New Orleans, Louisiana in the aftermath of Hurricane Katrina, showing Interstate 10 at West End Boulevard. U.S. Coast Guard photo, 2005.
On May 1, a federal judge in Washington ruled in a nearly decade-old lawsuit that the U.S. is liable for flooding that occurred in the aftermath of Hurricanes Katrina, Rita, Gustav, and Ike. In a strongly-worded opinion, Judge Susan Braden of the U.S. Court of Federal Claims ruled that the flooding in question was caused by the construction, operation, maintenance and enlargement of the Mississippi River to Gulf Outlet (MR-GO) by the U.S. Army Corps of Engineers.
The MR-GO, a commercial navigation channel closed in July, 2009, was originally authorized by Congress in 1956. Upon completion of construction, the MR-GO stretched 76 miles and provided a shorter route for ships to travel between the city of New Orleans inner harbor area to the Gulf of Mexico.
Plaintiffs alleged that in the immediate aftermath of Hurricane Katrina and other storms, MR-GO funneled flood waters into Saint Bernard Parish and the Lower Ninth Ward, gravely compounding the flood damage wrought by these disasters. Agreeing with Plaintiff Saint Bernard Parish and other residential and business landowners, the Court found a taking of property had occurred and that under the Fifth Amendment’s just compensation clause, plaintiffs must be compensated for the loss of value, albeit temporary, of their property.
The case is noteworthy because numerous other lawsuits filed against the federal government over Katrina-related flooding have failed.
Judge Braden’s ruling is significant because it could broaden opportunities for future plaintiffs to claim damages from the operation of Federal civil works projects after a natural disaster. Relying heavily upon the Supreme Court’s 2010 decision in Arkansas Game & Fish Commission v. United States, 133 S. Ct. 511 (2012), the decision appears to conflate federal tort law with real property law. By merging aspects of Federal Tort Claims Act (FTCA) actions with Fifth Amendment takings cases, the decision arguably gives plaintiffs an incentive to completely sidestep the FTCA, and avoid the immunity defense the U.S. normally has in such cases.
In the aftermath of Hurricane Katrina, plaintiffs typically sought damages under the FTCA. These cases, although compelling, proved fruitless. In numerous cases involving hundreds of plaintiffs, the Federal District Court consistently found that the U.S. had immunity under 33 U.S.C. 702 (c), a law enacted over eighty years ago which provides that the Federal Government will bear no liability from damages occurring from floodwaters. The Fifth Circuit Court of Appeals ultimately agreed and upheld these rulings.
The Court of Federal Claims, however, has jurisdiction over cases referred to as “inverse condemnations” which are separate and distinct from cases filed under the Federal Tort Claims Act. Inverse condemnation cases are filed by plaintiffs who allege that the sovereign’s actions amounted to a taking of land without payment of just compensation required by the Fifth Amendment to the U.S. Constitution.
In essence, they argue that the government should have foreseen the need to acquire the private property interests but failed to do so. In the instant case, filed in 2005, the plaintiffs alleged that construction, operation and maintenance of the project caused the destruction of wetlands and habitat, leaving landowners vulnerable to a magnified storm surge and amounting to a confiscation of property value.
The Court agreed, finding that the claimants met their burden of proof that a taking occurred and rejected all of the Federal government’s defenses. The Court found a direct causal link between the project and the damage, which it characterized as foreseeable and inevitably recurring.
There are many unresolved issues with this decision, including whether the Department of Justice will appeal and how much the U.S. might have to pay. While the decision contains much fodder for an appeal, it nonetheless crafts a path forward on recovering damages in cases that may have been factually compelling but legally insufficient under the FTCA.
For The New Orleans Times-Picayune coverage of Judge Braden’s decision, please click here.
Liz Fagot Senior Advisor
An expert in federal real estate law and policy, Liz spent 30 years as an attorney with the U.S. Army Corps of Engineers, including becoming the first Assistant Chief Counsel for Real Estate (2004-2011).