1 District Judge of the Northern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-10636

_____________________

DANIEL A. BOUDREAU,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_____________________________________________________ (May 12, 1995)

Before SMITH and BARKSDALE, Circuit Judges, and FITZWA TER, 1

District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue is whether the Flood Control Act of 1928, 33 U.S.C.

§ 702c ("No liability ... [to] United States for any damages from

... flood waters ...."), prov ides immunity for the United States

from the alleged negligence of the Coast Guard Auxiliary in

attempting to tow a stranded recreational vessel on a flood control

lake. Finding that this activity was "associated with flood

control", United States v. James

, 478 U.S. 597, 608 (1986), we

AFFIRM

.2 Observing that winds were at least 30 knots, with waves of

three to four feet, Spalding directed Boudreau and his friend to

put on life jackets.

3 The Government maintains that the anchor line broke free when

the wind and waves hit the SIMPLE PLEASURE, c ausing it to turn

sharply and pull the tow line. Boudreau denies that the conditions

on the Lake contributed to the accident.

- 2 - I.

On July 5, 1992, Daniel Boudreau and a friend took Boudreau's

boat, th e SHAMAN, out on Lake Lewisville, Texas. After

experiencing engine trouble, Boudreau called for assistance from

the Coast Guard Auxiliary, and was told to anchor his vessel. A

Coast Guard Auxiliary vessel, the SIMPLE PLEASURE, arrived to

assist, and its operator, Thomas Spalding, and his crewmember gave

verbal towing instructions to B oudreau. 2 After securing a tow

line, Boudreau was instructed to either lift anchor or cut its

line. While attempting to lift anchor, the anchor line broke free

of its mount and swung into Boudreau's leg, causing severe injury. 3

Upon Boudreau filing an action against the United States, the

Government, inter alia

, moved, purs uant to Fed. R. Civ. P.

12(b)(1), to dismiss for lack of subject matter jurisdiction,

claiming immunity under § 702c of the Flood Contr ol Act of 1928.

The motion was granted.

II.

Boudreau asserts that, under the facts of this case, § 702c

immunity does not lie. We review d e no vo a Rule 12(b)(1)

dismissal, e.g.

, EP Operating Ltd. Partnership v. Placid Oil Co.

,

26 F.3d 563, 566 (5th Cir. 19 94), but with Boudreau having the4 As discussed infra

, the Supreme Court in United States v.

James

, 478 U.S. 597, 606-07 (1986) (footnotes omitted; brackets by

Court; emphasis added) took note of the reaffirmation of immunity

by § 702c:

...[W]e do not find that the legislative history of

the statute justifies departure from the plain

words of the statute. Indeed, on balance we think

the legislative history of the Flood Control Act of

1928 reinforces the plain language of the immunity

provision in § 702c.

The Flood Control Act enacted "a comprehensive

ten-year program for the entire [Mississippi River]

valley, embodying a general bank protection scheme,

- 3 - burden of demonstrating jurisdiction. L owe v. Ingalls

Shipbuilding, A div. of Litton Sys., Inc.

, 723 F.2d 1173, 1177 (5th

Cir. 1984).

Section 702c provides in relevant 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". Boudreau concedes

that the Lake is a flood control lake. S ee McCarthy v. United

States

, 850 F.2d 558, 560 (9th Cir. 1988) (finding that Lake

Lewisville is a flood control lake), cert. denied

, 489 U.S. 1052

(1989). At issue, then, is whether his injuries were "from or by

... flood waters".

Guiding our decision is the general principle that "no action

lies against the United States unless the legislature has

authorized it". D alehite v. United States

, 346 U.S. 15, 30 (1953).

Concomitantly, there must be a "clear relinquishment of sovereign

immunity to give jurisdiction for tort actions". I d

. at 31. This

principle is all the more in focus when, as here, a clear

reaffirmation of immunity is in play. 4channel stabilization and river regulation, all

involving vast expenditures of public funds."

