Part #3 Wade White <'TK><
4) Liability
According to the Corps, its decision to fully implement the existing ER 1130-2-520, Chapter 10 will reduce Corps liability and exposure to lawsuits. Note the wording from its website: it is deciding to “fully implement the existing…” regulation. This implies it has considered that the regulation called for permanent restrictions since 1996 and has purposely NOT implemented them until now. All of the deaths and near misses since 1996 occurred during times of sluicing or spilling. If the Corps says it should have restricted access and didn’t, how many lawsuits might be brought with this admission?
Furthermore, LTC DeLapp stated that, to prevent a barricade from breaking under stress of debris in high-water spillage, the Corps would use a quick-disconnect to swing the barricade open. This means when waters are calm, the barricade will be closed. When waters are turbulent, the barricade will be open. When a boater gets too close to the spillways and the Corps has clearly opened the barricades...what then? One could speculate lawsuits would ensue.
Our analysis of the drownings and near-misses reports showed that potentially 0 people might have drowned if the Corps had restricted waterborne access during spilling and PFDs had been worn properly. We also saw in the reports that 5 people drowned from bank fishing in these same areas. The question, “Can I still fish on the bank, or are these areas off limits as well?” is found on the Corps’ Nashville District Website, along with the answer, “Yes, bank fishing is still permitted and is encouraged in designated/permissible areas." Consider this logic–potentially 0 drownings in 42 years is leading to all boats being permanently RESTRICTED, while 5 drownings from the bank are leading to bank fishing being ENCOURAGED. How does this logic help protect the Corps from lawsuits?
Regarding past lawsuits, the drowning below Old Hickory Dam in 1981 occurred before any signs were installed requiring the use of life jackets, and it resulted in a $35,000 out-of-court settlement.
In the Safety section, I referenced litigation that followed the 1997 double-drowning at Old Hickory. This case was significant because, for the first time, courts considered whether an Engineering Regulation (ER) has the force and effect of law. The court held that ERs are not true regulations, but are part of the Corps’ internal operating manual. Again, ERs such as 1130-2-520 are not law. They are policy, and when the Corps was sued over possible breach of this policy, it was not held liable. In this double-drowning, it was ruled the Corps was not negligent, and the “proximate cause of the deaths was decedents’ failure to use reasonable care for their own safety by ignoring warning signs, failure to avoid open and obvious danger…and failure to wear life jackets…”
I want to make one last point regarding liability. I do not want our Corps of Engineers sued for drownings when it is not negligent. There is no negligence in allowing people to fish in the tailwaters of the dams when the water isn’t spilling; doing so hasn't produced a single drowning at any Corps dam in 42 years. Let me repeat myself: Not a single drowning has occurred from a boat in these areas during non-spill times.
In closing, let me say I realize this issue may not be important to some people who do not fish below these dams. I would ask them to keep in mind the manner in which the Corps is moving forward with the barricades, ignoring economic impacts and the detrimental effects to local communities. Do you think your beach or your bay is safe from such dogged determination?
The Corps’ numbers show 881 drownings have been reported since 1970 on its lakes and beaches. If the Corps will consider closing down a multi-million dollar industry and ending 44 years of a heritage of enjoyment over 14 (their number) drownings, why not close a beach or two with questionable safety records? Why not decrease the areas where you can boat on the lake? If the Corps is motivated by safety, then why not?
Take a look at how the Corps answers this question on its website:
“Q9. What other safety enhancements or requirements are you going to initiate on other parts of the lakes (i.e. swimming beaches)? Answer: The Nashville District considers water safety a top priority at all locations and promotes water safety and maintains its facilities for safe public recreation. We do not anticipate making any immediate changes in how we operate and maintain swimming beaches or other water areas of the lakes."
No IMMEDIATE changes—does your beach seem safe with that answer? If the Corps will permanently barricade 6 dams that have had zero drownings in 42 years, why would it not restrict a bay that has a higher than normal drowning record?
No drownings are tolerable; I agree with LTC DeLapp on that point. With a policy that allows fishing during non-spilling and restrictions during spilling, we might have prevented all of the boating deaths. Such a policy would allow our sportsmen the freedom to fish in the waters we own as a people. This common-sense approach would save millions of taxpayer dollars and the livelihood of hundreds. We ask the Corps to end the quest to barricade and seek a more sensible approach. I welcome the opportunity to discuss with the Corps the impacts of these permanent restrictions on our communities.
Wade White
Lyon County Judge/Executive
|
Quick disconnect barricades
