SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!

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.

Related stories are here and here.

5 thoughts on “SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!”

  1. I just want to know what makes the lawsuit different from any other filed from Katrina?

    The Storm surge attacked all 3 Units of the LP&VHPP and if O&M negligence can be used in the MRGO case, then it should be usable for the all other cases. Especially since the entire Flood Control Project falls under the Department of the Army 33 CFR 208.10 with responsibilites for both the Local Sponsor and the COE.

    ER 1130-2-530 of the Department of the Army has the following in it a Policy Statement, para. 3-2 & 3-3 General Statement should be read. Also ER 1110-2-100 Periodic Inspection & Continuing Evaluation of Completed Civil Works Structues must be applied to all such projects and read the program responsibility and reference to ER 1130-2-399 which was superseded in 1996 by ER 1130-2-530.

    Improper to no maintenance of outfall and inflow canals, no hydrographic surveys as required, no approved pump stations meeting the requirements of EM 1110-2-3102 apper to be in compliance with this engineering manual. All have the Reference 33 CFR 208.10 as applicable.

    Then today 20 Dec the Times Picayune front page article suggests that there is many defencies in the project pump stations and if records were checked these defeciencies have been around for a long time. This appears to be malfeasence by the COE & the Local Sponsor since if inspected annually as indicated by the 1990 through 2004 Annual Inspection documents supplied in the HPDC Draft Report, then why didn’t the COE enforce the requirement for the Local Sponsor to remove the deficiency and bring the cited problem into compliace?

    Further if one looks into the MRGO litigation and the Golden Triangle as it is called, why then is the damages to only one leg of the triangle enforcible while the northern leg along the GIWW, another navigable waterway not applicable to the damage done to the Citrus Back Levee as shown in court documents

  2. Wayne, other suits were filed as tort claims “(tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another’s injury”

    However, this suit was filed in the Court of Claims.

    “…a United States federal court that hears non-tort monetary claims against the U.S. government

    …The court has special jurisdiction, spelled out in 28 U.S.C.

  3. Thanks for the eplaination. What do you think of the current front page article and the 33 CFR 208.10 that seems not to be applied to anything?

    Should not this have been applied to any litigation concerning Katrina and the local Flood protection and possible malfeasence?

  4. I could never find the article in the TP online; but, my general feeling about the matter is that there is a difference being liable for civil damages and being liable for the damage.

    Duval never said the Corps wasn’t responsible for more than just MRGO – just that MRGO was only damage subject to civil liability. Time, or rather lack of time, prevents me from digging deeper at the moment but there is aspect of immunity that prevents civil liability when agency is making certain types of decisions and it is my understanding that is basis for establishing “court of claims”.

  5. Since the Judge says they are responsible, why the immunity? If one can prove malfeasence does the immunity get removed?

    Because there is proof that since 1970 the COE in New Orleans seems to ignore the Assistant Secretary of the Army over Civil Works and all ER’s and EM’s specifically needed for construction of the LP&VHPP including 33 CFR 208.10. Also, if responsible why hasn’t anyone in the New Orleans District or Higher been disciplined according to the AR for that purpose on Civilian Employees and possibly Army Personnel that may be involved.

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