As lead trial counsel on this case along with co-counsel John Andry of New Orleans, I want to assure those affected by this disaster that we are working diligently on the next steps toward resolving this long-overdue disaster.

You will find a lot of information about the case here:  news stories, press releases and the court rulings.

Stay tuned for more news.

Pierce O’Donnell

Associated Press- A federal appeals court on Friday upheld a judge’s landmark ruling that the Army Corps of Engineers is liable for property owners’ claims, agreeing the shoddy work on a shipping channel caused billions of dollars in damage from Hurricane Katrina’s storm surge.

A three-judge panel from the 5th U.S. Circuit Court of Appeals rejected the federal government’s argument that it is entitled to immunity from lawsuits blaming Katrina’s flood damage on the corps’ operation and maintenance of the Mississippi River-Gulf Outlet, a New Orleans navigation channel.

The federal government had asked the 5th Circuit to reverse a 2009 decision by U.S. District Judge Stanwood Duval, who ruled that flooding in St. Bernard Parish and New Orleans’ Lower 9th Ward was a manmade disaster created by the corps’ negligence.

The 5th Circuit praised Duval for his “impressive’’ rulings and lauded his “careful attention to the law and even more cautious scrutiny of complex facts.’’

Duval awarded a total of nearly $720,000 in damages to five plaintiffs who sued. The corps also has received roughly 500,000 administrative claims that could become fodder for similar suits.

Plaintiffs’ attorney Pierce O’Donnell expressed hope that Friday’s ruling could stimulate settlement talks with the government to resolve the pending claims.

“This is a landmark victory, not just for the people ravaged by Katrina’s flooding but for all Americans,’’ he said. “We must hold our government accountable when it inflicts avoidable harm on its citizens.’’

A Justice Department spokesman didn’t immediately return a phone call seeking comment.

Plaintiffs’ attorney Joe Bruno said he expects the government to ask the full 5th Circuit to review the case. They could also appeal to the U.S. Supreme Court.

“I see no reason for the Supreme Court to take the case,’’ he said. “This is not a big, controversial interpretation of the law.’’

During a hearing last year, O’Donnell told the 5th Circuit judges that the corps knew for decades that the MRGO channel was a “mounting and looming disaster’’ in the making and yet did nothing to ease the threat.

The MRGO, which extends for 60 miles southeast from New Orleans to the Gulf of Mexico, partially opened in 1963 and was closed about three years after Katrina struck in August 2005. Over the decades, the corps’ dredging of the channel resulted in the loss of thousands of acres of wetlands that helped protect greater New Orleans from hurricane flood waters.

Justice Department lawyers argued that the Flood Control Act of 1928 shields the federal government from liability.

In his 156-page ruling, however, Duval said he was “utterly convinced’’ that the corps’ failure to shore up the channel “doomed the channel to grow to two to three times its design width’’ and that “created a more forceful frontal wave attack on the levee’’ that protected St. Bernard and the Lower 9th Ward.

The 5th Circuit said some of the plaintiffs in the case demonstrated that the corps’ “negligent decisions rested on applications of objective scientific principles and were not susceptible to policy considerations.’’

“At points where it could have mattered, the Corps did not identify MRGO’s ability to aggravate the effect of a major hurricane,’’ 5th Circuit Judge Jerry Smith wrote. “This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.’’

In Robinson v. United States, the Appeals Court on Friday upheld a New Orleans federal judge’s 2009 decision that the Army Corps of Engineers is liable for the cataclysmic destruction of the nation’s 35^th largest city caused by Hurricane Katrina in 2005.  

“This is the worst man-made catastrophe in U.S. history,’’ O’Donnell said. “Two respected federal courts have now ruled unanimously that the Army Corps of Engineers is responsible for the drowning of New Orleans and the government should be held accountable. It is time for the Justice Department to stop litigating and start long overdue discussions about economic justice for the residents of New Orleans.’’

Said co-lead counsel Jonathan Andry of New Orleans, “This is a huge victory for the people of St. Bernard Parish. Unfortunately, they are being vindicated more than six years too late. Anthony Franz is dead. Lucille Franz is dead. They are not here to enjoy this decision. This should never have happened to an American city. The court’s ruling demonstrates that the judicial system works and there is such a thing as justice. The victory speaks to the institutional arrogance of the Army Corps of Engineers. Now something needs to be done to fix it.”

The U.S. government had appealed a decision by U.S. District Judge Stanwood J. Duval, Jr. in November 2009 that the Army Corps of Engineers was guilty of gross negligence for the failure of levees in dozens of locations that led to the catastrophic flooding and devastated a 100-square-mile metropolitan area.

In its appeal, the government did not contest Judge Duval’s factual findings that the catastrophe was caused by the “monumental” negligence, “insouciance, myopia and shortsightedness” of the Corps. Instead, the Justice Department argued that the federal government should be immune from responsibility for the disaster.

