"the weather is here I wish you were beautiful…"

Actually, the weather was here – this is the Mississippi River Gulf Outlet at the center of the legal storm known as Robinson v Corps of Engineers – the case the Editilla of the Ladder and I have been trying to get a handle on.

Understanding the case requires a basic understanding of the geography of New Orleans – giving an advantage to Editilla and the Ladder. I once sat through an entire Sugar Bowl virtually alone at the wrong end of the stadium; so, you can safely say I have had a lot to learn.

I recommend the interactive map produced by the Times Picayune for those similarly challenged – although I doubt there are many.

I also recommend you read the post that went up over the weekend when I was under the impression the big story was related to the lead attorney, not the case, and that you check out the case website.

The flooding of New Orleans following Katrina is widely associated with the levees built for flood control by the Corps of Engineers. US District Court Judge Stanwood Duval dismissed the suit filed over the breech of the levees earlier this year – eloquently.

While the United States government is immune for legal liability for the defalcations alleged herein, it is not free, nor should it be, from posterity’s judgment concerning its failure to accomplish what was its task…

This story–fifty years in the making–is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the Corps’ own calculations…

The cruel irony here is that the Corps cast a blind eye, either as a result of executive directives or bureaucratic parsimony, to flooding caused by drainage needs and until otherwise directed by Congress, solely focused on flooding caused by storm surge.

It is not within this Court’s power to address the wrongs committed. It is hopefully within the citizens of the United States’ power to address the failures of our laws and agencies. If not, it is certain that another tragedy such as this will occur again.

He then ordered plaintiffs [to] amend the MRGO Master Complaint no later than February 28, 2008, to contain any and all allegations contained in the Superseding Master Consolidated Class Action Complaint (Doc. 3420) which it wishes to pursue that are not already contained therein.

At this point, it’s easier to grasp the present status to go back and pick up the second Complaint (the first is linked at the top of the post). In the second, the plaintiffs were joined by the State of Louisiana in requesting injunctive relief to prevent further damage. Aside from actually joining the suit, a host of others also filed claims against the Corps – creating some confusion in my first post and a lot more with all the traffic on deadline day last March when cars lined up to hand claims to Corps staff.

Submitting a claim for a staggering $77 billion, the city of New Orleans joined tens of thousands of would-be plaintiffs who rushed to beat a Thursday deadline to alert the Army Corps of Engineers that they may sue for losses resulting from the levee breaches after Hurricane Katrina.

Also joining the queue were Entergy New Orleans, the city’s bankrupt electrical utility, which is seeking $655 million, and the New Orleans Sewerage & Water Board, which put in a claim of about $460 million, spokesmen for the agencies said.

While they are likely to be among the largest filed, the three claims became part of an avalanche of paperwork that poured into the corps’ Leake Avenue headquarters as Thursday’s 11:59 p.m. deadline approached, corps personnel said.

By the time of the morning commute, cars already had clogged the two-lane River Road and miles of connecting arteries. The miles-long traffic jam got so thick that the federal agency established satellite pick-up points on Carrollton Avenue and Magazine Street.

“We took people out of offices to help out: engineers, lawyers, secretaries, you name it,” spokesman Chris Accardo said. “At one time, we might have had 50 people out there.”

Hours before the cut-off time, enough bags and boxes of claim forms had arrived to fill an 8-by-10-foot room, corps spokeswoman Kathy Gibbs said.

The rush was caused by Judge Duval’s Order issued in a month earlier and linked above as dismissal.

Until recently, the idea of suing the Army Corps of Engineers was dismissed by most lawyers as a non-starter. They pointed to a 1928 federal law immunizing the corps from lawsuits stemming from its flood-control projects.

But early last month, U.S. District Judge Stanwood Duval ruled that the corps has no such protection when it comes to lawsuits over problems caused by its navigation projects.

That decision kept alive a 2006 lawsuit filed against the corps by WDSU-TV anchor Norman Robinson, a Lower 9th Ward couple and two St. Bernard Parish residents, and raised prospects of success of similar cases.

Imagine what the traffic would have been like had deadline day been in May after Duval issued an Order ruling the Corps’ immunity from claims related to levee caused flood damage; i.e., flood control projects, did not apply to navigation projects constructed by the agency – a decision that allowed Robinson v Corps of Engineers to move forward.

Here’s where a knowledge of the geography of New Orleans comes in handy.

Plaintiffs contend that because of the Corp’s negligence in designing, construction, maintenance and operation of MRGO, it caused the surge during Hurricane Katrina
to be 3 feet greater than it would have been otherwise. Plaintiffs argue that the cause of that increase was that: (1) the loss of the surrounding wetlands with the creation of MRGO; (2) the failure of the Corps to armor the banks of the MRGO which caused further harm to those wetlands and (3) the “funnel effect” created the design of the MRGO and its relationship to other waterways surrounding the metropolitan New Orleans area.

