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

United States District Judge Stanwood Duval, Jr. of the United States District Court for the Eastern District of Louisiana has found the federal government through the Army Corps of Engineers liable for their negligent maintenance of the Mississippi River Gulf Outlet (MRGO) allowing flooding damage during Hurricane Katrina in the Lower Ninth Ward and St. Bernard Parish. 

The immediate damage award for the six trial plaintiffs is less than $750,000 and the judge ruled against plaintiffs in East New Orleans making similar claims. Nevertheless, the judge's decision is very important. If Judge Duval's decision is upheld on appeal, many more residents and former residents of the Lower Ninth Ward and St Bernard Parish will likely receive millions of dollars in damage awards in the period ahead.

The decision is very critical of the role that the federal government played in causing coastal wetland loss along the path of MRGO which the court in turn found caused extensive flooding in New Orleans. 

The legal concepts that have been confirmed over the last several years are favorable to other types of claims for land loss in coastal Louisiana. This decision opens the door to other types of claims against the federal government related to the loss of coastal wetlands in Louisiana as the result of hurricanes and the mismanagement of the Mississippi River, its tributuaries and distribution channels near the Gulf of Mexico.

For more information on this court decision, see the November 18, 2009 article in the New York Times entitled, Ruling on Katrina Flooding Favors Landowners.

Erich P Rapp.

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The Corps of Engineers claims it learned of Louisiana coastal land loss in the early 1970's.  The Corps' November 2004 Louisiana Coastal Area Ecosystem Restoration Study suggests discovery "in part" from the publication of a 1972 study. No earlier date is mentioned. Discovery in 1972 is not true "in part" or otherwise.

The Corps knew long before the1970's that Louisiana was losing coastal wetlands and that the cause was their management of the Mississippi River. They even knew the wetlands below New Orleans were being lost more quickly than wetlands to the west. As described in my prior blog entry, they also knew the consequences of the land loss on hurricane storm surges. 

Culpability is a function of knowledge. If the Corps knew when it took action that the action would cause damage, they have greater responsibility than if they did not know. Suggesting discovery in 1972 would tend to reduce responsibility for the consequences of  what the Corps did before.

On December 29, 1961, the Corps published: Interim Survey Report Mississippi River Delta At and Below New Orleans. The report was mentioned in my last blog entry about hurricane storm surge. In appendix B of this report on page B-2, it states:

 "The shorelines of the ponds, lakes, and bays within the marshland and the seaward edges of the marshland are being eroded by wave action. At present very little (and in the greater part of the area none) of the sediments carried down by the Mississippi River reach the marshlands. The bulk of the sediments is carried into the gulf and deposited along the outer continental shelf in the vicinity of the mouth of the river. Although wave action is contributing to the destruction of the marshlands, the irregular jagged shorelines in the area show that subsidence has been the dominant factor. Both subsidence and wave attack will continue in the future and unless sediment laden water is introduced into the area to replace material being lost, and to compensate for subsidence, the inland bodies of water will continue to enlarge and the seaward facing edges of the marshland will continue to retreat. This will happen much faster on the east side of the Mississippi River where the marshlands are more exposed to prevailing winds, and there is less to destroy." (emphasis added).

This 1961 report was not an original statement, but it was an eloquent one. More to come.

Erich P Rapp.

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