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SPILLWAY MARINA, INC. v. UNITED STATES

No. 439-70.

445 F.2d 876 (1971)

SPILLWAY MARINA, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

July 6, 1971.

Attorney(s) appearing for the Case

Paul L. Aylward, Ellsworth, Kan. (Ron Svaty and Miner & Aylward, Ellsworth, Kan., on the brief), for plaintiff-appellant.

Raymond D. Battocchi, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Robert J. Roth, U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, BREITENSTEIN and BARRETT, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The marina of plaintiff-appellant Spillway Marina, Inc., was damaged by the drawdown of the water level of Tuttle Creek Reservoir in Kansas. Spillway sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680. The district court held that it was without jurisdiction because the drawdown was within the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), and, on the

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