William H. Rehnquist: We'll hear argument next in Number 99-859, Central Green Company v. the United States. Mr. Jones.
Timothy Jones: Mr. Chief Justice, and may it please the Court: Petitioner's property is being damaged by water leaking from the Madera Canal. The Canal is an irrigation facility and it passes irrigation water to the farmers of Madera County. We were told by the Ninth Circuit panel below that all of the water in this canal constitutes flood water under the immunity provisions of the Flood Control Act of 1928 solely by virtue of the fact that this canal is part of the Central Valley project, a large Federal water project covering one-third of the State of California, with multiple component parts and with multiple originating purposes, only one of which was flood control. The Ninth Circuit made this ruling noting that this canal was not a flood control project by itself, and served no flood control purpose. The Ninth Circuit further indicated--
Antonin Scalia: Did they concede that it served no flood control purpose? I wasn't aware of that.
Timothy Jones: --They being the United States, Your Honor?
Antonin Scalia: Yes.
Timothy Jones: No. They did not concede that it served no flood control purpose.
Antonin Scalia: And did the Ninth Circuit said that it served no flood control purpose?
Timothy Jones: Yes, it did, as part of its decision.
Sandra Day O'Connor: Now, do you concede that water could be released into the Madera Canal for flood control purposes, for example to make more room in the reservoir for flood waters that are anticipated? Could that happen?
Timothy Jones: Yes. It would be under a relatively limited circumstances and the problem there is, this water is liquid gold. They marshall it, they organize it, and they know where it goes and why, and if they're going to spill it into that ground--
Anthony M. Kennedy: It's liquid gold until December.
Timothy Jones: --Actually, not necessarily, Your Honor, because for most of the years in question they don't put water into that canal even in December. The amount of flood space that they reserve in this canal is only 30 percent of the entire... in the lake is only 30 percent of the entire facility.
Anthony M. Kennedy: Well, I have to say... I recognize the case is here on dismissal of the pleadings.
Timothy Jones: Correct.
Anthony M. Kennedy: And that you have indicated in your brief that in some events maybe the case should go back, that we shouldn't just rule for the Government. I am troubled by the assumption of the Ninth Circuit that the canal is not related to flood control in any respect. That's the inference I get from its statement, and I find that somewhat troubling.
Timothy Jones: That issue was not briefed at the Ninth Circuit level, Your Honor, but the canal itself was authorized under the reclamation laws and 100 percent of its costs were reimbursed to the United States under those rules. The canal itself is not part of the flood routing system of Millerton Lake.
David H. Souter: Well, can't it be, though... I mean, the Government points out in the brief that there are limitations in a flood situation on the amount of water that can be discharged downstream, and in order to comply with those limitations they might have to use this canal to run off surplus water, so the United States is saying that there certainly are situations in which this canal would have a flood control use. Do you concede that that's at least possible?
Timothy Jones: I do.
David H. Souter: Okay.
Timothy Jones: But the fact of the matter is that the facility itself is operated... if that ever occurred, still it would be a question of fact we'd have to address below, but--
David H. Souter: And you would say that if the escaping water resulted from that particular kind of flood control use there would be immunity. If the escaping water was not so related there would be no immunity, and you'd in effect have to apportion the damage... well, not apportion the damages. You'd have to do a causation analysis.
Timothy Jones: --That is exactly correct, Your Honor.
Antonin Scalia: Yeah. So you say flood waters would include two things, waters going through a facility that was primarily built for flood control purposes, no? What are your categories? What does flood waters consist of?
Timothy Jones: Flood waters consist of, and I think this Court's statement in United States v. James at page 605 is relatively clear. It requires a Federal flood control project, and the flood waters must be waters that are contained in or passing through that project for purposes of or related to flood control.
Antonin Scalia: Well, related... related to... I mean, that's pretty wide. If we'd apply that, I think you lose here.
Timothy Jones: I would challenge that a little bit, Your Honor, respectfully. I think--
Antonin Scalia: You acknowledge it's remotely enough... it's remotely related to flood control in that should there be a flood they can release some of the excess flood waters through this canal.
Timothy Jones: --That might make the canal remotely related to flood control, but it doesn't make the waters that are passing through the canal... under circumstances in the middle of summer, it's 100 degrees out, the river is dry down below the dam 20 miles, and they're diverting the water into the canal under contractual obligations, where it's bought and paid for. Under those circumstances, I think the water, which is what the statute speaks to, is not flood water.
Speaker: Suppose at that point the dam itself started to leak and caused damage. Would the Government be immune in that instance?
Timothy Jones: Assuming it's a Federal flood control project, Friant Dam is, it's leaking water into the river channel. That is part of the floodway. What you're looking at is the natural flow of this river and they put a dam in it, and if it leaks into the river--
Speaker: And you're saying the Government then would be immune because it's in the river bed?
Timothy Jones: --It's leaking into the floodway of the river itself. It's leaking into the channel, which is the very river course.
Speaker: So whether or not it's flood water depends on where it ultimately comes out?
Timothy Jones: It might if that's part of the facility. I mean... what you're looking at is, is the river channel runs... this facility, if it were operated as a flood control facility, would impound water at most once every 4 years.
Speaker: Well, in effect you want the opportunity to go back and establish that the water in the Madera Canal has never been released in connection with flood control purposes.
Timothy Jones: Well, Your Honor, I think two things.
Speaker: Is that right?
Timothy Jones: Yes, we want the opportunity to go back, and I think that we want to be able to establish that the water has never been... or at least at times has been released for purposes other than flood control.
Speaker: May it not depend on the kind of claim you're making against the Government? I mean, if water is... someone is drowned in a boat accident as a result of flood waters being released out of a dam, you have a single incident that occurs right then. I take it your claim is based on leaching out, or some sort of damage to the soil over a period of years.
Timothy Jones: That's correct. The canal is... the lining of the canal is cracking, and it's leaking water, it's raising the water table and it's--
Speaker: So it didn't happen on any one day. It happened--
Timothy Jones: --That's right.
Speaker: --It seems to me that makes your case a little harder, because it's project-related. This is not like the case where the Corps of Engineers boat was being driven by a drunk driver, which doesn't seem to have much to do with floods at all. But here, it has to do with the way the whole facility was constructed, and that seems to me to be a harder case for you.
