A.O. SMITH CORPORATION, GAYLORD ENTERTAINMENT COMPANY, OPRYLAND HOTEL NASHVILLE, LLC, GRAND OLE OPRY, LLC, GAYLORD PROGRAM SERVICES, INC., OPRYLAND ATTRACTIONS, LLC, WILDHORSE SALOON ENTERTAINMENT VENTURES, INC., OLH, G.P., GAYLORD HOTELS, INC. (13-5578); CONTINENTAL INSURANCE COMPANY, GIBSON GUITAR CORP., HARRIS CORPORATION, OSG SHIP MANAGEMENT, INC., CARTERS INC., L-3 COMMUNICATIONS HOLDINGS INC., QINETIQ NORTH AMERICA OPERATIONS LLC, ABC BUS COMPANIES INC., INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, TOKIO MARINE & NICHIDO FIRE INSURANCE CO., LTD. (U.S. BRANCH), NISSAN NORTH AMERICA, INC., METAL ONE HOLDINGS AMERICA, INC., FIREMAN'S FUND INSURANCE COMPANY (13-5599), Plaintiffs-Appellants,
UNITED STATES OF AMERICA, Defendant-Appellee
Argued March 20, 2014.
Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 3:12-cv-00429; 3:12-cv-00433--Todd J. Campbell, District Judge.
Patricia Head Moskal, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellants in 13-5578.
Anthony J. Pruzinsky, HILL RIVKINS LLP, New York, New York, for Appellants in 13-5599.
Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Patricia Head Moskal, Robert S. Patterson, Edmund S. Sauer, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellants in 13-5578.
Keith B. Dalen, Lauren E. Komsa, HILL RIVKINS LLP, New York, New York, for Appellants in 13-5599.
Alisa B. Klein, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Before: BATCHELDER and McKEAGUE, Circuit Judges; OLIVER, District Judge.[*]
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 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.
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 during 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" )
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 drawdown. . . . 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 ...