MR-GO: Judge Duval finds Corps’ mismanagement flooded lower 9th in New Orleans following Katrina

With the world watching what the spinmasters of the insurance industry called the great New Orleans Flood,  the preventable disaster delivered  a horror beyond words.

“Judge Duval exposed 40 years of the Army Corps of Engineers’ gross malfeasance with regard to the operation and maintenance of the MR-GO,” said Pierce O’Donnell, a Los Angeles-based attorney and co-leader of the plaintiff’s legal team. “His decision is an extreme condemnation of the lack of concern for the safety of New Orleans and St. Bernard residents.”

"Duval said he was 'utterly convinced' that the corps' failure to shore up the channel doomed the channel to grow to two to three times its design width" (CainBurdeau)

Duval’s decision is also a fascinating read – all 189 pages of his Findings of Fact and the two-page Judgment.

Continuing with Mark Schleifstein, writing for the Times Picayune, the decision…sets the  stage for judgments against the govenment for damages by as many as 100,000 other residents, businesses and local governments in those areas who filed claims with the corps after  Katrina.

If successful, the damage claims could total billions of dollars…

A Justice Department spokesman was not immediately available late Wednesday to respond to the ruling, but the government is expected to appeal the decision to the U.S. 5th Circuit Court of Appeals, and then to the U.S. Supreme Court, if necessary…

“Until such time as the litigation is completed, including the appellate process up to and through the U.S Supreme Court, no activity is expected to be taken on any of these claims,” corps spokesman Ken Holder said.

Appealing Duval’s decision would be another man made disaster with “we the people” picking up the tab.  It’s time to say no!

8 thoughts on “MR-GO: Judge Duval finds Corps’ mismanagement flooded lower 9th in New Orleans following Katrina”

  1. The Federal Government WILL appeal, all the way to the Supreme Court, if necessary. You and I have NO CONTROL over what the USDOJ does or doesn’t do, so saying “NO” won’t get you anywhere. This was a result which has been predicted since Judge Duval-Daley-Fayard held the first Status Conference in the “Victims of KATRINA” litigation on March 24, 2006.The Judge has been “benefitting” his “close personal friend of long-standing”, Plaintiffs’ Attorney Calvin Clifford Fayard, Jr., and Fayard’s clients, ever since then. This decision is the culmination of Fayard’s “investment” of over 4-plus years in his “close personal relationship of long-standing” with the presiding Judge. And to keep it all in perspective, this decision benefits NO ONE West of the Industrial Canal. It “benefits” Fayard and those lawyers who have cast their lot with his, and their clients in the Lower Ninth Ward and St. Bernard Parish, ONLY. (NOTE: This was NOT a Class Action, and the Government Spokesman says that NO ACTION will be taken on ANY cases until the appellate process has run its course, which could take 2 or more years). For my part, I aver that this is a CORRUPT decision, which was motivated by things other than the facts and the law. I want NO PART of it. Rather, I want the litigation to “start over”, with an honest Judge and honest lawyers, rather than a biased and prejudiced Judge whose rulings were calculated to benefit ONLY his “close personal friend of long-standing” and his friends’ clients, and plaintiffs’ lawyers who as “crooked as snakes”.

  2. I am sure that the MRGO channel was never going to be the V shape in the plan. The mud/silt/soup layer is not nearly firm enough. All the ship channels in the Gulf have slopes closer to 9:30 and 2:30, not 11 o’clock and 1 o’clock. Even at 9:30 and 2:30 they are constantly widening and silting in and need regular maintenance dredging.

  3. “…exceedingly well documented – beautifully written…” What the $#@&!? Then why didn’t this COCKSUCKER or his WIFE/LAW CLERK cite 33 Code of Federal Regulations Section 208.10 in the MRGO or Outfall Canal written opinions? Duval-Daley-Fayard is as “crooked as a snake”! Well documented and beautifully written, MY ASS!

  4. Much slight of hand goes on in court. The truth means nothing just the winning. I am not a lawyer or a Judge but the Outfall litigation that was thrown out without a hearing and the now documented MRGO suit although are presented as different are one in the same. I believe that the reasoning given that the MRGO is a navigable channel and is therefore different from the Outfall litigation, since they discharge rain/floodwaters out of the city, seem to be in dirrect contridiction to what the Flood Control Act of 1928 cited.

    If one can separate these two then I imagine that the MRGO & the Mississippi River could also be separated. However, both are navigable waterways, just as the Rigolets, Chef Pass and IHNC and Lake Pontchartrain are also navigable waterays.

    Snow blowing I call it. Besides these efforts and decisions,the Judge dismissed the Assistant Secretary of the Army Civil Works position and the law he cites for Flood Control Projects. 33 CFR 208.10 appears to override that antiquated law cited by the Judge and also was not used for the MRGO litigation where surge from the Gulf affect all mentioned.