Timothy Jones: I'm not sure I understand the part about the way the facility was constructed. Are you talking about the canal or the dam?
Speaker: It's a long-term damage. The damage occurs over a period of time because of the way that the canal was constructed, or misconstructed, and that seems to me to be more closely related to the purpose of immunity, which is to protect the Government when it erects this facility, than in some of these cases where you have... where people are sucked down into tunnels and so forth during irrigation season.
Timothy Jones: I don't think that that's what we're saying. What we're saying is, is that the facility... one of our claims is that they're just not maintaining it. The concrete cracks, they patch some of it, they don't patch the others, and some of it is deteriorating, and it needs to be repaired.
Speaker: But you could say the same thing if it were the dam.
Timothy Jones: We could, except the dam would be passing water right into the floodway itself. This, it passes on to other people's property. The dam got flowage rights. When Friant was built they obtained flowage rights to pass water in certain ways and the fact that the dam is either leaking or has its gates open isn't going to give rise to a claim.
Speaker: This whole scenario, in effect, was quite beyond the contemplation of Congress in 1928. When it's talking about flooding on the Mississippi. There are no dams on the Mississippi River, needless to say.
Timothy Jones: I understand, Your Honor, and that's very true. This... the clear context, and I think this Court in James said that, that the context was a floodworks project like the Mississippi River, and we're not dealing with a floodworks project like the Mississippi River. We're dealing--
Speaker: You say, if I understand your case, you wouldn't take a position that flood waters are never... you're not going to try to prove that flood waters were never released through this canal, but you would say categorically that the canal itself, when constructed, had no flood control purpose.
Timothy Jones: --I think that's absolutely true, because if this was... if this canal was going to be constructed for flood control they would have never built it. They'd have never built that dam. They'd have built it much lower... there's only a fraction of the space of this whole facility that serves any flood purposes.
Speaker: Well, would you concede that the Friant dam has a substantial flood control purpose?
Timothy Jones: It definitely provides some flood relief. I don't know that I would say it provides a substantial flood purpose, because if they open the gates to channel capacity it would not impound a drop of water for 3 years at a time, maybe 1 year it would impound water for a limited period of time and they'd never reach 25 percent or 20 percent of this capacity--
Speaker: But it's part of an entire project. The Sacramento River waters couldn't go to the San Joaquin if the Friant didn't back... didn't stop the natural tributary.
Timothy Jones: --Yes they do route the Sacramento River water down into the San Joaquin Valley and they do route the water of the river--
Speaker: And they can only do that because of the Friant Dam.
Timothy Jones: --But you don't impound water like this for flood control. If you're going to impound water in the way they impound it... I mean, the United States said in their brief at page 3, you impound water as soon as possible for irrigation, and you hold it as long as you can until you need it, and that's what they do with this facility, and they said you impound water only at the last moment for flood control when you have to and you evacuate it as quickly as possible. This facility just isn't operated that way.
Speaker: Well, suppose it is, in the sense that when the people were thinking of building this, they thought, we'll use it mostly for irrigation, but you know the San Joaquin floods sometimes too and then what we'll do is we'll have the water held behind the dam. It normally will go into the San Joaquin River, sometimes there's too much of it, sometimes we'll divert it up through the canal, it'll run into the Chowchilla River or the Fresno River. So they're thinking both. They agree most of the time, irrigation, some of the time, for just overflow of flood water. And who wins? And moreover, there's a crack in the canal, so that means most of the time the water that's running out is water that would be there for irrigation, and some of the time the water that runs out through the crack is water that would be... would have been released because there was too much water behind the dam and the San Joaquin River was filled up. Right, now, who wins under those circumstances?
Timothy Jones: The first presumption... the reason the dam is full is because of the irrigation retention, but assuming I understand the hypothetical, and I think I do, the water that would go into the canal under those circumstances may very well be flood water, and it may very well carry the immunity, but it would be in a very limited circumstance.
Speaker: All right, so you want to divide it say proportionate 90-10. But another to do it is to say that so long as the water that's sometimes in that canal and running out through the crack that was too big is flood water, so long as that's so, as long as that's a substantial amount of the water that's causing the damage, i.e. as long as a substantial amount is water that would have otherwise gone into the San Joaquin River but did not because there is too much water behind the dam and the river was filled up, as long as that's substantial, the Government's entirely immune.
Timothy Jones: Is that... I mean, it sounds like that's a causal--
Speaker: That's the opposite theory one way, it's very simple case that way. You know, there's no doubt that there's substantial... that this is, I'd say, substantially related to flood control, though mostly related to irrigation, the canal, then there's no doubt that some of the time the river, the water that goes through that canal is water that would otherwise be dumped into the San Joaquin, that it was all filled up, but that's a fairly small but still substantial amount of time. And there's no doubt that that water causes some of the damage, but surely not even half. All right. So then I think it comes down to, do we do it on a proportional basis, or do you do it on a, well, if it's substantially mixed in, you lose?
Timothy Jones: --I think our position--
Speaker: How do you analyze it, really?
Timothy Jones: --Well, it seems to me there's a couple of different issues, and if I understood the question properly you're saying if you have a certain percentage of the water going down the canal is flood water, and a certain percentage of the water going down the canal, a larger percentage, is irrigation water, is not immune, then wouldn't you simply look at the damages and deal with that as a matter of causation, because some of that water was not subject to the immunity. It clearly wasn't, and if that wasn't enough to damage the trees, if the amount of water that went in the canal was not enough to damage the trees, that was not immune.
Speaker: Well, I gather it's already a stretch to say, as James said, that water which is held behind a dam that is not really flood water, it's water that's been accumulating over the summer, but if the dam is for flood-control purposes we're going to consider all that water flood water. That's a very unusual use of the term, flood waters. I mean, you think about the raging Mississippi. Those are flood waters. Then what the Government wants is yet another extension, and what Justice Breyer was proposing, and that is that any facility that is even used in part for flood control purposes, all the water passing through that facility, including the nonflood water part, becomes flood waters. That stretches it pretty thin, pretty thin.
