The trial in federal district court against the Army Corps of Engineers concerning damage from Hurricane Katrina caused by the Mississippi River Gulf Outlet began today. The claims of six plaintiffs against the federal government are being heard over the next month by United States District Court Judge Stanwood Duval.
The plaintiffs contend that the Corps’ improper design, construction and maintenance of the Mississippi River Gulf Outlet (“MRGO”) caused the flood waters of Hurricane Katrina to damage their homes and businesses. The Corps has repeatedly responded that they are immune from such lawsuits.
The result of this trial and any subsequent appeals have potentially far reaching impacts. This blog has repeatedly discussed the potential for federal liability for damages as a result of the loss of coastal wetlands in Louisiana. It has been a central theme of this blog that the federal government’s improper design, construction and maintenance of various structures in the Mississippi River drainage basin have cause the loss of coastal wetlands in Louisiana. If the plaintiffs in the MRGO lawsuit are successful. The result will validate some of the core arguments that I have put forward in this blog.
The federal government has granted the public a tort action against the federal government in some instances. This right is contained in the Federal Tort Claims Act. In the MRGO case, however, the Corps seeks to have the tort suit dismissed claiming that certain immunities prohibit tort claims in this situation. First, the Corps claims immunity from liability for the failure of flood control structures. This immunity is contained in a separate federal statute. The judge has, however, responded that MRGO is not a flood control structure. It is a navigation facility. Thus, the immunity does not apply.
Second, the Corps claims that the decisions related to the design, construction and maintenance of MRGO are “discretionary acts” and as such they are immune from tort liability resulting from the exercise of such discretionary decision making. While generally, the federal government is not liable for exercising their discretionary judgment, federal officials have many complicated legal responsibilities when constructing a large project like MRGO. Because of various statutes protecting other societal values such as bald eagles, historic sites and the property rights of those whose land will be damaged by a federal project, federal officials have to consider and respond to these many other societal values. The failure to properly consider and account for these other societal values is not within the federal official’s “discretion” and thus when damage occurs in the absence of such proper consideration, the federal government is not immune from liability.
For more information on this trial, see the New York Times article of Monday April 20, 2009 by John Schwartz entitled, Civil Lawsuit over Katrina Begins. See also the New Orleans Times Picayune article on Monday April 20, 2009 by Susan Finch entitled, St. Bernard wetlands changed dramatically after MRGO was built, geologist testifies.