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V.


ROCCO TOMMASEO, et al.




THE UNITED STATES


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Plaintiffs









Defendant






1:05-cv-1119 SGB
Hon. Susan G. Braden






Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS




MEMORANDUM IN OPPOSITION TO DEFENDANT’S

RULE 12 (b)(1) MOTION TO DISMISS



MAY IT PLEASE THE COURT:

This Court indicated to all counsel of record in several telephone conferences that, should a

factual dispute arise with regard to Defendant’s moving papers, the Court will have no choice but to

proceed to discovery. Notwithstanding this fair notice by the Court, the Defendant has attempted to

refute factual allegations set forth in the Plaintiffs’ Complaint. Plaintiffs, on the other hand,

remembering the promise of the Court, have filed several pleadings addressing these issues.

Plaintiffs are filing all of these pleadings today, along with the instant opposition memorandum. A

brief recitation of these other filings, and their import, is in order.

First, Plaintiffs are filing a Motion in Limine which seeks to exclude the putative “evidence”

offered by Defendant with its moving papers. The Motion in Limine demonstrates that the

Defendant has not discharged its duty as the Movant, especially as the Defendant has not offered any

evidence which is admissible in a Rule 12 proceeding, a Rule 56 proceeding, or for any other

imaginable purpose. Consequently, the Defendant has not carried its burden of proof with respect to

its dispositive motion.




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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 2 of 10

Second, the undersigned counsel is filing a Declaration pursuant to Rule 56(f) of the Rules of

the United States Court of Federal Claims. That Declaration submits that, if the Court converts this

Motion into one requiring resolution of disputed facts—whether through a “factual attack Rule 12

Motion,” or by conversion to a Rule 56 Motion for Summary Judgment—Plaintiffs will need to

obtain abundant and specific discovery from the Defendant, certain of its agencies (such as the

United States Army Corps of Engineers), as well other entities and other individual witnesses. That

discovery is fully detailed and specified in the aforementioned Rule 56(f) Declaration of counsel.

Third, Plaintiffs are filing a Statement of Contested Material Facts in Opposition to this

dispositive motion, demonstrating the many factors which pretermit summary adjudication of the

Government’s Motion. Attached to that Statement of Contested Material Facts are:

a.

The sworn Declaration and expert opinion of Dr. Paul Kemp of the LSU Hurricane

Center, which details evidence in support of every element required to prove this

inverse condemnation case, including notice to the Defendant of the imminent

takings via the MR-GO;

b.

The sworn Declaration of Edward Robin, Sr., an eyewitness to the storm surge and

inundation coming directly from the MR-GO onto his property in St. Bernard Parish,

which suddenly required the then 79 year old Mr. Robin to swim for his life;

c.

The sworn Declaration of Officer Gelvin, of the Lake Borgne Levee District, also

discussing the repeat flooding caused by the MR-GO; and

d.

The sworn declaration of Brad Robin, describing the wetlands degradation and repeat

flood events directly occasioned by the MR-GO.

These filings completely refute each and every allegation contained in Defendant’s moving

papers. Given the Court’s previous advices in this regard, Plaintiffs move that the Motion to

Dismiss be denied.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 3 of 10

Procedural Posture

The Defendant in this Fifth Amendment takings litigation has moved to dismiss Plaintiffs’

First Amended Class Action Complaint; Defendant moves for dismissal in this matter pursuant to

Rule12(b)(1) of the Rules of the United States Court of Federal Claims. To oppose this Motion, the

Plaintiffs, Rocco Tommaseo, et al., as well as the putative class members, are filing the previously

noted pleadings, sworn declarations and other evidence into the record to demonstrate that

Defendant has not shifted the burden of proof back to Plaintiffs, notwithstanding Defendant’s

statement that it mounts a “factual attack” upon the jurisdictional allegations.1 Movant offers no

competent evidence to shift the ordinary Rule 12 burdens.2 As Defendant has no competent

evidence to refute the allegations set forth in the Complaint, the Rule 12 Motion of Defendant must

fail, as previously warned by this Court.

Factual Disputes = Conversion to Rule 56?



