US Supreme Court Briefs

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




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 respectfullyfiles this supplemental brief to bring to the Court's attention new matter.

In its reply brief, petitioner asserts that the United States has been "seriouslydisingenuous" (Pet. Reply 1, 5) in not properly acknowledging the proceduralposture in which the case comes to this Court, and has made representationsthat are "false" (id. at 9). Petitioner is mistaken.

1. With respect to the procedural posture of the case, on page 2 of thebrief in opposition we noted that "[t]he United States moved for judgmenton the pleadings," which is exactly what the government did. See C.A.R.E. 138.* Under Federal Rule of Civil Procedure 12(c), any party may movefor judgment on the pleadings. On page 3 of our opposition, we note that"[t]he district court granted the government's motion for judgmenton the pleadings."

Petitioner is mistaken for two reasons in asserting that in view of thatprocedural posture "the allegations of the complaint [that no floodwaters were involved in causing the damage to petitioner's property] mustbe accepted as true." Pet. Reply 1. First, the complaint does not containany such allegation. While petitioner asserts that the "Complaint allegesthat the Madera Canal serves only irrigation purposes," id. at 2 (emphasisadded), the Complaint in fact alleges that the Madera Canal "is usedto 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 consistentwith our view that the presence of the water in the canal served both floodcontrol 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 astrue for purposes of a Rule 12(c) motion. As our motion for judgment onthe pleadings itself noted, "a court need not 'assume the truth oflegal 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, 454 U.S. 1031 (1981)). Thus,even if the Complaint had alleged that the waters that caused the damageto petitioner's property were irrigation waters and therefore not floodwaters, such an allegation would be just such a legal conclusion cast asa factual allegation. In any event, the district court expressly concludedthat "[t]he parties do not dispute that one of the purposes of theMadera Canal is flood control." C.A. R.E. 124-125.

Moreover, there is no basis for petitioner's contention that the brief inopposition "fails to advise the Court that Petitioner repeatedly soughtto present its evidence on this factual question in the lower courts, butRespondent successfully asserted that the allegations of the complaint shouldbe 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'sassertion 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 Stateshad the burden to prove that the waters were "flood waters" andthat the government had failed to carry its burden. See C.A. R.E. 93. Petitionerhas not identified any evidence that it attempted to present but was precludedfrom presenting. Our position then and now was that the Complaint shouldbe dismissed assuming its allegations were true.

2. The government's longstanding position has been that waters carried ina multi-purpose project (of which flood control is one purpose) do not causethe government to lose immunity under the Flood Control Act simply becausethe 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 Friant Dam are a part, the law hasbeen well-settled in the Ninth Circuit that the CVP "flood controlfunction and the relationship of that function to the project as a wholehave been described." Br. in Opp. 7 (citing cases). The government'sreliance on those cases in the district court and court of appeals is completelyproper advocacy. The fact that the government explained to the districtcourt in this case that it need not conduct fact-finding on whether thewaters that caused property damage to petitioner's property were "floodwaters" simply reflected that well-established case law.

Indeed, contrary to petitioner's assertion (Pet. Reply 2) that the UnitedStates is making an argument in this Court inconsistent with its positionin the district court and court of appeals, the government's motion forjudgment on the pleadings makes precisely the same argument. That motionstates: "Accepting plaintiff's allegations as true, this Court shouldhold plaintiff's claims barred by section 702c because the Madera Canalis part of a federal flood control project, plaintiff's alleged injury wasnot wholly unrelated to the [Central Valley] Project's operation, and analleged 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'sconceded status as part of the Central Valley Project establishes the requisiteflood control nexus." Id. at 145. Our motion for judgment on the pleadingscites the uniform line of cases that have taken judicial notice of the factthat the CVP "has a federal flood control purpose" (id. at 146)and thus that property damage caused by flooding from CVP components qualifiesfor immunity under the Flood Control Act. Ibid.

