656 627 federal supplement, 2d series · 656 627 federal supplement, 2d series generally u-shaped...

656 627 FEDERAL SUPPLEMENT, 2d SERIES

generally U-shaped zipper memberhaving a first end spaced from asecond end, said zipper memberforming a flap with said top wall,said flap selectively secured to thetop wall by said zipper member’’ inClaim 7 is construed to mean thatthe attic hatchway cover provides ameans of access to the attic, andthat such means consists of a gener-ally three-sided U-shaped zippermember, which has two ends thatare not connected and do not touch.The zipper member creates a flapwithin the top wall and selectivelysecures said flap to said top wall topwall. The portion of the flap that isselectively secured may be separat-ed from the top wall by unzippingthe zipper member.

M. The phrase ‘‘wherein said top wallcomprises a hinge extending fromsaid first side wall to said secondside wall, said flap secured to saidtop wall by said hinge between saidfirst end of said zipper member andsaid second end of said zippermember’’ in Claim 7 is construed tomean that the top wall comprises ahinge which is adjacent to the rearwall and extends across the topwall from the first side wall to thesecond side wall and that the flap issecured to the top wall by the hingebetween the ends of the zippermember.

N. The phrase ‘‘wherein said frontwall, said rear wall, said first sidewall and said second side wall areeach of a rigid construction’’ inClaim 7 is construed in the samemanner as this limitation was con-strued for the purposes of Claim 1and therefore is construed to meanthat the front, rear, and side wallsof the cover are made in such a waythat each wall is inflexible.

O. The phrase ‘‘wherein at least saidfront wall, said rear wall, said firstside wall and said second side walleach have an inner surface spacedfrom an outer surface and a coreextending coextensively betweenthe inner surface and the outer sur-face’’ in Claim 8 is hereby construedin the same manner as that phrasewas construed with respect to Claim3 and thus is construed to meanthat the front wall, rear wall, andtwo side walls of the attic hatchwaycover each is comprised of threelayers: (1) an inner surface, (2) anouter surface, and (3) a core thatreaches and touches both the innersurface and outer surface equally.

IT IS SO ORDERED.

,

In Re KATRINA CANAL BREACHESCONSOLIDATED LITIGATION.

Pertains to: RobinsonC.A. No. 06–2268.

Civil Action No. 05–4182.

United States District Court,E.D. Louisiana.

March 20, 2009.

Background: Flood victims brought ac-tion against the United States under Fed-eral Tort Claims Act (FTCA), allegingArmy Corps of Engineers violated Fishand Wildlife Coordination Act (FWCA)and National Environmental Policy Act(NEPA) in creation and operation of Mis-sissippi River-Gulf Outlet project (MRGO).Victims moved for partial summary judg-ment and United States moved for dis-

657IN RE KATRINA CANAL BREACHES CONSOL. LITIGATIONCite as 627 F.Supp.2d 656 (E.D.La. 2009)

missal or, in the alternative, for summaryjudgment.

Holdings: The District Court, StanwoodR. Duval, Jr., J., held that:

(1) triable issues existed regarding wheth-er Corps exercised due care in mainte-nance and operation of MRGO;

(2) Corps followed FWCA mandate to con-sult the Fish and Wildlife Service(FWS) before modifying any body ofwater for any purpose;

(3) Corps was not entitled to discretionaryfunction immunity to extent that itknew its actions had significant impacton wetlands;

(4) genuine issue of material fact existedas to whether alleged failure to filereports was causally connected to flooddamage;

(5) triable issue existed as to whetherCorps, once it exercised discretion tocreate navigational channel for MRGO,was obligated to use due care to ensurechannel did not destroy environment;and

(6) genuine issue of material fact existedas to whether Corps should havewarned Congress about potentialthreat to life and property from widen-ing of channel.

Motions denied.

1. United States O141(3)Under the Federal Tort Claims Act

(FTCA), plaintiffs bear the burden ofshowing Congress’s unequivocal waiver ofsovereign immunity. 28 U.S.C.A.§ 1346(a).

2. United States O140At the pleading stage under the Fed-

eral Tort Claims Act (FTCA), plaintiffsmust invoke the court’s jurisdiction by al-leging a claim that is facially outside of thediscretionary function exception. 28U.S.C.A. § 1346(a).

3. United States O141(3)The burden of proof is on the United

States, on the first prong of the discretion-ary function exception to the Federal TortClaims Act (FTCA), to demonstrate thatthe decisions which it claims are shieldedby the discretionary function exception areindeed subject to the exercise of judgment,assuming plaintiff has properly pleaded amandate. 28 U.S.C.A. § 2680(a).

4. United States O78(12)The ‘‘due care exception’’ to the Fed-

eral Tort Claims Act (FTCA) immunizesthe government from suit with respect toclaims based on the execution of a statuteor regulation, and requires for its applica-tion that the actors have exercised duecare; this provision bars tests by tort ac-tion of the legality of statutes and regula-tions. 28 U.S.C.A. § 2680(a).

See publication Words and Phras-es for other judicial constructionsand definitions.

5. United States O78(12)The test for the application of the due

care exception to the Federal Tort ClaimsAct (FTCA) that would grant the govern-ment immunity from claims is to deter-mine (1) whether the statute or regulationin question specifically proscribes a courseof action, and (2) if mandated, whether duecare was exercised. 28 U.S.C.A.§ 1346(a).

6. Federal Civil Procedure O2515Genuine issues of material fact existed

as to whether the United States exerciseddue care in maintenance and operation ofthe Mississippi River-Gulf Outlet (MRGO)project, precluding summary judgment infavor of the United States on issue ofwhether due care exception to FederalTort Claims Act (FTCA) applied, as wouldprovide immunity to United States againstclaims arising from flood damage allegedlycaused by MRGO. 28 U.S.C.A. § 2680(a).


7. United States O78(12)Discretionary function exception to

the Federal Tort Claims Act (FTCA) barsclaims based on the performance of a dis-cretionary function, and has no require-ment to exercise due care; the statutespecifically dictates that the immunity at-taches regardless of whether the discre-tion is abused. 28 U.S.C.A. § 2680(a).

8. United States O78(12)The basis for the discretionary func-

tion immunity exception to the FederalTort Claims Act (FTCA), which insulatesthe Government from liability if the actionchallenged in the case involves the permis-sible exercise of policy judgment, was Con-gress’ desire to prevent judicial second-guessing of legislative and administrativedecisions grounded in social, economic, andpolitical policy through the medium of anaction in tort. 28 U.S.C.A. § 2680(a).

9. Environmental Law O537Army Corps of Engineers followed

mandate under Fish and Wildlife Coordi-nation Act (FWCA) to consult the Fishand Wildlife Service (FWS) before modify-ing any body of water for any purposewhen Congress authorized Mississippi Riv-er Gulf Outlet, even though FWS was notconsulted prior to authorization by Con-gress; FWCA required consultation onlyafter authorization by Congress, Secretaryof Interior sent letter to Secretary ofArmy stating that FWS was initiating itsinvestigation, and number of conferenceswere held between Corps and FWS re-garding design and recommendations tomitigate losses. Fish and Wildlife Coordi-nation Act, § 2, 16 U.S.C.A. § 662.

10. Environmental Law O589The need for an Environmental Im-

pact Statement (EIS) under NEPA mayarise where a continuing federal activitycauses significant effects with respect to aspecific construction project in a definedgeographic area. National Environmental

Policy Act of 1969, § 102(2)(C), 42U.S.C.A. § 4332(2)(C).

11. Environmental Law O589A federal action could be considered

‘‘significant,’’ requiring an agency to pro-duce an Environmental Impact Statement(EIS) under NEPA, where the context is(a) localized and (b) has long-term effectsand where the intensity level is deter-mined to be severe (c) by balancing benefi-cial versus adverse effects noting that evenif the balance of the effects are consideredbeneficial, if they are severe a report ismandated, (d) by determining whether itwould effect a unique characteristic of thegeographic area such as wetlands, (e) byascertaining whether it involves uncertain-ty or unknown risks to the human environ-ment and (f) by determining whether onewould reasonably anticipate a cumulativelysignificant impact on the environment.National Environmental Policy Act of1969, § 102(2)(C), 42 U.S.C.A.§ 4332(2)(C); 40 C.F.R. § 1508.27.


12. Environmental Law O600A consideration of cumulative impacts

for an Environmental Impact Statement(EIS) under NEPA must consider closelyrelated and proposed or reasonably fore-seeable actions that are related by timingor geography. National EnvironmentalPolicy Act of 1969, § 102(2)(C), 42U.S.C.A. § 4332(2)(C); 40 C.F.R. § 1508.7.

13. Environmental Law O591‘‘Improper segmentation’’ of federal

actions, as would violate NEPA, occurswhen federal agencies plan a number ofrelated actions, but decide to prepare envi-ronmental impact statements on each ac-tion individually, rather than prepare animpact statement on the entire group; thisdecision creates a segmentation or piece-


mealing problem as it avoids analysis ofthe cumulative impact of the actions. Na-tional Environmental Policy Act of 1969,§ 102(2)(C), 42 U.S.C.A. § 4332(2)(C).


14. Environmental Law O591An analysis of improper segmentation

of federal action for an Environmental Im-pact Statement (EIS) under NEPA re-quires that where proceeding with oneproject will, because of functional or eco-nomic dependence, foreclose options or ir-retrievably commit resources to futureprojects, the environmental consequencesof the projects should be evaluated togeth-er. National Environmental Policy Act of1969, § 102(2)(C), 42 U.S.C.A.§ 4332(2)(C); 40 C.F.R. § 1508.7.

15. Environmental Law O583An Environmental Assessment (EA)

can be insufficient under NEPA if thecircumstances of the proposed federal ac-tion clearly require the production of anEnvironmental Impact Statement (EIS) orSupplemental Environmental ImpactStatement (SEIS) because of the incre-mental impact of the action when added toother past, present, and reasonably fore-seeable future actions. National Environ-mental Policy Act of 1969, § 102(2)(C), 42U.S.C.A. § 4332(2)(C); 40 C.F.R.§§ 1501.4, 1508.9.

16. Environmental Law O597The process to publish a Supplemental

Environmental Impact Statement (SEIS)under NEPA to evaluate whether to con-tinue with a proposed project is triggeredwhen new information presents a seriouslydifferent picture of the environmentallandscape, such that another in-depth lookat the environment is necessary. NationalEnvironmental Policy Act of 1969,§ 102(2)(C), 42 U.S.C.A. § 4332(2)(C); 40C.F.R. § 1502.9(c)(1).

17. Environmental Law O597An agency is not free to ignore the

possible significance of new informationregarding environmental impact of theiractions; the National Environmental PolicyAct (NEPA) requires that the agency takea hard look at the new information todetermine whether a Supplemental Envi-ronmental Impact Statement (SEIS) isnecessary. National Environmental PolicyAct of 1969, § 2, 42 U.S.C.A. § 4321; 40C.F.R. § 1502.9(c)(1)(ii).

18. Environmental Law O587For purposes of reporting require-

ments under NEPA, appropriation bills donot constitute ‘‘legislation.’’ National En-vironmental Policy Act of 1969,§ 102(2)(C), 42 U.S.C.A. § 4332(2)(C).


19. Environmental Law O595(3) United States O78(12)

To the extent that Army Corps ofEngineers knew, recognized, and internal-ly reported that actions in operation andmaintenance of Mississippi River-Gulf Out-let (MRGO) had significant impact on wet-lands adjacent to its project, filing an En-vironmental Impact Statement (EIS) wasrequired under NEPA, and therefore, dis-cretionary function exception did not applyto action against Corps under FederalTort Claims Act (FTCA) based on floodingallegedly caused by MSGO. 28 U.S.C.A.§ 2680(a); National Environmental PolicyAct of 1969, §§ 2, 102(2)(C), 42 U.S.C.A.§§ 4321, 4332(2)(C).

20. Environmental Law O595(7)Amendment to Mississippi River-Gulf

Outlet (MRGO) project authorization thatmodified conditions for local cost sharingwith respect to building of certain bridgesdid not require Environmental ImpactStatement (EIS) under NEPA; nothing in


amendment would significantly affect qual-ity of human life. National EnvironmentalPolicy Act of 1969, § 102(2)(C), 42U.S.C.A. § 4332(2)(C).

21. Environmental Law O595(3)Army Corps of Engineers was not

mandated by National Environmental Pol-icy Act (NEPA) to prepare Environmen-tal Impact Statement (EIS) followingamendment to authorizing act for Missis-sippi River-Gulf Outlet project (MRGO)that required annual report to Congresson requirements to include members ofminority groups in project; Corps had notrecognized that any change would signifi-cantly affect the quality of the human en-vironment. National Environmental Poli-cy Act of 1969, §§ 101, 102(2)(C), 42U.S.C.A. §§ 4331, 4332(2)(C).


mandated by National Environmental Poli-cy Act (NEPA) to prepare EnvironmentalImpact Statement (EIS) following amend-ment to authorizing act for MississippiRiver-Gulf Outlet project that requiredcommunity impact mitigation plan to miti-gate or compensate for direct and indirectsocial and cultural impacts of project;Corps had not recognized that any changewould significantly affect the quality of thehuman environment. National Environ-mental Policy Act of 1969, §§ 101,102(2)(C), 42 U.S.C.A. §§ 4331, 4332(2)(C).


mandated by National Environmental Poli-cy Act (NEPA) to prepare EnvironmentalImpact Statement (EIS) regarding Missis-sippi River-Gulf Outlet project followingrequest for appropriations; guidelines thatstated appropriations required EIS wereadvisory in nature. National Environ-mental Policy Act of 1969, §§ 101,102(2)(C), 42 U.S.C.A. §§ 4331, 4332(2)(C).

24. Environmental Law O573, 595(3)

Mississippi River-Gulf Outlet Projectdid not violate executive order that re-quired findings by agency head that therewas no practicable alternative to construc-tion and that proposed construction includ-ed all practicable measures to minimizeharm to wetlands; executive order onlyapplied to new construction, and project’sFinal Environmental Impact Statement(FEIS) pertaining to operation and main-tenance had been completed prior to exec-utive order. 40 C.F.R. § 1502.9(c)(1); Ex-ecutive Order No. 11990, 42 U.S.C.A. 4321note.

25. Environmental Law O604(3)

Final Environmental Impact State-ment (FEIS) by Army Corps of Engineersfor the Mississippi River-Gulf Outlet pro-ject that was segmented into separateFEIS that individually dealt with originalconstruction and operation and mainte-nance did not violate National Environ-mental Policy Act (NEPA); segmentationwas at discretion of Corps, and Corps hadnot recognized cumulative effect of envi-ronmental impacts would significantly af-fect human environment. National Envi-ronmental Policy Act of 1969, §§ 101,102(2)(C), 42 U.S.C.A. §§ 4331, 4332(2)(C);40 C.F.R. § 1502.9(c)(1).

26. Federal Civil Procedure O2515

Genuine issue of material fact exist-ed as whether Army Corps of Engineers’alleged failure to file National Environ-mental Policy Act (NEPA) reports forMississippi River-Gulf Outlet was causallyconnected to flood damage, precludingsummary judgment on flood victims’ ac-tion under Federal Tort Claim Act(FTCA). National Environmental PolicyAct of 1969, § 2, 42 U.S.C.A. §§ 4321; 28U.S.C.A. § 1346(b).


27. United States O78(12)Discretionary function immunity from

Federal Tort Claims Act (FTCA) claimbrought by flood victims applied to UnitedStates for design and construction of Mis-sissippi River-Gulf Outlet (MRGO) project;there was no violation of any mandate, anddecisions made were policy driven. 28U.S.C.A. § 2680(a).

28. United States O78(12)Where the government has undertak-

en responsibility for the safety of a pro-ject, the execution of that responsibility isnot subject to the discretionary functionimmunity exception under the FederalTort Claims Act (FTCA); the decision toadopt safety precautions may be based inpolicy considerations, but the implementa-tion of those precautions is not. 28U.S.C.A. § 2680(a).

29. Federal Civil Procedure O2515Genuine issue of material fact existed

as to whether, once Army Corps of Engi-neers exercised discretion to create navi-gational channel for Mississippi River-GulfOutlet project, Corps was obligated to usedue care to ensure channel did not destroyenvironment surrounding it by creatinghazard, precluding summary judgment infavor of United States on issue of discre-tionary function immunity to claims underFederal Tort Claims Act (FTCA). 28U.S.C.A. § 2680(a).

30. Federal Civil Procedure O2515Genuine issue of material fact existed

as to whether Army Corps of Engineersshould have warned Congress about poten-tial loss of life and property from wideningof channel and loss of wetlands as requiredby NEPA, precluding summary judgmentin favor of the United States on issue ofdiscretionary function immunity to claimsunder Federal Tort Claims Act (FTCA) inaction for flooding damages allegedlycaused by Mississippi River-Gulf Outletproject. 28 U.S.C.A. § 2680(a); National

Environmental Policy Act of 1969,§ 102(2)(C), 42 U.S.C.A. § 4332(2)(C).

31. Federal Civil Procedure O2515

Genuine issues of material fact existedas to whether decisions made with respectto the Mississippi River-Gulf Outlet(MRGO) project maintenance were policybased, precluding summary judgment infavor of the United States on issue ofdiscretionary function immunity to claimsunder Federal Tort Claim Act (FTCA)brought by flood victims. 28 U.S.C.A.§ 2680(a).

