Federal Takings

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Federal Takings

Arent Fox Files Fifth Amendment Takings Brief in Hurricane Katrina Case

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Arent Fox Files Fifth Amendment Takings Brief in Hurricane Katrina Case

Arent Fox's Federal Takings team has filed an amicus (friend of the court) brief in an important Fifth Amendment takings case involving the government's role in the flooding of New Orleans during and after Hurricane Katrina. The brief, filed in the US Court of Appeals for the Federal Circuit in St. Bernard Parish Government v. United States, is available here.

Beginning in the 1950s the federal government built and maintained the Mississippi River Gulf Outlet, a navigational canal providing ocean-going ships a shorter route from the Gulf of Mexico to the Port of New Orleans. But the government was warned at the time that building the canal would increase the risk that homes, businesses, and private property in St. Bernard Parish and New Orleans’ Lower Ninth Ward would flood. The government knew that if New Orleans was hit by a sufficiently strong storm, the canal would create a funnel, focusing and intensifying the effect that any storm surge would have around New Orleans. The government also failed to maintain the canal properly and destroyed critical wetlands that acted as a flooding buffer between New Orleans. Hurricane Katrina provided the storm surge the government was warned about and this area of New Orleans flooded exactly as the government knew it would. 

The flooded owners sued the government in Louisiana, only for the federal court there to rule the government had sovereign immunity from any tort liability for flooding the owners' land. Then the landowners sued the government in the US Court of Federal Claims, claiming that the government's flooding of their land was a taking under the Fifth Amendment without "just compensation." That court ruled in favor of the landowners, but the government is now appealing that decision. 

Arent Fox filed its brief for the National Federation of Independent Business, Reason Foundation, Southeastern Legal Foundation, National Association of Reversionary Property Owners, Property Rights Foundation of America, and distinguished property law professor James W. Ely, arguing that when the federal government floods privately-owned land for a public purpose, the flooding is a taking of that land for which the landowners are owed compensation. 

Arent Fox represents private landowners across the country whose property has been taken by the government without "just compensation" in violation of the Fifth Amendment to the Constitution.

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