St. Bernard Parish Government v. United States

The Federal Circuit Court of Appeals reversed the Federal Court of Claims finding that the federal government was liable for flood damage in St. Bernard Parish and New Orleans that was caused by Hurricane Katrina and other hurricanes. The plaintiffs, who were property owners in St. Bernard Parish and the Lower Ninth Ward of New Orleans, contended that the government was liable for a taking based on its inaction, including the failure to properly maintain or modify the Mississippi River-Gulf Outlet (MRGO), and its actions, including the construction and operation of the MRGO channel. The Federal Circuit held that the government cannot be liable for inaction on a takings theory and that the construction and operation of MRGO had not been shown to be the cause of the flooding. The court found that the plaintiffs and the Court of Claims had not applied the correct legal standard to the causation analysis, which was required to “account for government flood control projects that reduced the risk of flooding.” The court said the plaintiffs failed to present evidence comparing the flood damage that occurred to what would have occurred had there been no government action at all and so had failed to take account of actions—including a system of levees and floodwalls known as the Lake Pontchartrain and Vicinity Hurricane Protection Project—that mitigated the MRGO impact.

The United States filed its principal brief in the Federal Circuit Court of Appeals in its appeal of a May 2015 decision of the Court of Federal Claims holding the United States liable for a taking resulting from flooding in Louisiana during and after Hurricane Katrina. The Court of Federal Claims had concluded that federal construction of the Mississippi River-Gulf Outlet (MRGO) navigation channel changed the environment in ways that increased storm surge during Hurricane Katrina, causing a taking. The United States argued that the Court of Federal Claims’ ruling “unmoors takings law from its traditional limits” and “threatens to impose vast and startling liability on the public for damage caused by natural disasters.” The United States further argued that the Court of Federal Claims had erred in concluding that MRGO caused the flooding and that the flooding was foreseeable.