Daniel E. Becnel, Jr., Becnel Law Firm,LLC, Reserve, LA, Jonathan BeauregardAndry, The Andry Law Firm, Brian Ar-thur Gilbert, Law Office of Brian A. Gil-bert, PLC, Karl Wiedemann, Lawrence D.Wiedemann, Wiedemann & Wiedemann,Joseph M. Bruno, Lewis Scott Joanen,Bruno & Bruno, New Orleans, LA, DavidW. Druker, Lawrence A. Wilson, Wilson,Grochow, Druker & Nolet, New York, NY,Patrick Joseph Sanders, Patrick J. Sand-ers, Attorney at Law, Metairie, LA, Rich-ard T. Seymour, Law Office of Richard T.Seymour, PLLC, Washington, DC, ShawnKhorrami, Khorrami, Pollard & Abir,LLP, Los Angeles, CA, for Plaintiffs.

Thomas P. Anzelmo, Kyle P. Kirsch,Mark Emerson Hanna, McCranie, Sis-trunk, William Lee Kohler, Gardner &Kewley, APLC, Jennifer May Morris, Jo-seph Edward Bearden, III, Nicole M. Boy-er, Duplass, Zwain, Bourgeois, Morton,Pfister & Weinstock, Gerald J. Nielsen,Nielsen Law Firm, Metairie, LA, AndreJude Lagarde, U.S. Attorney’s Office,Heather M. Valliant, Gieger, Laborde &Laperouse, LLC, Victor L. Papai, Jr., CityAttorney’s Office, J. Warren Gardner, Jr.,Christovich & Kearney, LLP, Ralph Shel-


ton Hubbard, III, April Rochelle Roberts,Joseph Pierre Guichet, Rachel Ann Meese,Lugenbuhl, Wheaton, Peck, Rankin &Hubbard, S. Ault Hootsell, III, JacquelineM. Brettner, Nora Bolling Bilbro, PhelpsDunbar, LLP, Judy Y. Barrasso, Barrasso,Usdin, Kupperman, Freeman & Sarver,LLC, Brent A. Talbot, Chaffe McCallLLP, George Davidson Fagan, Marc E.Devenport, Leake & Andersson, LLP, Wil-liam D. Treeby, Stone, Pigman, Walther,Wittmann, LLC, Stephen R. Barry, Barry& Piccione, Thomas Christopher Penne-baker, Orrill, Cordell & Beary, LLC, NewOrleans, LA, Ben Louis Mayeaux, JamesL. Pate, Laborde & Neuner, Lafayette,LA, Darcy Elizabeth Decker, Rabalais,Unland & Lorio, John Fredrick Kessenich,Jon A. Van Steenis, Jonathan H. Sandoz,Kirk Norris Aurandt, Michael WilliamMcMahon, Daigle & Fisse, Covington, LA,Robin D. Smith, Conor Kells, David Samu-el Silverbrand, Jeffrey Paul Ehrlich, Jessi-ca G. Sullivan, John Woodcock, Peter G.Myer, Rupert Mitsch, Sarah K. Soja, Ta-heerah Kalimah El–Amin, U.S. Depart-ment of Justice, Daniel Michael Baeza, Jr.,U.S. Department of Agriculture, Washing-ton, DC, for Defendants.

ORDER AND REASONS

STANWOOD R. DUVAL, JR., DistrictJudge.

Before the Court are Plaintiffs’ Motionfor Partial Summary Judgment (Doc.16510) and Defendant United States’ Re-newed Motion to Dismiss or, in the Alter-native, for Summary Judgment. (Doc.16511). In this matter, as discussed in theCourt’s previous rulings 1, Plaintiffs 2 havefiled suit against the United States fordamages caused by flooding allegedlycaused by the Mississippi River–Gulf Out-let (‘‘MRGO’’). The gravamen of thesecross-motions focuses on whether the duecare exception and discretionary functionexception, as delineated in 28 U.S.C.§ 2680(a), shields the United States andwarrants the dismissal of Plaintiffs’ suit.

Plaintiffs’ Motion for PartialSummary Judgment

Plaintiffs maintain that they are entitledto judgment on the United States’ third 3

and fourth 4 affirmative defenses which arebased on 28 U.S.C. § 2680(a) because:

(1) the Government cannot carry itsburden to establish that the ArmyCorps of Engineers (‘‘the Corps’’)

1. See In re Katrina Canal Breaches Consolidat-ed Litigation (Robinson v. United States), 471F.Supp.2d 684 (E.D.La.2007) (statutory im-munity as to flooding damages arising out offederal flood control projects did not extendto flooding damages caused by negligent de-sign, construction, maintenance, or operationof navigational channel project); In re Katri-na Canal Breaches Consolidated Litigation(Robinson, C.A. No. 06–2268 and BARGE),577 F.Supp.2d 802 (E.D.La.2008) (questionsof fact precluded determination as to whetherrelationship between MRGO and LakePontchartrain and Vicinity Hurricane Protec-tion Plan precluded determination as towhether immunity found in Flood Control Actbarred claims and questions of fact precludeddetermination as to applicability of the ‘‘duecare’’ and ‘‘discretionary function’’ exceptionsof FTCA). The factual background and legalanalysis contained therein are incorporated

by reference and may, when relevant, be re-peated herein.

2. Norman Robinson, Kent Lattimore, Latti-more & Associates, Tanya Smith, AnthonyFranz, Jr. and Lucille Franz (‘‘Plaintiffs’’) arethe named Plaintiffs.

3. The United States’ Third Defense states,‘‘The claims are barred to the extent that theyare based on the exercise or performance orthe failure to exercise or perform a discretion-ary function or duty. 28 U.S.C. § 2680.’’(Doc. 3640).

4. The United States’ Fourth Defense states,‘‘The claims are barred insofar as they chal-lenge an act or omission of a Governmentemployee exercising due care in the executionof a statute or regulation. 28 U.S.C. § 2680.’’(Doc. 3640).


had discretion to ignore specific legalmandates prescribed in federal stat-utes, regulations, and policy; and

(2) the Government cannot carry itsburden that those decisions weregrounded in political social, or eco-nomic policy because they were notdiscretionary policy choices made inthe implementation of the originaldecision to build the MRGO butwere ordinary non-policy decisionsconcerning technical, engineeringand professional judgments aboutsafety.

However, the focus of their motion pre-sented here is solely on the first argu-ment—that is that because the Corps vio-lated specific mandates, it is not entitled toinvoke the discretionary function excep-tion. Plaintiffs contend that the UnitedStates violated federal law by:

(1) violating the Fish and WildlifeCoordination Act (‘‘FWCA’’) 5 by notconsulting with federal and state en-vironmental agencies and by not re-porting their concerns to Congress;

(2) violating the National Environmen-tal Policy Act (‘‘NEPA’’) 6 by dredg-ing for decades without an adequateenvironmental impact statement;and

(3) violating policies mandating wet-lands protection.

In addition, Plaintiffs contend that theUnited States has the burden of proof todemonstrate that it did not violate thesefederal laws.

The United States’ Renewed Motionto Dismiss or in the AlternativeMotion for Summary Judgment

The United States contends in its mo-tion that the discretionary function excep-tion protects the Army Corps of Engi-neers’ (‘‘the Corps’ ’’) design, construction,

operation, repair and maintenance of theMRGO. In essence, it maintains that theCorps built a channel that it was mandatedto do. The mandated design created thehydraulic funnel of which Plaintiffs’ com-plain when the Corps joined Reach 2(which is the southeastern reach ofMRGO) to the Gulf Intercoastal Waterway(‘‘GIWW’’) at a point near Michoud toReach 1, which commingled the two chan-nels continuing as one from that pointwestward to the Inner–Harbor Navigation-al Canal (‘‘IHNC’’). The Government fur-ther contends that it then maintained thechannel in the mandated 36–foot depth and500–foot width using due care.

In addition, the United States contendsthat the features that Plaintiffs maintainwere necessary to eliminate the allegedharmful hydraulic effects—surge barriersand bank protection—were not part of theplans for the MRGO and were ‘‘positivelyexcluded.’’ (Doc. 16564 at 2). Thus, itargues that ‘‘the only channel, in Plaintiffs’view, that would have comported with theexercise of ‘due care’—was a differentchannel from the one that the Chief ofEngineers recommended and that Con-gress directed the Corps to construct.’’(Doc. 16564 at 3).

The Corps further contends that chang-ing the project to add surge barriers andbank protection would not have promotedthe purpose of the MRGO which was toprovide an aid to navigation. In addition,they maintain that ‘‘the addition of thesefeatures would have invalidated the cost-benefit calculations that were an essentialunderpinning of the Chief’s recommenda-tion that construction be authorized.’’(Doc. 16564 at 3). Also, the Corps arguesthat the discretionary function exceptionbars Plaintiffs’ claims that improperdredging contributed to the widening of

5. 16 U.S.C. § 662. 6. 42 U.S.C. §§ 4321–4370f.


the channel; it asserts that its decision toinstall bank protection only where doing sowas considered to be more economicalmethod of maintaining the channel’s pre-scribed depth and width would be a policydecision protected by the discretionaryfunction exception of § 2680.7

The Court will address the legal frame-work that it will use to analyze these twomotions. It will examine the due careexception and the discretionary functionexception in the context of the argumentsmade herein. In so doing it will re-empha-size its previous analysis of this bar toPlaintiffs’ claims as found in In re KatrinaCanal Breaches Consolidated Litigation(Robinson, C.A. No. 06–2268 andBARGE), 577 F.Supp.2d 802 (E.D.La.2008). However, considering the instantallegations, a further examination of theseconcepts is required, including a discussionconcerning who bears the burden of proofon the immunity issues. LEGAL FRAMEWORK AND ANAL-YSIS

I. Standard for Summary Judgment

Summary judgment should be granted‘‘if the pleadings, depositions, answers tointerrogatories, and admissions on file, to-gether with the affidavits, if any, show thatthere is no genuine issue as to any materi-al fact and that the moving party is enti-tled to a judgment as a matter of law.’’Fed.R.Civ.P. 56(c). Thus, ‘‘ ‘summaryjudgment is proper when the pleadingsand evidence demonstrate that no genuineissue of material fact exists and the mov-ant is entitled to judgment as a matter oflaw.’ ’’ Condrey v. SunTrust Bank ofGeorgia, 429 F.3d 556, 562 (5th Cir.2005),citing DIRECTV, Inc. v. Budden, 420 F.3d521, 529 (5th Cir.2005). Substantive lawdetermines the materiality of facts, and‘‘[o]nly disputes over facts that might af-

fect the outcome of the suit under thegoverning law will properly preclude theentry of summary judgment.’’ Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 248,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party ‘‘bears the initial re-sponsibility of informing the district courtof the basis for its motion, and identifyingthose portions of [the record] TTT which itbelieves demonstrate the absence of a gen-uine issue of material fact.’’ Celotex Corp.v. Catrett, 477 U.S. 317, 323, 106 S.Ct.2548, 91 L.Ed.2d 265 (1986); Condrey, 429F.3d at 562. Once the movant meets thisburden, the burden shifts to the non-mov-ant ‘‘to make a showing sufficient to estab-lish the existence of an element essentialto that party’s case, and on which thatparty will bear the burden of proof attrial.’’ Celotex, 477 U.S. at 322, 106 S.Ct.2548. ‘‘[M]ere allegations or denials’’ willnot defeat a well-supported motion forsummary judgment. Fed.R.Civ.P. 56(e).Rather, the non-movant must come for-ward with ‘‘specific facts’’ that establish anissue for trial. Id.

The Fifth Circuit Court of Appeals hasrecognized that where the matter is to betried to the Court rather than a jury, thatthere might be a ‘‘non-jury motion forsummary judgment standard’’ that is morelenient. ‘‘Under the suggested more le-nient standard, the district judge couldgrant summary judgment based on infer-ences drawn from incontrovertibly provenfacts, so long as there is no issue of wit-ness credibility.’’ Illinois Central R.R. Co.v. Mayeux, 301 F.3d 359, n. 1 (5th Cir.2002). However, the appellate court hasnoted that it has not actually beenadopted, and the Court will not do so here.Id.

7. It is interesting to note that while the intro-duction to the United States’ motion focuseson the ‘‘due care’’ exception found in the first

part of § 2680(a), the thrust of the motionrelies on the discretionary function exceptionfound in the second part of § 2680(a).


Thus, when deciding a motion for sum-mary judgment, the Court must avoid a‘‘trial on affidavits. Credibility determina-tions, the weighing of the evidence, andthe drawing of legitimate inferences fromthe facts’’ are tasks for the trier-of-fact.Anderson, 477 U.S. at 255, 106 S.Ct. 2505.To that end, the Court must resolve dis-putes over material facts in the non-mov-ant’s favor. ‘‘The party opposing a motionfor summary judgment, with evidencecompetent under Rule 56, is to be be-lieved.’’ Leonard v. Dixie Well Service &Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

II. The Federal Tort Claims Act andthe Relevant Exceptions

This Court has previously set out indetail the statutory provisions upon whichthis suit is based and the immunitiessought to be applied in In re KatrinaCanal Breaches Consolidated Litigation,471 F.Supp.2d 684 (E.D.La.2007). Thatopinion was from the perspective of a Rule12 motion on the application of the sameimmunities which are at issue herein. TheCourt will reiterate and expand upon itsanalysis here.

As explained in United States v. S.A.Empresa de Viacao Aerea Rio Grandense(Varig Airlines), 467 U.S. 797, 104 S.Ct.2755, 81 L.Ed.2d 660 (1984):

The Federal Tort Claims Act, 28 U.S.C.§ 1346(b), authorizes suits against theUnited States for damages:

for injury or loss of property, or per-sonal injury or death caused by thenegligent or wrongful act or omissionof any employee of the Governmentwhile acting within the scope of hisoffice or employment, under circum-stances where the United States, if aprivate person, would be liable to theclaimant in accordance with the law ofthe place where the act or omissionoccurred.

The Act further provides that the Unit-ed States shall be liable with respect totort claims ‘‘in the same manner and tothe same extent as a private individualunder like circumstances.’’ [28 U.S.C.]§ 2674.

Varig Airlines, 467 U.S. at 807–08, 104S.Ct. 2755. However, Congress did notwaive the sovereign immunity of the Unit-ed States in all respects. Section 2680 ofTitle 28 of the United States Code pro-vides two salient exceptions—the due careexception and the discretionary functionexception. The statute provides:

(a) Any claim based upon an act oromission of an employee of the Govern-ment, exercising due care, in the execu-tion of a statute or regulation, whetheror not such statute or regulation be val-id, or based upon the exercise or per-formance or the failure to exercise orperform a discretionary function or dutyon the part of a federal agency or anemployee of the Government, whetheror not the discretion involved be abused.

28 U.S.C. § 2680(a). The first part of thisstatute is known as the ‘‘due care excep-tion’’ and the second part of the statute isknown as the ‘‘discretionary function ex-ception.’’ Both operate to shield the Unit-ed States from liability based on the Fed-eral Tort Claims Act (28 U.S.C. § 1346(a))(‘‘FTCA’’).

Burden of Proof

[1, 2] As most recently stated by theUnited States Court of Appeals for theFifth Circuit,

‘‘Plaintiff[s] bear[ ] the burden of show-ing Congress’s unequivocal waiver ofsovereign immunity.’’ St. TammanyParish v. Fed. Emergency Mgmt. Agen-cy, No. 08–30070 [556 F.3d 307, 315],2009 WL 146582, at *6 (5th Cir. Jan. 22,2009). ‘‘At the pleading stage, plain-tiff[s] must invoke the court’s jurisdic-


tion by alleging a claim that is faciallyoutside of the discretionary function ex-ception.’’ Id. at [315] *6 & n. 3 (citing[United States v.] Gaubert, 499 U.S.[315] at 324–25, 111 S.Ct. 1267 [113L.Ed.2d 335 (1991) ] ).

Freeman v. United States, 556 F.3d 326,334 (5th Cir.2009). As the litigants arewell aware, the Court considered theseissues at the pleading stage and deniedthem as raising questions of fact. (See n. 1above). While the motion is styled alter-natively as ‘‘re-urging’’ the Rule 12(b)(1)motion, the Court has considered evidencepresented, thus the motion is in reality onefor summary judgment. As such, theCourt must examine who should carry theburden of proof in this instance.

‘‘As is generally the case with waivers ofsovereign immunity, the plaintiff bears theburden of proving that the government’swaiver is applicable. On a related point,several federal courts have held that theburden of proving the applicability of anexception to a waiver of sovereign immuni-ty falls on the United States.’’ Wright,Miller & Cooper, 14 Federal Practice andProcedure § 3658 at n. 11 and n. 12. SeeAshford v. United States, 511 F.3d 501,505 (5th Cir.2007) (government could notshow as a matter of law that it had discre-tion where prison policy required placingplaintiff in solitary where inmate raisedsafety concern)(‘‘Government needs to es-tablish there was ‘‘room for choice’’ inmaking the allegedly negligent decision’’for first DFE exception to apply); Meran-do v. United States, 517 F.3d 160 (3dCir.2008) (plaintiff bears burden of demon-strating that his claims fall within thescope of FTCA but United States has theburden of proving the applicability of thediscretionary function exception); MarlysBear Medicine v. United States, 241 F.3d1208, 1213 (9th Cir.2001) (burden of proofof the applicability of the discretionaryfunction exception is on the UnitedStates)(citing Prescott v. United States,

973 F.2d 696, 702 (9th Cir.1992)); Carlylev. United States, 674 F.2d 554 (6th Cir.1982) (plaintiffs’ allegations must fall fa-cially outside the exceptions of § 2680;however, government must prove applica-bility of a specific provision of § 2680;plaintiff need not disprove every exceptionunder discretionary function exception);Cazales v. Lecon, Inc., 994 F.Supp. 765(S.D.Tex.1997) (plaintiff bears initial bur-den of proving that subject matter juris-diction exists under the FTCA; however,the United States Bears ultimate burdenof proving that discretionary function ex-ception applies in particular case). Butsee Le Rose v. United States, 285 Fed.Appx. 93 (4th Cir.2008) (plaintiffs boreburden of proof to show unequivocal waiv-er of sovereign immunity existed and toshow that none of the FTCA waiver excep-tions applied); Welch v. United States, 409F.3d 646 (4th Cir.2005) (burden is on plain-tiff to show that unequivocal waiver ofsovereign immunity exists and no excep-tions under FTCA apply); Hawes v. Unit-ed States, 409 F.3d 213 (4th Cir.2005) (bur-den is on plaintiff to defeat assertion byUnited States of discretionary exception toFederal Tort Claims Act sovereign immu-nity waiver).