Timothy Jones: Then that's what we think happened here.
Speaker: But that's the Ninth Circuit test, in effect.
Timothy Jones: Well, yeah. What the Ninth Circuit said is that this immunity, the way they're construing it is so broad that they could not think of a single instance where the immunity did not apply in the Central Valley--
Speaker: It almost reads as though the Ninth Circuit said that but didn't want to say it, that it was very troubled by it's own holding.
Timothy Jones: --I was there at the argument, and I think the court was very troubled by what they were having to do.
Speaker: I think what Justice Breyer's question suggests is that if we were trying to determine causation in order to impose liability, to impose liability, if there are multiple causes, multiple actors, if there's a substantial cause then the actor is joint and severally liable for 100 percent of the damage. The mirror image of that might be that you have 100 percent immunity if a substantial purpose of the facility is irrigation, and I guess the problem with that from your standpoint is that we're just stacking the deck.
Timothy Jones: Right.
Speaker: We're saying, well, you also have a substantial cause, which is irrigation, and you're not immune for that, which leaves us, I guess, right back where we started. I guess standard tort principles don't seem to help us much. Well, are you... I take it that all you really want us to do here is to say that the Ninth Circuit test, not-wholly-unrelated test, either is a matter of substance or is a matter of creating a presumption in applying the James test, went beyond James, and that we ought to reverse or vacate because that erroneous standard was applied, and I take it that you don't really need to have us or want us necessarily to do anything more at this stage except send it back and say, apply James the way we wrote James, and then if you don't like it later, maybe there'll be another appeal, but am I right that that's all you really want us to do, is to say that not-wholly-unrelated goes beyond James?
Timothy Jones: Yes. I think that their test is not-wholly-unrelated to the project, which I think is also compounding the problem.
Speaker: Yes.
Timothy Jones: And so we think the not-wholly-unrelated test is the wrong test applied to the wrong--
Speaker: So you're saying they're using the wrong category: project.
Timothy Jones: --Right.
Speaker: And they're using in effect a... they're creating a kind of presumption in applying that category and that presumption is also inconsistent with the way we wrote James, even if they got the category right, is that--
Timothy Jones: That's correct.
Speaker: --Do I understand you?
Timothy Jones: That's correct.
Speaker: I thought you were asking to do more, not to leave... to say the Ninth Circuit test is no good, because it's wholly-related... not-unrelated won't do. I thought you were asking us to substitute another test which you had identified as a primary purpose test. Justice Breyer introduced yet another test, which sounded to me like you figured out how much of the flow was for irrigation, how much for flood control, and then you do kind of an apportionment that wouldn't be an all-or-nothing immunity. I thought that's what he was saying. But you're saying, if the primary purpose is irrigation, then there's no immunity, even if a substantial purpose would be flood control.
Timothy Jones: What happened is, we don't believe we need to go much beyond the language of James as long as not-wholly-unrelated means something more than remotely incidental, but we offered... in the case the Court decided to try to use this case as a test, we offered a test. We put together what we thought made sense in light of the Flood Control Act and the Federal Tort Claims Act and tried to determine how it would be applied in a multipurpose facility.
Speaker: Well, James, as the Chief Justice indicated, didn't apply to a system where we had irrigation facilities. It does seem to me that the... that your primary purpose does not give the Government quite enough protection, because a major purpose, part of the major design of this entire system is for flood control purposes. On the other hand, I'm not quite sure how to answer your argument that that protects the Government in every single instance. Is a substantial... if we said the... if flood control is a substantial reason for the facility and for the operation that caused the damage, could you go back for trial on that?
Timothy Jones: Yes, it--
Speaker: And would it give the district court enough guidance?
Timothy Jones: --It would if you didn't take substantial-to-the-injury and say, if flood water was a substantial contributing cause to the injury you have no claim at all, as opposed to saying, if it's a substantial part of the facility, flood control is a substantial part of the facility and, in order for the flood water to be flood water, it has to have a substantial relationship to flood control, then that's fine. But if you take it to the next step of the injury as a cause, then you could wipe out our injury completely, even though three-quarters of it was caused by the United States--
Speaker: Well, can you sustain a proposition that the facility that should be examined is the Madera Canal in this case?
Timothy Jones: --Yes.
Speaker: Because it seems to me if the only facility we examine is the Madera Canal, and what it may get... you certainly do not give anything close to a substantial use for flood control.
Timothy Jones: I think that there is no substantial use of that canal for flood control based on anything I've seen.
Speaker: Do I understand correctly, Mr. Jones, that you're willing to acknowledge that the damages your client received should be reduced by the proportion of the total water going through the canal that is really flood water under your interpretation of flood water?
Timothy Jones: I think we'd have to.
Speaker: Okay.
Timothy Jones: Yes.
Speaker: Let me ask you a question which I should know the answer to, but I don't, and I want help. Who has the burden of proof on the immunity here?
Timothy Jones: It's raised as a matter of jurisdiction, and so I think it's our burden--
Speaker: So it's your burden. It's a jurisdictional issue and it's your burden. With respect to the James test, Mr. Jones, there's a phrase in it that I don't understand, and could you tell me how you read the phrase that says that immunity extends to waters flood control projects cannot control?
Timothy Jones: --Yeah, we read that language to say, first of all, the reference to waters is flood waters, not any water, and we read it to say that in the normal operations of the facility, if the water overrides the banks, or overrides whatever control facilities are constructed, the United States would not be liable for injuries caused by that overriding. We think that's wholly different than what we're dealing with here, where it's just a continuous leak out of a nonmaintained facility, and if the water was not flood water going into the canal, it can't be flood water leaking out.
Speaker: I have some difficulty in adopting a test that this is an irrigation facility. It seems to me that the whole design of the Central Valley project is that it's an integrated whole, and I don't know how we could take different pieces, the Madera Canal, the Friant Current Canal, which I take it takes a much larger volume of water, and even the Friant Dam itself and say, well, this is primarily irrigation. I just don't think you can do that with the Central Valley project.
