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 attempts 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 that it would help carry storm surges into the city. The suit alleges that that the channel killed the protective wetlands and cypress swamps to the east of the city by allowing the intrusion of salt water from the Gulf, and also caused the adjacent levees to subside. That amplified the effects of waves coming across the channel, the plaintiffs say.
The Corps has argued consistently that the canal’s effect during Katrina was insignificant. At the direction of Congress, however, the Corps has begun to close the MR-GO canal using 434,000 tons of rock.
The plaintiffs say they hope a victory in the case could open the door for a broader class action in which more than 400,000 claims have been filed against the government. An Army financial projection has concluded that there is a reasonable possibility that potential government losses could ultimately range from $10 billion to $100 billion.
Beyond the monetary damages, however, many in New Orleans hope the lawsuit could put an end to the search for someone to blame for the flood damage during Katrina, a quest that has haunted many who lost their homes and businesses.
Like so many in the New Orleans area, Lucille Franz, one of the plaintiffs in the case, lost everything in the storm. She and Anthony Franz, her husband, came back from their evacuation to Texas during hurricanes Katrina and Rita to find that their home on St. Claude Avenue in the Lower Ninth Ward had steeped in 18 to 22 feet of water for three weeks. The water came three feet up the walls of the home’s second floor.
“I’ve been through a lot,” she said in an interview.
The home, which the family owned outright, was deemed a total loss. The Franzes do not have the money to tear it down, much less rebuild it. Family photographs, furniture, the stuff of a lifetime in the same home were ruined, and a community of neighbors was scattered.
Mrs. Franz is 75; her husband is 80. They were uninsured — Mrs. Franz they did not have flood insurance, and the $80,000 they received from the Road Home program is not enough to start again. “You might purchase a trailer, but you can’t get a house,” she said. The money pays their rent for an apartment in Harahan, west of the city. “We need a home,” she said.
Jonathan Beauregard Andry, one of the lawyers representing the Franzes and other plaintiffs in the case, said that the Franzes are typical of those who suffered damage and show why the suit is important. “Their whole life is changed, and they should be compensated for that.”
Mr. Andry, whose father argued the Graci case in 1971, is a native of St. Bernard parish. He is one of more than 50 lawyers from 20 law firms around the nation working on the case. The people of the Lower Ninth Ward and St. Bernard Parish, he said “don’t want sympathy, and they don’t want something for nothing.”
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