Much of the flooding that devastated New Orleans' Lower
Ninth Ward and nearby St. Bernard Parish during 2005's
Hurricane Katrina was the fault of the U.S. Army Corps of
Engineers, a federal judge has ruled. In a harshly critical
156-page ruling, Judge Stanwood R. Duval Jr. found that the
Corps' negligent maintenance of the Mississippi River Gulf
Outlet (MRGO) navigational channel created hazardous conditions
that allowed Hurricane Katrina's storm surge to penetrate two
key Federal levees and flood the low-lying neighborhoods.
The suit was brought by just a handful of Louisiana
homeowners. But if it holds up on appeal, Judge Duval's
decision could expose the U.S. Government to far more extensive
legal claims, reports the New York Times
("
Ruling on Katrina Flooding Favors Homeowners," by Campbell
Robertson): "Though the judge granted six of the plaintiffs in
this lawsuit a total of less than $750,000, tens of thousands
of other property owners could now try to join class-action
lawsuits against the government under the same legal
reasoning."
The New Orleans suit involves unusual circumstances.
Ordinarily, Federal law insulates the Army Corps from any
liability connected with flood control systems such as levees.
And Judge Duval in 2008 upheld that immunity in an earlier case
against the Corps that was based on claims of deficient levee
construction. But the MRGO lawsuit, Judge Duval held, is based
on negligent operation and maintenance of a shipping channel,
not a levee, and he said that the Corps' immunity does not hold
in that case. Just as the government would be held to account
if a Navy vessel crashed into a levee and caused catastrophic
flooding, so, the judge said, should the Corps be liable if one
of its canal projects helped to destroy one of its own levees.
And it was the Corps' "myopia" in managing the channel that
damaged and destroyed the levees, reasoned the judge: "The
failure to maintain the MRGO properly compromised the Reach 2
Levee and created a substantial risk of catastrophic loss of
human life and private property due to this malfeasance."
The Corps is virtually certain to appeal the verdict. Corps
spokesman Ken Holder said in a statement, "Until such time as
the litigation is completed, including the appellate process up
to and through the U.S. Supreme Court, no activity is expected
to be taken on any of these claims." And some legal experts
expect Judge Duval's limitation of the Corps' immunity to be
reversed. Predicted CBS legal analyst Andrew Cohen, "As we get
higher up the appellate ladder, the judges are going to
intervene and basically save the Army from having to pay this
lawsuit and the potential for other lawsuits down the road."
CBS News coverage is available in this YouTube video
("Fed's
Role in Katrina Flooding," reported by Byron Pitts).
The case against the Corps rests largely on the agency's
failure to armor the channel's banks against erosion.
Originally authorized as a 600-foot-wide and 32-foot-deep
channel, MRGO had expanded to as wide as 1900 feet or more
because of turbulent waves created by the wakes of passing
ships. Continual dredging had also deepened the channel to 75
feet in places. Reports dating back decades showed that the
Corps had recognized from the channel's earliest days that
erosion was widening the channel and threatening the levees,
but took no action, the judge's opinion says: "Thus as
overwhelmingly demonstrated at trial, this subsequent erosion
resulting in the width of the channel increasing by more than 3
times its authorized width was caused by the Corps’
failure to armor the banks of the MRGO to prevent (1) boat
wakes causing erosion of the banks; 2) excavation and
maintenance dredging causing bank slumping; and 3) saltwater
intrusion killing vegetation and promoting organic decay."
As protective banks at the toes of the levees wore away,
soft clay under the levees was squeezed outward and the levees
themselves sank by several feet per decade, requiring continual
rebuilding. The wider canal allowed more "fetch" for the
buildup of destructive waves during the hurricane, while the
destruction of many square miles of wetlands along the canal
and near its seaward mouth removed a critical barrier that
would otherwise have slowed and reduced the oncoming hurricane
storm surge. In these ways, the judge concluded, MRGO's
unchecked sprawl directly caused levee failures and destructive
flooding.
Whether higher courts uphold Judge Duval's legal analysis or
not, they are unlikely to re-examine his assessment of the
facts and evidence in the case — an area where trial
court judges typically have wide discretion. And whatever
happens on appeal, one casualty in the case may be the Corps of
Engineers' own battered credibility. Judge Duval took the
Corps' expert witnesses to task in blunt terms, accusing some
Corps personnel of, in essence, fudging their data to support
their wished-for conclusions. The Corps' argument that the
levees were overtopped by a high storm surge, rather than
eroded from the front by wave action on the shipping channel,
depended on some key assumptions about storm surge height and
timing — assumptions that the Judge virtually accused
the Corps of making up.
"While the computer programs used by the Government to prove
causation were substantially analogous to those used by
plaintiffs, after hearing the testimony and having reviewed the
expert reports presented, the Court finds that some of the
Corps' models are critically compromised by the use of input
data that has been overly 'scaled' to obtain the results,"
wrote Judge Duval. "The reason for such a finding is that many
of the Corps' 'facts' or inputs are controverted by hard
evidence presented in this case." Engineer Bruce Ebersole,
Chief of the Flood and Storm Protection Division of the United
States Corps of Engineers in Vicksburg and the leader of the
Corps' analytical team for the lawsuit, came in for particular
criticism. According to Judge Duval, Ebersole applied various
multipliers to the measured storm surge wave heights in order
to arrive at levels that could overtop the levees rather than
eroding them from the front. Further, the judge complained,
Ebersole became "obstreperous" in avoiding some detail
questions. Calling the engineer's testimony "highly equivocal
and less than candid," the judge concluded, "Simply put, the
Court finds that some of these models were manipulated."
Robert Bea, a University of California (Berkeley)
engineering professor who testified as an expert witness for
the plaintiffs in the case, says the case calls into question
levee construction and safety generally, reports the Los
Angeles Times
("
Effects of judge's Katrina ruling could be huge," by
Richard Fausset and Ralph Vartabedian). Bea told the Times,
"The American public frequently believes they are protected by
these piles of dirt that we call levees, when they are not. I
hope this ruling would serve as a wake-up call."
But even if it stands, the legal implications of this case
are restricted to similar cases. In most cases where a levee is
breached, the government's sovereign immunity will remain
intact — and citizens who live in a flood plain behind
a levee, whether the levee is adequate or deficient, do so at
their own risk.