B-149624, OCT. 10, 1962

B-149624: Oct 10, 1962

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FRANCIS RIVER TO A POINT NEAR THE HIGHWAY WHERE CHANNEL CONSTRUCTION WAS HALTED TO AWAIT COMPLETION OF THE REQUIRED BRIDGES AND RAILROAD FACILITIES. THE NATURAL GROUND ELEVATION THROUGH WHICH THIS PORTION OF THE CHANNEL HAD BEEN DUG WAS SUFFICIENTLY HIGH TO CONTAIN THE WATERS OF THE ST. THE ONLY FEASIBLE WAY TO PRECLUDE THE CHANNEL FROM OVERFLOWING IN THE EVENT OF A RISE IN RIVER LEVEL WAS TO SEAL THE CHANNEL AT THE POINT WHERE IT JOINED THE RIVER. THE COST TO CLOSE THE CHANNEL WAS ESTIMATED AT $85. SINCE THE CHANCES WERE CONSIDERED GOOD THAT LITTLE. 715.61 WAS PAID UNDER AUTHORITY OF SECTION 2733 OF TITLE 10. THE JUDGMENTS WERE BASED UPON ARKANSAS STATUTES WHICH THE COURT INTERPRETED AS MAKING THE LEVEE DISTRICT LIABLE UNDER THE CIRCUMSTANCES NOTWITHSTANDING FINDINGS THAT THE DISTRICT WAS FREE FROM FAULT IN THE MATTER AND THAT.

B-149624, OCT. 10, 1962

TO THE SECRETARY OF THE ARMY:

BY LETTER OF JULY 31, 1962, REFERENCE ENGGC-K, THE DEPUTY GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REFERRED TO THIS OFFICE FOR APPROPRIATE ACTION, PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, A CLAIM BY THE ST. FRANCIS LEVEE DISTRICT OF WEST MEMPHIS, ARKANSAS, IN THE AMOUNT OF $17,084.80. THE CLAIMANT SEEKS REIMBURSEMENT OF PAYMENTS MADE BY IT UNDER JUDGMENTS RENDERED BY THE CIRCUIT COURT OF CRITTENDEN COUNTY, ARKANSAS, IN FAVOR OF LANDOWNERS DAMAGES BY WATERS DIVERTED THROUGH A CHANNEL OF THE ST. FRANCIS BASIN PROJECT BEING CONSTRUCTED BY THE CORPS OF ENGINEERS UNDER AUTHORITY OF THE FLOOD CONTROL ACT OF 1950, 64 STAT. 172.

THE PROJECT INCLUDED DIGGING THE FLOODWAY CHANNEL INVOLVED FROM THE ST. FRANCIS RIVER TO L-ANGUILLE LAKE. THE CHANNEL ROUTE CROSSED U.S. HIGHWAY 79 MAKING IT NECESSARY TO PROVIDE BRIDGES AND TO ALTER CERTAIN RAILROAD FACILITIES AT THE POINT OF CROSSING. CONSTRUCTION OF THE CHANNEL PROCEEDED FROM THE ST. FRANCIS RIVER TO A POINT NEAR THE HIGHWAY WHERE CHANNEL CONSTRUCTION WAS HALTED TO AWAIT COMPLETION OF THE REQUIRED BRIDGES AND RAILROAD FACILITIES. THE NATURAL GROUND ELEVATION THROUGH WHICH THIS PORTION OF THE CHANNEL HAD BEEN DUG WAS SUFFICIENTLY HIGH TO CONTAIN THE WATERS OF THE ST. FRANCIS RIVER WHICH FLOWED INTO IT SO LONG AS THE RIVER LEVEL DID NOT REACH ABNORMAL HEIGHTS. THE ONLY FEASIBLE WAY TO PRECLUDE THE CHANNEL FROM OVERFLOWING IN THE EVENT OF A RISE IN RIVER LEVEL WAS TO SEAL THE CHANNEL AT THE POINT WHERE IT JOINED THE RIVER. THE COST TO CLOSE THE CHANNEL WAS ESTIMATED AT $85,000-$100,000; AND SINCE THE CHANCES WERE CONSIDERED GOOD THAT LITTLE, IF ANY, LOSSES WOULD OCCUR BY LEAVING THE CHANNEL OPEN, THE CORPS OF ENGINEERS DECIDED, IN VIEW OF THE COST INVOLVED,TO RUN THE RISK OF NOT DAMMING THE CHANNEL. WHILE HIGHER USUAL LEVELS OF THE ST. FRANCIS RIVER DID OCCUR DURING THE 1957 AND 1958 CROP SEASONS SO THAT SOME DAMAGE TO ADJACENT PROPERTY HOLDERS DID OCCUR, SUCH LOSSES AMOUNTED TO ONLY ABOUT ONE-FOURTH TO ONE-THIRD OF THE ESTIMATED COST OF PROVIDING THE CLOSURE DAM.

