The 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
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
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