Civil Suit Over Katrina Begins

And it's about time. Today's New York Times:

NEW ORLEANS — A groundbreaking civil suit begins in federal court here today to consider claims by property owners that the Army Corps of Engineers amplified the destructive effects of Hurricane Katrina by building a poorly designed navigation channel adjacent to the city.

The Mississippi River-Gulf Outlet, a 76-mile-long channel known locally as MR-GO and pronounced “Mister Go,” was completed in 1968 and created a straight shot to the Gulf of Mexico from New Orleans. The suit claims that the channel was flawed in its design, construction, and operation, and that those flaws intensified the flood damage to the eastern parts of New Orleans and St. Bernard parish.

If they win, the plaintiffs — a local newscaster, Norman Robinson, and five other people whose homes or businesses were destroyed by the 2005 storm — could pave the way for more than 400,000 other plaintiffs who have also filed claims against the government over Katrina’s destruction.

The government has historically enjoyed strong legal protection against lawsuits related to collapsing levees. The Flood Control Act of 1928 bars suits against the United States for damages resulting from floods or flood waters, and in January 2008 Federal District Judge Stanwood R. Duval Jr. ruled that the corps was immune in a different lawsuit related directly to the levee and floodwall failures during Katrina in the city’s major drainage canals.

This case, however, is different, because MR-GO is a navigation canal, not a flood control project. In March, Judge Duval allowed the suit to go forward, over repeated efforts by the Department of Justice to get him to dismiss it, based largely on a a 1971 case, Graci v. United States, that found there is no immunity for flooding caused by a federal project unrelated to flood control.

The Graci decision did warn that the lack of immunity still left a “heavy burden” on plaintiffs to prove that the government was negligent in building its projects, and that this negligence, not a hurricane, was the cause of the damage.

The government will argue that Hurricane Katrina would have devastated the region whether or not the channel had ever been dug. The government’s filings in today’s case state that the plaintiffs’ rationale for federal liability are based on “misguided and internally inconsistent arguments.”

The trial is expected to take four weeks. In his opening comments today, Judge Duval, who is hearing the case without a jury, called it “a significant case” and “the first real trial” about Katrina, the levees and the role of the federal government. He referred to the thousands of pages of depositions and expert testimony, saying “the word ‘voluminous’ doesn’t quite do it.”

The thrust of the case, he said in his opening comments, was “a question of causation” about whether the canal caused damage separate from the levee failures, and, if so, whether the government has valid legal defenses.

The canal has been controversial from the start; critics had long called it a “hurricane highway” and warned it would help carry storm surges into the city.

As you all know, it did just that. Keep the folks involved in this lawsuit in your thoughts and prayers. They have suffered great harm and can rise again, if there is any justice.

The rest is HERE.

And so it goes.

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