Civil Lawsuit Over Katrina Begins

Published on
by
The New York Times

Civil Lawsuit Over Katrina Begins

by
John Schwartz

(The New York Times)

NEW ORLEANS - A groundbreaking civil suit began in federal court here Monday 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.

One geological expert testified on behalf of the plaintiffs that the channel was "one of the greatest catastrophes in the history of the United States."

The federal government argued that Hurricane Katrina would have devastated the region whether or not the channel had ever been dug. The government's filings in the case say the plaintiffs' assertions that the taxpayers are liable for the damage are based on "misguided and internally inconsistent arguments."

If they win, the plaintiffs - a local newscaster, Norman Robinson, and five others whose homes or businesses were destroyed by the 2005 storm - could receive hundreds of thousands of dollars each as compensation for their losses. More broadly, a victory could pave the way for more than 400,000 other plaintiffs who have also filed claims against the government over the hurricane's destruction.

The government has historically enjoyed strong legal protection against lawsuits related to collapsing levees. The Flood Control Act of 1928 bans suits against the United States for damages resulting from floods or floodwaters. In January 2008, a federal judge, Stanwood R. Duval Jr., ruled that the corps was immune in a different lawsuit related directly to the levee and floodwall failures during Hurricane 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 Justice Department to get him to dismiss it - based largely on a 1971 case, Graci v. United States, that found there was 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 trial is expected to take four weeks. In his opening comments, Judge Duval, who is hearing the case without a jury, called it "significant" and "the first real trial" about Hurricane Katrina, the levees and the role of the federal government.

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 New Orleans. The suit alleges 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 caused the adjacent levees to subside. That, the plaintiffs say, exacerbated the effects of waves coming across the channel.

The corps has consistently argued that the canal's effect during Hurricane 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.

During the trial's opening session, the plaintiffs' expert on geology and the coastal environment, Sherwood M. Gagliano, cited reports from as early as 1957 that claimed the canal would pose a danger to the people of St. Bernard Parish and reports of his own dating from 1972 that warned of the increased flooding risk from wetlands destruction.

Mr. Gagliano testified that the corps was aware of such research and even prepared a report in 1988 that mentioned "the possibility of catastrophic damage to urban areas" from the channel but did little to reduce the risk.

Under questioning by Kara K. Miller, a lawyer for the government, Mr. Gagliano acknowledged that the corps had agreed to some of his recommendations to improve the canal, like planting grass atop some of the levees to stabilize them.

The plaintiffs say they hope a victory in the case can open the door for a broader class action in which more than 400,000 claims have been filed against the government. A financial projection by the Army has concluded there is a reasonable possibility that potential government losses could ultimately range from $10 billion to $100 billion.

Beyond the monetary damages, many in New Orleans hope the lawsuit could put an end to the search for someone to blame for the flood damage during Hurricane Katrina, a quest that has haunted many who remain angry at the loss of 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. Mrs. Franz and her husband, Anthony, 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 for three weeks in 18 to 22 feet of water. The water came three feet up the walls of the second floor.

"I've been through a lot," she said in an interview.

The home, which the family owned, was deemed a total loss. The Franzes do not have the money to tear it down, much less to rebuild it. Family photographs, furniture and the accumulations of a lifetime were ruined; a community of neighbors was scattered.

Mrs. Franz is 75, her husband, 80. They were uninsured; she said that they did not have flood insurance, and that the $80,000 they received from the Road Home program was 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 the Franzes were typical of those who suffered damage and showed why the suit was important.

"Their whole life is changed," Mr. Andry said, "and they should be compensated for that."

Mr. Andry, whose father argued the Graci case in 1971, is a native of St. Bernard Parish and among 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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