Flood Law
LA Law: Saden v. Kirby, 660 So.2d 423 (La.
1995)
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New Orleans Sewerage and Water
 2 big pumps, one little one
 underground power line for big pumps
 generator to run one big pump
 power line for big pumps went down
 was still down when flood occurred 3 months
later - finally fixed 6 months after the fault
Was this negligence or discretion?
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Pumps in Katrina
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Why are there pumps in New Orleans?
Why did they shut down the pumps during
Katrina?
What is the city's Berkovitz's defense for shutting
down the pumps?
What facts raise the specter of Saden?
Why are plaintiffs avoiding suing the parishes and
the levee control boards?
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How do you get into Court in Federal
Flood Act Cases?
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Is there jurisdiction in the Flood Control Act?
Are these Bivens cases?
FTCA
 What do you need to do before you go to court?
 What do you need to show about the feds
decisionmaking?
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Flood Control Act of 1928
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What happened in 1927?
What are the immunity provisions?
 Flood Control Act of 1928, 33 U. S. C. §702c -- which
states that "[n]o liability of any kind shall attach to or
rest upon the United States for any damage from or by
floods or flood waters at any place"
Why did Congress provide this immunity?
Does it say this is limited to flood control projects?
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Hurricane Betsy
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US Hurricanes - (Betsy does not even count)
http://www.nhc.noaa.gov/HAW2/english/history.shtml
Track http://www.hpc.ncep.noaa.gov/tropical/rain/betsy1965.ht
ml
Video - http://www.youtube.com/watch?v=TaA1k5VA-lI
LBJ - http://whitehousetapes.net/exhibit/lbj-andresponse-hurricane-betsy
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MRGO
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Where is the MRGO?
Why was it built?
 http://www.mrgo.gov/MRGO_History.aspx
 What ports are in competition with NO?
 Why is it easier to get to them?
 What is the advantage of Mississippi river ports?
Who do you think wanted it built?
 Was it every used much?
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Graci v. United States, 456 F.2d 20 (5th Cir.
1971)
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What caused the flood?
How do we know the FTCA did not supersede the
Flood Control Act of 1928?
Since the FTCA controls, where do you look for
the legal theory to determine the government's
liability?
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Plaintiff's Liability Theories
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What is plaintiff's res ipsa loquitur theory of the flood?
The alternative theory:
"...the plaintiffs alleged that the Government's negligence
consisted of constructing the outlet "without taking
appropriate steps to impede and lead off rising hurricane
waters before they reached the residential areas of the
surrounding country, and without taking the appropriate
steps to build retaining levees to protect the residential
areas of the surrounding country from flooding due to
hurricane driven waters."
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Does the Flood Control Act Apply?
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Was this a flood?
 Is that enough to trigger the FCA
What else is the court looking for?
 What is the purpose of the MRGO?
 Was it built under the authority of the FCA?
Does FCA immunity apply when there is no flood
control purpose?
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Graci v. U.S., 435 F.Supp. 189 (E.D.La.
1977)
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The 5th circuit remanded so the plaintiff could make their
tort claims act case.
 What does plaintiff have to show?
 What is the government's defense?
Who did the district court say directed the building of
MRGO?
 Did the Corps did follow this plan?
 Was there any negligence in following the plan?
Think about this in the Katrina cases - how does the
judge try to avoid this ending?
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Post-Graci
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While the court found that there was no liability because
the MRGO was properly built, it was generally believed
that it caused the flooding.
What did the feds build to prevent flooding the next time?
 Were these levees flood control projects?
 If they are breached by a flood, would FCA immunity
apply?
Does a levee become a legal barrier for liability?
 Can there be liability if flood water breaches a levee?
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Central Green Co. v. United States, 531
U.S. 425 (2001)
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California Water Project - irrigation
 Take water from one area and spread it around
the state
Land is damaged by seepage from the canal
 Is this covered by the flood control act
immunity?
 The feds say that any flood control purpose
puts the every water related damage under
flood control act immunity
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Is there a Flood Control Purpose at All?
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What happens when the snow melts too fast or
there is a big rain in this system?
 Does the irrigation system also handle flood
water?
 Does this make it entirely a flood control
project, so that any damage is immunized?
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The Holding in Central Green
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The text of the statute does not include the words
"flood control project." Rather, it states that
immunity attaches to "any damage from or by
floods or flood waters . . . ." Accordingly, the text
of the statute directs us to determine the scope of
the immunity conferred, not by the character of
the federal project or the purposes it serves, but
by the character of the waters that cause the
relevant damage and the purposes behind their
release.
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Sorting out a Dual Purpose
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If water project like an irrigation system also has a flood
control purpose, the Act does not grant immunity if the
damage was not related to a flood.
 Would this mean, however, that even a dual purpose
project would be immune it was a flood?
However, if the only purpose of the project is flood
control, such as a levee, are all damages covered by the
flood control act immunity?
 How do you analyze this?
 Why does it not matter whether it is flood water?
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Between Betsy and Katrina
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40 years
Corps initial plans are rejected in favor of ring levees
 Critically, canals are left open
 Lots of issues in construction
 Huge problem of lack of maintenance
 A lot of subsidence between 1965 and 2005
Katrina - not just levees breaking
 A lot of overtopping - there would have been a lot of
flooding without a levee break
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