A federal judge in Louisiana threw out a class action lawsuit yesterday against the U.S. Army Corps of Engineers for failure to properly construct and maintain the New Orleans levee system that broke and flooded homes there during Hurricane Katrina.

But while the decision by U.S. District Court Judge Stanwood R. Duval Jr. in New Orleans dismissed the action against the Corps, it blasted the agency for negligence.

Judge Duval found that the Corps is exempt from suit under the Flood Control Act of 1928, which makes the federal government exempt from suit for levee breaks.

The suit by various homeowners stems from the 17th Street Canal levee break that occurred in the aftermath of the 2005 hurricane. The break was responsible for 80 percent of the city's flooding.

According to the suit, the Corps granted dredging permits for the 17th Street Canal, which lead to the weakening of the retaining wall. The Corps, it was alleged, also failed to meet its own engineering requirements to build the levee walls to a height that would protect the city from flooding from Lake Pontchartrain. Both failures, the suit contends, lead to the catastrophic flooding.

While ruling in favor of the government, Judge Duval was highly critical of the immunity and the failure of the Corps to properly construct and maintain the levee system.

"Here, the court must apply this broad immunity based upon the facts of this case," Judge Duval said. "Often, when the king can do no wrong, his subjects suffer the consequences. Such is the case here."

He said the Corps had "cast a blind eye, either as a result of executive directives or bureaucratic parsimony, to flooding caused by drainage needs and until otherwise directed by Congress, solely focused on flooding caused by storm surge," he said. "Such egregious myopia is a caricature of bureaucratic inefficiency."

Judge Duval was the same judge who in 2006 stunned insurers with his ruling that their flood policy exclusion language was vague and did "not exclude water damage caused by negligent or intentional acts of man."

The ruling was reversed almost a year later on appeal.

In response to the ruling, Joseph M. Bruno, one of the lead attorneys who filed the class action suit on behalf of thousands of residents, said in a statement that he intends to appeal the decision to the 5th Circuit Court of Appeals, which reversed Judge Duval's decision on policy language.

Mr. Bruno said while the Corps is exempt, the Orleans Parish Levee Board and the New Orleans Sewerage and Water Board still remain defendants.

Special Reports /

U.S. Court Tosses A New Orleans Levee Break Suit

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