Friday, February 01, 2008

New Orleans Screwed...Again

February 1, 2008
In Court Ruling On Floods, More Pain For New Orleans


NEW ORLEANS — There is disappointment but little surprise here at a federal judge’s grudgingly absolving the Army Corps of Engineers of liability in the flooding of New Orleans after Hurricane Katrina.

Although the decision, issued Wednesday, was sharply critical of the corps, the judge’s finding has if anything only hardened the ill feelings against the government that have hung over this city since the storm.

The plaintiffs in the class-action suit dismissed by the judge were many of the hundreds of thousands of people who filed claims here against the corps last year because of the levee breaches that flooded the city. They lined up in cars and on foot and jammed the streets around the agency’s district headquarters, acting out what has been a loudly spoken article of faith since the days in 2005 when water covered 80 percent of New Orleans and ruined the homes of thousands: the corps — not nature, not a record-breaking storm surge and not local politics or local negligence — was to blame.

The judge, Stanwood R. Duval Jr. of the Federal District Court here, a son of South Louisiana, heartily seconded that notion on Wednesday, suggesting that the corps was guilty of “gross incompetence.” But Judge Duval said he was powerless to rule favorably on the lawsuit because the Flood Control Act of 1928 granted legal immunity to the government in the event of failure of flood control projects like levees.

Kathy Gibbs, a corps spokeswoman, said the agency agreed with the dismissal, but declined further comment because other suits over Hurricane Katrina damage are pending, The Associated Press reported.

Local reaction to the ruling was muted. In part because the judge said last year that he would probably have to find the corps immune from damages, expectations appear to have been low, even as bitterness over the losses festered along with a desire to fix blame on the agency.

“There was almost a general understanding that — guess what? — they’re exempt from prosecution,” said Bari Landry, president of the Lakeview Civic Improvement Association, in a neighborhood devastated by the failure of the flood walls.

“We knew there was a very good chance this would not go forward,” Ms. Landry said. “I’m not at all surprised.”

Ms. Landry was one of some 350,000 people who filed claims. The lawyers who brought the suit dismissed Wednesday represented about 65,000 of those claimants. They said Thursday that they would appeal, arguing that the corps was not protected by the 1928 law’s immunity clause, largely because a change it had made to its flood protection plan for New Orleans had not been authorized by Congress.

If Judge Duval’s conclusion provided no comfort, his language did, echoing in legal terminology what has been strong criticism of the corps by activists, politicians and the local media.

“While the United States government is immune for legal liability for the defalcations alleged herein, it is not free, nor should it be, from posterity’s judgment concerning its failure to accomplish what was its task,” the judge wrote. “This story — 50 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’s own calculations.”

Though the ruling spotlighted many missteps by the corps over the years, it made little of other possible factors, including culpability of former local officials overseeing levees and drainage, and particularly their rejection of the corps’s original plan for floodgates on the drainage canals that so devastated the city.

Supporters of the claimants applauded Judge Duval’s language, suggesting that it might yet fuel their cause. “What we’ve had so far is just a suspicion,” said Joseph Bruno, a lawyer in the case. “You now have a U.S. federal district judge who’s had a chance to evaluate the facts and draw legal conclusions. Now you’ve got a determination where a guy says, ‘Look, but for the nuances of the statute, these people will be called on to pay.’ ”

Sandy Rosenthal of the activist group said: “Clearly Judge Duval is frustrated by what he had to do. It’s outrageous these levees were fragile. He and I agree the corps was responsible for the failure of the levees. It’s a positive thing that Judge Duval outlined all those things in his statements.”

The text of Judge Duval’s opinion is online at

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