B-173971, OCT 27, 1971

B-173971: Oct 27, 1971

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THE LAND ON WHICH THE CROPS WERE GROWN WAS SUBJECT TO FREQUENT FLOODS PRIOR TO THE CONSTRUCTION OF THE DAMS OF THE MISSOURI RIVER FLOOD CONTROL SYSTEM. WAS LITTLE USED FOR AGRICULTURE. IT WAS ANTICIPATED THAT THE INCREASED VELOCITY RESULTING FROM INCREASED RELEASE OF WATER WOULD SCOUR THE SEDIMENT WITHOUT SIGNIFICANT FLOODING. CLAIM IS MADE UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION. IS FOR JUDICIAL RESOLUTION. IN THE CLAIMS DIVISION SETTLEMENT IT WAS STATED THAT IT HAS BEEN HELD THAT THE ASCERTAINMENT FOR A "TAKING" OF PRIVATE PROPERTY IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION AND THAT NO POWER EXISTS IN AN ADMINISTRATIVE AGENCY OF THE GOVERNMENT TO DECLARE WHAT JUST COMPENSATION SHALL BE.

B-173971, OCT 27, 1971

DETERMINATION OF GOVERNMENT "TAKING" OF LAND - JUDICIAL QUESTION DECISION DENYING CLAIM OF MR. DONALD E. SNOWDON FOR $27,954.40 FOR CROP DAMAGE AND DAMAGE TO PERSONAL PROPERTY INCIDENT TO OPERATION OF FORT RANDALL DAM AND LAKE FRANCIS CASE RESERVOIR. THE LAND ON WHICH THE CROPS WERE GROWN WAS SUBJECT TO FREQUENT FLOODS PRIOR TO THE CONSTRUCTION OF THE DAMS OF THE MISSOURI RIVER FLOOD CONTROL SYSTEM, AND WAS LITTLE USED FOR AGRICULTURE. THE FLOOD WHICH DID THE DAMAGE IN QUESTION RESULTED FROM THE RELEASE OF WATER THAT HAD ACCUMULATED BECAUSE OF AN ABOVE AVERAGE RUN-OFF IN 1969, AND HAD TO BE RELEASED BEFORE THE PERIOD OF ICE FORMATION. AT OR NEAR THE POINT OF DAMAGE SEDIMENT HAD SETTLED, REDUCING THE CHANNEL CAPACITY FROM 120,000 CUBIC FEET PER SECOND PER DAY TO LESS THAN 50,000 C.F.S. PER DAY. IT WAS ANTICIPATED THAT THE INCREASED VELOCITY RESULTING FROM INCREASED RELEASE OF WATER WOULD SCOUR THE SEDIMENT WITHOUT SIGNIFICANT FLOODING. THE VELOCITY PROVED INSUFFICIENT TO DO SO AND A FLOOD RESULTED WHICH CAUSED THE DAMAGE. CLAIM IS MADE UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION, THAT PROPERTY SHALL NOT BE TAKEN WITHOUT JUST COMPENSATION. AS THERE HAS BEEN NO SHOWING OF "TAKING" BY THE GOVERNMENT, AN ADMINISTRATIVE DETERMINATION OF JUST COMPENSATION CANNOT BE MADE. WHERE DOUBT AS TO A TAKING EXISTS, THE ENTIRE MATTER, THE QUESTION OF THE "TAKING" AND OF COMPENSATION THEREFOR, IS FOR JUDICIAL RESOLUTION.

TO KUTAK, ROCK, COHEN, CAMPBELL AND PETERS:

YOUR LETTER OF AUGUST 16, 1971, CONCERNS OUR CLAIMS DIVISION SETTLEMENT DATED JULY 29, 1971, WHICH DISALLOWED YOUR CLIENTS' CLAIM FOR $27,954.40 FOR CROP DAMAGE AND DAMAGE TO PERSONAL PROPERTY INCIDENT TO THE OPERATION OF THE FORT RANDALL DAM AND LAKE FRANCIS CASE RESERVOIR PROJECTS IN THE VICINITY OF NIOBRARA, NEBRASKA.

