In re Katrina Canal Breaches Consolidated Lit.

Decision Date18 November 2009
Docket NumberCivil Action No. 05-4182.
Citation647 F.Supp.2d 644
PartiesIn re KATRINA CANAL BREACHES CONSOLIDATED LITIGATION. Pertains to Robinson C.A. No. 06-2268.
CourtU.S. District Court — Eastern District of Louisiana

STANWOOD R. DUVAL, JR., District Judge.

The Court conducted a 19-day bench trial of this tort suit brought by six plaintiffs1 seeking compensation from the United States based on their contention that as the result of certain defalcations of the U.S. Army Corps of Engineers ("Corps" or "Army Corps") with respect to the maintenance and operation of the Mississippi River Gulf Outlet ("MRGO"), the United States is liable to them under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. for damages incurred in the aftermath of Hurricane Katrina. The Court exercised jurisdiction over the parties, and pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 (FTCA) has jurisdiction over this suit by plaintiffs against the United States for the damages alleged. After considering all testimony and evidence presented at trial and the deposition testimony that the Court reviewed prior to the trial, the Court is prepared to rule as follows. To the extent a finding of fact constitutes a conclusion of law, the Court adopts it as such. To the extent a conclusion of law constitutes a finding of fact, the Court adopts it as such.

Prior to this trial over the course of two years, the Court decided a number of motions by which the United States sought the dismissal of this suit prior to trial. In In re Katrina Canal Breaches Consol. Litig. (Robinson), 471 F.Supp.2d 684 (E.D.La.2007) (Katrina I), the Court denied a Rule 12(b)(1) motion in which the Government contended, among other arguments, that the Court lacked jurisdiction over the subject matter of the case based on the Flood Control Act of 1928 ("FCA"), specifically, 33 U.S.C. § 702c, which provides that "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters in any place." 33 U.S.C. § 702c. This Court denied the motion and in particular refused to apply the United States' overly broad interpretation of that statute and the seminal case of Central Green Co. v. United States, 531 U.S. 425, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001). Relying on Graci v. United States, 456 F.2d 20 (5th Cir.1971), this Court found that the Corps could be held liable for damages arising out of activities surrounding a navigational channel notwithstanding the fact that those actions caused the failure of certain levees. The Court wrote:

... [T]he Government's position ignores the fact that even the Supreme Court in Central Green opened the possibility of a segregation of damages—those for which the Government would be immune under § 702c and those for which immunity would not attach. Indeed, the Government even concurred with this reading at oral argument. (See Transcript of Hearing, October 27, 2006, at 33). For example, would the United States be immune for all damages if a Navy vessel lost control and broke through a levee where the sole cause of the failure of that levee was the Navy vessel's negligence? Thus contrary to the Government's contention that Central Green broadens the immunity provided by § 702c, in realty Central Green requires the Court to identify the cause of the damage rather than base a decision on the mere fact that a flood control project was involved. Central Green does not answer the question of what nexus to a flood control project is required for floodwaters to trigger immunity.

Id. at 695. Thus, the Court undertook this trial to determine, inter alia, whether the Corps' activities with respect to the MRGO acted like that Navy vessel destroying the levee.2

I. FINDINGS OF FACT
A. FACTUAL BACKGROUND
1. Construction of MRGO

In 1943, Congress requested a report from the Chief of Engineers, Secretary of the Army,3 on the viability of the Mississippi River-Gulf Outlet which report was authorized by the River and Harbor Act and was approved on March 2, 1945. DX-0573 (H.R. Doc. No. 82-245 (1951)) at 1. The genesis of this request was apparently two-fold. The activity experienced at the Port of New Orleans during World War II made clear that an expansion and dispersion of those facilities was necessary in case of future hostilities. Id. at 41, ¶¶ 75-76. In addition, a shorter route to New Orleans would provide savings to the maritime industry by decreasing the distance from the Gulf of Mexico to New Orleans by about sixty miles. Id. at 35-36, ¶¶ 56-57.

Indeed, the needs of the maritime industry were a substantial focus for the Corps' activities as concerned the MRGO. At the same time, however, the safety of the citizenry of the metropolitan New Orleans area was another of its charges as demonstrated by Congress' authorization of the Lake Pontchartrain and Vicinity Hurricane Protection Plan. The tension as to which client's needs were more important plays a decisive role in this tragedy.

