Katrina debacle: Did Army Corps of Engineers’ failures amount to an illegal taking of property by feds?

Katrina debacle: Did Army Corps of Engineers’ failures amount to an illegal taking of property by feds?
Taken? New Orleans after Katrina, 2005. (Image: AP via CBS 5 New Orleans)

[Ed. – Not an uninteresting question.  There could actually be huge ramifications from the outcome of this down the road, from the standpoint of the impact on property owners from all federal agency land/environmental management.]

“We’re not ducking our accountability and responsibility in this,” Lt. Gen. Carl A. Strock, who was chief engineer of the corps, said in a 2006 interview, upon the release of a 6,000-page federal report that found that the flood-control complex surrounding New Orleans had been “a system in name only.” …

Admissions like these had generally not been seen as legally risky. Lawsuits brought by residents after the hurricane repeatedly ran up against federal statutes that guarantee immunity to the federal government for flood-control work.

But since 2005, a separate legal theory has been quietly tested in the courts. This theory states that the flooding of thousands of homes by levee breaches in St. Bernard Parish and the Lower Ninth Ward of New Orleans — flooding that was distinct from the canal breaches discussed in the journal — constitutes an illegal taking of property by the government. The property owners are thus owed compensation, just as if their land had been seized for any public use.

On May 1, Judge Susan G. Braden of the United States Court of Federal Claims in Washington agreed with this theory, basing her decision to a large degree on the corps’s own findings. Though federal officials have not commented on a potential appeal, the judge recently gave the government until Aug. 10 to decide whether to appeal, enter mediation or wait for a judgment.

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