1. Flood Law

2. 2 LA Law: Saden v. Kirby, 660 So.2d 423 (La. 1995) New Orleans Sewerage and Water 2 big pumps, one little one underground power line for big pumps generator to run one big pump power line for big pumps went down was still down when flood occurred 3 months later - finally fixed 6 months after the fault Was this negligence or discretion?

3. 3 Pumps in Katrina Why are there pumps in New Orleans? Why did they shut down the pumps during Katrina? What is the city's Berkovitz's defense for shutting down the pumps? What facts raise the specter of Saden? Why are plaintiffs avoiding suing the parishes and the levee control boards?

4. 4 How do you get into Court in Federal Flood Act Cases? Is there jurisdiction in the Flood Control Act? Are these Bivens cases? FTCA What do you need to do before you go to court? What do you need to show about the feds decisionmaking?

5. 5 Flood Control Act of 1928 What happened in 1927? What are the immunity provisions? Flood Control Act of 1928, 33 U. S. C. §702c -- which states 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 at any place" Why did Congress provide this immunity? Does it say this is limited to flood control projects?

6. 6 Hurricane Betsy US Hurricanes - (Betsy does not even count) http://www.nhc.noaa.gov/HAW2/english/history.shtml http://www.nhc.noaa.gov/HAW2/english/history.shtml Track - http://www.hpc.ncep.noaa.gov/tropical/rain/betsy1965.ht ml http://www.hpc.ncep.noaa.gov/tropical/rain/betsy1965.ht ml Video - http://www.youtube.com/watch?v=TaA1k5VA-lIhttp://www.youtube.com/watch?v=TaA1k5VA-lI LBJ - http://whitehousetapes.net/exhibit/lbj-and- response-hurricane-betsyhttp://whitehousetapes.net/exhibit/lbj-and- response-hurricane-betsy

7. 7 MRGO Where is the MRGO? Why was it built? http://www.mrgo.gov/MRGO_History.aspx What ports are in competition with NO? Why is it easier to get to them? What is the advantage of Mississippi river ports? Who do you think wanted it built? Was it every used much?

8. 8 Graci v. United States, 456 F.2d 20 (5th Cir. 1971) What caused the flood? How do we know the FTCA did not supersede the Flood Control Act of 1928? Since the FTCA controls, where do you look for the legal theory to determine the government's liability?

9. 9 Plaintiff's Liability Theories What is plaintiff's res ipsa loquitur theory of the flood? The alternative theory: "...the plaintiffs alleged that the Government's negligence consisted of constructing the outlet "without taking appropriate steps to impede and lead off rising hurricane waters before they reached the residential areas of the surrounding country, and without taking the appropriate steps to build retaining levees to protect the residential areas of the surrounding country from flooding due to hurricane driven waters."

10. 10 Does the Flood Control Act Apply? Was this a flood? Is that enough to trigger the FCA What else is the court looking for? What is the purpose of the MRGO? Was it built under the authority of the FCA? Does FCA immunity apply when there is no flood control purpose?

11. 11 Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977) The 5th circuit remanded so the plaintiff could make their tort claims act case. What does plaintiff have to show? What is the government's defense? Who did the district court say directed the building of MRGO? Did the Corps did follow this plan? Was there any negligence in following the plan? Think about this in the Katrina cases - how does the judge try to avoid this ending?

12. 12 Post-Graci While the court found that there was no liability because the MRGO was properly built, it was generally believed that it caused the flooding. What did the feds build to prevent flooding the next time? Were these levees flood control projects? If they are breached by a flood, would FCA immunity apply? Does a levee become a legal barrier for liability? Can there be liability if flood water breaches a levee?

13. 13 Central Green Co. v. United States, 531 U.S. 425 (2001) California Water Project - irrigation Take water from one area and spread it around the state Land is damaged by seepage from the canal Is this covered by the flood control act immunity? The feds say that any flood control purpose puts the every water related damage under flood control act immunity

14. 14 Is there a Flood Control Purpose at All? What happens when the snow melts too fast or there is a big rain in this system? Does the irrigation system also handle flood water? Does this make it entirely a flood control project, so that any damage is immunized?

15. 15 The Holding in Central Green The text of the statute does not include the words "flood control project." Rather, it states that immunity attaches to "any damage from or by floods or flood waters...." Accordingly, the text of the statute directs us to determine the scope of the immunity conferred, not by the character of the federal project or the purposes it serves, but by the character of the waters that cause the relevant damage and the purposes behind their release.

16. 16 Sorting out a Dual Purpose If water project like an irrigation system also has a flood control purpose, the Act does not grant immunity if the damage was not related to a flood. Would this mean, however, that even a dual purpose project would be immune it was a flood? However, if the only purpose of the project is flood control, such as a levee, are all damages covered by the flood control act immunity? How do you analyze this? Why does it not matter whether it is flood water?

17. 17 Between Betsy and Katrina 40 years Corps initial plans are rejected in favor of ring levees Critically, canals are left open Lots of issues in construction Huge problem of lack of maintenance A lot of subsidence between 1965 and 2005 Katrina - not just levees breaking A lot of overtopping - there would have been a lot of flooding without a levee break