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Judge: Corps can be sued over flood

Feb 3, 2007 | The Army Corps of Engineers can't assert immunity in a lawsuit over the catastrophic flooding following Hurricane Katrina, because of the plaintiffs' claim that flooding stemmed from the agency's negligence in fixing defects in the Mississippi River-Gulf Outlet navigation project that it had known of for years, a New Orleans federal court judge ruled Friday.

U.S. District Judge Stanwood Duval's ruling cleared the way for WDSU-TV anchorman Norman Robinson, a Lower 9th Ward couple and two St. Bernard Parish residents to press for trial of a lawsuit blaming Army Corps of Engineers negligence for the flooding that destroyed their homes in Hurricane Katrina.

The plaintiffs' legal team said the case could go to trial by early next year, after Duval rejected corps arguments that the case should be tossed out because federal law makes the agency immune from lawsuits over its flood control projects and policy decisions.

Duval said the suit brought by Robinson and his fellow plaintiffs targets not a flood control project but what it calls the corps' negligent failure to fix defects in a navigation project it built years ago, the 70-plus-mile-long Mississippi River-Gulf Outlet shipping channel.

That inaction, the suit claims, caused destruction of more than 100 square miles of wetlands that once protected the area from storms and turned the channel into a superhighway that funneled Katrina's levee-bursting tidal surges into their homes.

"This is a landmark victory for Katrina victims in New Orleans and St. Bernard Parish," said one of the plantiffs' lawyers, who heads the team of lawyers from 20 firms around the nation that filed the case last spring.

"In a courthouse in New Orleans, because of Katrina, a judge has stood up and said the (U.S.) Constitution means what it says the government can't take your property without just compensation," the attorney said.

Individuals hoping to share in whatever compensation the corps may be ordered to pay must, by Aug. 31, send the corps what's called a Form 95 signaling their intent to sue the agency.

One of the plaintiffs'attorney representative on a committee helping plan for trial of all Katrina-related case on Duval's docket, said the MR-GO case ruling will be useful for court challenges to more than 100 corps-built levees around the nation that a recent study deemed unsafe.

But in the near term, a plantiffs' attorney said, Friday's ruling in the MR-GO case could buttress his plans for a new federal lawsuit aimed at holding the corps responsible for the 17th Street Canal floodwall break that left 80 percent of New Orleans flooded after Katrina.

One of the plantiffs' attorneys said the suit will claim that the corps gave the city Sewerage & Water Board a permit to dredge the 17th Street canal, work that allowed water to undermine soil beneath the floodwall, ultimately causing the wall to break.

"We believe (the canal dredging) was a navigation project and not a flood control project," said a plaintiffs' attorney.

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