Louisiana Coastal Wetlands Blog : Louisiana Coastal Wetlands Lawyer & Attorney : Erich P. Rapp : Kean Miller Law Firm : Serving New Orleans, Baton Rouge, Shreveport, Louisiana

It is pretty hard for someone to surprise me with an archival document find on the Mississippi River Delta these days, but it has happened today.  Len Bahr published an article in his La Coast Post Blog on July 31, 2009 entitled, The Mississippi River delta – what the corps knew and when they knew it! I thought that I had seen the best stuff in my research. I, however, had not ever seen the December 1897 National Geographic article entitled, The Delta of the Mississippi River. Bahr claims to have received the article from a retired general that at one time was the commander of the Mississippi River Valley Division of the Corps of Engineers.

Read the first paragraph on page 354 of the National Geographic article linked above.

The level of knowledge that this author and the Corps had in 1897 about the coast of Louisiana and the impact on the coastal wetlands of depriving sediment from the river is stunning even by my jaded and cynical standard. The article actually discusses the costs and benefits of purposely destroying the coastal wetlands, and what would ultimately have to be done in a few generations in response. I cannot say it frequently enough. I am stunned at the statements in this article. 

This is further proof of the "BIG LIE." I have long believed that the statements in the modern Corps reports on Louisiana coastal wetland loss that claim the problem was discovered in the 1970's were a lie likely aimed at better public relations and at avoiding the knowledge piece of any negligence claim made against the federal government for the damage to the Louisiana coastal wetlands. The Corps has long admitted causing the damage to coastal Louisiana, but also claimed they did not know it was going to happen when they did what they have done to destroy the wetlands. I have called those types of statements the BIG LIE. I have previously found materials from the 1930's to 1960's that contradict the Corps statements about discovery of the problem and have even published some of the items here. I, however, have never found anything from the 1800's this explicit, and I have never found someone, anywhere, actually discussing the costs and benefits of destroying the wetlands before the federal government undertook the action that led to their destruction.

I also find it interesting that the person giving this article to Len Bahr is a retired Army General from the Corps. I would love to know when and where he first discovered this article.

Erich P Rapp.

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The Mississippi River does not carry enough sediment through Louisiana to sustain much less restore coastal Louisiana. That has been my nightmare fear since I began studying this subject years ago. It has also been a theme of this blog and an important argument for the monetary liability of the federal government for the damage to coastal wetlands in Louisiana. Unfortunately, the situation may be even worse than I thought.

I have long believed that one of the most important causes of coastal land loss in Louisiana has been the construction of dams and slackwater navigation pools in the Mississippi River and its tributaries. The most significant of these tributary dam systems have been in the Missouri and Arkansas Rivers. These dams have all been built by the federal government with the most important built by the United States Army Corps of Engineers and additional dams built by the Bureau of Reclamation in the United States Department of the Interior. The construction of these dams has reduced the sediment load in the Mississippi River passing through Louisiana by over 50%.

Over the last year or so, I have traded a small set of email correspondence with Michael D Blum, a now former geology and geophysics professor at Louisiana State University. Blum has been conducting research on the amount of sediment carried by the Mississippi River and the river's potential for carrying sediment in the absence of the dam systems. His research is being published on Sunday June 28th in Nature Geoscience in an article entitled,  "Drowning of the Mississippi Delta due to insufficient sediment supply and global sea-level rise." A fee is required for the purchase of the article. Blum's co-author is LSU professor emeritus of Oceanography and Coastal Sciences, Harry H. Roberts.

Sadly, this article concludes that even if the dams in the Mississippi River tributaries were removed, the rate of global sea rise would still more than offset the sediment deposit from the Mississippi River were the river and the coastal wetlands reconnected.

If this research is accepted as accurate, this leaves Louisiana with some rather stark and unpleasant decisions that need to be made. Some of the early decisions will concern what efforts will be made to reconnect the river to the wetlands and how will the limited sediment supply be allocated to sustaining some portion of the coast. Implicit in this decision is the question of what areas will be abandon. I again also raise the question of whether the federal government should be held financially responsible for the loss of the coastal wetlands in a court of law. A related judicial question concerns whether the federal government should be compelled to consider the impact on coastal Louisiana of actions in the management of the Mississippi River system including the tributaries far to the north of Louisiana. Numerous existing federal statutes would appear to require this consideration.

