Judge: Corps' mismanagement doomed homes in New Orleans

spokesman Charles Miller said late Wednesday that “The government will review the judge’s ruling.”

Schleifstein writes that the Justice Department is expected to appeal the decision to the U.S. 5th Circuit Court of Appeals, and then to the U.S. Supreme Court, if necessary.

The corps has estimated that it received more than 490,000 claims forms in the aftermath of Katrina and Hurricane Rita in 2005, but those forms include many from areas not covered by this decision. “Until such time as the litigation is completed, including the appellate process up to and through the U.S. Supreme Court, no activity is expected to be taken on any of these claims,” corps spokesman Ken Holder said.

Bruno and O’Donnell said they expect to travel to Washington, D.C., as early as next week to persuade the Obama administration and members of Congress to consider revisiting requests for compensation by New Orleans area residents in both the areas covered by the decision and in other areas flooded by corps-related levee failures.

Duval had ruled last year that, while failures of flood-control structures might be the cause of damage in other areas, a 1928 federal law granted the corps immunity from damages. In that ruling, however, he said the immunity clause did not extend to the MR-GO, which was a navigation channel and not a flood-control structure.

“We’re hoping the new administration and the new Congress will view this decision in a new light,” O’Donnell said. “This decision should act as a catalyst to finally work out a settlement for all the people of New Orleans.”

In his decision, Duval said his duty was to determine “whether the corps’ activities with respect to the MR-GO acted like that Navy vessel destroying the levee.” The answer was resoundingly yes, he concluded, the result of the failure of the corps to deal with the effects of the shipping shortcut to downtown New Orleans on an adjacent seven-mile stretch of hurricane protection levee between Bayou Dupre and Bayou Bienvenue.

The corps allowed the channel to attack the levees in three ways, Duval said, allowing the levees to slump under their own weight, failing to armor the channel’s banks against ship wakes and allowing saltwater to exacerbate the loss of wetlands throughout the area.

Duval dismissed Justice Department lawyers’ arguments that the corps’ decisions were discretionary policy judgments of their professional staff and thus protected under federal law.

Duval ruled, however, that WDSU-TV anchor Norman Robinson and his wife were not entitled to damages because the corps’ dredging of the MR-GO did not affect the levee system that protects eastern New Orleans from hurricane storm surge. That probably means eastern New Orleans residents would not be able to collect on claims they’ve filed against the corps, said attorneys representing plaintiffs in the case.

“Ignoring safety and poor engineering are not policy, and clearly the Corps engaged in such activities,” he said.

“The loss of wetlands and widening of the channel brought about by the operation and maintenance of the MR-GO clearly were a substantial cause of plaintiffs’ injury,” he said. “Had the Corps adequately reported under the (National Environmental Police Act) standards, their activities and the effect on the human environment would have had a full airing.”

In determining damages, Duval found that most of those involved in this first lawsuit had evacuated, and thus were not entitled to mental anguish compensation. Also, not all of the water that flooded the various areas came from the section of levee affected by the MR-GO.

In the case of the Robinsons, he found that the corps was not negligent in deciding against building a surge protection barrier across the funnel formed by the joining of the

MR-GO, and the Gulf Intracoastal Waterway, which would have reduced flooding in eastern New Orleans. Such a barrier is now being built.

Duval found in favor of Anthony and Lucille Franz, who owned a home on St. Claude Avenue in the Lower 9th Ward, and awarded them $100,000 plus interest and court costs; Tanya Smith of Chalmette, awarding her $317,000 and interest and court costs; former Tulane University football player Kent Lattimore, who lost his St. Bernard trailer home, $134,665, interest and court costs; and his Lattimore and Associates real estate appraisal business, $168,033.25 with interest and court costs.

It dismissed the Robinsons’ lawsuit and ordered them and the government to pay their own court costs.

Duval was appointed to the bench by former President Bill Clinton.