Timothy Jones: I think the Central Valley project can be identified by segments of the project. I wouldn't... I can't speak to all of it, but I can speak to the Madera Canal. The Madera Canal itself was funded as an irrigation project. It can relieve the lake of pressure, so to speak, into another natural waterway that itself is out of the same watershed, so when you look at the totality of it, it doesn't make sense for them to operate this for a flood facility. They wouldn't put water into the Madera Canal necessarily just to run it to another river that itself would be flooding.
Speaker: Well, I have trouble with that in times of high water. I just don't think that's right, but that's for the trier of fact to figure out. I'm just not sure what test we'd use in order to separate out discrete parts of the Central Valley project and say some are irrigation, some are not. Much of the time, all the project is used for irrigation. There's no flood danger.
Timothy Jones: That's true. This Court did--
Speaker: There's latent flood danger, and the entire project is designed to accommodate that.
Timothy Jones: --I think that that's a fair statement.
Speaker: May I just ask this... isn't it true that the Government itself classified... has class I water and class II water that goes through this project, and that class I water would never be flood water?
Timothy Jones: I believe that that's correct, and I think they have conceded that. Interestingly enough, in their contract with the Madera Irrigation District they define irrigation water as water used primarily in the production of agricultural crops or livestock, including domestic use incidental thereto and watering of livestock. That's at page 8 of their supplemental lodging.
Speaker: Does the agreement require some kind of consent by the parties to release any flood water in the Madera Canal?
Timothy Jones: I'm not aware of any consent being required. I think they have the power to do that under the circumstances.
Speaker: Unilaterally? I thought there was something in the agreement. I think Justice O'Connor is right. In a document I have called the Post Flood Assessment it says that flood releases may also be made of the Friant Current Canal and Madera Canal if all parties agree, and that's rather baffling to me--
Timothy Jones: Well, I apologize, but that obviously is in the contract.
Speaker: --I thought it was. You mentioned, or Justice Kennedy earlier mentioned some problems that the trier of fact would have. One of those problems might be the existence of records for the purpose to apply this apportionment rule. Do you... can you represent that in fact they do keep sufficiently detailed records to know when they're using the canal for flood control run-off and when they're using it for normal irrigation purposes?
Timothy Jones: I believe those records most definitely exist. They calibrate--
Speaker: Okay, but they're not... I mean, this is a preliminary pleading issue, so they're not in the record of this case, and we'd better... I suppose we had better be sure of that before we come up with a rule that requires apportionment.
Timothy Jones: --We--
Speaker: Or at least we ought to be sure that they can keep these records in a practical way, and we don't know that, do we? Well, don't we know that they charge a different rate for class I water than they do for class II water, so they have to have some way of apportioning it.
Timothy Jones: --We know that the gauging of the water coming into the lake, we know how much is impounded, we know what the storage is, we know what's diverted and when it's diverted and why it's diverted and who's paying for it and why they're paying for it and whether it's class I, class II, or class II obligation. I think that because this is operated for the economic use of the facility, all of that information is very--
Speaker: They must have it. There's some loss from evaporation. I mean, I don't think you can take figures in the lake and just assume that all of that water ends up in the ditch.
Timothy Jones: --I think that that's true. Unless there's any questions I'd like to reserve the rest of my time.
Speaker: Very well, Mr. Jones. Mr. Frederick, we'll hear from you.
David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court: Multiple purpose projects throughout the country operate like the Friant Division of the Central Valley project, which collects water behind Friant Dam to avert flooding along the San Joaquin River and then gradually releases that water to serve both flood control and irrigation needs.
Speaker: Yes, but the Ninth Circuit did say that the Madera Canal is not a flood control project and serves no flood control purpose. Now, if your focus is on the Friant Dam and you look at the overall project in a third of the State of California, you can say it's related to flood control, but if you focus instead in the Madera Canal, the Ninth Circuit said it just wasn't... it serves no flood control purpose.
David C. Frederick: Justice O'Connor, we don't know why--
Speaker: So where do we focus?
David C. Frederick: --Well, you focus on what the reality is.
Speaker: Well, the reality is the Madera Canal serves irrigation purposes, that's the reality.
David C. Frederick: It serves multiple purposes, Justice O'Connor. The water that is released into the Madera Canal for 10 months out of every year has to comply with flood control rules set by the Corps of Engineers. The Bureau of Reclamation cannot release that water, and it must make daily decisions about how much water goes into the canal, and which canal it goes into, and whether it goes in the downstream river, and for that reason--
Speaker: But presumably it can't, under that agreement, release more than the farmers can use for flood control purposes without the agreement of the parties.
David C. Frederick: --Wrong. That is--
Speaker: Doesn't it say that?
David C. Frederick: --That is incorrect. What the agreement says is that the Government can put water into the canal, and it can be flood water, and even the water that the irrigators take and use for irrigation can serve flood control reasons if it has to be released from Millerton Lake to avert a flood, or if putting that water down the San Joaquin River would cause a flood, the dam operator diverts it into the irrigation canals--
Speaker: What if the plaintiffs below show that never in the history of the Madera Canal has that happened?
David C. Frederick: --That would be--
Speaker: Never.
David C. Frederick: --Well, first, the fact that they have asserted in their complaint that it serves an irrigation purpose is not legally relevant to the question of whether sovereign immunity applies, because sovereign immunity is jurisdictional, and the court must satisfy itself that it has jurisdiction--
Speaker: Justice O'Connor asked you a question, Mr. Frederick. I hope you'll get to the answer quite soon.
David C. Frederick: --Mr. Chief Justice, I don't think there's any way that the plaintiffs could show that in this case.
Speaker: Well, but if this was dismissed on the pleadings... they said they were prepared to show that.
David C. Frederick: Justice O'Connor, Congress, when it created this project in the 1930's, was facing a fact that between 1900 and 1944 there were 38 devastating floods along the San Joaquin River, and it, in the course of its legislative fact-finding, determined that the way to deal with flooding along this river was to harness that river and then to put it to productive use. Of those 38 floods, 15 were from rain during the period between October 1 and roughly March 15, 23 from snow melt run-off--
Speaker: Mr. Frederick, I don't mean to interrupt you, but I hope you'll tell us some time in the argument what you don't tell us in your brief, whether you defend the Ninth Circuit's test.
