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Katrina flooding lawsuit could affect cases involving Mississippi River flooding

UNDER WATER: The Old Depot Museum in Vicksburg sits under floodwaters in 2011 from the nearby Mississippi River. Photo by Steve Wilson

The ability of property owners to sue the U.S. government for damages from flooding could be at stake if a decade-old lawsuit over flooding from Hurricane Katrina isn't taken up by the U.S. Supreme Court.

The case could have serious ramifications for lawsuits involving the U.S. Army Corps of Engineers and Mississippi River flooding since the government could avoid liability to property owners for its inaction on flood prevention if the Katrina lawsuit decision is allowed to stand.

A decision could also affect litigation over the 2017 release of water from a Corps-managed dam in the wake of Hurricane Harvey in Texas.

Plaintiffs in St. Bernard Parish v. United States have asked for the Supreme Court to take up the case, which concerned flooding from the storm surge of Hurricane Katrina into the Mississippi River Gulf Outlet (MRGO), which connects the Gulf of Mexico and the inner harbor of the New Orleans.

When Katrina made landfall on the Mississippi and Louisiana Gulf Coast in August 2005, it pushed a 25-foot storm surge into New Orleans and St. Bernard Parish that caused widespread flooding. Property owners filed a takings lawsuit.

The plaintiffs alleged that the construction of the canal, built by the U.S. Army Corps of Engineers in the 1950s as a shortcut between New Orleans and the Gulf of Mexico, resulted in the destruction of wetlands that acted as a shield against surge flooding and the canal itself acted as a conveyor of flood waters into the heart of the vulnerable areas of New Orleans. The canal was closed to traffic in 2009.

At stake is the liability of the government under the Fifth Amendment's takings clause, which says that the government can't take private property without compensation. After the plaintiffs in the St. Bernard case won in U.S. Court of Claims, the U.S. Court of Appeals for the Federal Circuit overturned the liability claims against the Corps of Engineers and now the only chance for it is the Supreme Court.

Judge Timothy Dyk's decision in the St. Bernard case could be a landmark for takings litigation if it's allowed to stand by the Supreme Court. Dyk's decision argues that the government isn't at fault because of its inaction by not providing protective measures such as wetlands restoration or maintenance to MRGO after it constructed the shipping channel in 1956. Dyk said in the decision that only the government's affirmative action would make it subject to a takings litigation.

Two libertarian policy groups, the Reason Foundation and the Cato Institute, the National Federation of Independent Business Small Business Legal Center and other interested parties have filed an amicus (friend of the court) brief urging the Supreme Court to take up the St. Bernard case because of the implications for the Fifth Amendment.

They argue that a 2012 Supreme Court decision in the Arkansas Fish and Wildlife Commission v. United States sets a precedent that the government can be held liable in takings litigation for one-time, temporary flooding events, subject to framework provided by the Arkansas decision and that the appeals court's decision in the St. Bernard case was not consistent with that precedent.

Another case involving flooding on the Missouri River, Ideker Farms v. United States, is now on hold pending whether the Supreme Court takes up the St. Bernard case. The Court of Claims found the government at fault in the case, which was filed in 2014.

Any decision will also affect the Jackson-Greely Farms v. United States case, which was filed by landowners on the middle Mississippi River in August. The plaintiffs in that case are arguing that the U.S. Army Corps of Engineers, through its building of channel maintenance features such as dikes and weirs, have increased the number and severity of floods on the river.

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