Stover v. United States

• Decision Date: 23 April 1962
• Docket Number: Civ. No. 7483,7675-7677.,7486,7506,7664-7670,7673,7672,7635,7545
• Citation: 204 F. Supp. 477
• Parties: Raymond L. STOVER et al., Guy L. Williams et al., J. Eldred Audit et al., Anna Sperry et al., Tamotsu Tsutsui et al., Gabriel Alvarez et al., Floyd Ardell Adams et al., John A. Bergman et al., B. J. Ukropina et al., James Bozidar Ukropina, etc., Joan Darlene Ukropina, etc., Harlan M. Van Dyke et al., Howard F. Van Dyke et al., Vandy Farms, a California corp., Chris Bessler, William Nicholas, B. Neil Johnson, etc., Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. STATE OF CALIFORNIA, Third-Party Defendant and Third-Party Plaintiff, v. LEVEE DISTRICT NO. 1 OF SUTTER COUNTY, Third-Party Defendant in Civil Nos. 7483, 7486, 7506, 7545, 7635, 7664 and 7665, and Reclamation District No. 784, Third-Party Defendant in Civil No. 7664 only, and Reclamation District No. 1001, Third-Party Defendant in Civil Nos. 7666, 7667, 7668, 7669, 7670, 7672, 7673, 7675, 7676 and 7677.
• Court: U.S. District Court — Northern District of California

204 F. Supp. 477

Raymond L. STOVER et al., Guy L. Williams et al., J. Eldred Audit et al., Anna Sperry et al., Tamotsu Tsutsui et al., Gabriel Alvarez et al., Floyd Ardell Adams et al., John A. Bergman et al., B. J. Ukropina et al., James Bozidar Ukropina, etc., Joan Darlene Ukropina, etc., Harlan M. Van Dyke et al., Howard F. Van Dyke et al., Vandy Farms, a California corp., Chris Bessler, William Nicholas, B. Neil Johnson, etc., Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. STATE OF CALIFORNIA, Third-Party Defendant and Third-Party Plaintiff, v. LEVEE DISTRICT NO. 1 OF SUTTER COUNTY, Third-Party Defendant in Civil Nos. 7483, 7486, 7506, 7545, 7635, 7664 and 7665, and Reclamation District No. 784, Third-Party Defendant in Civil No. 7664 only,

and

Reclamation District No. 1001, Third-Party Defendant in Civil Nos. 7666, 7667, 7668, 7669, 7670, 7672, 7673, 7675, 7676 and 7677.

Civ. Nos. 7483, 7486, 7506, 7545, 7635, 7664-7670, 7672, 7673, 7675-7677.

United States District Court N. D. California, N. D.

April 23, 1962.

Perkins & Carr, Sacramento, Cal., and Emmett J. Seawell, Ivan J. Sperbeck, Oakland, Cal., for Raymond L. Stover and others.

Benjamin H. Brown, Sacramento, Cal., Goldstein, Barceloux & Goldstein, Chico, Cal., and Malone, Dennis & Schottky, Sacramento, Cal., for B. J. Ukropina and others.

Benjamin H. Brown, Sacramento, Cal., and Goldstein, Barceloux & Goldstein, Chico, Cal., for John A. Bergman and others.

Benjamin H. Brown and Malone, Dennis & Schottky, Sacramento, Cal., for Howard F. Van Dyke and others.

Goldstein, Barceloux & Goldstein, Chico, Cal., for Gabriel Alvarez and others.

Simeon S. Reibin, Sacramento, Cal., for B. Neil Johnson.

William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., for the United States.

Stanley Mosk, Atty. Gen., Robert Burton, Deputy Atty. Gen., Sacramento, Cal., for State of Cal.

Hewitt & McBride, Yuba City, Cal., for Levee Dist. No. 1 of Sutter County.

Steel & Arostegui, Marysville, Cal., for Reclamation District No. 784.

Hewitt & McBride, Yuba City, Cal., for Reclamation Dist. No. 1001.

HALBERT, District Judge.

In these actions for damages (amounting to some $13,000,000) resulting from the inundations of December, 1955, in the Marysville-Yuba City area, the United States has asserted several affirmative defenses (See: Huffmaster v. United States, D.C., 186 F.Supp. 120).¹ Jurisdiction is asserted under the Federal Tort Claims Act (Title 28 U.S.C. §§ 1346 and 2671 et seq.). The asserted causes of action are for negligence in the planning, design, construction, maintenance and operation of the levees and other works comprising the Sacramento River Flood Control Project, of which the Feather River and its tributaries are part.

Pursuant to a pre-trial order entered in this action on November 21, 1961, trial has been held on the limited issue raised by the affirmative defense of the United States involving the provisions of Title 33 U.S.C.A. § 702c.² I am now called upon to resolve this issue in the light of the facts adduced at the trial and the law applicable to those facts.

I. The Facts

The Feather River basin is located on the western slope of the Sierra Nevada mountain range, northeasterly from the Sacramento Valley in California. The basin includes the drainage areas of the Feather River and its tributaries, principally the Yuba and Bear Rivers, and covers approximately 5,900 square miles, ranging in elevation from about 30 feet to about 10,000 feet. Approximately 116,000 acres of land were inundated by the three major rivers of the basin during the period of December 23-24, 1955. Of these 116,000 acres, approximately 85,000 were inundated by waters flowing through breaks in three levees.

