Thursday, November 19, 2009

Federal Judge: Army Corps Was “Substantial Cause” of Vast New Orleans Flooding

The Times-Picayune of New Orleans reports U.S. District Judge Stanwood Duval Jr."ruled late Wednesday that the Army Corps of Engineers' mismanagement of maintenance at the Mississippi River-Gulf Outlet was directly responsible for flood damage in St. Bernard Parish and the Lower 9th Ward after Hurricane Katrina." Four paragraphs from the newspaper's coverage are particularly important:

The corps allowed the channel to attack the levees in three ways, Duval said, allowing the levees to slump under their own weight, failing to armor the channel's banks against ship wakes and allowing saltwater to exacerbate the loss of wetlands throughout the area.

Duval dismissed Justice Department lawyers' arguments that the corps' decisions were discretionary policy judgments of their professional staff and thus protected under federal law.

"Ignoring safety and poor engineering are not policy, and clearly the Corps engaged in such activities," he said.

"The loss of wetlands and widening of the channel brought about by the operation and maintenance of the MRGO clearly were a substantial cause of plaintiffs' injury," he said.

The New York Times also had coverage, noting that even though the ruling fell short of what some New Orleans area residents wanted,

It was the first time that the government has been held liable for any of the flooding that inundated the New Orleans area after Aug. 29, 2005, vindicating the long-held contention of many in the region that the flooding was far more than an act of God.

The judge had earlier ruled he would not consider that the construction of the canal led to widespread flooding. As a result, Wednesday’s decision was limited to the maintenance of the canal, and the liability applies only to damage around the Lower Ninth Ward of New Orleans and St. Bernard Parish, east of the city.

But lawyers for the plaintiffs in the case said that 80,000 people lived in the area for which the corps was held liable. Though the judge granted six of the plaintiffs in this lawsuit a total of less than $750,000, tens of thousands of other property owners could now try to join class-action lawsuits against the government under the same legal reasoning.

“The implications are billions of dollars of liability for the government,” said Pierce O’Donnell, the lead lawyer for the plaintiffs.

The government is expected to appeal the ruling.

The plaintiffs had to make a complicated argument. The Flood Control Act of 1928 protects the government from lawsuits over failures in flood control projects. But the judge allowed the suit to proceed in March of this year, ruling that it is a navigation channel, not a flood control project.

The plaintiffs’ lawyers argued that the Army Corps had not exercised “due care” in its maintenance of the channel, and that the maintenance that was done, like dredging, only made things worse. The corps’ actions, they said, brought salt water into the New Orleans area, killing off marshes; eroded the banks on which levees sat; and more than doubled the channel in width, giving water driven by hurricanes an unobstructed path to the city.

In his decision, Judge Duval largely agreed with this argument, at least as it pertained to St. Bernard and the Lower Ninth Ward. He was highly critical of the government, which had argued that the hurricane and its massive storm surge was simply more than the system had been designed to handle, and said the corps had manipulated facts.

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

Given the new potential for an enormous amount of liability on the part of the government, the lawyers for the plaintiffs urged the government to consider making a settlement with everyone who was affected by the floods in the greater New Orleans area — even residents of zones where Judge Duval has already ruled the corps is not liable.

“The government should come to us in good faith and find a settlement for the people of New Orleans,” Mr. O’Donnell said.

Contrary to the New York Times, the narrow focus of Judge Duval's ruling may be its best protect on appeal. By not treading on the Corps' immunity from liability for flood control projects and by focusing solely on its mismanagement of the MR-GO, the judge gave the federal government little to challenge, if anything. Besides, further judicial review runs the risk of a finding that the MR-GO negligence impacted other levee systems beyond the Lower 9th Ward and St. Bernard Parish--which would extend the Corps' liability and cost the government even more.

Attorney General Holder and President Obama had better recognize that the ruling leaves the government's legal position unsustainable, and bless just the kind of settlement that the plaintiffs' attorneys suggest.

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