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Relation to Tort Claims. The annual appropriation acts, and the Act of February 20, 1929, 45 Stat. 1252, 25 U.S.C. § 388, relating to claims for damages caused by Indian irrigation projects, provide only for the administrative determination of claims which do not sound in tort, as the Federal Tort Claims Act is considered to provide the exclusive remedy for all tort claims. As a matter of procedure, when a claim is submitted for administrative determination it is considered under both the annual Public Works Appropriation Act and the Federal Tort Claims Act, to determine if a remedy is available under either Act. For cases and determinations involving tort claims, see the Act of June 25, 1948, herein and notes thereunder.

Relation to Claims for Taking of Property. Where the reclamation activities result in a "taking of" property, rather than

Canal breaks 3

Canal seepage 4

Direct causation 1

Fire 14

Floods 2

Indian irrigation projects 7

in "damages to" property (admittedly a difficult distinction to draw), the landowner is entitled to just compensation under the Fifth Amendment to the Constitution. If such property is not acquired by the Bureau of Reclamation by purchase or condemnation, the property owner may bring suit under the Tucker Act in the Court of Claims or the United States District Court. Selected cases are noted herein under the Fifth Amendment to the Constitution, and extracts from the Tucker Act appear herein in the Appendix.

Editor's Note, Annotations of Administrative Determinations. The annotations of administrative determinations which follow should not be considered an exhaustive treatment, as the proceedings in this field are voluminous. However, an attempt has been made to select illustrative decisions spanning the range of fact situations.

Land purchase contract release clauses Livestock losses 6

8

The Government is not liable under the Federal Tort Claims Act for property damage resulting from water escaping through a sudden break in an irrigation canal which was constructed according to plans prepared by engineers based upon the best engineering practices available, and inspected regularly with reasonable diligence and skill after being placed in operation. However, the Government at its discretion may compensate injured parties in these circumstances under the Interior Department Appropriation Act where the cause of the damage is shown to be the direct result of activities of the Bureau of Reclamation. Northern Pacific Railway Co., et al., T-560 (Ir.) (May 10, 1954).

Where action of claimant in removing dirt from banks of irrigation ditch was shown to have been a proximate cause of a break in the ditch resulting in the flooding of his land, no damages may be recovered against the United States under appropria

tion act provision available therefor. C. E. Burbridge, M-32045 (January 30, 1943).

Recovery for alleged damages was denied when the claimant failed to show by a fair preponderance of the evidence that alleged contamination of his spring was caused by an increase in the alkaline or salt content of irrigation waters pumped, "damages resulting from remote or consequent causes" being held not to come within the purview of the statute. Columbia Basin Orchard Co., M-31669 (November 19, 1942). 2. Floods

The Government is not liable, under the Federal Tort Claims Act, for damage caused to crops by a flood diverted to claimant's land by the existence of a Bureau of Reclamation canal because the original decision to build the laterals without placing culverts under them was within the discretionary function exception of the Act. The Flood Control Act, 33 U.S.C. § 702c, is an immunity statute, applicable only where liability would exist without it, and as there was no liability, the Flood Control Act does not bar the payment of claims under the Public Works Appropriation Act. In this instance the flood waters would not have been diverted onto claimant's land but for the lateral, thus the damage done was the direct result of non-tortious activities by the Bureau of Reclamation. Claim allowed. Bill Powers, TA-271 (Ir.) 71 I.D. 237 (1964).

Where flooding of land was the result of a rainstorm of unprecedented or cloudburstlike proportions, and not the result of a direct act or omission, or negligence in the construction, operation or maintenance of a drainage ditch, claimants cannot recover

from the Government for property damaged. S. L. Tooke, et al., M-31871 (August 22, 1942).

