Judge hears immunity claims on Katrina

A judge on Thursday told the lead attorney in a class-action lawsuit that accuses the Army Corps of Engineers of negligence in Hurricane Katrina flooding that he is "climbing up a hill" because the courts must abide by Congress' wishes.

The comments by U.S. District Judge Stanwood Duval Jr. suggested that he may not allow the lawsuit to move forward. He gave no indication at Thursday's hearing when he would make a decision.

The corps claims that it can't be sued for the collapse of a flood wall and levee on the 17th Street Canal during the 2005 hurricane that flooded 80 percent of the city. Projects that fall under the Flood Control Act passed by Congress in 1928 have legal immunity, and the corps says the canal was part of the hurricane protection system it built over 40 years to defend New Orleans from storms.

Robin Smith, the Justice Department lawyer presenting the government's case, said it was "undeniable" that it was a standard case of flooding as envisioned by the Flood Control Act.

The plaintiffs argue that the levee along the canal was seriously damaged before Katrina because the corps allowed the large drainage ditch to be dredged, and that the corps was negligent in issuing permits to the city's drainage department to deepen the canal. Joseph Bruno, the lead plaintiffs attorney, said there is evidence the corps abused its authority.

The government says it enjoys broad discretion in how it handles its business. Duval agreed and said the courts have consistently shot down suits challenging the legality of permits.

"It is indeed lamentable that if the court rules in favor of the government that it would appear the king can do no wrong," Duval said.

But, he said, the courts must abide by Congress' wishes in the 1928 act and there is a preponderance of judicial rulings that support the government's privilege.

Duval told Bruno he was at a disadvantage as the attorney got up to argue that immunity does not apply in this case.

"Mr. Bruno, you know where you are here?" Duval said. "You're climbing up a hill. But sometimes people make it to the top."

The lawsuit is tied to others against the corps that blame the agency for the flooding. Also linked to this set of litigation are hundreds of thousands of businesses and people who filed claims against the agency seeking billions of dollars in damages.

The fate of those individual claims will likely be determined by the outcome of the 17th Street lawsuit and a related case accusing the corps of improperly maintaining a shipping channel east of the city called the Mississippi River-Gulf Outlet.

In that case, Duval ruled in February that the corps can be held liable.

Bruno gave a detailed argument based on letters, reports and memos that he said show that the 17th Street was not a federal flood control project.