In Re: Katrina Canal Breaches
696 F.3d 436
| 5th Cir. | 2012Background
- MRGO was a Mississippi River Gulf Outlet dredged by the Army Corps between 1956 and 1968 to shorten navigation between New Orleans and the Gulf; its banks were not armored and erosion undermined nearby wetlands.
- The Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV) built levees and walls around New Orleans; MRGO’s operation affected Reach 2 along the south shore, with foreshore protection later implemented on that shore.
- By 2005, MRGO’s widening and lack of timely foreshore protection contributed to greater wave attack and a higher storm surge when Katrina struck, breaching Reach 2 levees and flooding St. Bernard polder and other areas.
- Bellwether plaintiffs sued the United States under the FCA and FTCA; one group (Robinson) went to trial, another (Anderson) was dismissed on immunity grounds, and a third (Armstrong) proceeded later; the government sought mandamus to stay the Armstrong trial.
- The district court ruled on FCA immunity and the discretionary-function exception (DFE), and the court’s analysis is reviewed de novo for immunity and with clear-error for factual findings; the Fifth Circuit reverses and remands on certain immunity determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of FCA immunity under 702c | Robinson/Franz claim MRGO flooding was connected to flood control. | Government argues MRGO was linked to flood-control activity, triggering 702c. | Immunity does not apply to MRGO; MRGO floods were not released by flood-control activity. |
| DFE applicability to MRGO delay | Delay in armoring MRGO involved public-policy considerations. | Delay was policy-driven; protected by DFE. | DFE immunizes the government for delay in armor because decisions were susceptible to policy analysis. |
| DFE applicability to dredge permitting (Anderson) | Permitting decisions were purely scientific and non-discretionary. | Permitting involves balancing public interests and policy choices. | DFE applies; Anderson dredging decision shielded by DFE. |
| NEPA in context of DFE | NEPA violations undermine government action and negate discretion. | NEPA is procedural and does not defeat discretion; DFE controls. | NEPA is procedural; DFE immunities prevail over negligence claims. |
Key Cases Cited
- Central Green Co. v. United States, 531 U.S. 425 (2001) (narrowed 702c to the waters with immune character, not merely presence in a flood-control project)
- James v. United States, 478 U.S. 597 (1986) (flood waters within flood-control projects vs. waters released for other purposes)
- Graci v. United States, 456 F.2d 20 (5th Cir. 1971) (immunity limited to flood-control activities; not all related actions)
- Henderson v. United States, 965 F.2d 1488 (8th Cir. 1992) (waters not immune when activity unrelated to flood control)