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Final Katrina negligence case goes to trial

The civil suit against the U.S. Army Corps of Engineers will be heard by a judge after others have been thrown out. It could result in up to $100 billion in settlements to hurricane victims.

April 20, 2009|Richard Fausset

ATLANTA — A federal judge in New Orleans today will hear what lawyers call "the last case standing" against the U.S. Army Corps of Engineers for its alleged failure to protect New Orleans from Hurricane Katrina's floodwaters nearly four years ago.

The civil negligence suit was originally filed in April 2006 by five New Orleans-area residents.

They are limited to relatively small damages from the government if they win.

But a victory could result in settlements for tens of thousands of New Orleans residents who have filed claims for personal injury, property damage and wrongful death since the epic flood on Aug. 29, 2005.

"This is sort of the Exxon Valdez litigation of the government liability field," said Oliver Houck, director of Tulane University's Environmental Law Program. "There's never been a case for this much in damages to so many people from such a gross act of government malfeasance."

In 2008, Justice Department officials determined that the federal government could be forced to pay as much as $100 billion in damages over Katrina-related claims and court cases.

Any such payouts would come on top of the more than $34.5 billion in federal rebuilding aid that has been spent or promised for Louisiana, including billions in grants to rebuild damaged homes.

At the heart of the lawsuit is a widely derided navigational channel, built and operated by the Corps, called the Mississippi River-Gulf Outlet. The plaintiffs claim that faulty construction and maintenance of the channel were key causes of the flooding in three of the hardest-hit neighborhoods -- the Lower 9th Ward, New Orleans East and St. Bernard Parish.

The canal, known locally as MRGO, was completed in the early 1960s as a shipping shortcut between New Orleans and the Gulf of Mexico. Before Katrina, many locals and some hurricane experts warned that the destruction of wetlands around MRGO eliminated a key brake on advancing storm surges, and created a funnel effect that intensified the surges. The plaintiffs contend that Katrina proved the experts right.

In a court filing, lawyers for the government claimed that "this catastrophic flood would have occurred with or without MRGO."

After Katrina, the government decided to decommission MRGO. A 433,000-ton rock barrier is being built near the gulf entrance to halt ship traffic and prevent inland intrusion of saltwater, which environmentalists blame for killing off the wetlands. Congress has also asked the Corps to produce a plan for restoring the canal to something close to its native state.

It couldn't come soon enough for environmentalists.

"MRGO caused the demise of the coast east of New Orleans," said Carlton Dufrechou, executive director of the Lake Pontchartrain Basin Foundation, a local environmental group. "Did that add to the cause of the disaster? Heck, yeah."

Others have noted that there were many other reasons that the city was inundated, arguing that some of the blame lies with local officials who also had some oversight of the city's complex flood-control system.

But focusing on MRGO has helped plaintiffs' lawyers keep the case alive when other cases have died. A number of cases that blamed the Corps for the flooding were thrown out because of a provision in the federal Flood Control Act of 1928, which largely prohibits lawsuits against the government when flood protection projects fail.

Lawyers successfully argued in pretrial proceedings that MRGO was a navigational project, not a flood-control measure, and therefore should not be immune. The government, meanwhile, argues that other sections of federal law grant it immunity from the suit. The abstruse legal arguments that flow from their contentions will likely be a major part of the case.

Much of the rest of the four-week trial -- which will be heard by the judge, not a jury -- will be equally complex, as the two sides argue over the extent to which MRGO was responsible for the flooding.

Pierce O'Donnell of Los Angeles, one of nine plaintiffs' lawyers, said that if his team won, he would petition Congress to craft a global settlement for the payment of the New Orleans claims. He said the government had arranged similar settlements for disasters in which it was at fault, and even paid victims in instances when it was not, like the Sept. 11 terrorist attacks.

But the government would certainly appeal, kicking off a lengthy legal process.

Still, flood victims like Julie Ricks will be following the trial closely.

The 38-year-old bar manager said she received little federal aid after Katrina because her St. Bernard Parish home was a rental -- and renters weren't eligible for grants to rebuild homes.

Her well-paying job before Katrina was eliminated after the storm.

To make ends meet, she is supplementing her income with food stamps.

The claim Ricks filed with the Corps listed about $80,000 in damages. Today she needs that money "just to survive."

"I'm going to be paying attention to this trial," she said. "We all are."

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richard.fausset@latimes.com

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