St. Bernard Parish Government v. United States

In the United States Court of Federal Claims

No. 05-1119 L

May 1, 2015

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ST. BERNARD PARISH GOVERNMENT *

AND OTHER OWNERS OF REAL *

PROPERTY IN ST. BERNARD PARISH *

OR THE LOWER NINTH WARD OF THE *

1

CITY OF NEW ORLEANS, * Temporary Takings Claim;

* U.S. CONST. amend. V.

Plaintiffs, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

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Charles J. Cooper, Cooper & Kirk, PLLC, Washington, D.C., Counsel for the Plaintiff.

William James Shapiro, Environmental and Natural Resources Division, United States

Department of Justice, Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND ORDER ON LIABILITY

REGARDING A TEMPORARY TAKING BY FLOODING

BRADEN, Judge.

On October 17, 2005, St. Bernard Parish, a governmental entity of the State of Louisiana,

and owner of real property, together with private owners of real property, located either in St.

Bernard Parish or the Lower Ninth Ward of the City of New Orleans, filed a Complaint in the

United States Court of Federal Claims under the Takings Clause of the Fifth Amendment to the

United States Constitution, alleging that the United States Army Corps of Engineers (“Army

Corps”) constructed, expanded, operated, and failed to maintain a seventy-six-mile-long

navigational channel, known as the Mississippi River-Gulf Outlet (“MR-GO”),2 that significantly

increased storm surge and caused flooding on their properties from August 29, 2005 into early

1

This case was filed on October 17, 2005, under the caption Tommaseo v. United States,

No. 05-1119L. On March 19, 2009, this case was re-captioned, with the consent of the parties.

2

The acronym “MR-GO” is used herein, and is interchangeable with the term “MRGO.”

September during Hurricane Katrina, as well as “inevitably recurring” flooding thereafter during

Hurricane Rita (September 24, 2005); Hurricane Gustav (September 1, 2008); and Hurricane Ike

(September 13, 2008). As a result of the likelihood that storm surge would cause flooding in

subsequent hurricanes and severe storms, on June 5, 2008, the Army Corps decided to

“deauthorize” the MR-GO. Final closure took place by July 2009.

In the aftermath of Hurricane Katrina, over 400 lawsuits were filed in the United States

District Court by other plaintiffs, alleging that the Army Corps’ construction and operation of the

MR-GO violated the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq., and Louisiana negligence

laws. These cases were consolidated before the Honorable Judge Stanwood R. Duval, Jr. (“the

District Court”).3 On November 18, 2009, after a nineteen day bench trial, the District Court issued

Findings Of Fact And Conclusions Of Law determining that the Army Corps’ negligent failure to

maintain and properly operate the MR-GO was a substantial cause of the fatal breaching of the

Reach 2 levee and the catastrophic flooding during Hurricane Katrina. See In re Katrina Canal

Breaches Consol. Litig., 647 F. Supp. 2d 644, 67998 (E.D. La. 2009) (“Robinson”). In addition,

the District Court held that those actions: (1) were not subject to the Flood Control Act immunity;

(2) did not satisfy the “due care” exception to the waiver of sovereign immunity; and (3) did not

satisfy the discretionary function exception to the Federal Tort Claims Act. Id. at 698734.

On March 2, 2012, the United States Court of Appeals for the Fifth Circuit summarized

the District Court’s “impressive rulings” of fact, as follows:

In 1943, Congress requested a report from the Chief of Engineers, Secretary of the

Army, investigating ways to make the Port of New Orleans more accessible for

maritime and military use. That request led to the authorization of MRGO in 1956.

The channel was built to its full dimensions by 1968 and afforded a shorter shipping

route between the Gulf of Mexico and New Orleans. As the district court noted,

the channel, as originally designed, “was to be 36 feet deep and 500 feet wide,

increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide.” In re Katrina

Canal Breaches Consol. Litig., 647 F. Supp. 2d 644, 717 (E.D. La. 2009). MRGO

was cut through virgin coastal wetlands at a depth that exposed strata of so-called

“fat clay,” a form of soil soft enough that it will move if made to bear a load. The

channel’s original designers considered and rejected armoring its banks with

foreshore protection, leaving them vulnerable to erosion.

During the design and construction of MRGO, the Corps also implemented the

Lake Pontchartrain and Vicinity Hurricane Protection Plan (“LPV”). Pursuant to

3

Shortly after this case was filed in the spring of 2006, the undersigned judge initiated a

conference with the District Court to avoid duplicative discovery and coordinate the adjudication

of both cases, although each case had different plaintiffs and alleged different legal causes of

action. Both judges agreed that the federal tort and state negligence claims first should proceed to

adjudication and final judgment. Thereafter, this court would convene a bench trial on the Takings

Clause claim, but would not issue an opinion until any appellate review of the District Court’s

decision was final. The parties in this case were advised of and agreed to this procedural

agreement, in the presence of the District Court and the undersigned judge.

2

that plan, the Corps constructed, inter alia, the New Orleans East Unit, levees

protecting New Orleans East; the Chalmette Area Unit, levees protecting the Ninth

Ward and St. Bernard Parish; and higher floodwalls in the outfall canals at 17th

Street, Orleans Avenue, and London Avenue.

Over the years, MRGO’s lack of armoring or foreshore protection resulted in

substantial erosion of its banks, largely from wave wash from wakes left by

channel-going vessels. MRGO eventually reached a total average width of 1970

feet, well over three times its authorized width.

Though the Corps eventually added foreshore protection in the 1980s, that delay

allowed the channel to widen considerably, destroying the banks that would have

helped to protect the nearby Reach 2 levee (in the Chalmette Area Unit) from front-

side wave attack as well as loss of height. The increased channel width added more

fetch as well, allowing for a more forceful frontal wave attack on the levee.

MRGO’s expansion thus allowed Hurricane Katrina to generate a peak storm surge

capable of breaching the Reach 2 Levee and flooding the St. Bernard polder.

Separately from MRGO, the hurricane also caused the 17th Street, Orleans Avenue,

and London Avenue levees to breach.

In re Katrina Canal Breaches Litig., 673 F.3d 381, 385–86 (5th Cir. 2012).

The United States Court of Appeals for the Fifth Circuit also affirmed the District Court’s

legal conclusions. See id. at 399 (“The district court’s careful attention to the law . . . allow us to

uphold its expansive ruling in full, excepting our minor restatement of FCA immunity.”). But, on

September 24, 2012, that federal appellate court decided to consider the Government’s petition for

rehearing, withdrew its prior opinion, and reversed the District Court’s legal ruling that the Army

Corps was not immune from claims arising from levee breaches caused by MR-GO under the

discretionary function exception to the Federal Tort Claims Act. See In re Katrina Canal Breaches

Litig., 696 F.3d 436, 441 (5th Cir. 2012). In doing so, however, the District Court’s factual

findings were not disturbed. Id. at 441–43.

Since the Federal Tort Claims Act and Louisiana negligence claims in the United States

District Court’s case are now final, the court’s disposition of the substantive merits of Plaintiffs’

Takings Clause claim alleged in this case is now ripe for adjudication.

To facilitate review of this Memorandum Opinion And Order, the court has provided the

following outline:

I.  RELEVANT FACTUAL BACKGROUND.

A.  The Geographic Topology And Environmental Conditions In The New Orleans

Area Prior To 1914.

B.  Beginning In 1914, Navigational And Flood Protection Projects Were Constructed

By The State Of Louisiana And The Army Corps Of Engineers In The New Orleans

Area.

3

1.  The Inner Harbor Navigation Canal (1914).

2.  The Gulf Intracoastal Waterway (1925).

3.  Lake Pontchartrain And The Hurricane Protection Project (1955).

C.  During 19581968, The Army Corps Of Engineers’ Constructed And Implemented

The First Expansion Of The Mississippi River Gulf Outlet.

D.  From 1998–2004, Army Corps Of Engineers’ And Other Governmental Studies

Identified That The Construction, Expansions, Operation, And Failure To Maintain

The Mississippi River Gulf Outlet Could Significantly Increase Storm Surge And

Flooding During Hurricanes Or Severe Storms, But No Remedial Action Was

Taken.

E.  Hurricane Katrina.

F.  After Hurricane Katrina, Storm Surge Continued To Cause Intermittent Flooding,

And The Army Corps Of Engineers Closed The Mississippi River Gulf Outlet In

July 2009.

II.  DISCUSSION.

A.  Jurisdiction.

B.  Standing.

C.  Admissibility And Weight Of Witness Testimony.

1.  Lay Witness Testimony.

2.  Expert Witness Testimony.

D.  Plaintiffs Established That The Army Corps Of Engineers’ Construction,

Expansions, Operation, And Failure To Maintain The Mississippi River Gulf Outlet

Effected A Temporary Taking By Increased Storm Surge And Flooding Of

Plaintiffs’ Properties During Hurricane Katrina And Subsequent Hurricanes And

Severe Storms.

1.  Plaintiffs Established That They Held Protectable Property Interests

Recognized Under Louisiana Law.

2.  Plaintiffs Established That, Based On The Character Of Their Property

Interests, They Had “Reasonable Investment-Backed Expectations.”

3.  Plaintiffs Established That It Was Foreseeable To The Army Corps Of

Engineers That The Construction, Expansions, Operation, and Failure To

Maintain The Mississippi River Gulf Outlet Would Substantially Increase

Storm Surge During Hurricanes And Other Severe Storms And Cause

Flooding.

a.  Because Of Increased Salinity.

4

b.  Because Of Increased Habitat/Wetland Loss.

c.  Because Of Increased Erosion.

d.  Because Of Increased Storm Surge.

e.  Because Of The “Funnel Effect.”

4.  Plaintiffs Established A Causal Link Between The Army Corps Of

Engineers’ Construction, Expansions, Operation, And Failure To Maintain

The Mississippi River Gulf Outlet And Significant Increase In Storm Surge

And Flooding During Hurricane Katrina And Subsequent Hurricanes And

Severe Storms That Flooded Plaintiffs’ Properties.

a.  Because Of Increased Salinity.

c.  Because Of Increased Habitat And Wetland Loss.

d.  Because Of Increased Erosion.

e.  Because Of Increased Storm Surge.

f.  Because Of The “Funnel Effect.”

g.  The Government’s Arguments Are Not Supported By The Law Or

The Record.

i.  Flooding On Plaintiffs’ Properties Did Not Occur On A

Single Occasion, But Instead Was “Inevitably Recurring.”

ii.  Hurricane Katrina Was Not An Intervening Event That

Broke The Chain Of Causation.

iii.  Neither Subsidence, Sea Level Rise, Nor Land Loss Was

The Cause Of Flooding On Plaintiffs’ Properties.

iv.  Economic Development Was Not The Cause Of

Habitat/Wetland Loss.

v.  Post-Katrina Remedial And Restoration Efforts Do Not

Negate The Army Corps’ Liability For A Temporary Taking

Of Plaintiffs’ Properties By Flooding.

vi.  Plaintiffs’ Claims Are Not Barred By The Statute Of

Limitations.

5.  Plaintiff Established That The Injury From Flooding Was Substantial And

Severe.

III.  CONCLUSION.

5

I. RELEVANT FACTUAL BACKGROUND.4

A. The Geographic Topology And Environmental Conditions In The New

Orleans Area Prior To 1914.

In 1718, France founded Nouvelle-Orléans on the St. Bernard Delta. When that land was

acquired in 1803 by the United States, as part of the Louisiana Purchase, it was surrounded by

natural water sources: Lake Pontchartrain to the north; Lake Borgne to the east, until it merges into

the Gulf of Mexico; Brendon Sound to the southwest, until it merges into the Gulf of Mexico; the

Mississippi River arriving from the west of Lake Pontchartrain and undulating south; Lake

Salvador to the south; Lake Allemands to the southwest; and Lake Maurepas to the northwest.

St. Bernard Parish is bordered by the Mississippi River to the south, Lake Borgne to the

north, the Lower Ninth Ward to the west, and the Gulf of Mexico to the east. St. Bernard Parish

is covered by wetlands and marsh, except for approximately forty-two square miles of developed

land. 1/13/11 Taffaro Dep. 24–25. The Lower Ninth Ward is bordered by St. Bernard Parish to

the east and the Inner Harbor Navigation Canal (“IHNC”) to the west. 12/12/11 TR 86 (Estopinal).

St. Bernard Parish and the Lower Ninth Ward together comprise what is known as the St. Bernard

4

The facts herein have been discussed in the following prior opinions: Tommaseo v. United

States, 75 Fed. Cl. 799, 800–01 (2007) (“Tommaseo I”) (denying, as premature, the Government’s

October 4, 2006 Motion To Dismiss, because Plaintiffs’ claims were not barred by the statute of

limitations); Tommaseo v. United States, 80 Fed. Cl. 366, 367–68 (2008) (“Tommaseo II”)

(granting Plaintiffs’ November 30, 2007 Motion For Leave To File A Second Amended

Complaint); St. Bernard Parish v. United States, 88 Fed. Cl. 528, 531–42 (2009) (denying, without

prejudice: the Government’s November 7, 2008 Motion For Summary Judgment on statute of

limitations grounds, because the stabilization doctrine applied, delaying the accrual of Plaintiffs’

claims; and the Government’s Motion To Dismiss, pursuant to RCFC 12(b)(6), for failure to state

a claim upon which relief can be granted, because Plaintiffs’ January 31, 2008 Second Amended

Complaint and the record established the plausibility of Plaintiffs’ claims) (“St. Bernard Parish

I”); and St. Bernard Parish v. United States, 99 Fed. Cl. 765, 766–67 (2011) (denying the

Government’s May 23, 2011 Motion To Stay) (“St. Bernard Parish II”).

Additional facts have been derived from: the exhibits to the parties’ pleadings; testimony

adduced at a liability trial in this case conducted in New Orleans, Louisiana on December 12–15,

2011 (Court Exhibit A); and the exhibits admitted into evidence by the court’s May 1, 2015

Memorandum Opinion And Order On Evidentiary Issues.

On May 1, 2015, the court issued a Memorandum Opinion And Final Order On Evidentiary

Issues. As explained therein, the court has taken judicial notice of testimony and documents

admitted in evidence in In re Katrina Canal Breaches Litig., 647 F. Supp. 2d at 64979. See FED.

R. EVID. 201(b)(2) (describing the kinds of adjudicative facts subject to judicial notice). For ease

of reference, the court has labeled all exhibits from Robinson with “R,” i.e., “RPX” for plaintiffs’

exhibits, “RDX” for the Government’s exhibits, and “RJX” for joint exhibits. Plaintiffs’ exhibits

from this case are labeled “SPX,” and the Government’s exhibits are labeled “DX.”

6

Polder.5 Most of the area adjacent to the St. Bernard Polder was a swamp comprised of flooded

forests and marshes or freshwater marshes in inland flat open water areas with few trees, vegetated

by sedges, reed, and grasses. See Hurricane on the Bayou, Educator’s Guide, AUDUBON NATURE

INST. 2 (“AUDUBON EDUCATOR’S GUIDE”), available at http://www.hurricaneonthebayou.

com; SPX.0472 at 10–11 (same). This area also had numerous saltwater marshes behind barrier

islands or river estuaries, vegetated by grasses. Historically, these wetlands were relatively stable

and protected the New Orleans area from catastrophic storms. 12/6/11 Kemp6 Direct at 109.

To better depict the geography of the area, the following map shows St. Bernard Parish in

1998:

5

A polder is “a piece of low-lying land reclaimed from the sea, a river, etc. and protected

by d[i]kes.” OXFORD ENGLISH DICTIONARY ONLINE. Oxford Univ. Press, March 2015 (last visited

April 30, 2015).

6

Dr. George Paul Kemp a geologist and oceanographer, and is Vice President of the

National Audubon Society and Director of the Louisiana Gulf Coast Initiative. He obtained his

B.S. in Natural Resources from Cornell University, and his M.S. and Ph.D in Marines Sciences

from Louisiana State University.

7

The following map shows New Orleans and the St. Bernard Polder area in 2009:

B. Beginning In 1914, Navigational And Flood Protection Projects Were

Constructed By The State Of Louisiana And The Army Corps Of Engineers

In The New Orleans Area.

1. The Inner Harbor Navigation Canal (1914).

In 1914, the State of Louisiana authorized the Port of New Orleans to build a 5.5-mile long

shipping waterway, known as the IHNC, to connect the Mississippi River to Lake Pontchartrain.

SPX.0001 at I-31 fig. 6. The IHNC also hydrologically links Lake Pontchartrain to Lake Borgne.

SPX.0210 at 1-4 (U.S. ARMY CORPS OF ENG’RS, MRGO ECOSYSTEM RESTORATION PLAN DRAFT

8

FEASIBILITY REPORT (2010)) (“2010 FEASIBILITY REPORT”). Docks were constructed along the

IHNC after it was completed, so that it could be used as a harbor and an industrial zone.

2. The Gulf Intracoastal Waterway (1925).

In 1925, Congress authorized the construction of the Louisiana and Texas Intracoastal

Waterway, known as the Gulf Intracoastal Waterway (“GIWW”) that extends from Brownsville,

Texas east to Carrabelle, Florida. Initially, the purpose of the GIWW was to facilitate tugboat and

barge transport of petroleum, food, building materials, and manufactured goods, but it later served

as a strategic transportation route during World War II. Today, the GIWW is used for commercial

transport, as well as for recreational boating.

