No. 99-859 

In the Supreme Court of the United States 

CENTRAL GREEN CO., PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES IN OPPOSITION 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

ROBERT S. GREENSPAN 
IRENE M. SOLET 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether 33 U.S.C. 702c, which provides that “[n]o 
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,” bars petitioner’s tort action aris- 
ing from property damage sustained as a result of 
allegedly negligent construction and maintenance of an 
irrigation canal that is part of a multi-purpose federal 
flood control project. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 2 

Argument ........................................................................................ 4 

Conclusion ....................................................................................... 17 

TABLE OF AUTHORITIES 

Cases: 

Bailey v. United States, 35 F.3d 1118 (7th Cir. 

1994) ......................................................................................... 

14, 16 

Boudreau v. United States, 53 F.3d 81 (5th Cir. 

1995), cert. denied, 516 U.S. 1071 (1996) ....................... 

12, 17 

Boyd v. United States, 881 F.2d 895 (10th Cir. 

1989) ......................................................................................... 13, 15 

Cantrell v. United States, 89 F.3d 268 (6th Cir. 

1996) ......................................................................................... 14 

Dawson v. United States, 894 F.2d 70 (3d Cir. 

1990) ......................................................................................... 12 

Dewitt Bank & Trust Co. v. United States, 878 

F.2d 246 (8th Cir. 1989), cert. denied, 494 U.S. 

1016 (1990) ............................................................................... 

12, 14 

E. Ritter & Co. v. Department of the Army, 874 F.2d 

1236 (8th Cir. 1989) ................................................................ 

13 

Fisher v. United States Army Corps of Engineers, 

31 F.3d 683 (8th Cir. 1994) ................................................... 

12 

Fryman v. United States, 901 F.2d 79 (7th Cir.), 

cert. denied, 498 U.S. 920 (1990) ......................................... 

12 

Hayes v. United States, 585 F.2d 701 (4th Cir. 

1978) ......................................................................................... 3 

Henderson v. United States, 965 F.2d 1488 (8th 

Cir. 1992) ............................................................................. 13, 15 

(III) 

IV 

Cases—Continued: Page 

Holt v. United States, 46 F.3d 1000 (10th Cir. 

1995) ................................................................................. 

12, 15-16 

Islands, Inc. v. United States Bureau of Rec- 
lamation, 64 F. Supp. 2d 966 (E.D. Cal. 1999) ................ 

7 

Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 

1999) ............................................................................... 

13, 16, 17 

McCarthy v. United States, 850 F.2d 558 (9th Cir. 

1988), cert. denied, 489 U.S. 1052 (1989) ........................... 

8 

Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th 

Cir. 1989) ................................................................................. 

13 

Morici Corp. v. United States, 681 F.2d 645 (9th Cir. 

1982), aff’ g 491 F. Supp. 466 (E.D. Cal. 1980) .................. 

3, 7, 8 

Natural Resources Defense Council v. Houston, 

146 F.3d 1118 (9th Cir. 1998), cert. denied, 119 S. Ct. 

1754 (1999) ............................................................................... 

10-11 

Reese v. South Fla. Water Management Dist., 

59 F.3d 1128 (11th Cir. 1995) ............................................... 

12 

Thomas v. United States, 959 F.2d 232 (4th Cir. 

1992) ......................................................................................... 12, 16 

United States v. Iron Mountain Mines, Inc., 881 

F. Supp. 1432 (E.D. Cal. 1995) ............................................. 

7 

United States v. James, 478 U.S. 597 (1986) ................. 

3, 5, 6, 

7, 11, 15, 17 

Washington v. East Columbia Basin Irrigation 
Dist., 105 F.3d 517 (9th Cir.), cert. denied, 522 U.S. 

948 (1997) ....................................................................... 

4, 5, 8, 14 

Williams v. United States, 957 F.2d 742 (10th Cir. 

1992) ......................................................................................... 13 

Zavadil v. United States, 908 F.2d 334 (8th Cir. 1990), 

cert. denied, 498 U.S. 1108 (1991) ....................................... 

