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



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 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

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.3d834. 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 petitionfor rehearing was denied on September 7, 1999. Pet. App. 21. The petitionfor a writ of certiorari was filed on November 19, 1999. The jurisdictionof this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, Central Green Company, owns pistachio orchards in MaderaCounty, California. Pet. App. 2. The Madera Canal, which is part of theCentral Valley Project (CVP), a multi-purpose water project constructedby the United States and authorized by Congress for purposes including floodcontrol, runs through petitioner's property. Ibid. The canal supplies waterfor irrigation from Millerton Lake, a reservoir created by Friant Dam onthe 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, MillertonLake and Friant Dam are part of the CVP. Ibid.

2. Petitioner brought this action against the United States pursuant tothe Federal Tort Claims Act, 28 U.S.C. 2671 et seq., in the United StatesDistrict Court for the Eastern District of California, alleging that negligentdesign, construction, or maintenance of the Madera Canal by the federalgovernment resulted in leakage of water from the canal. That leakage, whichin turn caused surface and subsurface flooding of petitioner's property,allegedly caused harm to petitioner's pistachio orchards and increased petitioner'sfarming and harvesting costs. Pet. App. 2.

The United States moved for judgment on the pleadings, arguing, inter alia,that the United States is immune from liability under the Flood ControlAct 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 Statesfor any damage from or by floods or flood waters at any place.

33 U.S.C. 702c.

The district court granted the government's motion for judgment on the pleadings.Pet. App. 20. Rejecting petitioner's contention that Section 702c did notapply because the waters carried through the Madera Canal are used for irrigationpurposes and not for flood control, the district court observed that "[t]helegislative history [of Section 702c] * * * is very clear that the scopeof the immunity is very broad." Id. at 19. The district court concludedthat petitioner "ha[d] cited nothing that allows the undermining ofthe 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 thatSection 702c "confers broad immunity for claims arising from the design,operation, or management of federally authorized flood control projects."Id. at 2. Petitioner's "sole argument" against application ofthe immunity here, according to the court, was that the water that damagedits property was not "flood water" within the meaning of the statutebecause it was held "for irrigation purposes rather than flood control."Id. at 3. The Ninth Circuit concluded that its own decisions, both beforeand 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 "apparentcontradiction" in James itself regarding whether application of theimmunity created by Section 702c depends upon the specific purpose for whichwater within a federal flood control project is being used at the time ofan injury. Pet. App. 4 (noting this Court's favorable citation in Jamesof both Morici Corp. v. United States, 681 F.2d 645 (9th Cir. 1982), andHayes v. United States, 585 F.2d 701 (4th Cir. 1978)). The court statedthat, in the wake of James, "[t]he circuits disagree over the degreeof relation the injury must have with flood control activities before immunitywill attach." Ibid.

The court concluded, however, that its own prior decisions-which conferSection 702c immunity to injuries "not wholly unrelated" to floodcontrol- dictated rejection of petitioner's contention that the purposefor which the water was used at the time of the injury should be viewedas controlling. Pet. App. 8. Although the court expressed uncertainty aboutwhether its earlier decisions had interpreted James too broadly (id. at7), the court observed that its longstanding "not wholly unrelated"test was supported both by Congress'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 meaningof 33 U.S.C. 702c. Although the courts of appeals have used different languagein analyzing claims of immunity under this statute, no court of appealshas disagreed with the holding of the court below: that the federal governmentis immune from suit for property damages caused when flood waters escapefrom a multi-purpose project with flood-control as one of its purposes.In all relevant respects, this case is indistinguishable from Washingtonv. 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 watersthat caused the property damage were from an irrigation canal that was partof a multi-purpose project with flood control as one of its purposes; and(2) the plaintiff landowner could not demonstrate that any other circuitwould have ruled in its favor. This Court denied the petition for a writof certiorari. 522 U.S. 948 (1997). Since that time, there has been no significantdoctrinal development in the cases construing Section 702c that would warranta grant of certiorari. The only difference between this case and East ColumbiaBasin is that the Ninth Circuit panel in this case openly expressed itsdisagreement 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 immunityprovision, 33 U.S.C. 702c, in light of this Court's decision in United Statesv. James, 478 U.S. 597 (1986).

a. When Congress embarked upon a multi-decade program to construct damsand other structures for flood control in 1928, one of the issues it facedwas the scope of the federal government's immunity from liability for damagesresulting from its flood control activities. See James, 478 U.S. at 607-608.Congress limited the government's financial exposure by including in the1928 legislation a provision that "[n]o liability of any kind shallattach to or rest upon the United States for any damage from or by floodsor flood waters at any place." 33 U.S.C. 702c.

