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In re Katrina Canal Breaches Consol. Litig.

ELR Citation: 37 ELR 20035
Nos. No. 05-4182, (E.D. La., 02/02/2007)

A district court denied the U.S. motion to dismiss residents' consolidated claims for damages stemming from the devastating flooding that occurred in New Orleans after Hurricane Katrina. The residents argued that the damage was the foreseeable consequence of at least two defective conditions known by the U.S. Army Corps of Engineers for decades: (1) the destruction of marshlands surrounding the Mississippi River-Gulf Outlet (MRGO); and (2) MRGO's faulty design. The United States argued that it was immune under the Flood Control Act because the water that caused the damage was "flood waters." The government also asserted immunity under the Act because the damages were caused by flood waters that federal works failed to control. But the residents are not seeking damages for the failure of the levees or flood projects. In fact, they contend that MRGO has absolutely nothing to do with a flood control project. Rather, they are suing for damages caused by MRGO—the decimation of wetlands over a long period of time that created the hazard that resulted in flooding that could not have been controlled by any flood control project. The court also rejected the government's claim that the "due care" and "discretionary function" exceptions to the Federal Tort Claims Act warrant dismissal at this early stage of the litigation.