CENTRAL GREEN CO. v. UNITED STATES

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425 OCTOBER TERM, 2000
Syllabus
CENTRAL GREEN CO. v. UNITED STATES
certiorari to the united states court of appeals for
the ninth circuit
No. 99–859. Argued October 30, 2000—Decided February 21, 2001
The Madera Canal, a federal facility leased to the Madera Irrigation Dis-
trict (MID), flows through petitioner’s California orchards. Petitioner
brought suit against respondent United States and the MID alleging
that their negligence in the canal’s design, construction, and mainte-
nance caused subsurface flooding resulting in damage to the orchards
and increased operating costs for petitioner. The complaint sought
damages under the Federal Tort Claims Act and other relief. Relying
on the immunity granted by the Flood Control Act of 1928, 33 U. S. C.
§ 702c—which states that “[n]o 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”—the United States moved for judgment on the
pleadings. The District Court dismissed the complaint because the par-
ties agreed that the canal was a part of the Friant Division of the Cen-
tral Valley Project, and that flood control was one of that project’s pur-
poses. The Ninth Circuit affirmed, holding that although the canal
serves no flood control purpose, immunity attached solely because it is
a branch of the larger project.
Held: In determining whether § 702c immunity attaches, courts should
consider the character of the waters that cause the relevant damage and
the purposes behind their release rather than the relation between that
damage and a flood control project. Pp. 428–437.
(a) A passage in United States v. James, 478 U. S. 597, 605—which
states that it is “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 control project for purposes of or related to flood control”—
lends support to the Ninth Circuit’s holding, but is unquestionably dic-
tum. It is therefore appropriate to resort to the statute’s text, as illu-
minated by the James holding, rather than to that isolated comment, to
determine whether the water flowing through the canal that allegedly
damaged petitioner’s orchards is covered by § 702c. The James hold-
ing—that the phrase “flood or flood waters” encompasses waters that
are released for flood control purposes when reservoired waters are
at flood stage—is vastly different from the Ninth Circuit’s reading of
§ 702c, under which immunity attaches simply because the Madera Canal

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Opinion of the Court
is part of the Friant Division of the Central Valley Project, and flood
control is one of the project’s purposes. Pp. 428–432.
(b) To characterize every drop of water flowing through the immense
Central Valley Project as “flood water” simply because flood control is
among its purposes unnecessarily dilutes the statute’s language. The
statute’s text does not include the words “flood control project,” but,
rather, states that immunity attaches to “any damage from or by floods
or flood waters.” Pp. 432–434.
(c) Neither the statute’s language nor the James holding even argua-
bly supports the Government’s conclusion that § 702c immunity must
attach to all the water flowing through the canal, even if the water
never approached flood stage and the terminus of the canal was parched
at the end of the summer. Accordingly, the Court disavows the “related
to” portion of James’ dicta. Pp. 435–436.
(d) Because the question of immunity was decided on the pleadings,
using an incorrect test and without benefit of an evidentiary hearing or
further factual development, the case is remanded for further proceed-
ings. Pp. 436–437.
177 F. 3d 834, reversed and remanded.
Stevens, J., delivered the opinion for a unanimous Court.
Timothy Jones argued the cause for petitioner. With him
on the briefs were Thomas C. Goldstein, W. Allen Bennett,
and Erik S. Jaffe.
David C. Frederick argued the cause for the United
States. With him on the brief were Solicitor General Wax-
man, Assistant Attorney General Ogden, Deputy Solicitor
General Underwood, and Irene M. Solet.*
Justice Stevens delivered the opinion of the Court.
Incident to the authorization of a massive flood control
project for the Mississippi River in 1928, Congress enacted
an immunity provision which stated that “[n]o 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.” 45
*M. Reed Hopper filed a brief for the Pacific Legal Foundation as ami-
cus curiae urging reversal.

