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Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 1 of 11

In the United States Court of Federal Claims

No. 05-1119L

Filed: March 29, 2007
TO BE PUBLISHED

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*
ROCCO TOMMASEO, THOMAS
*
TOMMASEO, ROCKY AND CARLO, INC., *
*
STEVEN BORDELON, husband of,
*
CYNTHIA BORDELON and, STEVE’S
MOBILE HOME & R.V. REPAIR, INC.,
*
*
* Motion In Limine;
* Motion to Dismiss, RCFC 12(b)(1);
*
*
*
*
*
*
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Ripeness;
Standing;
Subject Matter Jurisdiction.

Concise and Direct Pleading, RCFC 8(e),
12(e), 15(a);
Just Compensation Clause, U.S. CONST.
amend. V;

Defendant.

Plaintiffs,

v.

THE UNITED STATES,



F. Gerald Maples, New Orleans, Louisiana, counsel for Plaintiffs.

Fred Russell Disheroon, United States Department of Justice, Environment and Natural Resources
Division, counsel for Defendant.

MEMORANDUM OPINION AND ORDER

BRADEN, Judge.

The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile, man-made navigation channel
that runs from the Gulf of Mexico to the Port of New Orleans. Plaintiffs have filed a class action
for compensation alleged to be due, because of the taking of their property during Hurricane Katrina
and subsequent storms, as a result of the construction, continued operation, maintenance, and
dredging of the MRGO by the United States Army Corps of Engineers (“Government”). The
threshold issue is whether the United States Court of Federal Claims has jurisdiction to adjudicate
their claims.

The United States Court of Appeals for the Federal Circuit has observed that the “distinction
between jurisdiction and the failure to state or prove a claim for relief” often has been confused. See
Fisher v. United States, 402 F.3d 1167, 1171-72 (Fed. Cir. 2006) (en banc) (“In Tucker Act
jurisprudence, . . . this neat division between jurisdiction and merits has not proved to be so neat.
In these cases, involving suits against the United States for money damages, the question of the

Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 2 of 11

court’s jurisdictional grant blends with the merits of the claim. This mixture has been a source of
confusion for litigants and a struggle for the courts.”). As discussed herein, the Government’s
October 4, 2006 Motion to Dismiss manifests this confusion.

I.

RELEVANT FACTS.1

The MRGO is a federal navigation project designed and maintained by the Government. See
First Am. Compl. ¶ 4. This federal project was authorized in 1956 to provide deep water vessels
direct access between the Gulf of New Mexico and the Port of New Orleans for commercial and
national defense purposes. Id. Construction began in 1958 and was completed in 1968. See Gov’t
Mot. Dis. at 3. The MRGO is 76 miles long and originally was authorized with a surface width of
650 feet, a bottom width of 500 feet, and a depth of 36 feet. First Am. Compl. ¶ 5. The MRGO is
bordered on the east by Lake Borgne and on the west by marshland that lies between the MRGO and
St. Bernard Parish. Id.; Gov’t Mot. Dis. at 3.

The First Amended Complaint alleges that the MRGO is now significantly wider than the
initial authorized size, i.e., up to three times as wide in some areas. See First Am. Compl. ¶¶ 5-9.
This increase in the width allegedly has occurred for two reasons. First, “the surface width [of the
MRGO] was wider than the bottom width creating [a situation where] wake and wave action [from
ships traveling along] the channel . . . continue[] eroding and widening [of the channel]” Id. ¶ 6.
Second, the MRGO allows salt water from the Gulf of Mexico to flow into marshlands bordering
St. Bernard Parish, damaging the wetlands that serve as a natural buffer against hurricane winds and
storm surge: “[t]he wetland loss and deterioration from the MRGO . . . allowed for expanded tidal
amplitude and duration, increasing the flooding risk to interior portions of St. Bernard Parish and
Orleans Parish and further providing a direct line of access for hurricane-related storm surge to reach
St. Bernard and Orleans Parishes.” Id. ¶¶ 7, 8. Furthermore, Plaintiffs allege that where the MRGO
merges with the Gulf Intracoastal Waterway, a “funnel” has been created that effectively causes
storm surge from “any tropical storm or hurricane which passes in the vicinity of the MR-
GO . . . into St. Bernard Parish and the Lower Ninth Ward, flooding those lands time and time
again.” Pl. Resp. at 7.

