Court Clears Way for Suit Against Federal Government in New Orleans Katrina Flooding

From The New York Times 

February 3, 2007 Saturday

By JOHN SCHWARTZ
Residents of several neighborhoods in the New Orleans area that were hardest hit by flooding after Hurricane Katrina can sue the Army Corps of Engineers over their claims that a government-built navigation channel was largely to blame, a federal judge ruled yesterday.

Successful lawsuits against the corps could result in billions of dollars in damage payments.

Since the flood, those who lived in the devastated neighborhoods near the east side of New Orleans -- including the Lower Ninth Ward, New Orleans East and St. Bernard Parish -- have contended that the Mississippi River Gulf Outlet caused much of their damage by intensifying the surge from the storm. The damage, they say, was foreseeable.

After residents filed lawsuits, the government tried to get them dismissed. The corps argued that it was protected from lawsuits by the Flood Control Act of 1928, which grants it immunity from liability for flood damage caused by flood-control projects, like levees.

But yesterday, Judge Stanwood R. Duval Jr. of the Federal District Court for the Eastern District of Louisiana, cited previous cases saying that the channel was not a flood-control project. Instead, Judge Duval said, the cases say the channel -- known locally as Mr. Go -- was built as an aid to navigation, so the protection from liability might not apply. And so, he said, the questions deserved to be decided at trial.

Pierce O'Donnell, a lawyer for those suing the government, called the ruling ''a landmark victory for the Katrina

The 76-mile canal was completed in 1965 as a shortcut for ships heading from the Mississippi River to the Gulf of Mexico. Environmentalists and local officials have long argued that it has done great damage to the coastal environment by piping salt water inland and killing off the cypress swamps and grassy marshes that serve as natural barriers to storms.

During Hurricane victims.'' But Joseph Bruno, another lawyer for the residents, acknowledged that the judge's ruling was only the first step.Katrina, several scientists have said, the canal was a crucial part of a funnel that amplified the storm's surge and brought its waters into the heart of the city.

A spokesman for the corps in New Orleans, Rene Poche, declined to discuss pending litigation. The corps has previously argued that the channel did not contribute greatly to the disaster, but announced a plan last year to close the outlet to navigation. That plan does not go far enough for the channel's critics, who demand that it be filled in and the wetland buffer restored.

Also yesterday, President Bush nominated a new leader for the corps, Lt. Gen. Robert L. Van Antwerp Jr. of the Army. If approved by the Senate, General Van Antwerp will succeed Lt. Gen. Carl A. Strock, who announced last August that he intended to resign. General Van Antwerp has been serving as commanding general for the Army accessions command, which manages recruiting and initial training.