[StBernard] Corps' MR-GO claims should be settled, and fast, attorneys say

Westley Annis westley at da-parish.com
Thu Nov 19 23:37:14 EST 2009

Corps' MR-GO claims should be settled, and fast, attorneys say
By Mark Schleifstein, The Times-Picayune
November 19, 2009, 6:41PM

Congress and the Obama administration should move quickly to settle out of
court damage claims against the Army Corps of Engineers, in light of a
federal judge's ruling that corps mismanagement of the Mississippi
River-Gulf Outlet maintenance was responsible for a significant part of the
Hurricane Katrina flood damage in the Lower 9th Ward of New Orleans and St.
Bernard Parish, attorneys for the winning plaintiffs said Thursday.

Attorneys say the government should settle claims quickly. 12/17/05
Attorneys Joseph Bruno of New Orleans and Pierce O'Donnell of Los Angeles,
leaders of the team of lawyers representing plaintiffs in the MR-GO lawsuit,
said any settlement also should include compensation for residents,
businesses and local governments of other flooded parts of the New Orleans
area where U.S. District Judge Stanwood Duval Jr. had ruled last year that
the corps was responsible for the failure of levees but was immune from
liability under federal law.

The lawyers said they and local elected officials have been invited by U.S.
Rep. Charles Melancon, D-Napoleonville, whose district includes St. Bernard,
to meet with members of Congress after Thanksgiving to discuss their
suggestions for legislation to settle the lawsuits and to "reform" the

O'Donnell said the Obama administration has two choices in responding to
Duval's Wednesday ruling.

"The Justice Department could continue the scorched earth policies of the
prior administration and stonewall the people of New Orleans and St. Bernard
Parish for years to come," O'Donnell said. "We've been in court for four
years, and if the Corps of Engineers exercises its threat, they'll go to the
Supreme Court of the United States and literally continue this litigation
for years to come.

"Or the new president and his Justice Department can honor (Obama's)
campaign promise and his recent promise in New Orleans to do the right thing
by the people of New Orleans and St. Bernard Parish," he said. "It's time
that we stopped litigating and we started negotiating."

St. Bernard Parish President Craig Taffaro said he would like to see a
settlement also include the cost of restoring wetlands and cypress forest
destroyed by the MR-GO. He estimated that the parish also has more than $1
billion in claims for damage to parish infrastructure pending before the
corps, in addition to the close to $1 billion in aid the parish already has
received from the Federal Emergency Management Agency and other agencies.

"The day that the first explosion was delivered to the cypress forest to
begin digging and developing the MR-GO was the first day of public outcry
that this was going to be the ruination of St. Bernard Parish," Taffaro
said. "It's a bittersweet victory in the sense that: yes, we are at the
table, yes, we are grateful for the judge's ruling, for the legal team to
deliver us to this point. But what a shame that we had to go through such
devastation and destruction to get here."

Both attorneys said they also hope to use Duval's harsh criticism of the
corps in arguing for congressional changes in the way the agency does
business, or even to strip it of its present roles enforcing the federal
Clean Water Act, which governs dredging, and in construction of
environmental restoration projects.

"The larger message here is that this corps is not the same corps that built
the Panama Canal," Bruno said. "This Army is no longer a corps of engineers.
They subcontract it out. They're cozy with their contractors. They waste
money. They're not interested in the welfare of the people.

Neither the Justice Department nor the corps would respond to the attorneys'

"The department is currently reviewing Judge Duval's decision," Justice
Department spokesman Charles Miller said. "We have made no decision as to
what the government's next step will be."

"We have nothing to add at this time," said Corps New Orleans District
spokesman Ken Holder.

Bruno said that if attorneys are unsuccessful in brokering a settlement,
when appeals of the ruling are completed, the attorneys representing the
plaintiffs will ask Duval to certify the case as a class action and to issue
a judgment against the corps that finds it liable for damages for all claims
in the two areas.

"The only thing that will be left is for the individual to come in and prove
their very specific damages, how much did the flood damage their home, did
the flood cause them loss of life, did the flood cause them personal injury
or emotional stress," Bruno said.

The "class" would include only those people, businesses and governmental
entities who filed SF Form 95 claims with the Army Corps of Engineers two
years ago, involving losses incurred in the Lower 9th Ward and St. Bernard
Parish, he said. Homeowners and renters would be covered.

O'Donnell recommended that those who filed claim forms make sure they have
the financial records necessary to prove their damages, including receipts
for replacement of lost items or reconstruction costs. He expects any damage
claims to be reduced by money already received by the claimants from
insurance settlements or Road Home grants.

The original plaintiffs in the MR-GO case recognize it could be a long time
before the appeals process ends.

"It may take years to get anything monetary, but that's not the important
thing," said Lucille Franz, 75, whose two-story home on St. Claude Avenue in
the Lower 9th Ward was destroyed. "It's important that they be held
accountable for what they've done -- or what they didn't do, let's put it
that way."

The home at the intersection of St. Claude and Gordon Street had been in the
family of her husband, Anthony, 80, since 1922. He was born in the house
seven years later and inherited it when his mother died.

"It hurt, because there was really a sentimental attachment there," Anthony
Franz said. "What got me mad was that I've got to go find another place to
die. I can't die in the old family mansion."

Duval's decision was hailed by several members of the state's Congressional
delegation officials.

"I am hopeful the federal government will work for a quick resolution to
this case, so these resilient citizens can close this horrible chapter and
move on with their lives," Melancon said.

"I hope that this ruling encourages the corps to reform the way that they do
business," said U.S. Sen. David Vitter, R-La. "For the people of greater New
Orleans who lost their loved ones and their homes during this horrific
storm, this news is too little too late. But perhaps this decision can serve
as a warning for the future and as a means to help bring some form of relief
to the victims of this storm."

U.S. Sen. Mary Landrieu.said, "In the coming days, I will be working
directly with President Obama to ensure that his administration understands
the implications of this decision and the immediate need for the government
to reach a final resolution for the people of New Orleans and St. Bernard

"This decision also confirms my belief that we need sweeping change to flood
protection, coastal restoration, and water management for our cities, large
and small, in Louisiana," she said. "The Corps of Engineers can no longer be
relied upon as the lone agency charged with protecting our coastal

Gov. Bobby Jindal said, "This ruling highlights the fact that Hurricane
Katrina's damage was exacerbated by the failure of the Corps of Engineers to
properly operate and maintain water resources projects in Louisiana. There
are very real and human implications of the failure to quickly solve
challenges and address vulnerabilities in our hurricane protection system. I
hope this decision will serve as a catalyst for the corps, Congress and the
administration to aggressively move forward on hurricane protection and
coastal restoration efforts in Louisiana."

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