Ruling Holding Army Corps Liable For Levee Failure During Katrina Raises Question Of Future Liability Of U.S. Government

Ruling Holding Army Corps Liable For Levee Failure During Katrina Raises Question Of Future Liability Of U.S. Government

One of the most important concepts that we inherited from the English common law was that of sovereign immunity, that a sovereign could not be sued without its consent. For over 150 years after the founding of our nation, an impenetrable levee surrounded the government of the United States, holding back a potential flood of litigation for torts committed by the employees, agents, and officers of the United States. As our legal system changed and progressed, the pressure on the sovereign immunity levee increased and cracks began to appear.
 
On August 2, 1946 the United States Congress breached the levee with the passage of the Federal Torts Claims Act (FTCA), 28 U.S.C.S. §§ 1346(b), 2671 et seq., which permitted the flow of tort claims to be brought against the United States. Last month, an entire section of the remaining levee collapsed as a result of Hurricane Katrina in a potentially far-reaching decision by Judge Stanwood Duval of the United States District Court for the Eastern District of Louisiana in his most recent In re Katrina Canal Breaches Consol. Litig., 2009 U.S. Dist. LEXIS 107836 (E.D. La. Nov. 18, 2009) opinion.
 
Several New Orleans property owners sought damages from the United States for the loss of their real and personal property from the flooding that occurred as a result of Hurricane Katrina in 2005. The plaintiffs claimed that the Army Corps of Engineers (Corps) had negligently operated and maintained the Mississippi River Gulf Outlet, commonly known as MR GO, and that this negligence caused the breaching of the levees that wrecked havoc and destruction on New Orleans.
 
In 1956, Congress authorized the Corps to proceed with its recommendation that a deep-draft channel be constructed east of the Mississippi River that would connect the Port of New Orleans with the Gulf of Mexico, creating a maritime shipping channel that would be sixty miles shorter than the existing shipping channel in the Mississippi River. MR GO was to be 36 feet deep and 500 feet wide and was substantially completed when Hurricane Betsy struck New Orleans in September, 1965, causing levee breaches and catastrophic flooding. A lawsuit seeking damages pursuant to the FTCA was dismissed, Graci v. United States, 435 F. Supp. 189 (E.D. La. 1977), on the basis that the plaintiffs in that action failed to show that the design and operation of MR GO was responsible for the flooding.
 
Three decades later the Eastern District of Louisiana reached a much different conclusion in the current Katrina litigation. The court found several significant problems with the long-term maintenance and operation of MR GO by the Corps that caused erosion of the wetland banks and flood protection levees. First, the banks of MR GO had not been protected from wave wash. As large ships passed through MR GO, which of course was the reason for the creation of MR GO, the resulting waves eroded the banks of MR GO, causing it to widen substantially. As the court found, “Wave wash would clearly result in the widening of the channel and therefore, increase the distance for waves to propagate, increasing the velocity of the flow of water, reducing the size of the berm protecting the Reach 2 Levee and in general placing the levee along Reach 2 in jeopardy.”
 
Second, MR GO was cut through soil know as fat clay, which the court described as follow. “Fat clays contain a great deal of water and fine grain clay and are subject to a phenomenon know as lateral displacement--that is when loads are placed on this soil, it tends to compress and run toward a path of least resistance--not unlike when a person squeezes a tube of toothpaste. Another quality of this kind of soil is that it tends to ‘slough’ or crumble slowly and fall away into water.”
 
Thus, by 2005, MR GO had reached an average channel width of 1970 feet, more than three times its original construction. The court explained the resulting environmental processes. “As noted, the Corps was aware of the malleable and shifting nature of the interdistributary soils through which the MRGO channel was dug and upon which the Reach 2 levee was constructed. Because the Corps failed to armor the banks of the MRGO when it saw the environmental effects that the channel caused, three processes came into play which effected the MRGO levee. Lateral displacement caused a substantial reduction in the height elevation of the levee. The berm which helps protect the levee (both stability and wave berm) was reduced to dangerous levels. Finally, the fetch or the open water length over which wind can blow and create greater wave action increased. As the width or fetch of the MRGO grew substantially more forceful frontside wave attack on the Reach 2 levee during Katrina was created.”
 