David C. Frederick: --We do defend--
Speaker: If you do, you don't need all these facts.
David C. Frederick: --Well, Justice--
Speaker: All you need is some flood control purpose in the project and that's enough, and you win.
David C. Frederick: --That's correct.
Speaker: Is that your position?
David C. Frederick: Yes.
Speaker: Then we don't need these facts. Do you also accept the Ninth Circuit's statement that the Madera Canal is for irrigation purposes only?
David C. Frederick: No.
Speaker: You disagree with that?
David C. Frederick: We disagree with that. The 1937 Rivers and Harbors Act said the entire Central Valley project is for, among other purposes, flood control. It's undisputed that--
Speaker: Justice O'Connor asked the question, suppose the trier of fact found 100 percent of the water, or let's say, 98 percent of the water over the last 10 years in Madera Canal has been for irrigation purposes only, any difference in the case?
David C. Frederick: --I don't think so, Justice Kennedy, and the reason is the congressional design behind the project, as one of your earlier questions pointed out, it is an integrated project, and the part of the report that you were talking about, if all parties agree, those parties are the Bureau of Reclamation and the Corps of Engineers.
Speaker: The language Congress used is, floods or flood waters. I don't know that that affords any basis for going down... back to the design of an entire project, instead of looking as to whether the particular waters here were in fact flood waters.
David C. Frederick: The way, Mr. Chief Justice, courts have consistently looked at the question of what is a flood water is, is that water that would overflow the banks unless controlled by man-made structures, and that was the assumption that the Court in James made behind having the water behind this dam be deemed flood waters. If the waters not controlled by that dam would overflow the river, then it would be deemed flood waters and that's--
Speaker: But then 98 percent of the water in this canal isn't.
David C. Frederick: --And our submission, Justice Breyer, is that the... first we can show as a matter of historical fact that that's not the case here, that--
Speaker: 98 percent? You can show that the--
David C. Frederick: --Yes.
Speaker: --What percent is it?
David C. Frederick: Well, our brief demonstrates that even if you take class I water out of the picture, and class I water in many circumstances would have to be released for flood storage reasons--
Speaker: Well, I mean, I used to live in California. I mean, it's dry most of the time, so it would be amazing to me if like there's going to be a flood in summer there. I--
David C. Frederick: --Justice Breyer, a flood control project is created for the cataclysm.
Speaker: --No, but we're talking about flood water, and the flood water the Chief Justice just pointed out, he gave that definition, and I was saying it seemed to me that 98 percent... I'll give you at the moment that the canal is part of a flood control project. We could define that as a project that's substantially, but not entirely, used for flood control. Okay, I'll give you that for the sake of argument. But what about the water? The water, you've got the definition he just said. Adopting that definition, I don't see how more than about 1 percent, if that, could be flood water, water that would have overflowed the banks of the San Joaquin or any other of these dry places. I mean--
David C. Frederick: Justice Breyer, to answer your question, one must look at the flood rules that are set down by the Corps of Engineers with respect to this project. They were set out in 1955, and--
Speaker: --Well, why do we look at that when we have a congressional definition of flood waters?
David C. Frederick: --Well, you... the Congress didn't define the term, flood waters, Mr. Chief Justice. This Court in James defined the term flood waters in section 702(c), but what the Corps of Engineers has done in flood control projects is to set out the rules for how those projects operate so that waters do not become floods, and in the establishment of those rules the Corps made very clear that water has to be diverted from Millerton Lake to the canals that are adjoining the dam so that flooding--
Speaker: But surely the inquiry is a factual one, not some directive from the Corps of Engineers that says what may occasionally happen, you know, what has in fact happened with respect to the Madera Canal over the last 10 years.
David C. Frederick: --To the contrary, Mr. Chief Justice, for sovereign immunity to be a functional principle, the Government should be entitled to go into court to say Congress and the applicable agencies have designed and operated this facility for flood control reasons and avoid--
Speaker: Well, Mr. Frederick, that just isn't the immunity statute. That is what we look at, not the construction of the Central California project. We have to focus on the immunity statute that was passed in the wake of that 1927 massive flood of the Mississippi River. Congress didn't have, in this immunity section, in mind the kind of situation we've got with the Madera Canal, where it's used for irrigation purposes and it's alleged to have been constructed in a faulty manner, it's cracked and the water's leaking out. Apparently, to a nonuser of the canal, but flooding the property. Now, they didn't have that in mind.
David C. Frederick: --To the contrary, Justice O'Connor. The entire Central Valley project uses aqueducts and canals--
Speaker: She's talking about the 1928 act-- --I'm talking about the immunity language, and you seem to conflate the purpose of the construction of the Central California project, and I just... I have a... I have trouble converting--
David C. Frederick: --Okay. Let me see if I can help, then. In James what the Court said was that flood waters within the meaning of the immunity statute is all waters carried in or contained through a flood control project for purposes of or related to flood control.
Speaker: --James had a very different situation in mind. It did have genuine flood, water escaping through the system and somebody drowning as a result when it flooded over. This is far removed from that.
David C. Frederick: We don't think so, Justice O'Connor, for this reason. On an average year, Millerton Lake will have 1.7 million acre feet of run-off into it. That's the average year. It has to empty itself, or it has to be emptied, and then it will refill three-and-a-half times during the course of the year. If that water is not released there will be a flood. If it's not controlled, there will be a flood along the San Joaquin River.
Speaker: Well, but blessedly there are farmers who want to use it, so of course it's released. It could be used five times over if there were enough water. The farmers are there, dying for water.
David C. Frederick: And the fact that there is a multiple benefit, and the hydropower is another benefit, does not mean that the water loses its character as flood water if it is stored to protect against a flood along the river, and what... in James this Court considered the question of flood waters that were being used for recreational purposes. The specific discharge that was at issue in that case was deemed to be for flood control reasons. But here, the same principle applies because the water is released into the irrigation canals for a flood control purpose.
Speaker: I see that, but... okay. Suppose... I'm now giving you this. A flood control project is a project that has a substantial purpose related to flood control. Then I think you have to get to water, and the water, as you pointed out, is it's contained or carried through a flood control project for purposes of or related to flood control. All right. Suppose I were to say, what that means is that the water is where it is for a purpose substantially related to flood control. Now, if that's so, except for a tiny little bit, this is not flood control water.
