Oahe Conservancy Sub-District v. Alexander

Decision Date25 July 1980
Docket NumberNo. 78-1006.,78-1006.
Citation493 F. Supp. 1294
PartiesIn re OAHE CONSERVANCY SUB-DISTRICT, a Political Subdivision, of the State of South Dakota; and the James River Flood Control Association, a Non-Incorporated South Dakota Association, and the Tacoma Park Association, a South Dakota Corporation, Plaintiffs, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, the Pentagon, Washington, D.C. 20310, Lieutenant General John W. Morris, Chief of Engineers, Department of the Army, Washington, D.C. 20314, Colonel William Ray, District Engineer, Omaha District, Corps of Engineers, 6014 U.S. Postoffice and Courthouse, Omaha, Nebraska 58102, Defendants, State of North Dakota, Intervenor as Party Defendant.
CourtU.S. District Court — District of South Dakota

COPYRIGHT MATERIAL OMITTED

Tom P. May, Spokane, Wash., B. Elizabeth Ganje, Aberdeen, S.D., for Oahe Conservancy Sub-District.

Terry Pechota, U.S. Atty., Sioux Falls, S.D., for defendants Alexander and Morris.

Faye C. O'Connor, Asst. Dist. Counsel, Army Corps of Engineers, Omaha Dist., Omaha, Neb., for Corps of Engineers, defendant.

Michael A. Dwyer, Sp. Asst. Atty. Gen., North Dakota State Water Commission, Bismarck, N.D., for defendant-intervenor.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Plaintiffs brought this action for injunctive and declaratory relief relating to defendants' operation of the Jamestown and Pipestem dams in North Dakota. Plaintiffs' motion for preliminary injunction was denied by the Court in Oahe Conservancy Sub-District v. Alexander, 452 F.Supp. 714 (D.S.D.1978). The action was tried on the merits June 9, 10 and 11, 1980. The Court now concludes that it must reject plaintiffs' claim that defendants have in any way operated the dams in violation of law. The Court also overrules plaintiffs' contention that the current regulations for the dams were adopted contrary to the requirements of the Administrative Procedure Act, or that defendants have violated their own regulations. The Court determines, however, that defendants have violated 33 U.S.C. § 709 in failing to publish general regulations for the Pipestem Dam, and in that respect only, judgment will be entered for plaintiffs.

FACTUAL BACKGROUND

The basic facts underlying this case were described at length in the previous reported opinion, and will only be briefly mentioned here. The James River begins in eastern North Dakota, and flows south, past the city of Jamestown, North Dakota, and eventually enters South Dakota. The two plaintiff associations are composed primarily of farmers who live along the banks of the James River as it flows through the northern South Dakota counties of Brown and Spink.

The two dams pertinent to this litigation are the Jamestown and Pipestem dams. Both are directly upstream from the city of Jamestown. The Jamestown Dam was constructed on the James River in 1953 by the Bureau of Reclamation (now the Water & Power Resource Service) and that agency controls the Jamestown Dam until the water level in the dam enters the flood zone level. At that point, jurisdiction is taken over by defendants, the Corps of Engineers. The Pipestem Dam was constructed in 1973 on Pipestem Creek, a tributary of the James River which enters the River just above the city of Jamestown. The Pipestem Dam is under the sole jurisdiction of the Corps of Engineers. Water released from the two dams commingles in the James River as it passes through the city of Jamestown.

As mentioned above, plaintiffs attack both the manner in which defendants operate the dams, and the validity of the written regulations adopted concerning dam operation. These issues will be considered separately.

