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Court of Federal Claims Finds Corps of Engineers Liable for Lower Ninth Ward Flooding Damages

I-stock Flooding photoSt. Bernard Parish Government v. United States, 2015 BL 127431 (Fed. Cl. May 01, 2015) was a takings claim brought by a local government and property owners affected by flooding by various hurricanes between 2005 and 2009.  Plaintiffs alleged that the U.S. Army Corps of Engineers (USACE) was negligent in failing to maintain a 76 mile long navigational channel and that this failure, combined with storm surges resulted in the damage and made these claims cognizable under the Federal Tort Claims Act and Louisiana tort law.  In previous litigation, the courts had made a factual finding that the USACE was negligent, but also found the USACE had discretionary immunity under the Torts Claim Act.  This phase of the case dealt with Plaintiffs’ takings claims.  The record showed that there were clear concerns that the USACE work would compromise the ability of the soils to hold together in the event of storm surges, that the USACE was more focused upon providing for navigability of waterways over safety of shorelands and starved for fiscal resources for the full works.  The court found that the Mississippi River—Gulf Outlet Channel (MRGO) was a “funnel” of destruction and had already destroyed several thousand acres of wetlands in its creation.  The federal government was contemplating its closing the MRGO when a series of hurricanes, including Katrina and Rita, caused great damage to the area.

The court determined it had jurisdiction under the Tucker Act, 28 U.S.C. § 1491 to deal with damage claims against the federal government under other substantive law, such as the Takings Clause, and found that the law of the case had already established standing.  The court also found sufficient lay and expert testimony to support the connection between the construction of the MRGO and the damages claimed on the basis of a temporary taking.  Under Arkansas Game & Fish Comm. v. United States, 133 S. Ct. 511, 522-23 (2012) the plaintiff in a temporary takings case must plead and prove:

(1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality.

The court then reviewed each of these elements.  The property owner Plaintiffs had protectable property interests under Louisiana law, as well as reasonable investment-backed expectations of the use of those interests, because the flooding that had occurred was not comparable to that of the most recent times.  Moreover, it was foreseeable that the construction, operation, expansion and failure to maintain MRGO would substantially increase storm surge during hurricanes and severe storms and would cause flooding.  This foreseeability was a factor in the Arkansas Game & Fish determination that a taking could result from operation of public works and was indicated by the evidence in this case as well.

In addition, there was a demonstrated causal link between the USACE activities and the storm damages experienced because of increased salinity, loss of wetlands and wildlife habitat, storm surges and erosion from those activities.  The court rejected the USACE arguments that the damages were caused on a single occasion (Hurricane Katrina), breaking the chain of causation, finding they were rather “inevitably recurring” and concluding:

As the record reflects, the flooding of Plaintiffs’ properties was the “direct, natural, or probable result” of the Army Corps’ authorized construction, expansions, operation, and failure to maintain the MR-GO and not “incidental or consequential” injury. * * * In other words, the substantially increased storm surge-induced flooding of Plaintiffs’ properties that occurred during Hurricane Katrina and subsequent hurricanes and severe storms was the direct result of the Army Corps’ cumulative actions, omissions, and policies regarding the MR-GO that occurred over an extended period of time. * * *

In so finding, the court rejected the USACE claims that ascribed the damage to land subsidence, economic development or sea level rise as a primary factor for the storm surges.  That the United States took remedial action following Hurricane Katrina did not relieve it of any temporary takings liability, but may reduce damages.  Following the law of the case, the court also found Plaintiffs’ claims were not barred by the statute of limitations, because the risk of damage was incremental and had not stabilized outside the statute of limitations.  The court also found that a temporary taking had occurred because the flooding was severe and extended and Plaintiffs had no ability to access or use their property for a significant time following Hurricane Katrina.  Accordingly the court found a temporary taking had occurred and ordered the proceedings to turn to the issue of damages.

The 74-page decision in this case is an indictment of the mindset of initiation and expansion of environmentally damaging projects, followed by denial of liability and projecting blame elsewhere.  It may be that a higher court reverses this finding of liability; if so, the chain of causation indisputably leads back to previous unfortunate choices of the USACE and political establishment that have proven to be calamitous to residents of St. Bernard Parish.

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