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Katrina Class Action Defense Cases-In re Katrina: Louisiana Federal Court Dismisses Class Action Complaint Against Government Finding Class Action Claims Based On Levee System Failure During Hurricane Katrina Barred By Governmental Immunity

Class Action Claims Against Federal Government Arising out of Failed Levee System Fell Within Immunity Afforded by Flood Control Act thus Warranting Dismissal of Class Action Complaint as to Government Louisiana Federal Court Holds

Plaintiffs filed a class action complaint against various defendants, including the U.S. Army Corps of Engineers, arising out of the “catastrophic failures of the levee system surrounding New Orleans and its vicinity” as a result of Hurricane Katrina, centering on the “breaches and failures that occurred at the three ‘outfall canals’ and the floodwalls constructed thereon.” In re Katrina Canal Breaches Consolidated Litig., ___ F.Supp.2d ___ (E.D. La. January 30, 2008) [Slip Opn., at 1-2]. The canals at issue in the class action “serve as conduits for the drainage of excess water from the streets of New Orleans during rain events, [but] these same canals become channels for incoming storm surge creating increased risk of flooding caused by Lake Pontchartrain hurricane driven water.” Id., at 2. Defense attorneys for the federal government moved to dismiss the class action claims against it, id., at 1, and in ruling on the motion the district court relied on an “exhaustive report” prepared by the U.S. Army Corps of Engineers that, in the court’s words, “provides detailed time lines and discussions concerning what proved to be a fifty-year exercise in ineptitude and gross economic and technological mismanagement,” id., at 3 n.2.

As to the U.S. Army Corps of Engineers, plaintiffs’ 73-page class action complaint, brought under the Federal Tort Claims Act, alleged that the Corps “had the legal responsibility and duty to these plaintiffs to cause, allow, and/or conduct the aforesaid dredging activity in a manner that would not compromise the safety of the canal’s levee/flood wall system” but that the Corps “(1) negligently failed to follow federal regulations and its own engineering standards and procedures , in regard to the issuance of a permit to dredge the 17th Street Canal…; (2) violated federal law to the extent [that] the River & Harbors Act prohibits the granting of a dredging permit that is contrary to the public interest…; (3) violated of federal regulations…for failing to properly balance the benefits of the requested dredging against the reasonably foreseeable harm, including possible harm related to detrimental effects on flood Control…; [and] (4) negligently issued a dredging permit which cased and allowed changes to occur in the 17th Street Canal Bottom, leading to subsurface and soil destabilization of the canal levee….” In re Katrina, at 19-20. Defense attorneys moved to dismiss the class action claims against the U.S. “based on § 702c immunity granted under the Flood Control Act of 1928 [(FCA)] and the discretionary function exception with respect to allegations of the negligent granting of the dredging permit of the 17th St. Canal.” Id., at 21.

Preliminary to its discussion of the merits, the federal court provided “a review of the Corps’ approach to hurricane protection and drainage issues of this area,” In re Katrina, at 3. That detailed summary, which the court broke up into time periods of 1955-1965, 1965-1975, 1976-1990 and 1990-2005, may be found at pages 3 to 19 of the court’s Slip Opinion. In support of its contention that the district court lacked subject matter jurisdiction based on 33 U.S.C. § 702c (see Note), the defense argued that the federal government was immune from suit because the waters that damaged plaintiffs’ properties were “flood waters” within the meaning of § 702c. Alternatively the defense argued that the Government was immune because the damages resulted from “flood waters that federal works failed to control.” Id., at 26-27. Plaintiffs advanced a litany of responses, see id., at 27-28, but the district court concluded that the “broad immunity” afforded by Congress barred the class action claims, see id., at 28-35. The court further held that the class action claim for negligent granting of a dredging permit fell within the scope of § 702c immunity, see id., at 36-37, and that it would in any event be barred by the “discretionary function exception,” see id., at 38-43.

In the end, then, while the district court had harsh words for the manner in which the federal government constructed and maintained the levee and canal system, it granted the defense motion to dismiss the claims against the government. See In re Katrina, at 44-46.

NOTE: 33 U.S.C. § 702c provides in part: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, That if in carrying out the purposes of sections 702a, 702b to 702d, 702e to 702g, 702h, 702i, 702j, 702k, 702l, 702m, and 704 of this title it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not now overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of the Army and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.”

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