ELR Citation: ELR 21437
No(s). 87-3018 (D.S.D. Jun 22, 1990)

On remand from the Eighth Circuit, the court holds that the Army Corps of Engineers is liable for damages to private landowners' property caused by the Corps' negligent failure to supervise the construction of two jetties in a river channel. In 1983, plaintiffs' neighbor applied for a Federal Water Pollution Control Act §404 permit to perform erosion control work downstream from their property. Plaintiffs sent written objection to the permit, but the Corps subsequently granted the neighbor a permit to construct two jetties of specified dimensions and at specified locations. Between 1984 and 1986, plaintiffs' neighbor constructed jetties that did not correspond with permit specifications, and plaintiffs' numerous notifications to the Corps were answered with promises to supervise the construction and require compliance by plaintiffs' neighbor. Ultimately, serious flooding of their property in 1986, occasioned by ice jams on the river, prompted plaintiffs to bring this suit. Applying South Dakota law, the court holds that plaintiffs were included in the class of persons the Corps' regulations were intended to protect from flooding, and thus, the Corps' failure to enforce its own regulations is negligence per se. South Dakota has followed a negligence per se theory when faced with an unexcused violation of safety statutes, and the applicable regulations direct the Corps, while executing its duty to enforce permits, to be concerned with the lives and property of those who live near the site of unauthorized activity. Alternatively, the court holds that the Corps breached its common-law duty of care by failing to use reasonable care in regulating the construction of obstructions in navigable waters. While the general common-law rule is that there is no duty to control the conduct of a third person to protect another person from harm, the special relationship between the Corps and its permittees provides an exception to the rule. Here, the Corps had the authority to issue orders to plaintiffs' neighbor requiring adherence to the permit specifications, as well as the non-discretionary duty to do so under its own regulations. Moreover, the court finds that the evidence establishes that the Corps' negligent supervision of the jetty construction, and its failure to issue a prohibitory order, was a proximate cause of the plaintiffs' property damage. Thus, the court concludes that the Corps' conduct constitutes actionable negligence.

[The Eighth Circuit opinion is published at 20 ELR 20104.]

Counsel for Plaintiffs
Michael Abourezk, Walford E. Eklund
Johnson, Eklund & Davis
Johnson Bldg., P.O. Box 149, Gregory SD 57533
(605) 835-8391

Counsel for Defendant
Philip N. Hogen, U.S. Attorney
400 S. Phillips Ave., Sioux Falls SD 57102
(605) 330-4400