No Settlement Despite Ruling in 2005 Katrina Flood Lawsuit

By KEVIN McGILL | May 8, 2015

Attorneys for the U.S. government and some New Orleans area property owners met behind closed doors with a judge Wednesday to discuss possible damages arising from a ruling last week that a federally built navigation channel contributed to flood damage from Katrina and other hurricanes.

It remained unclear when they emerged whether there will be a quick resolution in the 10-year-old lawsuit filed by property owners and the government of St. Bernard Parish, a coastal parish adjacent to New Orleans.

‘This case is still pending litigation, and as such, the Army Corps is unable to comment at this time,” Ricky Boyett, spokesman for the U.S. Army Corps of Engineers, which built the channel, said in a prepared statement.

Judge Susan Braden of the U.S. Court of Federal Claims set Wednesday’s conference to see whether attorneys for the government and for the plaintiffs will agree to have damages assessed by a mediator.

Braden ruled last week that the now-closed Mississippi River Gulf Outlet caused flooding in St. Bernard Parish and New Orleans’ Lower 9th Ward. Congress authorized the channel in the 1950s and the Corps completed it in the 1960s. Critics have long said the channel, which created a shortcut from New Orleans to the Gulf of Mexico, contributed to wetlands loss and exacerbated flood dangers.

Braden agreed in last week’s ruling and said property damage caused by the flooding amounted to an unconstitutional temporary taking of private property.

Lawyers for the plaintiffs have asked that the case be certified as a class action, meaning other affected property owners might benefit from the ruling if the judge agrees. But how many might benefit and how much money will be involved is unclear. And federal attorneys could appeal.

Plaintiffs’ attorneys also declined comment after the meeting.

Also attending Wednesday’s conference was U.S. District Judge Stanwood Duval. Duval presided over numerous Katrina flooding cases and was the author of a landmark ruling that the Corps was liable for damage caused by flooding related to the operation and maintenance of the MRGO. But a federal appeals court ruled in 2012 that the Corps was legally immune from such suits.

Efforts to hold the Corps liable for levee breaches during Katrina also led to rulings that the Corps was immune under federal law.

The St. Bernard Parish lawsuit used a different legal argument, alleging that the flood damage amounted to a federal taking of property under the Fifth Amendment to the U.S. Constitution.

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