3. Lake Pontchartrain And The Hurricane Protection Project (1955).

On June 15, 1955, Congress authorized the Army Corps to study the need for additional

hurricane protection along the southern United States coast, including New Orleans and Lake

Pontchartrain. See Pub. L. No. 84-71, 69 Stat. 132, 132 (1955); see also SPX.0169 at 2–3. The

result was a comprehensive report, known as the “Barrier Plan,” that recommended construction

of floodgates to act as “surge barriers,” levees, and floodwalls along the IHNC and GIWW to

protect New Orleans from “Standard Project Hurricane”7 wave action and surges, according to

Army Corps and U.S. Weather Bureau projected parameters. SPX.0169 at ES-6.

On October 27, 1965, Congress authorized funding to implement the “Barrier Plan.” See

Flood Control Act of 1965, Pub. L. No. 89-298, 79 Stat. 1073, 1077 (1965); see also SPX.0169 at

ES-6. The Barrier Plan was implemented as the Lake Pontchartrain and Vicinity Hurricane

Project, known as the LPV, which was to be comprised of 125 miles of levees and floodwalls.

SPX.0001 at I-28.

The Mississippi River Flood Protection System runs along the Mississippi River and was

designed to control “river-flood flows and forms the [St. Bernard] basin’s Western border.”

11/12/13 FitzGerald Direct at 4. The LPV was designed for “hurricane-flood waters” and borders

the remainder of the basin area. 11/12/13 FitzGerald Direct at 4. The 40 Arpent levee and eight

pump stations provided local protection between the Central Wetlands and New Orleans. 11/12/13

FitzGerald Direct at 4.

7

The Army Corps defined a “Standard Project Hurricane” as “one having a frequency of

once in about every 200 years[.]” SPX.0219 at 24. After Hurricane Betsy, five storms exceeded

the “Standard Projection Hurricane,” including: Camille, Carmen, Andrew, Katrina, and Rita.

9

The following map shows the geography of the St. Bernard Polder and relevant flood

protection systems prior to Hurricane Katrina:

SPX.0001 at I-31.

As of May 2005, however, only 90% of the LPV was completed in Orleans Parish, 70% in

Jefferson Parish, 90% in Chalmette, and 60% in St. Charles Parish. SPX.0001 at I-28. In June

2009, an Army Corps report stated, “At no time has the entire New Orleans and Vicinity area had

a reasonably uniform level of protection around its perimeter. At no time has any individual parish

or basin had the full authorized protection planned for in 1965.” SPX.0001 at I-28.

C. During 19581968, The Army Corps Of Engineers’ Constructed And

Implemented The First Expansion Of The Mississippi River Gulf Outlet.

The environmental conditions in southeastern Louisiana prior to 1956 were summarized in

the 2007 Day-Schaffer8 Report as follows:

[T]here were extensive bald cypress-water tupelo swamps in the [Central Wetlands

Unit] and adjacent to the Bayou La Loutre Ridge. The semi-enclosed and protected

8

Professor John W. Day, Jr., Department of Oceanography and Coastal Sciences,

Louisiana State University at Baton Rouge, Louisiana, and Professor Gary P. Shaffer, Department

of Biological Sciences, Southern Louisiana University, issued an Expert Report admitted in

10

nature of this area—and the exclusion of deadly salt water—allowed the survival

of these swamps. . . . Water budget analyses for southeastern Louisiana show that

about one third of rainfall remains after evaporation. Thus there was sufficient

fresh water to maintain the bald cypress-water tupelo swamps in the [Central

Wetlands Unit], so long as the system did not have a direct input of salt water.

SPX.0472 at 4 (internal citations omitted); see also 12/6/11 Kemp Direct at 109. Cypress trees, in

particular, were critical to preventing storm surge and allowing “typical tidal flow within the

Breton Sound area [to be] reduced as it moved across the marshes and wetlands towards Lake

Borgne.” Gov’t 11/7/08 S.J. Ex. A at xiii (“2008 ARMY CORPS REPORT”) (internal citations

omitted); see also 12/12/11 TR 292–93, 48182 (Kemp).

On March 29, 1956, Congress authorized the Army Corps to construct the MR-GO

“substantially in accordance with” a May 5, 1948 Army Corps Report that recommended the

construction of a deep-draft channel on the west side of the Mississippi River from the IHNC east

towards the GIWW to Michaud. See Pub. L. No. 84-455, 70 Stat. 65 (1956). This area became

known as Reach 1. Public Law 84-455 also authorized the Army Corps to construct:

“(1) protective jetties at the entrance to the MR-GO from the Gulf of Mexico; (2) a permanent

retention dike through the Chandeleur Sound and a wing dike along the islands[,] as required; (3) a

turning basin with a project depth of 36 feet Mean Low Gulf (MLG), a width of 1,000 feet and a

depth of 2,000 feet at the junction of the new channel and Inner Harbor Navigational Canal; and

(4) a highway bridge . . . to carry Louisiana State Highway 61 over the [MR-GO].” 2008 ARMY

CORPS REPORT at v.

On September 3, 1957, the St. Bernard Tidal Channel Advisory Committee convened a

meeting with the Army Corps to warn that the MR-GO “will have adverse effects on the entire

marsh area with consequent erosive action and the intrusion of high saline content water into areas

normally fresh or only slightly [brackish].” RDX-1145 at 2. The Committee also predicted that

the MR-GO channel would “be an enormous danger to the heavily populated areas of the parish

due to the rapidity of the rising waters [during a hurricane] reaching the protected areas in full

force through the avenue of this proposed canal.” RDX-1145 at 3; see also 12/6/11 Kemp Direct

at 48.

Nevertheless, on September 11, 1957, the Army Corps proceeded to construct the first

section of the MR-GO. RDX-1042 at EDP-023-667 (Design Memorandum No. 2). The MR-GO

was to provide a sixty-mile, “shorter navigation route from the Gulf of Mexico to the Port of New

Orleans tidewater facilities,” than using the Mississippi River to “access the port.” 2008 ARMY

CORPS REPORT at iv. The Army Corps “chose the MRGO channel alignment partly to reduce

future costs of maintaining the authorized channel by routing it as much as possible within the

marsh, and partly to allow for development of potential industrial sites on the relatively high land

created in the spoil disposal area along its south bank.” 12/6/11 Kemp Direct at 54.

Robinson (RJX-0199) and in this case (SPX.0472) that discussed, in depth, the environmental

conditions in New Orleans before and after construction, expansions, operation, and failure to

maintain the MR-GO by the Army Corps.

11

On September 23, 1957, the Secretary of Interior wrote a letter to the Secretary of the Army

to express “great concern” about the proposed construction of the MR-GO:

Dredging and deposition of spoil involved in the construction of this project may

be highly destructive to important producing areas for shrimp and other shellfish,

nursery areas for finfishes, and highly valuable water-fowl marshes.

The project plans have not been investigated by fish and wildlife conservation

agencies as contemplated in the Wildlife Coordination Act of August 14, 1946 (60

Stat. 1050). The U.S. Fish and Wildlife Service of this Department is now initiating

such investigations[.]

* * *

We urge that detailed planning for the project consider fully the effects of fish and

wildlife resources of constructing the canal and that your department accept

reasonable modifications in alignment of the canal and in the plan for deposition of

spoil to hold to a minimum the destructive effects on those resources, even though

this may increase project costs to some degree.

It will be apparent that the fish and wildlife investigations are far behind the stage

reached in the engineering investigations. We trust, therefore, that the [Army]

Corps of Engineers will take the necessary steps to bring the investigations of all

phases of this project into balance.

RPX.0161 at 1–2.

In 1958, the United States Fish & Wildlife Service (the “F&W Service”) also warned the

Army Corps that “[t]he excavation of a channel 36 feet deep, 500 feet wide, and over 70 miles

long from New Orleans to the Gulf of Mexico through the Lake Borgne marshes and shallow inlets

of Chandeleur Sound, in effect, could result in a major ecological change of the area.” RDX-1685

at 24 (U.S. DEP’T OF FISH & WILDLIFE, AN INTERIM REPORT ON FISH & WILDLIFE RES. AS RELATED

TO MISS. RIVER-GULF OUTLET (1958)); see also RJX-0199 (Day/Shaffer Report at 5 (stating that

the F&W Service predicted that the MR-GO construction “particularly by breaching the natural

east-west ridges between fresh/brackish and salt water” would “introduce salt water into the

wetlands and destroy tens of thousands of acres of marshes and mature bald cypress-water tupelo

swamps.”)); 12/6/11 Kemp Direct at 48 n.2 (summarizing the 1958 Service Report as “predict[ing]

the very environmental disaster that the MRGO would inflict on the region of the Central Wetlands

Unit.”). The F&W Service also advised the Army Corps that these environmental changes could

“have widespread and severe consequences.” RDX-1685 at 25. In addition, the F&W Service

warned the Army Corps that “[c]hanges in the water circulation pattern and sedimentation pattern”

could “subject important fish and wildlife areas to changes in salinities, with perhaps damaging

changes in salinity zones.” RDX-1685 at 25. And, the F&W Service also predicted increased

temporary and permanent turbidity that could damage the local environment. RDX-1685 at 25.

In light of these adverse environmental consequences, the F&W Service recommended that the

Army Corps delay construction of MR-GO pending further study. RDX-1685 at 26; see also

12/13/11 TR 500 (Kemp). The Army Corps did not respond to concerns exposed by the Secretary

12

of Interior or the F&W Service and began construction of the MR-GO. RDX-1042 at EDP-23-

667.

On January 27, 1959, the second section of the MR-GO was approved. RDX-1042 at EDP-

023-667 (Design Memorandum No. 2). This section, known as “Reach 2,” extended southeast-

northwest from just east of the Paris Road Bridge down through Breton Sound for approximately

twenty-four miles into the Gulf of Mexico and was supposed to function as a “hurricane protection

levee [on top of a] dredged material placement bank on the southwest side of the channel and Lake

Borgne and open marsh . . . to the northeast.” Gov’t 11/7/08 S.J. Ex. E at 1–2 (“2006 WESTERINK

NOTE”).9

In 1959, the Army Corps also considered a revision to the initial MR-GO design to take

into account the likelihood of salinity intrusion, but rationalized its decision not to do so as follows:

“[i]f the [MRGO] channel is separated by spoil from the surrounding area—except for a few

openings—the salinities in the area inland from Shell Beach to the west of the channel will tend to

be fresher, and Lake Borgne should remain essentially unchanged.” RPX0699 at PDF 3. A 1959–

1961 Army Corps hydrologic study stated that salinity increased at five stations the year after the

MR-GO was opened, although the “Bayou La Loutre ridge provided a basin boundary that limited

the flow of saline water from the Breton Sound area into Lake Borgne and nearby wetlands.”10

2010 FEASIBILITY REPORT at 2-10. But, the Army Corps ignored the fact that, over time the design

of the MRGO would result in:

the dissection of the Bayou La Loutre natural levees . . . accelerating the process of

saltwater intrusion and contributing to land loss. Therefore, to the extent the

MRGO caused an increase in salinity into the study area and the [Central Wetlands

Unit] it was the direct result of the design of the channel and the altered hydrology

resulting from the dissection of these natural levees.

RJX-0202 at 17.

By May 1959, the Army Corps anticipated that the unarmored banks of the MR-GO would

experience “erosion due to wave wash in open areas . . . in the upper part of the channel slope,”

but recommended “[n]o channel protection” initially, because “[p]rotection . . . can be provided if

and when the need for it becomes necessary.” RPX0699 at PDF 14. Since the Army Corps did

not have the budget for bank armoring, it relied on dredging “to sustain the critical function of

providing serviceable dimensions for shipping.” RPX0716 at 5–6. It was aware, however, that a

hurricane swell could travel up the MR-GO from the Gulf of Mexico and “some effect could be

felt in New Orleans,” but estimated that a maximum thirty-five foot wave at the Gulf entrance

9

This report was authored by: Joannes Westerink, Dep’t of Civil Eng’g & Geological Sci.,

Univ. of Notre Dame; Bruce Ebersole, Coastal & Hydraulics Lab., U.S. Army Eng’g Research &

Dev. Ctr.; Harley Winer, New Orleans Dist., U.S. Army Corps of Eng’rs.

10

On an unspecified date during the early stages of construction, the Army Corps

constructed a scale physical model of the MR-GO that predicted the precise movement of salinity

through the channel, but continued with construction. 12/13/11 TR 500 (Kemp).

13

would lose 97% of its height traveling up the channel. RPX0699 at PDF 12–14 (U.S. ARMY CORPS

OF ENG’RS, MISS. RIVER-GULF OUTLET, LA., DESIGN MEMORANDUM NO. 1-B).

By 1961, the Army Corps also was aware that larger storm surge could occur on the Gulf

Coast, because of the shallow, broad shelf off that coast, and that “[s]torm surges may also be

increased by a funneling effect in the converging estuaries.” RPX1332 at 1-9 (ARMY CORPS

COASTAL ENG’G CTR., SHORE PROT. MANUAL, Vol. I (1961)).

12/6/11 Kept Direct at 3 (fig. 1).

In response, the Army Corps developed a plan to build a levee to block the funnel opening.

RPX1030 (“Alternate Plan C”); see also RDX-1297 at 123 (U.S. ARMY COASTAL ENG’G

RESEARCH CTR., SHORE PROT., PLANNING & DESIGN (3d ed. 1966) (“1966 ARMY PLAN”) (“Storm

surge may also be increased, particularly in coastal areas, by a funneling effect in converging open

bay mouths.”); 12/6/11 Kemp Direct at 32 (“The GIWW and the MRGO Reach 2 form a triangle

[at Marker 60] that opens east to Lake Borgne . . . . This layout has been described as a ‘funnel’

by virtually everyone who has taken a bird’s-eye look at the plan developed by the [Army

14

Corps].”). But, the Army Corps took no action, and the initial construction of the MR-GO was

completed in 1963. Pls. 2/9/09 S.J. Ex. 7 at 2-1 (“2000 EPA REPORT”).

On September 9–10, 1965, Hurricane Betsy arrived just south of New Orleans as a category

5 storm, damaging six thousand homes near the Port of New Orleans and flooding the Lower Ninth

Ward with twelve feet of water. SPX.0169 at 2-5; see also 12/12/11 TR 107, 109 (Estopinal);

David Roth, Louisiana Hurricane History, NAT’L WEATHER SERV., available at http://www.hpc.

ncep.noaa.gov/research/lahur.pdf at 41 (“NAT’L WEATHER SERV.”) (describing a ten-foot storm

surge from Hurricane Betsy).

On November 24, 1965, the Citizens Committee for Hurricane Flood Control wrote a letter

to the Army Corps requesting action to avoid the type of flooding experienced with Hurricane

Betsy and recommending that the Army Corps build flood gates on the Intercostal Waterway,

Bayou Bienvenue, Gulf Outlet, instead of a proposed levee that “would form a funnel, channeling

all hurricane surges and wind driven water in the Intercostal Waterway and Industrial Canal[.]”

RPX0006 at 3.

In 1966, the Army Corps retained Charles Bretschneider and J. Ian Collins of the National

Engineering Science Company (“NESCO”), who published a September 1966 Report (“NESCO

Report”). SPX.0105. The NESCO Report used computer modeling to evaluate the impact of

storm surge on existing and proposed levees, with and without the MR-GO. But, the levee running

parallel to the MR-GO was not constructed when Bretschneider and Collins conducted their

research; instead, excavation material was piled six to eight feet high on the south side of the

channel. 12/6/11 Kemp Direct at 69. Although the NESCO Report predicted that the MR-GO and

the proposed levee configuration would increase conveyance of storm surge into the IHNC, it

concluded that “the effect of the Mississippi River-Gulf Outlet is almost negligible for all large

hurricanes accompanied by slow rising storm surges.” SPX.0105 at 4. But, it observed that, in

the case of “more rapidly rising surge,” there “may [be] a very marked effect.” SPX.0105 at 4;

see also 2006 WESTERINK NOTE at 3 (describing the NESCO Report); see also RJX-0278 at 1

(Nov. 21, 1962 ARMY CORPS INTERIOR SURVEY REPORT, LAKE PONTCHARTRAIN, LA. & VICINITY)

(stating that “[h]urricane damages result from surges entering Lake Pontchartrain from Lake

Borgne through natural tidal passes at the Rigolets and Chef Menteur Pass and through improved

channels of the [MR-GO] Outlet and [IHNC]”); see also id. (“The [MR-GO] provides a deep,

direct route for the inflow of saline currents from the Gulf of Mexico to the area along its channel

and to Lake Pontchartrain, with resultant adverse effect on fishery resources in the area. The [MR-

GO] will also produce high velocity currents in the [INHC].”).

In October 1973, a report prepared by Dr. S.A. Hsu11 for St. Bernard Parish criticized the

NESCO Report, because none of the storm tracks selected were within “a dead hit radius of the

MRGO. . . . What would happen if the radius of high flooding hit the end of the MRGO?” SPX

0707 at A-12. The modeling for the NESCO Report also was criticized, because it was based on

data that preceded the expansions of the MR-GO. 12/6/11 Kemp Direct at 75. Dr. Kemp also

criticized the NESCO Report on other grounds. 12/6/11 Kemp Direct at 75 (citing SPX.0707 at

11

Dr. Hsu was Assistant Professor at Louisiana State University, specializing

oceanographic meteorology.

