful" or "negligent" acts within the scope of the Act were alleged that did not "clearly fall within the discretionary function exception of the Tort Claims Act, 28 U.S.C. § 2680 (a)."³, but refused to dismiss or grant summary judgment as the alleged taking and damaging of Konecny's property could constitute a valid claim for relief under the Tucker Act, 28 U.S.C. § 1346 (a) (2).⁴ The District Court then held a hearing in order to rule on the question of whether Konecny's claim under the Tucker Act was barred by the jurisdictional time limit of six years applicable to Tucker Act claims under 28 U.S.C. § 2401(a).⁵ This hearing was held on January 4, 1967. On January 11, 1967, the District Court entered a Judgment of Dismissal against Konecny because he did not bring his action within six years from the time it accrued as required by § 2401(a), and hence the Court found it was without jurisdiction.

The land that Konecny owns is located on the shore of the Upper Red Lake in Beltrami County, Minnesota. Upper Red Lake is connected to Lower Red Lake by a natural channel about one mile wide. Red Lake River, the principal tributary of the Red River of the North, has its source at the outlet of Lower Red Lake. In 1931 the United States constructed a dam at the outlet of Lower Red Lake in order to regulate both Lower and Upper Red Lakes and to control the flooding of rivers below the Lakes. From 1931 until 1951 the operation of the dam was supervised by the Bureau of Indian Affairs. Since 1951 operation and control of the dam has been by the United States Army Corps of Engineers. During the period 1947-1951⁶ the dam was modified by replacing the three wooden gate outlets in the dam with steel gates, thus increasing the flow of water from the Lakes when desired.

Konecny has lived along Upper Red Lake since 1942, purchasing his land in 1948. Konecny alleges that due to the operation of the dam his shore line is being washed out and that water from Upper Red Lake is, and has been, moving up and taking his property, and that he is entitled to be compensated for damage to his property that has occurred within a six-year period of the filing of his complaint.

In asserting any claim against the United States, the claimant must recognize the established principle of law that "The United States, as sovereign, is immune from suit save as it consents to be sued citations omitted and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); United States v. Shaw, 309 U.S. 495, 500-501, 60 S.Ct. 659, 84 L.Ed. 888 (1940); State of Minnesota v. United States, 305 U.S. 382, 388-389, 59 S.Ct. 292, 83 L.Ed. 235 (1938). The United States Congress has with regard to the Federal Tort Claims Act and the Tucker Act defined the terms and conditions under which the United States has waived immunity to suit, and jurisdiction can vest in a court to hear a claim brought against the United States. To recover under either of these Acts, the claimant must bring his cause of action within the jurisdictional limits of the court that he desires to entertain his action. As expressed in State of Minnesota v. United States, at 388 of 305 U.S., at 295 of 59 S.Ct.: "It rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought."

Konecny alleges that the District Court erred in dismissing his complaint for damages based on the Tort Claims Act for lack of jurisdiction by ruling as a matter of law that the alleged wrongful acts of the United States clearly fell within the discretionary function exception of the Act. Konecny notes that under § 1346(b) of the Tort Claims Act, the United States can be liable as a private person would be liable in accordance with the law of the place where the act or omission occurred that caused injury or damage. He asserts that as the United States would be liable for the damages he alleges under the laws of Minnesota, he should be afforded his "day in court" to offer evidence to prove his case. Konecny argues that the discretionary function exception is not applicable since there was no discretion vested to keep the level of the Lake at the height that caused him damage.

The District Court did not err in dismissing Konecny's claim based on the Tort Claims Act. The burden was on Konecny to frame a pleading sufficient to support the District Court's jurisdiction. Rule 8(a), Fed.R.Civ.P. In Coates v. United States, 181 F.2d 816, (8 Cir. 1950), plaintiffs brought a cause of action based on the Tort Claims Act alleging that the United States, by changing the course of the Missouri River, caused damage to their crops. This Court, in affirming the District Court's dismissal for want of jurisdiction, stated at p. 817:

"It would be difficult if not impossible to point to any example of exercising and performing discretionary functions and duties on the part of federal agencies more clearly within the exception of the Federal Tort Claims Act than the changing of the Missouri River under legislative and executive sanction pursuant to political and discretionary decisions of the highest governmental order on which the plaintiffs have chosen to base their claim of negligence in this case. We have found no merit in their contention that their claims stated in their complaint may be found to fall within the jurisdiction conferred by the Act."

In noting the legislative history of the Act and the applicability of the exception to suits for flood damages, the Court in Coates significantly set out the House Judiciary Committee Report at p. 818:

"`This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.\'"

The same portion of the House Committee Report was quoted with approval by the United States Supreme Court in Dalehite v. United States, 346 U.S. 15, 29, 73 S.Ct. 956, 97 L.Ed. 1427 (f.n. 21) (1952) in that Court's discussion of the scope of the exception. Further, at Dalehite, supra, 36-37, at 968 of 73 S.Ct. (f.n. 32), the Supreme Court noted:

"The courts that have passed upon the application of § 2680(a) to suits under the Tort Claims Act have interpreted the exception of discretionary functions, generally, in conformity with our holding that negligence in policies or plans for authorized governmental activities cannot support damage suits.

"* * * In Coates v. United States, 8 Cir., 181 F.2d 816, damages were sought for injury to crops and land from the action of the Government in negligently changing the course of the Missouri. It was held that no jurisdiction existed under the Act."

In United States v. Gregory, 300 F.2d 11, 99 A.L.R.2d 1011 (10 Cir. 1962), the court held that the discretionary function exception applied to a claim for damages resulting to plaintiff's property from the drainage of his ponds into recently cleared irrigation ditches under the control of the United States. And, in United States v. Ure, 225 F.2d 709 (9 Cir. 1955), the exception precluded a theory of recovery under the Act where plaintiffs suffered flooding damage because of the decision of a governmental agency not to line a canal throughout, but only in locations where particular conditions obtained.

Therefore, the District Court correctly dismissed Konecny's claim based on the Tort Claims Act, since even if Konecny were able to prove his allegations, such proof would not support jurisdiction under the Federal Tort Claims Act.

Konecny also alleges that the District Court erred in dismissing his claim under the Tucker Act for want of jurisdiction, again contending that he was denied his "day in court" to prove his damage in that the District Court decided as a matter of law that he failed to bring...