In re Katrina Canal Breaches Consol. Litigation

Decision Date20 March 2009
Docket NumberCivil Action No. 05-4182.,C.A. No. 06-2268.
Citation627 F.Supp.2d 656
CourtU.S. District Court — Eastern District of Louisiana

Daniel E. Becnel, Jr., Becnel Law Firm, LLC, Reserve, LA, Jonathan Beauregard Andry, The Andry Law Firm, Brian Arthur Gilbert, Law Office of Brian A. Gilbert, PLC, Karl Wiedemann, Lawrence D. Wiedemann, Wiedemann & Wiedemann, Joseph M. Bruno, Lewis Scott Joanen, Bruno & Bruno, New Orleans, LA, David W. Druker, Lawrence A. Wilson, Wilson, Grochow, Druker & Nolet, New York, NY, Patrick Joseph Sanders, Patrick J. Sanders, Attorney at Law, Metairie, LA, Richard T. Seymour, Law Office of Richard T. Seymour, PLLC, Washington, DC, Shawn Khorrami, Khorrami, Pollard & Abir, LLP, Los Angeles, CA, for Plaintiffs.

Thomas P. Anzelmo, Kyle P. Kirsch, Mark Emerson Hanna, McCranie, Sistrunk, William Lee Kohler, Gardner & Kewley, APLC, Jennifer May Morris, Joseph Edward Bearden, III, Nicole M. Boyer, Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock, Gerald J. Nielsen, Nielsen Law Firm, Metairie, LA, Andre Jude Lagarde, U.S. Attorney's Office, Heather M. Valliant, Gieger, Laborde & Laperouse, LLC, Victor L. Papai, Jr., City Attorney's Office, J. Warren Gardner, Jr., Christovich & Kearney, LLP, Ralph Shelton

Hubbard, III, April Rochelle Roberts, Joseph Pierre Guichet, Rachel Ann Meese, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, S. Ault Hootsell, III, Jacqueline M. Brettner, Nora Bolling Bilbro, Phelps Dunbar, LLP, Judy Y. Barrasso, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, Brent A. Talbot, Chaffe McCall LLP, George Davidson Fagan, Marc E. Devenport, Leake & Andersson, LLP, William D. Treeby, Stone, Pigman, Walther, Wittmann, LLC, Stephen R. Barry, Barry & Piccione, Thomas Christopher Pennebaker, Orrill, Cordell & Beary, LLC, New Orleans, LA, Ben Louis Mayeaux, James L. Pate, Laborde & Neuner, Lafayette, LA, Darcy Elizabeth Decker, Rabalais, Unland & Lorio, John Fredrick Kessenich, Jon A. Van Steenis, Jonathan H. Sandoz, Kirk Norris Aurandt, Michael William McMahon, Daigle & Fisse, Covington, LA, Robin D. Smith, Conor Kells, David Samuel Silverbrand, Jeffrey Paul Ehrlich, Jessica G. Sullivan, John Woodcock, Peter G. Myer, Rupert Mitsch, Sarah K. Soja, Taheerah Kalimah El-Amin, U.S. Department of Justice, Daniel Michael Baeza, Jr., U.S. Department of Agriculture, Washington, DC, for Defendants.


STANWOOD R. DUVAL, JR., District Judge.

Before the Court are Plaintiffs' Motion for Partial Summary Judgment (Doc. 16510) and Defendant United States' Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment. (Doc. 16511). In this matter, as discussed in the Court's previous rulings1, Plaintiffs2 have filed suit against the United States for damages caused by flooding allegedly caused by the Mississippi River-Gulf Outlet ("MRGO"). The gravamen of these cross-motions focuses on whether the due care exception and discretionary function exception, as delineated in 28 U.S.C. § 2680(a), shields the United States and warrants the dismissal of Plaintiffs' suit.

