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Fifth Circuit Katrina Suit: No Qualified Immunity for Corps Under FCA

By Robyn Hagan Cain on March 05, 2012 | Last updated on March 21, 2019

The Fifth Circuit Court of Appeals ruled last week that the Army Corps of Engineers (Corps) is liable to property owners who suffered billions of dollars in damage during Hurricane Katrina, reports the Associated Press.

The court affirmed District Judge Stanwood Duvall's 2009 decision in the matter on Friday, finding that the Corps is not protected by qualified immunity under the Flood Control Act.

The Mississippi River Gulf Outlet (MRGO), which affords a shorter shipping route between the Gulf of Mexico and New Orleans, was originally designed to be 36 feet deep and 500 feet wide, increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide. While designing and constructing the MRGO, the Corps also implemented the Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV). Under the LPV, the Corps constructed levees to protect New Orleans East and Chalmette and higher floodwalls in the outfall canals at 17th Street, Orleans Avenue, and London Avenue.

MRGO was cut through virgin coastal wetlands at a depth that exposed strata of so-called "fat clay," a form of soil soft enough that it will move if made to bear a load. The channel's original designers considered, and rejected, armoring its banks with foreshore protection, leaving them vulnerable to erosion.

Over the years, that decision resulted in substantial erosion, largely from wave wash from wakes left by channel-going vessels. MRGO eventually grew to an average width of 1,970 feet - more than three times its authorized width.

Though the Corps eventually added foreshore protection in the '80s, the delay allowed the channel to widen considerably, destroying the banks that would have helped to protect a Chalmette-area, Reach 2 levee from front-side wave attack as well as loss of height. The increased channel width added more fetch as well, allowing for a more forceful frontal wave attack on the levee.

MRGO's expansion thus allowed Hurricane Katrina to generate a peak storm surge capable of breaching a Reach 2 Levee and flooding the St. Bernard polder. Separately from MRGO, the hurricane also caused the 17th Street, Orleans Avenue, and London Avenue levees to breach.

Katrina victims sued the Corps after the storm. The U.S. government claimed that it was not liable for Katrina damages resulting from the breaches under the Flood Control Act. The Fifth Circuit Court of Appeals disagreed, noting that the United States enjoys immunity under the Flood Control Act only where damages result from waters released by flood-control activity or negligence therein; such was not the case in the Katrina litigation.

Here, the Fifth Circuit found the Corps' negligence in maintaining the channel -- grounded on a failure to appreciate certain hydrological risks -- caused levees to fail and aggravated Katrina's effects on New Orleans and the surrounding areas. The Corps' negligent decisions rested on applications of objective scientific principles, and were not susceptible to policy considerations.

The court found the Corps flatly failed to gauge the risk, therefore it does not receive qualified immunity.

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