One of these breaks, referred to as the Gum Tree break, took place in the right levee of the Feather River just downstream from Yuba City (and from the confluence of the Feather and Yuba Rivers), and was a specific factor in the inundation of the town itself. A second break occurred in the left levee of the Feather River just downstream from the town of Nicolaus (and from the confluence of the Feather and Bear Rivers), and is known as the Nicolaus break. A third area of inundation, caused by a series of breaks, occurred to the west of the right levee of the Western Pacific Interceptor Canal, near the town of Rio Oso (and north of the Bear River). These breaks are referred to, collectively, as the Western Pacific Interceptor Canal breaks.

During the early part of December, 1955, two storms swept over the entire Feather River basin (As used hereinafter, the Feather River basin refers to the drainage areas of the Feather, Yuba and Bear Rivers.). By the 10th of December, many rain-gauging stations in all three drainage areas had received 70% of the normal precipitation for the entire month.³ This early rainfall prepared the ground for the later disastrous events, by soaking the soil to a near saturation point.

On December 16, the first major storm of a series arrived in the basin. It was a warm-type storm and extended over the entire area, climaxing in heavy rain on the 18th and 19th. Snow fell during this storm only at elevations above 6,000 feet. Since the soil had been primed earlier, rivers and streams of the area rose sharply. A second major storm followed immediately on the heels of the first, reaching all elevations of the basin on the 21st and 22nd. Because this storm reached all elevations, there was some snow melt resulting from the warm rainfall. This second storm was followed immediately by a third (the warmest of the series) on the 22nd and 23rd of the month. This third storm also brought warm rainfall to high elevations, resulting in considerable snow melt.

A comparison of the precipitation received in December, 1955, with that recorded over the previous 50 years at specified locations within the Feather River basin indicates the abnormal extent of rainfall which preceded the inundations.⁴ During the period of one week preceding the levee breaks, the Feather River basin received nearly 200% of the monthly normal precipitation (This in a month that is regularly rainy).⁵ This deluge arrived at a time when the ground was still saturated from the storms of earlier in the month, which meant that the amount of water run-off would be greatly increased as the capacity of the ground for water absorption decreased.

Turning away from a comparison with prior averages and norms, and looking to previous specific weather conditions which had caused floods, the month of December, 1955, appears as a singularly extraordinary period of weather phenomena. The records of the 16 rain-gauging stations with records extending back at least to 1915 were received in evidence, with a tabulation of the "maximum annual five consecutive day precipitation amounts" indicated. Of these 16 stations, the five consecutive day maximum precipitation amounts in December, 1955 (the particular period involved was, in most cases, December 19 through December 23⁶), were the highest of record at 10 stations, the second highest at 4 stations, the third highest at 1 station, and the fourth highest at 1 station. At the stations where December, 1955, was not the highest of record, there was no other single year in which the maximum for those stations coincided during the same storm period.⁷

In addition to the extraordinary precipitation which took place during the month of December, 1955, and connected therewith, was the magnitude of the streamflow emerging from the mountains and foothills onto the valley floor. The readings of three of the stream-gauging stations which recorded the flow are particularly significant, since they are located at the foothill line of the streams that flow into the lower basin, rather than up in the watershed, and are relatively unaffected by the upstream works of man.⁸

During the month of December, 1955, the stream flow of the Feather River, at the gauging station near Oroville, increased from a rate of approximately 5,000 c. f. s. (cubic feet per second) at the beginning of the month, through successively higher peaks which culminated in a peak flow of 203,000 c. f. s. on December 23. Similar increases in stream flow occurred on the Yuba River (peaking at 148,000 c. f. s. on December 23) and the Bear River (peaking at 33,000 c. f. s. on December 22). These flows were the maximum, or near the maximum, of record. The Feather River near Oroville had the second highest peak during the 59 years of record.⁹ On the Yuba River, the flood peak was some 40% higher than had occurred during the 57 years of record prior to December, 1955. On the Bear River, the flood peak was the highest in 56 years of record.

Correlative with the recordings of streamflow are the records of the river stage levels during this period. Similar findings attend a reading of such records. In each case, the stage level at the gauging stations of the Feather, Yuba and Bear Rivers, and their tributaries, were either at or near the highest which had been recorded.¹⁰

Although the most definitive studies were made at the three above-mentioned gauging stations, similar results were noted at all of the gauging stations in the lower Feather River basin.

The general situation was described by the following summary, given by Professor Ray K. Linsley, Executive Head of the Department of Civil Engineering at Stanford University:

"I think this was primarily a flood caused by heavy rains of the moderate-intensity-long-duration type as compared to flash floods caused by very intensive thunderstorms. The rains resulted in run-off, an increase of stream flow from a low flow on the Feather River at the beginning of the month of under 5,000 cubic feet per second to a peak of slightly over 200,000 cubic feet per second, which hydrologists would certainly consider a flood event. The channels were filled with water above their natural banks; water was on the levees, and again *

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