United States v. Sponenbarger

, 30 8 U.S. 256, 262

(1939). The Act was the Nation's response to the

disastrous flood in the Mississippi River Valley in

1927. That flood resulted in the loss of nearly

200 lives and more than $200 million in p roperty

damage; almost 700,000 people were left homeless.

S.Rep. No. 61 9, 70th Cong., 1st Sess., 12 (1928). - 4 -Frear).

5 In construing § 702c in James , the Court stated:

The Act concerns flood control projects designed to

carry floodwaters. It is thus clear from § 702c's

p lain 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.

478 U.S. at 605.

6 As the Seventh Circuit observed: "The [Supreme] Court found it

hard to conceive how § 702c could have been more broadly written;

we find it hard to conceive how a decision interpreting this

statute could have been more broadly written." F ryman v. United

States

, 901 F.2d 79, 81 (7th Cir. ), c ert. denied

, 498 U.S. 920

(1990).

- 5 - As our court has recognized, "[t]he Supreme Court has given [§

702c] broad meaning based on the language and legislative history

of the section ". M ocklin v. Orleans Levee Dist.

, 877 F.2d 427,

428-29 (5th Cir. 1989) (citing United States v. James

, 478 U.S.

597, 604 (1986)). Indeed, the Court observed in James that "[i]t

is difficult to imagine broader language", 478 U.S. at 604, and

concluded that "Congress clearly sought to ensure beyond doubt that

sovereign immunity would protect the Government from `any'

liability associated with flood control." I d. at 608

. 5 The

breadth of the Court's interpretation of § 702c is undeniable. 6

Notwithstanding the broad language of James

, there is

disagreement among the ci rcuits on the application of § 702c.

Hiersche v. United States , 112 S. Ct. 1304, 1305 (1992) (Stevens,

J.) (recognizing, but refusing to resolve circuit split), denying

cert. to 933 F.2d 1014. Three examples suffice.7 In McCarthy

, the Ninth Circuit upheld immunity after the

plaintiff dove into shallow water at Lake Lewisville and fractured

his neck. McCarthy v. United States , 850 F.2d 558, 563 (9th Cir.

1988). The court reasoned that the creation of the flood control

project at the Lake created a passive condition which led to the

injuries; therefore, the injury was not "wholly unrelated" to flood

control. Id . at 561-63. Likewise, the court concluded that the

alleged negligence by the Government in failing to post warning

signs for the benefit of recreational users of the lake was not

"wholly unrelated" to flood control. Id . at 563.

8 In Fryman , the Seventh Circuit had earlier explained that it

would not rule out the possibility that immunity might apply even

in cases where an injury was not made more likely by flood control

activities, but only happened to occur at a flood control lake.

Not required to reach that question, the court declined to do so.

Fryman

, 901 F.2d at 82; accord Bailey v. Unite d States , 35 F.3d

1118, 1124 (7th Cir. 1994).

- 6 - The Ninth Circuit applies the "wholly u nrelated" test;

immunity is denied only when an injury is "wholly unrelated to any

Act of Congress authorizing expenditures of federal funds for flood

control, or any act undertaken pursuant to any such authorization".

Morici Co rp. v. United States , 681 F.2d 645, 647 (9th Cir. 1982)

(quoting Peterson v. United States

, 367 F.2d 271, 275 (9th Cir.

1966)); see also McCarthy , 850 F.2d at 562. 7 On the other hand,

the Tenth Circuit "cannot agree that Congress intended to stretch

the shield of flood control immunity to the limits contemplated by

the `wholly unrelated' standard". B oyd v. United States

, 881 F.2d

895, 900 (10th Cir. 1 989). The Seventh Circuit would at least

grant immunity where an injury is "more likely" because of the

"activities or characteristics" of a flood control project. B ailey

v. United States , 35 F.3d 1118, 1124 (7th Cir. 1994). 8

In our circuit, the analysis is fact-specific. See Mocklin

,

877 F.2d at 429-30 (applying fact-specific analysis; deciding only9 In M ocklin

, plaintiffs' son drowned when he slipped fro m a

sand bar into a flotation channel in Lake Pontchartrain. Mocklin

v. Orleans Levee Dist.