15

A-12 (“[A]ny numerical model should be verified at least by statistically significant samples such

as the one developed by Jelesnianski (1967)[.]”)). The 1966 NESCO Report downplayed the role

of the funnel, because the authors believed that the funnel was made up of mostly wetlands.

According to Dr. Kemp, “this is a naïve view of the funnel, even if it was truer in 1967 than it

was . . . in 2005, after the wetlands at issue were decimated. . . . As the funnel converges to the

west toward its apex, the relative contribution of the channels to cross-sectional area . . . rise[s].”

12/6/11 Kemp Direct at 136–37; see also 12/16/11 Kemp Direct at 71 (“[Bretscheider and

Collins’s] model predicted a dramatic increase in storm surge” as water moved into the funnel

created by the MR-GO and the GIWW, but estimated that area wetlands would reduce the surge

three times more effectively than the channel.).

In 1966, the Army’s Coastal Engineering Research Center also conducted a study

observing that storm surge depends on:

the wind velocity, the distance over which it blows, the wind direction, and the

water depth. Storm surge is greater in lesser depths, and this is the reason for the

generally greater values of storm surge along the Gulf Coast[.] Storm surge

may . . . be increased, particularly in coastal areas, by a funneling effect in

converging open bay mouths.

1966 ARMY PLAN at 123.

In 1968, Congress authorized an expansion of the MR-GO. See The River and Harbor Act

of 1968 Pub. Law No. 90-483, 82 Stat. 731 (1968). By the time the third segment of the MR-GO

was completed in 1968, the Army Corps had dug through 2,116 acres of salt marsh and swamp

and thirty-six acres of trees. RJX-0195 at 2-4 (9/11/08 Expert Report of Dr. Duncan FitzGerald12).

The dredge spoil placed along the south bank of MR-GO buried more than 10,000 additional acres

of marsh, swamp, and trees. RJX-0195 at 2-4. “Ship wave erosion,” subsequently, increased the

surface width of the channel, at a rate of up to 15 ft per year from 1968 to 2006. 2006 WESTERINK

NOTE at 2.

The MR-GO has been described as extending:

southeast to northwest from the Gulf of Mexico to a point where it first merges with

the [GIWW], and then continues westward until it intersects the [IHNC]. . . . The

first 9 miles, the bar channel, are in the open Gulf. The next 23 miles of the channel

lie in the shallow open waters of Breton Sound. From there, the inland cut extends

14 miles to the northwest with open marsh on the northeast and a 4,000-ft wide

dredged material placement bank on the southwest side. At this point[,] the channel

cuts across the ridge of a relict distributary of the Mississippi River, Bayou La

Loutre. For nearly the next 24 miles, there is a hurricane protection levee atop a

dredged material placement bank on the southwest side of the channel[,] and Lake

12

Mr. FitzGerald is Chief Engineer of the Harris County Flood Control District in Houston,

Texas. He obtained his B.S. in Civil Engineering from Stanford University. He obtained his M.S.

in Civil Engineering from the University of Illinois at Champaign-Urbana.

16

Borgne and open marsh lie to the northeast. A portion of the levee protecting St.

Bernard Parish/Chalmette and the portion of the hurricane protection levee along

the south side of Orleans East Parish, north of the GIWW, form the “funnel” that is

often referenced. The point where the MRGO and GIWW channels merge is just

to the east of the Paris Road Bridge. . . . From this point, the merged GIWW/MRGO

channel continues west for about 6 miles to the point where it intersects the IHNC;

this portion has hurricane protection levees on both banks. The IHNC extends from

Lake Pontchartrain, to the north, to the Mississippi River to the south. The IHNC

has levees or floodwalls along both banks. The IHNC Lock, which connects the

IHNC to the Mississippi River, is located at the southern limit of the IHNC.

* * *

It is important to distinguish between two sections of the MRGO and the role each

plays in tide and storm surge propagation. One is the east-west oriented section

that runs between the IHNC and the confluence of the GIWW/MRGO near the Paris

Road Bridge, labeled as the GIWW/MRGO . . . , and hereafter referred to as Reach

I. The other is the much longer southeast-northwest section . . . referred to as the

Reach 2.

The critical section of the MRGO is Reach I, the combined GIWW/MRGO. It is

through this section of channel that Lake Pontchartrain and Lake Borgne are

hydraulically connected to one another via the IHNC. Reach I existed as the GIWW

prior to the construction of the MRGO, although the maintained depth was lower.

Because of this connectivity, the local storm surge and astronomical tide in the

IHNC and in the section designated GIWW/MRGO is influenced by the tide and

storm surge in both Lake Pontchartrain and Lake Borgne. The two Lakes are also

connected to each other via the Rigolets and Chef Menteur Pass; the IHNC is the

smallest of the three connections. The Reach 1 GIWW/MRGO section of channel

is very important in determining the magnitude of storm surge that reaches the

IHNC from Lake Borgne and Breton Sound. If the hydraulic connectivity between

Lake Pontchartrain and Lake Borgne is eliminated at a point within this section of

channel, tide or surge to the west of this point will become primarily influenced by

conditions at the IHNC entrance to Lake Pontchartrain; and tide or storm surge to

the east of this point will become primarily influenced by conditions in Lake

Borgne.

Much concern seems to be focused on MRGO/Reach 2 that runs from the

GIWW/MRGO confluence, just east of the Paris Road Bridge, to the southeast.

Past work . . . has shown that this section of the MRGO channel, along with the

critical section, the GIWW/MRGO/Reach 1, plays an important role in the

propagation of the astronomical tide wave and in the flux of more saline water from

Lake Borgne/Breton Sound into Lake Pontchartrain via the IHNC. The significant

role of the MRGO in the propagation of the low-amplitude tide has been

established.

2006 WESTERINK NOTE at 2.

17

The following map shows the location of the INHC; Reach 1 and Reach 2 of the MR-GO;

the federal levee system; and the 40 Arpent Levee.

11/12/13 FitzGerald Direct at 4 fig. 1.

On August 17–18, 1969, Hurricane Camille arrived in Louisiana, as a Category 5 storm,

the “most intense hurricane [measured by barometric pressure] known to ever make landfall in the

United States.” NAT’L WEATHER SERV. at 42. St. Bernard Parish experienced wind gusts reaching

160 miles per hour. NAT’L WEATHER SERV. at 42. Although Hurricane Camille flooded New

Orleans, the St. Bernard Polder did not flood. 12/13/11 TR 487 (Kemp); 12/6/11 Kemp Direct at

136 fig. 6.8 (showing New Orleans flooding from Hurricane Camille).

D. From 1998–2004, Army Corps Of Engineers’ And Other Governmental

Studies Identified That The Construction, Expansions, Operation, And

Failure To Maintain The Mississippi River Gulf Outlet Could Significantly

Increase Storm Surge And Flooding During Hurricanes Or Severe Storms,

But No Remedial Action Was Taken.

In 1990, in response to the increased public awareness about the adverse environmental

impact of the MR-GO, Congress enacted the Coastal Wetlands Planning, Protection, and

Restoration Act of 1990, Pub. L. No. 101-646, 104 Stat. 4761, Title III (1990), known as the

“Breaux Act.” A central feature of this Act called for a comprehensive Louisiana Coastal Wetlands

Restoration Plan. Recognizing the need for a single plan, the Louisiana Coastal Wetlands

Conservation and Restoration Task Force and the Wetlands Conservation and Restoration

18

Authority brought together private, public, and institutional entities to issue a comprehensive

report. In 1998, that group issued Coast 2050: Toward A Sustainable Coastal Louisiana. Gov’t

11/7/08 S.J. Ex. G (“COAST 2050 REPORT”). The Coast 2050 Report estimated that by the 1990s,

the rate of coastal land loss would be between twenty-five and thirty-five square miles per year.

COAST 2050 REPORT at 1. The Report concluded that the construction of the MR-GO in the early

1960s “caused loss of marsh from both its ‘footprint’ (area of impact) and the saline water it

allowed to enter the basin once the La Loutre Ridge was breached. These events led to high loss

in the areas surrounding the MRGO and in areas more removed such as the

Pontchartrain/Maurepas Land Bridge.” COAST 2050 REPORT at 47. New Orleans and Yscolsky

(St. Bernard Parish) were characterized as “[c]ommunities at risk.” COAST 2050 REPORT at 63–

65. More importantly, the 1998 2050 Report made this observation:

The current hurricane protection system, to be completed in 2002, protects the city

from a storm surge associated with a fast moving Category 3 hurricane. But what

if the storm is more intense . . . or the storm moves slowly, allowing more time for

the storm surge to build? Storm surge models show that a hurricane could produce

an 18-foot storm surge in Lake Pontchartrain, which could be topped with 10 foot

waves. None of the current or planned protection measures would be effective

under those circumstances. . . . Unfortunately, storm surge heights will only

increase as subsidence and sea-level rise continue and more wetlands are lost.

COAST 2050 REPORT at 64 (emphasis added).

In response, on December 15, 1998, the Parish Council of the St. Bernard Parish

Government unanimously moved to adopt the following resolution:

WHEREAS, the construction of the Mississippi River Gulf Outlet, which

opened in 1963, destroyed a 4750 foot wide, 37 mile long strip of wetlands and

swamps. Ship traffic has aggravated erosion of the banks and caused the channel

to widen up to 2000 feet from suction that pulls on sediments in the outlet’s banks.

The ship’s wake creates waves that batter the banks, causing them to fall apart; and

WHEREAS, the MRGO provides a superhighway for storm surges caused

by hurricanes and winter cold fronts. No longer blocked by natural levees formed

by winding bayous, water from the Gulf of Mexico moves unimpeded and more

quickly inland, and can cause severe flooding in St. Bernard, Orleans and

Plaquemines Parishes; and

WHEREAS, salt water intrusion has virtually destroyed intermediate water

marshes and freshwater swamps surrounding [L]ake Borgne, resulting from

opening the MRGO; and

WHEREAS, the hydrology, animal and plant life of the Lake Pontchartrain

and Breton Sound Basins have been dramatically altered, “dead zones” created,

yields and species of seafood decreased and open water areas have appeared where

intermediate once flourished; and

19

WHEREAS, the 1998 hurricane season destroyed over 50 percent of the

Chandeleur Islands, a land mass that forms a natural storm barrier for southeastern

Louisiana; and

WHEREAS, the land loss from the MRGO, combined with the hurricane

damage now makes residents from Planquemines, Orleans, and St. Bernard

Parishes more vulnerable to tropical storms than at any time in history; and

* * *

WHEREAS, in September, 1998 Hurricane Georges swept mountains of silt

into the MRGO sealing the waterway to larger ships, thereby necessitating the U.S.

Army Corps of Engineers to dredge the channel at a cost of $35 million dollars, in

addition to average annual dredging costs of $7–$10 million dollars and $3 million

for rock retention annually, equating to $72 thousand dollars per ship or $143,000

dollars daily for two ships, such annual expenses obviously are not cost-effective;

and

WHEREAS, the U.S. Army Corps of Engineers has proposed to spend $35

million dollars to rock the channel’s north face in addition to dredging a channel

that 2 ships (1.8) per day use . . . ; and

WHEREAS, the continuing deterioration of the ship channel and wetland

loss has caused flooding in the lower portion of St. Bernard Parish to increase

drastically and scientists have measured the tidal surges that flow with speeds of

over 18 ft/second! Flooding is expected to increase; and

WHEREAS, the economic benefits derived from the MRGO are now far

outweighed by the increasing risk to lives and property; and

WHEREAS, the State of Louisiana’s official coastal restoration plan, Coast

2050, calls for phasing out of the MRGO; and

WHEREAS, St. Bernard Parish never evolved into the “Industrial Frontier

of the Great Gulf South” as symbolized by the MRGO nor has the MRGO had any

military strategic use as first legislated by Congressman F. Edward Herbert in the

appropriation funding the channel.

THE ST. BERNARD PARISH COUNCIL DOES HEREBY RESOLVE

SECTION I. That this Council does hereby request Louisiana’s Southeast

Congressional Delegation establish a task force to develop a process that will result

in the timely closure of the Mississippi River Gulf Outlet.

SECTION II. That the task force, consisting of a policy committee and a

technical advisory committee (Addendum A) will, within the next twelve months,

20

design and develop a cost effective program to phase out the MRGO that will focus

on: public safety, maintaining the Port’s economic viability, mitigation and habitat

preservation, protection and, where possible, restoration.

Gov’t 11/7/08 S.J. Ex. L at 2–3 (Resolution SBPC# 1336-12-98, Resolution to Close the

Mississippi River Gulf Outlet) (emphasis added).

On May 25, 1999, the United States Environmental Protection Agency (“EPA”) established

a Task Force “to develop alternative futures for the MRGO, for identifying the various issues

which must be resolved if the channel is to be closed to deep draft navigation, and to facilitate the

resolution of stakeholder issues, including related issues of navigational facilities, environmental

restoration, and hurricane protection.” 2000 EPA REPORT at 2-5.

In 1999, the Army Corps estimated that “MRGO channel construction . . . resulted in the

conversion of 19,400 acres of wetlands and 4,750 acres of shallow open water to deep open water

or dredge material banks.” SPX.1154 at 1-13 (12/9/10 U.S. ARMY CORPS OF ENG’RS, MRGO

ECOSYSTEM RESTORATION STUDY DRAFT ENVTL. IMPACT STATEMENT) (“2010 DRAFT EIS”); see

also 2010 DRAFT EIS at 1-16 (“The construction, operation and maintenance of the MRGO caused

the loss of approximately 24,610 acres and indirectly to an additional loss of 33,920 acres.

Approximately 63,178 acres of land is estimated to have been lost in the study area from 1985

through 2010.”).

On October 20, 2000, the EPA commissioned a study concluding:

[T]here has been a tremendous loss to St. Bernard Parish as a result of salt water

intrusion in land, trapping and forestry due to the change in the ecosystem.

After eighteen (18) years of meeting and public hearings held by the St. Bernard

Coastal Zone Management Advisory Committee, and taking their advice into

consideration, th[e Environmental S]ubcommittee’s recommendations are:

1. A closure structure at the Bayou la Loutre Ridge incorporating a gated system

to protect St. Bernard Parish from a hurricane surge from the MRGO. Several

structures need to be in place. This could be implemented at a relatively low cost.

The rocks from the landmass into the sound should be removed and used for these

additional structures.

2. Bank stabilization/marsh re-creation in Lake Borgne from Bayou Bienvenue to

the Mississippi River Levee encompassing St. Bernard and Plaquemines Parishes.

This is our number one concern and should be addressed as soon as possible.

3. Implementation of a ten (10) year program to restore and manage our resources

that includes a freshwater diversion structure into the Central Wetlands area.

4. Land loss due to salt water intrusion and wave action along the MRGO has been

devastating. The right of way, purchased by the Federal Government for the

construction and maintenance of the MRGO, has long been out of their boundaries.

21

The result is that the property of private landowners is being literally washed away.

This committee feels that it is only fair these property owners be compensated at

fair market value.

The total dollar figures for the projects necessary to mitigate the damages inflicted

upon St. Bernard Parish has not been determined. This committee feels that the

overall cost will be in the hundreds of millions of dollars.

2000 EPA REPORT at 3-13–14.

Importantly, the 2000 EPA Report included the Army Corps’ “first official estimate of the

ecological impacts caused by the [MR-GO] it built and maintains.” 2000 EPA REPORT at 3-14.

An Executive Summary of that Report stated that:

The MRGO is a 36-foot deep, 500-foot wide, 76-mile long navigation channel from

the Gulf of Mexico to the city of New Orleans, completed in 1965. It has been

controversial from the beginning since it destroyed several thousand acres of

wetlands in St. Bernard Parish. Wave wash erodes the channel by about 15 feet per

year. St. Bernard Parish has long requested the closure of the channel because, in

addition to the environmental damage, they believe that the channel serves as a

funnel for hurricane surges to enter the parish. In the fall of 1999, the

Environmental Protection Agency convened a group to “facilitate and lend

structure to the issues involved with the MRGO.”

The group formed an Environmental Subcommittee and tasked it with preparing a

report on the environmental impacts of the MRGO. The Corps of Engineers agreed

to draft this report. There were three basic impacts caused by construction of the

MRGO: 1) habitat loss due to channel excavation, spoil disposal and erosion;

2) shifts in habitat type due to salinity brought in by the MRGO, and 3) increased

land loss due to hydrological changes caused by the MRGO. The habitat loss due

to construction was estimated by placing the MRGO footprint on maps,

superimposing the habitat types in the mid-1960’s, and calculating the amounts of

various habitat types that were destroyed. Habitat shifts were estimated using a

database from Louisiana Department of Natural Resources that consisted of the

habitat composition of various mapping units in 1956 and 1990: Possible increased

land loss due to the MRGO was very roughly estimated by first calculating the

“baseline” loss by mapping unit. Then the percent of this “baseline” loss that was

caused by the hydrological change due to the MRGO was estimated to determine

the “without MRGO” loss rate. This loss rate was applied to acres present in 1956;

the resulting 1990 acres were compared to existing acres to calculate the possible

increased loss.

