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 

SUPPLEMENTAL BRIEF FOR THE UNITED STATES 

SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

City of Fresno v. California, 372 U.S. 627 (1963) ............ 
5 

Dugan v. Rank, 372 U.S. 609 (1963) ................................... 
5 

East Columbia Basin Irrigation Dist. v. United States, 
522 U.S. 948 (1997) ................................................................ 
6, 7 

Johnston v. United States, No. CIV F 96-5484 
(E.D. Cal. Dec. 31, 1996) ....................................................... 
6 

United States v. Gerlach Live Stock Co., 339 U.S. 
725 (1950) ................................................................................. 
5 

Western Mining Council v. Watt, 643 F.2d 619 
(9th Cir.), cert. denied, 454 U.S. 1031 (1981) .................... 
2-3 

Statute and rule: 

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

2 

Sup. Ct. R. 15.8 .......................................................................... 
1 

Fed. R. Civ. P. 12(c) .................................................................. 2 

(I) 

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 

SUPPLEMENTAL BRIEF FOR THE UNITED STATES 

Pursuant to Rule 15.8 of the Rules of the Court, the 
Solicitor General respectfully files this supplemental 
brief to bring to the Court’s attention new matter. 

In its reply brief, petitioner asserts that the United 
States has been “seriously disingenuous” (Pet. Reply 1, 

5) in not properly acknowledging the procedural pos- 
ture in which the case comes to this Court, and has 
made representations that are “false” (id. at 9). Peti- 
tioner is mistaken. 

1. With respect to the procedural posture of the 
case, on page 2 of the brief in opposition we noted that 
“[t]he United States moved for judgment on the 
pleadings,” which is exactly what the government did. 

(1) 

2 

See C.A. R.E. 138.* Under Federal Rule of Civil Pro- 
cedure 12(c), any party may move for judgment on the 
pleadings. On page 3 of our opposition, we note that 
“[t]he district court granted the government’s motion 
for judgment on the pleadings.” 

Petitioner is mistaken for two reasons in asserting 
that in view of that procedural posture “the allegations 
of the complaint [that no flood waters were involved in 
causing the damage to petitioner’s property] must be 
accepted as true.” Pet. Reply 1. First, the complaint 
does not contain any such allegation. While petitioner 
asserts that the “Complaint alleges that the Madera 
Canal serves only irrigation purposes,” id. at 2 (em- 
phasis added), the Complaint in fact alleges that the 
Madera Canal “is used to convey irrigation water to 
various lands in the San Joaquin Valley” (¶ 7); it does 
not allege that the waters were not also flood waters, 
C.A. R.E. 2. Indeed, the allegations of the Complaint 
are wholly consistent with our view that the presence 
of the water in the canal served both flood control and 
irrigation purposes. 

Second, the characterization of waters in this case as 
“flood waters” for purposes of the Flood Control Act 
of 1928, 33 U.S.C. 702c, is not a “fact” as to which the 
plaintiff’s allegations must be taken as true for pur- 
poses of a Rule 12(c) motion. As our motion for judg- 
ment on the pleadings itself noted, “a court need not 
‘assume the truth of legal conclusions merely because 
they are cast in the form of factual allegations.’ ” C.A. 
R.E. 143 (quoting Western Mining Council v. Watt, 643 
F.2d 618, 624 (9th Cir.) (citations omitted), cert. denied, 

* References to C.A. R.E. are to Central Green’s Excerpts of 
Record filed by petitioner in the court of appeals. For the con- 
venience of the Court, we have lodged copies of it with the Clerk. 

3 

454 U.S. 1031 (1981)). Thus, even if the Complaint had 
alleged that the waters that caused the damage to 
petitioner’s property were irrigation waters and there- 
fore not flood waters, such an allegation would be just 
such a legal conclusion cast as a factual allegation. In 
any event, the district court expressly concluded that 
“[t]he parties do not dispute that one of the purposes of 
the Madera Canal is flood control.” C.A. R.E. 124-125. 

