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Federal Lawyers Seek to Overturn Ruling on Army Corps' Liability for Katrina Levee Failure

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This week in New Orleans, federal lawyers attempted to overturn a November 2009 ruling that found the Army Corps of Engineers guilty of negligent maintenance of a shipping channel in eastern New Orleans and thus financially liable for damages that occurred during Hurricane Katrina.

Justice Department lawyers argued before a three-judge panel from the 5th U.S Circuit Court of Appeals that the federal government is entitled to sovereign immunity as stipulated in the Flood Control Act of 1928.

The federal government sought for the appeals court to reverse a decision by federal Judge Stanwood Duval who ruled that flooding in St. Bernard Parish and the Lower Ninth Ward in New Orleans was a man-made disaster caused by the corps' negligence when they failed to prevent the Mississippi River Gulf Outlet (MRGO) from widening.

The channel was designed to have a surface width of 625 feet, bottom width of 500 feet and 36-feet depth. But as detailed in the book, Catastrophe in the Making (Island Press, 2009) ship traffic had caused the north bank of the channel to erode at a rate of 35 feet per year.

The Associated Press reported Justice Department attorney Mark Stern as saying the 5th Circuit and Louisiana Supreme Court have heretofore ruled in other cases that the catastrophic flooding was caused by Katrina. While the AP story did not state which cases Mr. Stern is talking about, there was another important ruling on the Corps' role in the New Orleans flood.

That case was January 2008 by the US District Court for Eastern Louisiana and the court did not say Katrina caused the flooding. The plaintiffs said the corps -- not nature, not a record-breaking storm surge and not local politics or local negligence -- was to blame. The court "heartily seconded that notion...suggesting that the corps was guilty of 'gross incompetence.'"

But the court was powerless to rule favorably for the plaintiffs because the Flood Control Act of 1928 granted legal immunity to the government in the event of failure of flood control projects like levees.

"The federal government has basically conceded on the science of the case, " said Paul Kemp, Vice President of the National Audubon Society who has read the brief.

Pierce O'Donnell, lead attorney for the plaintiffs spoke to Levees.org before boarding a plane from New Orleans to Los Angeles.

"The federal attorneys are attempting to argue that it's irrelevant why the levees and floodwalls failed," he said. "They are saying that even if the levees and floodwalls failed due to an independent act of negligence, the corps is still immune."

Mr. O'Donnell observed that Judges Jerry Smith, Edward Prado and Jennifer Walker Elrod were well prepared. They conscientiously asked very penetrating questions, he said.

The judges will likely issue their ruling in a month or two, but according to Mr. O'Donnell, the losing party will undoubtedly seek review from the Supreme Court. So no matter what the decision is on Wednesday's hearing, there may not be a final outcome until late 2013. But that didn't seem to concern Dr. Ivor van Heerden, former deputy director of the now closed LSU Hurricane Center and expert consultant in the case.

"I am confident that the judge did a great job, and I am confident the case will survive an appeal," said Dr. van Heerden.

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Levee Failure Disaster in Lower Ninth Ward New Orleans and St. Bernard Parish
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