[StBernard] Suit seeks crack in federal immunity wall

Westley Annis westley at da-parish.com
Mon Jul 7 20:14:47 EDT 2008

Suit seeks crack in federal immunity wall
Action by Katrina victims may clear way for others who want the government
held accountable for inadequate flood protection
By Howard Witt

Chicago Tribune correspondent

11:30 PM CDT, July 6, 2008

HOUSTON-The victims of the recent Midwest flooding disaster will soon learn
a bitter lesson that victims of Hurricane Katrina in New Orleans already
know: If they are hoping to sue the federal government over the inadequacy
of levees and other flood-control projects that were supposed to protect
them, they will likely be out of luck.

Thanks to an act of Congress passed 80 years ago, the Army Corps of
Engineers, and by extension the federal government, is largely immune from
liability for the failure of any flood-control project that it builds. For
that reason, federal judges have already tossed out several lawsuits brought
against the U.S. government by owners of flooded properties in New Orleans.

But now lawyers pursuing a multibillion-dollar class-action lawsuit on
behalf of Katrina victims think they have discovered a crack in the
government's immunity. And if they prevail at a federal trial now set for
January-they've already won a crucial early round in court-the attorneys
believe the victory could pressure Congress to reconsider its old calculus
and compensate victims of federal flood-control failures across the nation,
much like victims of the Sept. 11 attacks.

"The federal government has admitted in New Orleans that their levees were
responsible for the catastrophic flooding, yet they have been stonewalling
in court," said Pierce O'Donnell, the lead attorney in the lawsuit. "But the
law is clear: Once you decide to build a major public works project, you are
obligated to do it in a safe, competent manner. And once you learn it poses
serious threats to public and private property and life, you must take
immediate action to remedy that."

Death and destruction
New Orleans flooded, more than 1,100 people died and more than 160,000 homes
were destroyed when Hurricane Katrina slammed into the region on Aug. 29,
2005, cracking, smashing or overtopping scores of levees and floodwalls
ringing the historic city built below sea level.

But the lead plaintiffs in the current lawsuit-five individuals whose homes
in eastern New Orleans and neighboring St. Bernard Parish were destroyed by
the floodwaters-are not contending that failed levees caused their losses,
which would be precisely the type of claim against which the federal
government is immune.

Instead, the plaintiffs are targeting the Mississippi River Gulf Outlet, a
76-mile-long navigation canal carved out of environmentally sensitive
wetlands by the U.S. Army Corps of Engineers in the 1960s to create a
shipping shortcut between New Orleans and the Gulf of Mexico.

The lawsuit contends that the MRGO not only destroyed wetlands that had long
served as a natural hurricane buffer but also funneled huge storm swells
from Katrina straight into the heart of New Orleans like a shotgun, flooding
the entire eastern region.

The plaintiffs' attorneys have discovered thousands of pages of government
documents they say prove that the Corps of Engineers long knew of the
hurricane dangers posed by the navigation canal but repeatedly refused to

"Since 1958, the Army Corps was on written notice that the MRGO posed a
serious threat to human life and property in Greater New Orleans," the
lawsuit asserts. "Despite repeated warnings from knowledgeable experts and
public officials over the next 47 years before Katrina, the Army Corps did
nothing to mitigate or prevent the very calamity that occurred during
Katrina. This lawsuit seeks to expose this egregious legacy of our
government's dereliction of duty, not only to compensate plaintiffs, but to
prevent such a travesty from ever occurring again."

'Could have been avoided'
Lucille Franz, 74, and her husband Anthony, 79, lost their home in New
Orleans' Lower 9th Ward when Katrina sent floodwaters surging into the
Industrial Canal-the final leg of the MRGO waterway. Franz also lost her
sister, a resident of the St. Rita's Nursing Home in nearby St. Bernard
Parish. Her sister was one of 35 elderly and infirm residents who drowned

"The federal government knew that if we had a large hurricane we would
probably be flooded," said Franz. "I'm angry because people drowned. We lost
everything we had, and this could have been avoided."

For its part, the U.S. Justice Department, representing the Corps of
Engineers and the federal government in the lawsuit, sought dismissal on the
grounds that the government is immune from liability for flood-control

Congress created that immunity in 1928, the government attorneys argued,
because lawmakers felt the federal government should not pay twice for
massive flood-control schemes, first to build them and then again to
compensate victims in the event they failed.

"Because the flood damages alleged by plaintiffs resulted from floodwaters
that the United States sought but failed to control, this case must be
dismissed," the government wrote in its motion.

But in a ruling in early May, U.S. District Court Judge Stanwood Duval
rebuffed the government's arguments and allowed the MRGO lawsuit to proceed
to trial. Duval ruled that the MRGO was always intended as a navigation
canal, not a flood-control project, and therefore is not entitled to
automatic immunity.

"The United States should not be immunized for a [claim] which occurred from
an activity unrelated to a flood-control project," Duval wrote in his
opinion. "Taken to its logical conclusion, such a policy would yield absurd

Duval noted that the U.S. can still seek to have the MRGO lawsuit dismissed
for other reasons, including another broad exemption carved out by Congress
that grants the government immunity for "acts or omissions" of federal
employees exercising a "discretionary function."

But the plaintiffs' attorneys are confident.

"It simply cannot be that the government can build a channel that they know
is going to increase storm surge and they don't do anything but sit idly
by," said John Andry, a co-counsel in the lawsuit.

Last month, in an action officials said was unrelated to the lawsuit, the
Corps of Engineers agreed to close the MRGO and block it off with nearly
400,000 tons of stone.

hwitt at tribune.com

Copyright C 2008, Chicago Tribune

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