Judge Refuses to Dismiss Feds, Corps From La. Flood Suit

February 5, 2007

Residents of the three areas flooded worst by Hurricane Katrina can sue the Army Corps of Engineers over claims that a poorly designed navigation channel caused catastrophic flooding during Hurricane Katrina, a federal judge ruled.

The Corps and federal government had argued they were immune from claims that the Mississippi River-Gulf Outlet caused the damage to the Lower 9th Ward, eastern New Orleans and St. Bernard Parish.

But U.S. District Judge Stanwood Duval refused to throw out a suit claiming that floods in those areas were caused by defects the Corps had known about for decades.

There is no way to tell at this point that every decision about the waterway commonly called the “Mr. Go” were based in “social, economic or political policy,” which would exempt them from lawsuits, Duval wrote.

Eugene Pawlik, a Corps spokesman in Washington, said the agency’s lawyers are reviewing the ruling but did not have any immediate comment.

“You’ve broken down a huge barrier. I’m not saying we’ve won the case, I’m saying we’re going to trial,” said Joe Bruno, a trial lawyer for the plaintiffs. “Now we will have an opportunity to see what goes on behind closed doors.”

The Feb. 2 decision was one of the first significant rulings in a set of suits pending against the Corps and the flooding of New Orleans.

“I think they’ve always worried that they could get sued, but getting sued and actually facing liability, or potential liability, are two different things,” said Mark Davis, director of the Institute of Water Resources Law and Policy at Tulane University. “The Corps and the federal government will have to take very seriously the responsibilities they have to the communities down here.”

At issue is a navigation channel built in the 1950s as a shortcut between the Gulf of Mexico and New Orleans.

The channel has widened and allowed salt water to creep into interior marshes and lakes, killing swamp forests and marshlands. Scientists have repeatedly called it one of the worst environmental problems in the nation, and called for it to be closed.

Residents and scientists had long warned that the broad channel acted as a conduit for storm surge from hurricanes. The plaintiffs argued that storm surge roared up through the channel and overwhelmed the levees protecting their homes.

The Corps says the channel did no such thing, and that the storm surge was so high that the channel did little to increase the level of flooding.

The Corps has been reluctant to close the channel, arguing that it still served navigational needs. Shippers have also lobbied the agency to keep it open. Since Katrina, however, the Corps has said plugging the Mr. Go makes sense based on economic considerations, not concerns over flooding.

Duval said plaintiffs should get a hearing at least about three allegations:

-The Corps failed to ask the U.S. Fish and Wildlife Service and the Louisiana Department of Wildlife and Fisheries about their worries about the canal’s alignment and its effect on wetlands, and to present those concerns to Congress.

-The number of decisions made in building and maintaining the canal and whether the record shows they were based in policy.

-Whether some decisions were not based in policy, and whether those failed to meet standard engineering practices.

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