David C. Frederick: To the contrary.
Speaker: Because?
David C. Frederick: Because every release from Millerton Lake has to serve a flood control purpose, number 1.
Speaker: Ah, but I said, is where it is, and it's not in the San Joaquin bed, which is where it would be. It's diverted over because... and let's take it in August, okay. In August, that water would normally be released into the San Joaquin bed, and now it isn't released to the San Joaquin bed, why, for irrigation purposes, 100 percent. That's the answer to that question, nothing to do with flood control.
David C. Frederick: Justice Breyer, if I could answer your question in two ways. The first is, if this complaint alleged a discrete release of water, there might be an argument that the Government was not entitled to immunity under your theory because the discrete purpose of the release could be identified. But this complaint asserts that this canal has leaked, and on page 54 of the joint appendix they say, we don't know when the leaking started, so you have to look at the overall purposes of the project, and you have to look at the reasons why water gets released from Friant Dam.
Speaker: Okay, let's accept that. That's why I think you have to get to the third part of this, which is the causation part, if we're going to say anything useful, and on that I thought you'd say, look across the year about 98 percent of the time it is diverted from the San Joaquin bed just for irrigation purposes. Some percent of the time... I'll give you as much as you want, but it's not going to be more than 50... it's diverted for, let's say, flood control purposes, and now we have to say that the causation problem is solved by saying, you know, one, this water wouldn't have been substituted by some other water, and the second thing is, you have to apportion the damages, I think. Now, I'm putting that whole thing out to get your comment.
David C. Frederick: Well, my--
Speaker: But I don't see how else to make it work.
David C. Frederick: --Okay. My comment is that if you're looking at why Congress would have put billions of dollars into these water projects, it did so with the assumption that the immunity would apply, and that is a very important principle here, because when establishing sovereign immunity principles you don't allow the Government to be engaged in fact-finding. They've asked for every single document relating to this project since the 1930's as part of their discovery effort.
Speaker: What is-- --Well-- --the basis for your statement that Congress assumed that immunity would apply when it did this particular project? It wasn't until James that we held that immunity applied to anything except property damage.
David C. Frederick: Because this is property damage, Justice Stevens.
Speaker: I know.
David C. Frederick: It... the Court--
Speaker: But it hadn't been addressed until then.
David C. Frederick: --In 1936, when Congress directed the Corps of Engineers in the Flood Control Act of 1936 to study the San Joaquin River and figure out a way to stop flooding on the San Joaquin River, it incorporated by reference the 1928 flood act which contains the immunity provision in this case. In 1937, Congress then authorized--
Speaker: And of course, which except for property damage wasn't even necessary, because the Federal Tort Claims Act-- --There was no Federal Tort Claims Act. --hadn't even been passed.
David C. Frederick: --Well, no, but the case of United States v. Cress had been in present... by... decided by this Court, and the question of whether or not and when flooding would constitute a taking.
Speaker: That's right.
David C. Frederick: And so the issue was very much how will Congress protect the Government from paying out in lawsuits for faulty structures or negligent design or damage from flood waters, you know, for decades out into the future, and the interrelationship between the flood control purpose and irrigation is probably the most important thing that we would like the Court to understand here, because you cannot segregate the purposes. They're all serving these purposes simultaneously.
Speaker: All right, then on your theory... and what you've just said raises the same question that your answer to Justice Breyer raised with me. On your theory, will there ever be a situation in which the immunity won't apply?
David C. Frederick: Yes.
Speaker: What?
David C. Frederick: When, in an accident--
Speaker: The discrete situation?
David C. Frederick: --The discrete situation.
Speaker: All right. If the discrete situation applies in the accident, why shouldn't the discrete situation, in effect, rule apply here if they can show by the records kept by the dam that except in, let's say, five instances in which the canal was used for overflow for flood control purposes, all the other water that was diverted into that canal was for nonflood-control purposes and therefore you would get your immunity on some apportionment theory? Why wouldn't that apply, if you accept the discrete release exception--
David C. Frederick: Well, first it would be--
Speaker: --to liability?
David C. Frederick: --First, it would be an unusual way to treat subject matter jurisdiction of the courts, on an apportionment basis.
Speaker: Well, it may be an unusual way, unless we are going to allow your theory of immunity to become a plenary theory in which there will never be liability, isn't that what we're going to have to do?
David C. Frederick: When you were talking about the project itself and how the project--
Speaker: No, but isn't that what we're going to have to do?
David C. Frederick: --Well, I--
Speaker: Yes or no.
David C. Frederick: --No, I don't think so, Justice Souter--
Speaker: Why?
David C. Frederick: --and the reason is that Congress wanted there to be broad immunity. It drafted this statute in the broadest possible--
Speaker: But it didn't want there to be complete immunity, did it?
David C. Frederick: --No.
Speaker: All right, so we're going to have to have some kind of mechanism to apportion causation for jurisdictional purposes, don't we?
David C. Frederick: No, I... no, Justice Souter, I think there ought to be a discrete... I think conceptually there are two different problems dealing with this statute. James dealt with the conceptual problem of an accident occurring in flood waters within a project and is there a relationship between the accident that occurs and the flood control purpose of the project, and what the Court there said was, if it... if the accident is related to the purposes of the flood control project, the immunity applies.
Speaker: Okay, and that was a... that really stretched the statute, didn't it?
David C. Frederick: This--
Speaker: Because the statute didn't have a related-to condition.
David C. Frederick: --This problem, Justice Souter, is really at the core of what Congress was getting at in 1928 which is, we're going to pour billions of dollars into building these structures to protect flood water, and we--
Speaker: Now, wait a minute, you think Congress was talking about damming the Mississippi River?
David C. Frederick: --No, but Mr. Chief Justice, when Congress created the extensive levee system it spent four times the amount that it had on the Panama Canal, and it also appropriated money in the 1928 act to put dams on the Sacramento River and to protect against flooding on the Sacramento River, which is integrated in the water system with the San Joaquin River.
