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Fifth Circuit rules Army Corps of Engineers liable for Katrina damage

The US Court of Appeals for the Fifth Circuit [official website] on Friday affirmed [opinion, PDF] that the US Army Corps of Engineers (USACE) [official website] is liable to a number of Louisiana property owners for its inadequate work on a shipping channel that caused billions of dollars in damage as a result of Hurricane Katrina [JURIST news archive]. While USACE argued that it should be entitled to immunity from such lawsuits under the Flood Control Act of 1928 [text], the court disagreed, finding that the Corps had not properly maintained the Mississippi River-Gulf Outlet (MRGO) [USACE backgrounder], a New Orleans navigation channel that suffered tremendous flood damages. In upholding a 2009 decision [JURIST report] by the US District Court for the Eastern District of Louisiana [official website], the Fifth Circuit found that USACE had made "negligent decisions" that "rested on applications of objective scientific principles and were not susceptible to policy consideration." Reasoned the court:

At points where it could have mattered, the Corps did not identify MRGO's ability to aggravate the effect of a major hurricane. This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.
In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000.

Since Katrina, USACE has received about 500,000 other similar administrative claims, and attempted to dismiss this case on several occasions. In March 2009, federal judge Stanwood R. Duval Jr. found [JURIST report] that material questions of fact existed as to a potential violation of USACE's mandate that, if proven, would preclude it from protection under the Federal Tort Claims Act [text]. In May 2009, Duval ruled [JURIST report] that the MRGO is a shipping channel rather than a flood control outlet, which would have given USACE immunity in tort actions. In a similar instance in February 2007, Duval denied USACE's motion to dismiss, which argued that the MRGO was part of a larger flood control system in New Orleans rather than strictly a shipping channel. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [WP report].

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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