OCTOBER TERM, 2000
Syllabus
CENTRAL GREEN CO.
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 99-859. Argued October 30, 2000-Decided February 21,
2001
The Madera Canal, a federal facility leased to the Madera
Irrigation District (MID), flows through petitioner's California
orchards. Petitioner brought suit against respondent United States
and the MID alleging that their negligence in the canal's design,
construction, and maintenance caused subsurface flooding resulting
in damage to the orchards and increased operating costs for
petitioner. The complaint sought damages under the Federal Tort
Claims Act and other relief. Relying on the immunity granted by the
Flood Control Act of 1928, 33 U. S. C. § 702c-which states 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"-the United States moved for judgment on the pleadings. The
District Court dismissed the complaint because the parties agreed
that the canal was a part of the Friant Division of the Central
Valley Project, and that flood control was one of that project's
purposes. The Ninth Circuit affirmed, holding that although the
canal serves no flood control purpose, immunity attached solely
because it is a branch of the larger project.
Held: In determining whether § 702c immunity attaches,
courts should consider the character of the waters that cause the
relevant damage and the purposes behind their release rather than
the relation between that damage and a flood control project. pp.
428-437.
(a) A passage in
United States v.
James, 478 U. S. 597, 605-which
states that it is "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
or related to flood control"lends support to the Ninth Circuit's
holding, but is unquestionably dictum. It is therefore appropriate
to resort to the statute's text, as illuminated by the
James
holding, rather than to that isolated comment, to determine whether
the water flowing through the canal that allegedly damaged
petitioner's orchards is covered by § 702c. The
James
holding-that the phrase "flood or flood waters" encompasses waters
that are released for flood control purposes when reservoired
waters are at flood stage-is vastly different from the Ninth
Circuit's reading of § 702c, under which immunity attaches simply
because the Madera Canal
426
is part of the Friant Division of the Central Valley Project,
and flood control is one of the project's purposes. Pp.
428-432.
(b) To characterize every drop of water flowing through the
immense Central Valley Project as "flood water" simply because
flood control is among its purposes unnecessarily dilutes the
statute's language. The statute's text does not include the words
"flood control project," but, rather, states that immunity attaches
to "any damage from or by floods or flood waters." Pp.432-434.
(c) Neither the statute's language nor the
James holding
even arguably supports the Government's conclusion that § 702c
immunity must attach to all the water flowing through the canal,
even if the water never approached flood stage and the terminus of
the canal was parched at the end of the summer. Accordingly, the
Court disavows the "related to" portion of
James' dicta. Pp.
435-436.
(d) Because the question of immunity was decided on the
pleadings, using an incorrect test and without benefit of an
evidentiary hearing or further factual development, the case is
remanded for further proceedings. pp. 436-437.
177 F.3d
834, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
Timothy Jones argued the cause for petitioner. With him
on the briefs were
Thomas C.
Goldstein, W Allen
Bennett, and
Erik S.
Jaffe.
David C. Frederick argued the cause for the United States. With
him on the brief were Solicitor General Waxman, Assistant Attorney
General Ogden, Deputy Solicitor General Underwood, and Irene M.
Solet.*
JUSTICE STEVENS delivered the opinion of the Court. Incident to
the authorization of a massive flood control project for the
Mississippi River in 1928, Congress enacted an immunity provision
which stated 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." 45
*
M. Reed Hopper filed a brief for the Pacific Legal
Foundation as
amicus curiae urging reversal.
427
Stat. 535, as amended, 33 U. S. C. § 702c. At issue in this case
is the meaning of the words "floods or flood waters." The narrow
question presented is whether those words encompass all the water
that flows through a federal facility that was designed and is
operated, at least in part, for flood control purposes. The Ninth
Circuit, relying upon a broader construction of § 702c than some
other federal courts have adopted, concluded that they do. We
granted certiorari to resolve the conflict, 529 U. S. 1017 (2000),
and now reverse.