12 

Statutes and regulations: 

Federal Tort Claims Act, 28 U.S.C. 2671 ............................. 

2 

Flood Control Act of 1928, 33 U.S.C. 702c ............................ passim 

V 

Miscellaneous: Page 

Dep’t of the Interior, Central Valley Basin, S. Doc. 

No. 113, 81st Cong., 1st Sess. (1949) .......................... 2, 9, 10, 11 

In the Supreme Court of the United States 

No. 99-859 

CENTRAL GREEN CO., PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1-9) 
is reported at 177 F.3d 834. The opinion of the district 
court (Pet. App. 10-20) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
May 20, 1999. A petition for rehearing was denied on 
September 7, 1999. Pet. App. 21. The petition for a 
writ of certiorari was filed on November 19, 1999. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1). 

(1) 

2 

STATEMENT 

1. Petitioner, Central Green Company, owns pista- 
chio orchards in Madera County, California. Pet. App. 

2. The Madera Canal, which is part of the Central 
Valley Project (CVP), a multi-purpose water project 
constructed by the United States and authorized by 
Congress for purposes including flood control, runs 
through petitioner’s property. Ibid. The canal supplies 
water for irrigation from Millerton Lake, a reservoir 
created by Friant Dam on the San Joaquin River. 
Dep’t of the Interior, Central Valley Basin, S. Doc. No. 
113, 81st Cong., 1st Sess. 130-131 (1949). Like the 
Madera Canal, Millerton Lake and Friant Dam are part 
of the CVP. Ibid. 

2. Petitioner brought this action against the United 
States pursuant to the Federal Tort Claims Act, 28 
U.S.C. 2671 et seq., in the United States District Court 
for the Eastern District of California, alleging that 
negligent design, construction, or maintenance of the 
Madera Canal by the federal government resulted in 
leakage of water from the canal. That leakage, which in 
turn caused surface and subsurface flooding of peti- 
tioner’s property, allegedly caused harm to petitioner’s 
pistachio orchards and increased petitioner’s farming 
and harvesting costs. Pet. App. 2. 

The United States moved for judgment on the plead- 
ings, arguing, inter alia, that the United States is 
immune from liability under the Flood Control Act of 
1928, 33 U.S.C. 702c et seq. Section 702c provides in 
pertinent 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. 

33 U.S.C. 702c. 

3 

The district court granted the government’s motion 
for judgment on the pleadings. Pet. App. 20. Rejecting 
petitioner’s contention that Section 702c did not apply 
because the waters carried through the Madera Canal 
are used for irrigation purposes and not for flood con- 
trol, the district court observed that “[t]he legislative 
history [of Section 702c] * * * is very clear that the 
scope of the immunity is very broad.” Id. at 19. The 
district court concluded that petitioner “ha[d] cited 
nothing that allows the undermining of the scope of that 
immunity when a multi-purpose project is involved.” 
Id. at 19-20. 

3. The court of appeals affirmed. Pet. App. 1-9. The 
court recognized that Section 702c “confers broad im- 
munity for claims arising from the design, operation, or 
management of federally authorized flood control pro- 
jects.” Id. at 2. Petitioner’s “sole argument” against 
application of the immunity here, according to the 
court, was that the water that damaged its property 
was not “flood water” within the meaning of the statute 
because it was held “for irrigation purposes rather 
than flood control.” Id. at 3. The Ninth Circuit 
concluded that its own decisions, both before and after 
this Court’s decision in United States v. James, 478 
U.S. 597 (1986), compelled rejection of that argument. 
Pet. App. 5-8. 

The court of appeals identified what it characterized 
as an “apparent contradiction” in James itself regard- 
ing whether application of the immunity created by 
Section 702c depends upon the specific purpose for 
which water within a federal flood control project is 
being used at the time of an injury. Pet. App. 4 (noting 
this Court’s favorable citation in James of both Morici 
Corp. v. United States, 681 F.2d 645 (9th Cir. 1982), and 
Hayes v. United States, 585 F.2d 701 (4th Cir. 1978)). 