On August 29, 2005, Hurricane Katrina landed on the southeastern Gulf Coast near New
Orleans, causing “catastrophic damage.” See Gov’t Mot. Dis. Ex. E at 1 (RICHARD D. KNABB ET AL.,
NAT’L HURRICANE CENTER, TROPICAL CYCLONE REPORT HURRICANE KATRINA (2005)). The
National Hurricane Center (“NHC”) reported that Hurricane Katrina generated a “massive storm
surge” that reached “15 to 19 feet . . . in eastern New Orleans [and] St. Bernard Parish” and peaked
at 27.8 feet along the Mississippi Gulf Coast. Id. at 9. This storm surge was so large that it
“severely strained the levee system in the New Orleans area. . . . [and] overtopped large sections of

1

The relevant facts recited herein were derived from: Plaintiffs’ January 13, 2006 First
Amended Class Action Complaint (“First Am. Compl.”); Defendant’s October 4, 2006 Motion to
Dismiss (“Gov’t Mot. Dis.”) and Exhibit E thereto (“Gov’t Mot. Dis Ex E”); and Plaintiffs’
November 2, 2006 Response (“Pl. Resp.”).

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Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 3 of 11

the levees east of New Orleans, in Orleans Parish and St. Bernard Parish[.]” Id. The resulting flood
devastated St. Bernard Parish. Id. at 9-11; First Am. Compl. ¶ 11.

Plaintiffs are resident property owners in St. Bernard or Orleans Parishes or are Louisiana
corporations with a principal place of business in St. Bernard Parish. See First Am. Compl. ¶¶ 2, 10.
The First Amended Complaint alleges that Plaintiffs suffered “massive flooding and destruction of
[their] property” by Hurricane Katrina, and that, “but for the creation and maintenance of the MRGO
by the United States, the flooding and devastation of Plaintiffs’ property would not have occurred.”
Id. ¶¶ 11-13. After Hurricane Katrina, Plaintiff’s property has been subjected to repeated flooding,
even during minor weather events, because of the wetland loss associated with the MRGO. Id. ¶¶
22-24.

II.

PROCEDURAL HISTORY.

On October 17, 2005, Plaintiffs filed a class action in the United States Court of Federal
Claims, alleging that the Government deprived Plaintiffs of their property in violation of the Just
Compensation Clause of the Fifth Amendment to the United States Constitution (“Just
Compensation Clause”). On October 24, 2005, Plaintiffs filed a Disclosure Statement pursuant to
RCFC Rule 7.1.

On January 13, 2006, a First Amended Complaint was filed that included three Counts. See
First Am. Compl. ¶¶ 15-29. On January 17, 2006, the Government filed an Answer. On March 7,
2006, the parties filed a Joint Preliminary Status Report. On March 17, 2006 and July 18, 2006, the
court convened telephone status conferences. On July 18, 2006, the court issued a Scheduling Order
requiring any dispositive motions to be filed on or before September 18, 2006.

On August 16, 2006, Plaintiffs filed a Motion to Compel Discovery Responses, together with
five exhibits. On September 5, 2006, the Government filed a Response. On September 7, 2006,
Plaintiffs filed a Reply. On September 7, 2006, the court convened a hearing to consider Plaintiffs’
August 16, 2006 Motion to Compel. On September 8, 2006, the court entered an Order, denying
Plaintiffs’ August 16, 2006 Motion to Compel, as premature, and directing the Government to file
any motion to dismiss by September 30, 2006. On October 2, 2006 the Government filed a Motion
for an Enlargement of Time, which the court granted.