No recovery may be had against the United States where it was shown that the operation of certain reservoirs of a Government irrigation project did not cause the flooding of claimants' lands during a severe rainstorm but that in fact they reduced, impeded and retarded the flood waters of a creek above the reservoirs; that large quantities of water were not suddenly released from the reservoirs; that the reservoirs were operated efficiently and in such manner as to utilize the available storage capacity to the fullest possible extent for the regulation and control of the flood waters; and that but for the reservoirs, the flood waters in the creek, and the damage resulting therefrom, would have been appreciably greater. Lenora Simpson, et al., M-30564 (February 16, 1940).

Claims filed against the United States by landowners on the west side of the Rio Grande River who alleged that the Alamo levee, constructed by the United States in 1933 on the east side of the River, had caused their lands to be flooded, were disallowed, the Under Secretary of the Interior holding that the alleged damaged lands were a part of the flood plain of the Rio Grande River which would be flooded independently of the Alamo levee, and that the United States had a right to construct the levee to protect its property against floods in the River even if such construction should result in damage to the lands on the opposite side of the river. Norberto Butler, et al., August 29, 1935.

Floods of unprecedented occurrence and volume are acts of God over which the Government has no control and for which it cannot be held liable. Palmyra Longuemare, et al., February 21, 1930.

3. Canal breaks

Damage caused by flooding when a canal break occurred due to gopher burrowing could not be compensated under the Public Works Appropriation Act since the break was not directly caused by the activities of the Bureau of Reclamation. Wilbur B. Cassady and Mary A. Cassady, and Farmers Insurance Group, TA-235 (Ir.), 69 I.D. 193 (1962).

When a canal dike breaks because of the activities of ground squirrels, the direct cause of the break is the presence of ferae naturae, over which the United States has no control, thus no liability can attach. Anna Barnes, 57 I.D. 584 (1942).

Damages caused by water escaping from a Government canal to railroad trestles and

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embankments is compensable under the annual appropriation act as the direct result of activities of the Bureau of Reclamation. Northern Pacific Railway Co., et al., T-560 (Ir.) (May 10, 1954).

Flooding caused by tumbleweeds, which sank and rolled along the bottom of a culvert of an irrigation lateral, clogging a drain and causing claimant's land to be overflowed, was held to have resulted from the manner in which the canal was maintained by the Government, to be "damage due to unavoidable causes in which the element of negligence does not appear," and claimant accordingly was permitted to recover for damage resulting therefrom. George H. Munro, M-31573 (January 24, 1942).

4. Canal seepage

When an award for damage to property is rendered as a result of seepage from an irrigation canal, and that award is based on the permanent depreciation in value of the property due to the seepage, no additional award may be rendered unless the extent or intensity of the seepage has increased since the first award to a degree which has caused further permanent depreciation in the value of the property. Norma Streit, et al., T-1100 (Ir.) (February 4, 1964). For the earlier award, see Arnold Streit, T-476 (Ir.) (Supp.), 62 I.D. 12 (1955).

Claimant contended that seepage water from Bureau of Reclamation ditches and canals had rendered grazing land useless and caused damage to cattle from falls suffered by ice formation. The record showed several other sources for the seepage, however, namely heavy irrigation and rainfall on adjacent upland farms and two springs in the area; therefore the claim was denied. The damages must be the direct result of activities of the Bureau of Reclamation, which required in this context that seepage water from project facilities alone, without contribution from other sources, be sufficient to cause the damage. Howard D. Galletine, T-980 (Ir.), 67 I.D. 191 (1960).

Claimant had conveyed the right of way for a canal to the United States, which subsequently caused damage to the basement of his home and his crops by seepage. Upon a showing of damage directly caused by activities of the Bureau of Reclamation, measured by the difference in appraisal value of the property with and without the seepage condition, compensation was made to claimant, past rulings to the contrary being reversed. Arnold Streit, T-476 (Ir.) (Supp.), 62 I.D. 12 (1955).

