A federal judge in Washington ruled Monday that plaintiffs can go forward with a lawsuit charging the federal government with “taking” the value of their land in St. Bernard and the Lower 9th Ward through flooding caused by the building the Mississippi River-Gulf Outlet.
Court of Federal Claims Judge Susan Braden, appointed by President George W. Bush, refused to dismiss the lawsuit, which federal attorneys contended was filed too long after the six-year statute of limitations in such cases should have run its course.
Mark Schleifstein had the story – Mississippi River-Gulf Outlet lawsuit can go on, judge says – for the Times-Picayune. Glancing at reader comments on this and related stories shows some take exception to Judge Braden’s Republican connections. However, her resume indicates no one should sell Susan Braden short:
In July 2009, Judge Braden was appointed as a Member of the Standing Committee on Ethics and Professional Responsibility-Judges Advisory Committee to the American Bar Association… On February 14, 2007, Judge Braden was elected as a Member of the American Law Institute and is working on the Institute’s Restatement and Unjust Enrichment Project. From 2005-2008, Judge Braden was a Member of the Editorial Board of the American Intellectual Property Law Association.
Prior to joining the bench, Judge Braden litigated complex civil cases in private practice before both trial and appellate courts.
Courting Influence reports that from 1990-1992, Judge Braden was a partner in Anderson, Kill, Olick & Oshinsky. Oshinsky, who has since left the firm, recently formed Gilbert Oshinsky and became a partner to August Matteis and Craig Litherland – the Rigsby qui tam lawyers! Small world!
It will be interesting to see how far the cases goes with Braden’s “green ligh”.
The class-action case, filed a month and a half after Hurricane Katrina flooded both areas in August 2005, contends that continuing environmental damage resulting from construction of the MR-GO by the Army Corps of Engineers left the plaintiffs — including the St. Bernard Parish government and the owners of Rocky & Carlo’s Restaurant in Chalmette — vulnerable to flooding.
The MR-GO opened in 1965 and was quickly criticized for destroying wetlands on the eastern edge of St. Bernard.
The lawsuit stems from the U.S. Constitution’s Fifth Amendment, which provides “private property (shall not) be taken for public purpose, without just compensation.”
Braden said evidence of severe flooding in 2005 and other flooding since then showed the plaintiffs are entitled to ask the court for compensation.
The ball goes from Braden to Judge Duval’s court:
But she also delayed bringing the case to trial until U.S. District Judge Stanwood Duval issues a ruling — expected in early September — on a separate lawsuit charging that construction of the MR-GO was partly responsible for flood damage caused in both areas during Katrina.
Braden hinted the delay may be to determine whether that ruling will compensate the plaintiffs in her case for the damages caused by the MR-GO. Possible damages may also be reduced by federal grants given to Katrina victims, she said.
Braden threw cold water on the federal attorneys’ argument that parish leaders, residents and businessmen knew or should have known the MR-GO had heightened flooding potential long before the six-year statute of limitations for filing such suits.
She said the landowners couldn’t predict the flooding effects because those effects continued to change as wetlands eroded.
“In this case, the record evidences that the north bank of the MR-GO was not ‘stabilized’ in 1998, ” the time limit federal attorneys argued for, the decision said.
The government’s own evidence showed “that between 1968 and 2006, the surface width of the MR-GO increased up to 15 feet each year.”
And it wasn’t until the November 2004 Louisiana Coastal Area Ecosystem Restoration Study, which asked Congress for a major federal grant to rebuild wetlands along the channel, that the corps “acknowledged the urgency of the situation, ” she said.
Braden said the corps also failed in 1957 to comply with a federal law requiring approval of the U.S. Fish & Wildlife Service before building the project, or to respond when objections were raised repeatedly by other critics, including the St. Bernard Parish government, who had for years demanded the MR-GO be closed.
The navigation channel was finally closed this year with a rock dike at Bayou la Loutre, after Congress deauthorized it.