All of these calculations represent best professional judgment since it is difficult to

know the exact location of habitats 35 years ago. The estimate of increased land

loss is especially speculative.

22

Construction of the MRGO and subsequent erosion has caused extensive loss of

land in St. Bernard Parish. Nearly 3,400 acres of fresh/intermediate marsh, over

10,300 acres of brackish marsh and over 4,200 acres of saline marsh have been

converted to open water or spoil. Over 1,500 acres of cypress swamp and levee

forest have become disposal area. A total of nearly 20,000 acres of wetlands have

been lost and nearly 4,800 acres of shallow open water have been converted . . . into

deep water or disposal area. Habitat shifts caused by saline waters brought in by

the MRGO have caused 3,350 acres of fresh/intermediate marsh and 8,000 acres of

cypress swamp to shift to brackish marsh. Approximately 7,500 acres of swamp

have convened to intermediate marsh. Also, 19,170 acres of brackish marsh and

swamp have shifted to saline marsh. If the roughly estimated amount of increased

loss is considered, the area influenced by the MRGO could have lost over 3,400

acres of wetlands due to increased tides and salinity.

2000 EPA REPORT at 3-14–15.

But, the 2000 EPA Report recognized that “there is no current consensus [on] the rate of

ongoing environmental damage from the MR-GO” and so concluded:

 Preliminary results of the Reevaluation Study indicate that MRGO is a

relatively minor factor impacting storm surge impacts. Small surges that do

not overtop the Bayou La Loutre Ridge but do gain access via the MRGO

are too small to overtop flood protection levees, and thus only impact

unprotected areas where development is limited. Larger surges (e.g. from

hurricanes) are simulated as being negligibly impacted by a small

topographic feature such as the MRGO passage through the ridge.

 Assuming these results are confirmed, questions about the overall safety of

the hurricane protection system have not been resolved to everyone’s

satisfaction. For example, inquiries made during this study determined that

there is no audit to confirm the level of protection afforded by the existing

(uncompleted) levee system. Annual monitoring addresses adequacy of

maintenance, not the more fundamental issue of hydrologic competence. A

fundamental problem is the need for reliable benchmarks to use in surveys

of levee heights and marsh and channel elevations.

2000 EPA REPORT at 3-15, 4-7–8. The 2000 EPA Report estimated that “it could be 5 or more

years before a closure decision is even reached, and 15 years or longer before it is implemented.”

2000 EPA REPORT at 4-8.

In August and September 2001, two public meetings were held where several hundred

people attended as well as representatives from the Army Corps. SPX.0298 at 15. At these

meetings, the public representatives expressed these concerns: “1) perception that the MR-GO

presents a flooding threat from hurricane storm surge; 2) the environmental damage caused by

increased salinity; 3) the erosion of the MR-GO banklines; 4) the decrease in deep-draft traffic

using the channel; and 5) the need to keep deep-draft access to the IHNC and Michoud Canal

facilities.” SPX.0298 at 15.

23

In December 2001, the Army Corps considered a total closure of the MR-GO, but no action

was taken. SPX.0298 at 16.

Likewise, in 2003, another study commissioned by the Army Corps concluded that:

for low-amplitude storm surges (peak surge having a magnitude of 4 feet or less),

the presence of MRGO/Reach 2 increased the storm surge . . . . [but] did not cause

a significant change or the increase was less than 0.3 feet. In a few situations,

notably a slow moving weak storm, the presence of the MRGO/Reach 2 channel

actually led to a very small decrease in peak surge/level at the four locations. For

higher amplitude storm surges, peak surges on the order of 7 to 12 feet (which

included Hurricane Betsy [1965]), changes induced by MRGO/Reach 2 were 0.3 ft

or less for all situations.13 The MRGO did however considerably enhance drainage

from Lake Pontchartrain through the [Inner Harbor Channel/Gulf Intracoastal

Waterway] out to Breton Sound following passage of the storms.

2006 WESTERINK NOTE at 3 (emphasis added).

The 2000 EPA Report and 2003 Army Corps Study, however, present a very different

picture than a November 2004 Army Corps Report that warned that “[t]he Lake Borgne estuarine

complex is deteriorating and recent analysis indicates that the rate of wetland loss in the area is

accelerating. Rapid action is required to protect the integrity of the southern Lake Borgne shoreline

and to prevent continued erosion of the MRGO channel banks from ocean going vessel wakes.

Additional ecosystem restoration features are required to address serious ecological problems[.]”

2/9/09 Pls. S.J. Ex. 8 at MRGO 31 (“2004 ARMY CORPS STUDY”). The Army Corps Study also

warned of:

[c]ritical action points to avoid near-term (3 to 5 years) threats of shoreline and

bayou breaches located [along the MR-GO]. These sites face significant risk of

losing the integrity of bayou banks along the shoreline and a potential major breach

of the navigational channel into [Lake Borgne]. . . . A breach between the lake and

the MRGO navigation channel would result in rapid wetlands loss as storm waves

from the lake and ship wakes from the [MR-GO] channel impact sensitive interior

wetlands[.]

2004 ARMY CORPS STUDY at MRGO 32 (emphasis added).

On June 23, 2005, a draft Army Corps shoreline protection study reported that “[c]hanges

in salinity and water circulation in the Lake Pontchartrain Basin caused by the MRGO have

increased the rate of wetland loss in the area, and these changes to geomorphic structure in this

part of the Deltaic Plain would increase the storm surge of hurricanes and tropical storms that

impact this area of coastal Louisiana.” SPX.01148 at 1-15 (U.S. ARMY CORPS OF ENG’RS & LA.

13

Hurricane Betsy, however, occurred in 1965 prior to the 1968 expansion of the MR-GO

by the Army Corps and thereafter by ship wave erosion. SPX.0169 at 2-5.

24

DEP’T OF NATURAL RES., MRGO CRITICAL SHORELINE PROTECTION FEASIBILITY STUDY (Draft

June 23, 2005) (“2005 ARMY CORPS DRAFT STUDY”).

The Army Corps’ 2004 and 2005 studies were prophetic.

E. Hurricane Katrina.

On August 26, 2005, a Category 1 storm known as Hurricane Katrina crossed the southern

tip of Florida and moved westward into the Gulf of Mexico, becoming a Category 2 storm.

SPX.0004 at IV-13.14

On August 28, 2005, at approximately 12:00 a.m. Central Daylight Time (“CDT”), as

Hurricane Katrina rapidly intensified and turned northwest; by 12:00 a.m., that storm reached

Category 5 status. SPX.0004 at IV-15.

On August 28, 2005, at 6:00 p.m., Hurricane Katrina was centered 170 miles south-

southeast from the mouth of the Mississippi River. SPX.0004 at IV-1516. By this time, surface

winds in southeast Louisiana blew from the east at thirty-five to forty miles per hour. SPX.0004

at IV-16. The wind pushed water into Lake Borgne, which was then three feet above normal

levels, and into Lake Pontchartrain, raising the water level there to one foot above normal.

SPX.0004 at IV-16. Wave heights east of the Mississippi River entrance reached twenty feet;

wave heights north of the Chandeleur barrier islands reached ten feet. SPX.0004 at IV-16. As a

result, water “began to inundate the coastal wetlands of [s]outheast Louisiana, east of the

Mississippi River.” SPX.0004 at IV-16.

As Hurricane Katrina turned north, its intensity decreased by 12:00 a.m. on August 29,

2005, but the water level continued to rise and wave height increased. SPX.0004 at IV-16. Water

levels in Lake Borgne (at Paris Road over the GIWW/MRGO) rose 5.5 feet above normal,

“completely inundat[ing] much of the wetland system east of the Mississippi River Levees.”

SPX.0004 at IV-16. Water levels along the southern shore of Lake Pontchartrain reached three

feet above normal; waves in the Gulf of Mexico, just east of the mouth of the Mississippi River,

14

Saffir-Simpson Hurricane Wind Scale:

Category 1 64 to 82 knots 74 to 95 miles per hour

Category 2 83 to 95 knots 96 to 110 miles per hour

Category 3 96 to 112 knots 111 to 129 miles per hour

Category 4 113 to 136 knots 130 to 156 miles per hour

Category 5 137 knots or higher

157 miles per hour or

higher

SPX.0004 at IV-13; see also NAT’L WEATHER SERV., NAT’L HURRICANE CTR., Saffir-Simpson

Hurricane Wind Scale, available at http://www.nhc.noaa.gov/aboutsshws.php.

25

reached nearly thirty-five feet; and wave heights north of the Chandeleur Islands reached seventeen

feet. SPX.0004 at IV-16.

Hurricane-force winds drove water east and then north into Lake Borgne and against the

federal levee system that paralleled the MR-GO:

During the [twelve]-h[ou]r period prior to Katrina making its final landfall, despite

its decreasing intensity, the storm pushed a considerable volume of water against

the Mississippi River delta and the east-facing levees along the Mississippi River,

and in the “pocket” formed by the delta and the Mississippi coast. The storm then

pushed that volume of water northward with hurricane strength winds toward the

Mississippi coast and into Lakes Borgne and Pontchartrain as the storm tracked to

the north. Locally, hurricane force winds from east and east-northeast in advance

of the storm center also pushed water against the east-facing levees and floodwalls

of the hurricane protection system in Plaquemines, St. Bernard, and Orleans

Parishes. The increased water levels in Breton Sound and Lake Borgne allowed

considerable wave energy that was generated in the gulf to propagate over and

through gaps between the barrier islands, across the inundated wetlands, to the

hurricane protection system in Plaquemines, St. Bernard, and Orleans Parishes.

Local wave generation also occurred in these inundated areas.

High water levels in Lake Borgne acted to drive water into Lake Pontchartrain

(because of the water level difference between the two lakes). In addition to this

filling action, locally high winds in Lake Pontchartrain acted to tilt the water surface

in the lake, raising the water surface on the downwind side and lowering the water

surface on the upwind side of the lake. These same winds created high wave

conditions on the downwind side of the lake. Winds blew counterclockwise about

the hurricane’s eye, and the storm tracked to the east of Lake Pontchartrain. So as

the storm made landfall in Louisiana, tracked north, made final landfall again, and

then continued north into Mississippi, wind direction in Lake Pontchartrain

changed steadily (winds first from the east, then northeast, then from the north, then

northwest, and finally from the west). In response to this changing wind direction,

the region of maximum storm surge and high waves translated along the southern

half of the lake, moving from west to east.

SPX.0004 at IV-1617 (March 26, 2007 ARMY CORPS FINAL REPORT).

On August 29, 2005, around 6:00 a.m., Hurricane Katrina made landfall near Buras,

Louisiana, as a Category 3 hurricane, with maximum sustained surface winds of 100 knots (115

miles per hour). SPX.0004 at IV-16. Around 9:45 a.m., Katrina crossed the coastline at the border

of Mississippi and Louisiana, having weakened only slightly. SPX.0004 at IV-16. By 1:00 p.m.,

Katrina moved inland and was downgraded to a Category 2. SPX.0004 at IV-16. Throughout

landfall, the storm maintained “its large spatial extent.” SPX.0004 at IV-16.

Next, three breaches occurred on the west side of the IHNC canal: one breach at a railroad

line near Interstate 10; and two breaches in the floodwall and earth levees further south. SPX.0004

at IV-180. Water began entering low-lying land west of the IHNC early that morning. SPX.0004

26

at IV-186. Around 6:30 a.m., a small breach of the Seventeenth Street Canal floodwall occurred.

SPX.0004 at IV-172. A full breach occurred by around 9:00 a.m., when eyewitnesses reported a

rush of water. SPX.0004 at IV-170, IV-172. Floodwater reached six to seven feet near that breach.

SPX.0004 at IV-170.15 At that location, the Seventeenth Street floodwall water reached about

12.4 feet high. SPX.0004 at IV-172. Water in the Seventeenth Street Canal may have been only

about 7.3 feet in elevation at the time of the full breach, but eyewitnesses estimated that the water

elevation was closer to ten or eleven feet. SPX.0004 at IV-172; see also SPX.0004 at IV-194

(flooding in St. Bernard Parish and the Lower Ninth Ward came from two breaches along the

IHNC, “overtopping and numerous breaches along the GIWW and MRGO”); 12/6/11 Kemp Direct

at 36. At the IHNC Lock, the water level continued to rise one foot per hour between 11:00 p.m.

on August 28, 2005, and 9:00 a.m. on August 29, 2005, peaking at around 14.3 feet before 9:00

a.m. SPX.0004 at IV-33–34.

At this juncture, two specific levees within the LPV system become relevant. The first is

the Chalmette Levee, designed to protect St. Bernard Parish and the Lower Ninth Ward, that runs

along the southern side of Reach 1 and the west side of Reach 2, separating the MR-GO from the

Central Wetlands to the southwest. The Chalmette Levee then circles around the southern end of

St. Bernard Polder to meet up with the Mississippi River. The second is the New Orleans East

Back Levee that runs along the north side of Reach 1 of the MR-GO and the GIWW. The heights

of each of these levees ranged from 11.5 to 17.5 feet above mean sea level.16 12/6/11 Kemp Direct

at 159.

By 5:30 a.m. on August 29, 2005, flood water began entering the Lower Ninth Ward

through breaches in the IHNC floodwall. SPX.0004 at IV-196, IV-200. Water overtopped the

IHNC floodwall at around 7:30 a.m. SPX.0004 at IV-200. Flood levels in the St. Bernard Parish

and the Lower Ninth Ward eventually reached eleven feet. SPX.0004 at IV-200.

Floodwater also came from the Central Wetlands Unit east, as evidenced by the presence

of marsh grass on properties east of Paris Road around the Chalmette area. SPX.0004 at IV-199.

The interior Forty Arpent Levee, “was completely overtopped [at a 6.5 feet in height,] when

15

High-water marks (“HWMs”) occur where storm surge debris is left behind, indicating

the maximum floodwater height during the storm. SPX.0004 at IV-1718 (describing HWMs).

After Katrina, the United States Geological Survey, the Army Corps, the Federal Emergency

Management Agency, and the Louisiana State University identified approximately 790 HWMs.

SPX.0004 at IV-1819; see also id. at IV-1-180274 (Plate 1-1) (summarizing high water marks).

Approximately ninety-five of the HWMs were found to be the most reliable, because they were

measured on interiors that sheltered the storm water level from waves and wind-blown water

effects. SPX.0004 at IV-19. Hydrographs also can be used to measure water level over time, with

better accuracy and less bias, but most failed prior to Katrina’s peak. SPX.0004 at IV-18.

Photographs and visual observation, however, were used to make “constructed hydrographs.”

SPX.0004 at IV-18. Over 200 eyewitnesses were interviewed. SPX.0004 at IV-16465.

16

The developed portion of St. Bernard Polder averages 2.5 feet above mean sea level.

SPX.0029 at 13; 12/6/11 Kemp Direct at 38.

27

floodwaters from the MRGO flowed through breaches to fill the Central Wetlands beyond this

level.” 12/6/11 Kemp Direct at 36.

By August 29, 2005, around 8:25 a.m. water overtopped the Forty Arpent levee as a result

of breaches along the MRGO Reach 2 levees that occurred earlier that morning. 12/6/11 Kemp

Direct at 74; see also RPX1975, RPX2121 (videos showing flooding at the Forty Arpent Levee).

Simultaneously, floodwater also arrived in Chalmette, quickly inundating the area with

approximately ten feet of water. SPX.0004 at IV-199. By mid-morning, floodwaters from the

IHNC breaches to the west merged with the floodwaters from the Chalmette area to the east.

SPX.0004 at IV-199.

During Hurricane Katrina, the level of the GIWW/MRGO and IHNC intersection was

approximately 15 to 15.4 feet above normal, with similar levels experienced at the confluence

between the GIWW and MR-GO. SPX.0004 at IV-39. The surge along Reach 2 ranged from 16.5

to 21.7 feet. SPX.0004 at IV-40.

After Hurricane Katrina, approximately 70% of the MR-GO levee was breached; most of

those breaches occurred along Reach 2. SPX.0005 at V-115–16. The water from those breaches

entered the Central Wetlands Unit and subsequently flooded St. Bernard Parish. 12/6/11 Kemp

Direct at 87. As for the Lower Ninth Ward, “water originating in Lake Borgne traveled up the

MRGO, into the IHNC, and through the breached IHNC flood walls.” 12/6/11 Kemp Direct at 87.

On December 20, 2005, the National Hurricane Center summarized the flooding that

resulted from substantially increased storm surge during Hurricane Katrina as follows:

High water mark data . . . also indicate a storm surge of 15 to 19 ft occurred in

eastern New Orleans, St. Bernard Parish, and Plaquemines Parish, while the surge

was 10 to 14 ft in western New Orleans along the southern shores of Lake

Pontchartrain. Farther west, observations indicate a storm surge of 5 to 10 ft along

the shores of western Lake Pontchartrain. The surge severely strained the levee

system in the New Orleans area. Several of the levees and floodwalls were

overtopped and/or breached at different times on the day of landfall. Most of the

floodwall and levee breaches were due to erosion on the back side caused by

overtopping, but a few breaches occurred before the waters reached the tops of the

floodwalls. The surge overtopped large sections of the levees east of New Orleans,

in Orleans Parish and St. Bernard Parish, and it also pushed water up the

Intracoastal Waterway and into the Industrial Canal. The water rise in Lake

Pontchartrain strained the floodwalls along the canals adjacent to its southern shore,

including the 17th Street Canal and the London Avenue Canal. Breaches along the

Industrial Canal east of downtown New Orleans, the London Avenue Canal north

of downtown, and the 17th Street Canal northwest of downtown appear to have

occurred during the early morning on 29 August. Overall, about 80% of the city of

New Orleans flooded, to varying depths up to about 20 ft, within a day or so after

landfall of the eye.