I
Petitioner owns 1,000 acres of pistachio orchards in
California's San Joaquin Valley. The Madera Canal, a federal
facility that has been leased to the Madera Irrigation District
(MID), flows through petitioner's property. In 1996, petitioner
brought this action against respondent United States and the MID
alleging that their negligence in the design, construction, and
maintenance of the canal had caused subsurface flooding resulting
in damage to the orchards and increased operating costs for
petitioner. Petitioner did not allege that any physical failure of
the dam caused the damage to its property. The complaint sought
damages under the Federal Tort Claims Act, 28 U. S. C. § 2671
et
seq., as well as injunctive relief. Relying on the immunity
granted by the Flood Control Act of 1928, 33 U. S. C. § 702c, the
United States moved for judgment on the pleadings.
Accepting petitioner's submission that the Madera Canal was used
for irrigation purposes, the District Court nevertheless dismissed
the complaint because the parties agreed that the canal was a part
of the Friant Division of the Central Valley Project, and that
flood control was one of the purposes of that project. The District
Court's decision was dictated by an earlier Ninth Circuit case,
which held that if a "'project has flood control as one of its
purposes, and the
428
events giving rise to the action were not wholly unrelated to
the project,'" immunity necessarily attached.1
On appeal, the Ninth Circuit affirmed. It agreed with petitioner
that the Madera Canal "serves no flood control purpose," but
nevertheless held that immunity attached "solely because it is a
branch of the Central Valley Project."
177 F.3d
834, 839 (1999). As the Ninth Circuit put it, "[a]lthough the
water in the Madera Canal was not held for the purpose of flood
control, because it was part of the Central Valley Project, it was
'not wholly unrelated' to flood control."
Ibid.
(emphasis added). In so holding, however, the court recognized that
the Government would probably not have enjoyed immunity in at least
three other Circuits where the courts require a nexus between flood
control activities and the harm done to the plaintiff.2 Noting the
"harsh result of [the] decision," the Ninth Circuit frankly
acknowledged that "[t]he 'not wholly unrelated' test applied by
this and other circuits reads broadly an already broadly written
grant of immunity."
Ibid. As the Ninth Circuit recognized,
under such a test, there would seem to be no "set of facts where
the government is not immune from damage arising from water that at
one time passed through part of the Central Valley or other flood
control project."
Ibid.
II
Not until more than a half century after its enactment did this
Court have occasion to interpret § 702c. In a consolidated case
arising out of two separate accidents, we held that the section
"bars recovery where the Federal Government
1 App. to Pet. for Cert. 15 (quoting
Washington v.
East Columbia Basin Irrigation Dist., 105
F.3d 517, 520 (1997)).
2 Citing Fryman v. United States,
901 F.2d
79 (CA7 1990); Boyd v.
United States, 881 F.2d
895 (CAlO 1989); and
Hayes v.
United States, 585
F. 2d 701 (CA4 1978), the Ninth Circuit specifically identified the
Fourth, Seventh, and Tenth Circuits as ones which likely would have
reached a different result.
429
would otherwise be liable under the Federal Tort Claims Act, 28
U. s. C. § 2671
et seq., for personal injury caused by the
Federal Government's negligent failure to warn of the dangers from
the release of floodwaters from federal flood control projects."
United States v.
James, 478 U. S. 597, 599
(1986).
The principal issue in the
James case was whether the
statutory word "damage" encompassed not just property damage, but
also personal injuries and death. In light of the legislative
history, which it reviewed at some length, id., at 606-609,
610-612, the Court concluded that the best reading of the statutory
text was one which was both broader and less literal, and which
encompassed the claims at issue in the two cases before the
Court.
In both instances, the injuries were caused by the turbulent
current generated by unwarned releases of waters from a reservoir
after the Army Corps of Engineers had determined that the waters
were at "flood stage." The fact that the injuries were caused by
"flood waters" was undisputed.3 In its opinion, the Court held that
the language of the statute covered the two accidents because the
"injuries occurred as a result of the release of waters from
reservoirs that had reached flood stage."
Id., at 604.
Nevertheless, the Court's opinion in
James included a
passage that lends support to the Ninth Circuit's holding in this
case. In that passage, the Court wrote:
3 The first case arose out of an incident at the Millwood Dam in
Arkansas, when "the level of the Reservoir was such that the United
States Corps of Engineers designated it at 'flood stage.' As part
of the flood control function of the Millwood facility, the Corps
of Engineers began to release water through the tainter gates. This
release created a swift, strong current toward the underwater
discharge." 478 U. S., at 599. The second case arose as a result of
a decision by the Corps of Engineers to release waters in the
reservoir of Bayou Courtableau Basin which "were at flood stage."
