Post-Katrina levee case against Corps of Engineers dismissed on appeal

NEW ORLEANS – The U.S. Court of Appeals for the Fifth District has reversed the ruling of a lower court in a case that pits landowners against the U.S. Army Corps of Engineers.

The suit was first filed by a group of New Orleans landowners in response to post-Katrina levee improvements. The plaintiffs, Terry and Nina Lonatro, Craig and Cindy Berthold, Dante and Monique Maraldo, Amy and George Sins, Albert and Kathleen Zuniga and Roy and Tammy Arrigo, all own property immediately adjacent to the levee surrounding the 17th St. Canal.

The landowners first filed suit against the Orleans Levee District and the Southeastern Flood Protection Agency over plans to remove fences, trees and other items from portions of the plaintiffs' properties in order to prepare for levee construction. In June 2009 a state appellate court found that the property was subject to a valid servitude in favor of the local levee authorities.

In early 2011, the plaintiffs learned that the Corps had been granted the rights to perform more work on and around their property, including deep soil mixing and the building of new subsurface and embankment walls. They again filed suit, this time including the Corps as a defendant. The government moved to dismiss, and the district court denied the part of their motion concerning an alleged lack of federal subject matter jurisdiction. The government appealed.

The Fifth Circuit panel, consisting of Judge Patrick E. Higginbotham, Judge Carolyn Dineen King and Judge Edith Brown Clement, found that the plaintiffs’ claim does not waive U.S. sovereign immunity from the suit.

Writing on behalf of the panel, Higginbotham concluded that there is not federal subject matter jurisdiction, reversed the district court's ruling, and remanded the case for further proceedings.

Case No. 12-30425.