St. Bernard Parish Government, et al. v. United States of America,  Memorandum andOrder, Judge Susan Braden, U.S. Court of Federal Claims, May 6, 2015

The fifth Circuit found the U.S. immune from tort liability for the government's neglect of the MRGO (Mississippi River Gulf Outlet), which caused devastating flooding of the lower Ninth Ward in New Orleans. Judge Braden has found a way around that bar: the Army Corps of engineers engaged in a temporary taking of private property without compensation:

There is no question that flooding on Plaintiffs’ properties during Hurricane Katrina was severe. In addition, Plaintiffs established that their properties were flooded and that they had no ability to access or use their properties for a significant time period following Hurricanes Katrina and Rita. See, e.g., Pls. 4/13/12 Prop. FOF ¶¶ 26–43, 55–64, 76–80, 89; Gov’t 5/18/12 Resp. To Pls. 4/13/12 Prop. FOF ¶ 89 (acknowledging that the Bordelons were not allowed access to their property for more than four weeks after the flooding); 12/12/11 TR 171, 177 (Tommaseo) (testifying that he could not visit his properties on Fenelon for one month after Hurricane Katrina, and did not return to live in his St. Bernard Parish residence for eighteen months after Hurricane Katrina); 10/15/10 Adams Dep. 18–19 (describing how the Adams family were not allowed back to their property for months after Hurricane Katrina). In addition, the same evidence shows that many of Plaintiffs’ properties experienced flooding during subsequent hurricanes and severe storms. 12/13/11 TR 631–35 (Robin) (describing flooding after Hurricane Katrina from Hurricanes Gustav, Ike and Tropical Storm Lee and severe storms). For these reasons, the court has determined that Plaintiffs established that flooding during Hurricane Katrina and subsequent hurricanes and severe storms “preempted” access and use of their properties and that preemption was “substantial” and “severe.” III. CONCLUSION. In Arkansas Game & Fish, the United States Supreme Court held that “[f]looding cases, like other takings cases, should be assessed with reference to the ‘particular circumstances of each case,’ and not by resorting to blanket exclusionary rules.” 133 S. Ct. at 521; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 427 (1982) (“[N]o ‘set formula’ exists to determine, in all cases, whether compensation is constitutionally due for a [G]overnment restriction on property. Ordinarily, the Court must engage in ‘essentially ad hoc, factual inquiries.’” (quoting Penn Central, 438 U.S. at 124); Ridge Line, 346 F.3d at 1352 (“A determination of whether a taking . . . has occurred is a question of law based on factual underpinnings.”) (emphasis added). Weighing all the evidence in this case, the court has determined that Plaintiffs established that the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO caused subsequent storm surge that was exacerbated by a “funnel effect” during Hurricane Katrina and subsequent hurricanes and severe storms, causing flooding on Plaintiffs’ properties that effected a temporary taking under the Fifth Amendment to the United States Constitution.

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