WASHINGTON D.C. (CN) – 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, a federal judge ruled.
U.S. Court of Federal Claims Judge Susan Braden said in a 74-page ruling on May 1 that the storm damage qualifies as a temporary taking under the 5th Amendment.
In doing so Braden held that St Bernard Parish, the plaintiff in the case, established beyond a doubt 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.
The government knew about the risk, the opinion said, from repeated warnings and studies from the Army Corps itself.
“The funnel had been described as a ‘superhighway’ for storm surges or ‘The Crescent City’s Trojan Horse,'” Braden wrote, quoting from a 2006 U.S. Senate report on Hurricane Katrina, which also said the funnel had the potential to amplify storm surges by 20 to 40 percent.
In calling the flooding a government taking, Braden applied the Supreme Court’s 2012 ruling in Arkansas Game and Fish Commission v. U.S., which allows government induced, temporary flooding to be considered a Fifth Amendment taking.
“In August 2005, when Hurricane Katrina struck the St. Bernard Polder, the Army Corps was still discussing whether or not to close the (navigation channel) and whether Congress would fund the channel,” Braden said. “Neither Congress nor the Army Corps had a chance to correct the situation before the MR-GO induced substantially increased storm surge that caused catastrophic flooding on private property – as well as loss of human life.”
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 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.
Just two years after Congress gave its approval, the St. Bernard Tidal Channel Advisory Committee warned erosion from the channel could allow salt water into freshwater marshes, which would kill cypress trees that were “critical in preventing storm surge,” the opinion said.
The committee also warned the navigation channel would provide an avenue for flood waters into the heavily populated areas of the parish.
Warnings of possible catastrophic flooding continued, and an Army Corps of Engineers 2004 and 2005 study showed the navigation channel had destroyed the freshwater marshes that once protected the area from storm surges.
“The Army Corps’ 2004 and 2005 studies were prophetic,” Braden said. The corps of engineers had previously considered shutting down the navigation channel because of its environmental impact.
The court estimates flooding from Katrina destroyed or severely damaged between 68 and 98 percent of the homes in St. Bernard Parish and the Lower Ninth Ward. In the storm’s aftermath, over 400 lawsuits were filed in U.S. District Court, alleging the corps of engineers’ operation of the navigation channel caused substantial levee breech that caused the catastrophic flooding.
Arguing before the Court of Federal Claims, the government said a single flood – the one caused by Hurricane Katrina – cannot establish a government taking, even if the flood is the government’s fault. Braden notes, however, that flooding in the parish and the ward persisted after Hurricane Katrina; Hurricane Rita in 2005, Hurricane Gustav and Hurricane Ike in 2008 all caused substantial flooding.
The government also argued that Hurricane Katrina — as an intervening, catastrophic force — broke the chain of causation that showed the navigation channel caused the parish to flood. The corps of engineers’ 2004 and 2005 studies, however, showed the risk of injury via flood was “imminent.”
Braden scheduled a non-public conference between the parties to see if they will agree to have damages assessed by a knowledgeable and accomplished mediator, hopefully in short order.
“It is time for this final chapter in the MR-GO story to come to an end,” she said.
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