4 

The court stated that, in the wake of James, “[t]he 
circuits disagree over the degree of relation the injury 
must have with flood control activities before immunity 
will attach.” Ibid. 

The court concluded, however, that its own prior 
decisions—which confer Section 702c immunity to 
injuries “not wholly unrelated” to flood control— 
dictated rejection of petitioner’s contention that the 
purpose for which the water was used at the time of the 
injury should be viewed as controlling. Pet. App. 8. Al- 
though the court expressed uncertainty about whether 
its earlier decisions had interpreted James too broadly 
(id. at 7), the court observed that its longstanding “not 
wholly unrelated” test was supported both by Con- 
gress’s intent to confer “broad immunity” in Section 
702c and by the similar approaches adopted by several 
other circuits. Id. at 8. 

ARGUMENT 

Petitioner broadly asserts a conflict among the 
circuits on the meaning of 33 U.S.C. 702c. Although 
the courts of appeals have used different language in 
analyzing claims of immunity under this statute, no 
court of appeals has disagreed with the holding of the 
court below: that the federal government is immune 
from suit for property damages caused when flood 
waters escape from a multi-purpose project with flood- 
control as one of its purposes. In all relevant respects, 
this case is indistinguishable from Washington v. East 
Columbia Basin Irrigation District, 105 F.3d 517 (9th 
Cir.), cert. denied, 522 U.S. 948 (1997). In that case, as 
in this one, (1) the waters that caused the property 
damage were from an irrigation canal that was part of a 
multi-purpose project with flood control as one of its 
purposes; and (2) the plaintiff landowner could not 

5 

demonstrate that any other circuit would have ruled in 
its favor. This Court denied the petition for a writ of 
certiorari. 522 U.S. 948 (1997). Since that time, there 
has been no significant doctrinal development in the 
cases construing Section 702c that would warrant a 
grant of certiorari. The only difference between this 
case and East Columbia Basin is that the Ninth Circuit 
panel in this case openly expressed its disagreement 
with circuit precedent affording immunity. See Pet. 
App. 8-9. That is not a reason to grant further review. 

1. The decision below correctly construes the Flood 
Control Act immunity provision, 33 U.S.C. 702c, in light 
of this Court’s decision in United States v. James, 478 
U.S. 597 (1986). 

a. When Congress embarked upon a multi-decade 
program to construct dams and other structures for 
flood control in 1928, one of the issues it faced was the 
scope of the federal government’s immunity from lia- 
bility for damages resulting from its flood control activi- 
ties. See James, 478 U.S. at 607-608. Congress limited 
the government’s financial exposure by including in the 
1928 legislation a provision that “[n]o 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. 

In James, this Court broadly construed that clear 
assertion of immunity to extend both to property dam- 
age and to personal injury. 478 U.S. at 605. The Court 
interpreted the terms “ flood and flood waters” to apply 
to “all waters contained in or carried through a federal 
flood control project for purposes of or related to flood 
control, as well as to waters that such projects cannot 
control.” Ibid. The “sweeping language” of Section 
702c and the “equally broad and emphatic language” of 
its legislative history supported recognition of a broad 

6 

immunity for the United States. Id. at 608. Accord- 
ingly, the Court concluded, “the legislative history fully 
supports attributing to the unambiguous words of the 
statute their ordinary meaning.” Ibid. 

b. This case involves property damage caused di- 
rectly by water escaping from a federal flood control 
project. It thus lies squarely within the plain language 
of Section 702c and the decision in James. The statute 
provides immunity for “any damage from or by floods 
or flood waters at any place.” 33 U.S.C. 702c (emphasis 
added). This Court made clear in James that “flood[s]” 
and “flood waters” include “all waters contained in or 
carried through a federal flood control project for pur- 
poses of or related to flood control, as well as to waters 
that such projects cannot control.” 478 U.S. at 605 
(emphasis added). That language encompasses pro- 
perty damage caused by waters escaping through seep- 
age from a canal that is part of a federal flood control 
project. Moreover, protection of the United States 
from liability for flooding of land caused by alleged 
construction failures of a federal flood control project 
was central to Congress’s concern in creating an im- 
munity for federal flood control activities. See id. at 
606-608; see also id. at 617 (Stevens, J., dissenting) 
(arguing that the immunity under Section 702c should 
extend only to “overflow damage to land”). Nothing in 
this Court’s decision in James supports petitioner’s 
contention that an entire project, one of whose pur- 
poses is flood control, may be subdivided into parts that 
would not be immune from liability for damage caused 
by flood waters. 

