New Orleans, Louisiana – In a decision issued yesterday, United States District Judge Stanwood R. Duval, Jr. dismissed the consolidated class action lawsuit against the United States Army Corps of Engineers for the failure of the Orleans Parish outfall canals and, in particular, the17th Street Canal that accounted for approximately 80% of the flooding of downtown New Orleans in the wake of Hurricane Katrina (“In Re: Katrina Canal Breaches Consolidated Litigation - Levee, No. 05-4182 E.D. La.).
Judge Duval ruled that the 17th Street, London and Orleans Avenue outfall canals were federal flood control projects and therefore statutorily immune from suit under the Flood Control Act of 1928. Joseph M. Bruno, the Plaintiffs’ Lead Counsel in the consolidated Katrina litigation who along with a team of attorneys filed litigation on behalf of over 300,000 New Orleans residents, businesses, and property owners says the legal team intends to appeal the decision to the United States Court of Appeals for the Fifth Circuit.
“This decision, if allowed to stand, would mean that there is no Congressional oversight, nor review of the Corps’ actions which, in this instance, resulted in the greatest engineering disaster in the history of this country,” Bruno said. “On a more personal level, the families of the deceased, and the thousands of families who lost everything will have no way of seeking some justice and restitution. In this case, well over 300,000 homes and businesses were wiped out because of the Corps’ arbitrary, capricious, and in many instances even reckless acts in carrying out its Congressional mandate. Now, more than ever, Congress needs to conduct a full review of the Corps’ conduct by establishing an August 29 commission similar to the one established after September 11th tragedy without delay. We are calling upon all citizens to write their senators and congressmen to demand the Corps be held accountable.” Bruno said.
In the 46-page decision, Judge Duval commented on the immunity shielding the Corps:
“This story-fifty years in the making-is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the Corps’ own calculations. The Byzantine funding and appropriation methods for this undertaking were in large part a cause of this failure.” Opinion, p. 44
“The cruel irony here is that the Corps cast a blind eye, either as a result of executive directives or bureaucratic parsimony, to flooding caused by drainage needs and until otherwise directed by Congress, solely focused on flooding caused by storm surge. Nonetheless, damage caused by either type of flooding is ultimately borne by the same public fisc. Such egregious myopia is a caricature of bureaucratic inefficiency.” P.45
The lawsuit alleges that the Corps unilaterally abandoned the authorized plan of protection of the Lake Pontchartrain Hurricane Protection Project that was mandated by Congress in 1965 (the so-called “Barrier Plan”). The Barrier Plan would have protected metropolitan New Orleans from deadly storm surges entering Lake Pontchartrain from the Gulf of Mexico and LakeBorgne. As a consequence of that decision, the Corps finally had to implement a “High-Level Plan” which posed numerous known design problems, most notably weak foundation soils. This crucial change in the plan of protection for the New Orleans metropolitan area was made without the necessary authorization from Congress, and the plaintiffs argue that this lack of authorization removed the Corps from the immunity afforded by the Flood Control Act.
Furthermore, with regard to the 17th Street Outfall Canal, the plaintiffs contended that the stability of the canal embankment on the Orleans Parish side was severely compromised when the Corps authorized the dredging of approximately 470,000 qf of canal bottom by the New Orleans Sewerage and Water Board. The lawsuit alleges numerous instances of negligence and cites expert reports warning the Corps of the failure of the canal due to weak soils as far back as 1974. Since the Corps had authorized the dredging of the canal as part of a local drainage project, not a federal flood control project, plaintiffs contend that the Corps should not be entitled to the immunity afforded by the Flood Control Act.
Yesterday’s ruling has no effect on Judge Duval’s decision in a separate lawsuit against the Corps for flooding that was exacerbated by the Mississippi River Gulf Outlet (MR-GO). In the case “Robinson v. United States” which is also part of the consolidated Katrina litigation before Judge Duval, the judge held in a preliminary decision that there are presently no facts that establish the immunity of the Corps under the Flood Control Act 1928, because the MR-GO is a federal navigation project, and not a flood control project.
(The abeve is a press release from the Law Office of Bruno and Bruno)
Sharonda, my obnoxiously boisterous adversaries on this site will tell you that I see racism everywhere, but it's clearly not simply racism in this case. My mostly-white neighborhood was flooded by the failure of the 17th-Street Canal floodwall, which was part of said lawsuit. It wasn't just black people who lost their homes in Katrina. My wife, kids and I were displaced from our flooded home for two years. I wonder, too, if Rhettswife would have the same view of this lawsuit, had she come from the east, and not west, side of the 17th Street Canal. TW Written by Tee Dub
on 1/7/2009
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It really is a shame that we did lose everything!But it doesn't matter to anyone because the majority of us living in the 9th ward was black.They called us poor and very low class. But it was a all white neighborhood they would have already got some kind of compensation.I keep calling to see where things stand with this litigation and all i keep hearing is it is still in litigation! Written by Sharonda
on 1/7/2009
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Not much hope against the local companies. The 10 year time limit on breach of contract had run out 3-4 years before the break, plus the owner of the construction company died and the firm was sold off and broken up. There is no longer an entity to sue. Also, there is a judicially created "contractor liability" defense that might kick in even at the state level. Where the government took part in the design and the contractor made known to it all the defects of which it was aware, the contrcator is shielded. That's why Janet Harduval could not collect from General Dynamics for wire chaffing she alleged had killed her hubby Ted in an F-16 in Korea, 1982. The Supreme Ct agreed in Boyle v. United Technolgies. Copilot drowned in a helicopter when the escape door would not open. The best bet for revovery funds here is a straight up Congressional appropriation, a la Road Home, not a suit at trial. P.S. Don't bet the ranch that Graci is enough for Robinson to win against MRGO. The channel is of course navigation but the levee adjacent to it was most assuredly a flood control project. Written by Kelly Haggar
on 1/31/2008
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A correct and obvious decision. However, what about the local contractors, etc. who may have known of the problems during construction? Are they not negligent and personally responsible. Were the wrong defendants name? If they knew of the danger and preceded, then are they covered by the law as the Corps is? We must wonder, we must. HMMMMMM!!!!! Written by RhettsWife
on 1/31/2008
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