In James, this Court broadly construed that clear assertion of immunityto extend both to property damage and to personal injury. 478 U.S. at 605.The Court interpreted the terms "flood and flood waters" to applyto "all waters contained in or carried through a federal flood controlproject for purposes of or related to flood control, as well as to watersthat 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 immunity forthe United States. Id. at 608. Accordingly, the Court concluded, "thelegislative history fully supports attributing to the unambiguous wordsof the statute their ordinary meaning." Ibid.

b. This case involves property damage caused directly by water escapingfrom a federal flood control project. It thus lies squarely within the plainlanguage of Section 702c and the decision in James. The statute providesimmunity 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 carriedthrough a federal flood control project for purposes of or related to floodcontrol, as well as to waters that such projects cannot control." 478U.S. at 605 (emphasis added). That language encompasses property damagecaused by waters escaping through seepage from a canal that is part of afederal flood control project. Moreover, protection of the United Statesfrom liability for flooding of land caused by alleged construction failuresof a federal flood control project was central to Congress's concern increating an immunity for federal flood control activities. See id. at 606-608;see also id. at 617 (Stevens, J., dissenting) (arguing that the immunityunder Section 702c should extend only to "overflow damage to land").Nothing in this Court's decision in James supports petitioner's contentionthat an entire project, one of whose purposes is flood control, may be subdividedinto parts that would not be immune from liability for damage caused byflood waters.

2. Petitioner nevertheless contends that the court of appeals' decisionmisreads James by effectively eliminating any requirement for a factualnexus between an injury and federal flood control activities to supportimmunity under Section 702c. See Pet. 14.1 That contention is incorrect:the injury complained of in this suit (property damage) is asserted to havebeen proximately caused by the negligent construction of an irrigation canalthat performs flood control functions. The extensive Central Valley Project(CVP) has been the subject of Section 702c litigation in the Ninth Circuitand its constituent district courts on many occasions, and has producedjudicial decisions in which the project's flood control function and therelationship 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 StatesBureau of Reclamation, 64 F. Supp. 2d 966, 969 (E.D. Cal. 1999); UnitedStates 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'smany components in finding immunity under Section 702c, and they give contentto the court of appeals' ruling that the damage in question here is "notwholly unrelated to flood control." Pet. App. 8.

Indeed, as long ago as Morici, cited favorably by this Court in James, 478U.S. at 605 n.7, the Ninth Circuit and the district court described thefactual nexus between the project's flood control activities and its otherpurposes in extending the immunity to damages caused by waters escapingfrom an irrigation component of the CVP. As the district court in the Moricicase recognized, "[t]he Central Valley Project is operated as an integratedwhole, rather than as a number of separate, isolated parts, because waterreleases at any one facility must be coordinated with releases at otherfacilities in that river basin." Morici v. United States, 491 F. Supp.at 490. The analysis in Morici formed the basis for the Ninth Circuit'smore recent decision in Washington v. East Columbia Basin Irrigation District,105 F.3d 517 (9th Cir.), cert. denied, 522 U.S. 948 (1997), which involvedwaters escaping from an irrigation component of another multi-purpose federalwater project, the Columbia Basin Project.2

The circumstances of Morici are replicated here. The inherent nexus betweenflood control and damage caused by waters escaping from the integrated,multi-purpose CVP is evident from a Department of the Interior report preparedshortly after Friant Dam, Millerton Lake, and the Madera Canal were placedin 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 primarymethod of flood control in California's Central Valley before constructionof the CVP-would "advantageously be supplemented by the operation ofmultiple-purpose reservoirs and irrigation canals." Id. at 162 (emphasisadded). The role of the project's various components in achieving that floodcontrol benefit was explained as follows:

Reservoirs would be used to store flood flows until they could be releasedat rates within the capacity of the channels below, or until they couldbe used to meet irrigation requirements. Irrigation canals in some caseswould be used to advantage to carry a portion of the flood flows away fromthe danger zones to areas where the water could be used beneficially. Suchuse of multiple-purpose structures for flood control is an important factorin the comprehensive plan for basin development.

