United States Court of Appeals,

Eleventh Circuit.

No. 94-5036

Non-Argument Calendar.

Beverly S. REESE, Personal Representative of the Estate of James

C. Reese, on Behalf of the Estate of James C. Reese and on Behalf

of Beverly S. Reese, Surviving Wife of James C. Reese, Jamie L.

Reese, Surviving Minor Daughter of James C. Reese, Leandra J.

Reese, Surviving Minor Daughter of James C. Reese, PlaintiffAppellant,

Leandra J. Reese, Intervenor,

v.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an Agency and/or

Subdivision of the State of Florida, Defendant-Third-Party

Plaintiff,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, Terrence C. Salt, as

District Engineer, U.S. Army Corps of Engineers, Jacksonville

District, Thomas Taylor, Third-Party Defendants-Appellees.

July 27, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-8108-CIV-JLK), James Lawrence King,

Judge.

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

This is an appeal from the dismissal of appellant's complaint

based on governmental immunity pursuant to the Flood Control Act,

33 U.S.C. § 702c. Appellants Beverly S. Reese and her two minor

children ("Reese") filed a wrongful death action for the drowning

of her husband and their father, James C. Reese ("James Reese"),

against the South Florida Water Management District in the state

court of Florida. The South Florida Water Management District

filed a third party claim for contribution or indemnity against the
United States Army Corps of Engineers ("Corps") and Terrence Salt

as District Engineer, and the United States removed the case to

federal court. Reese subsequently filed another wrongful death

action directly against the United States pursuant to the Federal

Tort Claims Act, 28 U.S.C. §§ 2671-2680, and the cases were

consolidated. The United States moved to dismiss both cases based

on governmental immunity pursuant to 33 U.S.C. § 702c and the

district court granted the motion, remanding the state case back to

state court.

The decedent drowned while fishing in Lake Okeechobee, which

contains water and flood control structures supervised by the

Corps. The drowning occurred after the Corps opened a water

control device or lock which operated beneath the water's surface

to allow waters to flow downstream from the higher level of the

lake. James Reese was in a boat near the lock, engaged in

recreational fishing, when the lock opening created a powerful

current which forced him and his boat against a cable strung across

the lock's entry. He was thrown overboard and his body was flushed

down through the bottom of the lock and eventually downstream.

The Flood Control Act of 1928, 33 U.S.C. § 702c, states in

pertinent part:

No 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.

Reese argues, nonetheless, that the United States is not entitled

to immunity in this case pursuant to the Flood Control Act because

the water which caused James Reese's drowning was released by the

United States for irrigational, agricultural and environmental
purposes and not exclusively for purposes of flood control.

 What happened to James Reese is unfortunate and tragic, and

perhaps could have been avoided if warnings or a schedule of water

releases had been posted. Nonetheless, the United States of

America is immune from liability in this case. On the basis of

United States v. James, 478 U.S. 597, 106 S.Ct. 3116, 92 L.Ed.2d

483 (1986), we find that the applicability of § 702c immunity in

multi-purpose projects such as the Central and South Florida

Project does not depend upon the particular use of the project when

the negligence occurred. In James, as in this case, recreational

users of reservoirs were injured or drowned when the Corps opened

retaining structures to control "flood stage" waters. In

interpreting § 702c, the Court held that the word "damage" includes

injury to both property and person, and the words "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, 106 S.Ct. at 3121. Moreover, found the Court, the

language "liability of any kind" for "any damage" requires broad

construction. Id. (emphasis in original).

After tracing the legislative history of 33 U.S.C. § 702c, the

James court concluded that sweeping language of § 702c "

"safeguarded the United States against liability of any kind for

damage from or by floods or flood waters in the broadest and most

emphatic language.' " Id. at 608, 106 S.Ct. at 3122-23 (quoting

National Mfg. Co. v. United States, 210 F.2d 263, 270 (8th

Cir.1954), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed.2d
1108 (1954)). Finally, the Supreme Court also found that the

purpose of the project, if authorized by Congress as a flood

control project, was determinative of whether Congress intended

immunity to apply. Id. at 610 n. 10, 106 S.Ct. at 3124 n. 10.

