On Friday, a New Orleans judge ruled that the federal government is liable for flooding damage caused by Hurricane Katrina. The New York Times reports that Judge Susan G. Braden of the Untied States Court of Federal Claims in Washington honed in on a canal known as the Mississippi River-Gulf Outlet (MR-GO) in her decision. The 76-mile canal was a navigation project built by the Army Corps of Engineers and associated with major flood damage after Hurricane Katrina struck on Aug. 29, 2005. Flooding greatly affected the Lower Ninth Ward neighborhood New Orleans and also damaged St. Bernard Parish nearby. Since the devastating hurricane passed, the canal has been closed.
According to NYT, Judge Braden called the canal a “ticking time bomb” because it has “substantially expanded and eroded” over time. She was highly critical of the Department of Justice, stating that the department had “pursued a litigation strategy of contesting each and every issue.” On the other hand, she commended the Corps of Engineers for their transparency in the matter.
The government is mostly immune to damages stemming from flood control projects; this made efforts to have the feds pay for flooding damage related to Katrina extremely difficult. “It is time for this final chapter of the MR-GO story to come to an end,” she wrote, according to NYT. Judge Braden has scheduled a hearing Wednesday to decide whether or not the issue can be evaluated by a mediator. She did not indicate how much the government should pay.
A previous judge ruled along the same lines, but was eventually overturned. NYT reports that federal judge Stanwood R. Duval Jr. ruled that the MR-GO was intended for navigation and not flood protection, making its damages different. This decision was initially affirmed by the United States Court of Appeals for the Fifth Circuit. However, this decision was withdrawn and Duval was overturned.
In her ruling, Judge Braden cited Arkansas Game & Fish Commission vs. United States, a 2012 Supreme Court decision finding that the federal government is liable for flooding related to its project under the takings clause.