Tue, 18 Jun 2013 22:14:37 -0600WeeblyTue, 06 Mar 2012 15:14:48 GMThttp://raylawandmediation.com/1/post/2012/03/fifth-circuit-rules-for-some-katrina-victims-and-against-government.htmlThe Fifth Circuit, in IN RE: KATRINA CANAL BREACHES LITIGATION, decided March 2nd, upheld a district court's rulings in which some plaintiffs were allowed to recover damages for the breach of levees caused by Katrina while others were not. The issue decided was whether the government was immune under the Flood Control Act of 1928 or the Federal Tort Claims Act. 

Some plaintiffs  were allowed to recover for damaged caused by a breach in the levee along Reach 2 of Mississippi River Gulf Outlet ("MRGO") caused by the government's failure to armor the banks of the MRGO, which was built to make the Port of New Orleans more  accessible for maritime and military use.  The MRGO was designed to be 26 feet deep and 500 feet wide.  Because of erosion, the MRGO had an average width of 1700 feet at the time of Katrina. 

In considering the FCA, the 5th Circuit adopted a slightly different rule than the district court.  Whereas the district court  "would have immunity attach only where a flood was caused by a project that had the purpose of flood control, [the Fifth Circuit would] recognize immunity for any flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control. 

The Fifth Circuit would find immunity "if the foreshore protection had flood control as its purpose—that is, if installing and maintaining foreshore protection was a flood-control activity regardless of the nature of MRGO, the overall project."

Despite this difference with the district court, the Fifth Circuit found for some plaintiff because the government chose to dredge the MRGO to keep it navigable rather than implement costlier foreshore protection, which would have had the dual purpose of keeping MRGO navigable and protecting the levees. Therefore, the government took no action that could be characterized as flood-control activity.

Other plaintiffs were not so lucky becauses the breached levees causing them damage were the result of dredging that was done or related to flood control activity. 

As for the Federal Tort Claims Act, the Fifth Circuit found for some plaintiffs because the governments decision to wait to armor the MRGO did not fall within the discretionary-function exception (“DFE”) to the FTCA. Basically the government failed to armor the MRGO because it believed the new channel would be of no "consequence in affecting water surface elevations for major storms and hurricanes" rather than based upon a policy consideration that would fall within the DFE.

http://docs.justia.com/cases/federal/appellate-courts/ca5/11-30808/11-30808-2012-03-02.pdf
  ]]>Thu, 23 Feb 2012 19:58:51 GMThttp://raylawandmediation.com/1/post/2012/02/us-supreme-courts-goes-historically-geographical.htmlProbably not the most interesting opinion ever written by the U.S. Supreme Court, but for those historical or geographical enthusiasts, the Court's decision today in PPL Montana, LLC v. Montana makes for an interesting read. The Supreme Court basically disagreed with the Montana Supreme Court over whether or not segments of three rivers were navigable at the time Montana became a state--and therefore, whether Montana could charge rent to a company that operated dams on the river banks.  Montana said yes, but the US Supreme Court said no.  

I think the Court's decision that that the river was not navigable if you had to take your boat out of the river and walk it pass numerous falls and rapids before reentering the river has a lot of common sense behind it. 

Interesting read in that the Court describes the rivers and even cites diary entries from the Lewis and Clark expedition regarding the rivers and their navigability. 

The opinion is at http://www.supremecourt.gov/​opinions/11pdf/10-218.pdf.

 
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