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Water Log 29.1, May, 2009

As MRGO Nears Closure, Takings Suit Proceeds

Jonathan Proctor, 2010 J.D. Candidate, University of Mississippi School of Law

After a June 5, 2008 Congressional de-authorization, the United States Army Corps of Engineers has begun depositing over 433,000 tons of stone near Bayou La Loutre in an effort to block the Mississippi River-Gulf Outlet and allow natural wetlands to return to the area.1 Meanwhile, a takings suit on behalf of a large class of private property owners proceeds on the theory that the outlet caused portions of their lands to become submerged.

Background
The Mississippi River-Gulf Coast Outlet (“MRGO”) is a seventy-six mile long,2 man-made shipping channel lying between Lake Borgne and marshland, constructed by the United States Army Corps of Engineers (“Army Corps”) in 1968.3 By dredging shallow bays, coastal marshes, and cypress swamps, the Army Corps created this shipping thoroughfare.4 Though the project was intended to shorten the travel time between the Port of New Orleans and the Gulf of Mexico, many blamed the channel for contributing to the flooding of St. Bernard Parish, Louisiana, in the aftermath of Hurricane Katrina.5 Without the MRGO, some allege that the hurricane would have traveled over the wetlands dredged in constructing the MRGO en route to New Orleans, possibly weakening its overall strength and lessening the sheer volume of water that led to devastating floods.

Even prior to Hurricane Katrina, the channel was the subject of criticism from environmental groups, who  contended that it destroyed thousands of acres of wetlands and marshes that served as a vital shore protection buffer during hurricanes and other coastal storms.6 The environmentalists asserted that, in addition to their functioning as protection features for lands upriver from the full force of hurricanes, the wetlands of Louisiana also support a unique and diverse ecosystem. They contended that the MRGO gradually eroded the wetlands’ shores, disturbing the natural landscape and decimating many species’ habitats. With the MRGO’s closing, these groups suggest that the surrounding areas may be able to support the return of marshes and wetlands.

Due in part to the MRGO’s potential negative effects during hurricanes, the Corps hopes to complete the outlet closing in time for the 2009 tropical storm season.7 Though the completed dam may offer some protection from storm surges immediately, shelter from major hurricanes may not be feasible until wetlands are re-established in the area.8

Not all in the region favor closing the MRGO. Local fishermen worry that the longer routes required to reach fishing grounds and additional boat traffic in narrow bayous ultimately will increase their costs and accident rates.9 Previously reliant on MRGO for fast and easy access to the Gulf of Mexico, the fishermen are currently seeking adjustments to the Corps’ plans, though with construction underway, they may be too late.10

MRGO Litigation
Some residents affected by theMRGO’s alleged contributions to the flooding of their homes, including television news anchor Norman Robinson, filed suit in the U.S. District Court for the Eastern District of Louisiana, claiming that the Corps is responsible for the failure of the 17th Avenue and London Avenue Canal Levees and acted negligently in constructing and maintaining the MRGO.11 The court dismissed the class action suit against the Army Corps that alleged failure of drainage canal levees, in light of the government’s immunity from liability for damage caused by its flood-protection projects.12 However, the same court commenced trial on April 20, 2009 for those claims asserting that the Corps ignored environmental and other laws in maintaining the MRGO, a federal navigation, not a flood control, project.

In the only other remaining federal lawsuit against the Army Corps on behalf of Katrina flood victims, the St. Bernard Parish government and residents of St. Bernard Parish and the Lower 9th Ward of the City of New Orleans alleged that the construction and maintenance of the MRGO directly led to the destruction of their homes during Hurricane Katrina. On October 17, 2005 they filed suit seeking compensation under a constitutional takings theory.13

Originally, Plaintiffs argued that, without the MRGO, their properties would not have been subjected to the destruction and devastation of Hurricane Katrina.14 However, at least according to the federal government, the complaint now seeks to recover damages based only on the alleged exposure of their properties to an increased risk of flooding that is alleged to be attributable to the creation, operation, dredging and maintenance of the MRGO.15 The United States contends that the potential increases in flood exposure are caused not by the MRGO, but by subsidence and sea level rise.

Plaintiffs contend that the dismissal of the class action lawsuit in the Robinson case will have no bearing on these claims. After multiple amendments to the complaint over the past three years, the matter is proceeding in the United States Court of Federal Claims in Washington, DC, a specialized court that hears claims against the United States government based on the “Constitution, federal statutes, executive regulations, or contracts, express or implied-in-fact.”16 A hearing on the United States’ motion for dismissal is scheduled for May 6, 2009 in New Orleans. In its motion, the United States alleges that the claims are time-barred by the applicable statute of limitations and that plaintiffs seek damages only for future flooding, which are speculative. Stay tuned to future editions of Water Log for updates on the status of this lawsuit.l
 
Endnotes:
1.   US Army Corps of Engineers, MRGO Closure Structure Progress as of 11 April 2009, http://mrgo.usace.army.mil/MRGO/Progress/MRGO%20Progress%204-11-09.pdf (last visited April 13, 2009).
2.   Tommaseo, et al. v. United States, 80 Fed. Cl 366, 367 (Fed. Cl. 2008).
3.   Id. at 368.
4.   Id.
5.   Bob Warren, Goodbye MR-GO: Work begins to close shortcut to Gulf of Mexico, The Times-Picayune, Jan. 31, 2009, available a
http://www.nola.com/news/t-p/frontpage/index.ssf?/base/news12/123338321850000.xml.&coll=1.
6.   Id.
7.   Mark Schleifstein, Plans for Closing MR-GO Advance, The Times-Picayune, Feb. 11, 2008, http://www.nola.com/news/index.ssf/2008/02/plans_for_closing_mrgo_advance.html (last visited April 13, 2009).
8.   Maya Rodriguez, Emotions Run High as St. Bernard Residents Mark Close of MR-GO, WWLTV, March 28, 2009, http://www.wwltv. com/topstories/stories/wwl032809mlmrgo.7e683cd7.html (last visited on April 13, 2009).
9.   Rob Masson, MRGO Closing Affects Fishing Industry, FOX 8 WVUE New Orleans, April 10, 2009, http://www.fox8live.com/news/local/story/MRGO-closing-affects-fishing-industry/v1lSlQV7XEGoYRp-oB9BSg.cspx (last visited April 12, 2009).
10. Id.
11. Robinson v. United States, Civil Action No. 06-2268, United States District Court, Eastern District of Louisiana.
12. See Susan Finch, St. Bernard wetlands changed dramatically after MRGO was built, geologist testifies, The Times-Picayune, April 20, 2009, available at
http://www.nola.com/news/index.ssf/ 2009/04/st_bernard_wetlands_changed_dr.html.
13. Tommaseo, 80 Fed. Cl. 366.
14. Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law in support thereof, filed Nov. 7, 2008 (on file with Editor).
15. Tommaseo, et al., 80 Fed. Cl. at 367.
16. U.S. Court of Federal Claims, About the Court, http://www.uscfc.uscourts.gov/about-court (last visited April 19, 2009).

Recommended citation: Jonathan Proctor, As MRGO Nears Closure, Takings Suit Proceeds, 29:1 Water Log 10 (2009).

University of Mississippi