[StBernard] Payouts seem likely in lawsuit involving St. Bernard and Lower 9th Ward Katrina damages

[Westley Annis]

Payouts seem likely in lawsuit involving St. Bernard and Lower 9th Ward
Katrina damages

Mark Schleifstein, NOLA.com | The Times-Picayune By Mark Schleifstein,
NOLA.com | The Times-Picayune 

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on April 22, 2015 at 8:24 PM, updated April 22, 2015 at 8:48 PM

A 10-year-old lawsuit over whether the Army Corps of Engineers took a
portion of the value of land in St. Bernard Parish and the Lower 9th Ward of
New Orleans through flooding caused by the building of the Mississippi
River-Gulf Outlet looks like it could end with financial payments for at
least some of the landowners, according to an order issued by a federal
court in Washington, D.C. on Wednesday.

The order, issued by U.S. Court of Claims Judge Susan Braden, says she plans
to issue an opinion and order concerning the case on or before May 4, and
will convene a settlement hearing in U.S. District Court in New Orleans on
May 6 "to facilitate a potential resolution of the damages in this case ..."

The order directs Col. Richard Hansen, commander of the New Orleans District
office, attend the conference, along with corps and Department of Justice
attorneys.

"The settlement conference is expected to conclude within ninety minutes,"
she wrote.

Braden said she plans to examine property tax records "for at least St.
Bernard Parish and Orleans Parish" on May 4 and possibly May 5, and ordered
federal officials "to make the necessary arrangements" with her staff.

Braden last year oversaw a series of court proceedings to hear evidence from
property appraisal experts about flood damage experienced by home and
business owners in St. Bernard Parish and the Lower 9th Ward.

In 2009, she ruled that the class action "takings" case could continue,
after federal attorneys contended it was filed too late, since the MR-GO was
completed in 1965, and the statute of limitations should have run its course
six years later.

The lawsuit was filed in August 2005 and contends that continuing
environmental damage resulting from construction of the MR-GO by the corps
left the plaintiffs vulnerable to flooding.

Those plaintiffs included the St. Bernard Parish government and the owners
of Rocky & Carlo's Restaurant in Chalmette.

When the MR-GO was opened as a short-cut for vessels from the Gulf of Mexico
to the Industrial Canal in New Orleans, it was quickly criticized for
destroying wetlands on the eastern edge of St. Bernard. The navigation
channel was closed in 2009 after being deauthorized by Congress in the
aftermath of Hurricane Katrina.

A separate damages lawsuit filed by property owners that also claimed the
MR-GO was at fault was thrown out by the 5th U.S. Circuit Court of Appeals
in September 2012 because of a provision in a law governing suits against
the federal government that protects an agency when it makes a discretionary
decision.

Another lawsuit involving flood damage caused by the failure of floodwalls
along drainage canals in New Orleans during Hurricane Katrina was dismissed
by U.S. District Judge Stanwood Duval Jr., who ruled the corps was given
immunity from damages caused by failures of levees by a 1928 law governing
construction of flood protection projects.

This takings lawsuit, however, is based on the U.S. Constitution's Fifth
Amendment, which provides "private property (shall not) be taken for public
purpose, without just compensation."

In her 2009 ruling, 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 delayed bringing the case to trial until the other more traditional
damages suits had been tried and appealed.

U.S. Court of Claims Judge Susan Braden's Apr. 22 ruling:
http://www.nola.com/environment/index.ssf/2015/04/settlement_talks_scheduled
_in.html

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