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Paterno v. State

CVFPB Meeting January 10, 2013. Paterno v. State. Nicole Rinke, Deputy Attorney General. Nicole Rinke, Deputy Attorney General. Factual History. 2003 decision - Court of Appeal , Third District 1986 flood F ailure of a state owned levee in Yuba County

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Paterno v. State

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  1. CVFPB Meeting January 10, 2013 Paterno v. State Nicole Rinke, Deputy Attorney General Nicole Rinke, Deputy Attorney General

  2. Factual History • 2003 decision - Court of Appeal, Third District • 1986 flood • Failure of a state owned levee in Yuba County • Resulted in approximately $100 million in claimed damages • Levee originally built in early 1900’s - had survived three earlier storms • Evidence indicated that it failed not due to inadequate capacity, but seepage

  3. Court’s Holding • Court found the state liable for property damages as a matter of inverse condemnation using a reasonableness standard. • Inverse liability, under the California Constitution, “dictates that a landowner should not bear a disproportionate share of the harm directly caused by failure of a flood control project due to an unreasonable plan.”

  4. The Reasonableness Standard • Balancing Factors • Was the levee failure foreseeable? • Did the individual receive some unique offsetting reciprocal benefit? • Were there feasible alternatives that would have avoided the harm? • Are the taxpayers as a whole in a better position to absorb the risk? • Is the damage a normal risk of ownership? • Were the damages distributed across the project? • Would the allocation of damages deter future projects? • Is the damage a normal risk of property ownership?

  5. Application of the Factors • Was the failure foreseeable? • Levee initially constructed in 1904. • Corps levee design standards adopted 1978. • Reclamation District 1970 letter. • Offsetting reciprocal benefit? • Property had been protected in prior floods. • But benefit was shared with all.

  6. Application of the Factors • Feasible Alternatives? • Meeting design standards ≠ upgrade. • Cost effective means existed to address seepage control. • Taxpayers better positioned to absorb risk? • Nothing more individuals could have reasonably done. • Personal insurance does not eliminate loss. • Damage = normal risk?

  7. Application of the Factors • Distribution of damages? • System wide view. • Deterrent effect of damages? • No deterrent. • Liability will only: “discourage the state from failing to determine if the project physically meet the design standards and discourage them from failing to heed warnings.”

  8. A few other important tidbits • State is responsible for the Sacramento River Flood Control Project as if it built it initially. • State will not be liable for failing to upgrade, but will be liable for failing to maintain function at designed capacity. • Takings = discretionary, policy-level decisions. • Takings ≠ ministerial acts or negligent O&M. • Local Reclamation District Liable? • No. Only liable to extent of its authority. • But JPAor locally led flood control projects may be liable.

  9. Conclusion • Paternoreasonableness standard will likely apply to any future levee failures. • Case-by-case analysis. • Tough standard, but the Board has taken important steps: • Adopted CVFPP; • Taking steps to implement and increase enforcement.

  10. Paterno Questions?

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