Katrina Ruling Could Lead To Class-Action Lawsuit

A federal judge ruled that the U.S. Army Corps of Engineers was responsible for some of the flooding during Hurricane Katrina, and ordered the government to pay more than $700,000 to five plaintiffs. Mark Schleifstein, a reporter at the New Orleans Times-Picayune, says of the 470,000 people who filed claims, about 100,000 are in the two areas where this lawsuit appears to have set a precedent. They will, he says, be able to go back to the court and ask for the case to be turned into a class action.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, Host:

And I'm Robert Siegel.

A federal judge's ruling in New Orleans could dramatically change the lives of some people who lost their homes after Hurricane Katrina. The judge found yesterday that the Army Corps of Engineers failed to maintain the Mississippi River Gulf Outlet, known by its initials as MR. GO, and is therefore directly responsible for flood damage. Three families and a business would be awarded damages, unless the ruling is overturned on appeal. And the case will surely encourage many others to bring suit.

The ruling comes down to judgments about what caused the terrible storm surge and flooding in a complicated mix of industrial waterways, levees and wetlands. Mark Schleifstein is environment reporter for the Times-Picayune. And he says the next steps in this case depend on people who filed claims for damages with the Army Corps two years ago.

MARK SCHLEIFSTEIN: Of the 470,000 people who filed claims, about 100,000 of those are in the two areas where this lawsuit seems to have set a precedent. So, they'll be able to go back to the court and ask for the case to be turned into a class action.

SIEGEL: When you say the two areas, you're talking about...

SCHLEIFSTEIN: The two areas being the Lower Ninth Ward, a portion of New Orleans, and then the St. Bernard Parish, largely the Chalmette community.

SIEGEL: So, the reasoning here, as to who should be covered by this ruling or who in the future might be covered by it, relies on how people now understand the waters of Katrina, what was responsible for the storm surge. Is it now commonly accepted that MR. GO, the Mississippi River Gulf Outlet, was a main culprit here or is that still in dispute?

SCHLEIFSTEIN: Well, that is still in dispute by scientists for the federal government, as opposed to the scientists who were supporting this particular ruling. But the reality is that it gets a bit more complicated. The judge had found last year in an earlier ruling involving failures of the levees in other areas of the city, that the Corps was culpable for the poor design of the levee system, but that it was immune from prosecution.

In this particular piece of the case, though, what the judge ruled was that in this area the Corps improperly maintained that channel in such a way that material underneath the levees sloughed into the canal and was dredged out of the canal, so, the levees were actually lower as a direct result of the canal being there. Plus, the loss of wetlands caused by erosion of canal by the ships that used it also increased the ability of the storm surge as it was coming in to actually erode away the levees during Katrina.

SIEGEL: Now, I've gotten the aerial tour of those disappearing wetlands, MR. GO and beyond, and it's staggering to see how many of the Barrier Islands have just gone away and how much land is now underwater. But a lot of that is for the industry that brought wealth to that part of Louisiana for natural gas drilling. Should the gas companies also be held liable under a ruling like this?

SCHLEIFSTEIN: Well, again, that's something that has not been litigated yet, and I don't know of anybody who's actually attempting to do that. But this navigation channel, it's very clear that it had direct effects on the wetlands that border the levee that the judge focused on in his ruling.

SIEGEL: Now, I know that the project of plugging up MR. GO began this year. How much progress has made been?

SCHLEIFSTEIN: It is plugged, for what's that worth, okay? There's a rock dike several miles below the Chalmette community, and there's a new barrier that has been built at the upper end of the canal. So the canal has been blocked off, but the environmental damage is a long way from being fixed. The Corps has estimated that it's going to take several hundreds of millions of dollars to even a billion dollars to rebuild all the wetlands in that area.

SIEGEL: Well, Mark, thank you very much for talking with us today.

SCHLEIFSTEIN: Thank you.

SIEGEL: So, Mark Schleifstein, who is environment reporter for the New Orleans Times-Picayune.

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Ruling May Spur More Katrina Flood Lawsuits

This 2006 file photo shows the Mississippi River Gulf Outlet splitting off to the right. i i

This 2006 photo shows the Mississippi River-Gulf Outlet splitting off to the right. A judge has ruled the U.S. Army Corps of Engineers was responsible for some of the flooding after Hurricane Katrina because of its failure to maintain and operate the canal properly. The corps agreed to close the shipping channel earlier this year. Alex Brandon/AP hide caption

itoggle caption Alex Brandon/AP
This 2006 file photo shows the Mississippi River Gulf Outlet splitting off to the right.