[3] Thus, at a minimum, it is clear thatthe Fifth Circuit in Ashford placed theburden of proof on the United States onthe first prong of the discretionary func-tion exception to demonstrate that the de-cisions which it claims are shielded by thediscretionary function exception are indeedsubject to the exercise of judgment assum-ing plaintiff has properly pleaded a man-date. It is not so clear where this Circuitlies in terms of the burden of proof as tothe second prong, that is whether the Gov-ernment must demonstrate that the actionfalls into the realm of a policy decision orwhether that burden rests with Plaintiffsto show that the decision at issue is in the


nature of a technical, engineering, or pro-fessional judgment or other non-policybased actors rather than about policy.However, given the issues presented inlight of the facts and evidence, the burdenof proof is not really determinative of theissues presented herein.

The Court will now turn to the substan-tive issues at hand. Given the fact thatPlaintiffs’ motion focuses on the firstprong of the discretionary function excep-tion which is on of the bases of the Gov-ernment’s motion, the Court has deter-mined that the analysis will not be done interms of each motion. Rather, it will ruleon the issues seriatim.

A. Due Care Exception and ItsApplication with Respect to the

United States’ Motion

[4, 5] The ‘‘due care’’ exception immu-nizes the Government from suit with re-spect to claims based on the execution of astatute or regulation and requires ‘‘for itsapplication that the actors have exerciseddue care.’’ Lively v. United States, 870F.2d 296, 297 (5th Cir.1989); Buchanan v.United States, 915 F.2d 969 (5th Cir.1990).This provision ‘‘bars tests by tort action ofthe legality of statutes and regulations.’’Dalehite v. United States, 346 U.S. 15, 32,73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953).Thus, the test for the application of the‘‘due care’’ exception is to determine (1)whether the statute or regulation in ques-tion specifically proscribes a course of ac-tion, and (2) if mandated, whether due carewas exercised. Welch v. United States,409 F.3d 646, 652 (4th Cir.2005); Crump-ton v. Stone, 59 F.3d 1400, 1403 (D.C.Cir.1995).

The Government contends that since theCorps’ design, construction, operation, re-pair, and maintenance of the MRGO weredone ‘‘substantially in accordance with the

recommendation of the Chief of Engi-neers,’’ its actions were in accordance withPublic Law 84–455—the enabling legisla-tion for the MRGO—and thus is immunefrom suit. However, Plaintiffs maintainthat such a position is erroneous because:

(1) This exception is aimed at shieldingthe United States from suit wherethe legality of the statute itself is atissue. As Plaintiffs do not challengethe validity of Pub. La. No. 84–455,this immunity is inapplicable.

(2) Public Law No. 84–455 did not man-date the challenged conduct here.Congressional authorization was amandate for the Corps, using its pro-fessional engineering judgment andexpense, to build, operate, and main-tain the MRGO in a safe competentprofessional manner.

(3) Public law No. 84–455 did not ex-empt the Corps from all other exist-ing laws as it relates to MRGO—inparticular the FWCA and NEPA.8

(4) It is sharply disputed whether duecare was exercised, particularly withrespect the maintenance and opera-tion of MRGO.

The United States responds to thesecontentions by admitting that not everysingle action undertaken by the Corps indesigning, constructing, operating andmaintaining the MRGO is protected by thedue care exception. (Doc. 16923 at 24).Rather it argues that it was not preventedfrom ‘‘exercising its engineering judge-ment in deciding what angle to prescribefor the sides of the MRGO or what type ofdredging to employ or even exactly whatroute the channel should take.’’ The Unit-ed States argues that the due care excep-tion should apply because:

8. These allegations are at the heart of Plain-tiffs’ contention that the United States is not

entitled to invoke the discretionary functionexception and will be explained infra.


(1) it was not free not to create the‘‘funnel effect’’ by virtue of the Con-gressional mandate;

(2) it was not free not to create the‘‘conduit’’ by virtue of the Congres-sional mandate; and

(3) the mandate did not include authori-ty to add channel protection, surgeor saltwater barriers.

The final argument of the United States isthat Plaintiffs’ argument that:

they are not challenging the validity ofthe authorizing statute is refuted bytheir complaints about these supposed‘‘defects’’ in the project that Congressauthorized and which the Corps was notfree to remedy under the authority con-ferred by statue. Plaintiffs are implicit-ly challenging the statute by saying that‘due care’ required that the Corps notconstruct the MRGO as the law require.

Doc. 16923 at 25.

[6] The United States’ argument re-quires the Court in essence to ignorePlaintiffs’ allegations and recast the com-plaint. Whether the Corps exercised duecare lies at the heart of this case, andPlaintiffs have presented voluminous evi-dence attempting to demonstrate that in amyriad of ways due care was not exer-cised. The Government’s proposed broaduse of the due care exception is not war-ranted in light of Plaintiffs’ allegations. Itappears to the Court that once Plaintiffsallege and offer substantial evidence thatdue care was not used by the Corps, cer-tainly in the context of maintenance andoperation, the cloak of this immunity stat-ute is unavailable, and the Corps must relyon the discretionary function exception forimmunity.

However, if at trial, the Government canadduce sufficient proof that it followed thecongressional mandate and Plaintiffs can-not or do not demonstrate any defalcationin the design and/or construction of theMRGO, this immunity may apply to those

two actions. There is a paucity of proofthat the Corps did not follow the mandatein the actual design or building of theMRGO. On the other hand, Plaintiffs havecreated substantial questions of fact as towhether due care was exercised in themaintenance and operation of theMRGO. As such, this first exception isunavailable to the United States for thepurposes of summary judgment.

B. Discretionary Function Exception

[7] The discretionary function excep-tion bars claims based on the performanceof a discretionary function and has no re-quirement to exercise due care. In fact,the statute specifically dictates that theimmunity attaches regardless of whetherthe discretion is abused. Lively, 870 F.2dat 297. In Ashford, the United StatesCourt of Appeals for the Fifth Circuitrecently set forth a succinct and workableexplanation of the two distinct prerequi-sites for the application of the discretion-ary function exception. In discussingwhether the exception applied as a matterof law, the court stated:

We begin with the basics. Generally,sovereign immunity bars suits againstthe Government; this notion ‘‘derivesfrom the British legal fiction that ‘theKing can do no wrong,’ and thereforecan never appear as a defendant in ‘his’own courts.’’ [Santana–Rosa v. UnitedStates, 335 F.3d 39, 41–42 (1st Cir.2003)(internal citation omitted) ]. Under theFTCA, however, the Government haswaived sovereign immunity for personalinjury claims caused by ‘‘the negligentor wrongful act or omission of any em-ployee of the Government while actingwithin the scope of his [or her] office oremployment, under circumstances wherethe United States, if a private person,would be liable to the claimant in accor-dance with the law of the place wherethe act or omission occurred.’’ [28


U.S.C. § 1346(b)(1) ]. While the FTCAtakes two steps forward in allowing indi-viduals to receive compensation for thenegligent conduct of the Government, ittakes one step back with the numerousstatutory exceptions that limit the cir-cumstances under which individuals maybring suit. [28 U.S.C. § 2680]. Per-haps the exception that is the most fre-quent retreat is the discretionary-func-tion exception, which affords the UnitedStates protection against any FTCAclaim ‘‘based upon the exercise or per-formance or failure to exercise or per-form a discretionary function or duty onthe part of a federal agency or an em-ployee of the Government.’’ [28 U.S.C.§ 2680(a) ]. The Supreme Court hasadded some flesh to that bare-bonedstatutory skeleton, setting up a two-parttest to determine whether the discre-tionary-function exception has been trig-gered. [United States v. Gaubert, 499U.S. 315, 322–23, 111 S.Ct. 1267, 1273–74, 113 L.Ed.2d 335 (1991) ]. First, forthe exception to apply, the challengedact must involve an element of judg-ment. [Id. at 322, 111 S.Ct. at 1273].In other words, the Government needsto establish there was ‘‘room for choice’’in making the allegedly negligent deci-sion. [Id. at 323, 111 S.Ct. at 1274]. Ifa ‘‘federal statute, regulation or policy’’specifically prescribes a course of actionfor the federal employee to follow, theemployee has no choice but to adhere tothe directive. [Id. at 322, 111 S.Ct. at1273]. If the Government can establishthat the challenged act involved an ele-ment of judgment, step two of the test ismet and the discretionary-function ex-ception will apply only if that judgmentis of the kind that the exception wasdesigned to shield. [Id. at 322–23, 111S.Ct. at 1273–74].

Ashford, 511 F.3d at 505 (5th Cir.2007).Indeed, the Supreme Court case law inter-preting the discretionary function excep-

tion unequivocally denies the Governmentits protection where the actions are unau-thorized because they are unconstitutional,proscribed by statute or exceed the scopeof an official’s authority. Castro v. UnitedStates, 560 F.3d 381 (5th Cir.2009) (revisededition), citing Thames Shipyard & Re-pair Co. v. United States, 350 F.3d 247,254 (1st Cir.2003).

[8] Accordingly, the second inquiry fo-cuses on whether that judgment or choiceis based on considerations of public policy.As stated in Berkovitz v. United States,486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d531 (1988), ‘‘The basis for the discretionaryfunction exception was Congress’ desire to‘prevent judicial ‘‘second-guessing’’ of leg-islative and administrative decisionsgrounded in social, economic, and politicalpolicy through the medium of an action intort.’ United States v. Varig Airlines [467U.S.] at 814, 104 S.Ct. at 2764–2765.’’ Ber-kovitz 486 U.S. at 537, 108 S.Ct. 1954.‘‘The discretionary function exception insu-lates the Government from liability if theaction challenged in the case involves thepermissible exercise of policy judgment.’’Id.

However, the Fifth Circuit specificallyrejected the Government’s contention:

that if Government activity involves con-duct that is rooted in policy, the discre-tionary function exception bars a causeof action based on that conduct unlessthe Government employee violated amandatory regulation that restricts hisdiscretion or judgment. Under this in-terpretation two types of activity wouldfall within the exception: violations ofspecific, mandatory regulations or stat-utes and ordinary common law tortswhere the exercise of discretion is notbased on policy considerations.

Lively, 870 F.2d at 299. The exception isnot so limited. The appellate court foundthat such an interpretation:


would subsume the FTCA: virtually anydecision to act or not to act could becharacterized as a decision grounded ineconomic, social or public policy and,thus, exempt. Although we construe theexception broadly, we have never con-strued it so that the exception swallowsthe rule. We therefore reaffirm ourholding that in determining whether thediscretionary function exception applies,we examine the nature and quality ofthe activity to determine if it is the typethat Congress sought to protect.

Id.

1. First Issue—Whether a FederalStatute, Regulation or Policy Spe-cifically Prescribes a Course of Ac-tion for the Corps such that It HadNo Choice But To Comply with thatStatute, Regulation or Policy

As noted above, Plaintiffs have basedtheir Motion for Partial Summary Judg-ment on the argument that the Corps vio-lated a number of mandates which de-prives the Corps of the immunity of thediscretionary function exception in the firstinstance. The Court will now examineeach alleged defalcation.

a. Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Actwas enacted in 1934 and codified at 16U.S.C. § 662. In 1946, Congress amendedthe bill to provide:

Whenever the waters of any stream orother body of water are authorized tobe impounded, diverted, or otherwisecontrolled for any purpose whatever byany department or agency of the UnitedStates, TTT such department or agencyfirst shall consult with the Fish andWildlife ServiceTTTT

1946 Amendment to the Fish and WildlifeCoordination Act of August 14, 1946, § 1,ch. 965, 60 Stat. 1080 (1946) (‘‘FWCA’’)(emphasis added). This language indicates

the requirement to consult was triggeredby authorization.

The Corps issued its Chief’s Report toCongress in 1951. Congress acted on thatreport in 1956 when it authorized construc-tion of the MRGO. See Pub.L. No. 84–455,70 Stat. 65 (1956). That legislation provid-ed in its entirety as follows:

Be it enacted by the Senate and Houseof Representatives of the United Statesof America in Congress assembled, Thatthe existing project for Mississippi RiverBaton Rouge to the Gulf of Mexico ishereby modified to provide for the Mis-sissippi River–Gulf Outlet to be prose-cuted under the direction of the Secre-tary of the Army and supervision of theChief of Engineers, substantially in ac-cordance with the recommendation ofthe Chief of Engineers contained inHouse Document Numbered 245,Eighty-second Congress, at an estimat-ed cost of $88,000,000: Provided, Thatwhen economically justified by obsoles-cence of the existing industrial canallock, or by increased traffic, replacementof the existing lock or an additional lockwith suitable connections is hereby ap-proved to be constructed in the vicinityof Meraux, Louisiana, with type, dimen-sions, and cost estimates to be approvedby the Chief of Engineers: Providedfurther, That the conditions of local co-operation specified in House DocumentNumbered 245, Eighty-second Congress,shall likewise apply to the constructionof said lock and connection channels.

Approved March 29, 1956.

Id. This authorization triggered the re-quirement to consult under the FWCA.

In 1958, the FWCA was further amend-ed to provide:

(a) Except as hereafter stated in sub-section (h) of this section, whenever, thewaters of any stream or other body ofwater are proposed or authorized to be


impounded, diverted, the channel deep-ened or the stream or other body ofwater otherwise controlled or modifiedfor any purpose whatever, includingnavigation and drainage, by any de-partment or agency of the UnitedStates, or by any public or private agen-cy under Federal permit or license, suchdepartment or agency first shall con-sult with the United States Fish andWildlife Service and such State agen-cy for the purpose of determiningmeans and measures that should beadopted to prevent the loss of or dam-age to such wildlife resources and im-provement of such resources, shall bemade an integral part of any reportprepared or submitted by any agencyof the Federal Government responsi-ble for engineering surveys and con-struction.TTTT

In furtherance of such purposes, thereports and recommendations [of thoseauthorities] TTT shall be made an inte-gral part of any report prepared orsubmitted by any agency of the Feder-al Government responsible for engi-neering surveys and construction ofsuch projects when such reports arepresented to the Congress or to anyagency or person having the authorityor power, by administrative action orotherwise, (1) to authorize the construc-tion of water-resource development pro-jects or (2) to approve a report on themodification or supplementation ofplans for previously authorized pro-jects, to which this Act appliesTTTT

The reporting officers in the project re-ports of the Federal agencies shall givefull consideration to the reports and rec-ommendations of the Secretary of theinterior and to any report of the Stateagency of the wildlife aspects of suchprojects, and the project plan shall in-clude such justifiable means and meas-ures for wildlife purposes as the report-

ing agency finds should be adopted toobtain maximum overall project benefits.

FWCA, § 2(a)-(b), 72 Stat. 563, 564 (1958)(codified at 16 U.S.C. § 662(a)-(b)) (empha-sis added).

The legislative history set forth in theSenate Report of July 28, 1958, demon-strates that the purpose of the amendmentwas indeed to improve upon failures foundin the 1946 law:

TTT Despite the considerable accom-plishments under the 1946 CoordinationAct, the results have fallen far short ofthe results anticipated by the conserva-tionists who sponsored the 1946 law.The limitations and deficiencies of theact will not permit the Fish and WildlifeServe and the State Fish and GameDepartment to accomplish the objectivesof fish and wildlife conservation and riv-er basin development that are clearlyessential if we are to preserve our fishand wildlife resources on a scale de-manded by the people of the nation.

Principally the 1947 Act does notprovide clear, general authority forthe federal agencies who contract wa-ter-resource projects to incorporate inproject construction and operationplans the needed measures of for fishand wildlife conservation. The Act ismainly concerned with compensatorymeasures to mitigate the loss of or dam-age to fish and wildlife resources; itcontains no clear authority to permitthe planning of installations of appro-priate means and measures to takeadvantage of opportunities providedby water projects for enhancement orimprovement for fish and wildlife re-sources.

