An Enduring Anachronism: Arguments for the Repeal of the (Sec)702c Immunity Provision of the Flood Control Act of 1928
Hofmann, Kent C., Texas Law Review
An Enduring Anachronism:
Arguments for the Repeal of the 702c Immunity Provision of the Flood Control Act of 1928 I. Introduction
The Ninth Circuit's recent decision in Central Green Co. v. United States` has highlighted the immunity enjoyed by the federal government from damages stemming from activities and events at federal flood control projects. Congress created this immunity by including it in section 702c (702c) of the Flood Control Act of 1928 (FCA). The decision mentioned above has focused attention on 702c because it notes the four-way split that has developed among federal circuits regarding the approaches taken in applying this grant of immunity.3 This Note will develop the argument that the best resolution of this split lies in outright repeal of 702c by Congress.
Between the passage of 702c in 1928 and the Supreme Court's decision in United States v. James' in 1986, the cases that applied 702c immunity involved property damage resulting from government management of flood control projects.' After James, the bulk of the cases in which the 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 the decisions they have been forced to make and that they perceive 702c as working an injustice. In Central Green itself, the Ninth Circuit affirmed that 702c prevented the government from being held liable for property damage to a pistachio farm but recognized "the harsh result of this decision."8 Similarly, Justice Stevens has called the 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 the government's immunity defense," this Note demonstrates that the reasons for such an exemption apply with equal force to property damage claims and thus support the full repeal of 702c. A few commentators also have voiced the opinion that 702c should be repealed in its entirety, 12 but these arguments have not included any justifications for extending the repeal of immunity to property damage cases. This Note aims to advance and explore substantive arguments that support the repeal of 702c as it applies to both personal injuries and property damage.
Part II of this Note examines the immunity provision in 702c itself. An examination of United States v. James, 13 the Supreme Court case that sparked the current split among circuits, constitutes Part III. Part IV outlines the split in order to illustrate the confusion and uncertainty that now overshadow the application of 702c. Finally, Part V advances three arguments that support the contention that 702c should be repealed. These arguments are based on problems with the general justifications behind sovereign immunity, the evolution and current application of Fifth Amendment takings doctrine, and the contention that the passage of the Federal Tort Claims Act (FTCA)14 has rendered 702c an anachronism.
II. The Statute
Before discussing the Supreme Court decision in United States v. James and the current split among the federal circuits, it is important to examine the 702c immunity provision of the FCA itself.15 This inquiry focuses on the historical context that sparked both the FCA and the immunity provision and on the plain language of the statute. Another related provision in the United States Code, one allowing the government to take property for flood control purposes if compensation is provided,16 will be reviewed as well.
Congress enacted the FCA in response to severe flooding that occurred along the Mississippi River in 1927. …