IN THE CLAIMS DIVISION SETTLEMENT IT WAS STATED THAT IT HAS BEEN HELD THAT THE ASCERTAINMENT FOR A "TAKING" OF PRIVATE PROPERTY IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION AND THAT NO POWER EXISTS IN AN ADMINISTRATIVE AGENCY OF THE GOVERNMENT TO DECLARE WHAT JUST COMPENSATION SHALL BE.

AS A MATTER OF CLARIFICATION YOU REQUEST THAT WE ADVISE YOU THE SOURCE OF THE HOLDING THAT THE ASCERTAINMENT OF JUST COMPENSATION FOR A "TAKING" OF PRIVATE PROPERTY IS A JUDICIAL AND NOT AN ADMINISTRATIVE FUNCTION.

IN AMERICAN-HAWAIIAN STEAMSHIP CO. V UNITED STATES, 124 F. SUPP. 378 (CT. CL. 1954), CERT. DENIED, 350 U.S. 863 (1955), THE COURT OF CLAIMS HELD:

" *** THE ASCERTAINMENT OF JUST COMPENSATION IS NOT AN ADMINISTRATIVE BUT A JUDICIAL FUNCTION; NO POWER EXISTS IN ANY ADMINISTRATIVE AGENCY OF THE GOVERNMENT TO DECLARE WHAT THAT COMPENSATION SHOULD BE OR TO PRESCRIBE ANY BINDING RULE IN THAT REGARD."

IN THE CITED CASE, THE COURT STATED THAT:

" *** ALTHOUGH IT MAY BE IMPRACTICABLE, FROM THE GOVERNMENT'S STANDPOINT, TO DETERMINE JUST COMPENSATION FOR EACH PARTICULAR VESSEL, THE RIGHT TO A JUDICIAL DETERMINATION, IF THE OWNER IS DISSATISFIED WITH THE COMPENSATION DETERMINED FOR HIS VESSEL, IS GUARANTEED BY THE MERCHANT MARINE ACT AND BY THE FIFTH AMENDMENT. THIS COURT, WHILE GIVING WEIGHT TO THE ADMINISTRATIVE DETERMINATION, MUST NONETHELESS DETERMINE FROM THE FACTS PROVEN WHAT IT THINKS IS JUST COMPENSATION."

SEE ALSO MONONGAHELA NAVIGATION COMPANY V UNITED STATES, 148 U.S. 312 (1893).

WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THERE HAS, IN FACT, BEEN A "TAKING," THE ADMINISTRATIVE AGENCY INVOLVED MAY MAKE A DETERMINATION AS TO WHAT CONSTITUTES JUST COMPENSATION. HOWEVER, IT IS CLEAR FROM THE ABOVE-CITED COURT CASES THAT THE ADMINISTRATIVE DETERMINATION AS TO THE AMOUNT OF JUST COMPENSATION IS NOT BINDING UPON THE COURTS ALTHOUGH THE COURTS WILL GIVE CONSIDERABLE WEIGHT TO SUCH A DETERMINATION.

HOWEVER, WHERE DOUBT EXISTS AS TO WHETHER THERE HAS BEEN A "TAKING," SUCH DOUBT MAY BE RESOLVED ONLY BY THE COURTS. SEE B-152725, FEBRUARY 19, 1964 (COPY ENCLOSED).

INSOFAR AS THE INSTANT CASE IS CONCERNED, THE ADMINISTRATIVE REPORTS INDICATE THAT THE FARM LANDS WHERE CROPS WERE DAMAGED ARE ALONG THE RIGHT BANK ON THE NEBRASKA SIDE OF THE MISSOURI RIVER DOWNSTREAM FROM FORT RANDALL DAM AND UPSTREAM FROM THE MOUTH OF THE NIOBRARA RIVER AND ITS DELTA. THE LANDS IN QUESTION WERE SUBJECT TO FLOODING UNDER NATURAL RIVER CONDITIONS PRIOR TO 1954 WHEN THE MISSOURI RIVER MAINSTREAM SYSTEM FOR FLOOD CONTROL BECAME OPERATIONAL. FROM THEN THROUGH 1968 THE NORMAL FLOODING OF THE PROPERTY (USUALLY FROM LATE MAY THROUGH EARLY AUGUST) WAS EFFECTIVELY CONTROLLED. RIPARIAN OWNERS, OBSERVING FERTILE ACCRETIONS TO THEIR PROPERTY IN THE FORM OF STABILIZATION OF RIVER MEANDER AND THE DRYING OF PORTIONS OF THE RIVER BED, BEGAN FARMING LAND THAT WAS FORMERLY OF LITTLE USE.

