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 fifth episode of Category Five/Wetlands Watch will be on WLAE-TV at 8 PM on Friday October 2nd. Category Five/Wetlands Watch is a PBS series concerning coastal restoration efforts in Louisiana. The show is an examination of the problems and challenges associated with Louisiana coastal land loss and efforts to protect and restore the coast.

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I attended the America's Energy Coast hearing today at the Intercontinental Hotel in New Orleans.  I want first to thank the various members of the oil and gas industry for appearing and explaining what is happening with regard to their businesses in coastal Louisiana and along the northern Gulf of Mexico generally. The information that they have provided is invaluable to the larger issues that I will discuss below.

Nevertheless, I left the hearing with feelings of hope and disappointment. I am heartened that America's Wetland Foundation has decided to ask various stakeholders in coastal Louisiana what obstacles they face in managing their interests in the Gulf of Mexico coastal zone. That is an important, but isolated step in achieving a sustainable coast.

I am, however, concerned that some of the observations by all concerned were long on politeness and short on reality. That is a natural result of everyone being in the same room at the same time. Now, I feel very strongly that diplomacy is important. Ugly talk gets no one anywhere in a cooperative venture like this. For the future, however, I think the format for making cooperative public policy progress on a sustainable northern coast of the Gulf of Mexico needs to be revised.

Once America's Wetland Foundation has a broad inventory of  the concerns and interests from various powerful stakeholders in the Gulf coast region, everyone needs to take a further step. The stakeholders should explore what each stakeholder is willing to contribute and "give up" to achieve what they need and want the most with, of course, the ultimate objective being the restoration of coastal wetlands along the northern Gulf of Mexico.

In the end, this objective is not achieved through a conference or "hearing." It is achieved by shuttle diplomacy between the stakeholders as they explore ways to achieve their needs and wants while contributing technical talent, political support and money to a master plan aimed at accomplishing the larger objective of the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico.

I believe in the final analysis, through a process of shuttle diplomacy, the major stakeholders including the State of Louisiana, the federal government, the representative companies of the oil and gas industry, the Louisiana coastal wetlands restoration organizations, and the larger environmental protection organizations could agree upon a plan for comprehensive coastal restoration and protection in Louisiana and along the northern coast of the Gulf of Mexico.

In my dreams, the oil and gas industry, the state of Louisiana and the environmental movement (such as the Environmental Defense Fund and the Audubon Society) would all jointly support a single comprehensive public policy program led by the federal government for the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico generally. This could be achieved through Shuttle Diplomacy. We just need the right set of diplomats.

 Erich P. Rapp.

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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 sleeping bear's eyes may have begun to open. Perhaps the Corps of Engineers is signaling that it will begin acknowledging that the management of the entirety of the Mississippi River is connected to the health of the coastal wetlands in Louisiana. In a front page story on Sunday July 5, 2009 in the Baton Rouge Advocate Richard Burgess writes an article entitled, Corps considers change in water flow into Atchafalaya. 

Nancy Powell, chief of the Corps' New Orleans district hydraulics and hydrologic branch, suggests that the Corps might operate the Old River Control Structure at the northern end of the Atchafalaya River in the interest of Louisiana coastal restoration and preservation. It seems like an obvious thing to do, but the reality and symbolism of the Corps making this philosophical shift in policy would be profound.

At a time when the Corps was just beginning to manage the Mississippi River for the purpose of navigation, the Red River was a tributary entering the Mississippi River at the northern side of what was called Turnbull Bend. In turn, the Atchafalaya River was a distributary exiting the main channel of the Mississippi River at the southern side of Turnbull Bend. In 1831, Captain Henry M. Shreve, an early agent of the Corps, dug a canal through the neck of Turnbull bend. This canal called "Shreve's Cut" changed the flow of the river in a profound way. 

