[StBernard] Mississippi River-Gulf Outlet lawsuit can go on, judge says

[Westley Annis]

Mississippi River-Gulf Outlet lawsuit can go on, judge says
by Mark Schleifstein, The Times-Picayune 
Monday August 03, 2009, 10:11 PM

A federal judge in Washington ruled Monday that plaintiffs can go forward
with a lawsuit charging the federal government with "taking" the value of
their land in St. Bernard and the Lower 9th Ward through flooding caused by
the building the Mississippi River-Gulf Outlet.

Court of Federal Claims Judge Susan Braden, appointed by President George W.
Bush, refused to dismiss the lawsuit, which federal attorneys contended was
filed too long after the six-year statute of limitations in such cases
should have run its course.

The class-action case, filed a month and a half after Hurricane Katrina
flooded both areas in August 2005, contends that continuing environmental
damage resulting from construction of the MR-GO by the Army Corps of
Engineers left the plaintiffs -- including the St. Bernard Parish government
and the owners of Rocky & Carlo's Restaurant in Chalmette -- vulnerable to
flooding.

The MR-GO opened in 1965 and was quickly criticized for destroying wetlands
on the eastern edge of St. Bernard.

The lawsuit stems from the U.S. Constitution's Fifth Amendment, which
provides "private property (shall not) be taken for public purpose, without
just compensation."

Braden said evidence of severe flooding in 2005 and other flooding since
then showed the plaintiffs are entitled to ask the court for compensation.

But she also delayed bringing the case to trial until U.S. District Judge
Stanwood Duval issues a ruling -- expected in early September -- on a
separate lawsuit charging that construction of the MR-GO was partly
responsible for flood damage caused in both areas during Katrina.

Braden hinted the delay may be to determine whether that ruling will
compensate the plaintiffs in her case for the damages caused by the MR-GO.
Possible damages may also be reduced by federal grants given to Katrina
victims, she said.

Braden threw cold water on the federal attorneys' argument that parish
leaders, residents and businessmen knew or should have known the MR-GO had
heightened flooding potential long before the six-year statute of
limitations for filing such suits.

She said the landowners couldn't predict the flooding effects because those
effects continued to change as wetlands eroded.

"In this case, the record evidences that the north bank of the MR-GO was not
'stabilized' in 1998, " the time limit federal attorneys argued for, the
decision said.

The government's own evidence showed "that between 1968 and 2006, the
surface width of the MR-GO increased up to 15 feet each year."

And it wasn't until the November 2004 Louisiana Coastal Area Ecosystem
Restoration Study, which asked Congress for a major federal grant to rebuild
wetlands along the channel, that the corps "acknowledged the urgency of the
situation, " she said.

Braden said the corps also failed in 1957 to comply with a federal law
requiring approval of the U.S. Fish & Wildlife Service before building the
project, or to respond when objections were raised repeatedly by other
critics, including the St. Bernard Parish government, who had for years
demanded the MR-GO be closed.

The navigation channel was finally closed this year with a rock dike at
Bayou la Loutre, after Congress deauthorized it.

. . . . . . .

Mark Schleifstein can be reached at mschleifstein at timespicayune.com or
504.826.3327.