About this time last year, the Court of Federal Claims held that the federal government was liable for a temporary taking to certain property owners for the flooding caused by Hurricane Katrina and the Corps of Engineers' failure to maintain the "MR-GO" (Mississippi River-Gulf Outlet) canal system. See also a guest post by our colleague Ed Thomas, "Katrina Flood Decision Emphasizes Science."
The CFC has now followed up on that ruling with an order (St. Bernard Parish Gov't v. United States, No. 05-1119L (May 4, 2016)) determining just compensation, thus teeing the case up for the federal government's appeal to the Federal Circuit.
The opinion is a long one (44 single-spaced pages, including footnotes) and has a lot of detail and technical stuff for you smart readers, but it also has pictures and charts for the rest of us.
The opinion also contains this notable postscript:
Finally, it is important for the public, property owners that are representative Plaintiffs in this case, and members of the certified class action ordered herein to understand why, since this case was filed in 2005, that it has taken over a decade to reach this juncture.First, the United States Supreme Court requires federal courts not to adjudicate constitutional questions, if a case can be resolved by a statute or other grounds. Since over 400 other lawsuits first were filed in the United States District Court in the Eastern District of Louisiana alleging that the Government was liable under the Federal Tort Claims Act and Louisiana state law, those cases had to be finally resolved. While the federal court proceedings in Louisiana were underway, however, this court adjudicated motions to dismiss filed by the Government in 2007 and 2008 and convened a trial on liability in New Orleans in December 2011, so as not to delay these proceedings, if the trial decision in Robinson was not affirmed—but, that occurred on March 12, 2012.Second, on December 4, 2012, an unanimous United States Supreme Court, issued a landmark opinion in Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511, 522 (2012), holding “that governmental-induced flooding temporary in duration gains no automatic exemption from Takings Clause [of the Fifth Amendment to the United States Constitution].”). The significance of that opinion on this case cannot be overstated and initiated a new round of briefs. In November 2013, the court held an evidentiary hearing on Just Compensation in Washington, D.C. Again, months of briefs, substantive filings from the parties, and hearings followed.Third, on May 1, 2015, the court issued a Memorandum Opinion And Order determining that the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO caused increased storm surge flooding on private property during Hurricane Katrina and subsequent severe storms, effecting a temporary taking under the Fifth Amendment to the United States Constitution. The court’s subsequent request that the Government mediate the amount of Just Compensation due was rejected. In the months that followed, once again the court received numerous briefs and substantive filings from the parties and held post trial arguments on December 21, 2015, January 8, 2016, and April 19, 2016 on Just Compensation.Today, the court has entered a Partial Final Judgment on Just Compensation due only owners of certain “test” Trial Properties, so the United States Court of Appeals for the Federal Circuit may review the court’s decisions in this case. That review likely will take at least another year. While the appellate process is underway, the court will be issuing a series of Orders to the St. Bernard Parish Government and the City of New Orleans (Lower Ninth Ward) in the near future to obtain public information necessary to finalize the amount of Just Compensation due, so that the court will be in a position to proceed promptly to issue a final money judgment as to all class members, if the appellate court affirms this court’s decisions.
Slip op. at 43-44.
St. Bernard Parish Gov't v. United States, No. 05-1119L (Fed. Cl. May 4, 2016)