On September 25, 1951, a report dated May 5, 1948, from the Chief of Engineers, United States Army ("Chief's Report") was transmitted to the House of Representatives. DX-0573 (H.R. Doc. No. 82-245 (1951)) ("Chief's Report"). It recommended the construction of a deep-draft channel on the east side of the Mississippi River. The route ran from the Inner Harbor Navigational Canal ("IHNC") eastward along the Gulf Intracoastal Waterway ("GIWW") to a point near Michaud, this section being called Reach 1, before striking a southeasterly course to and along the south shore of Lake Borgne and through the marshes to and across Chandeleur Sound to the Gulf of Mexico. This section of the channel is referred to as Reach 2. As Reach 2 moved southward, it cut through Bayou Bienvenue at the channel's more northerly end and Bayou La Loutre at its more southerly end. The channel was to be 36 feet deep and 500 feet wide, increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide. Id. at 2. Its construction was to be done "generally in accordance with the plans of the division engineer and with such modifications thereof as in the discretion of the Secretary of the Army and the Chief of Engineers may be desirable." Id. at 5, ¶ 3.

In making the decision to place the MRGO at this location, the Corps stated as follows:

Proponents of additional deep-draft outlets have assumed that such channels can be secured and maintained by dredging, but departmental experience in maintenance and improvement of Gulf-coast entrance channels does not support such assumption where shallow exposed coastal lakes or sounds are encountered. It has been demonstrated repeatedly that such channels should be sited through land cuts or provided with effective barriers to preclude return of dredge spoil into dredge channels. Hence the plan of improvement presented herein for an east-bank outlet and tidewater harbor provides for maximum use of land cuts, for a permanent retention dike across the sound and for jetties at the Gulf entrance.

Id. at 37, ¶ 59. Ultimately, the land-cut channel was authorized in 1956 by Public Law Number 84-455, 70 Stat. 65 (1956) and was to be constructed "substantially in accordance with" the recommendation contained in the Chief's Report. DX-0051 (Pub.L. No. 84-455, 70 Stat. 65 (1956)).

The actual design and construction of the channel occurred in phases and in segments. The first segment approved was that which ran coterminously with the GIWW (Mile 63.77-Mile 68.85).4 JX-139 (Design Memoranda No. 1-A, Revised July 29, 1957). The second segment approved ran from the end of the east-west portion of the channel and turned southeastward cutting Bayou Bienvenue continuing on above Bayou La Loutre (Mile 63.77 to Mile 39.01). DX-1043 (Design Memorandum No. 1-B September 1958).5 The next segment ran approximately from Bayou La Loutre to the entrance of the Gulf (Mile 39.01 to Gulf Entrance) and the final portion was for certain retention dikes. DX-1042 (General Design Memoranda No. 2 (June 1959) at EDP-023-667). Its construction was completed to full dimensions in 1968. DX-1027 (1988 Reconnaissance Report) at 14, pdf 25; Doc. 19139 (United States' Proposed Finding of Fact No. 777). A pictorial representation of these waterways can be found in Graphic No. 1 in the Appendix. Graphic No. 1— PX-98.2 "Greater New Orleans Flood Protection System".

Reach 1, Reach 2, the Golden Triangle, the Breach Zone and the Central Wetlands Unit

Certain Mile Markers of the MRGO will be used as benchmarks in this opinion. Mile Marker 60 is at the very end of the East-West portion of the MRGO—that which runs coterminously with the GIWW or Reach 1. It is at Mile Marker 60 that the "funnel" occurs—that point where the MRGO's North-South leg, Reach 2, feeds into the GIWW. The geographic area to the east of this intersection is referred to as the "Golden Triangle" as the marsh area from that point to the west of the north-western shore of Lake Borgne resembles a triangle.

The MRGO transverses Bayou Bienvenue at Mile Marker 59.6 Midway between Mile Marker 53 and 52 Bayou Dupre is transversed. The majority of the breaches to the MRGO Reach 2 Levee occurred between these two points (Mile Marker 59 to Mile Marker 52); that area will be referred to as the Breach Zone in this opinion. The Bayou La Loutre Ridge is located between Mile Marker 36 and 37. The Central Wetlands Unit is that marshland which is encircled at the north by the MRGO Reach 1 Levee, to the east by the MRGO Reach 2 Levee, to the south by the 40 Arpent Levee. The Verret Turn or the Chalmette Extension Levee protects those inhabited areas to the south of the 40 Arpent Levee; it extends from the MRGO at approximate Mile 47. See Graphic No. 2—JX-0195 FitzGerald Report at 2-2, at pdf 12.

2. The Construction of the LPV

At approximately the same time as the MRGO was on the drawing...

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