“At points where it could have mattered, the Corps did not identify MRGO’s ability to aggravate the effect of a major hurricane,” the Court ruled. “This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.” 

O’Donnell said it is time for the government to do what is right and begin settlement discussions.

“We are eager to sit down and forge a global settlement for all Katrina victims," O’Donnell said. “It’s the right thing to do. Any settlement must assure expeditious restoration of the hurricane surge buffering wetlands around New Orleans and St. Bernard Parish, an equitable compensation program for victims, and funding for critical infrastructure destroyed by the Army Corps' gross mismanagement of flood protection."

O’Donnell said there’s no better time to resolve the issue than in a presidential year. “This is a victory not just for several hundred thousand Katrina victims, but for all Americans,’’ he said. “A democracy is only as strong as the ability of its citizens to hold their government accountable for its wrongful acts."

The original litigation focused on the key role of the Mississippi River-Gulf Outlet, known as the “MRGO,” in channeling a prodigious and terrifying storm surge that helped overwhelmed the levee system.  Constructed in the 1960s and now defunct, the MRGO was a 76-mile shipping channel that connected the Gulf of Mexico to the Port of New Orleans.

“For more than 50 years, government officials at all levels and environmentalists warned that the MRGO one day would turn into a “Hurricane Highway,” Andry said.  “That prophecy became tragically true when Katrina struck the Gulf Coast and furiously funneled its floodwaters into the heart of Greater New Orleans.”

In its wake, Katrina took 1,300 lives, destroyed 300,000 homes, forced 1 million residents to evacuate, and inflicted more than $100 billion in property damages. Nearly 150,000 homes remain unoccupied more than 6 years after Katrina. 

The Robinson case against the Army Corps was notable for many reasons, including its size and potential damages against the government. The Department of the Army, in a public disclosure two years ago, estimated the government’s potential losses on Katrina-related lawsuits and legal claims at a minimum of $10 billion and as high as $100 billion.

At the end of the day, Judge Duval agreed with us that Katrina was not a natural disaster.  Rather, it was a man-made disaster caused by the Army Corps of Engineers.

While the Government will likely appeal, we are calling upon the Obama administration and Congress to agree to a universal settlement.

Below is a link to the final Trial Order

http://katrinajustice.com/

Below are links to various new coverage of this historic Order:

http://www.nola.com/hurricane/index.ssf/2009/11/post_16.html

http://www.latimes.com/news/nation-and-world/la-na-katrina-flooding19-2009nov19,0,3370102.story

http://www.nytimes.com/2009/11/19/us/19orleans.html?scp=2&sq=katrina&st=cse

“America Betrayed” is a fine example of the documentary as an essential work of social justice by recording why the levees broke after Hurricane Katrina in 2005. It follows in the filmprints of other fine flood films, such as “Trouble the Water” or Spike Lee’s “When the Levees Broke: A Requiem in Four Acts,” but those documentaries do not show the presence of the church -- this, despite the work of volunteers mainly from faith communities. However, in “America Betrayed,” the Episcopal Church is represented by the Rt. Rev. Joe Morris Doss, a Louisiana native and a lawyer, who since 10 days after the hurricane hit in 2005 has been one of many working on a mission to make the U.S. government take responsibility for what happened.

Filmmaker Leslie Cardé interviewed lawyers, environmentalists, geologists, whistle-blowers, politicians (U.S. Sen. Mary Landieu and then-U.S. Sen. Barack Obama), historians like John Barry (The Rising Tide), and former employees of the U.S. Army Corps of Engineers. Like my geology professor in 1964, no one has anything good to say about the Army Corps of Engineers (represented in newsreels of press conferences because it refused her requests for interviews).

Cardé’s angle is prosecutorial: she approaches the issue of government responsibility (or ir- ) as a lawyer would a jury. “America Betrayed” is the film to see in order to follow the ground-breaking civil suit, which began in federal court on April 20, 2009. The case considers claims by property owners against the Army Corps of Engineers that the Corps made the disaster worse by building the Mississippi River Gulf Outlet, a 76-mile-long navigation channel that shoots straight to the Gulf from New Orleans.

“America Betrayed,” unlike its sister films, warns the rest of the country riddled with decaying and uninspected infrastructures (bridges and levees): Cities like San Francisco and my own St. Louis are next. Near the end of the film, Doss, as part of the legal, faith and political communities, which have banded on the Gulf Coast since the levees broke, encourages a “Camp David-like summit” to deal with the issue of accountability “because it involves everyone.”

“America Betrayed” hits hard and solidly. It’s essential viewing for background, for history, for moral purposes. It offers perspectives for justice now and caution for the future.

Reviewed by Martha K. Baker, a film reviewer in St. Louis for 30 years.