Introduction to Katrina Litigation

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Introduction to Katrina Litigation
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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?

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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?

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The Levee Cases
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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 "no 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?

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How do you get into Court in 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?

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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?

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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?
• Was the government liable?
• What did the government then do?
• Why does this ultimately drive the
  characterization of the levees in the Katrina
  cases?

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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?
• 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.

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Central Green Co. v. United States, 531 U.S. 425
(2001)

• California Water Project - irrigation
• Some parts are related to flood control
• Damage is related to irrigation function
• Government says immunity if any is flood control
• United States Supreme Court
• 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.

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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)

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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?