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Stat. 535, as amended, 33 U. S. C. § 702c. At issue in this
case is the meaning of the words “floods or flood waters.”
The narrow question presented is whether those words en-
compass all the water that flows through a federal facility
that was designed and is operated, at least in part, for flood
control purposes. The Ninth Circuit, relying upon a broader
construction of § 702c than some other federal courts have
adopted, concluded that they do. We granted certiorari to
resolve the conflict, 529 U. S. 1017 (2000), and now reverse.
I
Petitioner owns 1,000 acres of pistachio orchards in Cali-
fornia’s San Joaquin Valley. The Madera Canal, a federal
facility that has been leased to the Madera Irrigation Dis-
trict (MID), flows through petitioner’s property. In 1996,
petitioner brought this action against respondent United
States and the MID alleging that their negligence in the de-
sign, construction, and maintenance of the canal had caused
subsurface flooding resulting in damage to the orchards and
increased operating costs for petitioner. Petitioner did not
allege that any physical failure of the dam caused the damage
to its property. The complaint sought damages under the
Federal Tort Claims Act, 28 U. S. C. § 2671 et seq., as well as
injunctive relief. Relying on the immunity granted by the
Flood Control Act of 1928, 33 U. S. C. § 702c, the United
States moved for judgment on the pleadings.
Accepting petitioner’s submission that the Madera Canal
was used for irrigation purposes, the District Court never-
theless dismissed the complaint because the parties agreed
that the canal was a part of the Friant Division of the Cen-
tral Valley Project, and that flood control was one of the pur-
poses of that project. The District Court’s decision was dic-
tated by an earlier Ninth Circuit case, which held that if a
“ ‘project has flood control as one of its purposes, and the

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events giving rise to the action were not wholly unrelated to
the project,’ ” immunity necessarily attached.1
On appeal, the Ninth Circuit affirmed. It agreed with
petitioner that the Madera Canal “serves no flood control
purpose,” but nevertheless held that immunity attached
“solely because it is a branch of the Central Valley Project.”
177 F. 3d 834, 839 (1999). As the Ninth Circuit put it, “[a]l-
though the water in the Madera Canal was not held for the
purpose of flood control, because it was part of the Central
Valley Project, it was ‘not wholly unrelated’ to flood con-
trol.” Ibid. (emphasis added). In so holding, however, the
court recognized that the Government would probably not
have enjoyed immunity in at least three other Circuits where
the courts require a nexus between flood control activities
and the harm done to the plaintiff.2 Noting the “harsh re-
sult of [the] decision,” the Ninth Circuit frankly acknowl-
edged that “[t]he ‘not wholly unrelated’ test applied by this
and other circuits reads broadly an already broadly written
grant of immunity.” Ibid. As the Ninth Circuit recog-
nized, under such a test, there would seem to be no “set of
facts where the government is not immune from damage
arising from water that at one time passed through part of
the Central Valley or other flood control project.” Ibid.
II
Not until more than a half century after its enactment did
this Court have occasion to interpret § 702c. In a consoli-
dated case arising out of two separate accidents, we held that
the section “bars recovery where the Federal Government
1 App. to Pet. for Cert. 15 (quoting Washington v. East Columbia Basin
Irrigation Dist., 105 F. 3d 517, 520 (1997)).
2 Citing Fryman v. United States, 901 F. 2d 79 (CA7 1990); Boyd v.
United States, 881 F. 2d 895 (CA10 1989); and Hayes v. United States, 585
F. 2d 701 (CA4 1978), the Ninth Circuit specifically identified the Fourth,
Seventh, and Tenth Circuits as ones which likely would have reached a
different result.

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would otherwise be liable under the Federal Tort Claims
Act, 28 U. S. C. § 2671 et seq., for personal injury caused by
the Federal Government’s negligent failure to warn of the
dangers from the release of floodwaters from federal flood
control projects.” United States v. James, 478 U. S. 597,
599 (1986).
The principal issue in the James case was whether the
statutory word “damage” encompassed not just property
damage, but also personal injuries and death. In light of
the legislative history, which it reviewed at some length, id.,
at 606–609, 610–612, the Court concluded that the best read-
ing of the statutory text was one which was both broader
and less literal, and which encompassed the claims at issue
in the two cases before the Court.
In both instances, the injuries were caused by the turbu-
lent current generated by unwarned releases of waters from
a reservoir after the Army Corps of Engineers had deter-
mined that the waters were at “flood stage.” The fact that
the injuries were caused by “flood waters” was undisputed.3
In its opinion, the Court held that the language of the statute
covered the two accidents because the “injuries occurred as
a result of the release of waters from reservoirs that had
reached flood stage.” Id., at 604.
Nevertheless, the Court’s opinion in James included a pas-
sage that lends support to the Ninth Circuit’s holding in this
case. In that passage, the Court wrote:
3 The first case arose out of an incident at the Millwood Dam in Arkan-
sas, when “the level of the Reservoir was such that the United States
Corps of Engineers designated it at ‘flood stage.’ As part of the flood
control function of the Millwood facility, the Corps of Engineers began to
release water through the tainter gates. This release created a swift,
strong current toward the underwater discharge.” 478 U. S., at 599.
The second case arose as a result of a decision by the Corps of Engineers
to release waters in the reservoir of Bayou Courtableau Basin which
“were at flood stage.” Id., at 601. The District Court found that § 702c
applied because the “ ‘gates were opened to prevent flooding and inunda-
tion landside of the drainage structure.’ ” Id., at 602 (emphasis added).

