Army Corps of Engineers May Be Sued Over Katrina Damage, Judge Rules

In a significant blow to the federal government, a U.S. District Court judge ruled on Friday that the Army Corps of Engineers may be sued for negligence with regard to the flood damage that ravaged New Orleans after Hurricane Katrina. If the Corps is found liable in court, they may be responsible for billions of dollars in damages.

At the core of the issue is the controversial channel known as the Mississippi River Gulf Outlet (or MRGO), a waterway through the city that connects the Gulf of Mexico with the Mississippi River. Many observers believe that the channel served to increase storm surge levels, which ultimately led to the levee breaches that devastated the city.

In his ruling, Judge Stanwood Duval wrote that “plaintiffs have sued the Government contending that the MRGO caused catastrophic damage to the Lower Ninth Ward, New Orleans East, and St. Bernard Parish, and this result was the foreseeable consequences of at least two defective conditions known by the Army Corps for decades:(1) the destruction of the marshlands surrounding the MRGO which intensified an east-west storm surge which resulted in the flooding of much of New Orleans and (2) the funnel effect stemming from the MRGO’s faulty design which accelerated the force and strength of that surge. In essence, plaintiffs maintain that but for the MRGO, there would have not been the devastating flooding which damaged plaintiffs herein.”

The Corps has been seeking immunity from court challenges based on the Flood Control Act of 1928, which protects it from flood-damage liability caused by projects specifically related to flood control. “Plaintiffs contend that the MRGO is not a flood control project but an aid to navigation,” notes Judge Senter. “The nub of the issue before the court is whether the MRGO is a flood control project and whether waters that flow through the MRGO are floodwaters…. Plaintiffs have alleged the MRGO was never planned, authorized, or designed to be anything other than a ‘navigable waterway.’ Thus, they maintain the immunity sought to be used to dismiss these claims is inapplicable as the cause of action has nothing to do with any flood control project.”

Senter added, “It is certainly not clear that the MRGO has morphed into a hybrid flood control project/navigational aid project. The Court will deny this motion and finds that plaintiffs’ request for further discovery is well-taken.”

Ultimately, he denied the government’s motion for dismissal, claiming that three major allegations by the plaintiffs were worthy of the court’s review: the failure of the Corps to consult with the U.S. Fish and Wildlife Service and the Louisiana Department of Wild Life and Fisheries with regard to the MRGO’s alignment; deficiencies in constructing and maintaining the MRGO and “the inability on this record to characterize such decisions as being grounded in policy”; and “whether there were non-policy based decisions made that failed to comport with standard engineering practices.”

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