B-147959, OCT. 30, 1962

B-147959, OCT. 30, 1962

TO MR. GEORGE W. MONTOOTH:

WE HAVE YOUR LETTERS DATED JULY 28, AUGUST 24, AND SEPTEMBER 19, 1962, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIMS FOR DAMAGES TO PROPERTY OWNED BY YOU INDIVIDUALLY AND JOINTLY WITH OTHERS ALLEGEDLY CAUSED BY THE CONSTRUCTION OF AN OUTLET CHANNEL BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, WHICH RESULTED IN THE RIVER FOLLOWING A DIFFERENT COURSE IN ITS CONFLUENCE WITH THE ILLINOIS RIVER. YOUR CLAIMS HAVE RECEIVED EXTENSIVE CONSIDERATION IN OUR OFFICE SINCE THEIR ORIGINAL DISALLOWANCE OF DECEMBER 4, 1961. IN OUR DECISIONS TO YOU OF MARCH 5, 1962, AND JULY 24, 1962, THE ASSERTIONS MADE BY YOU IN BEHALF OF YOUR CLAIM WERE GIVEN CAREFUL CONSIDERATION BY THE CORPS OF ENGINEERS AND THIS OFFICE. ON THE BASIS OF THE FACTS AND CIRCUMSTANCES ATTENDANT TO THE CONSTRUCTION OF THE OUTLET CHANNEL NO LEGAL LIABILITY COULD BE FOUND SO AS TO WARRANT THE GOVERNMENT ASSUMING RESPONSIBILITY FOR THE DAMAGES COMPLAINED OF.

IN YOUR LETTER OF JULY 28, 1962, YOU ASSERT THAT THE SILT DEPOSIT ON YOUR LANDS IS CAUSED BY THE UPSTREAM FLOW OF THE WATER OVER YOUR GROUNDS MEETING THE NATURAL DOWNSTREAM FLOW WITH THE CESSATION OF CURRENT RESULTING IN A GREATER SILT DEPOSIT ON YOUR LAND. YOU GENERALLY AVER THAT MOST OF THE SILTATION DAMAGES HAVE OCCURRED SINCE THE CONSTRUCTION OF THE OUTLET CHANNEL AND INDICATE THAT YOU ARE IN DISAGREEMENT WITH THE CORPS OF ENGINEERS AS TO THEIR REPORTED STATEMENT THAT FOR MANY YEARS THE HIGH STAGES OF THE SANGAMON RIVER SPREAD FOR MILES OVER THE SWAMPY AREA WHERE THE SANGAMON MEETS THE ILLINOIS RIVER AND THAT THIS OCCURRENCE HAS NOT BEEN CHANGED SINCE THE CONSTRUCTION OF THE OUTLET CHANNEL.

A RECENT REPORT FROM THE CORPS OF ENGINEERS SHOWS THAT IN 1928A LOG JAM OCCURRED IN THE SANGAMON APPROXIMATELY 7 MILES UPSTREAM FROM ITS MOUTH AT THE POINT WHERE THE RIVER CHANGES ITS WESTERLY COURSE TO THE NORTHWEST. THIS OCCURRENCE EFFECTIVELY ELIMINATED THE LAST 7 MILES OF THE RIVER AS A USABLE CHANNEL FOR DRAINAGE RUNOFF. FOR A PERIOD OF 20 YEARS THEREAFTER THE WATERS OF THE SANGAMON SPILLED INTO THE DELTA AREA TO THE WEST AND COURSED THROUGH LAKES, PONDS, SWAILS, SLOUGHS AND THE LITTLE SANGAMON RIVER TO THE ILLINOIS. THUS YOUR LANDS WERE SUBJECT TO THIS OVERFLOW FROM THE SANGAMON RIVER CAUSED BY THE LOG JAM OBSTRUCTION FOR 20 YEARS PRIOR TO THE CONSTRUCTION OF THE OUTLET CHANNEL.