DISCUSSION
I Operation of the Dams

Nuisance. In their third claim for relief, plaintiffs apparently seek to bring a cause of action for common law nuisance against defendants for their operation of the dams. Plaintiffs allege that "defendants' continued operation of the Jamestown and Pipestem Reservoirs and Dams constitutes unlawful interference with the flow of the James River which has and will cause unnecessary flooding on plaintiffs' lands. . . ." Such a cause of action cannot be sustained. Plaintiffs overlook the unmistakable language of 33 U.S.C. § 702c, which states that "No liability of any kind shall attach to or rest upon the United States for any damages from or by floods or flood waters at any place. . . ." (Emphasis supplied) Plaintiffs seek to limit the scope of this action by arguing that § 702c bars only monetary liability, and not the injunctive relief sought by this action. This Court does not so narrowly read the statute. See, e. g., the definition of "liable" in Black's Law Dictionary (4th ed. 1968): "Bound or obligated in law or equity. . . ." (Emphasis supplied) As the case of National Mfg. Co. v. United States, 210 F.2d 263 (8th Cir. 1954), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (1954), put it,

. . . when Congress entered upon flood control on the great scale contemplated . . . it safeguarded the United States against liability of any kind for damage from or by flood or flood waters in the broadest and most emphatic language . . . there is no question of the power and right of Congress to keep the government entirely free from liability when floods occur, notwithstanding the great government works undertaken to minimize them.

210 F.2d at 270. See also Burlison v. United States, 627 F.2d 119 (8th Cir. 1980); Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977). This policy would be frustrated by permitting private landowners to sue in nuisance to compel changes in the operations of government dams, even where it is claimed that flooding has resulted. This is not to hold that the actions of dam operators are completely unreachable by the judiciary, as shown by the discussion below, but this Court does rule that § 702c bars all common law tort actions against the United States arising from flood damages, whether the cause of action is grounded in law or equity. See Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932).

Claimed Violation of 33 U.S.C. § 701a. In their second claim, plaintiffs cite the "Declaration of policy" at 33 U.S.C. § 701a that "the Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected." (Emphasis supplied) Plaintiffs contend that they have a legal right under this statute to receive flood control benefits from these two dams, but that defendants have failed to formulate rules for the regulation of the dams for the maximum benefit possible for plaintiffs. This Court must find, however, that this general policy statement creates no rights which plaintiffs may vindicate in a lawsuit. The statement in Cape Henry Bird Club v. Laird, 359 F.Supp. 404 (W.D.Va.1973) is typical of cases considering this issue. ". . . because of the innumerable number of methods of deriving them, benefit cost ratios, computed under 33 U.S.C. § 701a, are not judicially reviewable . .." 359 F.Supp. at 413. See also Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974); Environmental Defense Fund v. Froehlke, 473 F.2d 346 (8th Cir. 1972); Libby Rod & Gun Club v. Poteat, 457 F.Supp. 1177 (D.Mont.1978); Environmental Defense Fund v. T. V. A., 371 F.Supp. 1004 (E.D.Tenn.1973), aff'd. 492 F.2d 466 (6th Cir. 1974). As shown by the discussion below, flood control benefits from a dam essentially depend on there it is constructed. By authorizing the construction of these dams at their present site, Congress has resolved the benefit/cost ratio issue for these dams for all time, and the issue cannot be reviewed by this Court now. What is properly considered a cost or what should be treated as a benefit, is a matter of policy to be determined by the people through the legislative branch of government.

Review under 5 U.S.C. § 706. Even though the Court may be otherwise barred from an inquiry into defendant's operation of the dams, a limited review of defendant's actions is authorized by the Administrative Procedure Act. Several courts have noted that in spite of the language of 5 U.S.C. § 701(a)(2) that the judicial review provisions of the APA do not apply where agency action has been committed to agency discretion by law, a Court can still review agency actions under 5 U.S.C. § 706(2)(A) to determine whether the action was an abuse of that discretion. Reece v. United States, 455 F.2d 240 (9th Cir. 1972); Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971); Ajay Nutrition Foods, Inc. v. Food and Drug Administration, 378 F.Supp. 210 (D.N.J. 1974), aff'd, 513 F.2d 625 (3rd Cir. 1975).

This standard of review is an extraordinarily limited one. A court

must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). There must be a "`rational connection between the facts found and the choice made' . . . while a court may not supply a reasoned basis for the agency's action that the agency itself has not given . . . a court will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-6, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974).

The basis of plaintiff's case is their allegation that defendants' operation of the Jamestown and Pipestem dams causes an increase...

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