MR-GO gets ready to go – Part 4: The Defense

Understanding the Defense of Robinson v Corps of Engineers requires two-column thinking related to the government sovereign immunity.  Judge Duval is of the opinion the immunity applies only to all decisions and actions related to the design and construction of the MRGO; (Column I), leaving, in the government’s words,  the only remaining actionable claim…whether the United States may be held liable for the Corps’ operation and maintenance of the channel; (Column 2).

The USA’s Trial Brief however, continues to press the claim that the United States is immune from this lawsuit and this Court lacks jurisdiction over the case.  The government defense strategy appears to be one of agreement with many of the Plaintiffs’ claims; but, with the perspective the claims represent actions and decisions protected by the immunity.  For example,

Bigger, stronger levees along the GIWW, the MRGO, and the IHNC could have prevented floodwaters from inundating Plaintiffs’ properties. Better operation and  maintenance of the MRGO could not have averted this tragedy and would not have prevented or lessened Plaintiffs’ alleged damage.

“Bigger, stronger levees” go in Column 1 as decisions and actions about construction are protected by the governments immunity, while “better operation and maintenance” would have been Column 2, unprotected.

Much to the government’s credit, however, there is no denial of what took place.

Plaintiffs indisputably suffered an indivisible harm in the form of floodwaters that
built up as a result of the presence of flood control project levees. The existence and failure of those levees are a necessary link in the causal chain of events that led to the flooding of Plaintiffs’ homes. It cannot be removed from the picture and is a necessary antecedent to any of the damages in this case.

It is too speculative to proportion the harm caused by the several variables, all of which are inextricably intertwined, and each of which, if removed from the causal chain, would eliminate the chain of causation altogether.

…While regrettable, the inescapable conclusion is that Plaintiffs’ damages were the result of floodwaters that the LPV flood control project failed to prevent. As such, the United States is immune from this lawsuit and this Court lacks jurisdiction over the case.

However, from that point forward and continuing in the supporting Proposed Findings of Fact and Conclusions of Law, admissions by the USA are related to decisions or actions that are or are represented as protected by the government’s immunity.

The massive breaching of the Reach 2 levee was not caused by the MRGO. Reducing the MRGO to its initial design dimensions would have made almost no difference in the surge. Studies performed by both Plaintiffs’ experts and Defendant’s experts demonstrate that every aspect of surge at the Reach 2 levee would have been unaffected by reducing the size of the channel. Onset, rate of rise, peak elevation, duration, and rate of fall would have been about the same.

The same lack of change was demonstrated through analysis of the effects of restoring wetlands near the MRGO to their pre-MRGO condition. No aspect of surge would have been much affected by reducing the size of the channel or restoring wetlands or doing both. Not even eliminating the MRGO in its entirety and eliminating all possible hydrologic effects of the channel would have prevented the massive overtopping that extensively breached the LPV levee between Bayou Bienvenue and Bayou Dupre.

Of course, the USA’s attorneys make those and other claims based on the opinion and evidence provided by those the Plaintiffs claim caused the problem, their “client” the US Army Corps of Engineers – even a position such as the one that follows:

The Corps of Engineers was warned many times prior to Hurricane Katrina that MRGO could function as a conduit for hurricane-driven surge and posed a threat to Greater New Orleans. The Corps investigated in response to these expressions of concern. Studies were commissioned by the Corps, and distinguished scientists reported that the channel would not substantially increase surge during a powerful hurricane. The Corps reasonably relied on the reports provided by these experts.

While no one can predict the outcome of  Robinson v US Army Corps of Engineers, those who follow the case will learn much about how our government operates and the extent we are protected by the work of the US Corps of Engineers.

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