Moreover, there is no basis for petitioner’s contention 
that the brief in opposition “fails to advise the Court 
that Petitioner repeatedly sought to present its evi- 
dence on this factual question in the lower courts, but 
Respondent successfully asserted that the allegations 
of the complaint should be accepted as true and the 
case dismissed as a matter of law.” Pet. Reply 1. The 
district court filings in this case do not support 
petitioner’s assertion of having “repeatedly sought to 
present its evidence.” Ibid. See C.A. R.E. (collecting 
court submissions). In the district court, petitioner 
never offered such evidence but only argued that the 
United States had the burden to prove that the waters 
were “flood waters” and that the government had failed 
to carry its burden. See C.A. R.E. 93. Petitioner has 
not identified any evidence that it attempted to present 
but was precluded from presenting. Our position then 
and now was that the Complaint should be dismissed 
assuming its allegations were true. 

2. The government’s longstanding position has been 
that waters carried in a multi-purpose project (of which 
flood control is one purpose) do not cause the govern- 
ment to lose immunity under the Flood Control Act 
simply because the principal purpose of a part of 
the multi-purpose project may be something (like 
irrigation) other than flood control. As for the Central 
Valley Project (CVP), of which the Madera Canal and 

4 

Friant Dam are a part, the law has been well-settled in 
the Ninth Circuit that the CVP “flood control function 
and the relationship of that function to the project as a 
whole have been described.” Br. in Opp. 7 (citing 
cases). The government’s reliance on those cases in the 
district court and court of appeals is completely proper 
advocacy. The fact that the government explained to 
the district court in this case that it need not conduct 
fact-finding on whether the waters that caused pro- 
perty damage to petitioner’s property were “flood 
waters” simply reflected that well-established case law. 

Indeed, contrary to petitioner’s assertion (Pet. Reply 

2) that the United States is making an argument in this 
Court inconsistent with its position in the district court 
and court of appeals, the government’s motion for judg- 
ment on the pleadings makes precisely the same argu- 
ment. That motion states: “Accepting plaintiff’s 
allegations as true, this Court should hold plaintiff’s 
claims barred by section 702c because the Madera 
Canal is part of a federal flood control project, plaintiff’s 
alleged injury was not wholly unrelated to the [Central 
Valley] Project’s operation, and an alleged cause of the 
injury was floods or flood waters.” C.A. R.E. 144-145. 
The government’s motion goes on to aver that “the 
Madera Canal’s conceded status as part of the Central 
Valley Project establishes the requisite flood control 
nexus.” Id. at 145. Our motion for judgment on the 
pleadings cites the uniform line of cases that have taken 
judicial notice of the fact that the CVP “has a federal 
flood control purpose” (id. at 146) and thus that pro- 
perty damage caused by flooding from CVP com- 
ponents qualifies for immunity under the Flood Control 
Act. Ibid. 

Our brief in opposition in this Court is consistent 
with that view, and we dispute the contention in the 

5 

petition reply (at 5) that we have been in any way 
“disingenuous.” Because the settled understanding of 
the Ninth Circuit as to the flood control functions of the 
CVP has no controlling weight in this Court, we recited 
Congress’s purpose in establishing the CVP, with 
citations to the Department of the Interior report, to 
support our position that the “irrigation waters” in the 
Madera Canal are simply released “flood waters” made 
available from time to time by discharges from the 
Friant Dam. “The inherent nexus between flood con- 
trol and damage caused by waters escaping from the 
integrated multi-purpose CVP” (Br. in Opp. 8) is not a 
“newfound factual assertion” (Pet. Reply 5), but rather 
our longstanding legal position. 

In our view, the fact that the Madera Canal is prin- 
cipally used for irrigation does not change the analysis 
under the Flood Control Act. The release of flood 
waters from the Friant Dam in part contributes to 
making irrigation from the Madera Canal possible. 
Such releases do not irrevocably transform those 
waters into something that would deny the government 
immunity under the Flood Control Act. Contrary to 
petitioner’s assertion (Pet. Reply 5-6 & n.1), none of the 
Supreme Court cases cited holds that irrigation is the 
only purpose of the Madera Irrigation District. See 
United States v. Gerlach Live Stock Co., 339 U.S. 725, 
753 (1950); City of Fresno v. California, 372 U.S. 627, 
630 (1963); Dugan v. Rank, 372 U.S. 609, 613 (1963). 

