E. Ritter & Co. v. Department of Army, Corps of Engineers

• Citation: 874 F.2d 1236
• Decision Date: 03 May 1989
• Docket Number: Nos. 88-1368,88-1399,s. 88-1368
• Parties: E. RITTER & COMPANY, a Corporation, Appellee, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, An Agency of the United States of America, Appellant. E. RITTER & COMPANY, a Corporation, Appellant, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, An Agency of the United States of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1236

874 F.2d 1236

E. RITTER & COMPANY, a Corporation, Appellee, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, An Agency of the

United States of America, Appellant.

E. RITTER & COMPANY, a Corporation, Appellant, v. DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, An Agency of the

United States of America, Appellee.

Nos. 88-1368, 88-1399.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 21, 1988.

Decided May 3, 1989.

A. Doug Chavis, Asst. U.S. Atty., Little Rock, Ark., for appellant.

Paul McNeill, Jonesboro, Ark., for appellee.

Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

E. Ritter & Company (Ritter) sued the United States government, Department of the Army, Corps of Engineers, under the Federal Tort Claims Act. It sought reimbursement for permanent damage to its land caused by erosion. Ritter alleged that the Corps negligently constructed a flood control ditch which runs through the land. The design of the ditch effected the erosion. The district court ¹ awarded Ritter $5600 for lost income, $20,000 for diminution in the value of the land, and $50,000 for the cost of repairs which were necessary to prevent further erosion. We affirm.

I. BACKGROUND

A. Facts

The Rivervale Outlet Ditch (ROD), part of the St. Francis Basin Flood Control Project, borders, for 3.8 miles on the west boundary, a 600-acre tract of Ritter's land. Two thirds of the 600-acre tract drains toward the ROD. The ROD is 9.3 miles long and 150 feet wide, top bank to top bank. The ditch is situated upon, but not centered within, a 400-foot wide easement, a portion of which the United States purchased from Ritter in 1976. The easement extends approximately forty-five feet from the top east bank of the ROD eastward into Ritter's crop land. The language of the easement gives the government the right to "excavate, dredge, cut away and remove any and all land" within the easement.

The 600-acre tract was subject to substantial erosion which formed sixty to sixty-five gullies. The parties stipulated that the cause of the erosion was the runoff of normal rainfall from Ritter's land into the ROD. The erosion also caused annual topsoil loss to increase from 3.8 tons per acre, prior to construction of the ROD, to fifteen tons per acre after construction.

The land was farmed close to the banks of the ROD, and no action was taken by either party to prevent erosion. Since 1936 when major drainage work was implemented by Congress as a means of flood control, the Corps apparently has followed a cost-sharing policy wherein the federal government bears a major portion of the expense of a drainage project and those who benefit from the project share part of the cost. Under this policy, a landowner benefitted by a drainage ditch is responsible for controlling runoff into the ditch. However, this cost-sharing policy was never communicated to Ritter. In addition, on at least four or five occasions, the Corps promised to fix the "washouts" but each time failed to take any remedial action.

B. The District Court Opinion

At trial, Ritter asserted theories of negligence and inverse condemnation. The district court severed the possible inverse condemnation claim, believing that the amount in controversy would exceed $10,000. Under the Tucker Act, the United States Claims Court would have exclusive jurisdiction of such a claim. E. Ritter & Co. v. Department of the Army, Corps of Eng'rs, No. J-C-85-215, slip op. at 1-2 (E.D.Ark. Aug. 31, 1987). The court then analyzed the government's affirmative defenses, the negligence issue, and the resulting damages.

The government initially argued the defense of statutory immunity under 33 U.S.C. Sec. 702c (1982), which provides in part, "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 * * *." The district court held that "the plain meanings of the words 'flood' and 'floodwaters' cannot be stretched far enough" to include the flow of water from normal rainfall, which normal rainfall the parties have stipulated to be the cause of the erosion on Ritter's land. Ritter, No. J-C-85-215, slip op. at 2-3.