    The Judge cites Operation & Maintenance of the MRGO as the cause for the destruction, but never bothered to cite that for the Outfall litigation where that ‘law also applies as cited in 33 CFR 208.10

  5. I don’t believe Judge Duval made the distinction between MR-GO and the outfall canals. Instead, I believe the distinction was made by Congress in the appropriations process with MR-GO funding appropriated for a purpose not subject to sovereign immunity.

    That said, I’m writing from memory because I’ll be the turkey tomorrow if I stop and read/research the issue until I have my “chores” done.

    One thing to remember is that Code (law) cannot be amended by reference. In other words, for later legislation to apply, it must specifically site the Code sections it is amending.

  6. I have question since the MRGO was different. Does the GIWW fall under the same catagory as the MRGO? They are both navigable waterways dredged by the COE, they both are not maintained from erosion and the Katrina Surge filled both and caused the surge to reach the same levee system for the lower 9th ward known as the LP&VHPP. Based upon this the area of New Orleans East should have remained in the litigation.

    Now let’s look into the Lake Pontchartrain as a navigable waterway. I believe I can prove that by the simple fact that the Coast Guard has its station near Bucktown in Lake Pontchartrain. Now as far as the Outfall Litigation, it was to narrow in scope.

    The Katrina Storm Surge that affected the MRGO, also affected the GIWW, the Rigolets, Chef Pass and the Inner Harbor Navigation Canal. Wow, what a name it may also be a navigable waterway!

    The Outfall Canals are just a portion of the LP&VHPP and must not or cannot be separated. There is a Law 33 CFR 208.10 which covers the operation and maintenance of local flood protection projects that everyone seems to ignore, but was written for just this type of project. It was attached to the 1928 Flood Control Act in 1944 as it appears written.

    This law is cited in Department of the Army Engineering Regulations & Manuals for construction, operation, maintenance, modification, repair or replacement of Critical Structures such as pump stations and for the most part ignored by the COE and the Local Sponsor. The same applies to the Engineering Manuals & Regulations as well.

    Both entities have certain responsibilities cited and violation of those regulations & manuals as well as the Law seem to hold all responsible, liable and must pay for damages by malfeasence in the lack of performance of those responsibilities.

    I as a retired COE employee was bound by two certified letters from COE legal offices, one local & one from Wash DC, not to give any information I knew from my working there. However, the DA has now placed all of this information on many web sites and is available to the public so I can cite these for them to view.

    The Outfall Canal Levees did not fail on there own. They were put into the LP&VHPP with little review and minor soil testing for levee stability and even less information on the canal cross-section from levee to levee.

    The most overlooked requirement that caused the stability control line to be violated and causing failure was the lack of the required scheduled taking of surveys to monitor these canals for that condition from scour or erosion from the pumped waters by the local pump stations. There are no records ofthese surveys and specific to one canal in particular, the 17th St Canal where the COE required a minimum of annual surveys to be taken and notes furnished to their office since 1989 were never accomplished. This lack or malfeasence by both parties made it impossible to monitor erosion or scour and in turn rendered the underlying footing of insitu soils to not be there to make the levees stable. No operators were on duty as required, but some were sent away as in East Jefferson, required positive cut-offs in discharge lines were not present, frontal protection was absent in some cases since first cited in 1970 and the stations had no place safe for the operators that were required to be present.

    This malfeasence caused the situation to become what it was in the Outfall Canals and idle pump stations where unrecorded backflow also flooded the city. This can be easily shown where that condition prsented itself in East Jefferson Parish. There must have been backflow as well in Orleans Parish, but since the levee failures and floodwall failures were greater, they were not even considered.

    The immunity given both the contractors, local sponsors and the COE were in error as malfeasence removed that blanket of immunity!!

    I would truely love to hear from any lawyer on this subject!!

  7. In the Judge’s first ruling the law cited says all flooding and waters that affect the levees are immune! I believe that covers it if he truly believed it.

    However, if malfeasance can be proven then the blanket is rolled and taken away and the free rider goes to jail and pays the damages! That includes all parties involved, the Local Sponsor with his assurances and the DA [COE] for lack of the proper oversight of the project for operation, maintenance, modification, repair, replacement, of any and all parts of the project. There is a part that as an engineer and not a lawyer that I have a problem with and that is the phrase, “completed portion”. Since the project is not complete in levee construction, floodwall protection, pumping station compliance for construction, maintenance, modification, repair or replacement it seems that the COE is still very much responsible for this. They have cites requirements that needed prompt attention in 1970 and are not fixed or constructed to this date.

    There appears to be a growing case of malfeasance since 1970 to the time of Katrina and after that continues to leave doubts as to the adequacy of the project and now they are heading back to the original “Barrier Plan”.

    Help me out there all you lawyers!!!!

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