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5. Reservoir water releases and escapes

The claimant contended the formation of accumulated ice jams, caused by the fluctuation of river flow in the winter resulting from irregular power releases made through the powerplant, damaged his irrigation diversion dam. However, previous ice jams had developed on the river during periods of continuous water release from the powerplant, ice jams had occurred during the same winter on nearby rivers with no apparent relationship to continuous or fluctuating flows, and reservoir intake records showed the natural flow of the river would have varied over 550 per cent during the period the damage occurred. Therefore, it could not be established that damage to claimant's dam was the direct result of non-tortious activities of employees of the Bureau of Reclamation. Hanover Irrigation District, TA-256 (Ir.) (February 20, 1964).

Spillway gates at a Bureau of Reclamation dam gave way, permitting a large volume of water to escape from the dam. Failure of the gates was traced to a defective anchor bolt common to two of the gates, but even a close inspection would not have revealed the defect, therefore there was no negligence on the part of the Government. An award for damage claims for flooded lands could be made from the current Interior Department Appropriation Act (1951), however, even though the damage occurred in 1942, as Congress has provided no statute of limitations for this discretionary_power. Solicitor White Opinion, 60 I.D. 451 (1950).

The Government was held not liable for damage caused by flooding when an unprecedented accumulation and flow of heavy ice loosened the structure and caused a dam to break where it was shown that the dam was properly designed and constructed to withstand such pressure as it would be likely to meet based on past experience. Nashua Booster Club, et al., M-30446 (September 13, 1940).

Where a large volume of water from a reservoir was discharged in order to clean and repair it, causing a greatly increased flow of water in the river below the dam and reservoir which overflowed the banks of the river and resulted in damage to owners of adjoining lands, it was held that the one was a direct consequence of the other and that claimants could therefore recover. Dec. Comp. Treasury, June 15, 1915.

6. Livestock losses

Claimant's damages were caused by loss of livestock through drowning in an unfenced irrigation canal. Applicable state law,

which determined the result for a negligence theory of liability under the Federal Tort Claims Act, did not require a landowner to fence his land or be liable to the owner of livestock injured while upon that land, therefore the claim was denied under the Federal Tort Claims Act. A long-established policy of the Department did not consider livestock drowning in irrigation facilities to be the direct results of Government employees' activity, thus the claim was denied under the statute relating to claims for damage caused by Indian irrigation works. John C. Brock, TA-249 (Ir.), 70 I.D. 397 (1963). For other determinations under the appropriation acts denying awards in cattle drowning cases, see Dale Jones, TA-185 (Ir.) (April 23, 1959); Ray Strouf. TA-180 (Ir.) (February 6, 1959); Alfred Koeltzow, TA-18 (Ir.) (July 25, 1949).

7. Indian irrigation projects

The criteria for an award under the annual Public Works Appropriation Acts and those for awards under the Indian project act are the same, thus determinations made under the one may be used as precedent for the other. Therefore, a claim for losses of livestock by drowning in an Indian irrigation project canal must be denied. John C. Brock, TA-249 (Ir.), 70 I.D. 397 (1963).

Realignment of telephone poles brought about through wind action after the footings of the poles had been softened by submersion in water, and through the action of ice formed during the winter in lifting the poles from their settings, in an area inundated by the construction of the Wild Horse Dam on the Duck Valley irrigation project, Nevada, held due to direct acts of Bureau of Indian Affairs employees in the survey, construction, operation or maintenance of irrigation projects for which damages were recoverable under the 1929 act. Elko County Telephone and Telegraph Co., M31026 (January 17, 1941).

8. Land purchase contract release clauses

Where there was no indication that the original appraisals of a canal right of way purchased by the Government were increased because of inclusion in the contract of a clause requiring claimant to accept the purchase price as full payment for all damages, and no evidence that future damage was within the contemplation of either party when the purchase price was fixed, then upon proof of damage by canal seepage, compensation will be allowed. Arnold Streit, T-476 (Ir.) (Supp.), 62 I.D. 12 (1955).

