SUPREME COURT OF THE UNITED STATES
KURT HIERSCHE, personal representative of the
estate of JEROME L. HIERSCHE, deceased v.
UNITED STATES
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 91-774.   Decided March 9, 1992


  The petition for a writ of certiorari is denied.

  Memorandum of Justice Stevens respecting the denial
of certiorari.
  Petitioner asks us to resolve a recurring conflict among
the courts of appeals concerning the meaning of a once
obscure sentence in 3 of the Mississippi Flood Control Act
of 1928. During the past decade that sentence has as-
sumed greater and greater importance because it has
provided the Government with a defense to claims for
personal injury and death caused by federal negligence,
gross negligence, and even ``conscious governmental
indifference to the safety of the public.''  United States v.
James, 478 U.S. 597, 600 (1986) (citation and internal
quotation marks omitted).
  This is the latest in an expanding series of tragic cases.
Jerome Hiersche, a professional diver, contracted with the
Government to inspect submerged fish screens at the
hydroelectric intake on the John Day Dam on the Columbia
River between Oregon and Washington.  Although Govern-
ment employees assured him that the water flow to the fish
bypass system would be shut off, they negligently failed to
do so.  Petitioner's head was drawn into an orifice in the
fish bypass system, and he suffered fatal injuries.  The
Government defended this wrongful death action on the
ground that the 1928 Act immunizes it from liability for all
personal injuries caused by its employees in federal flood-
control projects.  Following this Court's unfortunate
decision in James, as well as settled precedent in the Ninth
Circuit, the District Court and the Court of Appeals
sustained that defense.
  Since 1928 when Congress authorized the construction of
the levees on the banks of the Mississippi River, the
number and importance of federal flood-control projects has
grown dramatically.  In addition to controlling floods, these
projects generate hydroelectric power and create artificial
lakes that serve important recreational and conservation
purposes.  In some Circuits the Government's flood-control
immunity would not constitute a defense in the case of
injuries resulting from Government conduct that was
unrelated to any flood-control purpose, see, e.g., Boyd v.
United States ex rel. United States Army, Corps of Engi-
neers, 881 F.2d 895 (CA10 1989); Hayes v. United States,
585 F.2d 701 (CA4 1978).  If this case had arisen in one of
those Circuits, the claim would likely succeed because
Hiersche's assignment related to fish conservation and
power generation, rather than flood control.  But in the
Ninth Circuit, if flood control was one of the purposes of the
act of Congress authorizing the project itself, the immunity
applies.  The Seventh Circuit has suggested that immuni-
ty might depend on whether the flood-control activities at
the project increased the probability of injury.  See Fryman
v. United States, 901 F.2d 79 (CA7), cert. denied, 498 U. S.
___ (1990).
  This Court has a duty to resolve conflicts among the
courts of appeals.  As several scholars have recognized,
however, that duty is not absolute.  Some conflicts are
tolerable.  Others can be resolved more effectively by
Congress.  This is such a case.
  The statute at issue here is an anachronism.  It was
enacted 18 years before the Federal Tort Claims Act, 28
U. S. C. 2671 et seq., waived the Federal Government's
sovereign immunity from liability for personal injuries.  At
the time of its enactment, no consideration was given to the
power generation, recreational, and conservation purposes
of flood-control projects, or to their possible impact on the
then nonexistent federal liability for personal injury and
death caused by the negligent operation of such projects.
Today this obsolete legislative remnant is nothing more
than an engine of injustice.  Congress, not this Court, has
the primary duty to confront the question whether any part
of this harsh immunity doctrine should be retained.
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