Our brief in opposition in this Court is consistent with that view, andwe dispute the contention in the petition reply (at 5) that we have beenin any way "disingenuous." Because the settled understanding ofthe Ninth Circuit as to the flood control functions of the CVP has no controllingweight in this Court, we recited Congress's purpose in establishing theCVP, with citations to the Department of the Interior report, to supportour position that the "irrigation waters" in the Madera Canalare simply released "flood waters" made available from time totime by discharges from the Friant Dam. "The inherent nexus betweenflood control and damage caused by waters escaping from the integrated multi-purposeCVP" (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 principally used for irrigationdoes not change the analysis under the Flood Control Act. The release offlood waters from the Friant Dam in part contributes to making irrigationfrom the Madera Canal possible. Such releases do not irrevocably transformthose waters into something that would deny the government immunity underthe Flood Control Act. Contrary to petitioner's assertion (Pet. Reply 5-6& n.1), none of the Supreme Court cases cited holds that irrigationis the only purpose of the Madera Irrigation District. See United Statesv. 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 inthe brief in opposition to defend the judgment below-that "immunityapplies to all waters 'that [flood control] projects cannot control'"-andthat the government is not believed ever before to have taken that position.Pet. Reply 7 n.2. Again petitioner is mistaken. First, the government'sbriefing for judgment on the pleadings made the very same argument. SeeC.A. R.E. 76 (arguing, in the alternative, that "the leaking canalwaters are 'waters that such projects cannot control' under James").Second, contrary to petitioner's statement that this argument has not beenraised "in any other case so far as we are aware" (Pet. Reply7 n.2), the record excerpts filed by petitioner in the court of appealsdisprove 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 ananalogous 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 sameargument. See C.A. R.E. 157 ("The record demonstrates that the damageto Plaintiff's lands was caused by waters which could not be controlledby the ponding basin adjacent to the San Luis Canal.").

4. The petition reply (at 8) is also mistaken in asserting that we havechanged positions from the argument we made in successfully opposing certiorariin East Columbia Basin Irrigation District v. United States, 522 U.S. 948(1997) (No. 96-2054). The only material difference between the petitionin that case and the one in this case is that petitioner's counsel in EastColumbia Basin-a distinguished law professor at Emory University-did notcontend (as does petitioner in this case) that the result would have comeout differently in the other circuits asserted as conflicting in the CentralGreen petition. As we noted in East Columbia Basin, petitioner there didnot "argue that [the] case would have been decided differently underany other circuit's approach." 96-2054 Br. in Opp. at 10. The apparentdifference in views among the petitioners in East Columbia Basin and inthis case does not support the conclusion that the government has changedits position. Had petitioner in East Columbia Basin argued that the casesinvoked for an alleged conflict in fact did conflict, we would have takenthe position expressed in our brief in opposition in this case, that "nocourt of appeals has disagreed with the holding of the court below: thatthe federal government is immune from suit for property damages caused whenflood waters escape from a multi-purpose project with flood-control as oneof its purposes." Br. in Opp. at 4. Furthermore, petitioner offersno support for the assertion in its reply brief (at 9) that "at thetime certiorari was denied in East Columbia, there was some prospect thatCongress would resolve the circuit conflict as suggested by Justice Stevens,see Hierche v. United States, 503 U.S. 923 (1992)." This Court deniedcertiorari in East Columbia only slightly over two years ago (and five yearsafter Hiersche), and there has been no intervening legal development towarrant a different outcome here.

We take very seriously the statements in petitioner's reply that representationsmade by the United States are "false" (Pet. Reply 9) and "seriouslydisingenuous" (id. at 1, 5). It appears that petitioner has been ledby disagreement with us on a question of law to the mistaken view that wehave misrepresented and failed to disclose facts to the Court. The UnitedStates has argued, and the district court and court of appeals have agreed,that even if irrigation is the principal purpose of the Madera Canal, itswaters have the relationship to flood control or flood waters required bythe Flood Control Act, because flood waters are held by the Friant Dam untildischarged into the Madera Canal, the discharge is at times necessary forflood control purposes, and the discharge enables the irrigation functionof the canal to proceed. Petitioner apparently disagrees with that viewof the statutory term "flood waters," contending that if watersserve 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 misrepresentationor 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

* References to C.A. R.E. are to Central Green's Excerpts of Record filedby petitioner in the court of appeals. For the convenience of the Court,we have lodged copies of it with the Clerk.

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