ELR Citation: ELR 20104
No(s). 88-5385 (8th Cir. Aug 9, 1989)

The court holds that a suit alleging that the Corps of Engineers negligently supervised the construction of two jetties in a river channel causing severe flooding of plaintiffs' property is not barred by the Federal Tort Claims Act's (FTCA's) discretionary function exception. The Corps issued a permit under §404 of the Federal Water Pollution Control Act authorizing the private defendant to build the jetties to prevent erosion on his ranch. After discovering that the private defendant had taken actions not authorized by the permit, the Corps told the defendant to remove an unauthorized access road, but that he could apply for an after-the-fact permit for other unauthorized work. The Corps later issued an amended permit. The court holds that plaintiffs' action is not barred by the FTCA's discretionary function exception. The Corps' §404 regulations in effect at the time created a non-discretionary duty for the Corps to enforce the permit more stringently than it did. The regulations required the Corps to prohibit the private defendant from performing further work if the Corps discovered a permit violation while the project was still in progress. The evidence indicates that the Corps knew of the permit violations but failed to order the private defendant to cease work. However, the court holds that the Corps' regulations did not create a non-discretionary duty to deny defendant's application for an after-the-fact permit. The court holds that the district court did not abuse its discretion by admitting the opinion testimony of two government witnesses who stated that the jetties did not cause the flooding.

Counsel for Appellants
Mike Abourezk
Johnson Bldg., P.O. Box 149, Gregory SD 57533
(605) 835-8391

Counsel for Appellees
Charles M. Thompson
503 S. Pierre St., P.O. Box 160, Pierre SD 57501-0160
(605) 224-8803

Before ARNOLD and FAGG, Circuit Judges, and BRIGHT, Senior Circuit Judge.