[JURIST] A judge in the US District Court for the Eastern District of Louisiana [official website] on Friday denied [order, PDF] a motion by the US Army Corps of Engineers (USACE) [official website] to dismiss a lawsuit [materials] brought by Louisiana homeowners for damages suffered as a result of flooding during Hurricane Katrina [JURIST news archive] in 2005. The plaintiffs, five homeowners who brought suit in 2007, argue that the Corps was negligent in its protection of flood-prone Louisiana areas due to defects in the Mississippi River Gulf Outlet (MRGO) [USACE backgrounder]. The Corps filed a motion to dismiss the case based on the theory that the MRGO defects were caused by the Corps' discretionary functions, which are immune from lawsuit under the discretionary function exception [28 USC § 2680] of the Federal Tort Claims Act [text]. In denying the government's motion to dismiss the lawsuit and allowing the case to proceed to trial, Judge Stanwood Duval wrote
Plaintiffs sought to preclude the government from raising the discretionary function exception based on the first inquiry required for its application - that certain federal statutes, regulations and policies specifically prescribed a course of action for the Corps to follow and that the Corps had no choice but to adhere to those directives. The Court has found that the [Fish and Wildlife Conservation Act] does not provide such a bar; however, with respect to teh [National Environmental Policy Act], Plaintiffs demonstrated that there are material questions of fact that the Corps itself had found that the environmental damage caused by the maintenance and operation of the MRGO was significant, such that it had no choice but to file the appropriate mandated reports. As such, if the Court is convinced at trial that the Corps indeed violated a mandate and is precluded from its protection, then Plaintiffs will still bear the burden to prove that this failure caused the damages sought.Duval previously allowed the lawsuit to proceed in May 2008, when he ruled [JURIST report] that that the outlet was a shipping channel and not a flood control outlet in connection with which the Corps would have been properly immune in tort, and rejected the Corps' argument that the MRGO was nonetheless part of a larger flood control system in the New Orleans area. Duval made a similar ruling [JURIST report] in February 2007 in the context of an earlier motion to dismiss. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [Washington Post report].