B-190362, DEC 14, 1977

B-190362, DEC 14, 1977

1. TORT CLAIM DENIED BY U.S. ARMY CORPS OF ENGINEERS MAY NOT BE RECONSIDERED BY GENERAL ACCOUNTING OFFICE SINCE THE HEAD OF EACH FEDERAL AGENCY HAS EXCLUSIVE JURISDICTION TO DECIDE CLAIMS ARISING UNDER THE FEDERAL TORT CLAIMS ACT. IN ANY CASE, IN THE ABSENCE OF A CONSTITUTIONAL TAKING, 33 U.S.C. SEC. 702C PRECLUDES RECOVERY FROM THE UNITED STATES FOR FLOOD DAMAGE. 2. CLAIM FOR FLOOD DAMAGE TO REAL AND PERSONAL PROPERTY ARISING FROM CONSTRUCTION OF LEVEE BY ARMY CORPS OF ENGINEERS, WITH NO EVIDENCE THAT FLOODING WILL BE PERMANENT, MAY NOT BE ALLOWED ON BASIS OF INVERSE CONDEMNATION UNDER THE FIFTH AMENDMENT, AS GOVERNMENT LIABILITY REQUIRES A SHOWING OF INEVITABLY RECURRING INUNDATION. 3. CLAIMANTS NOT SUBJECTED TO PERMANENT FLOODING MAY NOT RECOVER FOR PAST FLOODING ON BASIS OF FIFTH AMENDMENT, AS TAKING DOES NOT RELATE BACK TO ORIGINAL FLOODING, BUT OCCURS ONLY WHEN IT BECOMES APPARENT THAT FLOODING IS OF A PERMANENT NATURE.

ARMY CORPS OF ENGINEERS - CLAIM FOR RECOVERY FROM FLOOD DAMAGE:

THIS IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF THE DENIAL BY OUR CLAIMS DIVISION (Z-2746491), OF A CLAIM BY MR. AND MRS. PATRICK D. MOYLE AGAINST THE DEPARTMENT OF THE ARMY FOR FLOOD DAMAGE TO THEIR PROPERTY ARISING FROM THE CONSTRUCTION OF A LEVEE BY THE CORPS OF ENGINEERS.

MR. AND MRS. MOYLE FILED A CLAIM IN 1974 WITH THE ARMY CORPS OF ENGINEERS FOR WATER DAMAGE TO THEIR PROPERTY RESULTING FROM THE CONSTRUCTION IN 1967 OF A LEVEE BY THE CORPS AS PART OF THE LAKE RED ROCK PROJECT, DES MOINES RIVER, IOWA. THIS CLAIM WAS TREATED AS A TORT CLAIM AND DENIED BY THE UNITED STATES ARMY CLAIMS SERVICE, OFFICE OF THE JUDGE ADVOCATE GENERAL, IN OCTOBER 1976. THE ARMY DENIED THE CLAIM BASED UPON BOTH THE DISCRETIONARY FUNCTION EXCEPTION TO THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SECS. 2671 ET SEQ. (1970), AND THE PROVISIONS OF 33 U.S.C. SEC. 702C (1970). UNDER 28 U.S.C. SEC. 2680(A) THE GOVERNMENT HAS RETAINED ITS IMMUNITY FROM LIABILITY FOR TORTS ARISING OUT OF A DISCRETIONARY FUNCTION OR DUTY. CLAIMS ARISING AS A RESULT OF FLOOD DAMAGE FROM FEDERAL FLOOD CONTROL PROJECTS HAVE GENERALLY BEEN HELD TO FALL INTO THIS EXCEPTION WHICH PRECLUDES RECOVERY. KONECNY V. UNITED STATES, 388 F.2D 59 (8TH CIR. 1967); COATES V. UNITED STATES, 181 F.2D 816 (8TH CIR. 1950); DANNER V. UNITED STATES, 114 F.SUPP. 477 (W.D. MO. 1953). IN ANY EVENT, 33 U.S.C. SEC. 702C PROVIDES, IN PERTINENT PART, THAT "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." THIS IMMUNITY WAS NOT REPEALED BY ENACTMENT OF THE FEDERAL TORT CLAIMS ACT. NATIONAL MFG. CO. V. UNITED STATES, 210 F.2D 263 (8TH CIR. 1954).

UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. SEC. 2672, THE HEAD OF EACH FEDERAL AGENCY HAS EXCLUSIVE JURISDICTION (UP TO $25,000) TO SETTLE CLAIMS ARISING UNDER THE ACT. THUS THE DETERMINATION THAT THE ALLEGED TORT HERE INVOLVED AROSE FROM A DISCRETIONARY FUNCTION OR DUTY OF THE DEPARTMENT OF THE ARMY IS NOT REVIEWABLE BY THE GENERAL ACCOUNTING OFFICE. THE PROVISIONS OF 33 U.S.C. SEC. 702C ALSO PRECLUDE LIABILITY FOR FLOODING IN THE ABSENCE OF A CONSTITUTIONAL "TAKING" OF THE PROPERTY.

