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Judge Allows Katrina Suit to Proceed to Trial

NEW ORLEANS (CN) - A federal judge allowed a lawsuit blaming the Army Corps of Engineers for flooding from Hurricane Katrina to proceed. In a trial scheduled for April 20, homeowners will be able to argue that the Corps' negligent construction and maintenance of the Mississippi River-Gulf Outlet (MRGO) caused the flooding of their houses during the storm.

The MRGO is a 76-mile channel that provides a shortened route between the Gulf of Mexico and New Orleans and serves as an outlet to Lake Borgne, approximately 15 miles east of New Orleans. During Katrina, levee systems catastrophically failed, including those along the MRGO and resulting in massive flooding.

At issue is whether the actions or inactions taken by the Corps with respect to the design, construction, maintenance, operation and repair of the MRGO constitute policy decisions that are protected by "the discretionary function exception" to state immunity.

The district court previously dismissed the case, finding that the acts of design and construction were discretionary functions exempted from liability. However, the 11th Circuit reversed, saying the discretionary function exemption did not shield the Corps from liability for cause by engineering errors.

The plaintiffs based their motion for partial summary judgment on the argument that the Corps violated a number of mandates, including failing to consult with federal and state environmental agencies in building the MRGO, dredging for decades without an adequate environmental impact statement and violating policies mandating wetlands protection.

In a 1988 report, the Corps noted: "Most of the Mississippi River-Gulf Outlet is experiencing severe erosion along its unleveed banks. The erosion is a result of both man-induced and natural forces, including combinations of channelization, ship and wind generated waves, storm activity and subsidence."

The report goes on to say that the marshes along the north bank are disappearing at "an alarming rate" and continues:

"Because erosion is steadily widening the MRGO, the east bank along Lake Borgne is dangerously close to being breached. Once the bank is breached, the following will happen: sediment from Lake Borgne will flow into the channel resulting in large increases in dredging costs to maintain the channel; development to the southwest would be exposed to direct hurricane attacks from Lake Borgne; the rich habitat around the area would be converted to open water; and more marsh would be exposed to higher salinity water."

The government said the Corps did what it was supposed to do, and argued that "changing the project to add surge barriers and bank protection would not have promoted the purpose of the MRGO, which was to provide an aid to navigation."

U.S. District Judge Stanwood Duval rejected the government's claims.

The trial will be heard by Duval, without a jury, and is expected to last four weeks.

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