Statement from plaintiffs' attorneys in corps lawsuit - NOLA.com

Statement from plaintiffs' attorneys in corps lawsuit - NOLA.com

Judge Duval ruled that the 17th Street, London and Orleans Avenue outfall canals were federal flood control projects and therefore statutorily immune from suit under the Flood Control Act of 1928. Joseph M. Bruno, the Plaintiffs' Lead Counsel in the consolidated Katrina litigation who along with a team of attorneys filed litigation on behalf of over 300,000 New Orleans residents, businesses, and property owners says the legal team intends to appeal the decision to the United States Court of Appeals for the Fifth Circuit.

"This decision, if allowed to stand, would mean that there is no Congressional oversight, nor review of the Corps' actions which, in this instance, resulted in the greatest engineering disaster in the history of this country," Bruno said. "On a more personal level, the families of the deceased, and the thousands of families who lost everything will have no way of seeking some justice and restitution. In this case, well over 300,000 homes and businesses were wiped out because of the Corps' arbitrary, capricious, and in many instances even reckless acts in carrying out its Congressional mandate. Now, more than ever, Congress needs to conduct a full review of the Corps' conduct by establishing an August 29 commission similar to the one established after September 11th tragedy without delay. We are calling upon all citizens to write their senators and congressmen to demand the Corps be held accountable." Bruno said.

In the 46-page decision, Judge Duval commented on the immunity shielding the Corps:
"This story-fifty years in the making-is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the Corps' own calculations. The Byzantine funding and appropriation methods for this undertaking were in large part a cause of this failure." Opinion, p. 44

"The cruel irony here is that the Corps cast a blind eye, either as a result of executive directives or bureaucratic parsimony, to flooding caused by drainage needs and until otherwise directed by Congress, solely focused on flooding caused by storm surge. Nonetheless, damage caused by either type of flooding is ultimately borne by the same public fisc. Such egregious myopia is a caricature of bureaucratic inefficiency." P.45

The lawsuit alleges that the Corps unilaterally abandoned the authorized plan of protection of the Lake Pontchartrain Hurricane Protection Project that was mandated by Congress in 1965 (the so-called "Barrier Plan"). The Barrier Plan would have protected metropolitan New Orleans from deadly storm surges entering Lake Pontchartrain from the Gulf of Mexico and Lake Borgne . As a consequence of that decision, the Corps finally had to implement a "High-Level Plan" which posed numerous known design problems, most notably weak foundation soils. This crucial change in the plan of protection for the New Orleans metropolitan area was made without the necessary authorization from Congress, and the plaintiffs argue that this lack of authorization removed the Corps from the immunity afforded by the Flood Control Act.

Furthermore, with regard to the 17th Street Outfall Canal, the plaintiffs contended that the stability of the canal embankment on the Orleans Parish side was severely compromised when the Corps authorized the dredging of approximately 470,000 qf of canal bottom by the New Orleans Sewerage and Water Board. The lawsuit alleges numerous instances of negligence and cites expert reports warning the Corps of the failure of the canal due to weak soils as far back as 1974. Since the Corps had authorized the dredging of the canal as part of a local drainage project, not a federal flood control project, plaintiffs contend that the Corps should not be entitled to the immunity afforded by the Flood Control Act.