Ibid. (emphasis added).

The report further explained that two sorts of floods occur in the CentralValley-those caused by rain and those caused by snow-melt. S. Doc. No. 113,supra, at 162. Both are controlled by maintaining sufficient water storagecapacity in reservoirs behind dams. Ibid. When such storage space is usedto store a rain flood, "it must be emptied as rapidly as possible"to make room for future, unpredictable rains. Ibid. Thus, "storagespace reserved for such floods cannot be used for conservation [i.e., irrigation]until after the rain-flood season." Ibid. The volume of snow-melt inany given year can be predicted several months in advance, however, allowingoperators of the CVP "to empty sufficient storage space in advanceof the snow-melt run-off to prevent or reduce flood damage, with reasonableassurance 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 andretain 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 themain San Joaquin River and its principal tributaries * * * cause damageon the flood plains along the rivers, and in the Sacramento-San JoaquinDelta." S. Doc. No. 113, supra, at 164. Levees along the river were"inadequate to control even moderate floods," but "MillertonLake (Friant) Reservoir on the San Joaquin River * * * now offers additionalprotection." Ibid. The report estimated that "the average damagefrom recurrent floods [along the San Joaquin River] would be $4,215,000annually, under conditions prior to the beginning of the operation of MillertonLake in 1944" but that "[t]his reservoir will reduce the annualdamage by $279,000." Ibid. That flood control benefit directly resultsfrom the diversion of the waters of the San Joaquin River into irrigationcanals fed by Millerton Lake-including the Madera Canal, which runs throughpetitioner's property. See id. at 130 ("the run-off of San JoaquinRiver will be made available for diversion at Friant Dam to Friant-Kernand Madera canals"). Indeed, virtually the entire flow of the San JoaquinRiver is diverted into those canals. Natural Resources Defense Council v.Houston, 146 F.3d 1118, 1123 (9th Cir. 1998) ("[s]ince the time thatthe dam was completed, the Friant unit has impounded the San Joaquin Riverwater behind the Friant dam and diverted the water to surrounding irrigationdistricts," 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 thewater seeping onto petitioner's land from the Madera Canal. Not only wasthat seepage caused by waters that the CVP "[could] not control,"but those waters were also "contained in or carried through a federalflood control project for purposes of or related to flood control."James, 478 U.S. at 605 (emphasis added). Thus, contrary to petitioner'sassertions, the court of appeals has not applied Section 702c without regardto whether a factual nexus exists between the injury in question and thegovernment's flood control activities.

3. The decision below is entirely consistent with the decisions of the othercircuits articulating, in the wake of James, some form of factual nexusrequirement as an essential predicate to immunity under Section 702c. Whenthe various other circuits have concluded that the particular facts beforethem satisfy that nexus requirement, they have held the government immunefrom suit.4 In other cases, involving injuries more remotely related to federalflood control efforts, they have held the government subject to suit.5

Petitioner is incorrect (Pet. 18-23) that the tests articulated by othercourts would produce a different result on the facts here.6 In Cantrell,for example, a fisherman sued the government for an injury from a crashby an Army Corps of Engineers boat that was transporting him after his ownboat malfunctioned. In denying the government's assertion of Section 702cimmunity, the court of appeals ruled that there must be a nexus betweenthe allegedly tortious government conduct and flood control. See Cantrellv. United States, 89 F.3d 268, 273 (6th Cir. 1996). Contrary to petitioner'ssuggestion (at 18-19), that test is satisfied in this case. Petitioner'scomplaint alleged that the United States had negligently "designed,""maintained," and "operated" a canal that is part ofan integrated multi-purpose flood control project, and that the government'snegligence caused waters escaping from that project to damage petitioner'sproperty. C.A. E.R. 4-8 (Compl. ¶¶ 16-34). Thus, even if Section702c in all circumstances required a nexus between the allegedly tortiousact and flood control activities, that nexus requirement would be satisfiedhere. See pp. 8-11, supra.

