Katrina suit vs. Army Corps dismissed

A federal judge threw out a key class-action lawsuit Wednesday against the U.S. Army Corps of Engineers over levee breaches after Hurricane Katrina, saying that the agency failed to protect the city but that his hands were tied by the law.

U.S. District Judge Stanwood Duval ruled that the Corps should be held immune over failures in drainage canals that caused much of the flooding of New Orleans in August 2005.

The ruling relies on the Flood Control Act of 1928, which made the federal government immune when flood control projects like levees break.

The suit led to about 489,000 claims by businesses, government entities and residents, totaling trillions of dollars in damages against the agency.

The fate of many of those claims was pinned to that lawsuit and a similar one filed over flooding from a navigation channel in St. Bernard Parish. It was unclear how many claims could still move forward.

In his ruling, Duval said he was forced by law to hold the Corps immune even though the agency "cast a blind eye" in protecting New Orleans and "squandered millions of dollars in building a levee system ... which was known to be inadequate by the Corps' own calculations."

But, Duval said, "it is not within the Court's power to address the wrongs committed. It is hopefully within the citizens of the United States' power to address the failures of our laws and agencies."

Breaches at both the 17th Street and London Avenue canals allowed flood water to inundate large areas of the city from near Lake Pontchartrain to the north to the edge of downtown.

Throughout the court proceedings, plaintiffs lawyers knew they faced a daunting task because the canals were, over time, used as flood control projects by the Corps.

"I knew we had an uphill battle. But we had to do it," plaintiffs lawyer Joseph Bruno said. "It's an outrage. Read the opinion: The judge reads through all the negligence by the Corps, but says he had to rule the way he had to."

Bruno said the plaintiffs would appeal to the 5th U.S. Circuit Court of Appeals, but he conceded that overturning Duval's ruling would be difficult.

The plaintiffs tried to bypass the immunity issue by claiming that the Corps used the canals as drainage projects and that the levee failures were brought about by canal dredging.

The ruling was another blow to the people of New Orleans, where loathing for the Corps continues unabated.

"This cost people's lives and property," said Gwen Bierria, 66. She is still living in a government-issued trailer on her property abutting the London Avenue Canal and is among the tens of thousands of people who have filed claims against the federal government for damage from the levee breaches.

"Anybody that calls themselves the Army Corps of Engineers should be embarrassed," she said.

Kathy Gibbs, a Corps spokeswoman, said "the Corps agrees with the dismissal of the case" but declined to comment further because other lawsuits are pending over Katrina damage.

Al Petrie, incoming president of the Lakeview Civic Improvement Association, said that few residents who returned to the neighborhood and started to rebuild based their decision on the success or failure of the levee litigation.

Still, many residents will continue blaming the Corps for the disaster no matter what the courts say, he said.

"Over time, anger tends to quiet down," he said. "It doesn't mean people are less cautious. We're still beholden to the Corps to do this right."

New Orleans activists and politicians said they will not give up on holding the Corps accountable.

"We will stick with our mission of education that this was the worst engineering failure since Chernobyl," said Sandy Rosenthal, founder of Levees.org, a group that has lobbied for overhauling the Corps.

Since Katrina, calls for a makeover of the Corps have gained momentum, and the agency, which has acknowledged mistakes, has re-evaluated its procedures for picking and designing projects.

Duval, in his ruling, agreed that legal and bureaucratic change is required.

"The byzantine funding and appropriation methods for this undertaking were in large part a cause of this failure," Duval said, referring to the politics-riddled process Congress has for funding Corps projects.

The Flood Control Act is counterproductive, Duval said, because it negates incentives for good government workmanship and creates an environment where "gross incompetence receives the same treatment as simple mistake."

Edwards Nixes Campaign Stops for Speech in New Orleans

Democratic presidential candidate John Edwards postponed campaign events in Alabama and North Dakota to make a major policy address on poverty Wednesday in New Orleans, where he launched his presidential bid 13 months ago.