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“Nor do the terms ‘flood’ and ‘flood waters’ create any
uncertainty in the context of accidents such as the ones
at issue in these cases. The Act concerns flood control
projects designed to carry floodwaters. It is thus clear
from § 702c’s plain language that the terms ‘flood’ and
‘flood waters’ apply to all waters contained in or car-
ried through a federal flood control project for purposes
of or related to flood control, as well as to waters that
such projects cannot control.” Id., at 605 (emphasis
added).4
The sentence that we have italicized and, in particular, the
phrase “related to flood control” have generated conflicting
opinions among the Courts of Appeals. In an attempt to
make sense of what is admittedly confusing dicta, some
courts have focused on whether the damage relates in some,
often tenuous, way to a flood control project, rather than
whether it relates to “floods or flood waters.” 5 However,
4 The Court appended a footnote pointing out that the District Court in
each case had found that the waters at issue had been “released from
federal flood control facilities to prevent flooding” and that the Court of
Appeals had upheld those findings “and assumed that ‘the waters in this
[consolidated] case were floodwaters.’ ” See id., at 606, n. 7.
5 See, e. g., Washington v. East Columbia Basin Irrigation Dist., 105
F. 3d 517 (CA9 1997); Williams v. United States, 957 F. 2d 742 (CA10
1992); Dawson v. United States, 894 F. 2d 70 (CA3 1990); DeWitt Bank &
Trust Co. v. United States, 878 F. 2d 246 (CA8 1989). This approach, how-
ever, can be overinclusive. As Judge Easterbrook has pointed out: “The
‘management of a flood control project’ includes building roads to reach
the beaches and hiring staff to run the project. If the Corps of Engineers
should allow a walrus-sized pothole to swallow tourists’ cars on the way
to the beach, or if a tree-trimmer’s car should careen through some pic-
nickers, these injuries would be ‘associated with’ flood control. They
would occur within the boundaries of the project, and but for the effort to
curtail flooding the injuries would not have happened. Yet they would
have nothing to do with management of flood waters, and it is hard to
conceive that they are ‘damage from or by floods or flood waters’ within
the scope of § 702c.’ ” Fryman v. United States, 901 F. 2d, at 81. More

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more than one court has pointed out that, if read literally,
the sentence sweeps so broadly as to make little sense.6
Moreover, the sentence was unquestionably dictum because
it was not essential to our disposition of any of the issues
contested in James.7 It is therefore appropriate to resort to
the text of the statute, as illuminated by our holding in
James, rather than to that isolated comment, to determine
whether the water flowing through the Madera Canal that
allegedly caused the damage to petitioner’s pistachio or-
chards is covered by § 702c. See Humphrey’s Executor v.
United States, 295 U. S. 602, 627 (1935) (dicta “may be fol-
lowed if sufficiently persuasive” but are not binding). See
also U. S. Bancorp Mortgage Co. v. Bonner Mall Partner-
ship, 513 U. S. 18, 24 (1994).
In James, we held that the phrase “floods or flood waters”
is not narrowly confined to those waters that a federal proj-
ect is unable to control, and that it encompasses waters that
are released for flood control purposes when reservoired wa-
ters are at flood stage. That holding, however, is vastly dif-
ferent from the Ninth Circuit’s reading of § 702c, under which
immunity attaches simply because the Madera Canal is part
of the Friant Division of the Central Valley Project, and flood
control is one of the purposes served by that project. The
to the point, such an approach is also inconsistent with the statutory lan-
guage. See infra, at 434.
6 “Other circuits recognize that such a sweeping grant of immunity
makes little sense in light of the text and purpose of the Act.” Cantrell
v. United States Dept. of Army Corps of Engineers, 89 F. 3d 268, 271 (CA6
1996). See also Fryman, 901 F. 2d, at 81 (“James was so broadly written
that it cannot be applied literally”).
7 In addition to concluding that the word “damage” includes personal
injury and death, the Court also rejected the previously arguable proposi-
tions that the Federal Government’s subsequent waiver of sovereign im-
munity in the Federal Tort Claims Act had impliedly repealed § 702c; and
that the immunity applied only to the flood control on the Mississippi River
authorized by the 1928 Act.