Existing law is of questionable appli-cation to many authorized projects, avery serious shortcoming. The Corps ofEngineers, for example has a backlog of650 active authorized projects with an


estimated cost of about $6 billion onwhich construction has not yet started.Many of these cover vast areas, contain-ing some of the most important fish andwildlife resources of the nationTTTT

Most of these projects have never beeninvestigated from the standpoint of theireffects on Fish and wildlife Resources.Many of them were authorize 15 or 20years ago or more.It would make good sense to have thepolicies and procedures of the Coordi-nation Act applicable to them in orderthat the wishes of the Congress inenacting the 1946 statute and the pro-posed amendments can be observed.TTT

Existing law has questionable appli-cation to projects of the Corps of En-gineers for the dredging of bays andestuaries for navigation and fillingpurposes TTT this is a particularly ser-ious deficiency from the standpoint ofcommercial fishing interest. Thedredging of these bays and estuariesalong the coastlines to aid navigationand also to provide land fills for realestate and similar developments, TTT hasincreased tremendously in the last 5years. Obviously, dredging activity ofthis sort has a profound disturbing ef-fect on aquatic life, including shrimp andother species of tremendous significanceto the commercial fishing industryTTTT

The amendments proposed by thisbill would remedy these deficienciesand have several other important advan-tages. The Amendments, would providethat wildlife conservation shall receiveequal consideration with other featuresin the planning of federal water resourcedevelopment programs. this would havethe effect of putting fish and wildlife onthe basis of equality with flood control,irrigation, navigation, and hydroelectricpower in our water resource programs,which is highly desirable and proper,

and represents an objective long soughtby conservationists of the nation.

1958 U.S.C.C.A.N. 3446, 3449–3450, s. Rep.No. 85–1981 (1958) (emphasis added).

[9] This language eviscerates Plain-tiffs’ argument that the language of the1946 version of FWCA mandated thatthe Corps consult with the Fish andWildlife Service and the head of theagency exercising administration over thewildlife resources in Louisiana during theproject’s initial planning—that is prior tosubmission of its 1951 MR–GO Report toCongress and prior to the passage of theenabling legislation in 1956. The clearlanguage of the 1946 version mandatesthat consultation was not required priorto authorization. Thus, there was no le-gal requirement to consult prior to au-thorization in 1956.

From the period of 1956 when theMRGO project was ‘‘authorized’’ throughthe passage of the 1958, the 1946 languageindicates that consultation was necessaryconsidering that the requirement to con-sult was triggered upon the authorization‘‘to impound, divert, or otherwise controlany for any purpose whatever by any de-partment or agency of the United Statesany stream or other body of water.’’ Pre-termitting whether the above-cited legisla-tive history for the 1958 amendments rais-es a question as to whether this ‘‘mandate’’applies to what was a dredging activity—the dredging of wetlands to recreate anavigational channel, Plaintiffs have notpresented sufficient evidence to call intoquestion any alleged non-compliance dur-ing this period of time. The documentsprovided by Plaintiffs and the UnitedStates demonstrate that the Corps indeeddid consult with the U.S. Fish and WildlifeService as provided for in 1946 Act in thepost-authorization mode prior to the 1958Amendment in the fall of that year. Ex-hibit 8 of Plaintiffs’ Motion (Doc. 16510) is


a letter from the Secretary of the UnitedStates Department of the Interior to theSecretary of the Army dated September23, 1957 stating that The United StatesFish and Wildlife Service was initiating itsinvestigation. Exhibit 7 of Plaintiffs’ Mo-tion provides a preliminary draft of AnInterim Report on Fish and Wildlife Re-sources as Related to Mississippi River–Gulf Outlet Project, Louisiana and AnOutline of Proposed Fish and WildlifeStudies, An Interim report on Fish andWildlife Resources as Related to Missis-sippi River–Gulf Outlet Project, Louisi-ana and An Outline of Proposed Fish andWildlife Studies, prepared in April of 1958.In the report, the U.S. Fish and WildlifeService noted that this work was in accor-dance with the District Engineer’s Janu-ary 10 letter which ‘‘establishes the needand presents TTT plans for further fish andwildlife studies upon which to base recom-mendations designed to conserve the re-source.’’ See Plaintiffs’ Ex. 7 to Doc.16510 at 2 (An Interim Report on Fishand Wildlife Resources as Related to Mis-sissippi River–Gulf Outlet Project, Louisi-ana and An Outline of Proposed Fish andWildlife Studies, April 1958).

A review of these documents indicatethat the process may have been skewed.Indeed, in a press release issued on Sep-tember 26, 1957 by the United States Fishand Wildlife Service the aforementionedletter is discussed as follows:

Mr. Seaton [the Secretary] empha-sized the project had never been investi-gated by fish and wildlife conservationagencies as contemplated by the wildlifeCoordination Act of 1946. However, ashe stated, the United States Fish andWildlife Service of the Department ofthe Interior is now initiating such inves-tigations with funds transferred by theCorps of Engineers. Since these inves-tigations are so far behind the stagereached in the engineering investiga-tions, Secretary Seaton asked Secretary

Brucker to take the necessary steps tohave the Corps of Engineers bring theinvestigation of all phases of this projectinto balance.

(Plaintiffs’ Exhibit 25, Press Release ofSeptember 26, 1957). While it is disquiet-ing to see that environmental concernsmay have not had much sway, this decisionwas not contrary to a mandate as requiredfor the Corps to lose the discretionaryfunction exception under the first test.

Likewise, there is ample evidence in theMRGO design documents that post-author-ization coordination occurred. In particu-lar in the General Design MemorandumNo. 2 (‘‘GDM 2’’) (Exhibit 12, p. 14 and 24),paragraph 33 and paragraph 61 detail on-going discussions between the two agen-cies. In fact, in August of 1957, the U.S.Fish and Wildlife Service and the Louisi-ana Wildlife and Fisheries Commissionwere fully appraised of the status of plan-ning by the Corps. Note is made there ofthe Service’s preliminary report of April1958.

Subsequently there were a number ofconferences held between the two agen-cies—the Corps and the Service. In fact,certain recommendations were made byletter dated 5 January 1959. The recom-mendations for mitigating losses in thearea between Paris Road and BayouDupre ‘‘were essentially complied with inthe plan for construction.’’ (Plaintiffs’ Ex-hibit 12, ¶ 61). More recommendationsare noted and the Corps committed toincorporating plans to mitigate losses inthis document.

Nonetheless, the Corps did reject a pro-posal ‘‘to delay the construction of thecanal from Pais Road through the marshand sound areas until the fish and wildlifestudies were completed’’ and that ‘‘a dikebe constructed on the northeast side of theproject rights of way when, or if, futurestudies reveal that fish and wildlife habitat


northeast of the channel alignment is dete-riorating as a result of project construc-tion.’’ (Exhibit 13, ¶¶ a and f). This latterrejection was noted as not being applicableat this time.

Plaintiffs also argue that the Corpsfailed in its reporting obligations becauseit failed to detail any of the Service’s con-cerns in the Annual Reports of the Chiefof Engineers on Civil Works Activitiesfrom 1958 through 2005. (Plaintiffs’ Ex-hibit 121). Plaintiffs contend that ‘‘theCorps supplied Congress with progress re-ports of the MR–GO’s construction, thecosts incurred to date, and the percentageof completion’’ but did not include anymention of the Service’s predictions andrecommendations to mitigate the environ-mental devastation from the constructionof MRGO. However, the Court does notread the 1958 amendments so broadly. Itonly requires inclusion of such informationto Congress in the context of FWCA whenany report is prepared by the Corps whensuch reports are presented to the Con-gress (1) to authorize the construction ofwater-resource development projects or (2)to approve a report on the modificationor supplementation of plans for previ-ously authorized projects, to which thisAct applies. The interpretation offered byPlaintiffs is, simply put, unfounded. Plain-tiffs have not presented any evidence thatany report of this nature was actually filedby the Corps and that such a report didnot contain the required materials.

Based on the foregoing, the Court findsthat the first prong of the discretionaryfunction exception is satisfied with respectto the FWCA. The Court will now turn toNEPA.

b. National EnvironmentalPolicy Act (‘‘NEPA’’)

i. The Regulatory Scheme

Plaintiffs allege the following violationsof NEPA’s mandate:

(a) failing to prepare mandatory de-tailed EISs within 30 days of autho-rizing legislation in 1976, 1986, and1996;

(b) failing to prepare detailed EISs forrequests for appropriations from1970 through 1979;

(c) violating Executive Order 11990 Rel-ative to NEPA;

(d) failing to prepare the 1976 EIS incompliance with NEPA; and

(e) failing to file Supplemental EISswhen necessary.

In order to provide context to these allega-tions, a general review of the regulatoryscheme is required.

NEPA embodies ‘‘a broad national com-mitment to protecting and promoting envi-ronmental quality.’’ Robertson v. MethowValley Citizens Council, 490 U.S. 332, 347,109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)citing 42 U.S.C. § 4331. In O’Reilly v.United States Army, 477 F.3d 225 (5thCir.2007), the appellate court succinctly re-viewed NEPA’s framework, terminologyand objectives.

‘‘NEPA TTT was intended to reduce oreliminate environmental damage and topromote ‘the understanding of the eco-logical systems and natural resourcesimportant to’ the United States.’’ Dep’tof Transp. v. Pub. Citizen, 541 U.S. 752,756, 124 S.Ct. 2204, 159 L.Ed.2d 60(2004) (quoting 42 U.S.C. § 4321). In-stead of mandating particular environ-mental results, NEPA ‘‘imposes proce-dural requirements on federal agencies,requiring agencies to analyze the envi-ronmental impact of their proposals andactions.’’ Coliseum Square Ass’n, Inc.v. Jackson, 465 F.3d 215, 224 (5th Cir.2006) (quoting Pub. Citizen, 541 U.S. at756–57, 124 S.Ct. 2204).

O’Reilly, 477 F.3d at 228.The lynchpin of the NEPA as set forth

in § 4332(2)(C) requires all agencies of theFederal government to:


(C) include in every recommendationor report on proposals for legislationand other major Federal actions sig-nificantly affecting the quality of thehuman environment, a detailed state-ment by the responsible official on—

(i) the environmental impact of theproposed action,

(ii) any adverse environmental ef-fects which cannot be avoided shouldthe proposal be implemented,

(iii) alternatives to the proposed ac-tion,(iv) the relationship between localshort-term uses of man’s environmentand the maintenance and enhance-ment of long term productivity, and

(v) any irreversible and irretriev-able commitments of resources whichwould be involved in the proposed ac-tion should it be implemented.

42 U.S.C. § 4332(2)(C); see also ColiseumSquare Ass’n, Inc. v. Jackson, 465 F.3d215, 224 (5th Cir.2006). This mandateddetailed report, known as an Environmen-tal Impact Statement or ‘‘EIS,’’ serves adual purpose:

It ensures that the agency, in reachingits decision, will have available, and willcarefully consider, detailed informationconcerning significant environmental im-pacts; it also guarantees that the rele-vant information will be made availableto the larger audience that may alsoplay a role in both the decision makingprocess and the implementation of thatdecision.

Robertson, 490 U.S. at 349, 109 S.Ct. 1835.Thus, as stated early on in the case lawconcerning NEPA:

Environmental impact statements arenot confidential or internal documentsfor agency eyes aloneTTTT, ‘NEPA wasintended not only to insure that theappropriate responsible official consid-ered the environmental effects of theproject, but also to provide Congress

(and others receiving such recommen-dation or proposal) with a sound basisfor evaluating the environmental as-pects of the particular project or pro-gram.’ [Save Our Ten Acres v. Kreger,]472 F.2d [463] at 466 [ (5th Cir.1973) ].

Environmental Defense Fund, Inc. v.Corps of Engineers of U.S. Army, 492F.2d 1123, 1140 (5th Cir.1974) (emphasisadded).

EIS

Federal agencies receive guidance intheir preparation of an EIS from theCouncil of Environmental Quality(‘‘CEQ’’). ‘‘Established by NEPA with theauthority to issue regulations interpretingthat statute, the CEQ has promulgatedregulations determining what actions aresubject to that statutory requirement.’’Coliseum Square Ass’n, 465 F.3d at 224citing 40 C.F.R. § 1500.3; see also Pub.Citizen, 541 U.S. at 757, 124 S.Ct. 2204.

As noted, NEPA requires an agency toproduce a full EIS only where the agencyproposes to undertake a project that quali-fies as a ‘‘major Federal action[ ],’’ andthen only when that action ‘‘significantlyaffect[s] the quality of the human environ-ment.’’ O’Reilly, 477 F.3d at 228 citing 42U.S.C. § 4332(2)(C) and Coliseum Square,465 F.3d at 228. The CEQ regulationsprovide definitions for a number of thesedeterminative terms.

Major Federal Action

[10] CEQ defines a ‘‘[m]ajor Federalaction’’ as ‘‘actions with effects that may bemajor and which are potentially subject toFederal control and responsibility.’’ Therelevant regulation continues:

(a) Actions include new and con-tinuing activities, including projectsand programs entirely or partly fi-nanced, assisted, conducted, regulatedor approved by federal agencies; newor revised agency rules, regulations,


plans, policies, or procedures; and legis-lative proposals (§§ 1506.8, 1508.17) TTT

(b) Federal actions tend to fallwithin one of the following catego-ries:

TTT

(3) Adoption of programs, such as agroup of concerted actions to implementa specific policy or plan; systematic andconnected agency decisions allocatingagency resources to implement a specificstatutory program or executive di-rective.

(4) Approval of specific projects, suchas construction or management activitieslocated in a defined geographic area.Projects include actions approved bypermit or other regulatory decision aswell as federal and federally assistedactivities.

40 C.F.R. § 1508.18 (emphasis added).Thus, the need for an EIS may arisewhere a continuing activity causes signifi-cant effects with respect to a specific con-struction project in a defined geographicarea.

Significantly

[11] The regulations also provide adefinition for the term ‘‘significantly’’which states in relevant part:

Significantly as used in NEPA re-quires considerations of both contextand intensity:

(a) Context. This means that the sig-nificance of an action must be analyzedin several contexts such as society as awhole (human, national), the affectedregion, the affected interests, and thelocality. Significance varies with thesetting of the proposed action. For in-stance, in the case of a site-specificaction, significance would usually de-pend upon the effects in the localerather than in the world as a whole.Both short- and long-term effects arerelevant.

(b) Intensity. This refers to the sever-ity of impact. Responsible officialsmust bear in mind that more than oneagency may make decisions about par-tial aspects of a major action. The fol-lowing should be considered in evaluat-ing intensity:

(1) Impacts that may be both benefi-cial and adverse. A significant effectmay exist even if the Federal agencybelieves that on balance the effect willbe beneficial.

(2) The degree to which the proposedaction affects public health or safety.

(3) Unique characteristics of thegeographic area such as proximity tohistoric or cultural resources, parklands, prime farmlands, wetlands, wildand scenic rivers, or ecologically criticalareas.

(4) The degree to which the effects onthe quality of the human environmentare likely to be highly controversial.

(5) The degree to which the possibleeffects on the human environment arehighly uncertain or involve unique orunknown risks.

(6) The degree to which the actionmay establish a precedent for futureactions with significant effects or repre-sents a decision in principle about afuture consideration.

(7) Whether the action is related toother actions with individually insig-nificant but cumulatively significantimpacts. Significance exists if it isreasonable to anticipate a cumulative-ly significant impact on the environ-ment. Significance cannot be avoidedby terming an action temporary or bybreaking it down into small compo-nent parts.

(8) The degree to which the actionmay adversely affect districts, sites,highways, structures, or objects listed inor eligible for listing in the National


Register of Historic Places or may causeloss or destruction of significant scienti-fic, cultural, or historical resources.

(9) The degree to which the actionmay adversely affect an endangered orthreatened species or its habitat thathas been determined to be critical underthe Endangered Species Act of 1973.

(10) Whether the action threatens aviolation of Federal, State, or local lawor requirements imposed for the protec-tion of the environment.

40 C.F.R. § 1508.27 (emphasis added).Thus, parsing this regulation, an actioncould be considered ‘‘significant’’ wherethe ‘‘context’’ is (a) localized and (b) haslong-term effects and where the ‘‘intensitylevel’’ is determined to be severe (c) bybalancing beneficial versus adverse effectsnoting that even if the balance of the ef-fects are considered beneficial, if they aresevere a report is mandated, (d) by deter-mining whether it would effect a uniquecharacteristic of the geographic area suchas wetlands, (e) by ascertaining whether itinvolves uncertainty or unknown risks tothe human environment and (f) by deter-mining whether one would reasonably an-ticipate a cumulatively significant impacton the environment.

Cumulative Impact and Improper Seg-mentation

[12] ‘‘Cumulative impact’’ is also de-fined as ‘‘the impact on the environmentwhich results from the incremental impactof the action when added to other past,present, and reasonably foreseeable futureactionsTTTT Cumulative impacts can resultfrom individually minor but collectivelysignificant actions taking place over a peri-od of time.’’ 40 C.F.R. § 1508.7. In apply-ing this regulation, the Fifth Circuit in-structs that ‘‘a consideration of cumulativeimpacts must also consider ‘[c]losely relat-ed and proposed or reasonably foreseeableactions that are related by timing or geog-raphy.’ ’’ O’Reilly, 477 F.3d at 234–35,

citing Vieux Carre Prop. Owners, Resi-dents & Assoc., Inc. v. Pierce, 719 F.2d1272, 1277 (5th Cir.1983).

For instance in O’Reilly, the residents ofa Louisiana parish affected by dredgingand filling of wetlands by a private landdeveloper sued the Corps challenging itsissuance of a finding of no significant im-pact (FONSI) (See discussion infra re:EAS) with the issuance of a permit todredge. In that case, the Court found thatthe Corps, prior to the request to dredgeat issue therein, had already issued 72permits within a three mile radius of theproposed development covering a total of18,086.4 acres of which 400.9 were wet-lands. Id. at 235. In the EA, the Corpsstated how ‘‘fragmentation’’ of the wet-lands can occur resulting in increased envi-ronmental pressures; that there could be amajor cumulative impact as a result of allof the dredging if the local population didnot become more ‘‘pro-active’’ and ac-knowledged that this was only the firstphase of a project that might have asmany as three phases. The appellatecourt noted, ‘‘Such language would seem towarrant a finding of significance, but in-stead the Corps states, without any exposi-tion, that ‘mitigation for impact caused bythe proposed project, possible future pro-ject phases, and all Corps permitted pro-jects will remove or reduce e[x]pected im-pacts.’ ’’ The court then found that thisbare assertion without an explanation ofthe basis for it rendered a finding that theCorps had acted arbitrarily in the issuanceof that EA.