Speaker: And you think Congress really thought that if they built the levee on the Mississippi, and the if the levee leaked during the middle of the summer, when there were no flood waters in sight, that the immunity would attach?
David C. Frederick: Yes.
Speaker: Then I still-- --It isn't clear to me. I think it's already a stretch to say that the waters held behind a flood control project even during a period when there's no risk of flood are flood waters. That's just a stretch of the English language, and to carry it further, as you now want us to do, that even canals leading off of the main flood control project which are sometimes used for the release of flood waters, it's so breathlessly beyond what Congress has said in the statute.
David C. Frederick: Justice Scalia, first the Court took a different view in James, and that view is certainly--
Speaker: Whatever view it took in James was dictum. It couldn't be clearer that the accident there occurred from flood waters, in the real sense of flood waters.
David C. Frederick: --No, those waters were captured behind the dam, and they were being released to create more flood storage space in that lake, just as here, the waters released into the irrigation canals to create more flood storage space--
Speaker: Well, but it will create much more flood storage space.
David C. Frederick: --I'm sorry?
Speaker: It will create more flood storage space by releasing into the canals, but I don't know that we can or should make the assumption that it was released into the canals for that purpose.
David C. Frederick: We can because in... the way the project was designed, in 1944 the Corps of Engineers reported back to Congress and it said that if more than 7,000 cubic feet per second of water is released into the San Joaquin River there will be a flood at Skagg's Branch, and it also said the flood capacity of the dam is 12,000 cubic feet per second, and if you add 1,000 for the Madera Canal and 4,000 for the Friant Current Canal, it is unmistakably clear the Corps of Engineers intended for these canals to receive the flood waters.
Speaker: But that's true... that's true, and so you take those times when in fact the San Joaquin below the dam is filled to more than 7,000... what is it, cubic feet per second. Now, when we look at those days, we get maybe... I don't know how many days per year, but not all that many, and maybe one every 3 years or something, but let's say it's 100 days a year. It's not more than that, which it isn't anywhere near that, but still, let's assume that. Very well. On those 100 days, those releases put water in the canal where it is at that time because it is flood water, but on all the other days the water in that canal is not where it is, because of any flood control purpose, so we're talking about the water on all those other days.
David C. Frederick: Justice Breyer--
Speaker: Yes.
David C. Frederick: --as a factual matter--
Speaker: Yes.
David C. Frederick: --4 out of the last 5 years, if the water had not been put into the canals, there would have been flooding on the San Joaquin River.
Speaker: On some days.
David C. Frederick: Through some months.
Speaker: All right, fine.
David C. Frederick: --through months-long periods.
Speaker: Through some months. How many months you want, two?
David C. Frederick: That's related to flood control--
Speaker: Excellent. Now let's talk about the other 10 months. The other 10 months, the water, on your theory, is not where it is in the canal because of flood control, and so I think what Justice Souter was driving at, and what I was, if all the water in the canal is causing that damage, what reason would there be for calling the water in those other 10 months flood water and subjecting it to immunity?
David C. Frederick: --Because they are making space so that floods don't occur in those months.
Speaker: But let me ask you... let me ask you a hypothetical I have. Suppose in the Madera Canal there's a valve, and it goes into field A or field B. Both are... just for irrigation, and by mistake they open the valve and it goes into field A and they leave it open for 24 hours when it's only 12, and the barn gets flooded. Immunity?
David C. Frederick: No.
Speaker: Why?
David C. Frederick: The water's left the Federal project. It's... that's--
Speaker: Well, the water's left the Federal project in this case, too.
David C. Frederick: --Yes, and--
Speaker: It's leaked out the canal.
David C. Frederick: --Right, but in your hypothetical the Madera district is operating those cut-off valves.
Speaker: No. No, I'm assuming the Corps of Engineers. It's a hypothetical case.
David C. Frederick: Okay.
Speaker: Assume the Corps of Engineers opens the valve and they do it the wrong way.
David C. Frederick: Then there would be--
Speaker: Instead of irrigating field A, they irrigate field B, or vice-versa, and there's damage.
David C. Frederick: --Yes.
Speaker: Liability?
David C. Frederick: No. That would be immunity. I mean, if the Government's actions are negligent in releasing the water, the immunity applies. The statute says--
Speaker: Because it's flood waters?
David C. Frederick: --Yes. Yes. That's water that's inundating an area where it is not supposed to be. That's the definition of a flood.
Speaker: Oh, I see--
David C. Frederick: Inundating an area where the water is not supposed to be.
Speaker: --now... well then, why don't you win in this case, anyway?
David C. Frederick: We do. [Laughter] We think we do, Justice Kennedy.
Speaker: But on a theory that there's a new flood. So, yeah, overflow is basically a flood.
David C. Frederick: Yes.
Speaker: In other words, if every-- --Let me just change Justice Kennedy's hypothetical--
David C. Frederick: There's no difference in our view from an overflow and a leak if the structure isn't working properly--
Speaker: --No, no, just change the hypothetical to say that the release didn't cause a flood, it didn't... but it was sudden release and somebody drowned in the accident, then would there be immunity?
David C. Frederick: --Yes, and every court of appeals has so held.
Speaker: There would be immunity there?
David C. Frederick: Yes.
Speaker: Even though it was released for irrigation purposes?
David C. Frederick: If the project is a flood control project and there is a relation to flood control, the courts have upheld the Government's immunity.
Speaker: In response to a question from Justice Souter you agreed there could be an accident where there wouldn't be immunity attached.
David C. Frederick: Yes, and that would be--
Speaker: What is your example?
David C. Frederick: --Where a Government official like a Fish & Wildlife Service official is on a flood control facility, commits an act of negligence that causes a person to drown--
Speaker: Okay.
David C. Frederick: --that would not be covered by the immunity.
Speaker: So it's only the difference between-- --But it would be covered under the Ninth Circuit test, would it not?
David C. Frederick: It... arguably, yes. Yes.
Speaker: All right. So you don't really support the Ninth Circuit test.
