US Supreme Court Briefs

No. 99-859

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Assistant Attorney General
Deputy Solicitor General
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


Whether 33 U.S.C. 702c, which provides that "[n]o liability of anykind shall attach to or rest upon the United States for any damage fromor by floods or flood waters at any place," bars petitioner's tortaction arising from property damage sustained as a result of allegedly negligentconstruction and maintenance of an irrigation canal that is part of a multi-purposefederal flood control project.

In the Supreme Court of the United States

No. 99-859




The opinion of the court of appeals (Pet. App. 1-9) is reported at 177 F.3d834. The opinion of the district court (Pet. App. 10-20) is unreported.


The judgment of the court of appeals was entered on May 20, 1999. A petitionfor rehearing was denied on September 7, 1999 (Pet. App. 21). The petitionfor a writ of certiorari was filed on November 19, 1999, and was grantedon March 20, 2000. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).


33 U.S.C. 702c, in pertinent part, is in App., infra, 1a.


The Flood Control Act of 1928, 33 U.S.C. 702c, provides that "[n]oliability of any kind shall attach to or rest upon the United States forany damage from or by floods or flood waters at any place." Petitionerclaims that the waters that damaged its property-allegedly the result ofa leak from the Madera Canal in the Friant Division of California's CentralValley Project (CVP)-were irrigation waters and not flood waters, and thatthe court of appeals used the wrong test to determine that they were floodwaters. To place this issue in context, it is necessary to understand theinterrelated history of irrigation and flood control in California's CentralValley, the purposes and operations of the CVP and its Friant Division,and the relationship of the Madera Canal to both irrigation and flood control.

1. History of Flooding in the Central Valley. The Central Valley consistsof the basins of the Sacramento River in the north and the San Joaquin Riverin the south. Bordered on the east by the Sierra Nevada Mountains and onthe west by the Coast Range, the valley extends almost 500 miles and includesmore than one third of the State. The two rivers flow toward each otherand join in the Sacramento-San Joaquin delta, eventually emptying into SanFrancisco Bay and, from there, into the Pacific Ocean. S. Doc. No. 113,81st Cong., 1st Sess. 83 (1949) (S. Doc. No. 113).

Efforts to address the problem of flooding in the Central Valley began asearly as 1880. See Report of the State Engineer To The Legislature of California-Sessionof 1880, Pt. II, at 5 (1880). California's State Engineer reported thatthe low lands of the Sacramento and San Joaquin valleys "have beenand still in a great measure are subject to annual inundation." Ibid.According to the State Engineer, the Sacramento River "brings downa formidable flood volume almost every year, inundates a large area of country,and seriously threatens with devastation several hundred thousands of acres."Ibid. The San Joaquin was "in correspondingly high flood" approximatelyonce every four years. Ibid. Periodic flooding in the winter contrastedwith generally inadequate sustained rainfall during the summer, making "theuse of irrigation imperative for production of most agricultural crops."S. Doc. No. 113, at 85.

Beginning early in the 20th century, California actively pursued a coordinatedapproach to flooding and water shortages. In 1915, the state legislatureauthorized the convening of a conference "[f]or the purpose of consideringand recommending a unified state policy with reference to irrigation, reclamation,water storage, flood control, municipalities, and drainage, with due regardto the needs of water power, mining, and navigation." H.R. Doc. No.416, 84th Cong., 2d Sess. Pt. 1, at 109 (1956) (H.R. Doc. 416).1 The followingyear, the State Water Problems Conference issued its report. Even at thatearly planning stage, the Conference recognized that the use of dams andtheir resulting reservoirs for both flood control and irrigation involveda careful balancing of "antagonistic interests." Id. at 128. Thereport explained that "[a] reservoir for highest economic efficiencyin flood control should be kept empty until actual flood" and thengradually emptied "to give storage for another flood. That same reservoir,if used for power or irrigation would, on the contrary, be filled as soonas possible-before actual flood if conditions permitted-and kept full, lestthere should not be subsequent flood to fill it." Id. at 129.

2. Early Federal Involvement in Central Valley Flood Control. In 1893, Congressestablished the California Debris Commission, a panel of three Army engineersappointed by the President. Congress directed the Commission to adopt plansto address flooding and navigation problems caused by tailings from hydraulicmining that had clogged the channels of the Sacramento and San Joaquin Rivers.Caminetti Act, ch. 183, 27 Stat. 507; see also H.R. Doc. 416, at 50.2 In1917, Congress authorized the Secretary of War to carry out the Commission'splans to control floods on the Sacramento River. Act of Mar. 1, 1917, ch.144, § 2, 39 Stat. 949. That Act authorized expenditure of $45 millionfor flood control work on the Mississippi River, conditioned upon contributionsof at least half that amount from "local interests protected thereby."§ 1, 39 Stat. 948. Congress continued to link flood control in theCentral Valley and along the Mississippi in the Flood Control Act of 1928,Act of May 15, 1928, ch. 569, § 1, 45 Stat. 534-535, which containsthe immunity provision at issue in this case (§ 3, 45 Stat. 535-536).That Act increased the authorized federal expenditures for flood controlon the Sacramento River to a total of $17.6 million (§ 13, 45 Stat.539).

