Judge Dismisses Katrina Lawsuit, Rebukes Army Corps

Thu February 14, 2008 - Southeast Edition
Cain Burdeau and Michael Kunzelman - ASSOCIATED PRESSS

NEW ORLEANS (AP) Saying his hands were tied by law, a federal judge dismissed a class-action lawsuit against the U.S. Army Corps of Engineers over levee breaches after Hurricane Katrina, but rebuked the agency for failing to protect the city.

U.S. District Judge Stanwood Duval ruled Jan. 30 that the Corps should be held immune over failures in drainage canals that caused much of the flooding of New Orleans in August 2005. He cited the Flood Control Act of 1928, which protects the federal government from lawsuits when flood control projects like levees break.

The lawsuit led to about 489,000 claims by businesses, government entities and residents, seeking trillions of dollars in damages against the Corps.

The fate of many of those claims was pinned to the suit and a similar one filed over flooding from a navigation channel in St. Bernard Parish. It was unclear how many claims could still move forward.

Kathy Gibbs, a Corps spokeswoman, said “the Corps agrees with the dismissal of the case” but declined further comment because other lawsuits over Katrina damage are pending.

Plaintiffs lawyers said they would appeal to the 5th U.S. Circuit Court of Appeals, but conceded that overturning Duval’s ruling would be difficult.

The judge issued a stinging condemnation of the Corps, saying the agency “cast a blind eye” in protecting New Orleans and “squandered millions of dollars in building a levee system ... which was known to be inadequate by the Corps’ own calculations.”

But, Duval said, “it is not within the 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.”

Breaches at both the 17th Street and London Avenue canals allowed floodwater to inundate large areas of the city. Plaintiffs’ lawyers knew they faced a daunting task because the canals were, over time, used as flood control projects by the Corps.

They tried to bypass the immunity issue by claiming that the Corps used the canals as drainage projects and that the levee failures were brought about by canal dredging.

“I knew we had an uphill battle, but we had to do it,” the plaintiffs’ lawyer Joseph Bruno said. “It’s an outrage. Read the opinion: The judge reads through all the negligence by the Corps, but says he had to rule the way he had to.”

The ruling was another blow to the residents of New Orleans, where loathing for the Corps continues unabated.

“This cost people’s lives and property,” said Gwen Bierria, who is still living in a government-issued trailer and is among the tens of thousands of people who have filed claims against the federal government for damage from the levee breaches.

“Anybody that calls themselves the Army Corps of Engineers should be embarrassed,” she said.

Activists said they would not give up on holding the Corps accountable.

“We will stick with our mission of education that this was the worst engineering failure since Chernobyl,” said Sandy Rosenthal, founder of Levees.org, a group that has lobbied for overhauling the Corps.

Since Katrina, calls for a makeover of the Corps have gained momentum, and the agency, which has acknowledged mistakes, has re-evaluated its procedures for picking and designing projects.

Duval agreed that legal and bureaucratic change is required.

“The byzantine funding and appropriation methods for this undertaking were in large part a cause of this failure,” the judge said, referring to the politics-riddled process Congress has for funding Corps projects.

The Flood Control Act is counterproductive, Duval said, because it negates incentives for good government workmanship and creates an environment where “gross incompetence receives the same treatment as simple mistake.”

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