[13, 14] A ‘‘separate-but-similar’’ con-cern is ‘‘improper segmentation’’ which oc-curs when ‘‘federal agencies may plan anumber of related actions but may decideto prepare impact statements on each ac-tion individually rather than prepare animpact statement on the entire group.This decision creates a ‘segmentation’ or


‘piecemealing’ problem.’’ O’Reilly, 477F.3d at 236 n. 10. ‘‘An analysis of improp-er segmentation, however, requires thatwhere ‘proceeding with one project will,because of functional or economic depen-dence, foreclose options or irretrievablycommit resources to future projects, theenvironmental consequences of the pro-jects should be evaluated together.’ ’’ Id.at 236, citing Daniel R. Madnelker, NEPALaw and Litigation § 9:11 (2006).

The commentator noted that with re-spect to cumulative impacts:

A common example is a highwayplanned to connect two cities which thehighway agency divides into two seg-ments. It then prepares an impactstatement covering only the first seg-ment, which does no create environmen-tal problems. The second segment doescreate environmental problems becauseit goes through a wilderness area. Anobjection may be made that by prepar-ing an impact statement only on the firstsegment the highway agency has com-mitted itself to a continuation of thehighway through the wilderness area.If the highway agency had consideredboth segments together, it could haveconsidered the cumulative impact of thehighway on the wilderness area. Itcould have also considered a location forthe highway that would have avoided thewilderness area. The segmentation ofthe highway in this example has allowedthe highway agency to subvert NEPA’spurposes.

Daniel R. Madnelker, NEPA Law and Lit-igation § 9:11.

EAS

[15] The regulations further provide avehicle for an agency to prepare a lessvigorous report which is not sent to Con-gress known as an Environmental Assess-ment (EA) where the proposed action isneither ‘‘categorically excluded from therequirement to produce an EIS nor would

clearly require the production of anEIS. See §§ 1501.4(a)-(b).’’ Departmentof Transp. v. Public Citizen, 541 U.S. 752,757–58, 124 S.Ct. 2204, 159 L.Ed.2d 60(2004) (emphasis added). The SupremeCourt in Public Citizen continued:

The EA is to be a ‘‘concise public docu-ment’’ that ‘‘[b]riefly provide[s] sufficientevidence and analysis for determiningwhether to prepare an [EIS].’’§ 1508.9(a). If, pursuant to the EA, anagency determines that an EIS is notrequired under applicable CEQ regula-tions, it must issue a ‘‘finding of nosignificant impact’’ (FONSI), whichbriefly presents the reasons why theproposed agency action will not have asignificant impact on the human environ-ment. See §§ 1501.4(e), 1508.13.

Id. The O’Reilly case demonstrates that anEA can be insufficient if indeed the cir-cumstances clearly require the productionof an EIS or a SEIS because of the ‘‘incre-mental impact of the action when added toother past, present, and reasonably fore-seeable future actions’’ such as the contin-ual dredging of the MRGO.

Supplemental Statements[16] ‘‘[An] agency bears a continuingobligation to update its environmentalevaluation in response to substantialchanges to the proposed action or signif-icant new circumstances. 40 C.F.R.§ 1502.9(c)(1)(1992). The results of thislater evaluation are published in a sup-plemental environmental impact state-ments (‘‘SEIS’’). Based on the findingsof the SEIS, the agency must consideranew whether to proceed with the pro-posed project.’’

West Branch Valley Flood Protection As-sociation v. Stone, 820 F.Supp. 1, 5–6(D.D.C.1993); Association ConcernedAbout Tomorrow, Inc. v. Dole, 610 F.Supp.1101, 1112 (N.D.Tex.1985). That processis triggered when ‘‘new information pres-


ents a ‘seriously different picture of theenvironmental landscape’ such that anoth-er in-depth look at the environment isnecessary.’’ Id., citing Wisconsin v.Weinberger, 745 F.2d 412, 418 (7th Cir.1984). Section § 1502.9(c)(1) of the regu-lations instructs agencies on the on theprocedures supplemental statements. Itstates:

(c) Agencies:(1) Shall prepare supplements to eitherdraft or final environmental impactstatements if:

(I) The agency makes substantialchanges in the proposed action thatare relevant to environmental con-cerns; or(ii) there are significant new cir-cumstances or information relevantto environmental concerns andbearing on the proposed action orits impacts.

40 C.F.R. § 1502.9(c)(1) (emphasis added).

[17] In Friends of the Clearwater v.Dombeck, 222 F.3d 552, 557–58 (2000), theNinth Circuit noted that in view ofNEPA’s purpose:

an agency that has prepared an EIScannot simply rest on the original docu-ment. The agency must be alert to newinformation that may alter the results ofits original environmental analysis, andcontinue to take a ‘‘hard look at theenvironmental effects of [its] planned ac-tion, even after a proposal has receivedinitial approval.’’ [Marsh v. OregonNatural Resources Council, 490 U.S.360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377(1989).](citations and quotations omit-ted). It must ‘‘ma[ke] a reasoned deci-sion based on TTT the significance—orlack of significance—of the new informa-tion,’’ Id. at 378, 109 S.Ct. 1851, andprepare a supplemental EIS when thereare ‘‘significant new circumstances orinformation relevant to environmentalconcerns and bearing on the proposed

action or its impacts.’’ 40 C.F.R.§ 1502.9(c)(1)(ii). ‘‘If there remains ma-jor Federal action to occur, and the newinformation is sufficient to show that theremaining action will affect the qualityof the human environment in a signifi-cant manner or to a significant extentnot already considered, a supplementalEIS must be prepare.’’ Marsh, 490U.S. at 374, 109 S.Ct. 1851.

Friends of the Clearwater v. Dombeck, 222F.3d 552, 556–58 (2000) (footnote omitted);Blue Mountains Biodiversity Project v.United States Forest Service, 229F.Supp.2d 1140, 1147–48 (D.Or.2002).Moreover, ‘‘an agency is not free to ignorethe possible significance of new informa-tion. Rather, NEPA requires that theagency take a ‘‘hard look’’ at the newinformation to determine whether a SEISis necessary.’’ Blue Mountains, 229F.Supp.2d at 1148, citing Headwaters v.BLM, 914 F.2d 1174, 1177 (9th Cir.1990).

Appropriations Not Includedin NEPA Requirements

[18] As to the reporting requirements,clearly appropriation bills do not constitute‘‘legislation’’ under the NEPA rubric. InAndrus v. Sierra Club, 442 U.S. 347, 99S.Ct. 2335, 60 L.Ed.2d 943 (1979), the Su-preme Court discussed the requirementsconcerning the filing of EISs in the contextof ‘‘proposals for legislation and other ma-jor Federal actions’’ as found in 42 U.S.C.§ 4332(2)(C). The issue presented in thatcase was whether appropriation requestsare ‘‘proposals for legislation’’ as contem-plated under NEPA. In reaching their con-clusion that the relevant statute does notrequire an EIS to accompany appropria-tion requests, the Court provided an in-sightful history of the regulations.

In 1970, President Nixon ordered CEQto issue guidelines concerning NEPA. Id.at 357 n. 15, 99 S.Ct. 2335. The guide-


lines, were promulgated in 1970 and re-vised in 1971 and 1973, included ‘‘appropri-ations’’ in the terminology requiring anEIS, but these guidelines were advisory innature. Id. However, in 1977 PresidentCarter ordered the creation of a single setof uniform mandatory regulations whichare now codified at 40 C.F.R. §§ 1500–1518. The new regulation provides, specif-ically, ‘‘Legislation includes a bill or legis-lative proposal to Congress developed byor with the significant cooperation andsupport of a Federal agency, but does notinclude requests for appropriations.’’ 40C.F.R. § 1508.17. In addition, this provi-sion requires only the agency which hasprimary responsibility for the subject mat-ter has the responsibility to prepare theEIS. Id.

ii. Context of Court’s Inquiry

In the case before us, the posture is notone where the Court is reviewing the ap-propriateness of the Corps’ EISs, EASand FONSIs under the AdministrativeProcedures Act, 5 U.S.C. § 701, et seq.Instead, the Court must determine wheth-er the actions or non-actions of the Corpsin the context of the MRGO were of anature such that the first test in the dis-cretionary function exception inquiry pre-cludes its application—that is whetherNEPA and the regulations cited aboveprescribes a course of action for the Corpssuch that it had no choice but to producean EIS or SEIS with respect to a numberof individual actions in took.

The Corps argues that the very natureof the decisions involved in this processdemonstrates that the first prong of thediscretionary function exception is met—that is that it has discretion to decidewhether or not to issue and EIS or EA.They argue:

While an agency’s determination regard-ing whether a proposal for legislation orother major Federal action significantlyaffects the quality of the human environ-

ment is subject to judicial review underthe standards prescribed by the Admin-istrative Procedure Act, 5 U.S.C.§ 706(2)(A), such a determination cannotbe second-guessed in the context of atort suit against the United States. SeeBaie v. Secretary of Defense, 784 F.2d1375, 1376 (9th Cir.1986),

(United States of America’s Response tothe Supplemental Brief on NEPA Submit-ted by Plaintiffs and Their Amici, Doc.17624 at 4). However, the case on whichthe Government relies is clearly distin-guishable.

In Baie, a retired serviceman sought torecover under the FTCA the cost of sur-gery for a penile implant that had beendenied by CHAMPUS, a governmentagency. The reimbursement request wasdenied because the agency found that the‘‘the surgery was not medically necessary;that the penile implant procedure did notconstitute treatment of a medical or surgi-cal condition; that the penile prosthesiswas a specifically excluded prosthetic de-vice; and counseling for sexual dysfunc-tions was also specifically excluded as aCHAMPUS program benefit.’’ Id. at1376. The court indeed found that seekingmonetary redress under the FTCA for thealleged abuse of discretion by the Assis-tant Secretary of Defense (Health Affairs)in denying these claims was improper.The court stated:

The legislative history of the FTCAmakes it clear that Congress did notintend that ‘‘the constitutionality of leg-islation, or the legality of a rule or regu-lation should be tested through the me-dium of a damage suit for tort.’’ TTT

The Assistant Secretary’s interpretationof the statute is a plainly discretionaryadministrative act the ‘‘nature and quali-ty’’ of which Congress intended to shieldfrom liability under the FTCA.


Id. (citations omitted). Reliance on thiscase is squarely misplaced. Plaintiffs heredo not seek redress in tort for moneydamages for the failure to prepare alleged-ly required EISs or SEISs. Plaintiffsseek damages for the Corps’ alleged defal-cations concerning the design, construc-tion, maintenance and operation of theMRGO.

Likewise, the case law cited for theproposition that decisions to file EISs,EAS and the like are committed to thejudgment of the agency is clear and uncon-troverted. Kleppe v. Sierra Club, 427 U.S.390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976);Sabine River Auth. v. United States Dep’tof Interior, 951 F.2d 669, 677–78 (5th Cir.1992). However, that is not the inquirybefore this Court. Plaintiffs have present-ed substantial evidence that the Corps it-self internally recognized that the MRGOwas causing significant changes in the en-vironment—that is the disappearance ofthe adjacent wetlands to the MRGO. TheCorps cannot ignore the dictates of NEPAand then claim the protection of the discre-tionary exception based on its own appar-ent self-deception.

This analysis is supported in Adams v.United States, 2006 WL 3314571 (D.IdahoNov. 14, 2006) (Winmill, J.). In a suitconcerning the use of Oust, a herbicide,over 70,000 acres of land for a particularproject which apparently caused damageto plaintiffs, the Bureau of Land Manage-ment’s (BLM) filed a motion to dismissbased on the discretionary function excep-tion. The Court noted:

Applying an herbicide with its attendantrisks [decreased reproductive successnoticed in rats and slightly toxic toaquatic organisms] to over 70,000 acresof land has the potential to be a ‘‘majorFederal action significantly affecting thequality of the human environment,’’ see42 U.S.C. § 4332(2)(C), triggering at thevery least NEPA’s duty to prepare an

Environmental Assessment (EA), see 40C.F.R. § 1501.4, and perhaps a full EIS.See Ramsey v. Kantor, 96 F.3d 434,442–43 (9th Cir.1996). Indeed that iswhy the BLM prepared an EIS in 1991that examined the use of herbicides oth-er than Oust on rangeland covering athree state areaTTTT

The BLM’s failure to comply withNEPA meant that the agency had nodiscretion—it could not proceed until itcomplied with NEPATTTT

Finally, the BLM argues that NEPAprovides no private right of action. Thismisperceives plaintiffs’ use of NEPA.they use it not to recover any remedybut to argue that the BLM was under amandatory duty. That is not an improp-er use of NEPA.

Id. at *1–2. Furthermore, as demonstrat-ed above, the NEPA mandates are clearand unambiguous. There is no basis toargue that the mandate is a ‘‘generalguideline’’ such that noncompliance wouldbar the discretionary function exception.See Hughes v. United States, 110 F.3d 765(11th Cir.1997) (general postal serviceguidelines concerning security of post of-fice do not constitute mandate); Autery v.United States, 992 F.2d 1523 (11th Cir.1993) (‘‘saving and safeguarding of humanlife takes precedence over all other parkmanagement activities’’ guideline is toobroad to be considered mandate); Zum-walt v. United States, 928 F.2d 951 (10thCir.1991) (Management Policies and Pro-ject Statements by National Park Serviceconstituted general guidelines with non-placement of warnings along ‘‘naturalstate’’ monument).

[19] Squarely stated, where there isevidence that the Corps itself knew, recog-nized and even internally reported thatthere had been or would be significantimpact on the wetlands adjacent to LakeBorgne and the MRGO, the Court must


find that the Corps failed to follow a man-date or a prescribed course of action ren-dering the discretionary function inapplica-ble to those actions. Stated another way,where there is evidence that the Corpsitself had made findings which per se trig-gered the mandates of these regulations,the Corps’ argument falls flat. To em-brace the Corps’ argument would makethe exception swallow the rule.

iii. Documents Raising Issue ofFact Concerning Failure to

Follow Mandate

Plaintiffs have presented a number ofdocuments apparently demonstrating theCorps’ knowledge concerning the effects ofthe dredging of the MRGO that rendereda waterway that was to be 650 feet inwidth into one that was 1500 by 1987 andhad caused the decimation of the adjacentwetlands.

Digest of Water Resources Policies andActivities, December 1972 9

In Chapter 19 entitled ‘‘Wetlands Con-servation’’ at ¶ 19–3, the Corps’ own policystates:

19–3. Evaluation of Proposed Altera-tions. A single proposed alteration ofwetlands may, in itself, constitute a mi-nor change. However the cumulativeeffect of numerous small changes caneventually impair the wetland ecology oflarge areas. A specific proposal in or ona wetland should be evaluated in recog-nition of the complete and interrelatedwetland area of which it is a part. Stud-ies relevant to environment impacts ap-ply. (ER 1105–2–507).

Oddly, it appears from the following docu-ments that this mandate, as well as NEPA,was simply ignored in the context of thecontinued dredging that was undertaken inthe channel.

1976 FEIS 10

The ‘‘Final Composite EnvironmentalStatement for Operation and MaintenanceWork on Three Navigation Projects in theLake Borgne Vicinity, Louisiana’’ FinalEnvironmental Impact Statement(‘‘FEIS’’) issued as an administrative ac-tion in March 1976 focused on the mainte-nance and operation of the MRGO whichas the result of sediment, required sub-stantial dredging. It noted that:

(2) Channel bank erosion. The chan-nel was originally dredged with one ver-tical to two horizontal feet side slopes.Slopes tend to erode near the top andfill near the bottom as they come toequilibrium angle of repose. Since con-struction, the distance between thebanks visible above the waterline hasincreased. Channel bank erosion hasbeen a significant source of sedimentin the channel through the land area.

(3) Other sediment sources. The pro-portion of sediment coming in from adja-cent waters is not yet clearly defined.Prior to construction, Lake Borgne hadno major western inlet-outlet of themagnitude now provided by the MR–GO. Channels between the MR–GOand Lake Borgne are eroding west-ward at a rate of about 4.5 feet peryear (Department of the Army, 1974E.) Some of these sediments from LakeBorgne may be entering the MR–GOTTTT another sediment source is themarsh material released by marsh dete-rioration. this material may be trans-ported to the MR–GO by tidal action,storms, and hurricanes.

(FEIS 1976, at I–6) (emphasis added).

In the comments received by the Corpsto the Draft EIS, the Environmental Pro-tection Agency noted that the draft state-ment should discuss the associated long

9. Plaintiffs’ Motion, Exh. 26. 10. Plaintiffs’ Motion, Exh. 63


term project induced impacts resultingform the construction of the MRGO, spe-cifically the loss of 23,000 acres of marsh.(FEIS 1976, at IX–12). In response theCorps simply stated that this report wassolely aimed at the operation and mainte-nance and was not intended to addressimpacts of original construction. (FEIS1976, at IX–3). Such an approach seemscontrary to the aims and mandates ofNEPA as outlined above.