2. Petitioner nevertheless contends that the court 
of appeals’ decision misreads James by effectively elim- 
inating any requirement for a factual nexus between an 
injury and federal flood control activities to support 

7 

immunity under Section 702c. See Pet. 14.1 That 
contention is incorrect: the injury complained of in this 
suit (property damage) is asserted to have been proxi- 
mately caused by the negligent construction of an 
irrigation canal that performs flood control functions. 
The extensive Central Valley Project (CVP) has been 
the subject of Section 702c litigation in the Ninth Cir- 
cuit and its constituent district courts on many 
occasions, and has produced judicial decisions in which 
the project’s flood control function and the relationship 
of that function to the project as a whole have been 
described. See, e.g., Morici Corp. v. United States, 681 
F.2d 645, 648 (9th Cir. 1982), aff ’g 491 F. Supp. 466 
(E.D. Cal. 1980); Islands, Inc. v. United States Bureau 
of Reclamation, 64 F. Supp. 2d 966, 969 (E.D. Cal. 
1999); United States v. Iron Mountain Mines, Inc., 
881 F. Supp. 1432, 1439 (E.D. Cal. 1995). Those cases 
expressly rely on the integrated operation of the CVP’s 
many components in finding immunity under Section 
702c, and they give content to the court of appeals’ 
ruling that the damage in question here is “not wholly 
unrelated to flood control.” Pet. App. 8. 

Indeed, as long ago as Morici, cited favorably by this 
Court in James, 478 U.S. at 605 n.7, the Ninth Circuit 
and the district court described the factual nexus 
between the project’s flood control activities and its 

1 Petitioner suggests (at 13-14) that in past filings we have 
drawn an “illusory” distinction between injuries traceable to a 
flood control project and those caused by flood control activities. 
The point of that distinction is that, when the government’s flood 
control activities are not the proximate cause of the injury, courts 
of appeals have employed a variety of different linguistic formulas 
to determine whether the government enjoys immunity from suit 
under 33 U.S.C. 702c but those different tests have not caused 
different results. See note 6, infra. 

8 

other purposes in extending the immunity to damages 
caused by waters escaping from an irrigation com- 
ponent of the CVP. As the district court in the Morici 
case recognized, “[t]he Central Valley Project is oper- 
ated as an integrated whole, rather than as a number of 
separate, isolated parts, because water releases at any 
one facility must be coordinated with releases at other 
facilities in that river basin.” Morici v. United States, 
491 F. Supp. at 490. The analysis in Morici formed the 
basis for the Ninth Circuit’s more recent decision in 
Washington v. East Columbia Basin Irrigation 
District, 105 F.3d 517 (9th Cir.), cert. denied, 522 U.S. 
948 (1997), which involved waters escaping from an irri- 
gation component of another multi-purpose federal 
water project, the Columbia Basin Project.2 

The circumstances of Morici are replicated here. The 
inherent nexus between flood control and damage 
caused by waters escaping from the integrated, multi- 
purpose CVP is evident from a Department of the 
Interior report prepared shortly after Friant Dam, 

2 In its only published decision applying Section 702c since 
James where the damage was not caused by escaping waters—and 
where the nexus between the injury and flood control therefore 
could not be assumed—the Ninth Circuit explicitly acknowledged 
its reliance on the existence of such a linkage in concluding that the 
government was immune. The plaintiff in McCarthy v. United 
States, 850 F.2d 558 (9th Cir. 1988), cert. denied, 489 U.S. 1052 
(1989), was injured in a diving accident that occurred in a lake that 
was part of a multi-purpose federal flood control project. In 
determining that Section 702c protected the government from 
liability, the court of appeals noted that the level of water in the 
lake was monitored on a daily basis to calibrate discharges for 
flood control purposes, and that therefore waters in the project 
“for purposes related to flood control were a substantial factor 
in bringing about McCarthy’s injuries.” 850 F.2d at 561-562 
(emphasis added). 