The government also argued that the discretionary function exception to the Federal Tort Claims Act (FTCA) prohibited Ritter's cause of action. The district court agreed with the government that if the Corps' decision-making with respect to the ROD was classified as a "planning" decision, then the exception would apply. If, however, the decision was actually an "operational" activity, then the government would be subject to suit under the FTCA. The court did not agree with the government's argument that the decision not to stabilize or maintain the banks of the ROD falls into the "planning" category. The district court determined that this inaction by the Corps was ministerial, not analytical, in nature and thus concluded that the Corps' decision was "clearly" operational. Id. at 4-6.

After dismissing these affirmative defenses, as well as others not at issue here, the district court reviewed the facts and determined that the sole reason for the erosion was the Corps' excavation of the ditch. The court found it "significant" that the amount of erosion was normal prior to construction of the ditch and concluded that the evidence confirmed the severity of the new erosion. The court noted that both parties agreed that the erosion would continue unless affirmative, remedial action was taken. The district court stated that the "critical fact" was the Corps' failure to prevent predictable erosion when preventive measures would have been a minor undertaking. The court concluded that the Corps had refused to take responsibility for erosion control when such responsibility was required of it, and Ritter was not responsible under the Corps' cost-sharing policy because this particular land received no benefit from the ROD. Id. at 9-12.

Assessing damages, the district court ordered the government to compensate Ritter for annual loss from diminished rent, the decline in the fair market value of the land, and $50,000 to be used by Ritter to pursue stabilization of the continuing erosion. On appeal, the government contends that the district court erred in its determination of all of the above issues.

II. DISCUSSION

A. Floodwater Immunity

Discussing the scope of review, Ritter argues that the existence of a flood or flood waters is a question of fact, not to be overturned unless clearly against the preponderance of the evidence. The government contends that the application of section 702c is a question of law subject to de novo review. We review this issue de novo, for two reasons. First, in this circuit, the question of immunity is generally a question of law. See Garionis v. Newton, 827 F.2d 306, 309 (8th Cir.1987). Second, we believe that the question here is not whether, factually, normal rainfall constitutes a flood (for surely it does not), but rather, whether, legally, "flood" and "flood waters," as used in section 702c, encompass a normal rainfall condition. After review of the applicable law, we agree with the district court that they do not.

The government contends that the district judge erroneously held that the Corps is not immune from liability under 33 U.S.C. Sec. 702c. The government argues that the definitions of flood and flood waters have been interpreted broadly enough to include situations involving normal rainfall. Ritter claims that every case relied on by the government is distinguishable.

Decades ago, we noted that the congressional intent of section 702c was to keep the government entirely free from liability when floods occur, despite attempted control by federal flood control projects. National Mfg. Co. v. United States, 210 F.2d 263, 270-71 (8th Cir.), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (1954). More recently, we reiterated that the purpose of 33 U.S.C. Sec. 702c is to "assure the government of absolute immunity for flood control projects so that Congress can safely appropriate the vast sums of money necessary for flood control without fear of further expense should any project itself result in flooding." Portis v. Folk Constr. Co., 694 F.2d 520, 522 (8th Cir.1982) (citing National Mfg., 210 F.2d at 270-71). Furthermore, we have held that "unusual or extraordinary climactic conditions" are not required. Immunity exists for "man-made" floods as well as natural flooding. Burlison v. United States, 627 F.2d 119, 121 (8th Cir.1980). While these cases recognize that the governmental immunity for flood damage is expansive, they do not extend immunity to every damage caused by water.

A recent Supreme Court case, United States v. James, 478 U.S. 597, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986), seems to expand the definitions of the terms "flood" and "flood waters." James involved two cases with similar fact patterns: plaintiffs' decedents were engaged in recreational water activities on a lake which had been created as a result of flood control projects, and they drowned when the flood gates were opened without warning and the velocity of the water sucked them through the dam outlet. Id. at 599-601, 106 S.Ct. at 3118-19. The issue specifically addressed by the Court was whether section 702c barred liability for personal injuries caused by the government's negligent failure to warn of dangers caused by the release of flood waters from federal flood control projects, where the United States would otherwise be responsible under the FTCA. Id. at 598-99, 106 S.Ct. at 3118. The Court stated:

Nor do the terms "flood" and "flood waters" create any uncertainty in the context [of this case]. The Act concerns flood control projects designed to carry flood waters. It is thus clear from Sec. 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...