Federal contractors cannot be held liable for flood damage in New Orleans linked to the dredging of the Mississippi River-Gulf Outlet shipping canal prior to Hurricane Katrina, a federal appeals court has ruled.
The three-judge panel of the 5th U.S. Circuit Court of Appeals upheld a lower court ruling that found dredging contractors qualify for government-contractor immunity. Such immunity is granted when the government authorizes companies to conduct specific work.
"They had a contract with the government, and the only way that a plaintiff can get around that is to argue that the contractor exceeded their authority or the authority wasn't validly conferred," said Stephanie Showalter, director of the Mississippi-based Sea Grant Law Center. "Here, the plaintiffs didn't allege either one of those."
The case stemmed from two class-action lawsuits that claimed the dredging of the MRGO shipping channel by the U.S. government and 32 contractors damaged natural storm buffers and aggravated the storm surge that overwhelmed parts of New Orleans after the 2005 hurricane.
The U.S. District Court for the Eastern District of Louisiana in 2007 dismissed the case against the government on a procedural error, a decision that was not contested in the appeals court.
Showalter said the appeals court ruling refocuses the liability for the dredging back on the federal government.
"The court said the private contractors who carried out the Army Corps of Engineers' wishes shouldn't be held liable," Showalter said. "It kind of sends it back to the Army Corps of Engineers. It says, 'It was your decision, it was your funding, it's your responsibility.'"
In a separate case, a federal judge ruled earlier this month that the Army Corps bears responsibility for the flooding because the agency failed to properly maintain the MRGO (Greenwire, Nov. 19).
The federal government is expected to appeal that ruling to the 5th U.S. Circuit Court of Appeals.
Click here to read the federal appeals court ruling.