9 

Millerton Lake, and the Madera Canal were placed in 
operation. See Dep’t of the Interior, Central Valley 
Basin, S. Doc. No. 113, 81st Cong., 1st Sess. (1949). The 
report states that levees—the primary method of 
flood control in California’s Central Valley before 
construction of the CVP—would “advantageously be 
supplemented by the operation of multiple-purpose 
reservoirs and irrigation canals.” Id. at 162 (emphasis 
added). The role of the project’s various components in 
achieving that flood control benefit was explained as 
follows: 

Reservoirs would be used to store flood flows until 
they could be released at rates within the capacity 
of the channels below, or until they could be used 
to meet irrigation requirements. Irrigation canals in 
some cases would be used to advantage to carry a 
portion of the flood flows away from the danger 
zones to areas where the water could be used bene- 
ficially. Such use of multiple-purpose structures for 
flood control is an important factor in the compre- 
hensive plan for basin development. 

Ibid. (emphasis added). 

The report further explained that two sorts of floods 
occur in the Central Valley—those caused by rain and 
those caused by snow-melt. S. Doc. No. 113, supra, at 
162. Both are controlled by maintaining sufficient water 
storage capacity in reservoirs behind dams. Ibid. 
When such storage space is used to store a rain flood, 
“it must be emptied as rapidly as possible” to make 
room for future, unpredictable rains. Ibid. Thus, “stor- 
age space reserved for such floods cannot be used for 
conservation [i.e., irrigation] until after the rain-flood 
season.” Ibid. The volume of snow-melt in any given 
year can be predicted several months in advance, 

10 

however, allowing operators of the CVP “to empty 
sufficient storage space in advance of the snow-melt 
run-off to prevent or reduce flood damage, with 
reasonable assurance that the reservoir will fill before 
the end of the storage season.” Ibid. Thus, “[s]torage 
required for control of snow-melt run-off * * * is 
essentially conservation storage, in that it is used to 
capture and retain water until needed for irrigation.” 
Ibid. (emphasis added). 

The report made clear that this is precisely how 
Friant Dam, Millerton Lake, and the Madera Canal 
operate. “Both rain and snow-melt floods on the main 
San Joaquin River and its principal tributaries * * * 
cause damage on the flood plains along the rivers, and 
in the Sacramento-San Joaquin Delta.” S. Doc. No. 113, 
supra, at 164. Levees along the river were “inadequate 
to control even moderate floods,” but “Millerton Lake 
(Friant) Reservoir on the San Joaquin River * * * 
now offers additional protection.” Ibid. The report 
estimated that “the average damage from recurrent 
floods [along the San Joaquin River] would be 
$4,215,000 annually, under conditions prior to the 
beginning of the operation of Millerton Lake in 1944” 
but that “[t]his reservoir will reduce the annual damage 
by $279,000.” Ibid. That flood control benefit directly 
results from the diversion of the waters of the San 
Joaquin River into irrigation canals fed by Millerton 
Lake—including the Madera Canal, which runs through 
petitioner’s property. See id. at 130 (“the run-off of San 
Joaquin River will be made available for diversion at 
Friant Dam to Friant-Kern and Madera canals”). 
Indeed, virtually the entire flow of the San Joaquin 
River is diverted into those canals. Natural Resources 
Defense Council v. Houston, 146 F.3d 1118, 1123 (9th 
Cir. 1998) (“[s]ince the time that the dam was com- 

11 

pleted, the Friant unit has impounded the San Joaquin 
River water behind the Friant dam and diverted the 
water to surrounding irrigation districts,” leaving “a 
dry stretch of San Joaquin riverbed” below the dam), 
cert. denied, 119 S. Ct. 1754 (1999).3 

The court of appeals thus did not stray from this 
Court’s definition of “flood waters” in James when it 
applied that definition to the water seeping onto peti- 
tioner’s land from the Madera Canal. Not only was that 
seepage caused by waters that the CVP “[could] not 
control,” but those waters were also “contained in or 
carried through a federal flood control project for pur- 
poses of or related to flood control.” James, 478 U.S. at 
605 (emphasis added). Thus, contrary to petitioner’s 
assertions, the court of appeals has not applied Section 
702c without regard to whether a factual nexus exists 
between the injury in question and the government’s 
flood control activities. 

