White Paper: Option for Land Protection Component

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Land Entity White Paper Noverzsber 30, 1999 One potential shield is govemment immunity. Traditionally, gnvernments could not be sued "in tort" for causing harm white gaing about govemment business. Now, each govemment has struck a balance beiween gavernmental immunit}r and the opportunity to redress injnry caused by the govemment in the federal Tort Ciaims Act and the torts claims acts adopted in each af the states. Generally speaking, in each jurisdiction, the govemment is imtnune from bcing sued in tort, except where the govemment's activities fit any of the exceptians to immuniry that are listed in a tvrts claims act. In each those statutes, the state or federal government accepts limited liability for harm caused by negligent management of huildings and water facilities, but reeovery for damages can only be up to a maximum amount. By participating in the Governance Committee, holding veto power, and averseeing the land entity, the four governments arguably will be participating in the management of Program lands, and thus could potentially be subject ta suit under the tort ciaims exceptions. But patential losses are capped. Introducing an additional legal entity, the Land Entity, adds another party that could be sued. If the Land Entity is a state or federat corporation, it will typically be covered by the tort ciaims act limitarions, by virtue af explicit staternents in the legislation that created it. The National Fish and Wildlife F'ederation's assets are, for example, protected by federal tort claim limetatians. If a nan-profit halds Program lands, a non-immune entity will hold Program assets that could potentiatly be lost in a lawsuit. FtErthermore, even if limited governmental liability applies, it is passible that the Program may (or may not) decide to go further in redressing harm it might have caused as part of a policy to avoid third party impacts. There is no land entity that will eiiminate potential Iiabitity. Mast if not atl of the land entity altematives wifl need liability insurance, and waivers will need to be developed for individuals to be authorized to enter an Program lands. Liability, waiver and insurance issues, while significant to consider in operating the land entity, are probably not significant in deciding which entity model to select. Attachnent: Memorandum of Larry Todd, Deputy Regional Director, Great Plains Region, Bureau af Reclamation, Department of the Interiar to Vemon Nelson and Rhodell Jameson, Land Committee Chairmen, Qctaber 4, 1999. A - 17.