A judge ruled Friday that the federal government must pay for a portion of the flooding damage from Hurricane Katrina, which she found to be caused by failures of the hurricane protection system in the New Orleans area.
Judge Susan G. Braden, of the United States Court of Federal Claims in Washington, focused on a navigation project built by the Army Corps of Engineers. The project is a canal known as the Mississippi River-Gulf Outlet.
The canal is linked to devastating flood damage in the Lower Ninth Ward neighborhood and damage to nearby St. Bernard Parish when the hurricane struck on Aug. 29, 2005. The canal was closed following the disaster.
Judge Braden found that the canal had “substantially expanded and eroded” over the years, and was a “ticking time bomb.”
She praised the Army in the suit, saying that it had been “open, transparent and helpful in educating the court to understand what happened.” She was, however, harshly critical of the Department of Justice, stating that it had “pursued a litigation strategy of contesting each and every issue.”
The judge didn’t determine how much the government should pay, but set a hearing for Wednesday to see whether a mediator can determine the matter. The payment is likely to be massive.
Up to this point efforts to force the federal government to pay for flooding from Hurricane Katrina have been unsuccessful, because the government is usually immune to claims resulting from failures of flood control projects.
A federal judge in New Orleans, Stanwood R. Duval Jr., ruled that damage related to the disputed canal was different because the canal’s purpose was navigation and not flood protection, even though it contained a number of levees. The United States Court of Appeals for the Fifth Circuit initially confirmed that decision but then withdrew its decision and overturned Judge Duval. The Supreme Court declined to hear the case.
Judge Braden cited Judge Duval’s findings of fact in the case.
While the earlier cases were brought before Judge Duval under the federal tort act, the case announced on Friday, which was brought by private plaintiffs and the St. Bernard Parish government, was decided on the basis of the Fifth Amendment.