[StBernard] Judge: Corps' MR-GO 'took' value of properties in St. Bernard, Lower 9th Ward

[Westley Annis]

Judge: Corps' MR-GO 'took' value of properties in St. Bernard, Lower 9th
Ward

Print Email Mark Schleifstein, NOLA.com | The Times-Picayune By Mark
Schleifstein, NOLA.com | The Times-Picayune 
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on May 01, 2015 at 2:47 PM, updated May 01, 2015 at 6:25 PM

A federal judge Friday ruled that the Army Corps of Engineers' construction
and absent maintenance of the Mississippi River-Gulf Outlet channel created
a "ticking time bomb" that magnified the effects of storm surge flooding in
St. Bernard Parish and the Lower 9th Ward of New Orleans.

That resulted in a "temporary taking" of the value of residential, business
and parish-owned property, including Rocky and Carlo's Restaurant, ruled
U.S. Court of Federal Claims Judge Susan Braden. That temporary taking
included flooding during Hurricane Katrina in August 2005, and intermittent
flooding during Hurricanes Rita in October 2005 and Hurricanes Gustav and
Ike in 2008.

The decision comes in a 10-year lawsuit filed against the corps by St.
Bernard Parish and private property owners, who alleged the MR-GO's
construction and shoddy maintenance illegally confiscated a portion of the
value of their property.

It's unclear how much the parish, nine individuals and eight businesses
listed as initial plaintiffs in the class action lawsuit might receive, or
how many properties would eventually be covered.

"I think it is premature to say how damages will be calculated, what the
amount will be or what credits the government might receive, if any," said
Carlos Zelaya, one of the attorneys representing the landowners.

Braden, who is based in Washington, D.C., urged the corps and the Department
of Justice to engage in settlement talks over the amount of money that
property owners, including St. Bernard Parish, should be granted.

"The Army Corps' construction, expansions, operation, and failure to
maintain the MR-GO caused subsequent storm surge that was exacerbated by a
'funnel effect' during Hurricane Katrina and subsequent hurricanes and
severe storms, causing flooding on Plaintiffs' properties that effected a
temporary taking under the Fifth Amendment to the United States
Constitution," Braden ruled.

A spokesman for the Justice Department on Friday said, "We're reviewing the
ruling."

In a statement, attorneys representing the parish and landowners said they
were pleased with the decision.

"Now that this important decision regarding the government's liability has
been issued, we look forward to further proceedings to resolve this case and
to ensure that property owners in St. Bernard Parish and the Lower Ninth
Ward obtain the relief to which they are entitled under our Constitution,"
the attorneys' statement said. 

St. Bernard Parish President David Peralta said he expects that his
administration and the Parish Council will come up with ideas for projects
to be paid for with any money coming from a settlement of the case. He said
they would like to see some of the money used for restoration of wetlands in
the MR-GO pathway, for projects to reduce storm surge, and for park and
recreation projects in the parish.

"We are the buffer for New Orleans, lets face it," Peralta said. "As we go,
the rest of the metro area goes."

As part of a congressionally-mandated study that was part of damming the
MR-GO, the corps estimated it would take about $3 billion to restore
wetlands along its 72-mile path. Last year, the state of Louisiana sued the
corps over its refusal to move forward with that restoration plan without a
commitment from the state to pay 35 percent of the cost. The state contends
that Congress required the corps to pay the full cost of restoration.

Justice Department objected to settlement conference

The Justice Department on Thursday renewed its objection to a May 6
settlement conference Braden scheduled in federal court in New Orleans,
saying it needs more time to study the ruling. The department had objections
-- in advance of Braden's Friday ruling -- to what seemed to be suggestions
that property values should be linked to local tax bills.

The settlement hearing is closed to the public, according to the ruling.

In her ruling Friday, Braden said the problems caused by the Corps-built
shortcut between the Gulf of Mexico and New Orleans' Industrial Canal began
in 1956, when Congress authorized the MR-GO's construction, and that the
corps was warned by both its own staff and by others that the expansion of
the navigation channel and lack of maintenance was increasing the threat of
flooding.

Warnings about potential flooding caused by the channel dated back to Sept.
3, 1957, she wrote, when the St. Bernard Tidal Channel Advisory Committee
"warned the Army Corps and the public at large that '(d)uring times of
hurricane conditions, the existence of the (MR-GO) will be an enormous
danger'" to St. Bernard "'due to the rapidity of the rising waters reaching
the protected areas in full force through the avenue of this proposed
channel.'"