In addition, the Corps referenced theinterrelationship of the MRGO and theLake Pontchartrain and Vicinity HurricaneProtection Plan (LVP) and referenced var-ious locks and barriers that were to bepart of the plan that were to deal with thesalinity issues—for instance the Seabrookand Rigolets Locks. (FEIS 1976, at IX–8). None of these were ever built.

1985 SIR 11

In this filing which was to augment theFEIS which had been filed nine yearsearlier, the Corps noted that the FEIS hadnot discussed the need for and the impactassociated with the use of over-depth oradvanced maintenance. The Corps in thisSIR makes absolutely no mention of thesubsidence that has occurred since the ‘‘ov-erdepth or advanced maintenance’’ hadbeen undertaken. It does not even notethat the top-width of the MRGO had in-creased considerably which, consideringthat by 1987 it had gone from 600 feet to1500, must have been the case. In termsof the ‘‘Affected Environments and Im-pacts,’’ the findings are utterly conclusoryin nature and do not mention in any man-ner the bank erosion that in less than 3years resulted in specific findings of emi-nent danger. This document likewise rais-es issues of non-compliance with its NEPAmandate in light of O’Reilly.

1988 Mississippi River–Gulf Outlet, St.Bernard Parish, La., Bank Erosion,

Reconnaissance Report 12

The Corps addressed in this report theoptions for structural bank erosion abate-ment along three reaches of ‘‘critical’’ ero-sion on the north bank of the channel.The study was authorized by the Commit-tee on Public Works and Transportation ofthe United States House of Representa-tives at the request of Representative Rob-ert L. Livingston ‘‘in light of extensiveerosion which has been occurring in St.Bernard Parish along the unleveed banksof the Gulf Outlet Channel.’’

In this document, the Corps notes,‘‘Most of the Mississippi River–Gulf Outletis experiencing severe erosion along itsunleveed banks. The erosion is a result ofboth man-induced and natural forces, in-cluding combinations of channelization,ship and wind generated waves, storm ac-tivity and subsidence.’’ (1988 Recon. Rpt.,at 10). The report notes that the marshesalong the north bank are disappearing ‘‘atan alarming rate’’ and continues:

Because erosion is steadily widening theMR–GO, the east bank along LakeBorgne is dangerously close to beingbreached. Once the bank is breached,the following will happen: sedimentfrom Lake Borgne will flow into thechannel resulting in large increases indredging costs to maintain the channel;development to the southwest wouldbe exposed to direct hurricane attacksfrom Lake Borgne; the rich habitataround the area would be converted toopen water; and more marsh would beexposed to higher salinity water.

1988 Recon. Rpt. at 10–11 (emphasis add-ed).

11. Plaintiffs’ Motion, Exh. 72.

12. Plaintiffs’ Motion Exh. 83, 1988 MississippiRiver–Gulf Outlet, St. Bernard Parish, La.,

Bank Erosion, Reconnaissance Report (‘‘1988Recon Rpt’’).


In a section entitled ‘‘Future Condi-tions’’ and ‘‘Land Resources’’ the Corpsstated:

Based on recent trends, the studyarea will continue to experience drasticlosses due to erosion. The MR–GOeast bank along Lake Borgne is danger-ously close to being breachedTTTT

As the marsh within the project areadiminishes, significant losses to marshdependent fish and wildlife specieswill also occur. Increases in waterlevels, resulting from the general rise insea level and subsidence of the land willenlarge land/water interface and acceler-ate saltwater intrusion.

1988 Recon. Rpt. at 23 (emphasis added).

Discussing ‘‘Problems, Needs, and Op-portunities’’, albeit in the context of theeffects on wildlife, the Corps wrote:

Saltwater intrusion also contributes sig-nificantly to marsh loss in the studyarea. Subsidence and lack of sedimentdeposition affect marsh loss to a lesserdegree. Erosion and disintegration ofthe banks of the MR–GO has createdmany additional routes for saltwater tointrude into formerly less aline interiormarshes. Consequently, salinity inthe marshes has increased significant-ly in the last 20 years.

1988 Recon Rpt. at 27 (emphasis added).

In discussing various plans that wouldbe possible to address the bank erosionissue, the Corps stated:

The unleveed banks of the MR–GO willcontinue to erode in the absence of re-

medial action. Currently, banks of theunleveed reaches are retreating atrates varying from five to over 40 feetper year. The average rate of retreatof the north bank in the 41–mil landcut portion of the waterway is about15 feet per year.

1988 Recon. Rpt. at 30 (emphasis added).

Also, buried in the exhibit is a letterdated 10 March 1988 wherein Col. LloydBrown of the Corps suggests to the Com-mander of the Lower Mississippi ValleyDivision (LMVD) that they proceed direct-ly with a preparation of a supplement tothe General Design memorandum for theMR–GO navigation project. In addition,in the body of the report, it is mentionedthat subsidence is at its greatest in theareas that are most often dredged.

Land Loss and Marsh Creation, St. Ber-nard, Plaquemines, and Jeffersonparishes, Louisiana, FeasibilityStudy, Volume 1, Draft Main Reportand Draft Environmental ImpactStatement April 1990 13

In this draft report, the final status ofwhich the Court is unaware, the Corpsnoted, ‘‘Between 1956 and 1978, the bird’sfoot delta experienced a net loss of approx-imately 67,000 acres of marsh—a loss ofmore than 100 square miles. Over this22–year period the average annual rate ofloss in this area was 4.75 acres.

Certainly, all of these positive findingsof significant changes in the environmentby the Corps itself may have triggered theNEPA mandated requirements.14 Clearly,

13. Plaintiffs’ Motion, Exh. 74.

14. Another interesting document is a Mary24, 1988 memo concerning maintenancedredging quantities (Plaintiffs’ Motion, Exh.70). While this document mentions how theclosing of the MRGO has no effect on hurri-cane surge, in the same paragraph it discuss-es how ‘‘the storm surge that inundated St.Bernard Parish in 1965 and again in 1969

because of the wind direction during thestorm, most likely came from the east acrossLake Borgne and the Biloxi Marsh ratherthan up the MR–GO.’’ (Exh. 70 at NED–192–256–57). Again, with this statement, was notthe Corps on notice of serious problems forhurricane storm surge that would be causedwith the marsh that kept Lake Borgne incheck?


where an agency’s own findings and re-ports demonstrate a positive belief andobjective recognition that the environmen-tal impact of a project that requires on-going action, such as dredging for itsmaintenance, has created a new detrimen-tal circumstance, such as the decimation ofan extremely large swath of wetlands, aSEIS would be mandated.

iv. Specific Alleged Violationsof NEPA Mandates

It is in the context of these regulationsand documents that Plaintiffs maintainthat it is entitled to summary judgment onthe issue of the Corps’ not being entitle toinvoke the discretionary function exceptionbased on the Corps failure to adhere to aprescribed a course of action about whichthe Corps had no choice. As the Courtnoted above, Plaintiffs contend that theCorps violated its mandatory legal obli-gations under NEPA by failing to:

(a) failing to prepare mandatory de-tailed EISs within 30 days of autho-rizing legislation in 1976, 1986, and1996;

(b) failing to prepare detailed EISs forrequests for appropriations from1970 through 1979;

(c) violating Executive Order 11990 Rel-ative to NEPA;

(d) failing to prepare the 1976 EIS incompliance with NEPA;

(e) failing to file Supplemental EISswhen necessary.

The Court will now address each of thesecontentions.

(a) Failing to Prepare Mandatory De-tailed EISs Within 30 days of Au-thorizing Legislation in 1976, 1986,and 1996.

While clearly, the initial authorization ofthe MRGO was in 1956, Plaintiffs maintainthat there were 3 amendments whichwould require a new EIS—one in 1976,

another in 1986 and finally one in 1996.The Court will review each of these.

[20] The 1976 amendment contained insection 186 of the Water Resources Devel-opment Act of 1976, Pub. Law 94–587, 90Stat. 2917, 2941–2942 (1976) modified theconditions for local cost sharing with re-spect to the building of certain bridges.Clearly, there is nothing in the amendmentthat would significantly affect the qualityof human life.

[21] The 1986 Amendment was con-tained in section 844 of the Water Re-sources Development Act of 1986, Pub.Law 99–662, 100 Stat. 4082, 4177 and con-cerned the lock replacement provision ofthe original 1956 authorization and modi-fied it as follows:

to provide that the replacement and ex-pansion of the existing industrial canallock and connecting channels or theconstruction of an additional lock andconnecting channels shall be in thearea of the existing lock or at theViolet site, at a total cost of$714,300,000. Before selecting the siteunder the preceding sentence, the Sec-retary [of the Army] shall consult withaffected local communities.

100 Stat. at 4177. The amendment thendetails the cost sharing provisions. Itthen continues:

(b) The Secretary is directed to make amaximum effort to assure the full partic-ipation of members of minority groups,living in the affected areas, in the con-struction of the replacement or addition-al lock and connecting channels author-ized by subsection (a) of this section,including actions to encourage the use,wherever possible, of minority-ownedfirms. The Secretary is directed toreport on July 1 of each year to theCongress on the implementation ofthis section, together with recommen-


dations for any legislation that maybe needed to assure the fuller andmore equitable participation of mem-bers of minority groups in this projector others under the direction of theSecretary.

Id. While it is possible that an EIS mighthave been required in 1986, Plaintiffs havepresented no evidence that would demon-strate that the Corps had recognized thatany such change would significantly affectthe quality of the human environment. Assuch, the motion will be denied in thisregard.

It appears that the Corps issued twoFONSIs around this time. In 1985, itissued a FONSI for EA # 47 15 where theproject is described as a project to controlforeshore erosion on the south bank of theMR–GO and found that the impact of itwould have negligible impacts on the hu-man environment. In 1986 a FONSI forEA # 54 16 which concerned the removal of800,000 cubic yards of material from thesouth bank of the MRGO for use in theLake Pontchartrain and Vicinity HurricaneProtection Plan. This EA had to do withactivity at Paris Road and is unclear whateffect this might or might not have had onwetland protection for the adjacent area.Certainly, no discussion of this issue iscontained therein.

[22] The 1996 amendment, which likethe 1986 amendment, concerned the IHNCwas contained in section 326 of the WaterResource Act of 1996, Pub. Law 104–303,110 Stat. 3658, 3717. It provided:

Section 844 of the Water ResourcesDevelopment Act of 1986 (100 Stat.4177) is amended by adding at the endthe following:

‘‘(c) COMMUNITY IMPACT MIT-IGATION

PLAN—Using funds made availableunder subsection (a), the Secretaryshall implement a comprehensive com-munity impact mitigation plan, as de-scribed in the evaluation report of thenew Orleans District Engineer datedAugust 1995, that, to the maximumextent practicable, provides for miti-gation or compensation, or both forthe direct and indirect social and cul-tural impacts that the project de-scribed in the subsection 9(a) will haveon the affected areas described in sub-section (b).’’

Again, while it is possible that an EISmight have been required in 1996, Plain-tiffs have presented no evidence thatwould demonstrate that the Corps had rec-ognized that any such change would signif-icantly affect the quality of the humanenvironment. As such, the motion will bedenied in this regard.

(b) Failing to Prepare Detailed EISsfor Requests for Appropriations

from 1970 to 1979

[23] As noted above, the regulationsfrom 1970 to 1979 were advisory in natureand the failure to file an EIS with respectto any appropriation matter would not con-stitute a violation of a mandate.

(c) Violating Executive Order11990 Relative to NEPA

[24] Plaintiffs contend that the Corpsviolated Executive Order No. 1190—Pro-tection of Wetlands—which provides thatin furtherance of NEPA and in order toavoid adverse impacts and new construc-tion in the wetlands, agencies are orderedthrough the CEQ to modify their proce-dures to:

15. Plaintiffs’ Motion Exh. 76. 16. Plaintiffs’ Motion, Exh. 127 (NEPA brief-ing, Doc. 17356)


avoid undertaking or providing assis-tance for new construction located inwetlands unless the head of the agencyfinds (1) that there is no practicablealternative to such construction, and (2)that the proposed action includes allpracticable measures to minimize harmto wetlands which may result from suchuseTTTT

42 Fed.Reg. 29691 § 2 (1977) (emphasisadded). In furtherance of this policy, Sec-tion 3 provides that:

Any requests for new authorizations ofappropriations transmitted to the Officeof Management and Budget shall indi-cate, if an action to be proposed will belocated in wetlands, whether the pro-posed action is in accord with this Order.

Id.However, Section 7(b) defines the term

‘‘new construction’’ as including dredgingand related activities begun or authorizedafter the effective date of this Order.And § 8 specifically states: ‘‘This Orderdoes not apply to projects presently underconstruction or to projects for which all ofthe funds have been appropriated throughFiscal Year 1977, or to projects and pro-grams for which a draft or final environ-mental impact statement will be filed priorto October 1, 1977.’’ Id.

From the clear language of the Execu-tive Order, it appears that as MRGO’sFEIS (which pertained to Operation andMaintenance) was completed prior to thesedates, this Executive Order was not appli-cable.

(d) Failing to Prepare the 1976 EISin Compliance with NEPA

[25] Plaintiffs’ maintain that the 1976FEIS failed to satisfy the mandatory obli-gation to analyze the direct, indirect butforeseeable and cumulative ‘‘environmentalimpacts significantly affecting the humanenvironment’’ in the FEIS. However, it didnot purport to do so as described in detailabove. Considering the foregoing, while

the decision to segment the 1976 EIS sothat it only pertained to maintenance andoperation of the MRGO may have beenimproper, that decision would be at thediscretion of the Corps. No evidence waspresented that would demonstrate that theCorps had recognized that this segmenta-tion would significantly affect the qualityof the human environment. As such, themotion will be denied in this regard.

(e) Failing to Supplement itsEIS When Necessary

Considering the litany of findings of sig-nificant impact of the MRGO as outlinedabove, the Court finds that Plaintiffs haveraised significant questions of fact withrespect to the Corps’ compliance with thismandate. This decision is underscored bythe 1988 statement that as a result of thewetland loss development to the southwestwould be exposed to direct hurricane at-tacks from Lake Borgne. Such a state-ment demonstrates a positive finding bythe Corps that removes its ‘‘discretion’’and mandates the filing of a SEIS. More-over, it is clear the Corps knew for asubstantial period of time that there were‘‘significant new circumstances or informa-tion relevant to environmental concernsand bearing on the proposed action or itsimpacts.’’ 40 C.F.R. § 1502.9(c)(1). A re-view of the evidence presented leads thisCourt to believe that the Corps was obdu-rate and intentionally violated its NEPAmandate. However, in order that a fullrecord be made, the Court will not grantthe motion at this time and will allow theCorps to adduce evidence to the contrary.

(f) Improperly Segmenting EAS

Plaintiffs contend that the Corps im-properly segmented its filing of EAS sinceit filed 26 EAS that can be categorized intofour categories: eight EAS concerned pro-posed specific reaches of foreshore protec-tion; four EAS addressed proposals for


rebuilding and reconstructing wetlands,marsh and other land loss; the EAS ad-dressed proposals for emergency alterna-tive remedial dredging techniques; andeleven EAS addressed specific incrementalmile reaches proposed for dumpingdredged material excavated from theMRGO during dredging. Considering theCourt’s discussion of segmentation above,it does not appear that these kinds ofactions are the type contemplated in animproper segmentation analysis. They doraise questions of fact with respect to afailure to properly these being address in acumulative environmental effects context.

(g) Causal Connectionto Plaintiffs’ Harm

[26] Considering the foregoing exposi-tion of documents, the Court finds thatthere are considerable questions of factwith respect to the causal connection of thealleged Corps’ failures to file the properNEPA reports and the harm which Plain-tiffs’ incurred. One of the main focuses ofthe case at trial will be whether the stormsurge allegedly caused or exacerbated bythe loss of the wetlands surrounding LakeBorgne and the widening of the channelcaused damage to Plaintiffs that is notsubject to § 702(c) immunity of the FloodControl Act of 1928. As such, this issueremains for trial.

2. Second Issue: Whether the AllegedDefalcations of the Corps were Ac-tions Taken in the Exercise of aPolicy Decision and Thus Shieldedby the Discretionary Function Ex-ception or Whether the Alleged De-falcations were Ordinary Non–Poli-cy Decisions Concerning Technical,Engineering and Professional Judg-ments About Safety

The second inquiry in the application ofthe discretionary function exception iswhether considering the defalcations al-leged by Plaintiffs, were any of the alleged

improper actions or failures to act basedon considerations of public policy. As pre-viously noted the purpose of the exceptionit to ‘‘prevent judicial second-guessing of‘‘legislative and administrative decisionsgrounded in social, economic, and politicalpolicy through the medium of an action intort.’’ United States v. Varig Airlines[467 U.S.] at 814, 104 S.Ct. at 2764–2765.’’Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954.

