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At the edge of a picturesque orchard in the San Joaquin Valley in California, a stretch of pistachio trees is withering away. Some have even died. The owner of the trees blames the nearby Madera Canal, operated by the federal government, for the damage. The canal leaks at that point, raising the water table and rotting the tree roots. The kind of dispute, in short, that should take just a few minutes to resolve down at the local courthouse. But on October 30, the case of the waterlogged pistachio trees, Central Green Co. v. United States, went before the U.S. Supreme Court, and the justices seemed engrossed by it. It was easy to see why the justices would attack the Central Green case with gusto — as though it were a bowl of pistachios. In a term heavy with cases on particulate air quality standards and state sovereign immunity, an old-fashioned water dispute was a needed change of pace — especially for the four justices who grew up in the West. The case tests the Flood Control Act of 1928, which protects the federal government’s massive new flood control programs with full immunity from liability for any damage caused by floods or “floodwaters.” The pistachio-ruining Madera Canal is an irrigation canal, but the government claims that since it is nominally part of the vast Central Valley Project, which also has flood control as its purpose, immunity should apply. The 9th U.S. Circuit Court of Appeals ruled for the government but reluctantly so, noting that it was bound by a precedent that runs contrary to other circuits. “Had this case been initiated in the 4th, 7th, or 10th Circuit, the government would probably not enjoy flood control immunity,” wrote Judge Stephen Trott. Recognizing “the harsh result of this decision,” Trott suggested the issue was ripe for Supreme Court review. With the 9th Circuit practically begging to be reversed, the Supreme Court — which loves to reverse the 9th Circuit even uninvited — could not resist taking it up. The case also gives the conservative majority the chance to do its thing: rein in Congress by interpreting a federal law narrowly. “If the only facility we examine is the Madera Canal,” Chief Justice William Rehnquist said at one point, “you certainly do not get anything close to a substantial use for flood control.” The case had the most appeal for the westerners on the Court. For them, water disputes speak a private language; if you’re not from the West, you just don’t understand. Justice Sandra Day O’Connor has spoken of the need to hire law clerks from the West, partly because Easterners have no earthly idea why water cases are important. So O’Connor, daughter of an Arizona rancher, was an active questioner during the arguments in Central Green, sympathizing with farmers who are “dying for water.” Rehnquist, a fellow Arizonan, was also unusually inquisitive, demonstrating his knowledge of western water policy. Justice Stephen Breyer, who now divides his time between Cambridge, Mass., and Georgetown, grew up in San Francisco. During arguments, he remembered his West Coast youth well enough to knock down the government’s contention that flood control was involved in the Madera Canal. “I used to live in California,” Breyer said at one point. “I mean, it’s dry most of the time, so it would be amazing if there’s going to be a flood in summer there.” But the justice whom Timothy Jones, lawyer for the pistachio grower Central Green, came most prepared to deal with was Anthony Kennedy, who grew up in Sacramento near the northern end of the Central Valley Project. Folks who view it from there, Jones says, tend to look on the Central Valley Project as a flood control project; from the drought-prone southern end, where Madera Canal draws water from Millerton Lake, created by the Friant Dam, irrigation is the name of the game. Sure enough, when Jones described the water in the Madera Canal as “liquid gold” due to its value to farmers, Kennedy responded: “It’s liquid gold until December,” when flooding might occur. “I am troubled by the assumption of the 9th Circuit that the canal is not related to flood control in any aspect.” Jones, a partner in the Fresno, Calif., firm of Sagaser, Franson & Jones, ably countered Kennedy’s concern. Good advocates acknowledge weaknesses candidly, and Jones conceded that it is theoretically possible that the canal could have a flood control use. But that does not make the canal’s water floodwater, Jones said, especially because when “it’s 100 degrees out, the river is dry.” Another telling point: the canal and dam are operated for irrigation — capturing and holding water for as long as possible, until it’s needed, Jones said. Flood control facilities collect water at the last minute and get rid of it as soon as possible. “They’d never have built that dam” if flood control were the goal, Jones said. “They’d have built it much lower.” Eventually, even Kennedy seemed convinced. Jones, a novice before the Court, knows whereof he speaks. He and his family water-ski on Millerton Lake every summer. He also knows his client’s business, knows that it takes seven years for a pistachio tree to reach full production, and knows when an irrigation canal is just that and nothing more. That knowledge fueled Jones’s anger long before the arguments, when he read the Justice Department’s brief to the Supreme Court. The brief claimed that the water that ruined Central Green’s pistachio trees did indeed serve a flood control purpose, thereby immunizing the government from paying for the damage. The government’s claim, Jones and co-counsel Thomas Goldstein said in a reply brief, “falls between irrelevant and seriously disingenuous.” Their brief also characterized another government assertion as “false.” (Goldstein has a nonfinancial relationship with American Lawyer Media, helping forecast the Supreme Court docket.) Those were fighting words in the eyes of the solicitor general, and Solicitor General Seth Waxman promptly filed a “supplemental brief” rejecting the insults. The difference in opinion between the two sides, said Waxman’s brief, “should not be transformed into a charge of misrepresentation or disingenuousness.” By the time of the arguments, the animosities had died down. But that did not mean the government was backing off. Assistant to the solicitor general David Frederick argued early and often that the water served flood control purposes. O’Connor challenged him sharply: “The reality is the Madera Canal serves irrigation purposes. That’s the reality.” Frederick disagreed, but O’Connor persisted, asking what would happen if the plaintiffs could prove that the canal had never been used for flood control purposes. When Frederick argued that that would be irrelevant to the immunity question, Rehnquist interjected: “Justice O’Connor asked you a question, Mr. Frederick. I hope you’ll get to the answer quite soon.” Frederick did, but he still did not seem to convince many justices that because the overall project served flood purposes, each of its components did, too. Rehnquist, for one, noted that the design of the overall project was not as important as “whether the particular waters here were in fact floodwaters.” The argument began to sound metaphysical in its attempts to discern the nature of the water passing by the pistachio trees. But the issue of floodwater immunity actually arises fairly often — typically in those not uncommon instances when the negligent operation of a dam causes boaters to drown. Most of the justices seemed unhappy with a government definition of floodwaters that would immunize the government against liability in virtually all cases. In the case of Central Green, it appeared that the western justices, plus at least one other, will give the 9th Circuit its wish, reverse its ruling, and give the pistachio farmer some relief. Central Green v. United States could be a case that opens the floodgates figuratively, then closes them literally.

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