Katrina: Tort Claims Act trial begins against Army Corps of Engineers

The bench trial against the Army Corps of Engineers began today before Judge Stanwood Duval in U.S. District Court in New Orleans, reports the Times.

Robinson v. United States of America, Civil No. 06-2268, (EDLA) is the bellwether trial for a settlement class of those who suffered losses when hurricane Katrina overwhelmed the levees protecting New Orleans, Louisiana. The passionate complaint alleges unfathomable losses due to design defects in the Army Corps of Engineers' "design, construction, operation, and maintenance of the Missippi River Gulf Outlet". MR-GO is a navigation canal dug through the Louisiana wetlands to the sea. (Because it is not a flood control measure the Federal Tort Claims Act allows negligence claims against the United States).

The canal, which history has shown to be a catastrophic mistake, has been `deauthorized' by the Army Corps of Engineers. It will soon be blocked by a huge concrete wall, and work has begun to restore the protective wetlands destroyed by the straight-as-an-arrow ship canal.

The complaint alleges that the "drowning" of the City and the massive damage were the

"foreseeable consequences of two fatally defective conditions known by the United States Army Corps of Engineers (HAnny Corps") for decades:

(1) the destruction ofthe marshlands surrounding the MR-GO that intensified a huge east-west storm surge resulting in the inundation of much of New Orleans; and

(2) the funnel effect stemming from the MR-GO's faulty design that accelerated the force and strength of the storm surge to lethal proportions.

Absent the exacerbating effect of the MR-GO, aptly nicknarned the "Hurricane Highway," Katrina would have been an endurable event in New Orleans' history rather than the obliterating force that destroyed lives and businesses, displaced thousands of people, and devastated much of a great American city known for its historic grace and beauty."

The funnel effect is demonstrated by the drawing above. It is the phenomenon described by Bernoulli's Theorem - which applies to both liquids and gases. The canyon effect on New York's streets is a concrete example. The straight-line to the sea built by the Army Corps created a firehose pouring into the City when the Katrina storm surge hit at just the right angle. As a reporter I'll follow it.

Further "the Army Corps was well aware of-but did nothing to correct-the faulty design of the MR-GO, described in 2002 as "a shotgun pointed straight at New Orleans, should a major hurricane approach from that angle." The MR-GO is a straight arrow pointed at Greater New Orleans with no barriers or other means to slow down storm-driven surges. In addition, the MR-GO creates a funnel effect where the MR-GO intersects the Gulf Intracoastal Waterway ("GIWW"), furiously accelerating the power and force of the storm surge while channeling it directly into the Industrial Canal (also known as the Inner Harbor Navigational Canal ("nINC'). This funnel effect caused the inuudation of New Orleans East, St. Bernard Parish, and the Lower Ninth Ward."

In 2007 Judge Duval denied the U.S. motion to dismiss under 12 (b)(1) and (6), rejecting the claim that "discretionary function" immunity applied because

"the Court finds, at a minimum, that plaintiffs' allegations

concerning:

(1) the failure of the Army Corp to consult with the U.S. Fish and Wildlife Service and the Louisiana Department of Wild Life and Fisheries–and to present these agencies' concerns to Congress about the MRGO alignment and the effect thereof on the wetlands–as required by statute;

(2) the numerosity of the decisions made in constructing and maintaining the MRGO and the inability on this record to characterize such decisions as being grounded in policy;

(3) the issue of whether there were non-policy based decisions made that failed to comport with standard engineering practices;

raises issues that are inextricably tied to the gravamen of the plaintiffs' cause of action and are not subject to Rule 12(b)(1) treatment."

That is - a trial - now commenced - is needed to determine the facts.