Katrina MRGO Ruling Could Bring New Deluge of Lawsuits

November 23, 2009

A landmark court ruling blaming the Army Corps of Engineers’ “monumental negligence” for some of the worst flooding from Hurricane Katrina could lead to a new deluge: billions of dollars in legal action from thousands of storm victims.

The federal judge’s harshly worded decision also served as vindication for residents of St. Bernard Parish and the Lower 9th Ward in New Orleans who have long argued that Katrina was largely a man-made disaster, caused by the federal government’s failure to maintain the levees protecting the city.

“Finally, somebody has said the truth,” said Catherine Serpas, 67, whose family runs a bicycle and lawnmower store in Chalmette, La. She said the Army Corps’ work on a 76-mile channel called the Mississippi River-Gulf Outlet (MRGO) “destroyed the family life we knew. St. Bernard will never be what it used to be.”

New Orleans Mayor Ray Nagin told CNN the ruling would “open the floodgates” for people in the Lower 9th Ward to seek “proper compensation.”

“If this is allowed to stand, I think you will see a multitude of lawsuits, the City of New Orleans included,” Nagin said.

A Corps of Engineers spokesman said the agency and the Justice Department were reviewing the ruling and would not comment because issues in the case were still subject to litigation.

On Nov. 18, U.S. District Judge Stanwood Duval ruled that the corps’ shoddy oversight of the channel southeast of New Orleans caused much of the flooding of St. Bernard Parish and the Lower 9th Ward, two of the hardest-hit areas after Katrina.

The decision opens the door to billions of dollars in other claims by more than 100,000 individuals, businesses and even government entities that have pending damage claims against the corps. Duval awarded $720,000 in property damages to four individuals and one business.

Storm victims said they were eager for the government to pay up.

Serpas’ sister, Melanie Koons, said she hoped the ruling would “make the corps accountable.”

In the Lower 9th Ward, Gabriel Rogers exclaimed: “Pay up quickly. Get the money started down here.” Pointing to the empty lots behind his house, the 63-year-old retired truck driver said: “You can ride down there and see nobody.”

Dane Ciolino, a law professor at Loyola University in New Orleans, said that if Duval’s ruling holds up on appeal, he would expect Congress to approve a federal settlement rather than going through individual trials. Total damages could reach into the billions of dollars.

The plaintiffs’ lawyers hoped to head off more litigation by appealing directly to Congress.

“It’s time to stop litigating and start negotiating,” said Pierce O’Donnell, a Los Angeles attorney who was one of the lead lawyers on the case. “With Judge Duval’s ruling, we now have a weapon.”

The plaintiffs’ lawyers said they would approach congressional leaders after Thanksgiving with a list of demands to settle the case. They said the federal government needs to compensate victims throughout the city, fix the region’s broken infrastructure, restore the wetlands of south Louisiana and overhaul the way the corps operates.

Normally, the federal government is immune from lawsuits that arise from routine operations, including most flood-control projects. But in this case, the judge ruled that the Army Corps could be held liable because the channel in question is not strictly for flood control. It also gave ships and barges a shortcut to and from the Gulf of Mexico until the corps closed it with rocks this year.

Members of Congress urged the government to act swiftly.

Sen. Mary Landrieu, a Louisiana Democrat, called on the president to “use this decision as an opportunity to avert future loss of life and expense to the treasury. We cannot afford to wait for the next failure of our federal government to get it right. We have waited long enough.”

She said she hoped the ruling was upheld and that “the people of the region are finally vindicated and receive a full and just compensation.”

The Army Corps, she added, “can no longer be relied upon as the lone agency charged with protecting our coastal communities.”

Sen. David Vitter, a Louisiana Republican, said the ruling could “serve as a warning for the future and as a means to help bring some form of relief to the victims of this storm.”

In a joint statement, Sens. Russ Feingold, a Wisconsin Democrat, and John McCain, an Arizona Republican, said the ruling was “further proof that the Army Corps of Engineers is in urgent need of reform. … American taxpayers cannot wait for another natural disaster like Katrina before we act to improve the safety and security of Corps projects.”

Mark Davis, director of the Tulane Institute on Water Resources Law and Policy, called the ruling “a watershed moment in how the government’s responsibilities to the environment and the people are evaluated.”

The ruling “clearly has implications for other areas beyond Louisiana,” he said.

Regardless of what happens on appeal, he added, “the judge’s views on the Corps of Engineers’ credibility and narrow view of its responsibilities will put them under a magnifying glass that, quite frankly, they have never been under.”

In his 156-page ruling, Duval referred to the corps’ approach to maintaining the channel as “monumental negligence.” He said he was “utterly convinced” that the corps’ failure to shore up the channel doomed it “to grow to two to three times its design width” and that “created a more forceful frontal wave attack on the levee” that protected St. Bernard and the Lower 9th Ward.

“The corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so,” Duval said. “Clearly the expression ‘talk is cheap’ applies here.”

At a one-month trial in May, experts clashed over the causes of flooding and the channel’s role in it.

Government experts argued the levees and floodwalls would have failed regardless of whether the channel had been dug.

The plaintiffs’ team of experts said the channel became a “hurricane highway” that funneled storm surge into New Orleans. Without the channel, they said, the flooding would have been minimal.

Associated Press writers Becky Bohrer and Alan Sayre contributed to this report.

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