Id., at 601. The District Court found that § 702c applied
because the "'gates were opened to
prevent flooding and
inundation landside of the drainage structure.'''
Id., at
602 (emphasis added).
430
"Nor do the terms 'flood' and 'flood waters' create any
uncertainty in the context of accidents such as the ones at issue
in these cases. The Act concerns flood control projects designed to
carry floodwaters. 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 or related to flood control, as well as
to waters that such projects cannot control." Id., at 605
(emphasis added).4
The sentence that we have italicized and, in particular, the
phrase "related to flood control" have generated conflicting
opinions among the Courts of Appeals. In an attempt to make sense
of what is admittedly confusing dicta, some courts have focused on
whether the damage relates in some, often tenuous, way to a flood
control project, rather than whether it relates to "floods or flood
waters." 5 However,
4 The Court appended a footnote pointing out that the District
Court in each case had found that the waters at issue had been
"released from federal flood control facilities to prevent
flooding" and that the Court of Appeals had upheld those findings
"and assumed that 'the waters in this [consolidated] case were
floodwaters.''' See id., at 606, n. 7.
5 See,
e. g., Washington v.
East Columbia Basin
Irrigation Dist., 105 F. 3d 517
(CA9 1997);
Williams v.
United States, 957
F.2d 742 (CAlO
1992); Dawson v.
United States,
894 F.2d
70 (CA3 1990);
De Witt Bank &
Trust
Co. v.
United States, 878 F.2d
246 (CA8 1989). This approach, however, can be
overinclusive. As Judge Easterbrook has pointed out: "The
'management of a flood control project' includes building roads to
reach the beaches and hiring staff to run the project. If the Corps
of Engineers should allow a walrus-sized pothole to swallow
tourists' cars on the way to the beach, or if a tree-trimmer's car
should careen through some picnickers, these injuries would be
'associated with' flood control. They would occur within the
boundaries of the project, and but for the effort to curtail
flooding the injuries would not have happened. Yet they would have
nothing to do with management of flood waters, and it is hard to
conceive that they are 'damage from or by floods or flood waters'
within the scope of § 702c.'"
Fryman v.
United
States, 901 F. 2d, at 81. More
431
more than one court has pointed out that, if read literally, the
sentence sweeps so broadly as to make little sense.6 Moreover, the
sentence was unquestionably dictum because it was not essential to
our disposition of any of the issues contested in
James.7 It
is therefore appropriate to resort to the text of the statute, as
illuminated by our holding in
James, rather than to that
isolated comment, to determine whether the water flowing through
the Madera Canal that allegedly caused the damage to petitioner's
pistachio orchards is covered by § 702c. See
Humphrey's
Executor v.
United States, 295 U. S. 602, 627 (1935)
(dicta "may be followed if sufficiently persuasive" but are not
binding). See also
U. S.
Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18, 24
(1994).
In
James, we held that the phrase "floods or flood
waters" is not narrowly confined to those waters that a federal
project is unable to control, and that it encompasses waters that
are released for flood control purposes when reservoired waters are
at flood stage. That holding, however, is vastly different from the
Ninth Circuit's reading of § 702c, under which immunity attaches
simply because the Madera Canal is part of the Friant Division of
the Central Valley Project, and flood control is one of the
purposes served by that project. The
to the point, such an approach is also inconsistent with the
statutory language. See
infra, at 434.
6 "Other circuits recognize that such a sweeping grant of
immunity makes little sense in light of the text and purpose of the
Act."
Cantrell v.
United States Dept. of Army Corps of
Engineers, 89 F.3d
268, 271
(CA6 1996). See also
Fryman, 901 F. 2d,
at 81
("James was so broadly written that it cannot be
applied literally").
7 In addition to concluding that the word "damage" includes
personal injury and death, the Court also rejected the previously
arguable propositions that the Federal Government's subsequent
waiver of sovereign immunity in the Federal Tort Claims Act had
impliedly repealed § 702c; and that the immunity applied only to
the flood control on the Mississippi River authorized by the 1928
Act.
