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Leave No Katrina Victims Behind

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On the third anniversary of Hurricane Katrina, Greater New Orleans still lies largely in ruins due to the federal government's admittedly flawed flood levees. Yet Katrina victims have not been compensated for their staggering losses. And the Bush administration refuses even to discuss settlement.

This insensitive stiff-arming of innocent victims of official malfeasance stands in stark contrast to the historic response to mass disasters by presidents from both parties.

On the morning of June 5, 1976, the Teton Dam in eastern Idaho disintegrated minutes after it was filled to its intended capacity, releasing 80 billion gallons of raging waters down the Snake River Valley. As the undulating flood waters carried away four million cubic yards of embankment in an eight-mile swath, the lethal, 15 mph torrent swept up utility poles and logs that acted as battering rams annihilating everything in its path. The city of Wilford was wiped off the map, while other towns were inundated by a 15-foot wall of floodwater.

The Teton Dam's catastrophic failure killed 14 people, destroyed 18,000 head of livestock, inundated 427,000 acres of farmland and inflicted $2 billion in damages. Designed by the U.S. Army Corps of Engineers for the U.S. Bureau of Land Reclamation, the disaster was the most colossal engineering failure in the nation's history. Investigations revealed that the dam had been built on fractured volcanic material and was seriously flawed in design and construction.

Justice Department lawyers were poised to defend against the victims' damages claims by denying any legal responsibility and invoking an anachronistic flood immunity statute. Victims faced years of expensive litigation with daunting chances of success against such a powerful adversary with unlimited resources.

But President Gerald Ford took the high road.

Believing that the United States had a moral responsibility to pay restitution to the flood victims, the Republican President asked Congress six days after the tragedy to appropriate $200 million for a voluntary compensation program "to ensure that the victims of this tragic catastrophe can rebuild their lives and rebuild their communities."

Congress obliged by swiftly enacting the Teton Dam Disaster Assistance Act only three months later. A critical element of the legislation was a mandate "to provide for the expeditious consideration and settlement" of all claims and "to fully compensate" for death, personal injury and property damages "without regard to the proximate cause of the failure of the Teton Dam." Through an efficient administrative claims process, 7,500 claims were settled for a total of $322 million.

Similarly, in the wake of the federal government's negligence with the Swine Flu Immunization Program (1976) and the Cerro Grande Fire in New Mexico (2000), Congress established no fault victims' compensation programs. And 11 days after the terrorist attacks, the government created the September 11th Victim Compensation Fund (2001) that paid out nearly $7 billion -- even though the United States was not responsible for the 2,992 deaths.

All four voluntary mass disaster settlement programs are shining exemplars of the decency, compassion and generosity of the American people.

Based on these precedents, one would think that the federal government would have adopted the same humanitarian policy in the wake of the catastrophic flooding of Greater New Orleans during Hurricane Katrina. After all, the U.S. Army Corps admitted what virtually every investigation had concluded -- that its seriously flawed flood control levees caused the destruction of an area seven times larger than Manhattan.

Instead of following President Ford's enlightened example, President George W. Bush unleashed his Justice Department lawyers with a scorched earth litigation strategy that has so far succeeded in stonewalling the claims of more than 400,000 flood victims. Based on the 1928 flood immunity law, a federal judge was forced to dismiss all lawsuits involving the 17th Avenue and London Avenue Canal levees that flooded western and central areas of New Orleans. The surviving cases involve flooding in the eastern part of the city and all of St. Bernard Parish caused by the Army Corps' Mississippi River-Gulf Outlet ("MR-GO").

(In the spirit of full disclosure, I am lead trial counsel in the MR-GO litigation and am serving under challenging circumstances since the government has filed criminal charges against me alleging illegal campaign donations in the 2004 presidential campaign. I will continue to zealously represent Katrina victims while I establish my innocence in the criminal case.)

The first MR-GO trial will not start until early next year and, even if our six test plaintiffs prevail, the government has vowed to appeal the case all the way to the Supreme Court. At this glacial pace, the remaining hundreds of thousands of claims will not be determined in the lifetime of the victims or their heirs. Justice so long deferred is not justice.

August 29 is the third anniversary of the worst man-made disaster in American history. The government's admitted dereliction of duty caused 1,300 deaths (most of whom drowned in their homes), displaced more than 500,000 people and caused hundreds of billions of dollars of property damage over a hundred square mile area. Not a penny of compensation has been paid to the victims; nor has a single Army Corps official been disciplined, demoted or dismissed.

On this somber occasion recalling the annihilation of one of America's best-known cities, a compassionate nation owes it to those who perished and the half million struggling survivors to put an end to this travesty. The Teton Dam Disaster Assistance Act and other precedents can serve as a model for Congress to make amends to Katrina victims by voluntarily establishing a claims settlement process and eschewing decades of litigation. This long overdue policy of not leaving Katrina casualties behind honors the nation's tradition of compassion and just compensation of victims of mass disasters caused by their government.

As President Ford stated upon signing the Teton Dam disaster assistance bill: "No government has the power to eliminate tragedy from human experience, but government can and... should act quickly to minimize the pain of a great disaster and help to begin the healing process."

Pierce O'Donnell is the lead attorney for Hurricane Katrina victims in litigation against the U.S Army Corps of Engineers. www.pierceodonnell.com