OF THE LANDOWNERS AND TENANTS SUFFERING DAMAGES, SOME FILED ADMINISTRATIVE CLAIMS WITH THE DISTRICT ENGINEER OF THE CORPS ON WHICH A TOTAL OF $8,715.61 WAS PAID UNDER AUTHORITY OF SECTION 2733 OF TITLE 10, UNITED STATES CODE,"PROPERTY LOSS * * * INCIDENT TO NONCOMBAT ACTIVITIES OF DEPARTMENT OF ARMY * * *.' OTHER LANDOWNERS AND TENANTS ALLEGING DAMAGE IN EXCESS OF THE $1,000 SETTLEMENT AUTHORITY THEN CONTAINED IN SECTION 2733, BROUGHT LEGAL ACTION IN THE STATE COURT AGAINST THE ST. FRANCIS LEVEE DISTRICT RESULTING IN JUDGMENTS TOTALING $17,084.80 WHICH THE LEVEE DISTRICT PAID. THIS AMOUNT COVERED NINE CLAIMS, AND RATHER THAN SUBMIT EACH ONE INDIVIDUALLY FOR CONSIDERATION OF PAYMENT UNDER SECTION 2733 OF TITLE 10 TO THE ST. FRANCIS LEVEE DISTRICT AS SUBROGEE OF THE INJURED LANDHOLDERS, THE LEVEE DISTRICT CONSOLIDATED THE SEVERAL CASES IN A SINGLE REQUEST FOR REIMBURSEMENT. THE JUDGMENTS WERE BASED UPON ARKANSAS STATUTES WHICH THE COURT INTERPRETED AS MAKING THE LEVEE DISTRICT LIABLE UNDER THE CIRCUMSTANCES NOTWITHSTANDING FINDINGS THAT THE DISTRICT WAS FREE FROM FAULT IN THE MATTER AND THAT, IN FACT, THE DAMAGES OCCURRED BY REASON OF THE FAULT OF THE UNITED STATES. ALTHOUGH THE LEVEE DISTRICT HAD INDICATED AT AN EARLY DATE THAT IT WOULD SEEK REIMBURSEMENT FOR THE JUDGMENTS PAID, IT DID NOT MAKE CLAIM IN WRITING WITHIN TWO YEARS AFTER THE CAUSES OF ACTION ACCRUED, THEREBY BARRING THE CLAIM FROM ADMINISTRATIVE SETTLEMENT UNDER THE PROVISIONS OF THE STATUTE AND REGULATIONS ISSUED THEREUNDER.

IT IS POINTED OUT IN LETTER OF JULY 31, 1962, THAT AS BETWEEN THE UNITED STATES AND THE ST. FRANCIS LEVEE DISTRICT, THE LEVEE DISTRICT SHOULD NOT BE RESPONSIBLE FOR A DECISION BY THE CORPS OF ENGINEERS TO LEAVE THE CHANNEL UNPLUGGED WHICH DISREGARDED THE RIGHTS OF PRIVATE LANDOWNERS, ALBEIT THE DECISION CONSTITUTED A REASONABLE AND PRACTICAL SOLUTION TO AN EXISTING PROBLEM. IT IS ADDED THAT WHILE UNDER AN INTERPRETATION OF ARKANSAS STATUTES THE LEVEE DISTRICT WAS HELD LIABLE, NO ACTION ON ITS PART WAS A PROXIMATE OR CONTRIBUTORY CAUSE OF THE DAMAGES INVOLVED AND THAT ALTHOUGH NO STATUTORY AUTHORITY IS KNOWN WHEREUNDER THE CLAIM FOR REIMBURSEMENT CAN BE CONSIDERED AT THIS TIME, THE CLAIM CONTAINS SUFFICIENT ELEMENTS OF EQUITY TO WARRANT THE DETERMINATION THAT THE CLAIM IS MERITORIOUS.

THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, PROVIDES THAT:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

THE PROVISIONS OF THE ACT APPLY ONLY TO SUCH CASES AS PRESENTED TO OUR OFFICE THAT FROM A STANDPOINT OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITIES IN FAVOR OF THE CLAIMANT ARE DESERVING OF SPECIAL CONSIDERATION OF THE CONGRESS AND WHICH WE COULD CONSIDER WITH A VIEW OF MAKING ALLOWANCE THEREON BUT FOR THE LACK OF ANY AUTHORIZED PREVIOUSLY ENACTED STATUTORY LAW OR APPROPRIATIONS MADE IN PURSUANCE OF SUCH LAWS AUTHORIZING THE PAYMENT OF SUCH CLAIMS. 13 COMP. GEN. 406, 34 ID. 490.

MANIFESTLY WHERE THE DEPARTMENT OF THE ARMY HAS AUTHORITY TO SETTLE SUCH CLAIMS IN AMOUNTS LESS THAN $1,000 AND HAS BEEN GIVEN FUNDS FOR SUCH PURPOSE TOGETHER WITH AUTHORITY TO REPORT CLAIMS IN EXCESS OF THAT AMOUNT TO THE CONGRESS, OUR OFFICE HAS NO AUTHORITY TO CONSIDER THE CLAIM WITH A VIEW TO ITS ALLOWANCE. WE HAVE CONSISTENTLY DECLINED TO REPORT TO THE CONGRESS UNDER THE PROVISIONS OF THE CITED ACT OF APRIL 10, 1928, CLAIMS OVER WHICH WE HAVE NO SETTLEMENT JURISDICTION.

WE, ACCORDINGLY, DO NOT BELIEVE THAT THE CLAIM IS ONE WHICH WE SHOULD REPORT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE ACT OF APRIL 10, 1928. HOWEVER, IT WOULD SEEM TO BE APPROPRIATE FOR THE DEPARTMENT OF THE ARMY TO RECOMMEND THE ENACTMENT OF PRIVATE RELIEF LEGISLATION IF CONSISTENT WITH THE DEPARTMENT'S GENERAL POLICY TO DO SO. ..END :