She said that the plaintiffs in the lawsuit showed that the corps'
construction, expansions, operations and failure to main the MR-GO were
linked to the significant increase in storm surge and flooding during
Katrina and later hurricanes and other severe storms. Those storms included
Rita in 2005, and Hurricanes Gustav and Ike in 2008. Congress deauthorized
the MR-GO navigation channel in 2008, and the corps dammed its southern end
in 2009.

A 'ticking time bomb" 

Braden wrote that the MR-GO contributed to increased salinity and loss of
habitat, including wetlands, eroding natural protection and increasing
flooding risk. She also said the channel increased storm surge because of
its "funnel effect," as the MR-GO channeled water to the intersection with
the Gulf Intracoastal Waterway, with water rising there between levees in
St. Bernard and New Orleans.

"Certainly by 2004, the Army Corps no longer had any choice but to recognize
that a hurricane inevitably would provide the meteorological conditions to
trigger the ticking time bomb created by a substantially expanded and eroded
MR-GO and the resulting destruction of wetlands that had shielded the St.
Bernard Polder for centuries," Braden wrote.

Those problems, the judge said, lasted through Hurricane Katrina in 2005,
when storm surge caused catastrophic flooding on private property, along
with the loss of human life.

But the problems continued after Katrina, she said, as shown by testimony
during a trial to review potential damages for a small set of the thousands
of landowners in St. Bernard and the Lower 9th Ward.

"Specifically, after Hurricane Katrina, approximately sixteen percent of
Plaintiffs'
properties, located within the federal levees and the Forty Arpent Levee in
St. Bernard Parish and the Lower Ninth Ward, flooded three times,
thirty-nine percent flooded twice, and forty-five percent flooded once, i.e.
totaling 100%," she said.

Braden explained that she coordinated the trial in the constitutional
takings case with the more than 400 traditional damages lawsuits brought
against the corps in federal court in New Orleans.

Those cases were almost all dismissed. Some were dismissed by an early
ruling from U.S. District Judge Stanford Duval Jr., who said the corps was
immune from damages caused by flooding resulting from failures in water
control structures -- levees and walls -- because of a clause in the 1928
law governing water control structures.

Other suits were dismissed in a later ruling by the U.S. 5th Circuit Court
of Appeals, which said the corps was immune under federal tort claims
statutes for damages caused by construction and maintenance of the MR-GO
because of a provision allowing the agency to use its discretion in
designing and maintaining projects.

Takings case not stopped by corps immunity

But the taking case gets beyond those immunity claims because it is based on
the U.S. Constitution, and not federal law, Braden said. The 5th Amendment
reads, in part, "...nor shall private property be taken for public use,
without just compensation."

Braden said a 2012 U.S. Supreme Court case, Arkansas Game & Fish Commission
v. United States, also applied to the MR-GO case. In the Arkansas case, the
Supreme Court said "that government-induced flooding temporary in duration
gains no automatic exemption from Takings Clause inspection."

In 2008 and 2011 rulings, Braden had already found that landowners in St.
Bernard and the Lower 9th Ward had presented enough evidence that damage to
their property was caused by MR-GO.

Braden praised corps officials for their cooperation during the lawsuit,
which was filed in October 2005, soon after the storm. But she was critical
of the Justice Department. 

"The Department of Justice pursued a litigation strategy of contesting each
and every issue - whether evidentiary or substantive," she said, and urged
Justice officials not to appeal her ruling.

"It is the considered view of the undersigned judge that further litigation
in this matter is not in the interest of the Army Corps and will not serve
the interests of justice," she wrote. "It is time for this final chapter of
the MR-GO story to come to an end."

The individual plaintiffs in the lawsuit include Rocco and Tommoso "Tommy"
Tommaseo, Steven and Cynthia Bordelon, Edward and Brad Robin. Edward "Pete"
Robin Jr., and Gwendolyn and Henry Adams. The business plaintiffs include
Rocky and Carlo Inc., Steve's Mobile Home & R.V. Repair, Inc.; Robin
Yscloskey Development #1, L.L.C; Robin Yscloskey Development #2, L.L.C.;
Robin Yscloskey Development #3, L.L.C.; Robin Yscloskey Development #4,
L.L.C.; Robin Seafood Company, Inc.; and Port Ship Service, Inc.