Judge: Corps can be sued for flood

A federal court judge cleared the way Friday for the Army Corps of Engineers to face trial on claims that defects in its Mississippi River-Gulf Outlet destroyed wetlands and turned the navigation channel into a funnel for storm surge.

U.S. District Judge Stanwood Duval's 40-page ruling "paves the way for the first and only trial that will likely be held on how the Army Corps of Engineers drowned New Orleans" during Hurricane Katrina, said California attorney Pierce O'Donnell, who leads the legal team that filed the case two years ago on behalf of a group of plaintiffs that includes WDSU-TV anchorman Norman Robinson, who lived in eastern New Orleans.


The suit alleges the controversial shipping channel flooded thousands of homes in eastern New Orleans, the Lower 9th Ward and St. Bernard Parish.

A spokesman for the U.S. Justice Department, which is defending the corps, declined comment, saying department attorneys needed time to review the ruling.

Duval's decision rejected the corps' argument for tossing out the case without a trial: that a federal law makes the agency immune from lawsuits over damage caused by its flood protection projects.

But Duval said that because the MRGO -- a deep draft navigation channel built over a decade starting in 1958 -- is not a part of the Lake Pontchartrain and Vicinity Hurricane Protection plan, the Corps can be held liable for damage caused by the waterway.

Duval cautioned that his ruling does not hold the corps liable, a matter he said he can decide only after "questions of material fact" about what caused the flooding can be examined at trial.

O'Donnell predicted that if the trial ends with the judge ruling for the plaintiffs, then anyone who lives in the affected areas -- eastern New Orleans, the Lower 9th Ward and St. Bernard Parish -- will be entitled to collect compensation from the corps, "subject to proving their damage."

O'Donnell said his team will also go to bat for residents in part of New Orleans that flooded after drainage canal levees broke after Katrina -- damage for which Duval has already said the corps cannot be sued.

"We are going to the new Congress in January, hopefully with a judgment in our hands, and we are going to say we need a 9/11 style Katrina Victim's compensation fund," O'Donnell said.

In the Friday decision, according to O'Donnell, Duval said the plaintiffs had offered "substantial evidence" that the storm water that surged through the MR-GO and into residents' homes overwhelmed hurricane protection levees.