, 877 F.2d 427, 428 (5th Cir. 1989). The

flotation channels had been dredged to provide access for barges

carrying equipment for the reinforcement of the flood control

levees along the lake. I d. Finding that the channels "were

inescapably part of a flood control project", our court concluded

that "the [flood control] water in the flotation channel causally

did contribute to the drowning of the Mocklins' son: the channel

created a significant drop-off in the lake". I d. at 430.

Accordingly, § 702(c) immunity applied. Id.

10 The James Court stated that "the manner in which to convey warnings, including the negligent failure to do so

, is part of

`management' of a flood control project". 478 U.S. at 610

(emphasis added).

- 7 - the case before it). 9 As hereinafter discussed, and based on the

facts of this case, we conclude that, as per James

, there is a

sufficient association between the Coast Guard Auxiliary's

activities and flood control.

James included "`manageme n t' of a flood control project"

within the ambit of activity associated with flood control. 478

U.S. at 609-610. 10 In turn, the district court based its decision

to apply § 702c immunity in this case on the fact that the alleged

negligence was by the Coast Guard Auxiliary, which "is part of the

Government's management of Lake Lewisville and serves to control

the waters in a varie ty of capacities". Relying on James

, the

district court concluded that th e Auxiliary's management of the

flood control lake established the requisite nexus between

Boudreau's injury and flood control.

Boudreau challenges this conclusion, contending that the

Auxiliary's responsib ilities on the Lake consisted only of water

safety management, and were therefore unrelated to flood control.11 In view of this inconsistency, the Seventh Circuit concluded:

"We make nothing of the Court's citation to Hayes

.... [C]iting

inconsistent holdings does not endorse either." Fryman , 901 F.2d

at 81. S ee Zavadil v. Un ited States , 908 F.2d 334, 336 n.4 (8th

Cir. 1990), cert. denied

, 498 U.S. 1108 (1991); Dawson v. United

States

, 894 F.2d 70, 73 (3d Cir. 1990); McCarthy

, 850 F.2d at 562;

Cox v. United States , 827 F. Supp. 378, 381 (N.D.W.Va. 1992).

- 8 - His primary support comes from note 7 to the James opinion. That

note contains a string-cite including Hayes v. United States , 585

F.2d 701, 702-03 (4th Cir. 1978). J ames

, 478 U.S. at 605 n.7. The

parenthetical following the citation quotes a porti on of H ayes

,

reading: "If the plaintiff could prove damage ... as a result of

the dam's operation as a recreational facility without relation to

the operation of the dam as a flood control project

, he would avoid

the absolute bar of § 702c." Id . (Emphasis added in James .)

Viewed in isolation, the Court's citation to Hayes appears to

support Boudreau; but, on close examination, it does not. First,

the note is only in reference to the Court's statement in the text

that "the waters [in issue] clearly fall within the ambit of the

statute"; that statement did not concern when immunity would not

bar liability for injury from flood waters. Id. at 605. Second,

note 7 is internally inconsistent. In the same note, and b efore

the citation to Hayes

, the Court also cites Morici

, 681 F.2d 645 at

647-48, for the proposition that immunity is available unless the

Government's ac t ivity is "wholly unrelated" to flood control.

James

, 478 U.S. at 605 n.7. And, M orici specifically rejected the

Hayes approach. Morici , 681 F.2d at 647-48. 11

Furthermore, as quoted in note 10, supra

, the Court concluded

in James that even the Government's failure t o warn recreational12 Many of the § 702c cases involve accidents occurring at or

near hydroelectric dams at flood control projects. S ee, e.g.

, James

, 478 U.S. at 599-601 (accidents at flood dams in Arkansas and

Louisiana). We note with interest that, when the Auxiliary was

dispatched to find Boudreau's boat, it was reported located "out by

the dam".

