Fifth Circuit rules Army Corps of Engineers liable for Katrina damage

[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Friday affirmed [opinion, PDF] that the US Army Corps of Engineers (USACE) [official website] is liable to a number of Louisiana property owners for its inadequate work on a shipping channel that caused billions of dollars in damage as a result of Hurricane Katrina [JURIST news archive]. While USACE argued that it should be entitled to immunity from such lawsuits under the Flood Control Act of 1928 [text], the court disagreed, finding that the Corps had not properly maintained the Mississippi River-Gulf Outlet (MRGO) [USACE backgrounder], a New Orleans navigation channel that suffered tremendous flood damages. In upholding a 2009 decision [JURIST report] by the US District Court for the Eastern District of Louisiana [official website], the Fifth Circuit found that USACE had made "negligent decisions" that "rested on applications of objective scientific principles and were not susceptible to policy consideration." Reasoned the court:

At points where it could have mattered, the Corps did not identify MRGO's ability to aggravate the effect of a major hurricane. This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.
In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000.

Since Katrina, USACE has received about 500,000 other similar administrative claims, and attempted to dismiss this case on several occasions. In March 2009, federal judge Stanwood R. Duval Jr. found [JURIST report] that material questions of fact existed as to a potential violation of USACE's mandate that, if proven, would preclude it from protection under the Federal Tort Claims Act [text]. In May 2009, Duval ruled [JURIST report] that the MRGO is a shipping channel rather than a flood control outlet, which would have given USACE immunity in tort actions. In a similar instance in February 2007, Duval denied USACE's motion to dismiss, which argued that the MRGO was part of a larger flood control system in New Orleans rather than strictly a shipping channel. 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 [WP report].

 

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