This 2006 photo shows the Mississippi River-Gulf Outlet splitting off to the right. A judge has ruled the U.S. Army Corps of Engineers was responsible for some of the flooding after Hurricane Katrina because of its failure to maintain and operate the canal properly. The corps agreed to close the shipping channel earlier this year.

Alex Brandon/AP

In New Orleans, some residents have long said it wasn't a natural disaster that caused the flooding after Hurricane Katrina four years ago — but government neglect.

In a 156-page decision Wednesday, a federal judge gave residents vindication. Judge Stanwood Duval ruled that the U.S. Army Corps of Engineers was responsible for some of the flooding and ordered the government to pay more than $700,000 to five plaintiffs.

That may not sound like much money, but it's the first time the government has been found at fault for Katrina damage. Plaintiffs' attorneys say the ruling opens the door for some 100,000 people and thousands of businesses to sue the government. That could mean billions of dollars in damages.

The lawsuit claimed the Mississippi River-Gulf Outlet, known as MR GO, eroded protective wetlands, and that waves on the 76-mile canal destroyed levees and caused extensive flooding during Hurricane Katrina.

Duval issued a harsh criticism of the Army Corps of Engineers, saying a failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions.

'A Long Overdue Process'

Joseph Bruno, one of the lead attorneys for the plaintiffs, called the decision historic.

"This ruling is incredibly important to the city of New Orleans. Finally, our people are vindicated," he said. "After the flooding, we had to hear about ... victim fault — they should have lived somewhere else; they should have bought flood insurance — and ... now we have a judge who has confirmed that the cause of the flooding was the gross incompetence and neglect of the Corps of Engineers."

The judge said the corps was clearly negligent for failure to maintain and operate the canal properly and ordered in favor of the plaintiffs from St. Bernard Parish and the Lower Ninth Ward. But he found the corps was immune from liability for the flooding in New Orleans East.

Still, plaintiffs' attorney Pierce O'Donnell said Duval's decision "is the first step in a long overdue process of holding the Army Corps accountable for the projects it builds."

Construction is underway along the Mississippi River Gulf Outlet east of New Orleans. i i

Construction is under way along the now-closed Mississippi River-Gulf Outlet east of New Orleans. Concrete pilings are being driven into the swampy marsh to create a permanent barrier to protect the area from future storm surges. Kathy Lohr/NPR hide caption

itoggle caption Kathy Lohr/NPR
Construction is underway along the Mississippi River Gulf Outlet east of New Orleans.

Construction is under way along the now-closed Mississippi River-Gulf Outlet east of New Orleans. Concrete pilings are being driven into the swampy marsh to create a permanent barrier to protect the area from future storm surges.

Kathy Lohr/NPR

A spokesman for the Corps of Engineers said the Justice Department is reviewing the judge's decision and the issues involved are subject to appeal.

The shipping channel opened in the 1960s to provide a shorter route from New Orleans to the Gulf of Mexico. Over the years, the waterway widened from 650 feet to more than 2,000 feet in many places. During Katrina, a wall of water was funneled into the city and overwhelmed the levee system.

A Permanent Barrier

East of New Orleans, at Bayou Bienvenue, spans the channel at the heart of the case. Here, more than a dozen cranes reach into the bright blue sky. Concrete pilings are being driven into the swampy marsh as a permanent barrier is created to protect the area from future storm surges.

"What we hear now is, after the city has been destroyed, we are finally seeing the countermeasures put in place that were needed all along," said Paul Kemp, a wetlands expert and a consultant for the plaintiffs.

Earlier this year, the corps finally agreed to close the shipping channel, but Kemp says it took four decades to address the problems.

"There were 40 years of denials, basically, and we're now, the nation has now arrived to undo the damage that was caused," he said.

Plaintiffs' attorneys said they will go to Washington, D.C., to talk to Congress about funding wetlands restoration, and they want the Obama administration to set up a fund for all Katrina flood victims.

But that won't happen anytime soon, as the case will have to make its way through the federal appeals courts.

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