3. The decision below is entirely consistent with the 
decisions of the other circuits articulating, in the wake 
of James, some form of factual nexus requirement as an 
essential predicate to immunity under Section 702c. 
When the various other circuits have concluded that the 
particular facts before them satisfy that nexus require- 
ment, they have held the government immune from 

3 As the foregoing references to S. Doc. 113 demonstrate, the 
court of appeals was incorrect in stating that “[t]he [Madera] canal 
is not a flood control project and serves no flood control purpose.” 
Pet. App. 9 (quoted in Pet. 22). 

12 

suit.4 In other cases, involving injuries more remotely 
related to federal flood control efforts, they have held 

4 Reese v. South Fla. Water Management Dist., 59 F.3d 1128, 
1130 (11th Cir. 1995) (government immune from suit in drowning 
at federal flood control lake caused by opening of water control 
device, noting that “periodic release of water is fundamental to the 
operation of a flood control project”); Boudreau v. United States, 
53 F.3d 81, 84 (5th Cir. 1995) (based on facts of case, government 
immune from suit where there was a “sufficient association” be- 
tween injury to recreational boater during Coast Guard rescue and 
activities of flood control), cert. denied, 516 U.S. 1071 (1996); Holt 

v. United States, 46 F.3d 1000, 1004 (10th Cir. 1995) (government 
immune from suit where there was a “sufficient nexus” between 
car accident and mist, which was created by water released from 
flood control project’s dam and which caused an ice slick on an 
adjacent road); Fisher v. United States Army Corps of Engineers, 
31 F.3d 683, 684 (8th Cir. 1994) (government immune from suit 
where shallow level of water as a result of operation of flood 
control project was a “substantial factor” in a recreational diving 
accident); Thomas v. United States, 959 F.2d 232 (4th Cir. 1992) 
(Table) (government immune from suit in recreational diving acci- 
dent occurring at lake which, despite its commercial uses, had flood 
control uses as well and which was “monitored and maintained 
daily by the Army for the purpose of controlling floods”); Zavadil 

v. United States, 908 F.2d 334, 336 (8th Cir. 1990) (government 
immune from suit where water level at Gavins Point Dam, a part 
of a flood control project, was a “substantial factor” in a recrea- 
tional diving accident), cert. denied, 498 U.S. 1108 (1991); Fryman 

v. United States, 901 F.2d 79, 82 (7th Cir.) (government immune 
from suit for injuries sustained at lake created as part of a flood 
control project which “increase[d] the probability” of injury), cert. 
denied, 498 U.S. 920 (1990); Dawson v. United States, 894 F.2d 70 
(3d Cir. 1990) (government immune from suit for recreational 
swimming accident caused by unsafe depth of water due in part to 
releases of water for flood control purposes); Dewitt Bank & Trust 
Co. v. United States, 878 F.2d 246, 247 (8th Cir. 1989) (government 
immune from suit where management of shallow waters at a flood 
control project was a “substantial factor” in causing injuries 

13 

the government subject to suit.5 

Petitioner is incorrect (Pet. 18-23) that the tests arti- 
culated by other courts would produce a different result 
on the facts here.6 In Cantrell, for example, a fisher- 

sustained in diving accident), cert. denied, 494 U.S. 1016 (1990); 
Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th Cir. 1989) 
(government immune from suit for drowning caused by deep water 
in a flotation channel that had been excavated for a flood control 

project). 

