[StBernard] D.C. federal judge hears claims in MRGO case

Westley Annis westley at da-parish.com
Thu May 7 08:29:55 EDT 2009


D.C. federal judge hears claims in MRGO case
by Susan Finch, The Times-Picayune
Wednesday May 06, 2009, 7:28 PM
A lawsuit that blames the U.S. Army Corps of Engineers' construction of a
shipping channel for flooding St. Bernard Parish and New Orleans private
property during Hurricane Katrina was filed too late and should be
dismissed, a government attorney said Wednesday in a hearing on the case


The class action case, filed in the U.S. Court of Federal Claims in
Washington, D.C. a month and a half after the Aug. 29, 2005 storm, contends
that continuing environmental damage done by the Mississippi River Gulf
Outlet left the plaintiffs, among them the owners of Rocky & Carlo's
Restaurant, vulnerable to flooding that amounted to the government's taking
their property without just compensation.

Justice Department special counsel Fred Disheroon told Court of Claims Judge
Susan Braden, who came to New Orleans for the hearing, that the case was
filed long after the MRGO construction ceased to affect the environment.

Disheroon said most of the wetlands loss created by the shipping channel
construction ended in 1980.

Plaintiffs' attorney Chuck Cooper of Washington, D.C., said the case was
filed well within a six-year time limit that federal law sets for bringing
such cases. He said his clients can show that there had not been flooding on
their property until 2002.

Cooper argued that the effects of the Corps' operation and maintenance of
the channel, built in the 1960s as a shortcut for deep draft ships between
the Gulf and the Industrial Canal, "are by no means at an end and will get
worse, and that's the primary reason why it's being closed."

On April 22 the channel was closed to boats Wednesday at Bayou La Loutre
near Hopedale in St. Bernard Parish, where a permanent barrier is being
constructed.

The MRGO has been the target of criticism in St. Bernard Parish, the Lower
9th Ward and some parts of eastern New Orleans for Katrina's flooding as
well as flooding during Hurricane Betsy in 1965.

Cooper added that government programs to remediate the wetlands loss and
erosion caused by the MRGO have postponed the time when the plaintiffs had
to file suit.

"As long as the government is saying it's correcting the problem, until they
stop trying to correct it, the time period is still running, so arguably the
six years hasn't even started to run yet, Cooper said in an interview after
the hearing.

Braden, who issued no immediate ruling, said much of the evidence in an
MRGO-related trial under way here before U.S. District Judge Stanwood Duval
may be applicable to the case over which she is presiding.

The case Duval is hearing was filed by eastern New Orleans, Lower Ninth Ward
and St. Bernard property owners who argue that the MRGO project destroyed
wetlands that had helped protect them from storms and that by failing to
properly maintain the channel, the Corps opened the door for the flooding
that destroyed their homes.

Susan Finch can be reached at




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