Although the “evidence” offered by Defendant in its moving papers is certainly not

competent for use in a Rule 12, Rule 56 or trial situation, out of an abundance of caution Plaintiffs

have prepared the aforementioned Statement of Contested Material Facts, replete with sworn

supporting evidence (in form which is acceptable under either a Rule 12 or a Rule 56 analysis).3

Consequently, the Court’s standard of analysis, especially if it disregards the “evidence” proffered

by Movants, requires only an examination the First Amended Class Action Complaint to determine

if jurisdiction is properly alleged. Alternatively, if the Court converts this into a Rule 56 Motion (a

Motion which the Court in previous telephone conferences has indicated it would summarily deny if

there were factual disputes), the existence of numerous factual disputes with regard to virtually all




1 Plaintiffs’ filing is akin to a Rule 56 (h)(2) Statement, but it is slightly different given the procedural posture created by
the Defendant’s unusual Motion.
2 See Figueroa v. United States, 57 Fed. Cl. 488, 492 (2003).
3 Where both the Movant and the opposing party go outside of the pleadings with respect to a Motion to Dismiss, this can
convert the Motion into a Rule 56 Motion. Figueroa, 57 Fed. Cl. at 504.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 4 of 10

material issues in this case requires that the Rule 56 Motion be denied. Cottrell v. United States, 71

Fed. Cl. 559, 564 (2006).

The Truth



The recitations set forth in the First Amended Class Action Complaint clearly demonstrate

that a Fifth Amendment taking has occurred as a result of the repeat flood events occasioned by the

MR-GO in the wakes of Hurricane Katrina (29 August 2005) and Hurricane Rita (23 September

2005, on her way to landfall further west the following day). The storm surges of these two

hurricanes were funneled into St. Bernard Parish and the Lower Ninth Ward via the MR-GO, which

is a federal navigational project. This MR-GO was originally authorized in 1956 as a moderate-

sized shipping channel, but in the fifty years since authorization it has grown to several times its

original size and is so large that it is now known as “Storm Surge Alley.”4 Although Movant prefers

to refer to the MR-GO as a 650 foot-wide navigational canal, by the 21st Century the MR-GO had

blossomed into a massive waterway more than three times the original authorized width, with

concomitant increases in its ability to funnel storm surge and capacity to generate horrific

consequences for nearby property owners.5



The Government’s Motion seeks to ignore the fifty year-long transformation of the MR-GO,

and seeks to analyze the allegations of this suit through the window of the litigation which arose out

of the flooding attendant to Hurricane Betsy in 1965. In other words, the Government would have

this Court make a decision based on fifty year-old facts and forty year-old case law, neither of which

has anything to do with the facts and law as they stand today. That is clearly in error.








Recurrent Flooding

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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 5 of 10

As fully demonstrated by the Declarations of Brad Robin, Edward Robin, Sr. and Dr. Kemp,

St. Bernard Parish was flooded subsequent to Hurricane Katrina by the storm surge attendant to

Hurricane Rita (when she passed Southeastern Louisiana), and again this year by much more minor

weather events. Given these facts, and the recurring nature of the flooding on Plaintiffs’ property,

the Amended Complaint clearly states a taking claim which is recoverable in this Court.6 Frankly,

Hurricane Rita’s repeat flooding proves that the Government’s construction, design, maintenance

and continued dredging of the MR-GO constitutes a taking, which manifested for the first time on 29

August 2005 during Hurricane Katrina. Additionally, the evidence on record shows that the recent

progression of the MR-GO’s effects have caused far more regular flooding over these lands than

suggested by the Government in its moving papers.

The MR-GO is a Vastly-Different Body of Water Today than that Which Defendant

Authorized in 1956 and Which Existed in 1965

As demonstrated by the foregoing evidence, the Corps’ dredging activity, and the other



conduct of Defendant with respect to the MR-GO (previous to 29 August 2005), at worst created a

pathway for the MR-GO to completely take St. Bernard Parish, or at best created a flowage

easement over the Plaintiffs’ property. Either way, a takings claim is properly stated.7

The storm surge traveled up the MR-GO

The Government claims in its Moving papers that the storm surge did not travel up the MR-

GO and flood St. Bernard Parish. However, that is exactly what happened during both Hurricanes

Katrina and Rita. These are classic recurrent flood events. The evidence provided by Dr. Kemp in

his sworn expert Declaration, as well as the Declarations of Edward Robin, Sr. and Russell Gelvin,


4 See Ivor Van Heerden, The Storm 81 (Viking 2006).
5 See Declarations attached to the Statement of Contested Material Facts, filed separately today.
6 The Defendant’s averment that this is a tort, and therefore cannot be a taking, is wrong. See Moden v. United
States, 404 F.3d 1335, 1339 (Fed. Cir. 2005).
7 An excellent discussion of a flowage easement is found in the case of Ridge Line, Inc. v. United States, 346 F.3d
1346, 1357 (Fed. Cir. 2003).