Likewise, the test articulated by the Eighth Circuit is met here, contraryto petitioner's suggestion (at 19). In Henderson, a fisherman was sweptaway when water was released from a dam operated by the Army Corps of Engineers,which had contracted with a private power company that requested releasesof waters at particular times to generate hydroelectric power. 965 F.2dat 1490-1491. But unlike this case, Henderson did not involve waters escapingfrom a multi-purpose project-a situation expressly covered by James, whichdefined "flood waters" to include "waters that such projectscannot control." 478 U.S. at 605. Rather, Henderson concerned the controlledrelease of waters for hydro-electric power generation. Thus, the EighthCircuit's decision in Henderson was a straightforward application of thestatement in James that the waters be "flood waters" that a floodcontrol project "cannot control." Ibid. No such waters were atissue in Henderson, but they are at issue here.

Nor is it clear, as petitioner asserts (Pet. 19), that the Tenth Circuitwould reach a different result on the facts here. That circuit declinedto hold the government immune from suit in Boyd because it found an insufficientfactual nexus between federal flood control efforts and a swimmer's deathcaused 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 againstthe government was a negligent failure to warn. That theory had no relationto the government's flood control activities. By contrast, the constructionof the Madera Canal and its operation as an irrigation canal are directlyrelated to the flood control purpose of the Central Valley Project. Thus,Boyd provides no reason to think that the decision below would have comeout differently in the Tenth Circuit. See also Holt, 46 F.3d at 1005 (TenthCircuit holding government immune where injury was caused by flood controlactivities).

Finally, citing the pre-James decision in Hayes, petitioner asserts (at21) that the outcome on the facts here would be different in the FourthCircuit. In an unpublished decision issued after James, however, that circuitfavorably cited not only the Ninth Circuit's McCarthy decision but numerousother post-James decisions applying 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 immunized the government from liabilityfor a diving injury in a lake operated by the Army Corps of Engineers becausethe lake's multiple purposes included flood control and it was "constantly* * * monitored and maintained daily by the Army for the purpose of controllingfloods."7

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

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 thosecaused by flood control activities. The point of that distinction is that,when the government's flood control activities are not the proximate causeof the injury, courts of appeals have employed a variety of different linguisticformulas to determine whether the government enjoys immunity from suit under33 U.S.C. 702c but those different tests have not caused different results.See note 6, infra.

2 In its only published decision applying Section 702c since James wherethe damage was not caused by escaping waters-and where the nexus betweenthe injury and flood control therefore could not be assumed-the Ninth Circuitexplicitly acknowledged its reliance on the existence of such a linkagein concluding that the government was immune. The plaintiff in McCarthyv. 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 waspart of a multi-purpose federal flood control project. In determining thatSection 702c protected the government from liability, the court of appealsnoted that the level of water in the lake was monitored on a daily basisto calibrate discharges for flood control purposes, and that therefore watersin the project "for purposes related to flood control were a substantialfactor in bringing about McCarthy's injuries." 850 F.2d at 561-562(emphasis added).

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

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 controllake caused by opening of water control device, noting that "periodicrelease 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 factsof case, government immune from suit where there was a "sufficientassociation" between injury to recreational boater during Coast Guardrescue 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 immunefrom suit where there was a "sufficient nexus" between car accidentand mist, which was created by water released from flood control project'sdam and which caused an ice slick on an adjacent road); Fisher v. UnitedStates Army Corps of Engineers, 31 F.3d 683, 684 (8th Cir. 1994) (governmentimmune from suit where shallow level of water as a result of operation offlood control project was a "substantial factor" in a recreationaldiving accident); Thomas v. United States, 959 F.2d 232 (4th Cir. 1992)(Table) (government immune from suit in recreational diving accident occurringat lake which, despite its commercial uses, had flood control uses as welland which was "monitored and maintained daily by the Army for the purposeof controlling floods"); Zavadil v. United States, 908 F.2d 334, 336(8th Cir. 1990) (government immune from suit where water level at GavinsPoint Dam, a part of a flood control project, was a "substantial factor"in a recreational diving accident), cert. denied, 498 U.S. 1108 (1991);Fryman v. United States, 901 F.2d 79, 82 (7th Cir.) (government immune fromsuit for injuries sustained at lake created as part of a flood control projectwhich "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 byunsafe depth of water due in part to releases of water for flood controlpurposes); Dewitt Bank & Trust Co. v. United States, 878 F.2d 246, 247(8th Cir. 1989) (government immune from suit where management of shallowwaters at a flood control project was a "substantial factor" incausing injuries sustained in diving accident), cert. denied, 494 U.S. 1016(1990); Mocklin v. Orleans Levee Dist., 877 F.2d 427 (5th Cir. 1989) (governmentimmune from suit for drowning caused by deep water in a flotation channelthat had been excavated for a flood control project).