Shreve's Cut made it more likely the Mississippi River's main channel would change course and adopt the course of the Atchafalaya River's channel as the Mississippi River's main channel. In the 1950's, the Corps built the Old River Control Structure in an attempt to rectify its earlier misstep digging Shreve's Cut  and to prevent the eventuality of the Mississippi River changing course from happening. The structure has since then been used primarily for this purpose. And undoubtedly an important purpose it is. The economic damage that would be caused by the Mississippi River's main channel changing courses to adopt the Atchafalaya River's channel as the Mississippi River's own main channel would be extraordinary. 

The America's Wetlands web site has a good description of the Old River Control Structure and the history of Turnbull Bend along with some useful diagrams. The section of the web site is called Controlling the River.   

The operation of the Old River Control Structure at Simmesport is the very essence of management of the Mississippi River. The Corps has not historically even considered managing the river north of the Louisiana coastal zone with consideration of the impact of those actions on the coast of Louisiana. The Corps has, heretofore, managed the Mississippi River north of the Louisiana coastal zone as though the Mississippi River to the North of the coastal zone was not casually connected to coastal land loss in Louisiana.

By acknowledging the connection of the Old River Control Structure to coastal restoration and preservation, the Corps might manage the distribution of sediment load of the Mississippi and Red Rivers in a more strategic way to aid with coastal restoration and preservation projects. The gates or "dam" at the Old River Control Structure were built to allow for the passage of sediment in the river through the gates. This allows sediment to flow into the Atchafalaya River or remain in the Mississippi River at the Corps' choice. This design is different from other large earthen dams in the Mississippi River drainage basin that trap virtually all the sediment that enters the reservoir behind the dam. This, of course, suggests that dams could be built that do not trap sediment in the reservoir behind them, but that is another story entirely.

The idea that the Corps could operate the Old River Control Structure to help with coastal restoration and preservation in Louisiana is a small gesture. The Corps has not even yet decided what to do. Nevertheless, the acknowledgment of the connection is symbolically significant.  I have to agree with the Corps' Ms. Powell as quoted in the Baton Rouge Advocate article, "It's kind of exciting."

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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On June 5, 2009, WLAE-TV broadcast the first of a six part monthly series on coastal wetland land loss and what is needed for restoration. WLAE is the PBS affiliate in New Orleans. The series is intended as an in-depth examination of  the problem with coastal land loss in Louisiana and what can be done to protect and restore the coastal wetlands.

The first episode was aired on Friday June 5, 2009. It featured an interview with Bob Marshall, a journalist with the Times Picayune. Following the interview, the half hour documentary, Harvest to Restore was broadcast.

The plan is to continue the series for six months. The program will provide viewers with the basic information on how the coast was formed and why it is now being lost. The series will also examine the economic importance of the Louisiana coast on the fishing, oil and shipping industries and how the land loss is impacting all of the United States. Finally, the series will present current thinking on solutions to the coastal land loss problem.

I am encouraging everyone to watch this program as it is broadcast. The individual programs in the series are also being posted on at Category Five/Wetlands Watch, which is a web site dedicated to the show where the episodes can be viewed subsequent to broadcast.

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 U.S. Department of Interior will give Louisiana $242 million over the next two years for coastal restoration and protection projects. These funds are the result of the Energy Policy Act of 2005 which created the coast impact assistance program. The funds come from federal offshore oil and gas leasing and production.

According to the Baton Rouge Advocate article on Friday April 24, 2009 entitled, State to get millions for coastal restoration, Carlton Dufrechou, executive director of the Lake Pontchartrain Basin Foundation and P.J. Hahn, administrator for coastal zone management in Plaquemines Parish, expressed their gratitude for the funds. U.S. Senator Landrieu stated, “It reminds us that a thriving oil and gas industry provides many benefits to Louisiana.”

Erich P. Rapp.

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On this blog, I write frequently about the "big picture" and what needs to be done by the federal government to preserve and restore Louisiana's coast. The important examples set by individuals, however, symbolize the American spirit and individuals through their actions can inspire a nation to act. Bob Thibodeaux is one such individual.