Congratulations to Dr. Michael Blum and Dr. Harry H. Roberts on the publication of their article and on the completion of his research.

Erich P. Rapp.

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The trial against the Corps of Engineers related to the role of the Mississippi River Gulf Outlet (MRGO) in Hurricane Katrina flooding has concluded. The trial has largely been a classic example of dueling expert witnesses. Plaintiff experts concluded that MRGO played a major role in the flooding after Hurricane Katrina and the Corps experts concluded that MRGO played essentially no role in the flooding after Hurricane Katrina.

The process of preparing and filing post trial briefs will likely take several months with submission of the case to Judge Duval being completed by August. The Judge will then review the evidence and make his decision which will almost inevitably be appealed to the United States Fifth Circuit Court of Appeals and even possibly the United States Supreme Court. The ultimate outcome is likely a number of years away.

Nevertheless, the fact that a trial has been held and a trial court decision will likely result is remarkable in itself. Very few cases of this sort get to the point of a trial. As Justice Oliver Wendell Holmes once said, "Making claims against the federal government requires turning square corners." The lawyers for the plaintiffs in this case seem to have some capacity for "turning square corners." The outcome of this suit has enormous significance for coastal Louisiana. Many of the legal principles presented by the lawyers for the plaintiffs would also be useful in making other types of claims against the federal government for Louisiana coastal wetland land loss.

Mark Schleifstein has published an article in the New Orleans Times Picayune on Thursday May 14, 2009 at 8:55 PM entitled, MR-GO flooding suit in judge's hands, which details events at the end of the trial.

Erich P Rapp.

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The civil case against the US Army Corps of Engineers being presented in United States District Court in New Orleans continues. The six plaintiffs are presenting their case against the Corps of Engineers to District Judge Stanwood Duval. The stakes to the community are very high. The Corps of Engineers believe the potential damages may be as much as $100 billion.

The basis for the community's complaint against the Corps of Engineers is the Corps design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") which is blamed for funneling hurricane storm surge toward St. Bernard Parish and New Orleans during Hurricane Katrina. Because of the damage that MRGO has caused to the coastal wetlands south of New Orleans, the Corps has closed the waterway to navigation.

For a good account of why this trial is so important to members of  the New Orleans and St. Bernard Parish communities, see the news article by Patrik Jonsson published in the April 22, 2009 edition of the Christian Science Monitor entitled, Katrina trial: New Orleans truth commission which is an apt title if I have ever seen one.

Special thanks to the Patrik Jonsson, Christian Science Monitor and other national media publications for sending reporters to follow this important trial. Thanks also to the Christian Science Monitor for their past thoughtful coverage of coastal issues in Louisiana. We need the help of the nation as a whole if we are going to address the loss of coastal wetlands in Louisiana.

Erich P Rapp.

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The trial in federal district court against the Army Corps of Engineers concerning damage from Hurricane Katrina caused by the Mississippi River Gulf Outlet began today. The claims of six plaintiffs against the federal government are being heard over the next month by United States District Court Judge Stanwood Duval.

The plaintiffs contend that the Corps' improper design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") caused the flood waters of Hurricane Katrina to damage their homes and businesses. The Corps has repeatedly responded that they are immune from such lawsuits.

The result of this trial and any subsequent appeals have potentially far reaching impacts. This blog has repeatedly discussed the potential for federal liability for damages as a result of the loss of coastal wetlands in Louisiana. It has been a central theme of this blog that the federal government's improper design, construction and maintenance of various structures in the Mississippi River drainage basin have cause the loss of coastal wetlands in Louisiana. If the plaintiffs in the MRGO lawsuit are successful. The result will validate some of the core arguments that I have put forward in this blog. 

The federal government has granted the public a tort action against the federal government in some instances. This right is contained in the Federal Tort Claims Act. In the MRGO case, however, the Corps seeks to have the tort suit dismissed claiming that certain immunities prohibit tort claims in this situation. First, the Corps claims immunity from liability for the failure of flood control structures. This immunity is contained in a separate federal statute. The judge has, however, responded that MRGO is not a flood control structure. It is a navigation facility. Thus, the immunity does not apply.

