Katrina suit against U.S. government moves forward.

New Orleans residents who have been seeking relief for damages caused by Hurricane Katrina's heavy floods can sue the U.S. Army Corps of Engineers for negligent design, construction, and operation of the 76-mile-long Mississippi River Gulf Outlet (MRGO), a federal judge has ruled. (Robinson v. United States, 2007 WL 293163 (E.D. La. Feb. 2, 2007).)

The ruling by Judge Stanwood Duval Jr. of the Eastern District of Louisiana has also paved the way for lawsuits in other areas of the city where levees collapsed during the hurricane, attorneys say.

The six plaintiffs sued the government under the Federal Tort Claims Act, alleging that damages caused by the catastrophic flooding in areas surrounding the MRGO were foreseeable. They claim that the Corps knew the waterway's erosion of marshlands protecting the levees could intensify a huge east-west storm surge, and that the funnel effect stemming from the MRGO design accelerated that surge to "epic proportions."

Duval granted the plaintiffs standing despite the Corps' claim of immunity under [section] 3 of the Flood Control Act, which releases government agencies from liability relating to flood control projects--specifically, "for any damage from or by floods or floodwaters."

"[W]hile arguably the immediate cause of the damage was indeed 'floodwaters,' the causation for such floodwaters' force and breadth [is] alleged to have been the defalcations of the government with respect to the MRGO," Duval wrote in his opinion.

"Plaintiffs are not seeking damages for the failure of the levees or flood projects," he wrote. "Plaintiffs contend that MRGO has absolutely nothing to do with a flood control project."

Duval noted that several previous court decisions involving the MRGO affirmed that the channel was built with the sole intention to aid navigation. The government argued that certain levees constructed after the MRGO was built constitute flood control projects. "It is certainly not clear that the MRGO has morphed into a hybrid flood control project/navigational aid project," Duval wrote, adding that the question should be decided at trial.

"The ruling certainly gives the citizens of New Orleans the opportunity to have an impartial venue review all the facts in respect to MRGO's history and the destruction caused by the construction of that channel," said Calvin Fayard Jr., an attorney based in Denham Springs, Louisiana, who is part of the levee litigation group made up of more than 20 firms.

"It's not just Katrina victims who now have a ray of hope--people all over the United States should be interested in this ruling," said Los Angeles-based Pierce O'Donnell, a lead attorney for the plaintiffs, in a statement. He noted that the Corps built more than 9,000 miles of levees in the country and a recent study has questioned the stability of 146 levees.

The Corps declined to comment on the pending litigation. In December, it announced a plan to close the navigation outlet.

A week after Duval's ruling, New Orleans-based Joseph Bruno, another lead attorney in the case, filed a class action against the Corps on behalf of six residents from another part of the city devastated by the floods. The class action alleges that the Corps' negligence caused a levee in the 17th Street Canal--one of the three main channels to pump water out of the city after heavy rainfalls--to collapse during Katrina. (Greet v. United States, No. 2:07-cv-00647-SRD-JCW (E.D. La. filed Feb. 8, 2007).)

The canal has historically been navigated mainly by shrimp and other fishing boats. Like the MRGO case, this one will turn on whether the canal is a navigation waterway or a flood control project.

The Greet plaintiffs allege that the Corps was negligent in granting the New Orleans Sewage and Water Board a permit to dredge the canal to deepen its bottom, ignoring studies that indicated dredging would destroy the levee in light of the area's weak soil. The Corps approved sheet pile structural barriers two feet higher than the canal's bottom.

"The fact that the canal bottom was lower than the sheet pile tips allowed seepage of water under the flood protection levee over a long period of time, causing it to fail catastrophically and flooding the city," according to the Greer complaint.

The canal lawsuit will be added to Duval's docket. Bruno and Fayard said they are confident that the judge's reasoning in the MRGO suit will also apply in this case.

"The activity of the Corps in granting the permit was not a flood control activity," Bruno said. "What Congress had in mind [in passing the Flood Control Act] was not immunity from liability for [the government's] own negligence."

Bruno plans to file additional lawsuits against the Corps; among them will be one on behalf of residents who lived near the London Avenue Canal in New Orleans.