Continental Insurance Company v. United States

774 F.3d 359, 2014 FED App. 0295P, 2014 U.S. App. LEXIS 23932, 2014 WL 7181321
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 18, 2014
Docket13-5578, 13-5599
StatusPublished
Cited by24 cases

This text of 774 F.3d 359 (Continental Insurance Company v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Insurance Company v. United States, 774 F.3d 359, 2014 FED App. 0295P, 2014 U.S. App. LEXIS 23932, 2014 WL 7181321 (6th Cir. 2014).

Opinion

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Appellants in these consolidated cases contend that the Army Corps of Engineers (“Corps”) negligently failed to follow its flood protocols in operating Old Hickory Dam, exacerbating the property damage caused by a one-thousand-year flood event in Tennessee. The district court dismissed Appellants’ claims for lack of subject matter jurisdiction under Federal *362 Rule of Civil Procedure 12(b)(1), holding that Appellants’ claims were barred by the immunity provided in the Flood Control Act, 33 U.S.C. § 702c, and by the discretionary function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a). We AFFIRM because the discretionary function exception bars Appellants’ claims.

I.

The Cumberland River flows through Kentucky and Tennessee. The river contains ten dams, one of which is Old Hickory Dam. Old Hickory was built to promote navigation and electricity. Water that flows through Old Hickory eventually reaches Nashville, which sits in the bottom of the Central Basin of the Cumberland River.

The reservoir behind Old Hickory can store a significant amount of water, and conceptually is divided vertically into three pools. The inactive pool occupies the area from the bottom of the reservoir up to 442 feet above sea level. The power pool occupies the area from 442 feet to 445 feet. And the surcharge pool occupies the area from 445 feet to 450 feet. If water exceeds the capacity of the surcharge pool, the dam is in danger of being overtopped and damaged. The Corps then must accelerate discharges through the dam to prevent it from being destroyed.

The water level in Old Hickory’s reservoir is generally maintained in the power pool. Old Hickory’s Water Control Manual (“Water Control Manual”) states that “to enhance recreational opportunities, it is desirable to maintain Old Hickory in the upper one foot of the power pool, between elevations 444 and 445.” The surcharge pool is kept empty: “Water is permitted in the flood surcharge pool only diming flood events.” Surcharge storage is intended only to “replace the natural valley storage lost due to the impoundment of a reservoir.” In other words,

The loss of valley storage can send flood waters into a reach of river quicker than would be the case under natural conditions and subsequently cause stages at downstream points to be higher than would be the case had the project not been built. These increases in flood depths would be relatively minor, but even minor increases in flood depths cause an increase in damage. To prevent the Old Hickory reservoir from causing such an increase in downstream flood depths, the flood surcharge storage space is used to store this excess water and thus return downstream flood stages to those that would have existed had Old Hickory Dam never been built. Thus, no overall improvement in downstream flood stage conditions are [sic] expected from the flood surcharge storage at Old Hickory.

The “Flood Regulation” portion of the Water Control Manual outlines management protocols to execute depending on existing or anticipated flood conditions. Although the Water Control Manual does not provide a trigger for these protocols, it juxtaposes “Flood Regulation” with “Normal Regulation.” The Master Water Control Plan for the Cumberland River Basin (“Master Plan”) states that “[r]eal time reservoir management requires a great deal of judgement [sic] in operation. It is recognized that the demands of water resource management are at times conflicting and the water control manager must have some degree of operation flexibility.” There are multiple Corps’ directives relevant to this case, including the aforementioned Water Control Manual and Master Plan, as well as the Old Hickory Dam Instructions for Reservoir Regulation Manual (“Reservoir Regulation Manual”) *363 and general Corps Engineering Regulations.

First, the Water Control Manual states that

preflood drawdown to elevation 442 is permitted upon direction from the Water Management Section. Since the pool typically remains in the upper one foot of the three foot power pool, as desired for recreation, it is doubtful that there will be sufficient time for the full pool to be emptied by preflood draw-down .... A maximum rate of rise of one foot per hour at Nashville is used to guide preflood drawdown operations.

Second, the Water Control Manual advises that “releases greater than ‘natural’ flows should be made at the onset of a flood to conserve storage for the peak.” But this directive is “[s]ubject to the 5,000 cfs [cubic feet per second] per hour increase limitation” for combined flows from Old Hickory and the nearby J. Percy Priest Dam outlined in the Reservoir Regulation Manual.

Third, the Reservoir Regulation Manual states that Corps policy is to “conserv[e] all surcharge storage” and any storage that could be gained through pre-flood drawdown of the power pool “until it is clearly evident that the storm has passed.” As the Water Control Manual puts it, “Flood storage is best used just prior to the peak of the flood to maximize reduction of the peak outflow from the project.” According to the Reservoir Regulation Manual, the “one exception to the policy of conserving all surcharge storage” is “[i]f the rise is expected to be short term, and the 'reservoir level is projected to not exceed elevation 445.15.... ”

And fourth, the Water Control Manual provides that

[i]f the control flow at Nashville cannot be maintained while holding the water surface within the power pool, then flood surcharge storage is utilized. If the headwater is rising faster than 0.15 feet per hour, Old Hickory releases are increased and the Nashville control flow is exceeded, but the increase in maximum combined spillway releases from Old Hickory and J. Percy Priest is limited to 5,000 cfs per hour. This operating constraint remains in effect until all surcharge storage is used, at which time the discharge is increased as necessary to maintain the water surface at the top of the flood surcharge pool, elevation 450.

The “Flood Periods” provisions of the Reservoir Regulation Manual offer an additional consideration: “If maximum flows at Nashville cannot be maintained while holding water surface within the power pool, set the surcharge pool fill rate at or below 0.15 feet per hour, subject to the 5,000 cfs per hour increase limitation stated below.”

An unprecedented storm swept through the Cumberland River Basin on May 1-2, 2010. A smaller storm that occurred one week earlier had already saturated the ground. On April 28, the National Weather Service (“NWS”) predicted rainfall of up to 6.2 inches for the area, a projection that was increased to 7.8 inches by April 30. Water was kept at its usual depth during this time — six inches from the top of the power pool — even though the Corps was aware of the storm forecast. The rain began to fall in the early morning on May 1, and the NWS increased its regional rainfall projection to 8.6 inches.

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774 F.3d 359, 2014 FED App. 0295P, 2014 U.S. App. LEXIS 23932, 2014 WL 7181321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-insurance-company-v-united-states-ca6-2014.