5 See Kennedy v. Texas Utils., 179 F.3d 258 (5th Cir. 1999) (no immunitywhere injury occurred on dry land due to a condition with no associationto flood control); Cantrell v. United States, 89 F.3d 268 (6th Cir. 1996)(no immunity from claim by recreational boater injured by allegedly negligentdriver of Army Corps of Engineers' boat); Henderson v. United States, 965F.2d 1488 (8th Cir. 1992) (no immunity in death of fisherman where drowningwas caused by release of water, at direction of private power company, fromdam operated for hydroelectric power generation); Boyd v. United States,881 F.2d 895 (10th Cir. 1989) (no immunity for allegedly negligent failureto warn swimmers of hazard from boats, in death of snorkeler struck by privatelyoperated power boat at flood control lake); E. Ritter & Co. v. Departmentof the Army, 874 F.2d 1236 (8th Cir. 1989) (no immunity for erosion causedby 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 authorizing statute, that particularproject 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 andthe 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 formulationsto determine whether the requisite factual nexus between the injury andthe government's flood control project or activities has been established.See, e.g., Br. in Opp. at 9 n.5, Paulk v. United States, No. 99-390 (filedNov. 3, 1999). But here, as in those cases, the same result would have beenreached under any of the prevailing approaches. Thus, the property damageinjury here was "not wholly unrelated" to a project with floodcontrol as one of its purposes. Pet. App. 8; Washington v. East ColumbiaBasin Irrigation Dist., 105 F.3d 517, 520 (9th Cir.), cert. denied, 522U.S. 948 (1997). Likewise, "governmental control of flood waters wasa substantial factor in causing" petitioner's property damage, sincereleases of the flood control waters from Millerton Lake supplied the MaderaCanal and those releases resulted from the capacity of the Friant Dam toretain flood waters. DeWitt Bank & Trust Co. v. United States, 878 F.2d246, 247 (8th Cir. 1989), cert. denied, 494 U.S. 1016 (1990). And the injurywas certainly "more likely" because of the "activities orcharacteristics" of a flood control project, both in terms of the volumeof flood waters supplied to the Madera Canal as well as its design and constructionas a means of controlling such waters for conservation/irrigation purposes.See Bailey v. United States, 35 F.3d 1118, 1124 (7th Cir. 1994).

7 The court of appeals suggested a different list of circuits in which theoutcome would "probably" be different on the facts here, omittingthe Sixth Circuit but including the Seventh. See Pet. App. 9. Although petitioneracknowledges 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 activities increase[d] the probabilityof the plaintiff's injury" (Bailey v. United States, 35 F.3d 1118,1124 (7th Cir. 1994)), that test is met here. The flood control benefitof impounding the waters of the San Joaquin River at Friant Dam is directlyachieved by diverting water into the Madera Canal. See pp. 8-11, supra.

Likewise, petitioner is incorrect to assert that the government "likelywould not be accorded immunity" in the Fifth Circuit. Pet. 22 (citingKennedy 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 maybe ambiguous and thus subject to differing interpretations, the ordinaryand common meaning * * * does not, in our view, extend to an injury occurringon land apart from water and as the result of a use of the land itself."179 F.3d at 261. The court there also cast no doubt on the continuing validityof Boudreau, in which the Fifth Circuit had upheld the government's immunityfrom a suit alleging negligence when the Coast Guard Auxiliary attemptedto tow a stranded recreational vessel on a flood control lake because suchactions constituted "the management of a flood control project."53 F.3d at 85 (quoting James, 478 U.S. at 610).

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