5 See Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) (no 
immunity where injury occurred on dry land due to a condition 
with no association to flood control); Cantrell v. United States, 89 
F.3d 268 (6th Cir. 1996) (no immunity from claim by recreational 
boater injured by allegedly negligent driver of Army Corps of 
Engineers’ boat); Henderson v. United States, 965 F.2d 1488 (8th 
Cir. 1992) (no immunity in death of fisherman where drowning was 
caused by release of water, at direction of private power company, 
from dam operated for hydroelectric power generation); Boyd v. 
United States, 881 F.2d 895 (10th Cir. 1989) (no immunity for 
allegedly negligent failure to warn swimmers of hazard from boats, 
in death of snorkeler struck by privately operated power boat at 
flood control lake); E. Ritter & Co. v. Department of the Army, 874 
F.2d 1236 (8th Cir. 1989) (no immunity for erosion caused by rain 
waters that had not yet come in contact with flood control project); 
see also Williams v. United States, 957 F.2d 742 (10th Cir. 1992) 
(concluding, on basis of record evidence and language of authoriz- 
ing statute, that particular project was not a flood control project). 

6 Although more tentatively than petitioner would have it (see 
id. at 18), the court of appeals similarly observed that the outcome 
“would probably” be different in certain other circuits. Pet. App. 

9. But petitioner and the court below disagree about which ones. 
Compare Pet. 18 and Pet. App. 9. As we have previously noted in 
other briefs in opposition to certiorari, the courts of appeals 
employ slightly different linguistic formulations to determine 
whether the requisite factual nexus between the injury and the 
government’s flood control project or activities has been estab- 
lished. See, e.g., Br. in Opp. at 9 n.5, Paulk v. United States, No. 
99-390 (filed Nov. 3, 1999). But here, as in those cases, the same 

14 

man sued the government for an injury from a crash by 
an Army Corps of Engineers boat that was transport- 
ing him after his own boat malfunctioned. In denying 
the government’s assertion of Section 702c immunity, 
the court of appeals ruled that there must be a nexus 
between the allegedly tortious government conduct and 
flood control. See Cantrell v. United States, 89 F.3d 
268, 273 (6th Cir. 1996). Contrary to petitioner’s 
suggestion (at 18-19), that test is satisfied in this case. 
Petitioner’s complaint alleged that the United States 
had negligently “designed,” “maintained,” and “oper- 
ated” a canal that is part of an integrated multi-purpose 
flood control project, and that the government’s negli- 
gence caused waters escaping from that project to 
damage petitioner’s property. C.A. E.R. 4-8 (Compl. ¶¶ 
16-34). Thus, even if Section 702c in all circumstances 
required a nexus between the allegedly tortious act and 
flood control activities, that nexus requirement would 
be satisfied here. See pp. 8-11, supra. 

result would have been reached under any of the prevailing 
approaches. Thus, the property damage injury here was “not 
wholly unrelated” to a project with flood control as one of its 
purposes. Pet. App. 8; Washington v. East Columbia Basin 
Irrigation Dist., 105 F.3d 517, 520 (9th Cir.), cert. denied, 522 U.S. 
948 (1997). Likewise, “governmental control of flood waters was a 
substantial factor in causing” petitioner’s property damage, since 
releases of the flood control waters from Millerton Lake supplied 
the Madera Canal and those releases resulted from the capacity of 
the Friant Dam to retain flood waters. DeWitt Bank & Trust Co. 

v. United States, 878 F.2d 246, 247 (8th Cir. 1989), cert. denied, 494 
U.S. 1016 (1990). And the injury was certainly “more likely” 
because of the “activities or characteristics” of a flood control pro- 
ject, both in terms of the volume of flood waters supplied to the 
Madera Canal as well as its design and construction as a means of 
controlling such waters for conservation/irrigation purposes. See 
Bailey v. United States, 35 F.3d 1118, 1124 (7th Cir. 1994). 