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 6 of 10

Jr., prove that the existence of the MR-GO was a direct and proximate cause of the flooding of

Plaintiffs’ lands.

The Flooding Occasioned Through, and Because of the MR-GO, is a Direct,

Natural and Probable Consequence of at Least Three Factors

As fully verified in the declaration of Dr. Paul Kemp, which declaration was prepared in




connection with the FTCA claims pending in New Orleans brought in respect of the MR-GO

(Robinson v. United States, Civil Action No. 06-2268 (E.D. La. 2006)), there are a multitude of

pathways by which the inundation occurred at the time of Hurricane Katrina. Such flooding is

certain to repeat in the future whenever a tropical storm passes over or near the MR-GO, and the

flooding will have the same effects upon the properties which are the subject of this suit, viz. St.

Bernard Parish and the Lower Ninth Ward of New Orleans. These will be addressed in seratim.

The Funnel Effect

This effect is best described by Dr. Paul Kemp, an expert in coastal hydrology and geology.8





“While the Army Corps intended the MR-GO to be a navigational
shortcut for cargo ships and other vessels, what it actually built was
an excellent storm surge delivery system that magnifies the load
potential for hurricane generated storm surge. The MR-GO is a
conduit into the heart of Greater New Orleans for surge that built up
in Lake Borgne.”9


Essentially, the confluence of Reach Two of the MR-GO and the GIWW (better known as the

Industrial Canal) have created a “man-made hurricane storm surge accelerator,”10 especially as the

merger of those two bodies of water now has a cross-section of nearly twelve times that which was

authorized by Congress in 1956.11 Once again, Dr. Kemp’s words are telling: “This efficient

conduit has the potential to magnify exponentially hurricane-generated storm surge entering the




8 Declaration of Dr. Paul Kemp (August 17, 2006) (attached as Exhibit 1).
9 Id. ¶ 11 (emphasis added).
10 Id. ¶ 12.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 7 of 10

Industrial Canal by 20-40% when that storm surge is delivered off of Lake Borgne, which lies just to

the funnel’s east.”12 Consequently, storm surge water which entered the MR-GO is “[p]ushed and

focused into the funnel [and] tends to pile up and increases in velocity.”13



Restated simply, the MR-GO, as it actually exists—i.e., not as it existed in 1956, which is

how the Government describes it in its Motion to Dismiss—is a storm surge intensifier. Its design,

combined with decades of dredging by the United States Army Corps of Engineers which has

exacerbated the problem, guarantees that any tropical storm or hurricane which passes within the

vicinity of the MR-GO will cause water to surge through the MR-GO and into St. Bernard Parish

and the Lower Ninth Ward, flooding those lands time and time again. This is a classic recurring

flood event which certainly rises to the level of a Fifth Amendment Taking.14 Absent the MR-GO’s

efficient storm surge delivery system, the catastrophic inundation and destruction of the Plaintiffs’

property would not have occurred.15

MR-GO Destroys the Wetlands, Which are the Natural Storm Surge Buffers



The wetlands and marshes surrounding the MR-GO would have formed a natural buffer

against storm surges to protect the Plaintiffs’ property from the ravaging effects of Katrina, and even

those of Hurricane Rita, which was simply passing through. However, Nature’s protection was

destroyed by the placement of the MR-GO, and especially its continued modification, via dredging

and other activity, such that it is now a monstrous waterway (much larger than the Panama Canal)

which daily consumes the wetlands which previously protected St. Bernard Parish and the Lower



11 Id.
12 Id.
13 Id. ¶ 13.
14 It is noteworthy that the Lake Borgne surge, which was delivered by the MR-GO funnel, added an additional 3 feet to
Katrina’s storm surge. The flow from the funnel also prolonged the period of high water by bringing it in earlier. Both
of these outcomes resulted from the joinder of the MR-GO and the GIWW, and especially the design and construction of
the MR-GO, all of which created and intensified the storm surges to cause the catastrophic inundation and destruction to
the Plaintiffs’ property during Hurricanes Katrina and Rita. Id. ¶ 17.
15 Id. ¶ 19.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 8 of 10