Indeed, in Berkovitz, the Supreme Courtspecifically rejected the argument that‘‘the exception precludes liability for anyand all acts arising out of the regulatoryprograms of federal agencies.’’ It exam-ined the regulatory scheme under which apolio vaccine was placed into commerce.First, since the government agency had nodiscretion to issue a license without firstreceiving the required test data, and plain-tiffs in that case alleged that it had notdone so, the Supreme Court found that thediscretionary function provided no bar.Berkovitz, 486 U.S. at 543, 108 S.Ct. 1954.Furthermore, to the extent that plaintiffsaverred that the agency licensed the vac-cine without determining whether the vac-cine complied with regulatory standards orafter determining that the vaccine failed tocomply, there was no basis for the imposi-tion of the exception as the agency had nodiscretion to deviate from the mandatedprocedure. Id. at 544, 108 S.Ct. 1954.Finally, the Supreme Court noted that ifplaintiffs’ claim was that the Governmenthad made a determination in compliancewith regulatory standards, but that deter-mination was incorrect, the ‘‘question ofthe applicability of the discretionary func-tion exception requires a somewhat differ-ent analysis.’’ Id. The Supreme Courtcontinued:

In that event, the question turns onwhether the manner and method ofdetermining compliance with the safetystandards at issue involve agencyjudgment of the kind protected by the


discretionary function exception. Peti-tioners contend that the determina-tion involves the application of ob-jective scientific standards,TTT

whereas the Government asserts thatthe determination incorporates con-siderable ‘‘policy judgment.’’ Inmaking these assertions, the partieshave framed the issue appropriately;application of the discretionaryfunction exception to the claim thatthe determination of compliance wasincorrect hinges on whether theagency official making that determi-nation permissibly exercised policychoice. The parties, however, havenot addressed this question in detail,and they have given us no indicationof the way in which the DBS inter-prets and applies the regulations set-ting forth the criteria for compliance.Given that these regulations are par-ticularly abstruse, we hesitate to de-cide the question on the scanty recordbefore us.

Id. at 546–47, 108 S.Ct. 1954. With re-spect to whether the release of the vaccinesurvived a motion to dismiss, the SupremeCourt noted that the discretionary functionact did prevent suit for the formulationof policy as to the appropriate way inwhich to regulate the release of vaccinelots; however, ‘‘if the [Government’s] poli-cy leaves no room for an official to exercisepolicy judgment in performing a given act,or if the act simply does not involve theexercise of such judgment, the discretion-ary function exception does not bar a claimthat the act was negligent or wrongful.’’Id.

As this Court has noted before, the cen-tral issue is whether the actions or inac-tions taken by the Corps with respect tothe design, construction, maintenance, op-eration and repair of the MRGO constitutepolicy decisions that are protected by thediscretionary function exception. Obvious-ly, if at trial the Court were to find that

the NEPA violations alleged concernedone or all of these activities, then thediscretionary function exception would notapply as to those defalcations. However,assuming that some of the alleged actionswere not in contravention of a specificmandate, the salient issues to consider asto this second prong of the discretionaryfunction exception is whether the Govern-ment actor was (1) acting in contraventionof its own regulations or standards or (2)exercising a policy choice.

[27, 28] To that end, the Court findsthat as concerns the initial design andconstruction of the MRGO, these actionsare shielded by the discretionary functionexception. Clearly, there was no violationof any mandate and the decisions madewere policy driven. However, Plaintiffshave created substantial questions of factwith respect to the actions and inactionsthat followed the creation of the channel,particularly in light of the documents thatdemonstrate the knowledge of the Corpsconcerning the dangers that the MRGOwas creating. In fact, the most glaringissue the Court sees is in the context ofthe state negligence claim itself. Thereare substantial questions of fact as towhether the Corps’ failure to warn Con-gress of the allegedly life threateningharm which the MRGO had created is thekey. Regardless of the policy issues,where:

the Government has undertaken respon-sibility for the safety of a project, theexecution of that responsibility is notsubject to the discretionary function ex-ception. The decision to adopt safetyprecautions may be based in policy con-siderations, but the implementation ofthose precautions is not. For example,in [Kennewick Irrigation Dist. v. UnitedStates, 880 F.2d 1018 (9th Cir.1989) ],where a break in an irrigation canal wasat issue, we held that the canal’s design


was protected from liability but that theactual construction was based not onpolicy, but rather on technical consider-ations, and therefore not subject to thediscretionary function exceptionTTTT

The Government cannot claim thatboth the decision to take safety meas-ures and the negligent implementationof those measures are protected policydecisions. This argument would essen-tially allow the Government to ‘‘admin-istratively immunize itself from tort lia-bility under applicable state law as amatter of ‘policy.’ ’’ McGarry v. UnitedStates, 549 F.2d 587, 591 (9th Cir.1976)

Marlys Bear Medicine v. United States,241 F.3d 1208 (9th Cir.2001). In fact, dur-ing oral argument, the Government statedthat if the Corps had been convinced thatthe MRGO were a threat to human life,they would have gone to Congress and toldthem.17

Furthermore, the Court finds compel-ling the Marlys Bear Medicine analysis ofthe Government’s contention that it doesnot need to prove it actually consideredthe policy it invokes for discretionary func-tion protection, rather it only must demon-strate that the decision is susceptible topolicy analysis. In Marlys Bear Medi-cine, the Government argued that its deci-sion not to ensure that adequate safetymeasures were taken with respect to thetraining of loggers was a policy decisiondue to limited funds. The appellate court

noted that the Government’s logic wasbased on its having misconstrued theNinth Circuit’s language in Miller v. Unit-ed States, 163 F.3d 591, 593 (9th Cir.1998)which stated that a ‘‘ ‘decision need not beactually grounded in policy considerations,but must be, by its nature, susceptible to apolicy analysis,’ ’’ language that actuallycomes out of Gaubert. Marlys Bear Med-icine, 241 F.3d at 1216. The appellatecourt noted:

The government misconstrues Millerin two fundamental ways. First our in-quiry into the nature of a decision is notmeant to open the door to ex post ra-tionalizations by the Government in anattempt to invoke the discretionary func-tion shield. We have held that the Gov-ernment has the burden of proving thediscretionary function exception applies,see Prescott, 973 F.2d at 702, and this isnot done by mere subjective statements.There must be a reasonable support inthe record for a court to find withoutimposing its own conjecture that a deci-sion was policy-based or susceptible to apolicy analysis. The passage from Mil-ler is a paraphrase of a section of theSupreme Court’s opinion in UnitedStates v. Gaubert, 499 U.S. 315, 324–35,111 S.Ct. 1267, 113 L.Ed.2d 335 (1991),addressing cases where ‘‘establishedgovernmental policy [TTT] allows a Gov-ernment agent to exercise discretion.’’

17. ‘‘I can assure Your Honor if the Corps hadbeen convinced that it was a threat to humanlife they would have gone to Congress andwould have told congress that it was a threatto human lives.’’ (Transcript of Proceeding,p. 30, lines 17–23)Counsel then noted that theCorps did tell Congress that the eastern partof New Orleans was going to be destroyed ifthere was a major hurricane but that wastransmitted in the context of the hurricaneprotection project. He then stated:

And so to say that, well, how can the Corpslet this waterway get wider and threatenpeople? where is the policy basis for that?

I say, there is no policy basis for that. Ifyou want to look at it from that angle, thereis no policy basis for creating a threat tohuman lives, but there is a policy basis formaintaining a waterway. And that’s whatthey were doing. They didn’t think theywere threatening the City of New Orleans.They realized they were destroying wet-lands, but they studied that wetlands lossand they concluded that did not threatenthe city. So, the policy basis, Your Honor,is the policy basis for what they were en-gaged in doing.

(Transcript at 81, lines 4–14).


There was no such established policyhere. Moreover, the quoted languagewas used illustratively to draw a distinc-tion between protected discretionary ac-tivities (e.g., selecting the method of su-pervising savings and loan associations)and unprotected discretionary activities(e.g., driving a car), not to widen thescope of the discretionary rule. Ittherefore should not be used to allow theGovernment to create after-the-fact jus-tifications for the purpose of liabilityprotections.

Second, none of our cases have sug-gested that this language from Miller isintended to change our long-held doc-trine that safety measures, once under-taken, cannot be shortchanged in thename of policy.

Id. 241 F.3d at 1216–17.Another instance, cited by the Supreme

Court in Berkovitz, as illustrative of thescope of the discretionary function excep-tion, is that found in Indian Towing Co. v.United States, 350 U.S. 61, 76 S.Ct. 122,100 L.Ed. 48 (1955). It has been notedthat the discretionary function exceptionwas not at issue in Indian Towing18; none-theless, it has been used in the analysis ofdiscretionary function exception cases bythe Supreme Court. The Supreme Courtcharacterized Indian Towing as follows:

The plaintiff sued the Government forfailing to maintain a lighthouse in goodworking order. The Court stated thatthe initial decision to undertake andmaintain lighthouse service was a discre-tionary judgmentTTTT The Court held,

however, that the failure to maintain thelighthouse in good condition subjectedthe Government to suit under theFTCATTTT The latter course of conductdid not involve any permissible exerciseof policy judgment.

Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct.1954. Indeed, the Supreme Court statedeloquently in the Indian Towing decision:

‘‘[T]he Coast Guard need not undertakethe lighthouse service. But once it exer-cised its discretion to operate a lightTTT, it was obligated to use due care tomake certain that the light was kept ingood working order; and, if the light didbecome extinguished then the CoastGuard was further obligated to use duecare to discover this fact and to repairthe light or give warning that it was notfunctioning. If the Coast Guard failedin it duty and damage was therebycaused to petitioners, the United Statesis liable under the [Federal] Tort ClaimsAct.’’

Indian Towing, 350 U.S. at 69, 76 S.Ct.122.

[29, 30] Considering the exhibits citedabove, there is a serious question of fact asto whether once the Corps exercised itsdiscretion to create a navigational channel,it was obligated to use due care to makesure that the channel did not destroy theenvironment surrounding it by creating ahazard. Indeed, by 1988, the Corps itselfrecognized that it had created one when itfound that with continuing erosion, landsouthwest of the channel would be exposed

18. From an analytical standpoint, one couldposit that Indian Towing constitutes a hybrid‘‘due care’’ application to deny immunitybased on the failure of the Coast Guard toexercise due care in the maintenance of alighthouse which duty it had taken up. Thisline of cases has been named the ‘‘Good Sa-maritan’’ approach in which the Governmentis held to the same standard where it takes upa duty that is not required and is held to the

same standard of any ‘‘Good Samaritan’’ in anormal tort case—that is there is no responsi-bility to provide aid, but once the decision ismade to undertake such a duty, one must doso with due care. Osborne M. Reynolds, Jr.,The Discretionary Function Exception of theFederal Tort Claims Act: Time for Reconsider-ation, 42 Okla. L.Rev. 459, 467–270 (Fall,1989).


to direct hurricane attacks from LakeBorgne. At some point during the timecontinuum from the MRGO’s construction,there is a general issue of material fact asto whether the Corps should have warnedCongress about the potential catastrophicloss of life and property. The Corps ar-gues that they relied on studies that thewidening of the channel and loss of wet-lands would not have an effect on thepeople and property in the area. Howev-er, such a decision is not one based onpolicy, and the question is whether thereliance on these studies was negligent ornot.

This analysis is underscored by a num-ber of cases. For example, in W.C. & A.N.Miller Companies v. United States, 963,F.Supp. 1231 (D.D.C.1997), aff’d 1999 WL414253 (C.A.D.C.1999), landowners whowere excavating on land that had beenleased by the Government during WorldWar I found munitions which had beenburied during World War I. Plaintiffs suedfor damages and the Government invokedthe protection of the discretionary functionexception. While the Court found that theactions concerning the actual burial of themunitions was indeed protected, it foundthat the Government’s failure to warn ofburied munitions was not so barred. Thecourt stated:

In Cope v. Scott, 45 F.3d 445 (D.C.Cir.1995), the District of Columbia Circuitdetermined that, although the Park Ser-vice’s failure to maintain an adequateskid resistance on a road surface fellwithin the discretionary function excep-tion, its failure to post adequate warningsigns about the nature of the surface didnot. Cope, 45 F.3d at 450–51. Copeexplained that the failure to warn ofknown dangers falls within the discre-tionary function exception only when itis part of an overall discretionary policyor program. Id.

TTT

Here, the Army’s decision not to warnthat it had buried munitions on privateland is not the type of decision thatinvolves social, economic, or policy con-siderations. Accord Faber v. UnitedStates, 56 F.3d 1122, 1125 (9th Cir.1995)(Navy’s decision not to warn of a knownwater hazard was not the kind of social,economic or policy decision the excep-tion was intended to protect); [citationsomitted] although the Army states thatits failure to warn of buried munitionsinvolved economic and social consider-ations, there is evidence that the Armydid mark and fence off some hazards lefton the formerly leased properties TTT

Thus, the Army had already made adecision to warn. Its failure to effectu-ate that decision properly was not itselfthe product of a policy decision.

Id. 963 F.Supp. at 1241–42.

Another instance where the Governmentwas not shielded by the discretionary func-tion exception can be found in Andrulonisv. United States, 952 F.2d 652 (2d Cir.1991). There, a bacteriologist was severe-ly and permanently injured when a federalgovernment scientist from the Center forDisease Control (‘‘CDC’’) failed to warnabout the obvious dangerous conditions heshould have noticed in the laboratory whenthe rabies virus he had supplied was beingused. Suit was brought against the Gov-ernment and the Second Circuit affirmedthe court’s finding of liability against theGovernment. The appellate court foundthat the CDC doctor’s failure to warn ofthe dangers presented were not the typeof conduct for which Congress had waivedsovereign immunity, since the doctor’s de-cision not to act did not implicate anypolicy consideration.

Another seminal discretionary functionexception case, which has been alluded toherein, United States v. Gaubert, 499 U.S.315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)


was decided by the Supreme Court whenthe Andrulonis suit was on appeal, and theCourt summarily vacated the appellatecourt’s opinion in Andrulonis and remand-ed it for further consideration in light ofGaubert. The Supreme Court in Gaubertemphasized that the discretionary conductis not confined to the policy or planninglevel and the importance of the regulatorystructure in which the government actorsworked. Andrulonis, 952 F.2d at 654.This approach was warranted in theCourt’s opinion because the lower courtshad been using that approach—that islooking at the level at which a decision wasmade—to determine whether a policy deci-sion was implicated. Quoting Gaubert, itnoted:

For a complaint to survive a motion todismiss, it must allege facts which wouldsupport a finding that the challengedactions are not the kind of conduct thatcan be said to be grounded in the policyof the regulatory regime. The focus ofthe inquiry is not on the agent’s subjec-tive intent in exercising the discretionconferred by statute or regulation, buton the nature of the actions taken andon whether they are susceptible to policyanalysis. Id. at 1274–75.

Id. In its opinion, the Second Circuit fo-cused on Gaubert ’s clarification of IndianTowing. The Second Circuit noted:

Gaubert ’s import lies in its clarificationof Indian Towing and its rejection ofany simplistic reliance on the dichotomybetween planning-level actions and oper-ational-level actions. Policy consider-ations, however, remain the touchstonefor determining whether the discretion-ary function exception applies. Indeedthe Court carefully reiterated that theexception ‘‘ ‘protects only governmentalactions and decisions based on consider-ations of public policy.’ ’’ Gaubert, 111S.Ct. at 1274 (emphasis added) (quotingBerkovitz v. United States, 486 U.S. 531,537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d

531 (1988)), and further stated that ‘‘theactions of Government agents involvingthe necessary element of choice andgrounded in the social economic, or po-litical goals of the statute and regula-tions are protected.’’

Andrulonis, 952 F.2d at 654.

The Government argued in that casethat the doctor’s decision to allow an ex-periment to proceed was necessary to ful-fill the policy objectives of the CDC andthus should be protected. The appellatecourt rejected that approach noting that todo so would mean that the CDC would beinsulated from liability for its employeesactions except ‘‘only those where the agenthad acted contrary to a clear regulation.’’This scope is too broad. Thus, the appel-late court affirmed its previous decisionstating, ‘‘The general policy of wanting toeradicate rabies and granting officialssome discretion to achieve those ends isfar too broad and indefinite to insulate Dr.Baer’s negligent conduct in the circum-stances of this case.’’ Thus, Dr. Baer’saction ‘‘cannot be said to be based on thepurposes of the regulatory regime seeks toaccomplish.’’ Id. at 655.

In the context of this litigation, the Gov-ernment’s position appears to be likewiseoverly broad—that is that all actions takenimplicated the Government’s policy withrespect to maintenance of the MRGO.Again, on this record, the Court is unwill-ing to make such a determination. SeeCope v. Scott, 45 F.3d 445, 452 (D.C.Cir.1995) (engineering judgment no more mat-ter of policy than objective scientific prin-ciples found to be exempt exercise of poli-cy judgment found in Berkovitz ).

In Whisnant v. United States, 400 F.3d1177 (9th Cir.2005), a commissary operatedand maintained by a government agencyover the course of three years becameinfested with mold which by October 2000was found to be toxic and carcinogenic.


Plaintiff delivered and oversaw employeesof his employer who worked there. Whis-nant contracted pneumonia, and experi-enced other ailments. He filed suitagainst the United States alleging that theGovernment ignored indications of thedangerous condition of the meat depart-ment and intentionally or recklessly per-mitted employees and customers into it.The district court granted a motion todismiss based on the discretionary functionrule because the agency regulations didnot prescribe a specific course of actionswith respect to either mold specifically orinspections generally, and because the gov-ernment’s choice in selecting an indepen-dent contractor was a decision grounded inpolicy considerations.

As characterized by the Ninth CircuitCourt of Appeals:

The court rejected Whisnant’s argumentthat the discretionary exception did notapply because he was suing on the basisof the government’s negligence in in-specting the premises rather than thegovernment’s negligence in selectingJohnson Controls as its maintenancecontractor: according to the court,Whisnant’s ‘‘allegations of negligenceare irrelevant’’ to the jurisdictional ques-tion. The Court also rejected Whis-nant’s claim that the government’s con-duct fell outside of the exception becauseit occurred at the ‘‘operational’’ ratherthan the ‘‘planning or policy-making’’level: the court found that the SupremeCourt had abolished the operational-planning distinction.