Plaintiffs' Motion for Partial Summary Judgment

Plaintiffs maintain that they are entitled to judgment on the United States' third3 and fourth4 affirmative defenses which are based on 28 U.S.C. § 2680(a) because:

(1) the Government cannot carry its burden to establish that the Army Corps of Engineers ("the Corps") had discretion to ignore specific legal mandates prescribed in federal statutes, regulations, and policy; and

(2) the Government cannot carry its burden that those decisions were grounded in political social, or economic policy because they were not discretionary policy choices made in the implementation of the original decision to build the MRGO but were ordinary non-policy decisions concerning technical, engineering and professional judgments about safety.

However, the focus of their motion presented here is solely on the first argument—that is that because the Corps violated specific mandates, it is not entitled to invoke the discretionary function exception. Plaintiffs contend that the United States violated federal law by:

(1) violating the Fish and Wildlife Coordination Act ("FWCA")5 by not consulting with federal and state environmental agencies and by not reporting their concerns to Congress;

(2) violating the National Environmental Policy Act ("NEPA")6 by dredging for decades without an adequate environmental impact statement; and

(3) violating policies mandating wetlands protection.

In addition, Plaintiffs contend that the United States has the burden of proof to demonstrate that it did not violate these federal laws.

The United States' Renewed Motion to Dismiss or in the Alternative Motion for Summary Judgment

The United States contends in its motion that the discretionary function exception protects the Army Corps of Engineers' ("the Corps'") design, construction, operation, repair and maintenance of the MRGO. In essence, it maintains that the Corps built a channel that it was mandated to do. The mandated design created the hydraulic funnel of which Plaintiffs' complain when the Corps joined Reach 2 (which is the southeastern reach of MRGO) to the Gulf Intercoastal Waterway ("GIWW") at a point near Michoud to Reach 1, which commingled the two channels continuing as one from that point westward to the Inner-Harbor Navigational Canal ("IHNC"). The Government further contends that it then maintained the channel in the mandated 36-foot depth and 500-foot width using due care.

In addition, the United States contends that the features that Plaintiffs maintain were necessary to eliminate the alleged harmful hydraulic effects—surge barriers and bank protection—were not part of the plans for the MRGO and were "positively excluded." (Doc. 16564 at 2). Thus, it argues that "the only channel, in Plaintiffs' view, that would have comported with the exercise of `due care'—was a different channel from the one that the Chief of Engineers recommended and that Congress directed the Corps to construct." (Doc. 16564 at 3).

The Corps further contends that changing the project to add surge barriers and bank protection would not have promoted the purpose of the MRGO which was to provide an aid to navigation. In addition, they maintain that "the addition of these features would have invalidated the cost-benefit calculations that were an essential underpinning of the Chiefs recommendation that construction be authorized." (Doc. 16564 at 3). Also, the Corps argues that the discretionary function exception bars Plaintiffs' claims that improper dredging contributed to the widening of the channel; it asserts that its decision to install bank protection only where doing so was considered to be more economical method of maintaining the channel's prescribed depth and width would be a policy decision protected by the discretionary function exception of § 2680.7

The Court will address the legal framework that it will use to analyze these two motions. It will examine the due care exception and the discretionary function exception in the context of the arguments made herein. In so doing it will re-emphasize its previous analysis of this bar to Plaintiffs' claims as found in In re Katrina Canal Breaches Consolidated Litigation (Robinson, C.A. No. 06-2268 and BARGE), 577 F.Supp.2d 802 (E.D.La. 2008). However, considering the instant allegations, a further examination of these concepts is required, including a discussion concerning who bears the burden of proof on the immunity issues.

I. Standard for Summary Judgment

Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, "`summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.'" Condrey v. SunTrust Bank of Georgia, 429 F.3d 556, 562 (5th Cir.2005), citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th Cir.2005). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Condrey, 429 F.3d at 562. Once the movant meets this burden, the burden shifts to the non-movant "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "[M]ere allegations or denials" will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with "specific facts" that establish an issue for trial. Id.

The Fifth Circuit Court of Appeals has recognized that where the matter is to be tried to the Court rather than a jury, that there might be a "non-jury motion for summary judgment standard" that is more lenient. "Under the suggested more lenient standard, the district judge could grant summary judgment based on inferences drawn from incontrovertibly proven facts, so long as there is no issue of witness credibility." Illinois Central R.R. Co....

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