THE CORPS OF ENGINEERS FURTHER REPORTS THAT THE NORMAL WATER LEVEL OF THE ILLINOIS RIVER AT YOUR LANDS IS APPROXIMATELY 429.0. NORMAL WATER LEVEL OF THE SANGAMON AT THE EASTERLY END OF THE OUTLET CHANNEL IS 431.0 AND THE HIGHEST ELEVATION OF YOUR LANDS IS ABOUT 432. THIS INFORMATION INDICATES THAT DURING RUNOFF PERIODS OF THE SANGAMON RIVER WHERE THE RUNOFF EXCEEDS THE BANKS OF THE NEW OUTLET CHANNEL YOUR LANDS ARE SUBJECT TO OVERFLOW OF THE WATERS FROM THE SANGAMON RIVER. THIS SITUATION WOULD OCCUR WHETHER OR NOT THE NEW OUTLET CHANNEL HAD BEEN CONSTRUCTED BECAUSE OF THE OBSTRUCTION OF THE OLD CHANNEL APPROXIMATELY 5 MILES EASTERLY DIVERTING THE WATERS OF THE SANGAMON OVER YOUR LANDS AS SHOWN ABOVE. THE REPORT OF THE CORPS OF ENGINEERS CONCLUDES THAT THE UPSTREAM FLOW OCCURRING AT THE TIME THE SANGAMON RIVER EXCEEDS ITS BANKS AND THERE IS NO EQUIVALENT RISE IN THE WATER OF THE ILLINOIS RIVER IS NOT A PHENOMENA CREATED BY THE NEW OUTLET CHANNEL BUT OCCURRED MANY TIMES BEFORE THE NEW CHANNEL WAS CONSTRUCTED AND WOULD OCCUR IF THERE WERE NO OUTLET CHANNEL.

FURTHER IN OUR LETTER TO YOU ON JULY 24, 1962, WE REFERRED TO A SEDIMENTATION STUDY MADE IN 1960 BY THE CORPS OF ENGINEERS OF THE LANDS INVOLVED IN YOUR CLAIM. THE RESULTS OF THAT STUDY SHOWED THE AREA HAD BEEN SUBJECT TO SILTATION FOR 60 YEARS AND THAT THE SEDIMENTATION RATE SINCE THE OPENING OF THE OUTLET CHANNEL IS SOMEWHAT LESS THAN THAT PRIOR TO 1939.

FROM THE REPORTS OF THE CORPS OF ENGINEERS WE FIND CONVINCING EVIDENCE THAT YOUR LANDS HAVE BEEN OVERRUN BY THE WATERS OF THE SANGAMON RIVER FOR MANY YEARS PRIOR TO THE CONSTRUCTION OF THE OUTLET CHANNEL AND THAT SILT DEPOSITS HAVE BEEN OCCURRING FOR OVER 60 YEARS WITH NO INCREASE IN THE RATE OF DEPOSIT SINCE THE CONSTRUCTION OF THE OUTLET CHANNEL. RECOGNIZE THAT THESE CONCLUSIONS AS TO THE FACTS IN DISPUTE ARE CONTRARY TO THOSE PRESENTED BY YOU IN BEHALF OF YOUR CLAIM. HOWEVER, AS WE HAVE INDICATED IN PRIOR CORRESPONDENCE IT HAS BEEN OUR POLICY TO ACCEPT FACTS AS REPORTED BY AN ADMINISTRATIVE AGENCY IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME A PRESUMPTION OF CORRECTNESS.

ACCORDINGLY SINCE THE EVIDENCE PRESENTED BY YOU HAS NOT OVERCOME THIS PRESUMPTION WE AGAIN FIND THAT THE ALLEGED DAMAGES TO THE LANDS INVOLVED HAVE NOT BEEN CAUSED BY THE CONSTRUCTION OF THE SANGAMON RIVER OUTLET CHANNEL. THEREFORE, THE GOVERNMENT IS WITHOUT LEGAL RESPONSIBILITY WITH RESPECT TO YOUR CLAIMS.

SINCE A COMPLETE AND THOROUGH CONSIDERATION OF YOUR CLAIMS HAS BEEN GIVEN BY OUR OFFICE AND THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, WE DO NOT FEEL THAT YOUR INTERESTS OR THE INTERESTS OF THE GOVERNMENT WILL BE SERVED BY FURTHER ADMINISTRATIVE CONSIDERATION OF THESE CLAIMS. THEREFORE RECOMMEND THAT, SHOULD YOU DESIRE TO PROCEED FURTHER IN THE MATTER OF THE CLAIMS, REDRESS SHOULD BE UNDERTAKEN THROUGH OTHER MEANS.