Notwithstanding an agreement in a land-purchase contract to accept the pur

chase price as full payment for all damages for entry upon the property and the construction, operation and maintenance of reclamation works thereon, a vendor may be awarded damages under the provisions of the annual Interior Department appropriation act when the contract gives the vendor the right of possession until a certain date, and before that date the Bureau of Reclamation overflows the land and destroys the crops growing upon it. Ruth O. Wiles, T-462 (Ir.), 61 I.D. 109 (1953). 9. Wells

was

Claimants alleged their water wells went dry as a result of the construction of a drainage ditch by the Bureau of Reclamation. The record showed the wells went dry within a short time after the drainage ditch was constructed, the wells had supplied water for several years before the ditch was constructed, substantial water encountered during construction of the ditch past claimant's properties, and the water table had been lowered noticeably since construction. This was enough to constitute a prima facie case in favor of the causal relationship between the ditch construction and the drying up of the wells; and in the absence of rebuttal evidence, and particularly because of the difficulty in drawing conclusions with mathematical certainty regarding subterranean water, this showing entitled claimants to recovery under the current Public Works Appropriation Act. Ed Brewer, et al., TA-253 (Ir.), 71 I.D. 84 (1964).

10. Silting

Where silt, exposed by the lowering of the water surface of a Bureau Reservoir, was blown over adjacent lands by the prevailing winds, no claim for damage resulting therefrom could be allowed because the damage was not the direct result of the operation of Government employees. W. E. Bartlett, et al., 57 I.D. 415 (1941).

11. Subirrigated lands

Diversion by the Government of waters of a lake, thereby depriving meadowland of its moisture derived from subirrigation, even though the land was not contiguous to the meander line of the lake, constitutes a valid claim for damages within the contemplation of the appropriation act provision. However, where the meadowland is damaged by the diversion of waters of a lake, the landowner is not entitled to general damages to his remaining lands, as incidental to the damage to the former, if the latter were not directly benefited by those waters prior to their diversion. George W. Myers and Lillie A. Myers, 49 L.D. 106 (1922).

12. Property, what constitutes

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Claimants sought damages because the construction and operation of a reclamation project had increased the volume of water in a lake, thereby diluting its dissolved mineral content and making claimant's business of extracting salts from the water more expensive. The claim was denied on the grounds no valid property right was damaged, since claimant had never appropriated the dissolved minerals in the lake or obtained a license or permit from the city or state for that purpose. Roxie Thorson and Marie Downs, T-710 (Ir.), 63 I.D. 12 (1956). 13. Transfer of facilities

A damage claim submitted for seepage from a canal which resulted in waterlogging land belonging to claimants was undisputed insofar as the damage or its cause was concerned. However, responsibility for the operation and maintenance of the structures was transferred to the Department of Agriculture by agreements made under the Water Conservation and Utilization Act, as soon as the Bureau of Reclamation had finished constructing the main and branch canals and the laterals. The Bureau of Reclamation's original plans called for construction of drainage systems also, anticipating the seepage problem, but its responsibilities for construction were terminated before these structures were built. Therefore, the funds appropriated for the Bureau of Reclamation should not be charged with damages resulting from a failure by other entities to fully execute a plan of construction the Bureau was not allowed to complete. Marilynn Truscott and Solveig C. Evans, T-453 (Ir.), 61 I.D. 88 (1953).

14. Fire

Claimant may recover damages from the United States for property damage resulting from a forest fire which occurred during the construction of a reservoir where the forest fire resulted from a shift of the wind during land-clearing operations by burning and was not due to negligence on the part of Government employees. The Shevlin-Hixon Co., 58 I.D. 189 (1942).

Claimant may recover damages from the United States for property damage where during the burning of dry willows necessary to the maintenance of an irrigation ditch a sudden wind came up and carried the fire into adjacent cut-over meadow lands. Race Harney, M-31661 (February 4, 1942). 15. Roads and bridges

Damages for the extraordinary use of a public highway bridge by Government personnel in the course of constructing the various units of the Kendrick project,