On April 25, 2009, Bob Thibodeaux of Church Point, Louisiana received the prestigious Frederick Law Olmsted Award from the Arbor Day Foundation for his dedication to planting trees and conservation. Mr Thibodeaux is the owner of Bob's Tree Preservation which has been in business since 1964.

In 2007, Thibodeaux founded Acorns of Hope, a coastal preservation project that is adding 10,000 oak trees to the coastal regions of Louisiana, Mississippi, and Texas through 2012. He has collected acorns from historic Louisiana oak trees and nurtured them in his tree preserve. He then travels from community to community planting these trees and educating young people about the benefits of planting trees. Thibodeaux teaches that oak trees are adaptive and can slow the rate of coastal erosion and the winds of hurricanes.

For more on Mr. Thibodeaux's efforts, please see the article in the Lafayette Advertiser dated April 25, 2009 entitled, Company owner honored, Arbor Day Foundation recognizes Thibodeaux for regional dedication.

Thank you Mr. Thibodeaux for your individual effort to preserve the coast of Louisiana.

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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The Mississippi River Gulf Outlet closes to navigation on April 22, 2009 at Bayou La Loutre near Hopedale according an announcement from the Corps of Engineers. After that date, vessels will no longer be able to navigate that area because of a rock barrier that the Corps is constructing.

The Mississippi River Gulf Outlet, aka MRGO, has been the subject of much criticism for its role in causing flooding in New Orleans during hurricane Katrina and for its role in destroying coastal wetlands through among other things saltwater intrusion.

For more information on the closure of MRGO to navigation, see the New Orleans Times Picayune news article of April 16, 2009 entitled, Mississippi River Gulf Outlet to Close to Navigation April 22 at Bayou LaToutre.

Erich P. Rapp.

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On Wednesday March 4, 2009 in the late evening, Mark Schleifstein posted a Times Picayune article entitled, Sense of urgency grips coastal restoration summit. The article is a report on the two day summit held on using river diversions to rebuild Louisiana's coast. A number of coastal scientists participating in the meeting are convinced of the need for major diversions from the Mississippi River to restore coastal areas. The Corps of Engineers, however, is not convinced of the same need. Regardless of this apparent disagreement, everyone seemed to understand the urgent need to do something.

Schleifstein reported that "the summit was prompted by repeated demands by a number of influential coastal scientists and state restoration officials that the Corps of Engineers speed up efforts to include very large diversions of water from the Mississippi and Atchafalaya rivers in its plans for coastal restoration."

Of course, the Corps is far behind schedule on publishing a report on category five hurricane protections which would include flood protection and coastal protection programs. Even when published, the report will not present such a category five hurricane protection plan. It will, instead, be a plan for how to make a plan to provide category five hurricane protection. This go slow approach is occurring in open defiance of Congressional will. 

In response to this criticism, General Walsh of the Corps stated, "I think all of us agree we're on a burning platform, (But) which direction do we step off in? I don't know."

In my estimation, building large diversions from the main Mississippi river channel requires a balancing of coastal restoration needs with commercial navigation needs in the Mississippi River. The Corps has historically focused its primary interest on navigation needs, and it is not yet prepared to deal with the fall out from shifting its emphasis from sole concern with navigation to a balance between navigation and coastal restoration. Until the Corps is prepared to balance those interests, they will never support major diversions of water and sediment from the main channel of the Mississippi River.

Further, the Corps will always be able to find support for their resistance to large diversion projects from the commercial fishing and landowner interest near any proposed diversion project. While a public project may be worth building, one can always find resistance to the project from those whose property will be taken or damaged by the project. Thus, looking to those resistance points for support is an effective strategy for slowing the progress of designing and building diversion projects.

Erich P Rapp.

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The Louisiana Sea Grant Law & Policy Program publishes a periodic newsletter that summaries much about the important events in law and news related to coastal Louisiana. This newsletter is a good source of summary information on coastal law and news issues.

They have just published their February 2009 Newsletter. You can also find links to all of the Louisiana Sea Grant Program Newsletters at their web site.