If you look closely at the map found on page 12 of the Order, you can see where it was possible to actually label the funnel and how the navigation project acted to pour more water into the city of New Orleans without the protection of the wetlands.

Wetlands generally are recognized to reduce the intensity of storm surges as the wetlands act as a “sponge” creating friction slowing the wave and tidal action. Plaintiffs maintain that because the Corps failed to take necessary precautions to protect the wetlands surrounding Lake Borgne when it cut this channel through the marsh, and its failure to “armor” MRGO’s banks to prevent further erosion of the marsh, salt water intrusion and ship wakes caused the destruction of a substantial portion of that protective shield. With the virtual destruction of those wetlands, the intensity of the surge increased…

In light of the statements Duval made when he ruled federal law provided the Corps immunity from claims of flooding caused by the failure of the levees constructed to protect the City, his more favorable ruling would have been questionable had it not been so well-researched and documented – and limited.

In order to analyze properly whether § 702c should apply to damages allegedly caused by the MRGO, a brief overview of each project’s history and scope is required. Each project served a different purpose. Ultimately, the actual relationship between the two informs the decision as to whether §702c Flood Control Act immunity should apply to harms caused by a navigational channel.

The convergence of the two navigation channels [GIWW and MRGO], and the levee systems built along their banks, created what has widely been described as a ‘funnel,’ with the mouth open to Lake Borgne on the east, that favors the amplification of surges generate by cyclones tracking over the city or to the east.

The throat of this funnel is the 6 mile portion of the MRGO channel that was constructed inside the original GIWW right of way…

IT IS ORDERED that Defendant United States’ Renewed Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. 10378 ) and United States of America’s Motion…are DENIED to the extent that the United States may be held liable for damages caused by negligence which occurred extrinsic to the LPV. [Vicinity Hurricane Protection Project (“LPV”),3 a flood control project subject to the immunity granted under § 702c.]

IT IS ORDERED that the Plaintiffs’ Motion for Summary Adjudication Concerning Defendant United States’ Second Affirmative Defense of Immunity Under 33 U.S.C. § 702 (Doc. 10337) is GRANTED insofar as the United States may be found liable for damages caused by its negligence that are extrinsic to the LPV and the Motion is DENIED in all other respects.

What does the future hold? The case will go to trial in early January. While some are certain to say the end result will be the six named defendants and their legal team sharing a fortune in damages, the desired outcome speaks to a desire for public good.

The lawyers’ strategy is to obtain a judgment of liability for their six clients that will persuade Congress to establish a Katrina Victims’ Compensation Fund. “Congress must appropriate the tens of billions of dollars needed to rebuild our communities and the shattered lives of over half a million citizens,” noted Calvin Fayard, one of Louisiana’s most respected trial lawyers. “To date the federal government has earmarked only a pittance for Katrina Victims. This unprecedented tragedy requires unprecedented relief efforts over many years.”

Perhaps the next time the weather is here, there will be no need to wish for the beautiful and grieve.

10 thoughts on “"the weather is here I wish you were beautiful…"”

  1. Wow! What a great post! I went over by the MRGO 10 months after Katrina and saw the huge shrimp boat that lay on the street not far from the levee there. I’ll see if I can find it when I get home.

    On edit: I forgot to say I took a picture of it and I’ll see if I can it (the picture, not the huge shrimp boat — no, I didn’t take the shrimp boat home). 707!

  2. This is an excellent post! I had to hang it right beneath the Other slabbed link! Didn’t know what to do. Yikes.

    BTW, the name is Editilla in public. I really appreciate the nod.

  3. Thanks Editilla, I don’t speak Louisiana very well but you’re pushing me up that Ladder, too. When we first discovered you (or you us) Sop had to translate for me; but, I’m catching on (slowly).

  4. I reeeally hate to still be a nuisance here but that “Robinson et al” link at the top still does not work and I really want to see what it says.
    I found this one. Is it the same?
    This link could be getting kinked in the “snap thingy” as it shows up there (in the little cursur/flash picture box) but does not go there. This could be my ‘puter but I doubt it.
    Again, sorry to be a nuisance. (Prefer nuance:)
    all the other links work fine I t’inks.

  5. OK, took the link down and put it back up, try now.

    Also made correction to Editilla and added another type of link to the complaint deeper in the post – paragraph above the black and white map.

  6. Darn. Maybe it really is my ‘puter since I can’t get to that link in your comment either. Dog!
    I can’t figure it out on this end and my hacker is out of town right now.
    D’OH Well…

  7. It’s an adobe PDF file Editilla. Try right mouseing the hyperlink and choose “Save Target As” (IE 6/7) then open it outside your web browser.


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