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holding in James also differs from the less attenuated and
more fact-specific position advanced by the Government,
which would require us to take judicial notice of evidence
that the Friant Division of the Central Valley Project and,
indeed, the Madera Canal itself can and do serve flood control
purposes. We ultimately conclude that the judgment cannot
be upheld under either rationale, but begin with a descrip-
tion of the Central Valley Project and an explanation of the
factual basis for the Government’s submission.
III
We begin by observing that water can be either a liability
or an asset. The Mississippi River flood of 1927 was unques-
tionably an example of the former. That flood in turn led
to the enactment of the 1928 Flood Control Act. Similar,
though less extreme, floods of the Sacramento and San Joa-
quin Rivers in California provided an important motivation
for the authorization of the Central Valley Project. Al-
though that project has not completely eliminated flooding
on either river, it has succeeded in converting a huge liabil-
ity into an immensely valuable asset. Justice Jackson de-
scribed the magnitude of that transformation in his opinion
for the Court in United States v. Gerlach Live Stock Co., 339
U. S. 725 (1950):
“This is a gigantic undertaking to redistribute the
principal fresh-water resources of California. Central
Valley is a vast basin, stretching over 400 miles on its
polar axis and a hundred in width, in the heart of Cali-
fornia. Bounded by the Sierra Nevada on the east and
by coastal ranges on the west, it consists actually of two
separate river valleys which merge in a single pass to
the sea at the Golden Gate. Its rich acres, counted in
the millions, are deficient in rainfall and must remain
generally arid and unfruitful unless artificially watered.
. . . . .

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“To . . . make water available where it would be of
greatest service, the State of California proposed to re-
engineer its natural water distribution. This project
was taken over by the United States in 1935 and has
since been a federal enterprise. The plan, in broad out-
line, is to capture and store waters of both rivers and
many of their tributaries in their highland basins, in
some cases taking advantage of the resulting head for
generation of electric energy. . . . [T]he waters of the
San Joaquin will be arrested at Friant, where they
would take leave of the mountains, and will be diverted
north and south through a system of canals and sold to
irrigate more than a million acres of land, some as far as
160 miles away. A cost of refreshing this great expanse
of semiarid land is that, except for occasional spills, only
a dry river bed will cross the plain below the dam.
Here, however, surplus waters from the north are uti-
lized, for through a 150-mile canal Sacramento water is
to be pumped to the cultivated lands formerly depend-
ent on the San Joaquin.” Id., at 728–729.
“The Central Valley basin development envisions, in
one sense, an integrated undertaking, but also an aggre-
gate of many subsidiary projects, each of which is of
first magnitude. It consists of thirty-eight major dams
and reservoirs bordering the valley floor and scores of
smaller ones in headwaters. It contemplates twenty-
eight hydropower generating stations. It includes hun-
dreds of miles of main canals, thousands of miles of later-
als and drains, electric transmission and feeder lines and
substations, and a vast network of structures for the
control and use of water on two million acres of land
already irrigated, three million acres of land to be newly
irrigated, 360,000 acres in the delta needing protection
from intrusions of salt water, and for municipal and mis-
cellaneous purposes including cities, towns, duck clubs
and game refuges. These projects are not only widely

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separated geographically, many of them physically inde-
pendent in operation, but they are authorized in sepa-
rate acts from year to year and are to be constructed at
different times over a considerable span of years.” Id.,
at 733.
Justice Jackson’s description of the magnitude of the Central
Valley Project makes one proposition perfectly clear: to char-
acterize every drop of water that flows through that im-
mense project as “flood water” simply because flood control
is among the purposes served by the project unnecessarily
dilutes the language of the statute. The text of the statute
does not include the words “flood control project.” Rather,
it states that immunity attaches to “any damage from or by
floods or flood waters . . . .” Accordingly, the text of the
statute directs us to determine the scope of the immunity
conferred, not by the character of the federal project or the
purposes it serves, but by the character of the waters that
cause the relevant damage and the purposes behind their
release.
IV
The Government has asked us to take judicial notice of
certain basic facts about the Friant Division of the Central
Valley Project and about the waters flowing through that
division and, more particularly, through the Madera Canal.
Although petitioner will have an opportunity to challenge
those details on remand, we accept them for purposes of
this opinion.
The two major rivers supplying water to the Central Val-
ley Project are the Sacramento in the north, and the San
Joaquin in the south. From its headwaters in the Sierra Ne-
vada Mountains, the San Joaquin flows in a southwesterly
direction into a reservoir, known as Millerton Lake, just
above the Friant Dam. The reservoir has a storage capacity
of 520,500 acre-feet of water. In dry years, the total flow in
the river does not produce that amount, but on average, the