I would invite you to use this valuable resource liberally.

Erich P Rapp.

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The Louisiana Governor's Advisory Commission on Coastal Protection, Restoration and Conservation recommended on Thursday February 5, 2009 building several major diversions of water and sediment from the Mississippi and Atchafalaya Rivers according to Mark Schleifstein's article in the Friday February 6, 2009 New Orleans Times Picayune entitled, Major river projects urged. Further, the Commission recommended that state and federal agencies responsible for the work draft a plan by the end of 2010 on how this would be accomplished.

If this recommendation were implemented, it would require a serious reconsideration of how the Mississippi River is managed on a scale reaching well beyond the borders of Louisiana. Inevitably removing a large quantity of fresh water and sediment from the main channel of the Mississippi River system will impact navigation. I will be interested to see the reaction of the Army Corps of Engineers to these recommendations. They have historically focused on navigation and then in the 20th century added flood control to their agenda. Those objectives have not materially conflicted or competed in recent times. Adding the diversion of a large volume of  fresh water and sediment from the main channel of the Mississippi River will require compromises between navigation and coastal restoration interests.

In this regard,  Schleifstein makes several interesting points:

1. The large diversions -- which could move 100,000 cubic feet or more of freshwater and sediment into target areas of open water each second -- could require abandoning part or all of the traditional bird foot delta of the lower Mississippi River.

2. The diversion may also require redesigning the navigation channels at the rivers' mouths to allow shipping to reach upriver ports.

3. Further still, the larger amounts of freshwater placed into brackish and saltwater wetlands will disrupt today's commercial and recreational fishing catches.

Even if we get past these issues which is much easier said than done, we will have to consider where the funding is going to come from. The Louisiana state government and Congressional delegation need to establish a funding mechanism at the federal level for implementing a long term coastal restoration program including the recently recommended diversion projects. Until the funding piece is determined, the recommendations will likely remain just that.

Erich P. Rapp.

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When I began this blog a couple of years ago, I began with the argument that the federal government was legally liability for coastal land loss in Louisiana. This liability is the result of the management of the Mississippi River system as a whole and as a result of other federal navigation facilities in Louisiana over many years. To properly present this case to a court, one would need to examine the history of what the federal government has done in the management of these facilities inside and outside of Louisiana. This history is recorded in government documents.

In theory, the Freedom of Information Act (FOIA) makes these records available to the public for examination. In reality over the past eight years, the FOIA has been a joke. My requests and the requests of others for various types of information have routinely been denied for frivolous reasons or simply ignored. 

The Obama administration has now reversed this "don't disclose" bias. On the first day in office, President Obama directed all federal agencies to take a new approach to FOIA requests. The President stated "in the face of doubt....openness prevails."  On Wednesday January 28, 2009, the USA Today posted an editorial entitled: "Let the sun shine on records" explaining the background on the issue and their hope for the future.

On Sunday January 25, 2009 Mark Schleifstein wrote a commentary in the New Orleans Times Picayune entitled, Broken Records, which describes the enormous difficulties that he has had getting FEMA records related to Hurricane Katrina and its aftermath. Mark Schleifstein's experience has been typical of the response to FOIA requests in recent years.

I feel Mark Schliefstein's pain and have experienced similar levels of obstruction. A number of years ago, I sent a FOIA to the United States Justice Department asking for a list of a certain types of claims against the federal government that had been filed in courts around the United States. This request did not seem to present any possible issue of confidential records.

My FOIA request concerned cases openly pending in district courts around the United States. If I had the resources and time, I could have gone to the clerk of each United States District Court in the country and look for the information that I had requested. It would, however, have been much less costly and thus actually feasible to gather the information had the Justice Department simply provided me with a list of the relevant case names.

In response, the Justice Department stated that some of the case names, i.e., the caption at the top of the lawsuits, contained the names of government employees and thus were protected from FOIA requests by confidentiality provisions preventing the release of records related to government employees. Often a lawsuit against a government agency may in title include the Secretary of the Department's name. The confidentiality provision that the Justice Department referenced is intended to protect the human resource files of federal employees from disclosure in response to FOIA requests. Of course, a lawsuit caption is not a human resource file on a federal employee.