SPX.0500 at 9.

28

The court was unable to determine the precise percentage of residences in St. Bernard

Parish and the Lower Ninth Ward that were severely damaged or destroyed by Hurricane Katrina,

but sources indicate that between 68% and 98% of homes were severely damaged or destroyed.

See, e.g., Hurricane Katrina Statistics Fast Facts, CNN, http://www.cnn.com/2013/08/23/us/

hurricane-katrina-statistics-fast-facts/ (last visited April 30, 2015); THE DATA CTR., CURRENT

HOUS. UNIT DAMAGE ESTIMATES, HURRICANE KATRINA, RITA, & WILMA at 25 (Feb. 12, 2006),

available at https://gnocdc.s3.amazonaws.com/reports/Katrina_Rita_Wilma_Damage_2_12_06

___revised.pdf (showing that 9,777 of 14,037, i.e., 70%, of owner-occupied housing and 13,695

of 20,229, i.e., 68%, of renter-occupied housing in St. Bernard Parish was classified as

“Severe/Destroyed”)17; THE DATA CTR., CURRENT HOUS. UNIT DAMAGE ESTIMATES, HURRICANE

KATRINA, RITA, & WILMA at 39 (Feb. 12, 2006), available at https://gnocdc.s3.amazonaws.

com/reports/Katrina_Rita_Wilma_Damage_2_12_06___revised.pdf (showing that 2,595 of

2,975, i.e., 87%, of owner-occupied housing and 4,679 of 5,701, i.e., 72%, of renter-occupied

housing in the Lower Ninth Ward was classified as “Severe/Destroyed”)18; CMTY. CTR. OF ST.

BERNARD PARISH, ANNUAL REPORT 2008, available at http://www.ccstb.org/images/annrep

2008.pdf (stating that “93% of homes in St. Bernard Parish were rated as ‘severely damaged’ or

‘destroyed’”); 12/6/11 Kemp Direct at 38 (estimating that flooding damaged 98% of all structures

in St. Bernard Parish and the Lower Ninth Ward). Properties in Delacroix and Yscloskey, outside

the federal levees, had to be torn down and rebuilt due to flooding. 12/12/11 TR 128–29 (Walsh).

On September 30, 2005, the Army Corps and the Louisiana Department of Natural

Resources issued a Project Management Plan recognizing the need “to investigate various

environmental restoration strategies requested in response to public concerns over the proposed

plan to stabilize the MRGO navigation channel[.]” SPX.01146 at 1-9.

A 2006 Senate Report on Hurricane Katrina concluded, as for the areas within the federal

levee system, that the MRGO:

contributed to a potential “funnel” for storm surges emerging from Lake Borgne

and the Gulf into the New Orleans area. . . . Prior to Hurricane Katrina, many

warned that the potential funnel would accelerate and intensify storm surges

emerging from Lake Borgne and the Gulf into the downtown New Orleans area.

The funnel had been described as a “superhighway” for storm surges or the

“Crescent City’s Trojan Horse” that had the potential to “amplify storm surges by

20 to 40 percent,” according to some storm modeling. Researchers at LSU believed

that in creating this funnel, “the US Army Corps of Engineers had inadvertently

designed an excellent storm surge delivery system—nothing less—to bring this

17

In St. Bernard Parish, an additional 3,906 owner-occupied residences were classified as

“Major Damage” and 286 as “Minor Damage” from flooding. And, 1,947 renter-occupied

residences were classified as “Major Damage” and 228 as “Minor Damage” from flooding.

18

In the Lower Ninth Ward, an additional 331 owner-occupied residences were classified

as “Major Damage” and 44 as “Minor Damage” from flooding. And, 515 renter-occupied

residences were classified as “Major Damage” and 109 as “Minor Damage” from flooding.

29

mass of water with simply tremendous ‘load’—potential energy—right into the

middle of New Orleans.”

SPX.0692 at 123–24 (footnotes omitted).

As for the immediately adjacent areas outside the federal levee system, where some of the

representative Plaintiffs’ properties were located,19 Plaintiffs’ expert, Dr. Kemp testified at trial:

Based on my observations and analysis, as well as my familiarity with the area

under consideration, I conclude that if the MRGO had not been constructed, the

areas in and around present-day Shell Beach, Yscloskey and Alluvial City would

not have been so exposed to wind-driven water under non-hurricane conditions.

Not only would the very wide and deep MRGO channel not exist, the buffering

wetlands that were destroyed or greatly reduced by the MRGO would still largely

be in place, as would the so-called Lake Borgne land bridge. In addition, Bayou

Yscloskey would have remained the dead-end tidal creek that it was prior to the

MRGO’s construction, and would not serve as the highly efficient hydraulic

connection between Lake Borgne and these communities that it has been in more

recent years.

12/6/11 Kemp Direct at 239–40.

19

Some of Plaintiffs’ properties in Shell Beach, Yscloskey and Alluvial City were close to

the expanded MR-GO channel and the retreating Lake Borgne shoreline. Near Shell Beach, the

MR-GO width expanded from 500 feet in 1965 to 1600 feet to date. 12/6/11 Kemp Direct at 235

(collecting sources).

30

12/6/11 Kemp Direct at 43 (fig 2.12) (limit of the Chalmette Levee).

F. After Hurricane Katrina, Storm Surge Continued To Cause Intermittent

Flooding, And The Army Corps Of Engineers Closed The Mississippi River

Gulf Outlet In July 2009.

On September 24, 2005, Hurricane Rita, a Category 3 storm, flooded significant portions

of the St. Bernard Polder a second time with an average elevation of five to six feet. NAT’L

WEATHER SERV. at 54–55 (describing the progression of Hurricane Rita). In addition, all of

Plaintiffs’ properties outside the levees flooded. 12/6/11 Kemp Direct at 254–59.

In 2006, Congress authorized the restoration of the hurricane protection system.

Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, Pub. L.

No. 109-148, 119 Stat. 2680, 2761–63 (2006); see also Emergency Supplemental Appropriations

Act, Pub. L. No. 109-234, 120 Stat. 418, 453–55 (2006).

As a result, the Hurricane and Storm Damage Risk Reduction System (“HSDRRS”)

recommended:

a perimeter of levees, floodwalls, pump stations, closure structures, [and] surge

barriers that provide storm damage risk reduction for the area interior to that

perimeter. In the greater New Orleans area the authorizations for construction of

this system were provided to build this to a level of risk reduction for a storm that

has a one percent annual probability of occurrence. In New Orleans it's comprised

of two distinct projects. The Lake Pontchartrain and Vicinity Project which is on

the east side of the Mississippi River, and of course the Mississippi River traverses

31

the city more or less in an east/west orientation, so it's the project features that you

see depicted on the map north of the river. Then on the west bank, the West Bank

and Vicinity Project, a similar perimeter of levees, floodwalls, pump stations, surge

barriers, and closure structures.

12/14/11 TR 862–63 (Park); see also DX-49, DX215 (HSDRRS Map as of Oct. 31, 2011).

The HSDRRS substantially increased the height of the levees surrounding St. Bernard

Polder to between 26 and 32 feet above mean sea level. 2/9/11 Gilmore Dep. 10. Shell Beach,

Yscloskey, Hopedale and Delacroix, however, are outside the perimeter of the HSDRRS. 12/14/11

TR 881–82 (Park).

On June 5, 2008, the Army Corps also decided to “deauthorize” the MR-GO. See 73 Fed.

Reg. 57340, 57341 (Oct. 2, 2008). On that same date, the Assistant Secretary of the Army for

Civil Works sent a Final MR-GO Deep-Draft De-authorization Report to Congress. Id.

On September 1, 2008, Hurricane Gustav made landfall in southeast Louisiana as a

Category 2 storm, with winds gusting to 117 miles per hour. NAT’L WEATHER SERV. at 10, 56. A

ten-foot surge overtopped some levees in New Orleans, but flooding was not widespread. NAT’L

WEATHER SERV. at 56. Minimal flooding occurred in St. Bernard Polder (inside the levees) except

near the IHNC floodwall (2414 Deslonde St. property). 12/6/11 Kemp Direct at 264. But, Gustav

caused flooding outside the levees, with a nine-foot surge at Shell Beach and a ten-foot surge at

Delacroix. 12/6/11 Kemp Direct at 265. As the Government expert further testified:

This Category 2 hurricane . . . threatened to once again flood New Orleans [and]

was important in waking the [Army Corps] to the true threat of the MRGO funnel.

One ship and two large barges broke loose in the IHNC and piled up on the railroad

bridge threatening to cause far worse overtopping of the newly refurbished IHNC

floodwalls. It was after this near tragedy that planning began in earnest for the

IHNC Surge Barrier.

12/6/11 Kemp Direct at 265; see also 12/13/11 TR 631–32 (Robin) (testifying that Gustav flooded

Mr. Robin’s property in Yscloskey with several feet of water).

The Government’s 2008 FEMA flood insurance studies predicted that “[d]amaged levees,

decimated wetlands, and the still-open MRGO have left the parish vulnerable to future storms.”

SPX.0423 at 3; see also id. (citing other risk analyses performed by FEMA and the Army Corps,

described at Pls. 4/13/12 Prop. FOF ¶¶ 396–406).

Two weeks later, on September 13, 2008, Hurricane Ike made landfall as a Category 1

storm. Dr. Kemp testified that Hurricane Ike resulted in an 8.5-foot surge at Delacroix. 12/6/11

Kemp Direct at 265; see also 12/13/11 TR 632 (Robin) (Hurricane Ike flooded Mr. Robin’s

property.).

32

After Hurricane Katrina other hurricanes and severe storms continued to generate storm

surge that repeatedly flooded all of Plaintiffs’ properties.20

In late July 2009, the Army Corps closed the MR-GO permanently. See U.S. ARMY CORPS

OF ENG’RS, MRGO NAVIGATION CHANNEL CLOSURE, http://www.mvn.usace.army.mil/Missions/

Environmental/MRGOEcosystemRestoration/MRGODeAuthorization.aspx (last visited Apr. 30,

2015) (“MR-GO CLOSURE”).

II. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. § 1491, “to render judgment upon any claim against the United States founded either upon

the Constitution, or any Act of Congress or any regulation of an executive department, or upon

any express or implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a

jurisdictional statute; it does not create any substantive right enforceable against the United States

for money damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of

Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392,

398 (1976).

Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and

plead an independent contractual relationship, Constitutional provision, federal statute, and/or

executive agency regulation that provides a substantive right to money damages. See

Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act

requires the litigant to identify a substantive right for money damages against the United States

separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.

2005) (en banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff

must identify a separate source of substantive law that creates the right to money

damages. . . . [T]hat source must be ‘money-mandating.’”). Specifically, a plaintiff must

demonstrate that the source of substantive law upon which he relies “can fairly be interpreted as

mandating compensation by the Federal Government[.]” United States v. Mitchell, 463 U.S. 206,

216 (1983) (quoting Testan, 424 U.S. at 400). And, the plaintiff bears the burden of establishing

jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,

846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisdiction [is] put

20

Specifically, after Hurricane Katrina, approximately sixteen percent of Plaintiffs’

properties, located within the federal levees and the Forty Arpent Levee in St. Bernard Parish and

the Lower Ninth Ward, flooded three times, thirty-nine percent flooded twice, and forty-five

percent flooded once, i.e. totaling 100%. 12/6/11 Kemp Direct at 266. One property, Paris Road

Shipyard, inside the federal levee but outside the Forty Arpent Levee, flooded during Hurricanes

Rita and Gustav. 12/6/11 Kemp Direct at 266. The Adams property nearest the IHNC floodwall

also flooded during Hurricane Rita. 12/6/11 Kemp Direct at 266. The overtopping of the IHNC

floodwall during Hurricane Gustav also flooded Plaintiffs’ properties in the area. 12/6/11 Kemp

Direct at 266.

33

in question . . . . [the plaintiff] bears the burden of establishing subject matter jurisdiction by a

preponderance of the evidence.”).

The court previously determined that it had jurisdiction to adjudicate the Fifth Amendment

Takings Clause claim alleged in Plaintiffs’ January 13, 2006 First Amended Complaint and

January 31, 2008 Second Amended Complaint. See Tommaseo I, 75 Fed. Cl. at 802–07; St.

Bernard Parish I, 88 Fed. Cl. at 545–49. In Tommaseo I, the court determined that it also had

subject matter jurisdiction, pursuant to the Tucker Act, to adjudicate claims alleged in the January

13, 2006 First Amended Complaint, but leave was granted to allow Plaintiffs to amend their

Complaint to specify when Plaintiffs became property owners and to show cause why Counts I

and III of the January 13, 2006 First Amended Complaint were not barred by the statute of

limitations for failure to specify the precise dates of the alleged takings. See Tommaseo I, 75 Fed.

Cl. at 803–07. In addition, Count II of the January 13, 2006 First Amended Complaint was

dismissed as not ripe for adjudication, because the MR-GO was not closed. See id. at 803. But,

Plaintiffs could refile if and when the MR-GO closed. See id. In St. Bernard Parish I, the court

denied: the Government’s Motion For Summary Judgment on statute of limitations grounds,

because the stabilization doctrine applied, delaying the accrual of Plaintiffs’ claims; and the

Government’s Motion To Dismiss, pursuant to RCFC 12(b)(6), for failure to state a claim upon

which relief can be granted, because Plaintiffs’ January 31, 2008 Second Amended Complaint and

the record established the plausibility of Plaintiffs’ claims. See St. Bernard Parish I, 88 Fed. Cl.

at 552–59. In addition, the court dismissed Paragraph 48 of Count I of Plaintiffs’ January 31, 2008

Second Amended Complaint that “request[ed] ‘lost benefits’ and ‘profits’ of Plaintiffs’

‘commercial ventures,’” because “[t]he Just Compensation Clause only affords a financial remedy

for property loss caused by the physical taking of private property.” 88 Fed. Cl. at 549 (citations

omitted).21

On July 6, 2011, Plaintiffs filed a Third Amended Complaint that also pled a Fifth

Amendment Takings Clause claim. See U.S. CONST. amend. V (“[P]rivate property [shall not] be

taken for a public purpose, without just compensation.”); see also Ark. Game & Fish

Comm’n v. United States, 133 S. Ct. 511, 519 (2012) (“[T]akings temporary in duration can be

compensable.”); id. at 522 (“We rule today, simply and only, that government-induced flooding

temporary in duration gains no automatic exemption from Takings Clause inspection.”).

Accordingly, the court has determined that it has jurisdiction to adjudicate the Takings

Clause claim in Plaintiffs’ July 6, 2011 Third Amended Complaint.

B. Standing.

Article III standing is a jurisdictional prerequisite that the court must ascertain, even if not

raised by the parties. See Fuji Photo Film Co. v. Int’l Trade Comm’n, 474 F.3d 1281, 1289 (Fed.

Cir. 2007) (“Because Article III standing is jurisdictional, this court must consider the issue sua

21

In its April 13, 2013 Post-Trial Brief, the Government argued that the court did not have

jurisdiction to adjudicate Plaintiffs’ July 6, 2011 Third Amended Complaint, because: Plaintiffs

did not prove that any alleged flooding was the direct, natural, or probable result of the MR-GO.

Gov’t 4/13/12 Br. at 24–36. But, these arguments go to the merits and thus are addressed below.

34

sponte[.]”). The United States Supreme Court has instructed that the plaintiff has the burden to

establish three elements before a federal trial court may adjudicate an alleged takings claim. First,

“‘injury in fact,’ by which we mean an invasion of a legally protected interest that is ‘(a) concrete

and particularized, and (b) actual or imminent, not conjectural or hypothetical[.]’” Ne. Fla.

Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663 (1993) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Second, “a causal relationship between

the injury and the challenged conduct[.]” Id. Third, “a likelihood that the injury will be redressed

by a favorable decision, by which we mean that the ‘prospect of obtaining relief from the injury as

a result of a favorable ruling’ is not ‘too speculative.’” Id. at 663–64 (quoting Allen v. Wright, 468

U.S. 737, 752 (1984)). “These elements are the ‘irreducible minimum’ required by the

Constitution.” Id. at 664 (quoting Valley Forge Christian Coll. v. Americans United for Separation

of Church & State, Inc., 454 U.S. 464, 472 (1982)).

The court previously determined that “the January 31, 2008 Second Amended

Complaint . . . alleged sufficient facts to establish standing, as each of the[] Plaintiffs owned

property in St. Bernard Parish or the Ninth Ward of the City of New Orleans that has experienced

severe flooding in 2005 and intermittent reoccurring flooding fairly traceable to the construction,

operation (expansion), or maintenance (dredging) of the MR-GO, and a favorable decision will

redress injury from the flooding.” St. Bernard Parish I, 88 Fed. Cl. at 548. The Plaintiffs identified

in Plaintiffs’ January 31, 2008 Second Amended Complaint and July 6, 2011 Third Amended

Complaint are identical, and the parcels of representative Plaintiffs are substantially similar.

