At points where it could have mattered, the Corps did not identify MRGO's ability to aggravate the effect of a major hurricane. This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000.
Since Katrina, USACE has received about 500,000 other similar administrative claims, and attempted to dismiss this case on several occasions. In March 2009, federal judge Stanwood R. Duval Jr. found[JURIST report] that material questions of fact existed as to a potential violation of USACE's mandate that, if proven, would preclude it from protection under the Federal Tort Claims Act [text]. In May 2009, Duval ruled [JURIST report] that the MRGO is a shipping channel rather than a flood control outlet, which would have given USACE immunity in tort actions. In a similar instance in February 2007, Duval denied USACE's motion to dismiss, which argued that the MRGO was part of a larger flood control system in New Orleans rather than strictly a shipping channel. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [WP report].
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