Second, the Corps claims that the decisions related to the design, construction and maintenance of MRGO are "discretionary acts" and as such they are immune from tort liability resulting from the exercise of such discretionary decision making. While generally, the federal government is not liable for exercising their discretionary judgment, federal officials have many complicated legal responsibilities when constructing a large project like MRGO. Because of various statutes protecting other societal values such as bald eagles, historic sites and the property rights of those whose land will be damaged by a federal project, federal officials have to consider and respond to these many other societal values. The failure to properly consider and account for these other societal values is not within the federal official's "discretion" and thus when damage occurs in the absence of such proper consideration, the federal government is not immune from liability.

For more information on this trial, see the New York Times article of Monday April 20, 2009 by John Schwartz entitled, Civil Lawsuit over Katrina Begins. See also the New Orleans Times Picayune article on Monday April 20, 2009 by Susan Finch entitled, St. Bernard wetlands changed dramatically after MRGO was built, geologist testifies.

Erich P. Rapp.

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As I have stated on numerous occasions in this blog, the federal government is liable for the damage to and loss of Louisiana's coastal wetlands. I believe that case could be made under the Federal Tort Claims Act in a federal district court in Louisiana. If, however, the people of Louisiana find this approach too antagonistic a stance toward the federal government, an alternative less adversarial approach exists.

Congress has created a means for the federal government to analyze its own culpability for the damages it causes without agreeing in advance to pay for those damages. The federal statutory code provides for Congressional reference cases at 28 USC sec. 2509.

The provision allows either house of Congress by resolution to ask the United States Court of Federal Claims to engage in fact finding and legal analysis with regard to a claim or potential claim for damages against the United States. The idea is that the Court of Federal Claims would determine whether a legitimate legal claim for damages would stand under law in the absence of  the federal government's sovereign immunity and/or the expiration of the statute of limitations.

In a Congressional reference case, the Court of Federal Claims would undertake fact finding just like a regular court would receiving evidence in the form of testimony, documents, and other admissible things. After the conclusion of the fact finding, i.e., the trial, the judge would write a report just like a legal opinion assessing the evidence presented and applying the law to the facts. In the report, the judge would advise Congress on whether the claim would be legally valid in the absence of the federal government's sovereign immunity and/or if the claim were made timely.

Congress is given the report and has the option of paying the claim by Congressional act or declining to pay the claim. The Court of Federal Claims report is only advisory.

While this process has probably never been used for assessing any claim as complex as the loss of coastal wetlands in Louisiana,  it could certainly be done. With the referral of the claim by either house of the Congress to the Court of Federal Claims, the State of Louisiana and the various other stakeholders with interests in coastal Louisiana could present their case to the Court of Federal Claims asserting that the federal government's actions in the management of the Mississippi River drainage basin system are a proximate cause of the loss of wetlands in Louisiana and the federal government would be liable for that damage but for sovereign immunity and/or a claim that the applicable statute of limitations has passed.

If the report from the Court of Federal Claims was favorable, the people of Louisiana would have a compelling case that the federal government should pay monetary damages for the destruction of coastal Louisiana and that the federal government is obligated to pay to restore the coastal wetlands in Louisiana.

The use of a Congressional reference case would be a way to gain moral leverage with the federal government regarding their role in the loss of coastal wetlands in Louisiana.

 Erich P Rapp.

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The United States Geological Survey in cooperation with the Mineral Management Service, Gulf of Mexico Outer Continental Shelf Region has published open-file report 2008-1127 entitled Influence of the Houma Navigation Canal on Salinity Patterns and Landscape Configuration in Coastal Louisiana. The authors of the report are Gregory D. Steyer, Charles Sasser, Elaine Evers, Erick Swenson, Glenn Suir, and Sijan Sapkota.

The media has written extensively about the impact of the Mississippi River Gulf Outlet also known as MRGO on the coastal wetlands south of New Orleans. The has recently led to the de-authorization of MRGO.

The science has long showed that building large scale north-south navigation canals directly connecting the Gulf of Mexico with in land locations causes salt water intrusion and tends to turn inland freshwater wetlands into saltwater marsh and ultimately open water.

MRGO is not the only culprit of this type. The Houma Navigation Canal is another north-south navigation canal built through the coastal wetlands in the same era as MRGO. It connects the Gulf of Mexico directly with the city of Houma. There are eight other major federal navigation canals in coastal Louisiana.

The Houma Navigation Canal was originally built by the local government, but is now maintained as a federal navigation project by the Army Corps of Engineers. Documents from the period of construction reveal that the Corps knew then that the construction of the canal would cause salt water intrusion along its path and that salt intrusion would cause wetlands to be converted into open water. Of course, the canal was built anyway and remains an active navigation canal.