Compare 2nd Am. Compl. ¶¶ 2 (Representative Plaintiffs), 15–45 (properties of representative

Plaintiffs), with 3rd Am. Compl. ¶¶ 2 (Representative Plaintiffs), 15–45 (properties of

representative Plaintiffs).22

For these reasons, the court has determined that Plaintiffs’ July 6, 2011 Third Amended

Complaint alleges sufficient facts to establish standing, as each owned property in St. Bernard

Parish or the Ninth Ward of the City of New Orleans that was flooded during Hurricane Katrina

in 2005 and experienced intermittent flooding fairly traceable to increased storm surge resulting

from the construction, expansions, operation, and failure to maintain the MR-GO, and a favorable

decision will redress injury from the flooding.

22

One hundred four properties identically are listed in both the January 31, 2008 Second

Amended Complaint and July 6, 2011 Third Amended Complaint. In addition, eighteen properties

are identified in the January 31, 2008 Second Amended Complaint, but not in the July 6, 2011

Third Amended Complaint. Thirteen properties are identified in the July 6, 2011 Third Amended

Complaint, but not in the January 31, 2008 Second Amended Complaint. Eleven properties are

identified in both the January 31, 2008 Second Amended Complaint and the July 6, 2011 Third

Amended Complaint, but the individual registered owner changed. Compare 2nd Am. Compl.

¶¶ 15–45 (properties of representative Plaintiffs), with 3rd Am. Compl. ¶¶ 15–45 (properties of

representative Plaintiffs). In sum, the January 31, 2008 Second Amended Complaint lists a total

of 133 properties, whereas the July 6, 2011 Third Amended Complaint lists a total of 128

properties.

35

C. Admissibility And Weight Of Witness Testimony.

1. Lay Witness Testimony.

According to the Government, causation in complex flooding cases requires the court to

rely primarily, if not exclusively, on the testimony of experts instead of lay witnesses. Gov’t

4/13/12 Br. 37 (citing Hendricks v. United States, 14 Cl. Ct. 143, 149 (1987) (“Causation of

flooding is a complex issue which must be addressed by experts.”); Loesch v. United States, 227

Ct. Cl. 905, 914 (1981) (observing that expert testimony “is particularly appropriate” where “the

trier of fact is presented with evidence of a highly technical nature involving geotechnical,

hydrologic, hydraulic, geological and climatic matters”)). Lay testimony should receive “little

weight in determining causation” in flooding cases. Gov’t 4/13/12 Br. 37 (quoting Alost v. United

States, 73 Fed. Cl. 480, 495 (2006), aff’d, 25 F. App’x 823 (Fed. Cir. 2007)); see also

Leeth v. United States, 22 Cl. Ct. 467, 486–87 (1991) (“While a lay person merely through

observation can identify that a backwater effect is occurring at a particular point, the source of that

effect cannot be identified by that lay person because it would ‘look the same’ regardless of its

cause.”).

The Government overstates relevant caselaw. It is true that the Court of Claims in

Hendricks observed that “[c]ausation of flooding is a complex issue which must be addressed by

experts,” but it elaborated, in the very next sentence, that “the bulk of the lay testimony is accorded

very little weight in the court’s decision of the legal issues.” See 14 Cl. Ct. at 149 (emphasis

added). As such, the Court of Claims did not endorse the concept that only experts could proffer

relevant evidence of causation, instead that lay evidence is not dispositive of legal issues.

It is also true that the United States Court of Federal Claims determined, in Alost, that the

lay evidence presented in that case was “entitled to little weight.” 73 Fed. Cl. at 495. But, the

only evidence presented in that case was adduced from lay witnesses with little knowledge about

the history of flooding in that case. Id. In this case, the record includes a plethora of Government

and academic reports and studies and expert testimony. In addition, the record includes extensive

testimony of lay witnesses who were intimately familiar with the history of flooding in the area

and were able to share their first-hand observations about the adverse environmental conditions

created by the construction, expansions, operation, and failure to maintain the MRGO and

substantially increased storm surge during Hurricane Katrina and subsequent hurricanes and severe

storms that repeatedly flooded Plaintiffs’ properties.23For these reasons, the court rules that the lay

testimony in this case, though not dispositive, is relevant and probative.

23

The court would be remiss if it did not state that it was not impressed with the

Government’s attempt to belittle and trivialize the “lay” testimony of Louisiana natives with first-

hand knowledge of the ecology of the area, equal to if not more relevant than that of an expert.

For example, Mr. Robin has been a commercial fisherman and observed marsh ecology since he

was a child. 12/13/11 TR 591, 610–13, 615–16, 64748 (Robin). Likewise, Mr. Estopinal, a local

resident, land surveyor, and civil engineer, was competent to testify about the adverse

environmental impact of the construction, expansions, operation, and failure to maintain the MR-

GO. 12/12/11 TR 75–77, 80–83, 8990, 109 (Estopinal).

36

2. Expert Witness Testimony.

The Government also argues that the United States Court of Claims previously has rejected

expert testimony about flooding and erosion, where the expert “failed to give reasonable

consideration to other clearly shown possibilities.” Gov’t 4/13/12 Br. 39 (quoting Loesch, 227 Ct.

Cl. at 915). Therefore, absent “supportive empirical data and study,” the expert’s “opinion . . . was

not very helpful to the trier of fact.” Testifying as to the existence of a temporal relationship does

not establish causation, and therefore, courts have rejected “this type of post hoc ergo propter hoc

(literally, ‘after this, therefore because of this’)” reasoning as a “logical fallacy.” Gov’t 4/13/12

Br. 39 (citing Loesch, 645 F.2d at 914).

The Government does not cite to a single case holding that causation cannot be established

without expert modeling. And, as the trial court in Ark. Game & Fish aptly observed, computer

modeling is not the only or, even, the best form of expert analysis. See 87 Fed. Cl. at 628 (“[T]he

fact that the model was ‘very reliable and more accurate than [other] simulation models’ and

offered output that was ‘far better than what you would typically expect from river modeling’ does

not indicate that results from its use should be employed to displace actual observations.”) (internal

quotation marks omitted); see also 12/13/11 TR 574 (Kemp) (stating that the hydrologic influence

of the MR-GO was obvious through observation alone).

In this case, Plaintiffs proffer the expert testimonies of: Dr. G. Paul Kemp (12/6/11 Kemp

Direct 1–272 & Exs. 1–8; 12/12/11 TR 188–399; 12/13/11 TR 400–582); and Dr. Joseph N.

Suhayda (12/6/11 Suhayda Direct 1–32; 12/13/11 TR 657–798; 12/14/11 TR 799–836). The

Government proffers the expert testimonies of: Dr. Louis D. Britsch III (12/8/11 Britsch Direct 1–

31; 12/14/11 TR 892–995); and Donald T. Resio (12/8/11 Resio Direct 1–43; 12/14/11 TR 996–

1199). As more fully explained in the court’s May 1, 2015 Memorandum Opinion And Final

Order On Evidentiary Issues, the court rules that Drs. Kemp, Suhayda, Britsch, and Resio are all

qualified as expert witnesses and that their testimony: “will help the trier of fact to understand the

evidence”; “is based on sufficient facts or data”; “is the product of reliable principles and

methods”; and “the expert has reliably applied the principles and methods to the facts[.]” FED. R.

EVID. 702.

For these reasons, the court rules that the expert testimony in this case, though not

dispositive, is relevant and probative.

D. Plaintiffs Established That The Army Corps Of Engineers’ Construction,

Expansions, Operation, And Failure To Maintain The Mississippi River Gulf

Outlet Effected A Temporary Taking By Increased Storm Surge And Flooding

Of Plaintiffs’ Properties During Hurricane Katrina And Subsequent

Hurricanes And Severe Storms.

The June 7, 2011 Third Amended Complaint alleges at Count II a “temporary taking of

property.” 6/7/11 Third Am. Compl. ¶¶ 5355.

The Takings Clause of the Fifth Amendment to the United States Constitution provides

that “private property [shall not] be taken for public use, without just compensation.” U.S. CONST.

amend. V. “[I]t is most reasonable to construe the reference to ‘private property’ in the Takings

37

Clause . . . as encompassing the property of state and local governments when it is condemned by

the United States. Under this construction, the same principles of just compensation presumptively

apply to both private and public condemnees.” United States v. 50 Acres of Land, 469 U.S. 24, 30

(1984).

Whether a compensable taking has occurred requires the court to resolve “a question of

law based on factual underpinnings.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)

(citations omitted). In Arkansas Game & Fish, the United States Supreme Court held that where

a temporary taking is alleged, as in this case, plaintiffs must establish: (1) a protectable property

interest under state law; (2) the character of the property and the owners’ “reasonable-investment

backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality. See 133 S. Ct. at

52223.

1. Plaintiffs Established That They Held Protectable Property Interests

Recognized Under Louisiana Law.

The Third Amended Complaint alleges that Plaintiffs in this case have real property

interests in fee ownership under Louisiana law. 6/7/11 3rd Am. Compl. ¶¶ 1519, 25, 29, 3031,

3336, 38, 4042, 4345.

To maintain an action for a compensable taking under the Fifth Amendment, Plaintiffs

must show that they have a protectable property interest under state law. See Phillips v. Wash.

Legal Found., 524 U.S. 156, 164 (1998) (“Because the Constitution protects rather than creates

property interests, the existence of a property interest is determined by reference to ‘existing rules

or understandings that stem from an independent source such as state law.’”) (quoting Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).

Section 1 of Title 19, Part I of the Louisiana Revised Statute, governing expropriation

states: “As used in this part, the term ‘property’ means immovable property, including servitudes

and other rights in or to immovable property.” LA. REV. STAT. ANN. § 19:1 (1975).

Title 33 further provides that:

“Owner” is defined as any person with care, custody, or control of the property at

issue, including but not limited to record owners, seizing creditors, mortgage

holders, lien holders, loan servicers of foreclosed property pending title transfer, or

an agent of assignee of the seizing creditor, mortgage holders, lien holders, or loan

servicer.

LA. REV. STAT. ANN. § 33:5066(5) (2012).

At trial, Plaintiffs presented evidence that each had an ownership interest in “property,” as

defined by the Louisiana Revised Statute. See Court Exhibit B.

For these reasons, the court has determined that Plaintiffs established that they held

protectable property interests, recognized under Louisiana law.

38

2. Plaintiffs Established That, Based On The Character Of Their

Property Interests, They Had “Reasonable Investment-Backed

Expectations.”

Plaintiffs’ properties consisted of vacant land, modest personal residences, and small

businesses. Court Exhibit B; see also 3rd Am. Compl. ¶¶ 15–45.

In a temporary takings case concerning flooding, a property owner’s “reasonable

investment-backed expectations” necessarily must consider knowledge of any prior flooding. See

Ark. Game & Fish, 133 S. Ct. at 521 (“Flooding cases like other takings cases, should be assessed

with reference to the ‘particular circumstances of each case[.]’”).

The Government argues that Plaintiffs were aware of the risks of owning property in a

floodplain after Hurricane Betsy on September 19, 1965 and:

were aware of significant ecological changes in the St. Bernard region almost

immediately after construction of the MRGO began. . . . Whatever the impact on

the environment generally, Plaintiffs’ own testimony proves that, during the period

between the completion of the MRGO and Hurricane Katrina, the LPV protected

Plaintiffs’ properties within the levee system from flooding.

Gov’t 4/13/12 Br. 7–8 (citing SPX.0704 at 66 (COASTAL ENV’TS, INC., ENVTL. BASELINE STUDY

(Oct. 1972) (“1972 BASELINE STUDY”) (stating that the “MRGO has introduced higher salinities

into the study area” and reporting that “[t]estimony of parish residents reveals that most of the

swamp has died since the construction of the MRGO”)).

Although the Army Corps represented to the public that their properties were protected by

the LPV that was constructed after Hurricane Betsy, the public “was not informed about the

flooding risks that the selection of the SPH [Standard Project Hurricane] as a basis for design

implied [and] . . . the SPH . . . . was not revised as knowledge improved after the 1960s.” SPX.0027

at 12-13 (July 31, 2006 ILIT Report); see also SPX.0029 at 98 (“Clearly, by 1972, at a relatively

early stage in the construction of the GNO HPS [Greater New Orleans Hurricane Protection

System], the SPH used as a basis for design was obsolete.”); RDX-377 at 1 (Dec. 1982 USACE

Project Reevaluation Study) (noting that the draft reevaluation study did not emphasize the

“catastrophic flooding potential of the area”); 12/14/11 TR 1039–40 (Resio) (explaining that the

current estimates of 100-year surge level far surpass the estimates used for the old SPH); 12/6/11

Kemp Direct at 268 (same).

In this case, as in Arkansas Game & Fish, although Plaintiffs’ properties were in a

floodplain and “had experienced flooding in the past,” that flooding was not “comparable” to the

flooding during Hurricane Katrina and subsequent hurricanes and severe storms giving rise to the

temporary takings claim at issue. See 133 S. Ct. at 522.

For these reasons, the court has determined that Plaintiffs established that they had

“reasonable investment-backed expectations” concerning the use and value of their vacant land,

modest personal residences, and small businesses.

39

3. Plaintiffs Established That It Was Foreseeable To The Army Corps Of

Engineers That The Construction, Expansions, Operation, and Failure

To Maintain The Mississippi River Gulf Outlet Would Substantially

Increase Storm Surge During Hurricanes And Other Severe Storms

And Cause Flooding.

In Arkansas Game & Fish, the United States Supreme Court held that “relevant to the

taking inquiry is the degree to which the [government’s] invasion is intended or the foreseeable

result of government action.” See 113 S. Ct. at 522 (citing John Horstman Co. v. United States,

257 U.S. 138 (1921). Furthermore, the United States Court of Appeals for the Federal Circuit held

on remand that “[i]n order for a taking to occur it is not necessary that the [G]overnment intend to

invade the property owner’s rights, as long as the invasion that occurred was ‘the foreseeable or

predictable result’ of the [G]overnment’s actions.” 736 F.3d at 1372 (citing Moden v. United

States, 404 F.3d 1335, 1343 (Fed. Cir. 2005) (“[W]e conclude that . . . [plaintiffs] must point to

some evidence . . . with regard to whether the [alleged Fifth Amendment taking] was the

foreseeable or predictable result of [the Government’s actions].”); see also Ridge Line

Inc. v. United States, 346 F.3d 1346, 1356 (Fed. Cir. 2003) (“[S]ince [the plaintiff] does not allege

that the [G]overnment intentionally appropriated its property, on remand the court must first

determine whether [the plaintiff] proved that the increased storm runoff was the direct, natural, or

probable result of the [Government’s action], rather than merely an incidental or consequential

injury, perhaps compensable as a tort[.]”).

a. Because Of Increased Salinity.

By 1958, the Army Corps was aware of the adverse effects of salt water on freshwater

wetlands and predicted that “[t]he excavation of a channel 36 feet deep, 500 feet wide, and over

70 miles long . . . through the Lake Borgne marshes and shallow inlets of Chandeleur

Sound . . . could result in a major ecological change of the area.” RDX-1685 at 24. The Army

Corps also knew of the risk posed by the destruction of the land bridge separating the MR-GO

from Lake Borgne that would allow higher saline water to move inland. 2005 ARMY CORPS DRAFT

STUDY at 1-15 (“Changes in salinity and water circulation in the Lake Pontchartrain Basin caused

by the MRGO have increased the rate of wetland loss in the area, and these changes to geomorphic

structure in this part of the Deltaic Plain would increase the storm surge of hurricanes and tropical

storms that impact this area of coastal Louisiana.”); 12/6/11 Kemp Direct at 239–40.

b. Because Of Increased Habitat/Wetland Loss.

The fact that the Army Corps was aware that the construction, expansions, operation, and

failure to maintain the MR-GO caused adverse environmental impacts, and that those “adverse

impacts on the regional environment and ecology” could result in substantial increased storm surge

during hurricanes and severe storms, is well documented in this record. See, e.g., RDX-1685 at

24 (prior to the construction of the MR-GO, the Army Corps was aware that it “could result in a

major ecological change of the area”); RPX0699 (September 1958 Army Corps Memorandum);

SPX.0129 at MRGO 12, PDF 362 (Army Corps study stating “The data indicates that land loss

rates have accelerated since 1990 and that the rate of wetlands loss now exceeds the rates

experienced in the area during the period of MRGO channel construction.”).

40

c. Because Of Increased Erosion.

Army Corps documents evidence that, as early as 1959, it was aware that foreshore

protection was required to prevent erosion of the MR-GO’s banks (RPX0699 at 5 (1959 Army

Corps Memorandum); SPX.0241 (1983 Army Corps form)), but instead the Army Corps

recommended expanding the MR-GO without channel protection to prevent the erosion:

No channel protection is recommended initially, however, erosion due to wave

wash in open areas can be expected in the upper part of the channel slope where the

peat and highly organic clay are exposed. Protection for this area can be provided

if and when the need for it becomes necessary. . . . It is presumed that sufficient

rights of way will be furnished by local interests to preclude use of channel

protection or that additional rights of ways will be furnished when the need arises.