Campaign officials said Edwards wants to highlight the fact that President Bush did not focus on New Orleans, still reeling from Hurricane Katrina, during his State of the Union address. North Dakota and Alabama are scheduled to vote Feb. 5.

In a news release, the Edwards campaign called poverty ''the great moral issue of our time.'' In recent days, it said, ''national discussion of important issues like ending poverty has given way to sniping and personal attacks between the two front-runner candidates. Ending poverty and fighting for the middle class is the cause of John Edwards' life -- and he will urge the nation to refocus on this important issue.''

Mudcat Saunders, who was campaigning for Edwards in rural Georgia, a Feb. 5 state, said Edwards wanted to refocus his campaign on poverty.

Advisers said Edwards was continuing his campaign to the 22 states holding nominating contests on Feb. 5, despite losses in the first four contests, in hopes of picking up more delegates. On Saturday, he finished a distant third in his native South Carolina, whose primary he won in 2004.

Some people close to the campaign said Edwards also was disappointed that poverty got little mention in Democratic reactions to President Bush's address, and he sees the New Orleans speech as a chance to refocus attention on the problem.

The insiders said Edwards continues to raise money at a respectable pace, although not at the level of rivals Hillary Rodham Clinton and Barack Obama.

The Edwards campaign said he will attend Thursday's Democratic debate in Los Angeles. After speaking in New Orleans on Wednesday, the news release said, Edwards ''will volunteer on the Habitat for Humanity project at the Musicians' Village'' and then fly to Atlanta to address a Georgia Democratic Party dinner.

Georgia also votes on Feb. 5.

Edwards campaigned Tuesday in Jefferson City, Mo. He told a small crowd that he wants universal health care, a quick end to the Iraq war and economic policies geared toward helping the working and middle classes.

Slow going for Historic district agency

Seven months after it was created by the Legislature, the board of a French Quarter and Faubourg Marigny "management district" held its first meeting Monday. Members soon found that getting a government agency up and running can be slow going.

After taking care of housekeeping matters such as setting a tentative schedule of meetings and drawing lots to see how long each member's term will be, the 13-member board failed even to elect officers or establish committees.

With the board's next meeting two weeks away, it was left unclear whether the group will have enough time to formulate detailed plans for the next fiscal year that can win legislative approval -- and appropriations -- during the spring session.

In approving the concept of the management district last year, the Legislature gave it only $50,000, much too little to accomplish any major goals.

The idea behind the French Quarter-Marigny Historic Area Management District is that it would be a counterpart to the Downtown Development District on the other side of Canal Street, funneling money to infrastructure improvements and enhanced government services.

When New Orleans political and business leaders created the Downtown Development District in the 1970s, the French Quarter opted out. Suspicious of those backing the new group and fearful that it would have a pro-development, anti-preservation stance, French Quarter residents saw to it that the new district reached no farther downriver than Iberville Street.

In the intervening decades, the idea of extending the DDD to include the Quarter, or of creating a new agency or tax district to upgrade services in the city's most historic neighborhood, was raised several times. But it foundered each time on the shoals of Quarterites' distrust of city leaders and opposition to higher taxes, or on rivalries among the Quarter's various factions: residents versus shop owners versus hoteliers.

In the wake of Hurricane Katrina, and with the support of Mayor Ray Nagin and the city's hospitality industry, the various factions got together last year.

They won approval for an agency that, in the words of the enabling legislation, is to help the French Quarter repair its post-Katrina "tarnished world image." The agency is supposed to revive the Quarter's slumping tourism industry "by improving the safety and quality of life of its visitors and residents, restoring its damaged or missing infrastructure, addressing its parking and mobility concerns, beautifying its appearance, and making it more appealing and inviting for its patrons," the legislation says.

Besides the traditional boundaries of the French Quarter, the district includes properties on the lake side of North Rampart Street and the downriver side of Esplanade Avenue, plus a two-block-wide swath of Faubourg Marigny centered on the Frenchmen Street entertainment and commercial district.