In addition, the intersection of MR GO with the Gulf Intracoastal Waterway near Michaud created a funnel that could cause Gulf water flowing up MR GO to back up, impacting the Chalmette Area Unit levees that protected the Lower Ninth Ward and St. Bernard Parish. “The Court finds that the Corps' negligent failure to maintain and operate the MRGO properly was a substantial cause for the fatal breaching of the Reach 2 Levee and the subsequent catastrophic flooding of the St. Bernard Polder occurred. This Court is utterly convinced that the Corps' failure to provide timely foreshore protection doomed the channel to grow to two to three times its design width and destroyed the banks which would have helped to protect the Reach 2 Levee from front-side wave attack as well as loss of height. In addition, the added width of the channel provided an added fetch which created a more forceful frontal wave attack on the levee.”
 
With causation established by the court, the Corps’ defense was based upon the Due Care and Discretionary Function exceptions to the FTCA. 28 U.S.C.S. § 2680(a) states that sovereign immunity is not waived for: “Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
 
The United States argued that the Due Care exception applied because the Corps never deviated from the language of the initial legislation in 1956 that had authorized the construction of MR GO, but the court found that argument “misses the mark and misinterprets the claims brought against it. . . .  Nothing was presented at trial that convinced this Court that with this mandate, the Corps was also given the latitude to allow the channel to multiply in width and negatively impact the Reach 2 Levee in the manner in which it did. This grant did not and could not have given the Corps the ability to ignore the unbridled growth of the channel. Foreshore protection and actions to relieve the effects of the increased salinity on the surrounding marshes, which were the causes of that growth, were recognized as probable from its inception. By 1967, the Corps recognized the need for that foreshore protection at least for the south shore of the MRGO and simply did not act on the knowledge. Due care was clearly absent in the Corps' actions as to the maintenance and operation of the MRGO. This exception is unavailable to the Corps.”
 
The court also found that the Discretionary Function exception was not applicable because “The Corps' failure to provide foreshore protection and address the effects of salt water intrusion were non-policy decisions concerning technical, engineering and professional judgments that directly involved safety. . . . Safety measures, once undertaken, cannot be shortchanged in the name of policy.” In addition, the Corps failed to follow the mandates of the National Environmental Policy Act of 1969, 42 U.S.C.S. §§ 4321-4370f, that required the completion of environmental impact statements. “Plaintiffs have presented substantial, clear and convincing evidence outlined above that the Corps itself internally recognized that the MRGO was causing significant changes in the environment--that is the disappearance of the adjacent wetlands to the MRGO and the effects thereof on the human environment--which triggered reporting requirements. The Corps cannot ignore the dictates of NEPA and then claim the protection of the discretionary exception based on its own apparent self-deception.”
 
So why is Judge Duval’s decision significant? Obviously, damages could run into the billions of dollars for the thousands of claimants who have not yet had their day in court, but a decision on damages is as much a political question for Congress as it is a legal question of the Corps and the Department of Justice. The larger issue is the impact that this decision, and a favorable appellate ruling, can have on the future liability of the United States government. Although New Orleans has received the most media attention because much of it sits at or below sea level, other coastal cities are at risk for a Hurricane Katrina type of storm. Scientists have warned, in particular, that Manhattan and Tampa could both suffer catastrophic losses. As population density continues to increase on the Gulf and Atlantic coasts, the FTCA could become a destructive sword aimed directly at the increasingly constrained federal budget.
 
[This blog originally appeared in Practice Area Insights of the Lexis® Hub. The Lexis® Hub is exactly what its name implies: the center of all things legal for young attorneys and about-to-be lawyers. Set Your Legal Career in Motion.]