13 The Flood Control Act of 1962 authorized the Corps of

E ngineers to "construct, maintain, and operate public park an d

recreational facilities" at flood control project s. 16 U.S.C. §

460d. Thus, upon the creation of a flood control project: "It is

the policy of the Secretary of the Army, acting through the Chief

of Engineers, to manage the natural, cultural and developed

resources of each project in the public interest, providing the

public with safe and healthful recreational opportunities ...." 36

C.F.R. § 327.1(a).

14 The Memorandum of Agreement between the Corps of Engineers and

Coast Guard reads in part:

1. Responsibility[.]

A. Both the U.S. Army Corps of Engineers and

the U.S. Coast Guard are responsible for

administering water safety programs on inland lakes

under their concurrent jurisdictions....

2. Purpose of Agreement.

A. Recognizing the above responsibilities, it

is hereby granted that the purpose of this

agreement is to facilitate water safety patrols by

local U.S. Coast Guard Auxiliary....

- 9 - visitors of dangerous conditions fell within "the `management' of

a flood control project". 478 U.S. at 610. Such management is

involved here. 12 The creation of the flood control project resulted

in the Army Corps of Engineers being responsible for providing

water safety patrols at t he Lake. 1 3 The Corps of Engineers, in

turn, reached an agreement with the Coast Guard Auxil iary to

perform this func tion. 1 4 Therefore, just as, under the facts in

James , the Government had the responsibility to warn of dangerous

water conditions, the Government had the responsibility under the- 10 -

facts in this case to provide wat er safety patrols. In each

instance, the responsibility arose because of the establishment of

a flood control project. Likewise, in each instance, the

Government's activity is properly con sidered part of the

"management of a flood control project".

Notwithstanding that the Auxiliary was engaged in the

management of a flood control project, Boudreau contends, as noted,

that his injury is completely unrelated to flood control. Although

we disagree, we note the suggestion by some courts that "management

of a flood control project" may well be insufficient, standing

alone, to allow for § 702 immunity. As the Seventh Circuit

observed:

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 .... Yet they would have

nothing to do with management of flood waters, and

it is hard to conceive that they ar e "damage from

or by floods or flood waters" within the scope of §

702c.

Fryman v. United States

, 901 F.2d 79, 81 (7th Cir.), cert. denied

,

498 U.S. 920 (1990); C ox

, 827 F. Supp. at 381-82. We leave for

another day whether this should influence future decisions by this

court. In any event, if the foregoing represents an overapplication of § 702, the present case is safely removed from that

realm. Here, we cannot say that Boudreau's injury has "nothing to

do with man agement of flood waters". His injury resulted from a

boating accident on flood control waters involving the Government's15 The Government notes that, but for the creation of the flood

control project at the Lake, Boudreau could not have been injured

there. It notes also that a boating accident such as this could

occur only on water. But we need not stop there. Although

causation is disputed, the conditions on the Lake and the location

of Boudreau's vessel certainly made an accident of this nature more

probable. For example, not only did the accident occur at a flood

control lake, it occurred in an area that would not have been

submerged without flood control. In this regard, the Government

maintains that Boudreau's anchor was ca ught in trees beneath the

surface of the lake

-- trees submerged only as the result of flood

control. Furthermore, it is evident from the record that the

waves, high winds, and other conditions on the lake could have

contributed to the accident.

- 11 - patrol of those waters

. Assuming, without deciding, that something

more is required in addition to "management of a flood control

project", we are confident that, based on the facts at hand, this

case meets the mark. 15

III.

For the foregoing reasons, the judgment is

AFFIRMED

.

JERRY E. SMITH, Circuit Judge, dissenting:

"[A]s with any case involving the interpretation of a statute,

our analysis must begin with the language of the statute itself."

Touche Ross & Co. v. Redington

, 442 U.S. 560, 568 (1979). The

relevant statutory provision for this case states:

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.

33 U.S.C. § 702c.1 I realize that this point may be part and parcel of the causation

analysis or vice versa. S ee Denham

, 646 F. Supp. 1026. I concentrate on the

causation point specifically, for emphasis.

