Pueblo de Cochiti v. United States
| Decision Date | 13 August 1986 |
| Docket Number | No. CIV. 85-1552 JC.,CIV. 85-1552 JC. |
| Citation | 647 F. Supp. 538 |
| Parties | PUEBLO de COCHITI, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
F. Joel Roth, Roth, VanAmberg, Gross, Amarant & Rogers, Santa Fe, for plaintiffs.
William L. Lutz, U.S. Atty., Raymond Hamilton, Asst. U.S. Atty., Albuquerque, for defendants.
THIS MATTER comes on for consideration of Defendants' Motion to Dismiss, filed on February 7, 1986. The Defendants moved to dismiss the Plaintiffs' Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim for which relief can be granted. The Court, having considered the pleadings, the memoranda submitted by the parties and the relevant law, finds that the Defendants' Motion is not well taken regarding the first count of Plaintiffs' Complaint and will be denied. Defendants' Motion to Dismiss the second count of Plaintiffs' Complaint is also not well taken and will be denied, but the Court will stay exercising its jurisdiction over the substantive allegations in the second count of Plaintiffs' Complaint pending administrative review of their claim.
Plaintiffs Pueblo de Cochiti and several individuals brought suit against the Federal Government alleging that negligent design, construction, maintenance and operation of the Cochiti Dam had caused the underground water table under Plaintiffs' land to rise, destroying crops, and rendering some land unusable. The Plaintiffs alleged that the flood damage occurred when the water was impounded behind the dam for purposes other than flood control. The first count of the Complaint requested damages for the Government's negligence under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq. The second count alleged that the Department of Defense, the Department of the Army and the Corps of Engineers abused their discretion in taking no action on Plaintiffs' request that they alter and repair the dam to stop the flooding, and requested two types of relief: First, that this Court issue a declaratory judgment that the agencies abused their discretion in not deciding Plaintiffs' claim, and second, that I issue an injunction compelling those agencies to conduct the repairs requested.
The Defendants moved to dismiss the first count of Plaintiffs' Complaint on the grounds that the Mississippi River Flood Control Act, 33 U.S.C. § 702c, provides complete governmental immunity for all damages caused by flood water from flood control projects. This section of the Act provides in part 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."
The Plaintiffs relied on the subsequent enactment of the Federal Tort Claims Act, arguing that its waiver of sovereign immunity applies to § 702c immunity for damages for flood control. The Plaintiffs also contended that the flood control immunity provisions did not apply, because the flood damage in the present case occurred when the dam was used for purposes other than flood control, and the rising of the underground water table was not "flood water" within the purview of § 702c.
The circuits which have considered the scope of the immunity provided in § 702c are not in agreement, and the issue herein presented is one of first impression in this circuit. Plaintiffs urge this Court to follow the line of authority expressed by Hayes v. United States, 585 F.2d 701 (4th Cir.1978).
The facts in Hayes are remarkably similar to the case at bar. In Hayes, the plaintiffs brought suit on grounds that the government's negligent operation of the Kerr Scott Dam caused flood damage to their crops. The Kerr Scott Dam, like the Cochiti facility, was a dual purpose dam being used both for flood control and for creating a recreational lake. The district court granted the government's motion to dismiss on the grounds that 33 U.S.C. § 702c provided immunity.
The Fourth Circuit Court of Appeals reversed, holding that "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 ... We are thus constrained to hold that dismissal under Rule 12(b)(6) was premature and improper." 585 F.2d at 703.
The other view is expressed in Morici Corporation v. United States, 681 F.2d 645 (9th Cir.1982). The facts in Morici are even closer to the present case than were the facts in Hayes. In Morici, plaintiffs brought suit for flooding caused by the underground seepage of water from a negligently operated dam. The dam was constructed and used for both flood control and recreational purposes, and the plaintiffs pled that the damage occurred while the dam was being operated for recreational, not flood control purposes.
The Court of Appeals upheld the district court's dismissal of the Complaint for failure to state a claim, holding that even if the dam project was being operated at the time of the negligence for a purpose other than flood control, the immunity of § 702c would bar a claim under the Federal Tort Claims Act. Morici further held that if the dam was constructed for purposes other than flood control, no immunity under § 702c could attach, quoting Peterson v. United States, 367 F.2d 271, 276 (9th Cir. 1966). However, if the dam were originally constructed for flood control purposes, it would be immaterial for what purpose the facility was being operated at the time of the flooding. 681 F.2d at 648.
The Tenth Circuit has not yet considered whether governmental immunity bars claims for flood damages caused by negligent operation of a flood control facility for purposes other than flood control. The closest case is Callaway v. United States, 568 F.2d 684, 687 (10th Cir.1978), wherein the count held that § 702c barred recovery for flood damage which occurred during the construction of a dam facility intended for flood control and other purposes. Id. at 687. Callaway does not bind the court in the present case, however, as the court did not address whether governmental immunity under § 702c would attach when the dam was being operated for one of its nonflood control purposes.
Similarly, the recent Supreme Court decision in United States v. James, ___ U.S. ___, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986) does not reach the narrow issues herein presented. In James, the plaintiffs sued the government for injuries which occurred while a dam was being operated for flood control purposes, and the Court held that § 702c barred recovery.
The decision in James is problematic. The Court primarily addressed whether the Federal Tort Claims Act repealed the immunity provisions of § 702c. Finding that it did not, the Court dismissed plaintiffs' claim. The Supreme Court went to considerable lengths to illustrate the broad reach of § 702c immunity:
The starting point in statutory interpretation is `the language of the statute itself.' citation omitted `We assume that the legislative purpose is expressed by the ordinary meaning of the words used.' citation omitted The immunity provision in § 702c, enacted as part of the Flood Control Act of 1928, 33 U.S.C. § 701, et seq., 45 Stat. 434, outlines immunity in sweeping terms: `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,' 33 U.S.C. § 702c (emphasis added). It is difficult to imagine broader language. (emphasis in original). ___ U.S. at ___, 106 S.Ct. at 3121.
However, the Court was careful to point out that the plaintiffs' claim involved negligent action which was related to flood control: "... We have noted that here the District Courts in each case found that the waters were being released from federal flood control facilities to prevent flooding." ___ U.S. at ___ n. 7, 106 S.Ct. at 3122 n. 7. The court could then apply a more narrow interpretation of § 702c to the facts:
... It 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 flood control, as well as to waters that such projects can't control. As both District Courts found, the waters here clearly fall within the statute.
(emphasis added) Id.
The Supreme Court implied that immunity attaches only when the flood water passes through the dam when it is being used for purposes of flood control. This appears to validate the Hayes approach and overrule the Morici doctrine.
However, the Court cited both Morici and Hayes with approval, ignoring that the cases are clearly contradictory:
See Morici Corp. v. United States citation omitted (no immunity for flooding if innundation "wholly unrelated to any Act of Congress authorizing expenditures of federal funds for flood control, or any act undertaken pursuant to such authorization") quoting Peterson v. United States citation omitted; Hayes v. United States citation omitted ("if the plaintiff could prove damage to his farm as the 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 ... (emphasis in original) Id. fn. 7.
The Court deftly avoided specifically disapproving Morici by quoting only that part of the case which did not conflict with Hayes. The implication of footnote 7, given the facts of the case at bar, is that the Court would follow the Hayes rule and allow claims where it is alleged that flood damage occurred when a flood control project was being operated for purposes other than flood control.
Yet, the Court later appears to contradict this implication. The Court rejected plaintiffs' contention that the case was governed by Hayes by distinguishing that case on its facts. The Court then went...
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