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LAW REVIEW continued from page 27

Tonto Basin, including A-Cross, were
easy to cross by vehicle.

Defendant also admits that the lake's
water came from the active conservation storage area, not from the flood control storage area. While it is possible that
flood waters could have been in the lake,
as in Central Green, the issue is unclear.
Central Green requires us to " identify the
cause of the damage rather than base a
decision on the mere fact that a flood control project was involved. "
Having found " the major purpose of
the Roosevelt Dam is to store natural
runoff for irrigation, and not flood control, " the federal district court
concluded it was " highly unlikely that
this case really has anything to do with
the Flood Control Act. " As a result, the
federal district court denied summary
judgment in favor of the defendant United States which would have dismissed
plaintiffs' claims based upon federal
flood control immunity.

All Project Waters
In the case of Craan v. U.S. Army Corps of
Engineers (E.D. Calif 1/3/2008), the federal district court found the Corps was
entitled to section 702c immunity under
the Flood Control Act. Applying absolute
immunity based on language in James,
typically found in federal court opinions
prior to Central Green, the court found
governmental immunity broadly applied as long as the injury results from
the operation of a federal flood control
project. In so doing, the Craan court inexplicably failed to cite, let alone apply,
the Supreme Court requirement enunciated in Central Green that federal courts
" consider the character of the waters that
cause the relevant damage and the purposes behind their release " in determining the applicability of immunity under
the Flood Control Act.
In this case, plaintiff Craan claimed
her son Casand, age 20, drowned in Lake
Isasbella while " swimming with friends
back and forth to a small island about 100
yards off shore. " Craan contended that
Casand was pulled under the water by a
" strong hydro suction, sediment, or current. " In so doing, Craan alleged that the
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Corps was negligent in operating and
maintaining Lake Isabella. Specifically,
Craan maintained that " strong undercurrents of which swimmers were unaware "
along with " overgrown algae " and " unmarked underwater hazards " contributed to her son's death.
As noted by the federal district court,
Congress had authorized the Corps, an
agency of the U. S. Army, to construct
the dam at Lake Isabella for flood control
pursuant to the Flood Control Act of 1944
( " FCA " ), 33 U.S.C. §§ 701, et seq. Similarly,
the Corps had stated " Congress specifically authorized the project for the Isabella
Reservoir on the Kern River for 'flood control and other purposes' in the Flood Control Act of 1944. " Accordingly, the Corps
characterized the project as a " comprehensive plan for flood control. " Moreover,
the Corps contended it continued to " control the dam and gross pool of floodwaters
contained in Lake Isabella. " As a result, the
Corps argued that " section 702c immunity
attaches with a 'sufficient nexus' between
flood control and Casand's death. " The
federal district court agreed.
The Corps establishes, and plaintiffs fail
to refute, that section 702c immunity applies to the Corps' control of the Lake
Isabella project. Plaintiffs make no meaningful challenge to section 702c
immunity which protects the Corps from
liability from Casand's death. Under the
circumstances, plaintiffs can allege no
facts to avoid section 702c liability.

As cited by the federal district court,
the Flood Control Act provides a broad
grant of immunity to the Corps: " 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 " 33 U.S.C. § 702c ( " section 702c " ).
Quoting directly from the opinion of the
U.S. Supreme Court in United States v.
James, the court acknowledged that it
was " difficult to imagine broader language " in defining the scope and applicability of immunity under the Flood
Control Act:
It is thus clear from § 702c's plain language that the terms 'flood' and 'flood
waters' apply to all waters contained in
or carried through a federal flood

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