3. Construction of the Central Valley Project and Friant Dam. As the federalgovernment was making its first investments in flood control on the SacramentoRiver, California was investigating a coordinated approach to water problems,including flood control, throughout the Central Valley. See H.R. Doc. 416,at 139-256. Those investigations culminated in 1931 in a State Water Plansubmitted to the California legislature by the State's Director of PublicWorks. Id. at 257. That plan addressed California's "twofold"water problem, "involving first the conservation and utilization ofits water resources, and second, the control of floods." Id. at 258-259.The plan called for a system of dams, reservoirs, and canals in the CentralValley that would, among other functions, pump water from the Sacramento-SanJoaquin delta into the San Joaquin basin, at Mendota, for irrigation. Thatsystem would permit the waters of the San Joaquin to be diverted from fartherupstream, at Friant, to irrigate previously arid upstream lands. Id. at261.

The 1931 State Water Plan specifically called for construction of Friantreservoir, as well as the Madera and Friant-Kern Canals to be fed by thatreservoir. H.R. Doc. 416, at 271-272. Moreover, the plan proposed "[t]hereservation of space and its operation for flood control * * * in each ofthe major reservoirs on the more important streams." Id. at 295. Theplan further specified the quantity of storage space to be reserved forflood control in each of 14 proposed reservoirs, including Friant, and explainedthat "operation of these reservoirs for flood control would not materiallyimpair their value for conservation purposes, nor materially decrease theamount of value of the electric energy generated by water released fromthem." Id. at 295. Operating the reservoirs "specifically forflood control * * * would result in a substantial reduction of floods andin an increased degree of protection to the areas subject to overflow."Id. at 297.3

In 1933, the California legislature authorized construction of a coordinatedwater project along the lines of the State Water Plan. That planned "CentralValley Project," which included both Friant Dam and the Madera Canal,was to be financed by the sale of revenue bonds. H.R. Doc. 416, at 412,423. Almost from the beginning, however, state financing appeared infeasibleand federal involvement became essential to the project's realization. 522. In 1935, the State legislature acknowledged those facts and authorizedthe State's Department of Public Works "to prosecute efforts to secureFederal aid and assistance in financing the construction of the CentralValley project." Id. at 555.

In the ensuing years, the federal government acted to advance constructionof the CVP and, ultimately, to make it an entirely federal project. In 1935,Congress authorized the Army Corps of Engineers to undertake constructionof Kennett Dam (now called Shasta Dam) on the Sacramento River, one of themajor components of the coordinated project that was initially planned andauthorized by the State. Rivers and Harbors Act of 1935, ch. 831, 49 Stat.1038; see also H.R. Doc. 416, at 544-555. Also in 1935, the President approveda report by the Secretary of the Interior on the feasibility of the entireCentral Valley Project as a reclamation project pursuant to federal reclamationlaws. H.R. Doc. 416, at 562-567.4 As described in that report, the CVP includedamong its principal features Kennett Reservoir on the Sacramento River,pumping plants and canals to deliver water from the Sacramento-San Joaquindelta to Mendota, Friant Reservoir on the San Joaquin River, and the Maderaand Friant-Kern Canals to be fed by the Friant reservoir. Id. at 564-565.In 1936, Congress appropriated funds specifically for "constructionof Friant Reservoir and irrigation facilities therefrom." Act of June22, 1936, ch. 689, 49 Stat. 1622.

Finally, in 1937, Congress transferred responsibility for construction ofthe CVP from the Corps of Engineers to the Secretary of the Interior. Riversand Harbors Act of 1937, ch. 832, § 2, 50 Stat. 850. The same statuteprovided that:

the entire Central Valley project * * * is hereby reauthorized and declaredto be for the purposes of improving navigation, regulating the flow of theSan Joaquin River and the Sacramento River, controlling floods, providingfor storage and for the delivery of the stored waters thereof, for the reclamationof arid and semiarid lands and lands of Indian reservations, and other beneficialuses, and for the generation and sale of electric energy as a means of financiallyaiding and assisting such undertakings and in order to permit the full utilizationof the works constructed to accomplish the aforesaid purposes.

Ibid. Congress also specified that the project's dams and reservoirs "shallbe used, first, for river regulation, improvement of navigation, and floodcontrol; second, for irrigation and domestic uses; and, third, for power."Ibid.

Construction of Friant Dam began in October 1939 and the dam was in partial

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