Dismissed Katrina Levee Suit May be Harbinger for Other Cities

February 4, 2008

Like hundreds of thousands of her fellow citizens, Wanda Leigh wanted to sue the federal government for the levee breaks during Hurricane Katrina.

She got the answer she expected: She can’t.

“It’s the government, and you can’t sue the government,” the Lakeview resident said Thursday, a day after a federal judge dismissed a key class-action lawsuit against the Army Corps of Engineers.

Leigh’s predicament may seem restricted to people like those in water-locked New Orleans, but experts say a growing number of Americans may find themselves in Leigh’s shoes as coastal cities are threatened by rising seas and developers push into flood plains protected by aging levees.

“New Orleans is not the only place where construction of this sort took place. We have a long history of pushing construction into highly vulnerable areas,” said James Chen, the University of Louisville’s law school dean and co-author of “Disasters And the Law: Katrina And Beyond.”

More cities will rely heavily on levees, pumps and other flood barriers _ all of which can fail _ for their safety as a warming planet raises sea levels and sea temperatures that energize hurricanes, he said.

“There are going to be losses,” Chen said, and “the government will be an attractive target.”

The federal government has deep pockets, but suing it and winning is no easy task: Just look at New Orleans.

Despite serious flaws with New Orleans’ levees, and the Corps’ acknowledgment of its responsibility, U.S. District Judge Stanwood Duval ruled that the Flood Control Act of 1928 made the Corps immune. The immunity covers flood control projects like reservoirs, dams and levees.

In his ruling, Duval rebuked the agency for failing to protect the city, but said his hands were tied by the law.

Duval’s dismissal does not end the legal battle, but it was a serious blow for New Orleans, where about 490,000 residents, businesses and government entities filed claims against the Corps. The fate of many of those claims was hinged on the suit Duval dismissed. There are plans to appeal to the 5th U.S. Circuit Court of Appeals.

Meanwhile, Duval ruled in a similar case that the Corps could not claim immunity over flooding from a navigation channel. That ruling last year keeps the door open for people in eastern New Orleans and St. Bernard Parish seeking compensation through the courts.

Water resources and flood control policy experts said they were not surprised by Duval’s ruling.

“It goes back to the history of English law: You can’t sue the king,” said Leonard Shabman, a water resources expert with Resources for the Future, an independent research organization.

He said the immunity statute has consistently been upheld. “This is the reality of it. There are grounds for suing, but they are fairly narrow.”

The federal government entered into the business of flood control reluctantly after the Great Mississippi Flood of 1927 and claimed immunity as it embarked on a massive levee-building project on the Mississippi River.

Mark Davis, the director of Tulane University’s Institute on Water Resources Law and Policy, said the rub is that the immunity claim may be widening into areas that are not, on the surface, flood control projects.

In the case of Duval’s ruling, the suit was over breaches on drainage canals inside New Orleans. The Corps argued, and Duval agreed, that over time those drainage canals became part of the levee system and therefore flood control projects.

Davis said that interpretation is “a caution flag” for New Orleans.

“As we watch the plans to make this place safer in the future — whether it’s with a wetlands, a pump, a levee — and if all of them are considered part of an integrated flood control project,” Davis said, “I’m not sure if that is that what the people in 1928 envisioned.”

The ruling also reinforces the conundrum New Orleans is in: Ringed by levees and kept dry by pumps, it must rely on an agency that can’t be sued for its mistakes.

“There’s this strange dependence yet distrust on the Corps,” said Craig Colten, a historian at Louisiana State University and author of “An Unnatural Metropolis: Wresting New Orleans from Nature.”

So, people like Robin D’Aunoy, 46, a contracting consultant, are taking matters into their own hands.

His nearly completed house has an elevator shaft and a first floor that starts 131/2 feet off the ground.

“Chances are the lawyers would have gotten 95 percent of everything anyway,” he said about the suit. “Let’s be real.”

If there is a breach, D’Aunoy said, he should be able to come back and fix up the house, because the first floor and main living quarters are built so high.

“But will the neighborhood come back?” he asked. “I don’t think it can take a second lick.”

Associated Press writer Becky Bohrer in New Orleans contributed to this report.

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