IN NOVEMBER 1976, THE MOYLES FILED A NEW CLAIM, IN THE AMOUNT OF 5,333.65, CONTAINING ADDITIONAL INFORMATION, WITH THE CORPS OF ENGINEERS. IN JULY 1977, THIS CLAIM WAS TRANSMITTED BY THE OFFICE OF THE CHIEF OF ENGINEERS TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT UNDER 31 U.S.C. SEC. 71 (1970) WITH A RECOMMENDATION THAT THE CLAIM BE ALLOWED ON THE BASIS THAT THE CORPS HAD ACQUIRED A TEMPORARY "PONDING" EASEMENT.

THE RECORD INDICATES THAT THE CORPS OF ENGINEERS CONSTRUCTED A LEVEE IN 1967 TO PROTECT SURROUNDING AREAS FROM HIGH LEVELS OF LAKE RED ROCK WHEN FLOOD WATER STORAGE OCCURRED. THE CLAIMANTS ALLEGE THAT DURING HEAVY RAINS IN THE SPRINGS OF 1974 THRU 1976, THE LEVEE RESTRICTED THE SURFACE RUN-OFF WATER FROM FLOWING ITS NATURAL COURSE, CAUSING FLOODING ON THEIR PROPERTY. THE CLAIM INCLUDES DAMAGES TO BOTH THEIR HOME AND PERSONAL PROPERTY. ATTEMPTS BY THE CLAIMANTS' LOCAL COUNTY (POLK COUNTY) AND THEN BY THE CORPS TO ALLEVIATE THE SITUATION BY CONSTRUCTION OF DITCHES AND CULVERTS (WHICH LATER REMOVED) WERE UNSUCCESSFUL. HOWEVER, THE CORPS OF ENGINEERS STATED IN THEIR TRANSMITTAL LETTER THAT NATURAL DRAINAGE HAS BEEN RESTORED TO THE MOYLES' PROPERTY THROUGH THE REMOVAL AND STOCKPILING OF A SMALL SECTION OF THE LEVEE EMBANKMENT.

THE ARMY CORPS OF ENGINEERS HAS SUGGESTED THAT THE FIFTH AMENDMENT MAY BE USED AS A BASIS FOR RECOVERY. THEY STATED THAT:

"UNDER THE FACTS IN THIS CASE, THE DAMAGE TO CLAIMANTS' PROPERTY WAS CAUSED BY SURFACE WATER THAT WAS IMPOUNDED BY THE BARRIER (LEVEE) CONSTRUCTED BY THE GOVERNMENT WHICH IMPEDED NATURAL DRAINAGE, CONSTITUTING AN 'INVERSE CONDEMNATION' OF THEIR LAND FOR WHICH THEY ARE ENTITLED TO BE COMPENSATED UNDER AMENDMENT V OF THE UNITED STATES CONSTITUTION, AND FOR WHICH DAMAGE AN ACTION WOULD LIE UNDER THE TUCKER ACT, 28 U.S.C. SEC. 1491, ET SEQ.

"ACCORDINGLY, THE CHIEF OF ENGINEERS CONCURS IN THE RECOMMENDATION OF THE DIVISION ENGINEER THAT UPON RECEIPT FROM THE CLAIMANTS OF A TEMPORARY PONDING EASEMENT COVERING THE PERIOD OF PAST FLOODING, THE CLAIM SHOULD BE ALLOWED."

DUE TO THE DOUBT INVOLVED, HOWEVER, THE CORPS HAS DETERMINED THAT IT WOULD NOT PAY THE CLAIM ON THAT BASIS WITHOUT THE CONCURRENCE OF THIS OFFICE. FOR THE REASONS DISCUSSED BELOW, WE DO NOT BELIEVE THAT THERE HAS BEEN A COMPENSABLE "TAKING" UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION.

