In a ruling that is making waves throughout New Orleans, the United States Court of Appeals for the Federal Circuit reversed the federal government's liability, under a takings theory, for damage caused by the Hurricane Katrina flooding in St. Bernard Parish.
In short, the case alleged that the government's construction, and failure to properly maintain, the MRGO canal resulted in additional damage during Katrina. Significantly, the appellate court held that the government could not be held liable for its failure to maintain the canal and surrounding area.
A rather curious twist to the appellate court's decision revolves around the takings clause theory of liability used by the plaintiffs. Essentially, the plaintiffs claimed that the government's failure to maintain the canal caused the flooding that destroyed their properties. As the court explained:
While the theory that the government failed to maintain or modify a government-constructed project may state a tort claim, it does not state a takings claim. A property loss compensable as a taking only results when the asserted invasion is the direct, natural, or probable result of authorized government action.
Furthermore, the court found a lack of evidence showing that the construction of the canal caused the flooding. Though the lower court agreed with the plaintiffs that but for the canal, the properties would not have flooded, on review the appeals court was not convinced that plaintiffs had made an appropriate showing.