432
holding in
James also differs from the less attenuated
and more fact-specific position advanced by the Government, which
would require us to take judicial notice of evidence that the
Friant Division of the Central Valley Project and, indeed, the
Madera Canal itself can and do serve flood control purposes. We
ultimately conclude that the judgment cannot be upheld under either
rationale, but begin with a description of the Central Valley
Project and an explanation of the factual basis for the
Government's submission.
III
We begin by observing that water can be either a liability or an
asset. The Mississippi River flood of 1927 was unquestionably an
example of the former. That flood in turn led to the enactment of
the 1928 Flood Control Act. Similar, though less extreme, floods of
the Sacramento and San Joaquin Rivers in California provided an
important motivation for the authorization of the Central Valley
Project. Although that project has not completely eliminated
flooding on either river, it has succeeded in converting a huge
liability into an immensely valuable asset. Justice Jackson
described the magnitude of that transformation in his opinion for
the Court in
United States v.
Gerlach Live Stock Co.,
339 U. S. 725 (1950):
"This is a gigantic undertaking to redistribute the principal
fresh-water resources of California. Central Valley is a vast
basin, stretching over 400 miles on its polar axis and a hundred in
width, in the heart of California. Bounded by the Sierra Nevada on
the east and by coastal ranges on the west, it consists actually of
two separate river valleys which merge in a single pass to the sea
at the Golden Gate. Its rich acres, counted in the millions, are
deficient in rainfall and must remain generally arid and unfruitful
unless artificially watered.
433
"To ... make water available where it would be of greatest
service, the State of California proposed to reengineer its natural
water distribution. This project was taken over by the United
States in 1935 and has since been a federal enterprise. The plan,
in broad outline, is to capture and store waters of both rivers and
many of their tributaries in their highland basins, in some cases
taking advantage of the resulting head for generation of electric
energy .... [T]he waters of the San Joaquin will be arrested at
Friant, where they would take leave of the mountains, and will be
diverted north and south through a system of canals and sold to
irrigate more than a million acres of land, some as far as 160
miles away. A cost of refreshing this great expanse of semiarid
land is that, except for occasional spills, only a dry river bed
will cross the plain below the dam. Here, however, surplus waters
from the north are utilized, for through a iSO-mile canal
Sacramento water is to be pumped to the cultivated lands formerly
dependent on the San Joaquin."
Id., at 728-729.
"The Central Valley basin development envisions, in one sense,
an integrated undertaking, but also an aggregate of many subsidiary
projects, each of which is of first magnitude. It consists of
thirty-eight major dams and reservoirs bordering the valley floor
and scores of smaller ones in headwaters. It contemplates
twentyeight hydropower generating stations. It includes hundreds of
miles of main canals, thousands of miles of laterals and drains,
electric transmission and feeder lines and substations, and a vast
network of structures for the control and use of water on two
million acres of land already irrigated, three million acres of
land to be newly irrigated, 360,000 acres in the delta needing
protection from intrusions of salt water, and for municipal and
miscellaneous purposes including cities, towns, duck clubs and game
refuges. These projects are not only widely
434
separated geographically, many of them physically independent in
operation, but they are authorized in separate acts from year to
year and are to be constructed at different times over a
considerable span of years." Id., at 733.
Justice Jackson's description of the magnitude of the Central
Valley Project makes one proposition perfectly clear: to
characterize every drop of water that flows through that immense
project as "flood water" simply because flood control is among the
purposes served by the project unnecessarily dilutes the language
of the statute. The text of the statute does not include the words
"flood control project." Rather, it states that immunity attaches
to "any damage from or by floods or flood waters .... "
Accordingly, the text of the statute directs us to determine the
scope of the immunity conferred, not by the character of the
federal project or the purposes it serves, but by the character of
the waters that cause the relevant damage and the purposes behind
their release.
IV
The Government has asked us to take judicial notice of certain
basic facts about the Friant Division of the Central Valley Project
and about the waters flowing through that division and, more
particularly, through the Madera Canal. Although petitioner will
have an opportunity to challenge those details on remand, we accept
them for purposes of this opinion.