SPX.0213 at 7 (1957 Army Corps Memorandum).

After construction of the MRGO in 1968, the banks eroded at an estimated twenty-seven

to thirty-eight feet per year on the Inland Reach. 2008 ARMY CORPS REPORT at vi. Between 1964

and 1996, 5,324 additional acres of marsh adjacent to the MRGO were lost. 2008 ARMY CORPS

REPORT at vi. The Army Corps had to construct additional project features to stabilize the banks.

2008 ARMY CORPS REPORT at vi. By 2006, the MR-GO had expanded well beyond its authorized

parameters:

The MRGO bar channel authorized depth is 38 ft; the authorized bottom width is

600 ft. The remainder of the channel has an authorized depth of 36 ft and an

authorized bottom width of 400 or 450 ft, depending on location. Due to ship wave

erosion, the surface width of the channel has increased since its construction at a

rate of up to 15 ft per year. The additional eroded open water typically has a depth

of six feet or less. Therefore, even an additional 1000 feet of open water adds no

more than 6000 square feet of conveyance, about a 21% increase over the

authorized channel (assuming the channel is 40 feet deep, has a 600 ft wide dredged

bottom and a 1 to 3 side slope).

2006 WESTERINK NOTE at 1-3 (internal references omitted).

41

Pls. 2/9/09 S.J. Ex. 12 at iv.

By 1984, the Army Corps concluded:

Construction of the MR-GO has accelerated the natural changes occurring in the

St. Bernard Parish wetlands near Lake Borgne. . . . Wind- and wave-generated

erosion is also steadily widening the MR-GO. Because of this expansion, the east

bank along Lake Borgne is dangerously close to being breached. Once the bank is

breached, development to the southwest [i.e., the communities in which Plaintiffs’

properties are located] would be exposed to direct hurricane attacks from Lake

Borgne.

RPX1639 at 7 (U.S. ARMY CORPS OF ENG’RS, LA. COASTAL AREA: SHORE & BARRIER ISLAND

EROSION (1984)).

The Army Corps’ policy was to allow bank erosion of the MR-GO to continue unabated.

See RPX2082 at 2 (restating the Army Corps’ “long standing policy against repairing bank

erosion”); see also SPX.0241 (In 1983, the Army Corps decided to defer “erosion protection to

allow for future widening” of MR-GO.). Consequently, by 2004, one year prior to Hurricane

Katrina, the majority of the banks of the MR-GO were unprotectable. RPX0716 at 5 (2004 Fact

Sheet) (“[T]he MRGO banks remain unlined with protection.”).

d. Because Of Increased Storm Surge.

Increased salinity, increased habitat/wetland loss, and increased erosion of the MR-GO’s

banks cumulatively contributed to increased storm surge. In February 1967, the Army Corps

considered, but rejected as too costly, an alternative plan for the flood protection system that would

have closed off the mouth of the funnel. RPX1030 (map showing rejected alternate plan); 12/6/11

Kemp Direct at 245 (comparing the rejected alternate plan to the 100-year protection plan).

42

The Government is correct that knowledge of potential storm surge is not necessarily

knowledge of potential flooding. Gov’t 4/13/12 Br. 27. But, the trial court in Arkansas Game &

Fish rejected the same argument. See 87 Fed. Cl. 594, 621 (2009) (the fact that the Army Corps

initially did not know that “increased river levels caused by deviations from the water control plan

would cause additional flooding” on plaintiff’s timber land was not dispositive of foreseeability).

As Arkansas Game & Fish recognized, foreseeability is measured by an objective standard of what

the Government should have known. See id. (“The question thus presented becomes whether such

flooding should have been foreseen, based, for instance, on information that the Corps had or could

have gathered[.]”).

e. Because Of The “Funnel Effect.”

The funnel effect caused by the MR-GO further exacerbated the increased storm surge that

resulted from Hurricane Katrina. Around September 3, 1957, the St. Bernard Tidal Channel

Advisory Committee warned the Army Corps and the public-at-large that “[d]uring times of

hurricane conditions, the existence of the [MR-GO] will be an enormous danger to the heavily

populated areas of the Parish due to the rapidity of the rising waters reaching the protected areas

in full force through the avenue of this proposed channel.” RDX-1145. In 1965, after Hurricane

Betsy, a similar warning was published in the Federal Register by the Citizens Committee for

Hurricane Flood Control. RPX0006 at 3.

In response, the Army Corps developed a plan to build a levee to block the funnel opening.

RPX1030 (“Alternate Plan C”); see also 1966 ARMY PLAN at 123 (“Storm surge may also be

increased, particularly in coastal areas, by a funneling effect in converging open bay mouths.”).

On November 24, 1965, the Citizens Committee for Hurricane Flood Control wrote a letter

to the Army Corps requesting action to avoid the type of flooding experienced with Hurricane

Betsy and recommending that the Army Corps construct flood gates on the Intercostal Waterway,

Bayou Bienvenue, Gulf Outlet, instead of a proposed levee that “would form a funnel, channeling

all hurricane surges and wind driven water in the Intercostal Waterway and Industrial Canal[.]”

RPX0006 at 3.

In 1966, the Army’s Coastal Engineering Research Center also conducted a study

observing that storm surge depends on

the wind velocity, the distance over which it blows, the wind direction, and the

water depth. Storm surge is greater in lesser depths, and this is the reason for the

generally greater values of storm surge along the Gulf Coast[.] Storm surge

may . . . be increased, particularly in coastal areas, by a funneling effect in

converging open bay mouths.

1966 ARMY PLAN at 123; 2006 WESTERINK NOTE at 2 (“A portion of the levee protecting St.

Bernard Parish/Chalmette and the portion of the hurricane protection levee along the south side of

Orleans East Parish, north of the GIWW, form the ‘funnel’ that is often referenced.”).

43

A 2006 Senate Report on Hurricane Katrina concluded, concerning the areas within the

federal levee system, that the MRGO:

contributed to a potential “funnel” for storm surges emerging from Lake Borgne

and the Gulf into the New Orleans area. . . . Prior to Hurricane Katrina, many

warned that the potential funnel would accelerate and intensify storm surges

emerging from Lake Borgne and the Gulf into the downtown New Orleans area.

The funnel had been described as a “superhighway” for storm surges or the

“Crescent City’s Trojan Horse” that had the potential to “amplify storm surges by

20 to 40 percent,” according to some storm modeling. Researchers at LSU believed

that in creating this funnel, “the US Army Corps of Engineers had inadvertently

designed an excellent storm surge delivery system—nothing less—to bring this

mass of water with simply tremendous ‘load’—potential energy—right into the

middle of New Orleans.”

SPX.0692 at 123–24 (footnotes omitted).

* * *

For these reasons, the court has determined that it was foreseeable to the Army Corps that

the construction, expansions, operation, and failure to maintain the MR-GO would increase

salinity, increase habitat/land loss, increase erosion, and increase storm surge that could be

exacerbated by a “funnel effect” and likely cause flooding of Plaintiffs’ properties in a hurricane

or severe storm. See Ark. Game & Fish, 133 S. Ct. at 522.

4. Plaintiffs Established A Causal Link Between The Army Corps Of

Engineers’ Construction, Expansions, Operation, And Failure To

Maintain The Mississippi River Gulf Outlet And Significant Increase

In Storm Surge And Flooding During Hurricane Katrina And

Subsequent Hurricanes And Severe Storms That Flooded Plaintiffs’

Properties.

a. Because Of Increased Salinity.

The adverse effect of salt water on freshwater wetland vegetation in the New Orleans area

concerned the academic community well before the construction of the MR-GO. See W.T.

Penfound & E.S. Hathaway, PLANT COMMUNITIES IN THE MARSHLANDS OF SOUTHEASTERN

LOUISIANA, ECOLOGICAL MONOGRAPHS (1938)); see also AUDUBON EDUCATOR’S GUIDE at 4

(“When saltwater reaches a freshwater habitat, it burns the freshwater plants which are intolerant

of the saltwater. The saltwater kills the existing plants, causing the soils to become loose and wash

away. This process can also convert what was once a freshwater swamp into a saltwater marsh.”).

In 1962, an Army Corps Report stated that the MR-GO “provides a deep direct route for

the inflow of saline currents from the Gulf of Mexico to the area along its channel and to Lake

Pontchartrain[.]” RJX0278 (ARMY CORPS INTERIM SURVEY REPORT, LAKE PONTCHARTRAIN, LA.

& VICINITY (Nov. 21, 1962)).

44

A 1966 report also suggested that, “[b]ecause of its size, 500 feet wide by 36 feet deep, the

[MRGO] channel will become a major avenue for intrusion of salt water into the marshlands and

waters which it traverses.” RPX0818 (LEROY W. GILES, MISS. BUREAU OF SPORT FISHERIES &

WILDLIFE, RELATIONSHIP OF VEGETATION TO SALINITY IN A SE. LA. COASTAL MARSH (1966)).

An October 1972 environmental baseline study conducted by Dr. Sherwood Gagliano,24

for St. Bernard Parish was one of the first to discuss the increased salinity resulting from the MR-

GO:

A change in water regime seems to be the main cause of deterioration [in freshwater

swamps along MRGO]. . . . The MRGO has introduced higher salinities into the

study area. . . . Thus, it can be expected that the brackish water zone has been

moved into the area that was once fresh swamp and the trees have died. Testimony

of parish residents reveals that most of the swamp has died since the construction

of the MRGO and tends to support this theory.

1972 BASELINE STUDY at 66.

By 1981, the MR-GO provided a “more direct flow of higher salinity, stratified water

inland toward areas of St. Bernard and Orleans Parishes.” 2008 ARMY CORPS REPORT at xiii (citing

WICKER et al. 1981).

The following chart shows salinity measurements during the period when the MR-GO was

being constructed and afterwards:

Yearly Average Salinity (ppt)25 Pre- and Post-MRGO’s Construction

Pre-MRGO Post-MRGO

Station 1959–1961 1962–1964 2001

Bayou Bienvenue 1.62 10.0 8.0

Bayou Dupre 2.39 7.8 9.3

Shell Beach 3.50 11.8 -

Hopedale 4.50 13.0 -

Bayou La Loutre 5.50 13.5 14.1

Lake Athansio 14.20 21.5 -

Lake Fortuna 16.80 21.5 -

2010 DRAFT EIS at 3-32 tbl. 3-13; see also 12/13/11 TR 616, 623 (Robin) (Mr. Robin is a local

oyster farmer who observed salinity levels changes).

24

Dr. Gagliano, P.E., Ph.D, is President of Coastal Environments, Inc. He earned his B.S.,

M.S., and Ph.D from Louisiana State University.

25

The acronym “ppt” stands for “parts per thousand.”

45

The impact of the MR-GO on salinity also is evidenced by the decrease of salinity from

thirty-two percent to sixty-six percent after the Army Corps closed the MR-GO in 2008–2011.

Yearly Average Salinity (ppt) Pre- and Post-MRGO’s Closure

Location Pre-Closure Post-Closure % Change

Bayou La Loutre 17.01 8.87 48%

Lake Borgne 8.16 5.62 32%

Central Wetlands 14.67 5.26 64%

GIWW 14.72 5.07 66%

Lake Pontchartrain 6.12 4.01 35%

2010 DRAFT EIS at 3-33 tbl. 3-14; see also 1972 BASELINE STUDY at 90 (comparing monthly

salinity ranges at Hopedale before and after the construction of the MR-GO, using 19571967

Army Corps data); see also 1972 BASELINE STUDY at 91 (comparing monthly salinity ranges at the

Paris Road Bridge before and after the construction of the MR-GO, using 19481967 Army Corps

data).

These Army Corps documents show that salinity increased substantially in the wetlands in

and surrounding the New Orleans Polder after the Army Corps’ construction, expansion, operation,

and failure to maintain the MR-GO. They also show a significant decrease in salinity after the

MR-GO was closed.

An Army Corps December 2010 draft Environmental Impact Statement also recognized

that “since construction of the MRGO, circulation patterns have been altered along its length in

areas from Breton Sound north to Lake Pontchartrain. The MRGO acted as a direct passage for

tidal exchange, allowing a more direct flow of higher-density saline water inland.” 2010

FEASIBILITY REPORT at 2-10. In sum, the decline of wetlands and swamp accelerated after the

construction of MR-GO, in “response to changing salinity regimes (salt water intrusion) and

hydrology (impoundment).” RJX-195 at 4-2 (7/11/08 Expert Report of Duncan FitzGerald); see

also 12/14/11 TR 937 (Britsch26) (“I do agree that [the central wetlands unit] became more salty

after the construction of the MRGO.”); 12/14/11 TR 964 (Britsch) (“I don’t disagree that the

salinity increased due to the MRGO channel.”).

26

Dr. Louis D. Britsch, III is a geologist who manages the Geology Unit of the New

Orleans District of the United States Army Corps of Engineers. He obtained his B.S. in Geology

from Nicholls State University, his M.S. in Geology from Tulane University, and his Ph.D in

Coastal Geology from the University of New Orleans. He has worked for the Army Corps for the

past twenty-seven years. See 12/8/11 Britsch Direct at 1.

46

For these reasons, the court has determined that Plaintiffs established a causal link between

the construction, expansions, operation, and failure to maintain the MR-GO with increased

salinization in the New Orleans Polder.

b. Because Of Increased Habitat And Wetland Loss.

The following table lists the different types of habitats and wetlands that exist within

certain salinity ranges.

Habitat And Wetlands By Salinity Range.27

Habitat/ Salinity Description

Wetlands

Swamp 0–3 Forested coastal wetlands in the study area are dominated by bald cypress

and water tupelo, which are the remnants of extensive logging of virgin

forest more than 70 years ago. The Louisiana swamps generally lack a

mature canopy as was present in colonial forests and have lower

productivity where isolated from riverine influences (Shaffer et al 2003).

Fresh Marsh 0–3 Fresh marsh has the highest plant diversity of all the coastal habitat types

including as many as 93 species. Floating aquatic and submerged plants

are common and are significant for waterfowl. Soils may be highly

organic and prone to settlement. Many species of duck and waterfowl use

coastal Louisiana and Mississippi as overwintering grounds for foraging

of diverse invertebrates, plant roots, and tubers.

Intermediate 2–8 Intermediate marsh has lower species diversity than fresh marsh, but may

Marsh have higher productivity. This habitat provides important nurseries for

brown shrimp, white shrimp, blue crab, and Gulf menhaden or pogy.

Soils may be very poor due to very high organic

content. Submerged aquatic vegetation within lakes and bays are vital to

secondary productivity.

Brackish 4–18 Brackish marsh has the lowest plant diversity, but may be the most

Marsh productive type of marsh. The dominant species is marshhay grass.

Oysters are exceptionally significant due to filtration, biomass, reef

building, and commercial harvest and other fish found in reef

communities.

Salt Marsh 8–29 Salt Marsh and barrier islands have high overall species diversity due to

and Barrier plants and animals. Bird rookeries are an important use of these habitat

Islands types. Nesting for sea turtles occurs on some islands. Some islands in

the study area also have true seagrasses on their bay side lagoons and

provide habitat for the endangered West Indian manatee during migration.

2010 FEASIBILITY REPORT at 2-16–17 (December 2010 Army Corps MRGO Ecosystem

Restoration Plan).

27

A salinity score of 0 indicates undetectable levels of saline in the water; seawater has a

saline score of around 35. See Background Papers & Supporting Data on the Practical Salinity

Scale 1978, 37 UNESCO TECHNICAL PAPERS IN MARINE SCI. 5–7 (1981), available at http://

unesdoc.unesco.org/images/0004/000479/047932eb.pdf.

47

Freshwater swamps can support cypress and tupelo forests that are important for protecting

areas from wind and surge. 2010 FEASIBILITY REPORT at 1-7. As salinity increases, however,

taller cypress and tupelo die off. 2010 FEASIBILITY REPORT at 2-16. In fact, rapid shifts in salinity

risk destroying vegetation altogether, leaving bare land that quickly can convert to water. 2010

FEASIBILITY REPORT at 2-42.

Prior to 1978, saline marsh was found only south of the Bayou La Loutre Ridge and in the

outer Biloxi Marshes. 2008 ARMY CORPS REPORT at xiv. By 1990, however, estimated wetland

loss in Region 1 of the Coastal Louisiana Hydrologic Basin Area, i.e., St. Bernard Parish, Orleans

Parish, and St. Charles Parish, was reported to be 74,800 acres or an average of 1,290 acres per

year between 1932 and 1990. Pls. 2/9/09 S.J. Ex. 6 at 4 (LA. DEP’T OF NATURAL RES., COASTAL

RESTORATION DIV. ANNUAL PROJ. REVIEW (Dec. 2001)); see also at xiv (“Between 1956 and 1990,

68,600 acres of wetlands were lost [as a result of] subsidence, navigational channels, oil and gas

exploration and production, development and storms. . . . Approximately 67 percent of the

swamp . . . was lost while saline marsh gained 8 percent.”).