15 

Likewise, the test articulated by the Eighth Circuit 
is met here, contrary to petitioner’s suggestion (at 19). 
In Henderson, a fisherman was swept away when 
water was released from a dam operated by the Army 
Corps of Engineers, which had contracted with a pri- 
vate power company that requested releases of waters 
at particular times to generate hydroelectric power. 
965 F.2d at 1490-1491. But unlike this case, Henderson 
did not involve waters escaping from a multi-purpose 
project—a situation expressly covered by James, which 
defined “flood waters” to include “waters that such 
projects cannot control.” 478 U.S. at 605. Rather, 
Henderson concerned the controlled release of waters 
for hydro-electric power generation. Thus, the Eighth 
Circuit’s decision in Henderson was a straightforward 
application of the statement in James that the waters 
be “flood waters” that a flood control project “cannot 
control.” Ibid. No such waters were at issue in 
Henderson, but they are at issue here. 

Nor is it clear, as petitioner asserts (Pet. 19), that the 
Tenth Circuit would reach a different result on the facts 
here. That circuit declined to hold the government im- 
mune from suit in Boyd because it found an insufficient 
factual nexus between federal flood control efforts 
and a swimmer’s death caused by a privately operated 
power boat in a federal flood control lake. See 881 F.2d 
at 900. As in Henderson, the theory of liability asserted 
against the government was a negligent failure to warn. 
That theory had no relation to the government’s flood 
control activities. By contrast, the construction of the 
Madera Canal and its operation as an irrigation canal 
are directly related to the flood control purpose of the 
Central Valley Project. Thus, Boyd provides no reason 
to think that the decision below would have come out 
differently in the Tenth Circuit. See also Holt, 46 F.3d 

16 

at 1005 (Tenth Circuit holding government immune 
where injury was caused by flood control activities). 

Finally, citing the pre-James decision in Hayes, peti- 
tioner asserts (at 21) that the outcome on the facts here 
would be different in the Fourth Circuit. In an unpub- 
lished decision issued after James, however, that circuit 
favorably cited not only the Ninth Circuit’s McCarthy 
decision but numerous other post-James decisions ap- 
plying a factual nexus test. See Thomas v. United 
States, 959 F.2d 232 (4th Cir. 1992) (Table), 1992 WL 
67789, at *1. The court held there that Section 702c im- 
munized the government from liability for a diving 
injury in a lake operated by the Army Corps of Engi- 
neers because the lake’s multiple purposes included 
flood control and it was “constantly * * * monitored 
and maintained daily by the Army for the purpose of 
controlling floods.”7 

7 The court of appeals suggested a different list of circuits in 
which the outcome would “probably” be different on the facts here, 
omitting the Sixth Circuit but including the Seventh. See Pet. 
App. 9. Although petitioner acknowledges that “the issue is not 
settled in the Seventh Circuit” (Pet. 22), to the extent that that 
court “focused its inquiry” (ibid.) on whether “flood control activi- 
ties increase[d] the probability of the plaintiff’s injury” (Bailey v. 
United States, 35 F.3d 1118, 1124 (7th Cir. 1994)), that test is met 
here. The flood control benefit of impounding the waters of the 
San Joaquin River at Friant Dam is directly achieved by diverting 
water into the Madera Canal. See pp. 8-11, supra. 

Likewise, petitioner is incorrect to assert that the government 
“likely would not be accorded immunity” in the Fifth Circuit. Pet. 
22 (citing Kennedy v. Texas Utils., 179 F.3d 258 (1999)). That case 
is readily distinguishable. As the court in Kennedy concluded, 
“[w]hile the term flood waters may be ambiguous and thus subject 
to differing interpretations, the ordinary and common meaning 

* * * does not, in our view, extend to an injury occurring on land 
apart from water and as the result of a use of the land itself.” 179 

17 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

ROBERT S. GREENSPAN 
IRENE M. SOLET 

Attorneys 

FEBRUARY 2000 

F.3d at 261. The court there also cast no doubt on the continuing 
validity of Boudreau, in which the Fifth Circuit had upheld the 
government’s immunity from a suit alleging negligence when the 
Coast Guard Auxiliary attempted to tow a stranded recreational 
vessel on a flood control lake because such actions constituted “the 
management of a flood control project.” 53 F.3d at 85 (quoting 
James, 478 U.S. at 610).