Judge Certifies Hurricane Katrina Class

(CN) — A federal judge granted class certification to property owners in a case over Hurricane Katrina damage, a year after ruling that the government is responsible for some flooding.

Last May, U.S. Court of Federal Claims Judge Susan Braden found that the Army Corps of Engineers' management of a navigational canal near New Orleans created a "ticking time bomb" that increased the flood damage caused by Hurricane Katrina.

She ruled that the storm damage qualifies as a temporary taking under the Fifth Amendment, and ordered the federal government to pay for some of the hurricane-related damage.

Braden held that St. Bernard Parish, the lead plaintiff in the case, established that the Army Corps' construction, expansion, operation and failure to maintain the 70-mile long Mississippi River-Gulf Outlet navigation channel created a "funnel effect" that increased the storm surge and subsequent flooding caused by Hurricane Katrina in 2005 and three hurricanes that followed it.

St. Bernard Parish is part of the New Orleans metropolitan area and is located just southeast of the city. It is bordered by three bodies of water: the Mississippi River to the south, Lake Borgne and the Gulf of Mexico to the east. Much of the land consists of wetlands and marsh, 42-square miles of which is developed.

Congress authorized the construction of the Mississippi River-Gulf Outlet navigation channel — also known as MR-GO or "Mr. Go" — in 1956. The channel runs along the northeastern border of St. Bernard's Parish and connects other existing waterways to the Mississippi River and Lake Pontchartrain.

Aside from the parish, other plaintiffs in the original 2005 lawsuit included property owners in St. Bernard Parish or New Orleans' Lower Ninth Ward.

On Wednesday, Braden granted class certification in the case, allowing more property owners to join.

The certified class includes those who owned property in St. Bernard Parish or the Lower Ninth Ward as of Aug. 28, 2005, when Hurricane Katrina hit New Orleans, whose property was damaged as a result of the Army Corps' failure to property maintain MR-GO. Excluded from the class are federal government agencies or instrumentalities.

Two subclasses divide potential claimants into commercial and residential property owners.

Braden also ruled Wednesday that owners of 11 properties identified early on in the case are entitled to the cost of replacement improvements and the loss of fair market rent from Sept. 1, 2005, to July 1, 2009, when MR-GO was closed.

Last October, the federal government declined to pursue mediation in the case and instead filed an appeal with the Federal Circuit.

Wednesday's partial final judgment on just compensation for the 11 property owners is subject to appellate review by the Federal Circuit, which Braden said will likely take another year.

"While the appellate process is underway, the court will be issuing a series of orders to the St. Bernard Parish Government and the City of New Orleans (Lower Ninth Ward) in the near future to obtain public information necessary to finalize the amount of just compensation due, so that the court will be in a position to proceed promptly to issue a final money judgment as to all class members, if the appellate court affirms this court's decisions," Braden wrote in Wednesday's 44-page ruling.

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