Among the projects the law says the agency can support are sidewalk improvements, public restrooms, incentives to utilize vacant buildings or upper floors, crime-prevention cameras, graffiti removal, "lighting and signage upgrades," solutions to parking problems, "beautifying the district," and "revitalizing and nurturing cultural and historical features, and preserving tourism."

Nagin and some others who pushed for creation of the agency expected it to affiliate with the Downtown Development District, and the legislation specifically authorizes the new board to sign a contract with the DDD for "administration, management and operation services." But that expectation grew out of an assumption that the agency would have a substantial budget.

Those planning the district rejected the idea of a special tax millage, such as the DDD imposes. Instead, under a bill introduced by Sen. Ed Murray, D-New Orleans, the board would have received almost 1 cent of the 4-cent sales tax the state receives on all purchases within the district's boundaries, amounting to nearly $7 million a year.

But for various reasons, such as the lack of definite plans for how the money would be spent, the sales tax provision failed to win support from key legislators or Gov. Kathleen Blanco's administration. It was dropped from the final version of the bill, and the new agency was given only $50,000 for the fiscal year that ends June 30.

The Legislature passed the bill creating the agency in June and Blanco signed it July 6, but it then took several months for all the organizations represented on the board to nominate members.

The New Orleans Hotel and Lodging Association has two representatives. Groups with a single appointment are the Vieux Carre Commission, two groups of French Quarter residents, the Faubourg Marigny Improvement Association, the Louisiana Restaurant Association, the French Quarter Business Association, the Bourbon Street Merchants Association and the New Orleans Metropolitan Convention and Visitors Bureau. In addition, the mayor gets two selections, one resident and one business owner, and the City Council member from District C gets one pick.

Ten of the 13 members met Monday for more than two hours. They decided to meet again Feb. 11 and then monthly through at least July, as the board tries to get established and decide what financial requests, if any, to present to the legislative session starting March 31.

Homes outside Levees proposed for buyouts by Corps

Storm surge from Hurricane Katrina pushed through marsh along the north shore of Lake Pontchartrain at its juncture with the Tchefuncte River, reaching a record high 7.9 feet in Madisonville, where it damaged 40 percent of the historic waterfront town's homes.

But it still came as a surprise to Madisonville Mayor Peter Gitz to learn that the Army Corps of Engineers may recommend a voluntary buyout of properties south of Louisiana 22, which bisects the town, as part of the corps' comprehensive plan to protect south Louisiana from catastrophic hurricanes.

Gitz and others are learning what flood protection from a "Category 5" hurricane, the classification for the most intense storms, could mean for the New Orleans area. While the corps is still working on its Category 5 plan, a "progress report" obtained by The Times-Picayune offers a preliminary look at the agency's three-pronged approach to protecting the region: flood control, coastal restoration and "buyout" zones.

Yes, buyouts.

Part of Madisonville -- along with hundreds of acres in other wetland or low-lying areas outside of proposed levee systems -- appears so vulnerable to storm surge that a government buyout of residences and businesses is listed as one potential option.

The areas pictured also include the southernmost parts of Slidell, Mandeville and Lacombe on the north shore; Delacroix and Reggio in St. Bernard Parish; Ruddock in St. John the Baptist Parish; Lafitte and Barataria in Jefferson Parish; and a number of communities on both sides of the river in Plaquemines Parish. The report doesn't say how many buildings are in the areas proposed for buyouts.

Gitz isn't buying it. The 72-year-old mayor views Katrina as an extremely unusual event with little chance of repeating.

"I was 12 when the 1947 hurricane hit us, and it didn't cause such high water," he said. "Audrey, Betsy, Camille and all the others, we never had water over elevation 6."

The draft document, which details work the agency already should have completed, has not yet been released to the public. The corps missed a Dec. 31 deadline to make recommendations to Congress, angering the state's congressional delegation, as well as state officials and advocates for coastal restoration and flood protection.