Erich P Rapp.

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I have long contended that the federal government is subject to suit in tort for the damage that they have caused to Louisiana's coastal wetlands. United States Federal District Court Judge Stanwood Duval entered a ruling on Friday May 2, 2008 supporting this position.

On Friday, Judge Duval held that the United States Army Corps of Engineers is subject to suit for alleged defects in the Mississippi River Gulf Outlet ("MRGO") that destroyed wetlands and are alleged to have turned MRGO into a funnel for hurricane storm surge. MRGO is a navigational canal build and operated by the Corps connecting the Gulf of Mexico to the Inner Harbor Navigation Canal also known as the Industrial Canal in New Orelans via the Gulf Intracoastal Waterway.

Judge Duval rejected the Corps' claim that federal law makes the agency immune from lawsuits over damage caused by its flood protection projects. The judge found that because the navigational channel is not part of the Lake Pontchartrain and Vicinity Hurricane Protection Plan, the Corps is not immune from suit.

The ruling on Friday is not a final decision in the case. It does not find that the Corps is liable for damages caused from flooding in East New Orleans, the 9th Ward and St. Bernard Parish. This determination will only be made at the conclusion of the trial.

For a more detailed account of the decision, see Susan Finch's article in the New Orleans Times Picayune entitled: Judge: Corps can be sued for flood.  

If ultimately upheld, this decision would support other tort suits against the federal government and the Corps of Engineers related to damage that the Corps has caused to Louisiana's coastal wetlands.

Erich P Rapp

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John Barry, the author of Rising Tide, has published an Op-Ed piece in the Los Angeles Times on Wednesday April 23, 2008 entitled: Who Should Pay to Protect New Orleans. I have never seen the cause of the coastal land loss problem described more succinctly or the solution described more accurately.

Barry points out what I have been saying less artfully for many years. The most fundamental reason that the coastal wetlands in Louisiana has been lost, particularly below New Orleans, is the reduction in the sediment load in the Mississippi River drainage system. This reduction has resulted from the construction of dams in the tributaries with particular emphasis on the dams built in the Missouri River in North and South Dakota. The lower portion of Louisiana's "bird's foot" did not erode to open water because of levees in Louisiana. Below a point, no levees separate the wetlands from the river and yet the land continues to dissolve into the Gulf. The problem is not the result of a local action.  

Louisiana derives no direct benefit from those Corps dams in the Dakota's and Montana. They were built to control flooding and improve navigation on the Missouri River. In fact, the Corps of Engineers claims that it has no authority to manage the Missouri River system and those dams for the benefit of the Mississippi River or its users in any way. The Mississippi River is treated as disconnected and unrelated to the Missouri River for all purposes that the Corps of Engineers considers.

John Barry is exactly right when he says the coastal land loss problem in Louisiana has been caused as the result of actions that benefited other parts of the nation far removed from Louisiana. The protection and restoration of coastal Louisiana is a national problem requiring federal action.

Erich P Rapp

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As discussed in earlier entries, the coastal wetlands of Louisiana have been built and in the past maintained by sediment transported in the Mississippi River and deposited in the coastal wetlands. This natural process creates a relationship between the riparian lands in the upstream course of the river and the delta of the river. The existence of the wetlands depends on this relationship and the law protects it.

Louisiana law provides for predial servitudes. These servitudes concern the legal relationship between different "estates" or tracts of land or real property with different owners. In a predial servitude, a "dominant" estate has a right in relation to a "servient" estate. For example, one who builds a wall near a property boundary has an obligation as a servient estate to keep the wall in good repair so as to prevent damage to the neighboring "dominant" estate. This is a legal  servitude found in a Louisiana civil code article. Louisiana law recognizes legal servitudes, i.e., predial servitudes imposed by statute and conventional servitudes, i.e., predial servitudes created by contractual agreement between the owners of the separate estates. 

Louisiana law also recognizes a natural servitude. A natural servitude arises from the natural relationship between different estates. The statutes creating natural servitudes are found at Louisiana Civil Code arts. 654 to 658. These articles give the courts the power to examine the facts about how two estates or tracts of land relate to each other, and these articles allow the courts to find the existence of a servitude even though no contract or statute provides a specific description of the servitude.

