Thursday, July 27, 2006

Corps of Engineers

Words fail me. From today's Times Picayune:

Corps: We can't be held liable
Engineers ask judge to dismiss lawsuit

Thursday, July 27, 2006
By Susan Finch

Arguing that it can't be held liable for damage caused by flooding and that Congress allows it discretion to choose construction methods, the Army Corps of Engineers has asked a federal judge to dismiss a lawsuit that blames the agency for flooding that destroyed homes in eastern New Orleans, the Lower 9th Ward and St. Bernard Parish after Hurricane Katrina.
The lawsuit was filed in April by WDSU-TV anchorman and eastern New Orleans resident Norman Robinson, a Lower 9th Ward couple and two St. Bernard residents.

They charge that corps negligence since 1958 in the construction, design, operation and maintenance of the Mississippi River-Gulf Outlet eroded wetlands, which had slowed storms down, and turned the ship channel into a superhighway that funneled Katrina's powerful tidal surges toward them, breaking levees along the way.

Attorneys for the plaintiffs maintain that while the 1928 law protects the corps against lawsuits over its flood-control projects, it does not bar claims for damage resulting from corps navigation projects, such as the MR-GO. They maintain that a 1971 ruling by the 5th U.S. Circuit Court of Appeals after Hurricane Betsy in a case called Graci v. United States established the MR-GO as a navigation aid, not a flood-control project.

But in a 51-page memorandum they handed U.S. District Judge Stanwood Duval on Monday, corps attorneys maintain the plaintiffs' legal team is wrong.

First, they said, the Graci decision has been supplanted by a 2001 U.S. Supreme Court ruling that said, "Whenever damages result 'from or by flood or flood waters,' the United States is absolutely immune."

"The flood at issue in Graci was not one that involved a federal flood control project; the flood at issue here is one that did," the corps argues.

The corps lawyers also fault what they say is the other side's failure to take into account the additional protection afforded since Hurricane Betsy by levees the corps has built around the New Orleans area.

"Inasmuch as the plaintiffs' alleged damages result from floodwaters that the flood control project failed to control, the immunity afforded (by federal law) applies, notwithstanding the purported involvement of MR-GO in causing the flood," corps attorneys wrote.

Finally, the corps lawyers insist, the agency only carries out the directives of Congress in building projects, the MR-GO included.

The plaintiffs' side isn't due to file its formal response to the corps' pleading until next month.
But one member of the plaintiff team, attorney Joe Bruno of New Orleans, took issue with the corps' brief on several fronts.

"We're not complaining about the (MR-GO) levees," he said. "So who cares if there are levees surrounding an otherwise defective navigable waterway?'

Bruno said that just because Congress authorizes a project "doesn't mean you get to build the thing incorrectly." He pointed to a court ruling that held a government negligent for failing to turn on the light in a lighthouse whose construction it authorized.
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