The report includes a variety of options for levees and coastal restoration projects, all labeled as "examples" rather than concrete proposals. But the buyout proposal -- similar to a controversial plan the corps pitched last year in Mississippi -- represents new territory for the agency.

Hundreds of acres of mostly wetland areas or low ground outside of proposed levee systems are labeled for buyout based on two reasons:

-- Computer models indicate that 400-year or 1,000-year hurricanes would throw surge at vulnerable areas with enough force to knock down buildings or move them off their foundations.

-- The models show the surge would be so high that the buildings would be inundated.

The maps also recommend even larger areas, still outside proposed levees, to be targeted for raising of buildings to heights of as much as 14 feet. The corps report doesn't specify who should pay for the buyouts or building elevations.

Last year, the corps proposed a voluntary buyout, using federal money, for 17,000 residential properties across the Mississippi Coast. The proposal was quickly reduced to as few as 3,000 houses over five years after property owners and local elected officials raised objections.

The buyout and elevation strategies "provide the most definitive risk reduction by removing assets at risk," said Col. Al Lee, commander of the corps' New Orleans District office.

But corps project manager Al Naomi said the corps still must work with local stakeholders "to get a sense of what's implementable and what isn't."

Corps delays process

The corps was directed to deliver a comprehensive protection plan to Congress by Dec. 31. In a Dec. 20 letter to House Speaker Nancy Pelosi, D-Calif., Army Assistant Secretary for Public Works John Paul Woodley Jr. said the corps could not make the deadline but would send a progress report in about two months.

With the clock ticking on Louisiana's eroding coast, the delay raised the ire of Louisiana's U.S. senators and state officials. Most of the leading researchers studying coastal erosion have said that Louisiana must take drastic action within the next 10 years to have any hope of saving key sections of coastline, vital for hurricane protection.

"It is extremely disappointing that the corps is again ignoring the intent of Congress by delaying their report," said U.S. Sen. Mary Landrieu, D-La. "Bureaucratic foot-dragging leaves in lingering jeopardy both our coast and the safety of the millions of Louisianians living there."

Sen. David Vitter, R-La., echoed that sentiment.

"The administration has had years to prepare this report," he said. "Unfortunately, missing another key deadline will reinforce the fear many, including me, have -- that they haven't adopted the right sense of urgency regarding coastal protection, and that they're too focused on cost versus best engineering."

The delays stem largely from a decision by the corps to design a new, complex process for selecting which projects should be part of the plan, after being ordered by Congress not to use its traditional method of weighing the financial benefits of projects against the cost.

Corps officials say the new selection process, which they call a "matrix," is necessary to assure that the ability of individual projects to reduce storm surge risk is supported by science and engineering, that their construction and maintenance are affordable, and that they meet the political and cultural demands of the state's residents.

For the past two years, state officials have repeatedly pointed out that many of the projects have been on the drawing board for years, and that remaining scientific questions can be answered as the individual projects are undergoing design and construction.

"We don't have time to wait for their schedule," said Sidney Coffee, who recently stepped down as director of the Governor's Office of Coastal Activities and chairwoman of the Louisiana Coastal Protection and Restoration Authority.

Officials are frustrated

Several parish officials also are concerned about continuing to wait for a plan, and at the lack of input they have had in its direction.

Slidell Mayor Ben Morris is one of those who has yet to be contacted about proposals for buyouts or for a U-shaped levee around the city.

"It may make some sense, but I would like to see what they're talking about," Morris said of the buyout proposal. "If they want to buy out half the city, that's one thing. But if they're only interested in small areas, that's different."

Morris said he's much more worried about the time spent looking at such alternatives, instead of moving forward with projects to restore wetlands and barrier islands.

"They will already have built the Ben Morris Memorial Phone Booth by the time those are built," he said.

Morris said he is equally frustrated by the slow response to past requests from Slidell officials to help pay for a levee to protect the city's southern boundary and the lengthy study under way to determine how to protect his city from much larger hurricanes.