My response was that the records could not be considered confidential because they were already filed in the public domain as part of court filings at the various United States District Courts. The Justice Department responded in turn that the names of the cases, although filed in open court proceedings with the clerks of the various United States District Courts, were "Functionally Obscure." Thus for purposes of my request they were still confidential and protected from a FOIA request like a human resource record.

This part I never understood, but that was their position, e.g., a lawsuit filed against Secretary of US Department of Labor in his official capacity was protected from a FOIA request as though it were part of his human resource file at the Department.

The "Functional Obscurity" argument was even more absurd. The Justice Department was claiming that it would be very expensive and time consuming for me to go to the various clerks of the United States District courts and find the case names I had requested even though the records were clearly available to the public at the courthouses. Because the process of gathering the records from these open sources was time consuming and expensive, the records were as a practical matter confidential and protected from a FOIA request because they were "Functionally Obscure." 

The logic was an absurdity that only a government lawyer could dream up. It was also clearly an effort to circumvent the intent of the Freedom of Information Act.

Like the USA Today, I hope that the days of such absurd arguments are over. It would be very valuable to the cause of coastal restoration in Louisiana if the public could examine the government records making up the detailed history of how coastal land loss in the United States began and has accelerated over the last 75 years. 

Erich P. Rapp.

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Louisiana Governor Bobby Jindal addresses coastal restoration in his blog today. See Restoring Our Coast. In this blog entry, Bobby Jindal touts a public-private partnership for the restoration of  marsh land in Cameron Parish. This partnership is quite modest in terms of the scope of the problem in Louisiana, but the concept has significant merit that should be expanded upon.

The Environmental Defense Fund, National Wildlife Federation and National Audubon Society have all indicated interest in public-private partnerships and in partnerships between commercial interests and the environmental movement to restore Louisiana's coastal wetlands. These types of partnerships and avenues of cooperation are the wave of the future.

The key to restoring Louisiana's coastal wetlands is finding increased and reliable funding for the  projects which have already been studied and identified as needed. Finding such new funds will require multiple and sometimes competing stakeholders cooperating with other. 

Although I am sure as a result of being from different political parties, Bobby Jindal and Barack Obama would prefer not to think of their similarities. Nevertheless, similarities exist. Both men are level headed rational thinkers that place the public good above partisan politics and competing private agendas. The stakeholders in coastal Louisiana now need to follow the lead that Jindal and Obama have shown and begin new and unprecedented cooperation toward seeking and supporting adequate funding for real coastal wetland restoration in Louisiana. All together, we can make a change.

Erich P Rapp.

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On Sunday December 14, 2008 and Monday December 15, 2008, the New Orleans Times Picayune has published the first two parts of a three part series on the loss of Louisiana's coastal wetlands. This series is an excellent media tutorial on what, where, when and how Louisiana is losing its coastal wetlands. The series has been published on the front page of the Sunday and Monday paper. The third party will be published on Tuesday December 16, 2008. This series is a great opportunity for the general public to learn what is happening to coastal Louisiana and why.

The first part is entitled - Losing Louisiana Part 1: Because of subsidence and global warming, Louisiana is slowly disappearing.  

The second part is entitled - Losing Louisiana Part 2: Southeast Louisiana is sinking under its own weight.

The third part of the series is entitled - Losing Louisiana Part 3: Protecting southeast Louisiana will be extraordinarily expensive.

The effort that the New Orleans Times Picayune has undertaken here is extraordinarily important. Everyone in Louisiana speaks of Louisiana's coastal land loss at some point, but not everyone understands what is happening. If we from Louisiana are to persuade the nation to support our efforts to protect and restore Louisiana's coast, the path will require as many knowledgeable advocates as Louisiana can find and educate. The New Orleans Times Picayune is helping that cause and I applaud them.

Erich P Rapp.

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