In the case at bar, the level of Lake Okeechobee was being

controlled in order to direct water into a canal that was used for

a variety of purposes, including irrigation, well recharging and

deterring salt water intrusion. A lock was opened to allow

floodwaters to flow downstream from the higher elevation of Lake

Okeechobee. These facts are nearly identical to those in James.

The only arguable distinction that appellants offer is that while

the Supreme Court found in James that the water involved was

discharged to control flooding, id. at 606 n. 7, 106 S.Ct. at 3121

n. 7, here the water was also used for irrigation and other

purposes.

Even assuming the water was released "solely for" or "only

for" irrigation and other purposes, it was water contained within

a multi-purpose federal flood control project, and James clearly

held that all water in a federal flood control project is

considered "flood water" if it is part of the project. Id. at 605,

106 S.Ct. at 3121. The periodic release of water is fundamental to

the operation of a flood control project.

Reese also argues that James is distinguishable in other ways

and cites as support Boyd v. United States, 881 F.2d 895 (10th

Cir.1989), Henderson v. United States, 965 F.2d 1488 (8th

Cir.1992), and Denham v. United States, 646 F.Supp. 1021

(W.D.Tex.1986), aff'd, 834 F.2d 518 (5th Cir.1987). In Boyd, the
decedent was struck and killed by a boat while snorkeling in a

reservoir under the control of the Corps. The Tenth Circuit found

that while the reservoir was operated by the Corps for flood

control purposes, the United States was not entitled to immunity

because the "requisite nexus" was not established between its

operation of the reservoir as a recreational facility and its

immunity from liability associated with flood control operations.

Boyd, 881 F.2d at 900. In the instant case, by contrast, we do

find a sufficient nexus since, although decedent was engaged in

recreational fishing, the Corp's opening of the lock which led to

his death was a flood control operation.

In Henderson, decedent drowned while wade fishing near a dam

operated by the Corps. Water was released to generate

hydroelectric power pursuant to an order by a local electric

cooperative, and decedent, who was standing on a sand bar, was

swept away to his death. The Eighth Circuit found that it could

not " "conclude that governmental control of flood waters was a

substantial factor in causing [the decedent's] injuries.' "

Henderson, 965 F.2d at 1492 (citation omitted). But while the

Eighth Circuit did not bar plaintiff's claim, it did distinguish

Henderson from another Eighth Circuit case, Dewitt Bank & Trust Co.

v. United States, 878 F.2d 246 (8th Cir.1989), cert. denied, 494

U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 493 (1990).

In Dewitt, a recreational swimmer was denied a cause of action

for injuring himself by diving into shallow water:

[Plaintiff] ... was injured by diving into the shallow waters

of a federal flood control project. In operating the project

for flood control and navigation, the Corps maintained the

waters at this shallow level. Thus, governmental control of
flood waters was a substantial factor in causing [plaintiff's]

... injuries.

Dewitt, 878 F.2d at 247. Here, the operation of the Lake

Okeechobee lock, like the maintenance of the shallow water in

Dewitt, and unlike the generation of hydroelectric power for the

local cooperative in Henderson, or the snorkeling accident in Boyd,

was clearly undertaken for government flood control purposes.

In Denham, a man swimming in a lake owned and operated by the

Corps struck his head on an underwater obstruction—a buoy anchor

abandoned by the Corps—and was rendered a quadriplegic. The

District Court, affirmed by the Fifth Circuit, found that the

injury arose out of the dam's use as a recreational facility and

had no relationship to the control of floodwaters. In the instant

case, again, the death of James Reese arose directly out of the

Corps' floodwater control operations at Lake Okeechobee.

Thus, we do not find these cases applicable and are persuaded

that James controls the outcome here. Accordingly, the district

court's dismissal of appellants' complaint is AFFIRMED.