"I could have put a levee up there for a half-million dollars that would have done a great job during Katrina for at least some of the surge," he said. "Why reinvent the wheel when you can get a cheap fix? Then, if a permanent solution comes up 10 or 11 years from now, do that permanent solution."

St. Tammany Parish spokeswoman Suzanne Parsons Stymiest said Parish President Kevin Davis has met several times with corps officials to discuss the long-term alternatives, including gate proposals and levees in various locations. But the buyout alternative had not been discussed.

"Any plan that would come forward from the federal government, or from anyone, would have to be extremely respectful," she said. "These are people's homes we're talking about, and any decision would have to take their feelings into account."

Neither does Plaquemines Parish have time to wait for the report to be completed, said new parish coastal restoration director P.J. Hahn.

"We think we should be taking our offshore oil and gas revenue and bonding it out and leveraging that for more money to rebuild now," Hahn said. "The focus needs to stay on Plaquemines Parish because anything we do down here is going to have a huge impact on New Orleans and Jefferson Parish."

Storm speeds erosion

Corps officials say it will take several months for the agency to complete a required technical report, needed to support the final recommendations and expected to run some 4,000 pages.

Once complete, the report must undergo both a corps peer review process and an outside review by a panel of scientists and engineers with the National Academy of Sciences, which could take at least six weeks.

The corps also hasn't completed an environmental impact statement that must accompany the report and must undergo public review, including public hearings.

Woodley said he will forward the completed documents to Congress within 120 days of the completion of that process.

"Although I am painfully aware that each day of delay is disquieting to all of us that are dedicated to the Gulf Coast recovery efforts, we all realize that our decisions will ultimately be tested over time," he said in his letter to Pelosi.

Corps officials drafting the reports say the complicated process of determining how best to protect Louisiana's coastal communities probably should take at least five years, so missing a two-year deadline is not surprising.

Indeed, the dramatic damage caused by Hurricanes Katrina and Rita to the state's coastline -- about 217 square miles of wetlands turned into open water -- has caused those planning levee and restoration projects to rethink whether they will work. In some cases, levees that were believed to be buffered by wetlands that would avoid erosion for a generation are now facing open water.

"The loss attributed to these storms exceeds the wetland losses that had been projected to occur in the entire state over the next 20 years," the report said. "Viewed in relation to New Orleans alone, all of the wetlands that were expected to erode in the New Orleans area over the next 50 years were lost in a single day during the landfall of Hurricane Katrina."

Protecting Mississippi

Another unresolved issue is determining the effects of Louisiana projects on Mississippi's coastline, and vice versa. The corps' Mobile District office is leading a similar study of ways to increase protection to Mississippi's coast.

Several months after Katrina, scientists realized that New Orleans area levees refocused Katrina's storm surge onto the Mississippi Gulf Coast, which might have helped increase its height at Katrina's landfall there.

Right after Katrina, a variety of federal and state officials traveled to the Netherlands and saw the massive gates that are part of its storm protection system, then suggested using similar huge gates to block surge from entering Lake Pontchartrain through the Chef Menteur and Rigolets passes.

That plan would have allowed for lower levees on the south shore of Lake Pontchartrain, obviating the need for an alternative "high level" plan for higher levees along Orleans and Jefferson parishes, and allowing construction of a lower U-shaped levee around the southern edges of Slidell.

But extensive computer modeling of storm surges from potential hurricanes showed the high Netherlands-style gates could redirect storm surge to Mississippi, causing planners to reconsider.

"The longer they stay with it, the more the high-level plan keeps coming back to the forefront," said Norwyn Johnson, state Department of Natural Resources coastal project manager.

The result has been more study of a hybrid of the two plans, according to the report. In the new alternative, the corps would use weirs instead of floodgates at the Chef Menteur and Rigolets passes, and then build slightly higher levees on the lake's south shore and new levees on the lake's north shore.

The weirs would allow water to flow through during non-storm periods, or could be designed to act as gates, being in place only during storms. The part of the structure that would be solid would be lower than the Netherlands-style gates, however, to block surge from smaller hurricanes.

