Mississippi-Gulf River Outlet Suit Can ContinueAug 5, 2009 | Parker Waichman LLP
A federal judge just ruled for plaintiffs in the continuation of a lawsuit charging the federal government with “taking” the value of their land following catastrophic Hurricane Katrina flooding caused by the building of the MR-GO, reported Nola.com.
The landmark trial blames the Army Corps of Engineers for much of the Louisiana flooding. The plaintiffs—six hurricane survivors—allege the Corps was negligent in building and maintaining the Mississippi River-Gulf Outlet (nicknamed MR-GO), allowing Katrina’s storm surge to flood parts of New Orleans and St. Bernard Parish.
MR-GO was built in 1965 to allow ships easier access between New Orleans and the Gulf of Mexico with the Corps cutting through 76 miles of swamp and wetlands that once served to protect the Crescent City from destructive storm surges, like the one that accompanied Katrina. Critics claim MR-GO acted as a funnel, pulling much of Katrina’s surge into the city. According to Nola.com, the MR-GO was immediately met with criticism for its destruction of some the wetlands. The lawsuit sites the U.S. Constitution’s Fifth Amendment, said Nola.com: "private property (shall not) be taken for public purpose, without just compensation."
The Corps argued that federal law allows it immunity from lawsuits—a concept called sovereign immunity—and it properly maintained the waterway. Earlier this year, a federal judge rejected that argument, saying there were “substantial questions of fact with respect to the actions and inactions that followed the creation of the channel.” Now, Court of Federal Claims Judge Susan Braden, says the suit can continue, despite that federal attorneys argue the case was filed after the six-year statute said Nola.com.
In 2004, the Louisiana Coastal Area Ecosystem Restoration Study sought federal funding to rebuild channel wetlands; the Corps "acknowledged the urgency of the situation," she said, reported Nola.com. In 1957, the Corps did not comply with federal mandates requiring U.S. Fish & Wildlife Service approval and did not answer when the project was “repeatedly” met with objections, including from the St. Bernard Parish government, which called for closing of the MR-GO, said Nola.com, citing the judge.
The class-action case, filed a month and a half after the Katrina flooding in August 2005, contends that continuing environmental damage from construction of the MR-GO by the Corps left the plaintiffs—including the St. Bernard Parish government and owners of Rocky & Carlo's Restaurant in Chalmette—vulnerable to flooding.
According to Judge Braden, it was the results seen in the massive 2005 flooding that indicated the plaintiffs are due their day in court. The judge also delayed the case, pending U.S. District Judge Stanwood Duval’s ruling in another case, expected early next month in which MR-GO is blamed, in part, for Katrina flood damage in the two areas, said Nola.com. Judge Braden implied the delay could involve a ruling that may compensate plaintiffs in her case for MR-GO, said Nola.com.
Although federal attorneys argue that “parish leaders, residents, and businessmen” either knew or should have predicted the MR-GO could have experienced massive flooding in advance of the statute, Judge Braden said that understanding was impossible since flooding effects changed as the wetlands “eroded,” reported Nola.com. Citing the Judge’s decision, Nola.com quoted, "In this case, the record evidences that the north bank of the MR-GO was not 'stabilized' in 1998 … that between 1968 and 2006, the surface width of the MR-GO increased up to 15 feet each year."
The MR-GO was officially closed this year with the building of a 433,500-ton rock dike, said TheAdvocate.com and Nola.com.