The two major rivers supplying water to the Central Valley
Project are the Sacramento in the north, and the San Joaquin in the
south. From its headwaters in the Sierra Nevada Mountains, the San
Joaquin flows in a southwesterly direction into a reservoir, known
as Millerton Lake, just above the Friant Dam. The reservoir has a
storage capacity of 520,500 acre-feet of water. In dry years, the
total flow in the river does not produce that amount, but on
average, the
435
annual flow apparently approximates 3lf2 times the reservoir's
capacity. Water is released through outlets in the dam that send it
down the San Joaquin River, and also through outlets that direct it
into either the Madera Canal to the northwest, or the Friant-Kern
Canal to the southeast. When the water level exceeds 578 feet, it
flows over the dam's spillway into the San Joaquin. At that point,
the river can accommodate a flow of 8,000 cubic feet per second
without flooding. The Madera Canal can accommodate 1,200 cubic feet
per second, and the Friant-Kern another 4,500 cubic feet per
second. Thus, a total release of 13,700 cubic feet per second in
three directions would not appear to include any "flood water."
The Madera Canal, which is about 40 miles in length, is used
primarily for irrigation purposes. Water that enters the canal at
the Friant Dam is purchased by farmers who either use it
immediately or store it for future use. As a result, the amount of
water that enters the canal is larger than the quantity that may
flow into the Chowchilla River at its terminus.8 Except in years of
extreme drought, the Madera Irrigation District provides
contracting farmers with "a dependable water supply" of
approximately 138,000 acre-feet of "Class 1 water." In addition,
"if, as, and when it can be made available," the District sells
"Class 2 water" to the farmers at a price that is lower than the
Class 1 price because of the "uncertainty as to availability and
time of occurrence." 9 Thus, again in a literal sense, it seems
clear that none of the Class 1 or Class 2 water sold by the
District and purchased by the farmers to store or irrigate their
lands includes any "flood water."
8The Chowchilla flows in a westerly direction into the San
Joaquin, which in turn flows in a northwesterly direction at that
point.
9 In some exceptional circumstances, irrigation contractors may
be obligated to buy Class 2 water at a particular time. However,
contractors still pay for the water, regardless of the potential
inconvenience with respect to the timing or date of delivery.
436
Water that is not purchased under either class simply flows
through the canal into the Chowchilla River. As the Government
points out, that excess may include flood water. However, given the
fact that the canal can accommodate a flow of 1,200 cubic feet per
second, which amounts to about 2,380 acre-feet per day, it is
entirely possible that over the span of a year, several times the
amount of Class 1 and Class 2 waters described in the papers
submitted by the Government could flow through the canal without
causing anything approaching a flood. Nevertheless, according to
the Government, because the Madera Canal is available to divert
water that might otherwise produce a flood on the San Joaquin and
flood control is among the purposes served by the canal, § 702c
immunity must attach to all the water that flows through the canal.
Under the Government's approach, this would be true even if the
water never approached flood stage and the terminus of the canal
was parched at the end of the summer. Admittedly, it is possible to
read the "related to" portion of the dictum from
James to
support that result, but neither the language of the statute
itself, nor the holding in
James, even arguably supports
such a strange conclusion. Accordingly, we disavow that portion of
James' dicta.
v
This case does raise a difficult issue because the property
damage at issue was allegedly caused by continuous or repeated
flows occurring over a period of years, rather than by a single,
discrete incident. It is relatively easy to determine that a
particular release of water that has reached flood stage is "flood
water," as in
James, or that a release directed by a power
company for the commercial purpose of generating electricity is
not, as in
Henderson v.
United States, 965 F. 2d 1488
(CA8 1992). It is, however, not such a simple matter when damage
may have been caused over a period of time in part by flood waters
and in part by the routine use of the canal when it contained
little more than a trickle. The
437
fact that a serious flood did occur in the San Joaquin in 1997
creates the distinct possibility that flood waters may have surged
down the Madera Canal and harmed petitioner's property.
For present purposes, we merely hold that it was error to grant
the Government's motion for judgment on the pleadings and that it
is the text of § 702c, as informed by our holding in
James,
rather than the broad dictum in that opinion, that governs the
scope of the United States' immunity from liability for damage
caused "by floods or flood waters." Accordingly, in determining
whether § 702c immunity attaches, courts should consider the
character of the waters that cause the relevant damage rather than
the relation between that damage and a flood control project.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
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