Surge from larger hurricanes would go over the top of the weirs and into the lake, reducing the amount of water bouncing off toward Mississippi.

Levees along the south shore lakefront and Slidell might have to be higher to take into account the surge entering the lake.

But it's still the process of running all the projects through the decision matrix developed by the corps that has frustrated state and local officials.

"How much time have we spent to develop a matrix? Two years, and what we have now from the federal government to present to Congress is not even the beginning of a real comprehensive approach to this thing," said Coffee, who now works as a consultant to the America's Wetland Foundation, which supports a public relations campaign supporting coastal restoration for the state.

"What are we going to have after another year?" she asked. "Do the math. It's too slow."

Trouble The Water wins Sundance

PARK CITY, UTAH (Reuters) - Two films about people working to triumph over personal tragedy took the top prizes at the Sundance Film Festival on Saturday night as the key event for U.S. independent movies honored a new generation of stars.

"Frozen River," written and directed by Courtney Hunt, won the Grand Jury Prize for best film drama, and "Trouble the Water," from directors Tia Lessin and Carl Deal, was named best documentary among the entries in Sundance's U.S. competition.

Hunt's movie, "Frozen River," captivated the five-member jury that included director Quentin Tarantino and actress Marcia Gay Harden, with a tale of two women overcoming hardship and embarking on a scheme to smuggle illegal immigrants into the United States in order to better their own lives.

Tarantino said the film "took his breath away." It was "one of the most exciting thrillers I am going to see this year."

"Trouble the Water" was judged the best U.S. documentary by a five-member jury for its tale of New Orleans residents uprooted from their homes in the wake of Hurricane Katrina.

"We couldn't have predicted the despair and outrage we felt" in making the movie, said Lessin. But she added "out of that, emerged a story that is all about survival and hope."

The Sundance Film festival, which is backed by Robert Redford's Sundance Institute for Filmmaking, is the top event for moviemakers working outside Hollywood's major studios, and its winners vault into top ranks of U.S. independent cinema.

One theme festival organizers have touted this year is the emergence of a new generation of filmmakers -- writers and directors born after the U.S. baby boom years -- who are now finding their own voices and offering stories to moviegoers.

I'm struck by the profound sense of significance and emergence of these independent filmmakers," said festival director Geoffrey Gilmore. "This is a class of filmmakers we will remember years from now."

AUDIENCES LOVE "WACKNESS"

Along with the jury prizes, festival-goers also get to vote for their favorite films, and this year's Audience Award for best film drama went to drama "The Wackness," one of the highly touted films coming into Sundance 2008.

"Wackness" tells of one summer in the life of a teenage dope dealer and his psychiatrist, who also happens to be one of the teen's best marijuana clients. That friendship helps the teen come to a better understanding of his world.

Over the 10-day festival's opening weekend, "Wackness" director Jonathan Levine was one of the new generation of directors Gilmore singled out. He accepted his award thanking the movie fans who came out in droves to see his movie.

"I guess that is what this is about, making a relationship with the audience and not necessarily a (Hollywood) studio or an agent," Levine said.

The Audience Award for best U.S. documentary was claimed by environmental film, "Fields of Fuel," which follows director Josh Tickell's research and personal use of alternative fuels.

Sundance also is a key venue for international moviemakers, and in the festival's world cinema competition, "Man on Wire," from British director James Marsh, proved to be a big winner with both the Grand Jury Prize and Audience Award for best documentary. "Man on Wire" tells of Frenchman Philippe Petit's tightwire crossing of New York City's Twin Towers in 1974.

Sweden's "King of Ping Pong," a tale of a 16-year-old who is ostracized by his schoolmates and finds refuge in the game of ping pong, was picked best film drama by the world jury.
The Audience Award for world cinema drama went to Jordan's "Captain Abu Raed," telling of an airport janitor who delights children with fictional tales of his fantasy life as a pilot.

"With movies like this we can actually make the world a better place, I hope," said director Amin Matalqa.