THE JUST COMPENSATION CLAUSE OF THE FIFTH AMENDMENT IS A BASIS FOR RECOVERY IN A PROPER INVERSE CONDEMNATION ACTION FOR FLOOD DAMAGE. WHEN GOVERNMENTAL ACTS CAUSE PERMANENT, RECURRENT FLOODING OF A CLAIMANT'S LAND, COURTS HAVE INTERPRETED THIS AS A "TAKING" OF THE PROPERTY AND MAY PERMIT RECOVERY. HOWEVER, NOT ALL FLOODS ARE SERIOUS ENOUGH TO CONSTITUTE A TAKING, AND THERE MUST BE "AN ACTUAL, PERMANENT INVASION OF A LAND, AMOUNTING TO AN APPROPRIATION OF AND NOT MERELY AN INJURY TO THE PROPERTY." SANGUINETTI V. UNITED STATES, 264 U.S. 146, 149 (1924). ALTHOUGH THE FLOODING MAY BE INTERMITTENT, IN ORDER TO HOLD THE GOVERNMENT LIABLE, THERE MUST BE "A PERMANENT LIABILITY TO INTERMITTENT BUT INEVITABLY RECURRING OVERFLOWS." UNITED STATES V. CRESS, 243 U.S. 316, 328 (1917). ONE, OR EVEN SEVERAL FLOODS, DO NOT CONSTITUTE A TAKING UNDER THE CONSTITUTION. HARTWIG V. UNITED STATES, 485 F.2D 615 (CT.CL. 1973); FROMME V. UNITED STATES, 412 F.2D 1192 (CT.CL. 1969); B AMUSEMENT CO. V. UNITED STATES, 180 F.SUPP. 386 (CT.CL. 1960). IN THE ABSENCE OF A SHOWING OF AN "INEVITABLY RECURRING INUNDATION," THE INJURY TO THE CLAIMANTS' PROPERTY IS IN THE NATURE OF A TORT. HARTWIG V. UNITED STATES, SUPRA, AT 620. IN THE INSTANT CASE, RECOVERY ON THE BASIS OF TORT HAS ALREADY BEEN DENIED.

A TAKING BY THE GOVERNMENT NEED NOT BE IN FEE; THUS, WHERE IT APPEARS THAT LESS THAN THE TOTAL LAND HAS BEEN TAKEN, THE FEE MAY REMAIN IN THE OWNER, SUBJECT TO AN EASEMENT IN THE UNITED STATES TO OVERFLOW IT. UNITED STATES V. CRESS, SUPRA, AT 329. A FINDING THAT A FLOWAGE EASEMENT HAS BEEN TAKEN BY THE GOVERNMENT, HOWEVER, MUST MEET THE REQUIREMENTS DISCUSSED ABOVE. NATIONAL BY-PRODUCTS V. UNITED STATES, 405 F.2D 1256 (CT.CL. 1969).

THE EVIDENCE PRESENTED INDICATES THAT THE CLAIMANTS' PROPERTY WILL NOT BE SUBJECTED TO INEVITABLY RECURRING FLOODING. BOTH THE ARMY AND THEIR LOCAL COUNTY GOVERNMENT TOOK STEPS TO ALLEVIATE THE FLOODING SITUATION. INASMUCH AS THE ARMY STATED THAT NATURAL DRAINAGE HAS BEEN RESTORED, WE CANNOT CONCLUDE THAT CLAIMANTS WILL BE PERMANENTLY SUBJECT TO INEVITABLY RECURRENT FLOODING AMOUNTING TO A TAKING UNDER THE FIFTH AMENDMENT. THEREFORE, AT THIS TIME IT CANNOT BE SAID THAT THE GOVERNMENT TOOK A FLOWAGE EASEMENT APPURTENANT TO PLAINTIFFS' LAND.

ALTHOUGH IT HAS CONCLUDED THAT THERE WILL BE NO ADDITIONAL FLOODING IN THE FUTURE, THE ARMY HAS SUGGESTED THAT RECOVERY BE GRANTED ON THE BASIS OF A TEMPORARY "PONDING," OR FLOWAGE, EASEMENT COVERING THE PERIOD OF PAST FLOODING. THIS BASIS IS INCONSISTENT WITH CASE LAW, AS A "TAKING" DOES NOT OCCUR UNTIL IT BECOMES APPARENT BY THE PASSAGE OF TIME THAT THE INTERMITTENT FLOODING IS OF A PERMANENT NATURE. THEREFORE, THE DATE OF THE TAKING DOES NOT RELATE BACK TO THE ORIGINAL FLOODING. SINCE THE EVIDENCE SHOWS THAT THE FLOODING IS NOT PERMANENT NATURE, THERE IS NO TAKING, AND THE MOYLES MAY NOT RECOVER FOR PAST FLOODING ON THAT BASIS. BARNES V. UNITED STATES, 538 F.2D 865, 873 (CT.CL. 1976).

ACCORDINGLY, WE CANNOT CONCUR IN THE CORPS' RECOMMENDATION THAT THE MOYLES' CLAIM BE PAID ON THE BASIS THAT THEIR HAS BEEN AN "INVERSE CONDEMNATION" OF THEIR LAND. SINCE THEIR CLAIM HAS ALREADY BEEN DENIED UNDER THE FEDERAL TORT CLAIMS ACT AND THE PROVISIONS OF 33 U.S.C. SEC. 702C, AND WE ARE AWARE OF NO OTHER BASIS FOR PAYMENT, THE VOUCHER COVERING THEIR CLAIM MAY NOT BE CERTIFIED FOR PAYMENT.