Ruling Against Corps of Engineers|Opens Door for Katrina Victims

NEW ORLEANS (CN) - A federal judge on Wednesday found the Army Corps of Engineers at fault for massive flooding outside New Orleans after Hurricane Katrina, and awarded $720,000 in damages to five of the six named plaintiffs. With as many as 100,000 hurricane refugees having colorable claims, the ruling could set the stage for damage awards in the billions.

"The Corps' lassitude and failure to fulfill its duties resulted in catastrophic loss of human life and property in unprecedented proportions," U.S. District Judge Stanwood Duval Jr. wrote in a 150-page ruling. "The Corps' negligence resulted in the wasting of millions of dollars in flood protection measures and billions of dollars in Congressional outlays to help this region recover from such a catastrophe."

Neighborhoods in New Orleans' Lower Ninth Ward and parts of St. Bernard Parish were flooded after Hurricane Katrina when monster storm surge waves toppled the walls of the Mississippi River Gulf Outlet (MRGO), a shipping channel built in the 1950s.

Plaintiffs who lost their homes blamed the Corps of Engineers' faulty design, construction and maintenance of the MRGO for the massive destruction. The channel's "funnel" design can intensify storm surges. The MRGO was also blamed for deterioration of wetlands, which act as a natural barrier against storm surges from hurricanes.

In statements made during trial last spring, Judge Duval said his decision would basically come down to "how much water would have occurred" during the storms without the MRGO.

The Corps has a long history of immunity from liability over flooding, and argued that it was immune from liability in this case because the MRGO is part of New Orleans' flood control system.

But in March 2008, Judge Duval ruled that the Corps of Engineers was not immune with respect to Katrina flooding under the broad terms of the Flood Control Act of 1928, which specifies that "no liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters in any place," because the allegations related to the Corps' negligence in its construction and maintenance of the MRGO.

"The failure of the Corps to recognize the destruction that the MRGO had caused and the potential hazard that it created is clearly negligent on the part of the Corps," Duval wrote in the ruling released Wednesday. "Furthermore, the Corps not only knew, but admitted by 1988, that the MRGO threatened human life ... and yet it did not act in time to prevent the catastrophic disaster that ensued with the onslaught of Hurricane Katrina."

Judge Duval found that the Corps violated the National Environmental Policy Act by failing to report its findings on loss of wetlands after construction of the MRGO. "(T)he Corps itself internally recognized that the MRGO was causing significant changes in the environment - that is the disappearance of the adjacent wetlands to the MRGO and the effects thereof on the human environment - which triggered reporting requirements."

Duval ruled that "the Corps cannot ignore the dictates of NEPA and then claim the protection of the discretionary exception based on its own apparent self-deception."

After Hurricane Betsy caused catastrophic flooding in 1965, hurricane refugees sued the United States, alleging negligence in the design, construction and maintenance of the MRGO. But the district court found that the plaintiffs failed to prove by a preponderance of evidence any fault or negligence by the government.

Judge Duval wrote of the disaster provoked by Hurricane Betsy: "still the Corps did nothing to protect the berms and south shore of the channel until 1982. By 1988, it knew that indeed all of the engineering blunders that it had made now put the Parish of St. Bernard at risk, despite the existence of a levee which it had spent money to construct, yet it did not do anything until 1991 to protect the north shore. The Corps cannot mask these failures with the cloak of 'policy.' At some point simple engineering knowledge - like wave wake is going to destroy the surrounding habitat and create a hazard - cannot be ignored, and the safety of an entire metropolitan area cannot be compromised."

Justice Department spokesman Charles Miller told the New Orleans Times-Picayune that the government will review the ruling. In light of the enormous potential damages, the government is expected to appeal to the 5th Circuit.

Judge Duval, who was appointed to the bench by former President Bill Clinton, is known in Louisiana for his 2000 injunction barring the state from issuing "Choose Life" vanity automobile license plates.

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