Original language


United States of America
Date of text
Type of court
National - higher court
Court name
United States Court of Appeal for the Fifth Circuit
Reference number
No. 10-30249
Damages, Wetlands, Causation, Liability, Burden of Proof, Land Use, Evidence, Standing, Permits, Wildlife
Free tags
Environment gen.
Legal questions
Smith, Prado and Elrod.
Decades ago, the Army Corps of Engineers (the “Corps”) dredged the Mississippi River Gulf Outlet (“MRGO”), a shipping channel between New Orleans and the Gulf of Mexico, as well as levees alongside the channel and around the city. The Corps’s negligence in maintaining the channel, grounded on a failure to appreciate certain hydrological risks, caused levees to fail and aggravated the effects of 2005’s Hurricane Katrina on the city and its environs. Claimants filed hundreds of lawsuits, many of which were consolidated before the district judge a quo. That court worked with plaintiffs’ litigation committees to identify several categories of plaintiffs and individual “bellwether” plaintiffs. This opinion concerns three groups of bellwether plaintiffs, all suing the United States for flood damages. One group went to trial; three of its plaintiffs prevailed on all claims, and four did not. Another group was dismissed before trial when the government was found immune. The third has survived motions to dismiss and is proceeding to trial. All losing parties have appealed; the government has also petitioned for a writ of mandamus to stay the third group’s trial pending issuance of this opinion. The Court affirmed almost all of a series of immunity rulings by the district court in the consolidated litigation against the Corps of Engineers. While most of the opinion focuses on issues unique to flood control, it provides a list of the requirements of the National Environmental Policy Act as to environmental impact statements, and concludes with a brief summary of the standards for mandamus relief in the federal system. The Court declined to grant a writ of mandamus to stay an upcoming trial because its opinion affirmed the immunity rulings that the district court would use for that trial.