- 12 - The Supreme Court acknowledged, and the majority emphasizes,

the broad nature of this language. S ee United States v. James

, 478

U.S. 597, 604 (1986). Specifically, the Court has emphasized the

word "any," which appears three times in the relevant provision.

Id. This case, however, does not turn on language from the

relevant provision that is modified by the word "any."

The simple question is whether the damages in this case were

"from or by f loods or flood waters." I will assume that the

circumstances in this case involved "floods or flood waters" within

the meaning of the st atute, though this might be disputed. S ee

James

, 478 U.S. at 605 and n.7; Denham v. United States

, 646 F.

Supp. 1021, 1026-27 (W.D. Tex. 1986) (holding that injury sustained

from flood control project's use as a recreational facility was not

subject to immunity provision of § 702c), aff'd

, 834 F.2d 518 (5th

Cir. 1987). 1 Immunity under § 702c simply does not apply, because

there is no reasonable construction of the plain language of this

provision by which the damage in this case was "from or by" flood

waters.

It is undisputed that the injury resulted from a Coast Guard

rescue attempt at Lake Lewisville. Water had nothing to do with

the injur y, except that b ut for the very existence of the water,

the injury would not have occurred. This type of connection,

however, is too tenuous to be supported by a rational construction

of "from or by."- 13 -

The majority admits as much by holding that the relevant nexus

is between the injury and "flood control," not flood waters. The

majority rejects the suggestion that its holding is overly broad,

i.e.

, that a broad reading conceivabl y could extend governmental

immunity to traffic mishaps or tree-trimming mistakes related to

the "management of a flood control project." S ee Fryman v. United

States

, 901 F.2d 79, 81 (7th Cir.), cert. denied

, 498 U .S. 920

(1990). Instead, the majority claims that "the present case is

safely removed from that realm. Here, we cannot say that

Boudreaus's injury has 'nothing to do with management of flood

waters.'"

The word "management" appears nowhere in the relevant

provis ion of § 702c, however. It is gleaned from the following

passage in James :

[Plaintiffs] also argue, in the alternative, that even if

702c is intended to grant immunity in connection with

floo d control projects, the Federal Government is not

entitled to immunity here because their injuries arose

from Government employees' alleged mismanagement of

recreational activities wholly unrelated to flood

control. In support of this argument they point to a

"fundamental principle of immunity" that the "sphere or

protected activity must be narrow ly limited by the

purpose for which the immunity was granted." We think,

however, that the manner in which to convey warnings,

including the negligent failure to do so, is part of the

"management" of a flood control project. And as noted in

n. 7, supra, the Court of Appeals found that the release

of waters at the [accident sites] was clearly related to

flood control.

Id. at 609-10 (emphasis added). Neither this passage nor the facts

of James support the conclusion that a nexus between the damage and

flooding has been jettisoned.2 As the majority indicates, the accident in this circuit's case, M ocklin

v. Orleans Levee Dist.

, 877 F.2d 427 (5th Cir. 1989), was the drowning of the son of the plaintiffs.

- 14 - The litigation in James was the result of the consolidation of

two separate accident cases. In both cases the accidents occurred

in the reservoirs of federal flood control projects. In both,

rec reational users were swept through retaining structures and

either drowne d or injured when the structures were opened to

release water to control flooding. I d. at 59 9-602. There is no

doubt that the injuries were caused by flood waters. 2

Despite its d enial, under the majority's reading of the

"management" language from James

, a negligent f ailure to warn a

motorist of a road hazard, resulting in an accident within the

c onfines of a recreational area that is part of a flood co ntrol

project, would give rise to immunity under the Flood Control Act,

because such a "failure to do so [] is part of the 'management' of

a flood control project."

This passage from James must be construed in light of the

facts of James and the plain language of § 702c. The predicate of

the Court's language was injuries plainly caused by flood waters.

This threshold is simply not met in the instant case. As indicated

above, the Supreme Court acknowledged that the language of § 702c

is broad; it did not indicate, however, that the provision should

be read as "any damage related to the management of a federal flood

control project." Accordingly, because the alleged damages in this

case were not caused by flooding, I respectfully dissent.