David C. Frederick: Well, Justice Stevens, let me just say that the Ninth Circuit itself is not wholly consistent on this point. In the McCarthy case, which was a personal negligence case, the Ninth Circuit said there must be a substantial factor between the Government's activities and the accident, so even in the McCarthy case the Court of Appeals for the Ninth Circuit did not strictly hew to its wholly-unrelated standard. But I would point out--
Speaker: Mr. Frederick, may I go back to your answer to Justice Stevens' question? I take it, then, that the only... that there will always be immunity if the release is, in fact, an intentional release as opposed to the negligent release, because whenever there is an intentional release, as I understand your reasoning, there will be, in fact, the creation of space to hold flood water.
David C. Frederick: --That's correct.
Speaker: And so that the only case in which there will be... there will not be immunity is the negligence case, as in your example.
David C. Frederick: No. The immunity would apply to negligence cases, too, Justice Souter, for precisely--
Speaker: Well, you just gave--
David C. Frederick: --For precisely the same reason. That's flood water--
Speaker: --an example of a case in which there would not be immunity.
David C. Frederick: --Well, let me distinguish between--
Speaker: A negligence case like the negligence case you just posited to Justice Stevens, that will be the only kind of situation in which there will not be immunity?
David C. Frederick: --Yes. Escaping waters cases, which is what this one is. This water is not where it's supposed to be. It has escaped from the project. Congress built the project to keep the water contained, and that project is--
Speaker: But wait--
David C. Frederick: --collectively failing, is foursquare within what Congress debated in the 1928 act. It wanted these structures to succeed, but it did not want the Government to have to defend lawsuits like this one for time immemorial if they did not.
Speaker: --I'll grant you, and this is directly related to what was just said, that the water has come out from behind the dam in order to make space for other water. That's flood control. But the question here is, the water that came out from the dam would naturally go into the San Joaquin. It wouldn't naturally go into the Merced Canal, and if you focus on the month of August, and you focus on the decision to turn it from the San Joaquin below the dam over to the Merced Canal, what has that to do with flood control?
David C. Frederick: Justice Breyer, I conceded that if you were not to accept our broad view of every release being for flood control, that you would then look at whether or not there was a relation between the release and flood control activities.
Speaker: Well, isn't part of the answer that it allows release from the Sacramento into the San Joaquin, which--
David C. Frederick: Yes. I mean--
Speaker: --greatly alleviates the flood waters on the Sacramento?
David C. Frederick: --That's correct. It is a totally integrated system, but Justice Breyer, if you were not to accept our broadest submission, even under our narrower submission we should prevail and get immunity in this case, because it can be shown through contracts, through regulations, through statutes that this canal serves and is related to a flood control purpose, and the empirical water data collected by the U.S. Geological Service that we quoted in our brief indicates that well over half of the water released in the last 20 years undoubtedly serves a flood control purpose. I mean, you know--
Speaker: Was this brought out at trial?
David C. Frederick: --No. This was done on the pleadings, Mr. Chief Justice, and we are allowed to defend the judgment on an alternate ground and to provide public record material--
Speaker: We rarely affirm on an alternate ground.
David C. Frederick: --Well, in a way this is and this is not an alternate ground. It is support for the judgment and the rationale for the judgment by showing the relation of flood control in this particular project, and we have--
Speaker: --what the judgment on a different ground, this Court rarely takes submissions, even judicial notice submissions as a matter of first instance. You would be asking us to sit essentially as the court of first view on this theory and to look at things that were never presented below, and that is an extraordinary thing to ask this Court to do.
David C. Frederick: --Not when they're legal sources, Justice Ginsburg. This is the statutes. This is the regulations. This is historical public record material. This is stipulations they have agreed to in the stipulations of fact.
Speaker: No, but don't we have to understand the terms of the contract where they have class I water and class II water and class I water is for irrigation, they pay a higher... or they pay a lower rate, I guess, or a higher rate for class I and so forth?
David C. Frederick: No, you don't need to understand all the terms of the contract to get the central point, which is that--
Speaker: You don't want us to know about water being in two classes?
David C. Frederick: --No, Justice Stevens. What we want you to know is that the contract provides for flood water to be put into the Madera Canal, and therefore it serves a flood control purpose. That's all you really need to understand about the contract, because it is a matter that they've stipulated to, this is how the water gets into the canal, and the parties have agreed that flood water will be put into the canal as a matter of agreement. So when you look, Justice Ginsburg, at the sources that we have relied upon to defend the judgment and the rationale of the court of appeals, there is not anything that would be developed by going back. All that would be accomplished is that the Government would be forced to defend, you know, document requests that called for every scrap of paper in the Central Valley project and in the Madera Canal over the last 65 years, and the question of sovereign immunity would not be one that could be established at the pleadings stage. It would, in fact, be subject to proof at every step of the way, and this Court has made clear that not only is sovereign immunity a principle of jurisdiction, but it... to prevent against the Government being liable, but it's also a principle to avoid the Government having to defend against vexatious litigation.
Speaker: But often it hinges, when you're talking about immunity it hinges upon factual determinations that can only be found later. That's not at all unusual.
David C. Frederick: I--
Speaker: Thank you, Mr. Frederick. Mr. Jones, you have 2 minutes remaining.
Timothy Jones: Thank you, Your Honor. If I could take you to our reply brief, because we did address, although we objected to the judicial notice of all the facts we did address them there, and we noted that in a majority of the years in the 1979 to 1999 period selected by respondent, flows from the dam into the river bed never approached 8,000 cubic feet per second, which petitioner gauged by setting thresholds of 7600 cubic feet per second on a single day of the entire year and so, as far as petitioner could determine on those days that flows into the river bed did approach 8,000 cubic feet per second they showed no correlation with the higher flows in the Madera Canal. Point 2. This project was funded as a reclamation project. The canal was identified as an irrigation canal. This is not a project where Congress put money out and exposed its treasury to something it wasn't going to be reimbursed for. This is not the context of the Mississippi River flood project. And I would like to answer any questions, if there are any others.
Speaker: Was the Shasta Dam funded and constructed by the Bureau of Reclamation?
Timothy Jones: The Shasta Dam, as I understand it, was, and I don't know the answer to that. I should know, but I don't. It probably was.
William H. Rehnquist: Thank you, Mr. Frederick. The case is submitted. Not Mr. Frederick, Mr. Jones. Excuse me.