In Re Katrina Canal Breaches Litigation
After Hurricane Katrina, some residents of New Orleans argued the Army Corps of Engineers had improperly maintained the MRGO (Mississippi River Gulf Outlet), dredging it to keep it navigable but not ensuring the levies were properly maintained.
Judge Duval in the Eastern District, in his lengthy and careful decisions, found the Corps was not immune from some lawsuits, but not all. He found the 1928 Flood Control Act made the Corps immune when flood protection projects failed, but failure to maintain the MRGO was not under the 1928 Flood Control Act and the Corps was not immune.
The Fifth Circuit upheld Judge Duval’s ruling on almost all counts. The only distinction involved when the 1928 FCA applies and the government is immune. Judge Duval used a ‘categorical’ approach, concluding the Corps is immune whenever “damage is caused by flood waters emanating from a flood control project.” The Fifth Circuit granted slightly broader immunity. It held “we recognize immunity for any flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control.” However, even under this looser standard, the Fifth Circuit found flooding from the MRGO was not a flood control project.
The Fifth Circuit’s opinion leaves open the possibility of damages, but not the amount–trials on that issue will follow.
Author: Harry Morse