An Enduring Anachronism: Arguments for the Repeal of the (Sec)702c Immunity Provision of the Flood Control Act of 1928 (2001)

An Enduring Anachronism: Arguments for Repeal of 702c Immunity Provision of Flood Control Act of 1928 I. Introduction The Ninth Circuit's recent decision in Central Green Co. v. United States` has highlighted immunity enjoyed by federal government from damages stemming from activities and events at federal flood control projects. Congress created immunity by including it in section 702c (702c) of Flood Control Act of 1928 (FCA). The decision mentioned above has focused attention on 702c because it notes four-way split that has developed among federal circuits regarding approaches taken in applying grant of immunity.3 This Note will develop argument that best resolution of split lies in outright repeal of 702c by Congress. Between passage of 702c in 1928 and Supreme Court's decision in United States v. James' in 1986, cases that applied 702c immunity involved property damage resulting from government management of flood control projects.' After James, bulk of cases in which government has used 702c as a defense have stemmed from personal injuries and deaths suffered by swimmers, divers, and boaters at lakes and reservoirs located in flood control projects. Judges who have been required to apply 702c often note that they disagree with decisions they have been forced to make and that they perceive 702c as working an injustice. In Central Green itself, Ninth Circuit affirmed that 702c prevented government from being held liable for property damage to a pistachio farm but recognized the harsh result of decision.8 Similarly, Justice Stevens has called statute an anachronism and argued that Congress did not intend for it to apply to personal-injury cases.' In making his argument, Justice Stevens stated that this obsolete legislative remnant is nothing more than an engine of injustice.10 While other researchers have argued that 702c should be amended to exempt personal-injury cases from government's immunity defense, Note demonstrates that reasons for such an exemption apply with equal force to property damage claims and thus support full repeal of 702c. A few commentators also have voiced opinion that 702c should be repealed in its entirety, 12 but these arguments have not included any justifications for extending repeal of immunity to property damage cases. This Note aims to advance and explore substantive arguments that support repeal of 702c as it applies to both personal injuries and property damage. Part II of Note examines immunity provision in 702c itself. An examination of United States v. James, 13 Supreme Court case that sparked current split among circuits, constitutes Part III. Part IV outlines split in order to illustrate confusion and uncertainty that now overshadow application of 702c. Finally, Part V advances three arguments that support contention that 702c should be repealed. These arguments are based on problems with general justifications behind sovereign immunity, evolution and current application of Fifth Amendment takings doctrine, and contention that passage of Federal Tort Claims Act (FTCA)14 has rendered 702c an anachronism. II. The Statute Before discussing Supreme Court decision in United States v. James and current split among federal circuits, it is important to examine 702c immunity provision of FCA itself.15 This inquiry focuses on historical context that sparked both FCA and immunity provision and on plain language of statute. Another related provision in United States Code, one allowing government to take property for flood control purposes if compensation is provided,16 will be reviewed as well. Congress enacted FCA in response to severe flooding that occurred along Mississippi River in 1927. …