Introduction to Katrina Litigation

Flood Control Act of 1928 What happened in 1927? What are the immunity provisions and what do they apply to? Why did Congress provide this immunity?

Graci v. United States, 456 F.2d 20 (5th Cir. 1971) Where was the flood? What caused it? Which Corp project is being attacked? What was the purpose of this project? Why is it inherently risky? St Bernard and Plaquamines - Betsy Mississippi River -- Gulf Outlet, a navigation project that provided a short-cut from the Gulf of Mexico to New Orleans.

Court's Analysis Did the Flood Control Act of 1928 apply in this case? What standard would you then apply in determining the government's liability? What is the government's main defense?

Florida East Coast Railway Co. v. United States, 519 F Florida East Coast Railway Co. v. United States, 519 F.2d 1184 (5th Cir. 1975) What was the purpose of the project? Was the flooding due to levee failure? How did plaintiffs argue that the Corps should be liable, even it if was a flood control project? District court What was the ruling as to the Corp? What was the role of the levee district? Did it share in the federal immunity? No, it overloaded the ancillary drainage

Appeals Court The federal courts, however, have reached a consensus that the United States is protected from liability for damages caused by "floods or flood waters" in connection with flood control projects, even when the government's own negligence has caused or aggravated the losses. This will be come a key issue in Katrina cases

Central Green Co. v. United States, 531 U.S. 425 (2001) California Water Project Some parts are related to flood control Most is irrigation Damage is related to irrigation function Government says immunity if any is flood control

Sorting out a Dual Purpose Even if the project 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? How far does immunity go? Suppose the Corps drops a load of dirt on your house while building the levee? (If the Corps actually built anything anymore)

Levee Issues in Katrina What are the negligence claims against the Corp? Against the levee district? What are the Corp's immunity claims? Are any of the damages not covered by the Flood Control Act? What are the purposes of the canals? What are the Corp's discretionary authority defenses?

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?

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?