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Judge Holds Federal Government Liable for Some New Orleans Flooding

May 6, 2015

Judge Susan G. Braden of the United States Court of Federal Claims in Washington has ruled that the federal government must pay for some of the flooding damage from Hurricane Katrina caused by failures of the hurricane protection system in New Orleans.

The judge focused her decision on a navigation project built by the Army Corps of Engineers, the Mississippi River-Gulf Outlet canal, known as MR-GO. The canal has been linked to devastating flood damage in the Lower Ninth Ward of New Orleans and damage to nearby St. Bernard Parish after the 2005 hurricane. The canal, which Judge Braden referred to as a "ticking time bomb," has since been closed, the New York Times reports. The judge wrote that the canal had "substantially expanded and eroded" over the years.

The judge had praise for the Corps of Engineers, writing that the corps had been "open, transparent and helpful in educating the court to understand what happened." But she was critical of the Department of Justice, saying it had "pursued a litigation strategy of contesting each and every issue." Justice Department spokesman Wyn Hornbuckle said the department is reviewing the ruling, according to the Times.

Until now, efforts to force the federal government to pay for flooding related to the hurricane protection system have been unsuccessful, because the government is generally immune to claims resulting from failures of flood control projects, the Times explains. The judge set a hearing for Wednesday to consider whether a mediator can determine how much the government should pay. "It is time for this final chapter of the MR-GO story to come to an end," Judge Braden wrote.

In 2009, Federal Judge Stanwood R. Duval Jr. ruled that damage related to the MR-GO canal was different because the canal's purpose was navigation, not flood protection, even though the canal was lined with levees. The United States Court of Appeals for the Fifth Circuit at first affirmed that decision but then withdrew that decision, overturning Judge Duval. The Supreme Court declined to hear the case. In her ruling, Judge Braden cited Judge Duval's findings, the Times reports. An attorney in the earlier case wonders whether the case will now be expanded to a class action.

Earlier cases were brought under the federal tort claims act, but this case was decided under the takings clause of the Fifth Amendment, which gives the government the power of eminent domain. Judge Braden relied on a 2012 Supreme Court decision, Arkansas Game & Fish Commission vs. United States, which allowed plaintiffs to recover for property damage from the federal government for flooding related to its projects under the takings clause.

Steve Bordelon, a plaintiff in the case called the decision "good news," according to the Times. He said that after the hurricane 10 feet of water washed through St. Bernard Parish, "We lost everything in the home and the business." He has since reopened his recreational vehicle business on the north shore of Lake Pontchartrain, on high ground.

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