By 1984, the Army Corps recognized that:

[c]onstruction of the MR-GO has accelerated the natural changes occurring in the

St. Bernard Parish wetlands near Lake Borgne. . . . Wind-and-wave generated

erosion is also steadily widening the MR-GO. Because of this expansion, the east

bank along Lake Borgne is dangerously close to being breached. Once the [east]

bank [along Lake Borgne] is breached, development to the southwest would be

exposed to direct hurricane attacks from Lake Borgne, the rich habitat around the

area would be converted to open water, and more marsh would be exposed to the

higher salinity water.

RPX1639 at 7 (U.S. ARMY CORPS OF ENG’RS, LA. COASTAL AREA: SHORE & BARRIER ISLAND

EROSION (1984)).

Between 1998 and 1999, saline marsh in the New Orleans area “encroached” up the MR-

GO to about the Bayou Dupre and into the Biloxi Marshes near the MR-GO, past Bayou Dupre.

2008 ARMY CORPS REPORT at xiv.

By 1999, the Army Corps stated that “[e]stimated habitat shifts caused by saline waters

brought in by the MRGO are believed to have caused 3,350 acres of fresh/intermediate marsh and

8,000 acres of swamp to convert to brackish marsh and 19,170 acres of brackish marsh and swamp

to convert to saline marsh in areas adjacent to MRGO.” 2010 DRAFT EIS App’x E at 2 (citing

“USACE, 1999”); see also SPX.0773 at 52 (U.S. ARMY CORPS TECHNICAL COMM., HABITAT

IMPACTS OF THE CONSTRUCTION OF THE MRGO (1999)); SPX.01146 at 1-9 (U.S. ARMY CORPS OF

ENG’GS & LA. DEP’T OF NATURAL RES. PROJECT MGMT. PLAN: MISS. RIVER GULF OUTLET

(MRGO) ENVTL. RESTORATION PHASE II, FEASIBILITY STUDY (2005)); 12/14/11 TR 953 (Britsch)

(“I do agree there was a lot of habitat conversion due to salinity.”).

48

On October 20, 2000, the EPA published a “Status Report: Comprehensive Plan for Timely

Modification of the Mississippi River Outlet” that summarized the situation:

The construction, operation and maintenance of the MRGO have caused substantial

environmental changes in the Pontchartrain and Breton Sound drainage basins of

southeastern Louisiana east of the Mississippi River. The channel has breached

major hydrologic boundaries and has extended marine conditions into formerly

fresh, low energy swamp, marsh and lacustrine areas. More than 65,000 acres of

natural habitat have been lost or modified as a result of the MRGO[.]

2000 EPA REPORT at 2-1 (emphasis added).

A 2010 Army Corps study enumerated the “direct and indirect effects” caused by the MR-

GO as: “land loss, bank/shoreline erosion, habitat change and loss, modification of natural

hydrology, retreating and eroding barrier islands, ridge habitat degradation and destruction, . . . and

increased susceptibility to storm surge[.]” 2010 DRAFT EIS App’x E at 2.

At trial, Dr. Kemp testified that the construction, expansion, operation, and failure to

maintain the MR-GO was responsible for most of the land/habitat loss in the area. 12/13/11 TR

500 (Kemp) (“The salinity increase [due to MR-GO] was what set in motion the habitat change

and much of the loss that occurred.”).

Several of Plaintiffs’ witnesses also testified about the habitat changes that occurred after

the MR-GO was constructed and described the shift from freshwater wetland forests to brackish

forests and open water. Forested areas along Shell Beach, Hopedale and Yscloskey “died away

pretty quickly.” 12/12/11 TR 89 (Estopinal). In the 1950s, Paris Road (Highway 47), in the Bayou

Bienvenue area, had “scrub oaks, and some trees, and a lot of roseau, which is the local bamboo

cane . . . and had a lot of trees and brush.” 12/12/11 TR 80 (Estopinal). Trees also disappeared,

replaced with open water along Bayou Bienvenue. 12/12/11 TR 89 (Estopinal). These changes

occurred “over the several decades,” after the construction of the MR-GO. 12/12/11 TR 91

(Estopinal). For example, Mr. Robin testified that, as a child, he saw oak trees and cypress trees

at the Shell Beach area, but now there are few oak trees and only dead cypress trees. 12/13/11 TR

611–12 (Robin). Mr. Robin last saw live cypress trees in the early 1970s. 12/13/11 TR 640

(Robin). The marshes near Hopedale and along MR-GO used to have cypress swamps, but no

longer have living cypress trees. 12/14/11 TR 845–46 (Wilhoft). Bayou Bienvenue used to have

vegetation but now is “[m]ostly water. Even the marshes [are] pretty much disappearing now.”

12/14/11 TR 846 (Wilhoft).

[T]here [are] no more [cypress] trees. It’s just all marsh grass and water all the way

up to the bridge, which would be over the Industrial MRGO, and coming from the

south side coming in south that’s all you see is water, and on the west side and east

side all you see is water now, too.

12/12/11 TR 183 (Tommaseo).

Mr. Estopinal also recalled that Shell Beach, which fronted the Lake Borgne, was

a beach he could swim in as a child, but today that area is gone. 12/21/11 TR at 78–80

49

(Estopinal).The Government argues that despite this evidence Plaintiffs failed to establish the

causal link between habitat/wetlands loss and flooding on their properties within the federal levee

system. 4/13/12 Gov’t Br. 66; 5/18/12 Gov’t Resp. 21 (citing 12/12/11 TR 292–95 (Kemp)

(testifying that the role of wetlands in presenting storm surge varies between storms and has not

been widely studied)). The Government also faults Plaintiffs habitat/wetland loss causation

analysis outside the levee system, because Dr. Kemp failed to quantify the MR-GO’s contribution

to physical changes seen in Bayou Yscloskey. Gov’t 4/13/12 Br. 68 (citing 12/13/11 TR 443–45,

47 (Kemp) (noting that Dr. Kemp had not examined historic maps, aerial photographs, or gauge

readings to determine if Bayou Yscloskey had changed after the construction of the MR-GO)). In

addition, the only information related to wetlands impact that Dr. Kemp considered was a study of

wetlands during Hurricane Rita, but that area consisted of twenty-five miles of marsh with no

levees. Gov’t 5/18/12 Resp. 21 (citing 12/13/11 TR 437 (Kemp)).

The Government’s expert, Dr. Britsch, however states that “the loss of land . . . in the St.

Bernard Delta . . . has the potential effect of increasing the connectivity and water exchanges

between large water bodies and the interior marshes resulting in changes in tides, and incursions

of marine water further inland.” 12/8/11 Britsch Direct at 24. Dr. Britsch also allowed that

“MRGO was one of many things that increased the connectivity between large water bodies and

the interior marshes.” 12/14/11 TR 902–03 (Britsch). Dr. Britsch agreed “[the MR-GO] did do a

lot of habitat type change. But I think the changes were more conversion of habitat types rather

than conversion of land to water.” 12/14/11 TR 995 (Britsch).

Dr. Britsch, however, testified that the MR-GO directly caused 7,087 acres of land loss out

of a total of 103,870 acres in the St. Bernard Delta, but concluded that the portion of the loss

attributable to the MR-GO is “small.” 12/8/11 Britsch Direct 20; see also 12/14/11 TR 910

(Britsch). There are several problems with Dr. Britsch’s conclusion. First, his study included

21,909 acres lost prior to the construction of the MR-GO in 1958, diluting the actual effect of the

MR-GO. 12/14/11 TR 913 (Britsch). Second, his testimony in this case is inconsistent with his

prior expert report in Robinson that considered a smaller study area. RJX 202 at 17 (studying

approximately 113,643 acres and acknowledging that the MR-GO is one factor in changing land

area and habitat). Third, Dr. Britsch accounted only for land lost in the MR-GO due to dredging

and erosion; he did not consider land loss caused by destruction of wetlands by saltwater intrusion.

12/14/11 TR 909, 94344 (Britsch). Fourth, Dr. Britsch also did not adequately explain how long-

term factors, such as natural subsidence, contributed to the short-term land loss seen around Lake

Borgne. Compare 12/8/11 Britsch Direct at 9–11, with 1972 BASELINE STUDY at 66–67 (1972

Coastal Environments, Inc. Envtl. Baseline Study) (noting that natural subsidence causes habitat

destruction “over a long time span” and as such, “is probably only of secondary importance in

accounting for the very rapid decay of the fresh swamp” near Lake Borgne). Finally, Dr. Britsch’s

testimony is contradicted by the Army Corps’ land loss estimates and the 2010 MRGO Ecosystem

Restoration Study Draft Environmental Impact Statement, to which Dr. Britsch was a contributor.

Compare 2010 FEASIBILITY REPORT at 1-16, with SPX.0773 at 52 and 2010 DRAFT EIS at 1-7.

Given the conflicts between Dr. Kemp’s and Dr. Britsch’s testimony, the court has decided

to rely on Army Corps documents and the testimony of Plaintiffs’ witnesses as they are the most

relevant evidence about the role of the MR-GO in increasing habitat and wetland loss in the St.

Bernard Polder.

50

For these reasons, the court has determined that Plaintiffs established a causal link between

the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO and

increased habitat and wetland loss in the St. Bernard Polder.

c. Because Of Increased Erosion.

In July 1957, the Army Corps finalized a Design Memorandum for the MR-GO that stated:

No channel protection is recommended initially, however, erosion due to wave

wash in open areas can be expected in the upper part of the channel slope where

the peat and highly organic clays are exposed. Protection for this area can be

provided if and when the need for it becomes necessary.

SPX.0213 at 7.

By November 8, 1983, the Chief of the Hydraulics & Hydrologic Branch of the Army

Corps warned, “Future widening or erosion of [the MR-GO] could cause erosion of the hurricane

levee berm[.]” SPX.0241.

In 1988, the Army Corps estimated that MRGO expanded from a top width of 650 feet in

1968 to 1,500 feet by 1987. RPX0009 (U.S. ARMY CORPS OF ENG’RS, MISS. RIVER-GULF OUTLET

ST. BERNARD PARISH, LA. BANK EROSION RECONNAISSANCE REPORT (February 1988)). It is

significant that at this early date, the Army Corps recognized that:

[t]he alternative to completely close the MRGO waterway should be evaluated and

a discussion of the evaluation should be included in the [Reconnaissance] report.

The closure should be located in the vicinity of mile 23 [south of Bayou La Loutre

Ridge] and . . . . will control all future channel maintenance problems by controlling

bank erosion, prevent[] the associated biological resources problems, prevent[]

saltwater intrusion, and lessen[] the recreational losses. . . . [I]t will also reduce the

possibility of catastrophic damage to urban areas by a hurricane surge coming up

this waterway[.]

RPX0009 at 1 (PDF at 10).

In a May 30, 1991 Memorandum, the Army Corps restated its “long standing policy against

repairing bank erosion.” RPX2082 at 2; see also SPX.0241 (In 1983, the Army Corps decided to

defer “erosion protection to allow for future widening” of MR-GO). The Army Corps also

concluded that bank stabilization for MR-GO was not worthwhile, because the “[l]ong term

viability of MRGO [was] in question due to considerable public opposition to past and continuing

(perceived and real) environmental damages and to [the] marginal competitiveness of [a] 36 ft

channel.” RPX 2082 at 2.

In July 2003, an independent study by two members of the Tulane University College of

Engineering observed:

Severe erosion occurs from vessel wakes, and materials liberated in the process

migrate into the waterway. MRGO bank erosion has historically and is currently

51

occurring at high rates, mainly due to ship wave impact. An analysis of bankline

retreat from 1964 to 1996 shows that the banks are being lost at about 12 to 26

ft/yr. . . . Bank erosion results in channel shoaling, which requires periodic

maintenance dredging. The current scenario is largely unsustainable from the

engineering, environmental, and economic perspectives.

RJX-0243 at 3.

In 2004, prior to Hurricane Katrina, the Army Corps recognized that bank erosion of the

MR-GO “is an ongoing problem, widely recognized by the Corps, other agencies, state and local

governments, as well as the general public.” RPX0716 at 5 (estimating annual erosion of fifteen

feet along the south bank and thirty-two feet along the north bank); RJX-0243 at 3 (estimating

bank erosion at twelve to twenty-six feet per year). Between 1961 and 2005, the Lake Borgne

shoreline retreated around 235 feet. 12/6/11 Kemp Direct at 236–37. And, a September 2005

Army Corps “reevaluation study,” dated days after Hurricane Katrina’s landfall “documented the

retreat of the unstable MRGO Reach 2 channel banks.” 12/6/11 Kemp Direct at 56 (citing

SPX.0298).

As a result of the increased erosion, the MR-GO allowed Bayou Yslcoskey “to carry

significantly more water at higher velocities.” 12/6/11 Kemp Direct at 238.

[T]he hydraulic connection between the Lake and the settlements along the banks

of Bayou Yscloskey was undoubtedly made larger and more efficient, allowing it

to serve as a more open route not only for surge during storms but also for water

level fluctuations in the Lake during less extreme wind events. The enlargement of

the hydraulic connection between Bayou Yscloskey and Lake Borgne was

enhanced by dredging of the MRGO.

12/6/11 Kemp Direct at 238; see also 2006 WESTERINK NOTE at 23 (stating that the combination

of erosion resulting from the Army Corps’ authorized expansions and continued ship wave erosion

played an “important role in the propagation of the astronomical tide wave and in the flux of more

saline water from Lake Borgne/Brenton Sound into Lake Pontchartrain via the [INHC]”).

On December 9, 2010, after Hurricane Katrina, the Army Corps issued a draft

Environmental Impact Statement concluding that:

The construction, operation, and maintenance of the MRGO caused the loss of

approximately 24,610 acres and indirectly to an additional loss of 33,920 acres.

Approximately 63,178 acres of land is estimated to have been lost in the study area

from 1985 through 2010. Approximately 131,091 acres are projected to be lost

between 2010 and 2065 within the study area.

2010 DRAFT EIS at 1-16 (internal citations omitted); see also 2010 FEASIBILITY REPORT at 1-7

(estimating that the “MR-GO channel construction, including the dredging of the canal and

placement of dredged spoil, resulted in the conversion of 19,400 acres of wetlands and 4,750 acres

of shallow open water to deep open water or spoil”).

52

In sum,

[t]he channelized nature of the MRGO induce[d] large ship waves during vessel

passage. Ship waves strike the bank lines, which consist of very soft organic soils.

Severe erosion occurs from these vessel wakes . . . . [As such, the] MRGO bank

erosion has historically and is currently occurring at high rates, mainly due to ship

wave impact.

RJX-0243 at 3 (EDMOND J. RUSSO, JR., EVALUATION OF BANK LINE REVETMENT ALTERNATIVES

TO ABATE SHIP WAKE EROSION, MISS. RIVER – GULF OUTLET, LA. (July 2003)); 12/12/11 TR 83

(Estopinal) (testifying about the waves generated from ships passing through the MR-GO);

12/13/11 TR 602 (Robin) (“[T]he ships would come in and they would be sucking so much water

that it . . . . would take the water away from the shores, and . . . all of a sudden there’s no water

and their [small sport or recreation] boats will have accidents, either turn over or sink.”)); 12/13/11

TR 839–40 (Willhoft) (testifying how, as a ship operator, he observed the erosive waves generated

by ship wake).

A July 21, 2006 Report co-authored by the Army Corps reflected that the authorized bottom

width of the MR-GO was 400450 feet. 2006 WESTERINK NOTE at 2; see also RDX1042 at 4

(June 1959 Army Corps Design Memorandum No. 2) (revising the MR-GO’s authorized

dimensions from 36 feet by 500 feet to 38 feet by 600 feet). Because of erosion of the MR-GO

due to ship traffic and the failure of the Army Corps to maintain the banks, the width of the MR-

GO was approximately 3,000 feet at its widest point. The significance of this expansion is that the

“[r]etreat of the south bank [of the MR-GO] affected the severity of wave attack on the Chalmette

levee.” 12/6/11 Kemp Direct at 28; 12/13/11 TR 426 (Kemp); see also 12/6/11 Kemp Direct at

30–32 (figures 2.6a–d) (showing the increased widening of the MR-GO over time).28

For these reasons, the court has determined that Plaintiffs established that the construction,

expansions, operation, and failure to maintain the MR-GO caused increased erosion in the MR-

GO.

d. Because Of Increased Storm Surge.

Wetlands play a critical role in reducing the impact of hurricanes and severe storms:

When storms move over open water, there is nothing to slow the wind and wave

action. This creates a storm surge—a gigantic wall of water pushed forward by the

28

In 2008, the Army Corps stated that as a result of subsequent “tropical storms and

hurricanes, supplemental expenditures have often been required to return the MRGO to the

authorized dimensions.” See 2008 ARMY CORPS REPORT at vi-vii. Since 1998, however, no funds

have been spent to restore the MR-GO to its authorized dimensions. Id. at vii. In addition, the

GIWW Reach has not been dredged since 1998. Id. The Inland Reach, however, was maintained

at a minimum 300-foot bottom width until 2005; the Sound Reach was maintained to a minimum

450-foot bottom width; and the Bar Channel to a minimum 500-foot bottom reach. Id. After

Hurricane Katrina in 2005, there was no channel maintenance. Id.

53

storm’s winds. The vegetation of the wetlands helps minimize the storm surge.

When powerful waves from a hurricane crash into the land, wetland plants act as

brakes, slowing down the waves and reducing their destructive power.

This text is long and has been trimmed here. Open the source document for the complete record.