Whisnant, 400 F.3d 1177, 1180 (9th Cir.2005). In extremely thorough treatmentof the second-prong of the discretionaryfunction exception, the appellate court re-versed the district court.

The court began by noting that govern-ment action ‘‘can be classified along a spec-trum, ranging form those ‘totally divorcedfrom the sphere of policy analysis,’ such as

driving a car, to those ‘fully grounded inregulatory policy,’ such as the regulationand oversight of a bank.’’ Id. at 1181,citing Gaubert, 499 U.S. at 325 n. 7, 111S.Ct. 1267. The determination of where onthat spectrum a set of the facts rests is thechallenge the court faces. ReviewingNinth Circuit jurisprudence, the courtthen posited that there were two ‘‘trends’’in the case law. One dominant themebeing the need to distinguish between de-sign and implementation—design beingshielded; implementation not. The secondtrend is where professional judgment—particularly judgments concerning safe-ty—are rarely considered to be susceptibleto social, economic or political policy. Id.The court then reviewed the case law asfollows:

Thus, for example, in a suit alleginggovernment negligence in the designand maintenance of a national park road,we held that designing the road withoutguardrails was a choice grounded in poli-cy considerations and was thereforeshielded under the discretionary func-tion exception, but maintaining the roadwas a safety responsibility not suscepti-ble to policy analysis. See ARA LeisureServs. v. United States, 831 F.2d 193,195 (9th Cir.1987). Similarly, in a suitalleging government negligence in thedesign and construction of an irrigationcanal, we held that the decision not toline the canal with concrete was suscep-tible to policy analysis, but the failure toremove unsuitable materials during con-struction was not. See Kennewick Irri-gation Dist. v. United States, 880 F.2d1018, 1027–28, 1031 (9th Cir.1989). Inthree cases concerning injuries resultingfrom the government’s failure to postwarnings concerning hazards present innational parks, we held that the govern-ment’s decision not to post signs warn-ing of obvious dangers such as venturingoff marked trails to walk next to the face


of a waterfall, and the government’s de-cision to use brochures rather than post-ed signs to warn hikers of the dangersof unmaintained trails, involved the ex-ercise of policy judgment of the typeCongress meant to shield from liability,Valdez v. United States, 56 F.3d 1177,1178, 1180 (9th Cir.1995); Childers v.United States, 40 F.3d 973, 976 (9thCir.1994), but that such policy judgmentwas absent when the government simplyfailed to warn of the danger to barefootvisitors of hot coals on a park beach,Summers v. United States, 905 F.2d1212, 1215 (9th Cir.1990). And in anaction for the death of a prospectivelogger ‘‘trying out’’ for a job with agovernment contractor at a logging siteunder the management of a governmentagency, we held that while the govern-ment’s authorization of the contract wasprotected under the discretionary func-tion exception, the government’s failureto monitor and ensure safety at thework site was not. Bear Medicine, 241F.3d at 1212, 1214, 1217.

Whisnant, 400 F.3d at 1181–82. TheCourt then noted that these cases comportwith the Supreme Court’s pronouncementin Indian Towing. The Court reiteratedits previous statement, ‘‘As we have sum-marized: ‘The decision to adopt safety pre-cautions may be based in policy consider-ations, but the implementation of thoseprecautions is not TTT [S]afety measures,once undertaken, cannot be shortchangedin the name of policy.’ ’’ Id., citing BearMedicine, 241 F.3d 1208, 1215, 1216–17(9th Cir.2001).

Based on that analysis, the appellatecourt then found that Whisnant’s suit wasnot barred by the discretionary functionexception. It noted that plaintiff had notalleged the government was negligent indesigning its safety inspection procedures;instead, plaintiff contended that it wasnegligent in following through on thoseprocedures by ignoring reports and com-

plaints describing the unsafe condition ofthe meat department. The court contin-ued:

Like the government’s duties to main-tain its roads in safe condition, to ensurethe use of suitable materials in its build-ing projects, and to monitor the safety ofits logging sites, the government’s dutyto maintain its grocery store as a safeand healthy environment for employeesand customers is not a policy choice ofthe type the discretionary function ex-ception shields. Cleaning up mold in-volves professional and scientific judg-ment, not decisions of social, economic,or political policy. ‘‘Indeed, the crux ofour holdings on this issue is that a fail-ure to adhere to accepted professionalstandards is not susceptible to a policyanalysis.’’ Bear Medicine, 241 F.3d at1217 (internal quotation marks omitted);see also In re Glacier Bay, 71 F.3d 1447,1453 (9th Cir.1995) (‘‘Decisions involvingthe application of objective scientificstandards are not insulated by the dis-cretionary function exception becausethey do not involve the weighing of eco-nomic, political and social policy.’’ (quot-ing Kennewick, 880 F.2d at 1030) (alter-ations omitted)). Because removing anobvious health hazard is a matter ofsafety and not policy, the government’salleged failure to control the accumula-tion of toxic mold in the Bangor commis-sary cannot be protected under the dis-cretionary function exception.

Id. at 1183.

The court subsequently noted that thedanger with the discretionary function ex-ception is more pronounced where the gov-ernment takes on the role of a privatelandowner. It noted:

Every slip and fall, every failure towarn, every inspection and mainte-nance decision can be couched in termsof policy choices based on allocation oflimited resources. As we have noted


before in the discretionary function ex-ception context, ‘‘[b]udgetary constraintsunderlie virtually all governmental activ-ity.’’ Were we to view inadequate fund-ing alone as sufficient to garner theprotection of the discretionary functionexception, we would read the rule toonarrowly and the exception too broadly.Instead, in order to effectuate Con-gress’s intent to compensate individualsharmed by government negligence, theFTCA, as a remedial statute, should beconstrued liberally, and its exceptionsshould be read narrowly. Id. [O’Toole v.United States, 295 F.3d 1029, 1037 (9thCir.2002) ] (quoting ARA Leisure, 831F.2d at 196) (additional citations omit-ted) (emphasis added).

Id. at 1183–84.

[31] Thus, there are questions of factas to the whether the decisions made withrespect to the maintenance of the MRGOwere actually policy based, or whetherthey were within the purview of IndianTowing ’s dictates as non-policy based ac-tions or omissions. See Ayala v. UnitedStates, 980 F.2d 1342 (10th Cir.1992)(where mining inspector offers technicalassistance, technical judgments are notprotected by the discretionary function ex-ception where choice was governed by ob-jective principles of electrical engineering);Aslakson v. United States, 790 F.2d 688(8th Cir.1986) (decision of governmentalagency not to elevate certain power linesrunning over lake did not involve evalua-tion of relevant policy factors and thus notsubject to the discretionary function excep-tion).

Further support for this position can befound in Bean Horizon Corp. v. TennesseeGas Pipeline Co., 1998 WL 113935(E.D.La. Mar. 10, 1998), where JudgeEdith Clement while a district court judgefound that there were material questionsof fact preventing summary judgment onthe discretionary function exception. Suit

had been brought against the Army Corpsfor damages allegedly caused when adredge dropped a spud on a pipeline thathad been improperly marked by the Corpsin the contract under which the dredgewas operating and where a Quality Insur-ance inspector was assigned to the dredge.‘‘Once the Corps takes an action, it mustact reasonably with respect to those whoare likely to rely upon it. For this veryreason, the Corps has a ‘continuing duty’to use due care to make certain that itscharts accurately depict the location ofpipelines ‘once it [takes] it upon itself toindicate the position of one of the pipelineon the chars.’ ’’ Southern Natural GasCo. v. Pontchartrain Mat., 711 F.2d 1251,1257, n. 8 (5th Cir.1983).

In Alabama Electric Cooperative, Inc. v.United States, 769 F.2d 1523 (11th Cir.1985), an electric cooperative brought suitagainst the Corps for costs of stabilizingits tower which had been undermined byerosion allegedly caused by the Corps.The cause of the erosion was described asfollows:

During 1970 and 1971, the Corps pre-pared plans and specifications for a ser-ies of eleven dikes or jetties along theAlabama River, the purpose of whichwas to reduce dredging costs by narrow-ing the channel and accelerating the cur-rent, which would theoretically washaway more silt. One of these dikes waslocated about one-half mile upstreamfrom AEC’s tower, extending out fromthe opposite bank. The alleged effect ofthis dike was to deflect the current to-ward the east bank and AEC’s tower.Erosion increased substantially and inAugust of 1981, AEC determined thatits tower was in danger of being under-mined. Accordingly, AEC stabilized thetower by driving pilings around its baseat a cost of $576,114.09. AEC subse-quently brought this action under theFTCA to recover for the cost of stabiliz-ing the tower


Id. at 1525. During discovery, the Corpsadmitted that it had not intended to affectthe banks of the river and that there wasno intention to widen the river at the dikelocation involved in the suit. A technicalreport was also produced by Corps whichhad been published by it prior to the de-sign and construction of the dikes. In thatreport, factors were noted as relevant inthe design and construction of dikes in-cluding, among a myriad of things, thenecessity of bank protection to preserveproperty; the necessity that all engineer-ing factors and variable which affect riverchannel geometry be considered and un-derstood; and the requirement that theriver engineer determine the effects of adesign in advance.

The Corps took the position that eventhough this work was ‘‘a recognized au-thority on dike design’’, the responsibleengineer did not recall consulting the pub-lication. Furthermore, it maintained thatits engineers were not required by regula-tion to consider this technical report andthat the cooperative had not alleged a spe-cific violation of any specific regulations.In reality, the engineers testimony indicat-ed that the techniques used for purposesof construction of the dike at issue fellwoefully short of the technical elementsindicated as necessary by the Corps’ ownreport.

The district court had dismissed thesuit finding that the acts of design andconstruction were discretionary functionsexempted from liability. The EleventhCircuit reversed, finding that the discre-tionary function exception did not shieldthe Corps from liability for caused by en-gineering errors. The appellate court

began by examining the ‘‘nature of theconduct’’ as required under Varig andBerkovitz and found that it is clear thatthere is ‘‘nothing to suggest that all de-sign decisions are inherently ‘groundedin social, economy, and political policy.’ ’’Id. at 1531. The court then reviewedvarious cases where design decisionswere found to be nondiscretionary deci-sion and others where the design deci-sions were found to be discretionary. Itstarted with Seaboard Coast Line RRCo. v. United States, 473 F.2d 714 (5thCir.1973). In that case plaintiff contend-ed that a drainage system negligently de-signed by the Army Corps diverted wa-ter undermining its railroad right-of-way.The Fifth Circuit found that the govern-ment made a policy decision when itmade the initial decision to build thedrainage system. However, once thatdecision was made, it was required toperform the building of the drainageditch in a non-negligent manner. Id.,citing Seaboard Coast, 473 F.2d at 716.19

After a painstaking examination of cases,the court concluded:

where the Corps makes a social, eco-nomic or political policy decision con-cerning the design of a particularproject, that decision is excepted fromjudicial review under § 2680(a). Inthe absence of such a policy deci-sion, the Corps’ design decisions aresubject to judicial review under thestate law tort standards that wouldnormally govern an action for engi-neering malpractice.

Alabama Electric, 769 F.2d at 1536–37.

Based on the foregoing, there are mate-rial questions of fact as to whether the

19. The 11th Circuit properly noted that asAlabama Electric was pre-Varig, the findingthat the only policy decision was in the initialdecision to build the drainage system, theapproach might have to be reexamined.However, the key is to determine whether

whatever decision and construction decisionsare alleged to have been negligent were policydriven. As the facts of the fifty year evolutionof the MRGO are simply not ascertainable onthe record before the Court, this motion mustbe denied.


second prong of the discretionary functionis met and the motion must be denied assuch. Clearly, the alleged failure of theCorps to inform Congress of the dangerswhich it apparently perceived in the con-text of the environmental damage to thewetlands caused by the operation andmaintenance of the MRGO presents anissue for trial.

III. Conclusion

The parties to this litigation have pre-sented legal arguments concerning two im-portant legal bars to the case before theCourt—the due care exception and thediscretionary function exception. Plain-tiffs sought to preclude the Governmentfrom raising the discretionary function ex-ception based on the first inquiry requiredfor its application—that certain federalstatutes, regulations and policies specifical-ly prescribed a course of action for theCorps to follow and that the Corps had nochoice to but to adhere to those directives.The Court has found that the FWCA doesnot provide such a bar; however, withrespect to NEPA, Plaintiffs demonstratedthat there are material questions of factthat the Corps itself had found that theenvironmental damage caused by themaintenance and operation of the MRGOwas significant, such that it had no choicebut to file the appropriate mandated re-ports. As such, if the Court is convincedat trial the Corps indeed violated a man-date and is precluded from its protection,then Plaintiffs will still bear the burden toprove that this failure caused the damagessought.

As to the Government’s motion, theCourt has found as a matter of law thatthe due care exception is unavailable to itfor the claims presented with respect tomaintenance and operation of the MRGO,and it has found that there are materialquestions of fact with respect to the origi-nal design and construction thereof. Fur-thermore, to the extent that the Corps can

prove that it did not violate a mandatewith respect to NEPA, there are materialquestions of fact with respect to whetherthe actions complained of were groundedin political, social, or economic policy rath-er than ordinary non-policy decisions con-cerning technical, engineering and profes-sional judgments, or other non policybased factors, and/or whether the safety ofthe people and property in the area over-ride any ostensible purported ‘‘policy’’ con-siderations.

Based on the foregoing and for the rea-sons assigned herein,

IT IS ORDERED that Plaintiffs’ Mo-tion for Partial Summary Judgment (Doc.16510) is DENIED with regard to theFWCA because the Court finds, that un-der the undisputed facts of this case, itdoes not provide a mandate which wouldprevent the application of the discretionaryfunction for the Corps.

IT IS FURTHER ORDERED thatPlaintiffs’ Motion for Partial SummaryJudgment (Doc. 16510) is DENIED withrespect to the alleged NEPA violations asthe Court finds that there are materialquestions of fact as to whether the actionsof the Corps with respect to the mandatesof NEPA were violated such that the dis-cretionary function would not be unavail-able to the Corps.

IT IS FURTHER ORDERED that theDefendant United States’ Renewed Motionto Dismiss or, in the Alternative, for Sum-mary Judgment (Doc. 16511) is DENIEDwith respect to the due care exception forthe maintenance and operation of theMRGO as a matter of law and DENIEDwith respect to the initial design and con-struction as there are material questions offact with respect to these issues.

IT IS FURTHER ORDERED that theDefendant United States’ Renewed Motionto Dismiss or, in the Alternative, for Sum-

699URBAN v. ACADIAN CONTRACTORS, INC.Cite as 627 F.Supp.2d 699 (W.D.La. 2007)

mary Judgment (Doc. 16511) is DENIEDwith respect to the applicability of thediscretionary function exception as thereare material questions of fact concerning(1) whether the Corps violated a mandateunder NEPA to warn Congress of thedangers presented by the MRGO, and (2)whether the Corps’ actions complained ofwere grounded in political social, or eco-nomic policy rather than ordinary non-policy decisions concerning technical, engi-neering and professional judgments or oth-er non policy-based factors.

,

Jeffrey URBAN, et al.

v.

ACADIAN CONTRACTORS, INC.

Civil Action No. 04–2211.

United States District Court,W.D. Louisiana,

Lafayette Division.

July 27, 2007.Background: Widow of indemnitor’s em-ployee brought survival and wrongfuldeath action against contractor and its con-sultant. The defendants filed third-partycomplaint against indemnitor and its insur-er seeking defense and indemnity. Con-tractor and its consultant filed motion forsummary judgment on their third–partyclaims.Holdings: The District Court, Rebecca F.Doherty, J., held that:(1) indemnitor, which agreed to defend

‘‘company group’’ which included oilcompany and its contractors, for ‘‘anyand all’’ liability or damages whether‘‘directly or indirectly arising out of ’’or ‘‘in connection with ’’ personal orbodily injury, owed a duty to defendthe claims against contractor for injurysustained by indemnitor’s employee

while acting as a ‘‘good Samaritan’’ inseeking to extinguish a fire caused byalleged gross negligence of contractor;

(2) indemnitor was not relieved of its obli-gations owed under its contract withoil company to defend oil company’scontractor on personal injury claimsbecause of an alleged breach of thewarranty of performance by contractorunder contractor’s contract with oilcompany; and

(3) contractor’s consultant, who was on ac-cident site to perform services for con-tractor, was part of the ‘‘companygroup’’ within meaning of indemnifica-tion provision.

Motion granted in part and denied in part.

1. Indemnity O31(7), 33(5)

Under Texas law, indemnitor, whichagreed to defend ‘‘company group’’ whichincluded oil company and its contractors,for ‘‘any and all’’ liability or damageswhether ‘‘directly or indirectly arising outof ’’ or ‘‘in connection with ’’ personal orbodily injury, owed a duty to defend theclaims against contractor for injury sus-tained by indemnitor’s employee while act-ing as a ‘‘good Samaritan’’ in seeking toextinguish a fire caused by alleged grossnegligence of contractor.

2. Contracts O143.5

Indemnity O31(1)

Texas law requires courts to interpretcontracts, including their defense and in-demnity agreements, in a manner so as toharmonize and give effect to all provisionsof the contract so that none will be ren-dered meaningless.

3. Contracts O143(1)

If a written instrument is worded sothat it can be given a certain or definitelegal meaning or interpretation, Texas