The release of a 584-page report by the Independent Forensic Team (IFT) ordered by the Federal Energy Regulatory Commission foreshadows potentially significant liability for the State of California. One can only hope that Governor Brown and liberal Democrats in the Capitol, who seem more interested in California becoming the home of the “Resistance” to the Trump Administration, will make a priority of restoring those damaged by the State’s failures.
While this may seem a gratuitous partisan “shot” at the party controlling the levers of the state’s bureaucracies, it is based on some historical precedent set in the state’s treatment of victims of the past failures of California’s flood control systems.
Most remember the crisis last February involving the collapse of the Oroville Dam spillways and the emergency exodus of nearly 200,000 Californians fleeing a potential disaster. We heard last month nearly 500 cities, farmers, and residents have filed damage claims totaling more than $1.2 billion against the State. Naturally, according to recent reports, not one claim has been settled nor has there been any payment of damages.
What may not be remembered, especially by mavens prowling the halls of California’s Capitol is that this isn’t the first time public officials ignoring multiple warnings, failed to protect people living in the shadow of their facilities.
Slightly more than 30 years ago, February 1986 to be exact, a time when most current legislators and their staffs weren’t thinking about elections or public service, residents of the farming communities of Linda and Olivehurst (just over 19,000 people) were forced to flee for their lives following the collapse of a 150-foot of a levee in Linda. In the end, three people perished and nearly 3,000 homes were damaged or destroyed.
Those damaged by the collapse sued the State of California and the responsible Reclamation District for $100 million in damages. After almost two and a half decades of legal wrangling in the courts, the Legislature finally authorized the settlement of claims stemming from the lawsuit. The final tab was nearly half-a-billion dollars ($484 million to be precise).
The case precipitating the settlement, known as Paterno, et al v. State of California, et al (Paterno) became a landmark decision on several levels, not the least of which was the issue of state government liability for failure to cure defects it knows exist in a flood control system it operates. This decision, as well as another case decided a year earlier known as Arreola, et al v. County of Monterey, et al (Arreola) establish that public entities and the State have a clear responsibility to act on knowledge of deficiencies of their system or associated plans.
In the Paterno case, the record showed that the State knew for 15 years that an unsafe condition existed in the levee, based on a letter sent by a Reclamation District engineer detailing the problems identified facing the levees stability and safety. (Emphasis added.)
Likewise, the Court of Appeals stated in Arreola, “… Counties’ nevertheless permitted the channel to deteriorate over a long period of years by failing to take effective action to overcome the fiscal, regulatory, and environmental impediments to keeping the Project channel clear.” (Emphasis added.) The “long period of years” it referred to in its decision was a failure that “…persisted for 20 years.” (Emphasis added.)
The language used by the IFT has a familiar ring in detailing the spillway failure. Specifically, investigators found that the spillway failure “…was caused by a long-term systemic failure of the California Department of Water Resources (DWR), regulatory, and general industry practices to recognize and address inherent spillway design and construction weaknesses, poor bedrock quality, and deteriorated service spillway chute conditions.” (Emphasis added.)
The report seems to follow the adage that “…if more than one person is responsible then no one can be at fault.”
Despite the tens (and potentially hundreds) of millions of dollars spent to maintain Oroville Dam since its construction, the IFT reported, “The seriousness of the weak as-constructed conditions and lack of repair durability was not recognized during numerous inspections and review processes over the almost 50-year history of the project.” (Emphasis added.)
While California’s bureaucracy pours over the IFT report in hope of finding a legal mechanism to defend against thousands of litigants and billions of dollars in claims, making whole the people of California who suffered from this failure should come first. Additionally, legislators should demand to be continually updated on the progress and cost (legal and otherwise) of either paying or denying claims made in this disaster.
The hard-working families, businesses, and local governments that bore the financial brunt of this failure shouldn’t be forced to wait decades and endure being pushed into the endless legal system when our Courts have already placed the ultimate responsibility for such failures where it so clearly belongs.