District Court Rules Against Army Corps of Engineers

I was frankly surprised by this ruling, because the Corps of Engineers is immune from suit for damages resulting from building substandard infrastructure like levees that failed.

In a ruling that could leave the government open to billions of dollars in claims from Hurricane Katrina victims, a federal judge said late Wednesday that the U.S. Army Corps of Engineers had displayed "gross negligence" in failing to maintain a navigation channel — resulting in levee breaches that flooded large swaths of greater New Orleans.

U.S. District Judge Stanwood R. Duval peppered his 156-page decision, issued in New Orleans, with harsh criticism of the Army corps, at one point citing its "insouciance, myopia and shortsightedness" in failing to maintain the Mississippi River-Gulf Outlet, known locally as MRGO.

For more than 40 years, the judge said, the corps had known that a crucial levee protecting suburban St. Bernard Parish and the Lower 9th Ward neighborhood would be compromised by the deterioration of the channel. The corps had "myriad" ways to address the problem, he wrote, but failed to do so.

Duval awarded a total of $719,000 to a small group of flood victims that sued the government in April 2006.

But according to Pierce O’Donnell, the lead plaintiff’s counsel, roughly 100,000 New Orleans-area residents and businesses who have filed flood-damage claims with the Army corps were now potentially eligible for payment.

In a phone interview, O’Donnell hailed what he called a historic ruling, one that backed the widely held contention in New Orleans that the 2005 catastrophe was not just the fault of Mother Nature.

"The judge agreed with us that Katrina was not a natural disaster," O’Donnell said. "Katrina was a man-made disaster caused by the Army Corps of Engineers."

In a statement Wednesday, the Army corps said only that the opinion was being reviewed by lawyers from the Army and Justice Department. "We have no further comment at this time as the issues involved in the case are still subject to further litigation," the corps said.

At the heart of the case was maintenance and operation of the Mississippi River-Gulf Outlet.

The channel, which was decommissioned after Katrina, was completed in the 1960s as a shipping shortcut between New Orleans and the Gulf of Mexico. Over the years, the marshy banks of the channel had widened significantly in spots — and long before Katrina hit, experts had warned that the destruction of wetlands could create a funnel effect that would intensify storm surges.

During the trial, attorneys for the government argued that the Army Corps of Engineers was not liable for the post-hurricane flooding because it was immune from civil lawsuits questioning federal flood policy decisions.

But Duval found that such "gross negligence" overrode any immunity claim… [emphasis added]

Inserted from <LA Times>

The basis for the judges decision was that the Mississippi Gulf-River Outlet was not faulty workmanship or maintenance.  It was negligent planning that altered the environment in a way that created the conditions necessary for the flood surge to occur.  This is not over by a long shot.  If the decision survives the Court of Appeals, it will likely end up in SCOTUS.