THE MISSOURI RIVER BASIN FLOOD CONTROL PROJECTS EXPERIENCED AN ABOVE AVERAGE RUN-OFF IN 1969 AND, AS A RESULT OF PROTECTING THE DOWNSTREAM VALLEY FROM SERIOUS FLOODING, ACCUMULATED OVER 10 MILLION ACRE FEET OF WATER IN THE FLOOD CONTROL ZONES OF THE RESERVOIRS. THIS ACCUMULATION HAD TO BE RELEASED PRIOR TO ICE FORMATION ON THE DOWNSTREAM CHANNEL IN THE WINTER OF 1969-70 TO ALLOW CONTROL OF ANTICIPATED RUN-OFF STORAGE IN THE FLOOD CONTROL STORAGE ZONE THE FOLLOWING YEAR. EVACUATION OF THESE STORED FLOOD WATERS WAS INITATED AS SOON AS LOWER MISSOURI RIVER LEVELS WENT BELOW FLOOD STAGE IN LATE JULY 1969. THE QUANTITY OF STORED WATER WHICH HAD TO BE EVACUATED, PLUS THE NORMAL INFLOW TO FORT RANDALL DAM, NECESSITATED A DAILY RELEASE OF AN AVERAGE OF BETWEEN 50,000 AND 55,000 CUBIC FEET PER SECOND (C.F.S), APPROXIMATELY 25,000 C.F.S. MORE THAN NORMAL (BETWEEN 30,000 C.F.S. AND 35,000 C.F.S.), DURING THE LIMITED TIME PERIOD OF JULY THROUGH NOVEMBER. PRIOR TO THE ESTABLISHMENT OF THE FLOOD CONTROL PROJECTS, THE DELTA FORMED AT THE MOUTH OF THE NIOBRARA RIVER HAD BEEN PERIODICALLY SCOURED BY THE ANNUAL FLOODS PREVIOUSLY NOTED. THE CONTROL OF FLOODS, HOWEVER, HAS RESULTED IN A BUILDUP OF SEDIMENT IN THE NIOBRARA RIVER DELTA, THE RESULT OF WHICH HAS BEEN A MARKED REDUCTION OF THE MISSOURI RIVER CHANNEL CAPACITY AT THIS POINT FROM AN ESTIMATED 120,000 C.F.S. PER DAY IN 1955 TO LESS THAN 50,000 C.F.S. IN 1969. IT WAS ANTICIPATED THAT THE RELEASE OF THE STORED FLOOD WATERS, RESULTING IN AN INCREASE IN VELOCITY OF THE MISSOURI RIVER, WOULD ACT TO SCOUR THE DELTA WITHOUT SIGNIFICANT RESULTANT FLOODING. THE INCREASE IN VELOCITY, HOWEVER, WAS NOT SUFFICIENT TO EFFECT THE DESIRED SCOURING AND THE INSTANT CLAIM ARISES FROM THE FLOODING OF THE BOTTOM LAND. PORTIONS OF THE LAND WERE NOT USEABLE, AS A RESULT OF A SUPER-INDUCTION OF WATER BY EITHER PERCOLATION OR SURFACE FLOODING, FROM ON OR ABOUT AUGUST 4, 1969, THROUGH NOVEMBER 20, 1969.

INFORMATION FURNISHED IN THE REPORT OF CLAIMS OFFICER, NOVEMBER 30, 1970, INDICATES THAT, AS A RESULT OF THE PROTECTION AFFORDED BY FORT RANDALL DAM, YOUR CLIENTS' LAND HAS BEEN PROTECTED FROM SERIOUS INUNDATIONS ON FOUR OCCASIONS, 1960, 1964, AND TWICE IN 1967, AND THAT LESSER FLOODING WOULD HAVE OCCURRED IN 1959, 1962, AND 1965. THE REPORT ALSO INDICATES THAT THE LATEST DATE IN THE YEAR FOR FLOODING SINCE 1948 HAS BEEN MID- JULY.