3. The petition reply (at 7 n.2) asserts that we raise 
a new argument in the brief in opposition to defend the 
judgment below—that “immunity applies to all waters 
‘that [flood control] projects cannot control’ ”—and that 
the government is not believed ever before to have 
taken that position. Pet. Reply 7 n.2. Again petitioner 
is mistaken. First, the government’s briefing for judg- 

6 

ment on the pleadings made the very same argument. 
See C.A. R.E. 76 (arguing, in the alternative, that “the 
leaking canal waters are ‘waters that such projects 
cannot control’ under James”). Second, contrary to 
petitioner’s statement that this argument has not been 
raised “in any other case so far as we are aware” (Pet. 
Reply 7 n.2), the record excerpts filed by petitioner in 
the court of appeals disprove the assertion it is now 
making. The appendix to the United States’ motion for 
judgment on the pleadings in this case contains an 
order in an analogous case (Johnston v. United States, 
No. CIV F 96-5484 (E.D. Cal. Dec. 31, 1996)), in which 
the district court had accepted the very same argu- 
ment. See C.A. R.E. 157 (“The record demonstrates 
that the damage to Plaintiff’s lands was caused by 
waters which could not be controlled by the ponding 
basin adjacent to the San Luis Canal.”). 

4. The petition reply (at 8) is also mistaken in assert- 
ing that we have changed positions from the argument 
we made in successfully opposing certiorari in East 
Columbia Basin Irrigation District v. United States, 
522 U.S. 948 (1997) (No. 96-2054). The only material 
difference between the petition in that case and the 
one in this case is that petitioner’s counsel in East 
Columbia Basin—a distinguished law professor at 
Emory University—did not contend (as does petitioner 
in this case) that the result would have come out 
differently in the other circuits asserted as conflicting 
in the Central Green petition. As we noted in East 
Columbia Basin, petitioner there did not “argue that 
[the] case would have been decided differently under 
any other circuit’s approach.” 96-2054 Br. in Opp. at 10. 
The apparent difference in views among the petitioners 
in East Columbia Basin and in this case does not 
support the conclusion that the government has 

7 

changed its position. Had petitioner in East Columbia 
Basin argued that the cases invoked for an alleged 
conflict in fact did conflict, we would have taken the 
position expressed in our brief in opposition in this case, 
that “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.” Br. in Opp. at 4. 
Furthermore, petitioner offers no support for the 
assertion in its reply brief (at 9) that “at the time 
certiorari was denied in East Columbia, there was 
some prospect that Congress would resolve the circuit 
conflict as suggested by Justice Stevens, see Hierche v. 
United States, 503 U.S. 923 (1992).” This Court denied 
certiorari in East Columbia only slightly over two 
years ago (and five years after Hiersche), and there has 
been no intervening legal development to warrant a 
different outcome here. 

We take very seriously the statements in petitioner’s 
reply that representations made by the United States 
are “false” (Pet. Reply 9) and “seriously disingenuous” 
(id. at 1, 5). It appears that petitioner has been led by 
disagreement with us on a question of law to the mis- 
taken view that we have misrepresented and failed to 
disclose facts to the Court. The United States has 
argued, and the district court and court of appeals have 
agreed, that even if irrigation is the principal purpose of 
the Madera Canal, its waters have the relationship to 
flood control or flood waters required by the Flood Con- 
trol Act, because flood waters are held by the Friant 
Dam until discharged into the Madera Canal, the dis- 
charge is at times necessary for flood control purposes, 
and the discharge enables the irrigation function of the 
canal to proceed. Petitioner apparently disagrees with 

8 

that view of the statutory term “flood waters,” contend- 
ing that if waters serve an irrigation function they are 
by virtue of that fact not flood waters. That difference 
of opinion should not be transformed into a charge of 
misrepresentation or disingenuousness. 

* * * * * 

For the foregoing reasons, and those stated in our 
brief in opposition, the petition for a writ of certiorari 
should be denied. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

MARCH 2000