These civil code articles create a natural servitude between the riparian landowners upstream on the Mississippi River and the coastal wetlands of Louisiana. In this natural servitude, the coastal wetlands are a dominant estate and the riparian lands upstream in the Mississippi River drainage basin (including the river's tributaries) from the coastal wetlands are servient estates.

The historic basis for the natural servitude is found in the Napoleonic Code and was ultimately derived from Roman law. Interestingly, this natural servitude bears a striking resemblance to riparian water rights recognized in the majority of the other states. The law of riparian water rights provides that riparian landowners can use the waters of a river, but cannot change any characteristic of the flow of the river to such an extent as to be detrimental to the interests of the riparian owners downstream. 

Also of note, the concept of a riparian water right entered the common law of the United States in a decision written by Justice Story in 1827 in the case of Tyler v. Wilkinson and subsequently referenced by Chancellor Kent in his commentaries on American law in 1828. Justice Story is said to have based his decision on Roman law.  The decision of Story as cited by Kent was widely relied upon by courts in the United States and England in giving form to riparian water rights.

The protection of all characteristics of the flow of a river including the quality of its sediment transport and the relationship of the sediment transport to the riparian land has a long basis in legal history of the common and civil law. In fact, this legal tradition dates back to the very beginning of law as recognized in western civilization, i..e, Roman law.

The existence of a natural servitude raises issues of choice of law between states, interstate legal conflict, federal immunity and countless other related issues. Nevertheless, a long legal history rooted in the very beginning of law, as we know it, which is now common to most of the states and the federal government of the United States has formed a basis for protecting the sediment transport in the Mississippi River that creates and maintains the coastal wetlands of Louisiana.

Of course, this entry barely touches the surface of the many legal issues that impact on a property damage claim based upon such a natural servitude. More later.

Erich Rapp.

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No one disputes the existence of property rights in coastal wetlands of Louisiana. People own wetland property. Nevertheless, the federal government destroys this property everyday and does not pay damages.  A claim for this damage could be made. Supreme Court Justice Oliver Wendell Holmes said a claim against the federal government required "turning square corners."  That may be so, and this claim is complex, but it exists. One of the purposes of this blog is to discuss  federal liability for damage to the coastal wetlands in Louisiana. That discussion will take many entries. Today, I begin with the philosophical.

When one owns property, what does one actually own. The Louisiana Civil Code art. 462 speaks of "tracts of land" as constituting immovable property. The coastal wetlands are tracts of land, and the government grants property rights in these wetlands.  The coastal wetlands, however, are not typical tracts of land. They exist not as a static thing but as the result of a dynamic process. The wetlands are continuously subsiding, and the flood waters of the Mississippi River were in the past depositing new sediment on that wetlands to offset the subsidence. When that process is disrupted, the land is destroyed. At present, the amount of sediment being deposited by the Mississippi River is not offsetting subsidence and thus, the coastal wetlands are lost to the open water.

I, thus, began wondering if the federal government had ever recognized and protected an interest in real property as a process, and not as a static tract of land. Amazingly, I found an answer to this question, not in a law book, but in a book on the Mississippi River written by landscape architects.

On page 48 of Mississippi River Flooding - Designing a Shifting Landscape by Anuradha Mathur and Dilip da Cunha, the authors describe the Stack Island Supreme Court case. 

In 1995, the United States Supreme Court decided the Stack Island case. The case involved 2200 acres of mud in the water course of the Mississippi River. In the early 1800's, the muddy acres were an island near the bank of the river on the Mississippi side. By the time of the case in the 1990's, supposedly the same muddy acres were no longer an island and were instead attached to the bank of the river on the Louisiana side. Nevertheless, the court found that these muddy acres on the Louisiana bank of the river were the same property that was an island in the river in the 1800's. The New York Times reporter, Hubert B. Herring writing about the case on November 5, 1995 asked, “Existential Geology Anyone?”

The Stack Island case gave me a new vision of the coastal wetlands. The coastal wetlands are not static land washing away. They are a dynamic process of subsidence offset previously by sediment deposit from the Mississippi River. Yet to the casual look, the wetlands are perceived as land just as any other land. With the Stack Island case, now in the eyes of the law, perception is reality or in this case "real property."  The property owners have a property right in the wetlands even if the soil making up the land changes in the dynamic process of subsidence and sediment deposit.  The Louisiana coastal wetlands are an “existential” property and legally protected as such. The wetlands are real property because they are perceived to be real property and not because they are once and always made up of the same soil.

Erich P Rapp

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