Ninth Ward.16 In fact, when the MR-GO was completed in 1968, she had an authorized, and actual,

surface width of 650 feet. However, as she sat at the time of Hurricane Katrina’s arrival in 2005, it

had grown three-fold to more than 2,000 feet across.17 The Defendant’s constant, extensive and

intrusive dredging of the MR-GO as recently as last year (which is specifically averred in the

Amended Complaint as being one of the activities which has resulted in the various takings), is an

on-going and continuing ecological disaster.18 More importantly for the purposes of this litigation, it

guarantees repeat flood events, such that this is either a permanent taking of the Plaintiffs’ lands, or

at best, a horrific flowage easement. This wetlands destruction resulting from the activities of the

United States in respect of the MR-GO make recurrent flood events a certainty.19

Additional Impacts upon St. Bernard Parish and the Lower Ninth Ward



The MR-GO’s construction, maintenance and dredging has been particularly problematic for

St. Bernard Parish and the Lower Ninth Ward, as this also contributed to the loss of wetlands near

neighboring Lake Borgne. This has created yet another storm surge delivery pathway into the

Plaintiffs’ property. As those wetlands have been destroyed by the MR-GO’s construction and

maintenance, there has been a concomitant increase of storm surge into St. Bernard Parish.20 The

words of Dr. Kemp are quite telling here: “If the MR-GO had not destroyed the natural environment

around it, Nature’s defenses would have battled Katrina quite effectively. By destroying the natural

balance, however, the MR-GO became a lethal weapon of destruction at the hands of Katrina.”21

Clearly then, the MR-GO created a third pathway, or avenue of attack upon St. Bernard Parish,

through this “open backdoor” for hurricane storm surge leading directly into the Lower Ninth Ward




16 Id. ¶¶ 20-23.
17 Id. ¶ 24.
18 See, e.g., Close the Mississippi River Gulf Outlet Now!, MRGO History, available at http://www.ccmrgo.org/
(last visited Nov. 2, 2006) (attached as Exhibit 2).
19 Declaration of Dr. Paul Kemp ¶ 25 (August 17, 2006) (attached as Exhibit 1).
20 Id. ¶¶ 28-29.
21 Id. ¶ 30.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 9 of 10

and St. Bernard Parish.”22



The foregoing evidence makes it clear that the MR-GO causes or contributes to these

recurring flood events in multiple ways. Multiple pathways exist for these repetitive takings, all

arising out of the Government’s MR-GO project, such that the Motion to Dismiss brought by the

Government should be denied.

Conclusion

A takings claim has been clearly stated and the Government’s Motion should be dismissed.

The Defendant ignored the fair warnings previously offered by the court and has created a situation

where it has either failed to shift the burden of proof back to the Plaintiffs, or the Defendant has

shifted the burden but must lose because of the material facts disputed by the sworn and competent

evidence filed into the record by Plaintiffs. In either case, the Defendant’s Motion should be

rejected, and the Court should rule on the pending Motion to Compel.

Respectfully submitted this 2nd day of November, 2006.

s/ Stephen M. Wiles_____________
F. Gerald Maples, T.A. (# 25960)
Stephen M. Wiles (# 17865)
Carlos A. Zelaya, II (# 22900)
F. G. MAPLES, P.A.
902 Julia Street
New Orleans, LA 70113
Telephone: (504) 569-8732
Facsimile: (504) 525-6932

-and-
J. Wayne Mumphrey (# 9824)
MUMPHREY LAW FIRM, LLC
9061 West Judge Perez Drive
Chalmette, LA 70043
Telephone: (504) 277-8989

-and-



22 Id. ¶¶ 31-32.



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Case 1:05-cv-01119-SGB Document 32 Filed 11/02/2006 Page 10 of 10

John H. Musser, IV (# 9863)
201 St. Charles Avenue
Suite 2535
New Orleans, LA 70170
Telephone: (504) 566-1218
Facsimile: (504) 566-7185

COUNSEL FOR PLAINTIFFS
Rocco Tommaseo, et al.





CERTIFICATE OF SERVICE







I hereby certify that a true copy of the above and foregoing has been served upon all counsel

of record via facsimile transmission on this 2nd day of November, 2006.




















s/ Stephen M. Wiles_____________
Stephen M. Wiles




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