YOU STATE THAT YOUR CLIENTS' CLAIM IS BASED UPON THE PROHIBITION ENUNCIATED BY THE FIFTH AMENDMENT OF THE CONSTITUTION THAT PRIVATE PROPERTY SHALL NOT "BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION." YOU STATE IN YOUR LEGAL BRIEF THAT AS A RESULT OF THE OPERATION OF CERTAIN OF THE MISSOURI RIVER PROJECTS, THE RATE OF FLOW OF THE MISSOURI RIVER DECREASED; THIS CAUSED THE FORMATION OF THE SO CALLED NIOBRARA DELTA (A FORMATION OF SILT AND SEDIMENT); AND AS A RESULT OF THE FORMATION OF THE DELTA WATERS PERMITTED TO FLOW FROM THE DAM SPILLWAYS HAVE BEGUN TO SEEP UNDER AND ONTO YOUR CLIENTS' LAND, I.E., BACK UP ON THE LANDS. YOU STATE THAT THIS HAS SO RAISED THE GROUND WATER TABLE THAT THE 1969 CROPS WERE DESTROYED. YOU STATE THAT THE DESTRUCTION OCCURRED PARTLY BECAUSE THE CONSTANT SEEPAGE AND HIGH WATER INUNDATED THE CROPS OR MADE HARVESTING IMPOSSIBLE AND PARTLY BECAUSE THE UNNATURAL INUNDATION OF GROUND WATER UPSET THE CHEMICAL MAKEUP OF THE SOIL AND THEREBY DESTROYED EXISTING CROPS.

COURT DECISIONS THROUGH THE YEARS HAVE CLEARLY ESTABLISHED THE RULE THAT WHERE THE GOVERNMENT CONSTRUCTS WORKS UPON LAND OWNED OR CONTROLLED BY IT AND THEREBY CAUSES THE LAND OF ANOTHER TO BE PERMANENTLY FLOODED, THERE IS A TAKING OF THE FLOODED LAND AND THE GOVERNMENT MUST PAY JUST COMPENSATION. UNITED STATES V KANSAS CITY LIFE INSURANCE CO. 339 U.S. 799 (1950); UNITED STATES V DICKINSON, 331 U.S. 745 (1947); JACOBS V UNITED STATES, 290 U.S. 13 (1933); UNITED STATES V CRESS, 243 U.S. 316 (1917). HOWEVER, IT IS ALSO CLEARLY ESTABLISHED THAT NOT ALL FLOODINGS CAUSED BY OR PARTIALLY ATTRIBUTABLE TO THE GOVERNMENT AMOUNT TO A TAKING. UNITED STATES V SPONENBARGER, 308 U.S. 256 (1939); SANGUINETTI V UNITED STATES, 264 U.S. 146 (1924).

THE PRIMARY FACTOR IN DETERMINING LIABILITY OF THE GOVERNMENT HAS BEEN WHERE A DAM OR OTHER OBSTRUCTION HAS RESULTED IN EITHER PERMANENT FLOODING (UNITED STATES V WELCH, 217 U.S. 333 (1910)) OR "A PERMANENT LIABILITY TO INTERMITTENT BUT INEVITABLY RECURRING OVERFLOWS." UNITED STATES V CRESS, SUPRA, 243 U.S. AT 328.

ON THE OTHER HAND, THE COURTS HAVE SAID THAT ONE FLOODING (STOVER V UNITED STATES, 332 F. 2D 204 (9TH CIR. 1964), CERT. DENIED, 379 U.S. 922) OR TWO FLOODINGS (NATIONAL BY-PRODUCTS V UNITED STATES, 405 F.2D 1256 (CT. CL. 1969); NORTH COUNTIES HYDRO-ELECTRIC CO. V UNITED STATES, 151 F. SUPP. 322 (CT. CL. 1957), CERT. DENIED, 355 U.S. 822) OF LAND CANNOT BE REGARDED AS A TAKING OF A PERMANENT INTEREST IN THE LAND.

