Inverse Condemnation Part 5: Federal Cases After Hurricane Katrina

This is Part 5 of a series of blog posts on important inverse condemnation cases. Previous pasts have addressed:

In the final blog of this series, we’ll discuss 2 significant federal inverse condemnation cases that arose after Hurricane Katrina.

St. Bernard Parish Gov’t v. United States

Inverse Condemnation Part 5: Federal Cases After Hurricane Katrina

Two contrasting cases involving inverse condemnation claims under federal law were filed in the wake of Hurricane Katrina. In St. Bernard Parish Gov’t v. United States, 121 Fed. Cl. 687 (2015), a Louisiana parish government and private property owners filed a successful inverse condemnation lawsuit against the Army Corps of Engineers.

The lawsuit claimed the Corps committed a Fifth Amendment temporary taking in constructing, expanding, operating, and failing to maintain the Mississippi River Gulf Outlet (“MRGO”). The parish and landowners claimed the MRGO significantly increased storm surge and caused flooding on the owners’ property during Hurricanes Katrina, Rita, Gustav, and Ike and later tropical storms before the Corps deauthorized the MRGO.

The flooding prevented the owners’ access to and use of their properties for months following hurricanes and storms. A key factor in the success of the claim was the degree to which the government’s invasion was intended or the foreseeable result of government action.

The court found the flooding of the owners’ property during hurricanes and other severe storms was foreseeable to the Corps where it knew that the MRGO would increase salinity, habitat and wetland loss, and erosion that would together contribute to increased storm surges and be made worse by the MRGO’s funnel effect, which caused it to act as a “superhighway” that accelerated and intensified the surges.

The court also ruled that the substantially increased storm surge-induced flooding that occurred during Hurricane Katrina, as well as later hurricanes and severe storms, was the direct result of the Corps’ cumulative actions, omissions, and policies regarding the MRGO that occurred over an extended period of time.

Nicholson v. United States

In Nicholson v. United States, 77 Fed. Cl. 605 (2007), however, the federal government’s failure to adequately design, build, or maintain a parallel flood protection system in New Orleans before and after Hurricane Katrina did not effect a taking of property whose value was diminished due to flooding caused by the storm surge.

In this case, the flooding was found not to be the direct, natural or probable result of the government’s construction or maintenance of the parallel flood protection system in New Orleans. In the ruling, the court said that a two-part inquiry is used to evaluate the difference between potential takings and tort claims:

  • First, a property loss that qualifies as a taking requiring compensation results only when the government intends to invade a property or the invasion is the “direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action”; and
  • Second, the nature and magnitude of the government action must be considered. Even where the effects of the government action are predictable, there must be a public benefit that comes at the expense of the property owner, or at least preempts the owner’s right to enjoy his property for an extended period of time, rather than just reducing the value of the property.

The Texas eminent domain attorneys at Dawson & Sodd have been protecting the rights of landowners for more than 100 years. If a government authority’s actions have caused damage to your property, contact us today to discuss whether you may be able to file an inverse condemnation claim.

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