Our firm represents the Plaintiffs in St. Bernard Parish Government And Other Owners of Real Property in St. Bernard Parish or the Lower Ninth Ward Of The City of New Orleans v. United States, No. 1:05-cv-01119-SGB, a case currently pending before the United States Court of Federal Claims. The case involves claims for inverse condemnation, or appropriation, under the Fifth Amendment to the United States Constitution. The Plaintiffs, who are the St. Bernard Parish Government, residents of and businesses located in St. Bernard Parish as well as the Lower 9th Ward of the City of New Orleans, have brought a putative class action against the United States (as the respondent for the U.S. Army Corps of Engineers), seeking compensation for the “taking” of their property by virtue of repetitive flooding events on their property attendant to the operation, dredging and maintenance of the MR-GO by the U.S. Army Corps of Engineers. These flooding events happen whenever there is a tropical cyclonic storm within a hundred miles of most of these lands, and in more recent years, they occur with only a persistent easterly or northeasterly wind as respects many of the parcels at issue.
The MR-GO is the Mississippi River-Gulf Outlet Canal, which is a 76-mile long shipping channel originally designed to provide a short-cut from the Mississippi River to the Gulf of Mexico. When it opened in 1965, the MR-GO had an authorized surface width of 650 feet, an authorized bottom width of 500 feet and was 36 feet deep. Construction of the MR-GO required moving more soil than was removed in the creation of the Panama Canal; the Army Corps of Engineers succeeded in shaving 40 miles off the trip down the Mississippi River from New Orleans to the Gulf of Mexico.
The combined effect of turbulence and wave wash from passing ships (by way of the Bernoulli Principle), excessive dredging by the Corps (“maintenance dredging” of more material than twice the amount required to dig the Panama Canal), and ever increasing saltwater intrusion via this federal canal has caused dramatic erosion along the MR-GO's banks and aquatic consumption of its neighboring wetlands. With that erosion comes the loss of tens of thousands of acres of marshland which previously provided Southeast Louisiana with its best protection from hurricanes. Since its opening over 40 years ago, the MR-GO has increased in surface width from the authorized 650 feet to more than 2,500 feet in many places. Additionally, the construction, ceaseless dredging and other maintenance of this shortcut to the Gulf tragically created a delivery system for storm surge from Hurricanes like Katrina, Rita, Ivan, and Lili to enter the populated areas of St. Bernard Parish and even the Lower Ninth Ward of New Orleans on occasion.
This storm surge delivery system operates in several ways. The most notable are the consumption of the wetlands (which removes the marsh barrier and provides more open water, and brings the storm surge to the City’s doorstep), the pipeline-directed high velocity flow up the MR-GO, and the “funneling effect” created by the confluence of the MR-GO with another federal project, the Gulf Intracoastal Waterway, especially that portion known as “The Industrial Canal” (Inner Harbor Navigation Canal). This funneling effect and the destruction of the wetlands increasingly leave parts of St. Bernard Parish and New Orleans vulnerable to not just hurricanes, but any tropical storm. Due to the creation, expansion and dredging of the MR-GO, parts of St. Bernard Parish that were protected by tens of thousands of acres of healthy marsh are now exposed directly to the Gulf, its tides and storm surges. The result is that increasingly larger parcels of populated St. Bernard Parish flood more frequently and with greater impact, threatening and even destroying the property and livelihoods of shrimpers, oyster fishermen, workers in the oil and gas industries, and tens of thousands of other citizens.[1] The consumptive and destructive effects of the MR-GO are beyond cavil.
The MR-GO has also been an economic failure and an environmental disaster. As a result of the aforementioned erosion, including the constant collapse of its banks caused by the Corps’ wanton dredging, and unauthorized expansion of the channel caused by a 2:1 side slope ratio designed by the Corps, the MR-GO experienced an extensive and recurring silting problem that required constant, extensive and expensive maintenance dredging. Specifically, until Hurricane Katrina in August 2005, the channel required millions of dollars of new dredging every year to allow the few ships that used this route to pass through the channel. In 2004, for example, the siltation caused by Hurricane Ivan, which made landfall 200 miles to the East in Orange Beach, Alabama, required $17 million in dredging to reopen the channel. The MR-GO was never extensively used by the shipping industry and it was closed in mid-2009 by the construction of a rock barrier at Bayou La Loutre; however, the channel still exists and the catastrophic damage to the wetlands remains. The U.S. Army Corps of Engineers is now constructing a storm surge barrier from the Gulf Intracoastal Waterway (GIWW) across what are left of the wetlands to the federal levees on the Southwestern side of the MR-GO.
As this suit is brought as a putative class action, it seeks to obtain redress and compensation for all affected properties in St. Bernard Parish and the Lower 9th Ward of New Orleans whose properties have been effectively taken by the MR-GO. If the Court rules that this matter should proceed as a class action, then the trial judge will create a procedure for submitting claims on behalf of the owners of other appropriated properties, known as “parcels” in takings argot.
This case is pending in the United States Court of Federal Claims in Washington, D.C. and was originally filed by Gerald Maples in October of 2005, less than two months after Hurricane Katrina’s storm surge traveled up the MR-GO and inundated St. Bernard Parish and the Lower 9th Ward. On August 3, 2009, the trial judge denied the Government’s Motion for Summary Judgment and issued an Order staying the case until adjudication of claims brought under the Federal Tort Claims act pending before Judge Duval of the United States District Court for the Eastern District of Louisiana (Robinson et al. v. United States, No. 06-2268). A copy of the Memorandum and Order can be found here. In a Judgment entered on November 18, 2009, Judge Duval found that the negligent maintenance and operation of the MR-GO was responsible for flooding in St. Bernard Parish and most of the flooding in the Lower Ninth Ward of the City of New Orleans and ordered that the Government pay compensation to the Robinson plaintiffs who lived in St. Bernard Parish and the Lower Ninth Ward. A copy of the Findings of Fact and Conclusion of Law can be found here. We will update this site as more information becomes available.
Should you have any questions with respect to this litigation, please contact Carlos Zelaya at the firm.
1See IVOR VAN HEERDEN & MIKE BRYAN, THE STORM (2006); Oliver Houck, Can We Save New Orleans?, 19 TUL. ENVTL. L. J. 1 (2006).
