Judge rejects Army Corps of Engineers immunity over Katrina Associated Press

Published: Saturday May 3, 2008



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Print This Email This By CAIN BURDEAU NEW ORLEANS (AP)  The Army Corps of Engineers can be held liable for flood damage caused by a "hurricane highway," a navigation channel that is believed to have funneled Hurricane Katrina's storm surge into the city, a federal judge ruled Friday. The Corps of Engineers had argued that it was immune from liability because the channel is part of New Orleans' flood control system. The law says the federal government cannot be sued if something goes wrong with a flood control project such as a levee, reservoir or dam. Judge Stanwood Duval dismissed that argument, saying the Mississippi River-Gulf Outlet, or MRGO, was clearly a ship channel and not a flood control project. Plaintiffs' lawyers said Duval's decision is a victory for homeowners, who have suffered setbacks in their efforts to hold the government legally responsible for storm damage. They also said it clears the way for a Sept. 8 trial. The corps "threw everything they had at us, every legal argument they had, their spin on the facts," said Pierce O'Donnell, one of the lead plaintiffs' attorneys. In January, Duval ruled that the corps was entitled to immunity over flood damage from levee breaches elsewhere in New Orleans. The government had claimed its immunity should extend to the MRGO, but Duval said that channel and the levee system are separate projects with different funding methods and purposes. "The United States should not be immunized for a tort which occurred from an activity unrelated to a flood control project," Duval wrote Friday. "Taken to its logical conclusion, such a policy would yield absurd results." Duval heard arguments from lawyers on both sides in March. Charles Miller, a spokesman for the Justice Department, said he couldn't immediately comment on Duval's ruling because the department was still reviewing it. Duval issued a similar ruling in February 2007, when he denied a motion by the government to dismiss the case. Friday's ruling was significant because Duval was not swayed by subsequent testimony or by evidence the corps brought to have the case thrown out. The MRGO suit was filed by five residents whose homes flooded after the August 2005 hurricane. The suit charges the agency with ignoring repeated warnings that the MRGO turned into a "hurricane highway," funneling Katrina's storm surge into St. Bernard Parish and New Orleans and overwhelming levees and flood walls. The 76-mile shipping channel was built about 40 years ago as a shortcut to New Orleans. For years, environmentalists and emergency planners have blasted the channel as a destructive force because it has eroded enormous tracts of wetlands and increased the threat of flooding. The Corps of Engineers has acknowledged that the channel contributed to the region's flooding, and the agency is coming up with a plan to plug it. Associated Press writer Michael Kunzelman contributed to this report.