A Washington appeals court has reversed a lower court ruling that held the federal government liable for some of the flooding that followed Hurricane Katrina and other major storms – a ruling that could have resulted in damage payments for residents and businesses of New Orleans’ Lower 9th Ward and neighboring St. Bernard Parish in Louisiana.
The class action lawsuit by local governments and property owners blamed flooding on the now-closed Mississippi River Gulf Outlet. Often referred to locally as the “Mr. Go,” the canal was a man-made shortcut from the Mississippi River to the Gulf of Mexico. The suit claimed construction, operation and failure to maintain the waterway contributed to government-caused flooding that amounted to an illegal government taking of private property.
Judge Susan Braden of the U.S. Court of Federal Claims agreed in a 2015 ruling and granted class-action status in 2016.
But the U.S. Court of Appeals for the Federal Circuit, in a ruling dated April 20, said plaintiffs failed to prove that construction or operation of the outlet caused the flooding, in part because they failed to consider whether a levee project approved at the same time as the MRGO mitigated the flooding. And it said a “taking” claim can’t be based on government inaction – such as the failure to maintain the waterway. “Takings liability must be premised on affirmative government acts,” the appeal court said. “The failure of the government to properly maintain the MRGO channel or to modify the channel cannot be the basis of takings liability.”
Braden’s ruling had been a rare court victory against the government in lawsuits related to Katrina. Numerous other lawsuits filed against the federal government over Katrina-related flooding had failed.
A string of court rulings insulated the federal government from liability for billions of dollars in flood damage that many residents and business owners have blamed on the Corps’ design, construction and maintenance of levees and floodwalls, as well as the MRGO.
“We’re disappointed, naturally,” Carlos Zelaya, one of the plaintiffs’ attorneys in the case. He said attorneys were analyzing the ruling and would make a decision soon on their next step.
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