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annual flow apparently approximates 31 ⁄ 2 times the reser-
voir’s capacity. Water is released through outlets in the
dam that send it down the San Joaquin River, and also
through outlets that direct it into either the Madera Canal
to the northwest, or the Friant-Kern Canal to the southeast.
When the water level exceeds 578 feet, it flows over the
dam’s spillway into the San Joaquin. At that point, the river
can accommodate a flow of 8,000 cubic feet per second with-
out flooding. The Madera Canal can accommodate 1,200
cubic feet per second, and the Friant-Kern another 4,500
cubic feet per second. Thus, a total release of 13,700 cubic
feet per second in three directions would not appear to in-
clude any “flood water.”
The Madera Canal, which is about 40 miles in length, is
used primarily for irrigation purposes. Water that enters
the canal at the Friant Dam is purchased by farmers who
either use it immediately or store it for future use. As a
result, the amount of water that enters the canal is larger
than the quantity that may flow into the Chowchilla River
at its terminus.8 Except in years of extreme drought, the
Madera Irrigation District provides contracting farmers
with “a dependable water supply” of approximately 138,000
acre-feet of “Class 1 water.” In addition, “if, as, and when
it can be made available,” the District sells “Class 2 water”
to the farmers at a price that is lower than the Class 1 price
because of the “uncertainty as to availability and time of oc-
currence.” 9 Thus, again in a literal sense, it seems clear
that none of the Class 1 or Class 2 water sold by the District
and purchased by the farmers to store or irrigate their lands
includes any “flood water.”
8 The Chowchilla flows in a westerly direction into the San Joaquin,
which in turn flows in a northwesterly direction at that point.
9 In some exceptional circumstances, irrigation contractors may be obli-
gated to buy Class 2 water at a particular time. However, contractors
still pay for the water, regardless of the potential inconvenience with re-
spect to the timing or date of delivery.

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Water that is not purchased under either class simply flows
through the canal into the Chowchilla River. As the Gov-
ernment points out, that excess may include flood water.
However, given the fact that the canal can accommodate a
flow of 1,200 cubic feet per second, which amounts to about
2,380 acre-feet per day, it is entirely possible that over the
span of a year, several times the amount of Class 1 and Class
2 waters described in the papers submitted by the Govern-
ment could flow through the canal without causing anything
approaching a flood. Nevertheless, according to the Gov-
ernment, because the Madera Canal is available to divert
water that might otherwise produce a flood on the San Joa-
quin and flood control is among the purposes served by the
canal, § 702c immunity must attach to all the water that flows
through the canal. Under the Government’s approach, this
would be true even if the water never approached flood stage
and the terminus of the canal was parched at the end of the
summer. Admittedly, it is possible to read the “related to”
portion of the dictum from James to support that result, but
neither the language of the statute itself, nor the holding in
James, even arguably supports such a strange conclusion.
Accordingly, we disavow that portion of James’ dicta.
V
This case does raise a difficult issue because the property
damage at issue was allegedly caused by continuous or re-
peated flows occurring over a period of years, rather than by
a single, discrete incident. It is relatively easy to determine
that a particular release of water that has reached flood
stage is “flood water,” as in James, or that a release directed
by a power company for the commercial purpose of generat-
ing electricity is not, as in Henderson v. United States, 965
F. 2d 1488 (CA8 1992). It is, however, not such a simple
matter when damage may have been caused over a period of
time in part by flood waters and in part by the routine use
of the canal when it contained little more than a trickle. The

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fact that a serious flood did occur in the San Joaquin in 1997
creates the distinct possibility that flood waters may have
surged down the Madera Canal and harmed petitioner’s
property.
For present purposes, we merely hold that it was error to
grant the Government’s motion for judgment on the plead-
ings and that it is the text of § 702c, as informed by our hold-
ing in James, rather than the broad dictum in that opinion,
that governs the scope of the United States’ immunity from
liability for damage caused “by floods or flood waters.” Ac-
cordingly, in determining whether § 702c immunity attaches,
courts should consider the character of the waters that cause
the relevant damage rather than the relation between that
damage and a flood control project.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.