THE ADMINISTRATIVE REPORTS IN THE INSTANT CASE INDICATE THAT THE FLOODING INVOLVED HERE WAS A "ONE-TIME EVENT," THAT THE NIOBRARA DELTA WAS NOT THE SOLE CAUSE OF THE FLOODING, AND THAT THE FLOODING WOULD NOT HAVE OCCURRED HAD IT NOT BEEN FOR THE DIRECT SURFACE RELEASES OF WATER FROM FORT RANDALL DAM. IN THIS CONNECTION, DOCUMENTS FURNISHED US BY THE CORPS CONTAIN THE FOLLOWING PERTINENT STATEMENTS:

"B. ONE OF OUR CONTINUOUSLY RECORDING MISSOURI RIVER GAGES IS LOCATED ABOUT 2,000 FEET UPSTREAM FROM THE SWANSON PROPERTY. FROM THE RECORDS OF THIS GAGE WE HAVE DEVELOPED STAGE-DISCHARGE RATING CURVES WHICH REFLECT THE EFFECT OF THE AGGRADATION TREND OCCURRING AT NIOBRARA. USING A NORMAL FLOW OF 30,000 C.F.S. AS A REFERENCE POINT AND COMPARING THE 1968, 1969, AND 1970 RATING CURVES, IT APPEARS THAT THE RIVER STAGE FOR THIS FLOW RAISED ABOUT 0.5 FEET FROM 1968 TO 1969 BUT RETURNED TO 1968 LEVELS BY 1970. THIS LOWERING PROBABLY REFLECTS SCOURING OF THE CHANNEL DUE TO HIGH 1969 FLOWS AND VELOCITIES.

"C. ASSUMING THAT THE GROUND WATER LEVELS IN THE VICINITY OF THE GAGE SLOWLY FOLLOWED THE TREND OF MISSOURI RIVER STAGES, IT CAN BE PROJECTED THAT THE 1969 GROUND WATER LEVELS AT THE SWANSON PROPERTY WOULD HAVE BEEN ABOUT 0.5 FEET HIGHER THAN THE 1968 CONDITIONS IF THE HIGH FLOWS OF AUGUST THROUGH NOVEMBER 1969 HAD NOT OCCURRED. IT IS PROBABLE THAT THIS 0.5 FOOT RISE EXISTED DURING THE NORMAL FLOW PERIOD IN 1969 PRIOR TO AUGUST.

"D. IF THE GROUND WATER LEVELS THAT EXISTED AT THE SWANSON PROPERTY DURING 1968 DID NOT ADVERSELY AFFECT CROP PRODUCTION IN 1968 NOR FARMING CONDITIONS OR PLANT GROWTH PRIOR TO AUGUST 1969, IT SEEMS REASONABLE TO EXPECT THAT SUCH LEVELS WOULD NOT HAVE CAUSED DAMAGE TO THE CLAIMANTS' CROPS LATER IN 1969 IF THE HIGH RELEASES FROM FORT RANDALL HAD NOT OCCURRED."

THE KANSAS CITY LIFE INSURANCE COMPANY CASE, MENTIONED IN YOUR LEGAL BRIEF AND CITED ABOVE, INVOLVED A PERMANENT TAKING. THUS, THE INSTANT CASE IS CLEARLY DISTINGUISHABLE FROM THE LAST CITED CASE IN THAT NO PERMANENT TAKING WAS INVOLVED HERE. SINCE THERE WAS NO PERMANENT TAKING IN THE INSTANT CASE, WE WOULD HAVE NO AUTHORITY TO CONSIDER AND ALLOW YOUR CLIENTS' CLAIM ON THE BASIS OF A "TAKING."

ALLOWANCE OF THE CLAIMS IN THIS CASE ON ANY OTHER BASIS WOULD BE A MATTER EXCLUSIVELY WITHIN THE JURISDICTION OF THE SECRETARY OF THE ARMY, RATHER THAN THIS OFFICE. SEE 28 U.S.C. 2671-2680 AND 10 U.S.C. 2733.

IN LIGHT OF THE FOREGOING, YOUR CLIENTS' CLAIM MUST BE AND IS DENIED.