On October 4, 2006, the Government filed a Motion to Dismiss, pursuant to RCFC 12(b)(1),
together with five supporting exhibits. On November 2, 2006, Plaintiffs filed a Motion In Limine
to exclude those exhibits. On November 2, 2006, Plaintiffs filed a Declaration of Counsel in
opposition of Government’s October 4, 2006 Motion to Dismiss. On that same date Plaintiffs filed
a Statement of Contested Material Facts in opposition to the Government’s Motion to Dismiss, as
well as a Response to the Government’s October 4, 2006 Motion to Dismiss. On November 20,
2006, the Government filed a Reply to Plaintiffs’ November 2, 2006 Response and a Response to
Plaintiffs’ November 2, 2006 Motion In Limine. On December 6, 2006, Plaintiffs filed a Reply to
the Government’s November 20, 2006 Response.

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Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 4 of 11

On January 27, 2007, Plaintiffs filed an Ex Parte Motion for Leave to File a Supplemental
Memorandum in Opposition to the Government’s Motion to Dismiss and proposed Supplemental
Memorandum with four exhibits. On February 2, 2007, the Government filed an Opposition. On
February 7, 2007, the court issued an Order granting Plaintiffs’ January 27, 2007 Ex Parte Motion
for Leave to File a Supplemental Memorandum. On February 21, 2007, Plaintiffs filed a
Supplemental Memorandum in Opposition to Defendant’s Motion to Dismiss.

III.

DISCUSSION.

A.

Jurisdiction.

The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes the United States Court of Federal
Claims to render judgment and money damages on any claim against the United States based on the
United States Constitution, an Act of Congress, a regulation of an executive department, or an
express or implied contract with the United States. See United States v. Mitchell, 463 U.S. 206, 212-
18 (1983); see also United States v. Testan, 424 U.S. 392, 397-98 (1976). The United States
Supreme Court, however, has held that the Tucker Act does not create any substantive right for
money damages. See Mitchell, 463 U.S. at 216; see also Testan, 424 U.S. at 398. Therefore, a
plaintiff must identify and plead an independent contractual relationship, constitutional provision,
federal statute, and/or executive agency regulation that provides a substantive right to money
damages in order for the court to have jurisdiction. See Khan v. United States, 201 F.3d 1375, 1377
(Fed. Cir. 2000).

In determining whether the United States Court of Federal Claims has jurisdiction over a
claim, the United States Court of Appeals for the Federal Circuit has instructed that “the trial court
at the outset shall determine . . . whether the Constitutional provision, statute, or regulation is one
that is money-mandating. If the court’s conclusion is that the Constitutional provision, statute, or
regulation meets the money-mandating test, the court shall declare it has jurisdiction over the cause,
and shall then proceed with the case in the normal course.” Fisher v. United States, 402 F.3d 1167,
1173 (Fed. Cir. 2005) (en banc).

B.

Standard of Review – RCFC 12(b)(1).

A motion to dismiss may be brought to challenge the court’s subject matter jurisdiction at
any time. See RCFC 12(b)(1). In order to establish subject matter jurisdiction, Plaintiffs must show
that they have a “nonfrivolous” claim founded upon a Constitutional provision, statute, or regulation.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“Dismissal for lack of subject-
matter jurisdiction . . . is proper only when the claim is ‘so insubstantial, implausible, foreclosed by
prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal
controversy.’” (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666
(1974))).

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Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 5 of 11

C.

The Court’s Resolution Of The Government’s October 4, 2006 Motion To
Dismiss, Pursuant To RCFC 12(b)(1).

1.

The Court Has Jurisdiction To Adjudicate Claims Alleged In The First
Amended Complaint.

The United States Court of Appeals for the Federal Circuit has instructed the trial court to
“entertain and decide the jurisdictional and merits test in . . . a single step. The single step would
be one in which the trial court determines both the question of whether the [source of law] provides
the predicate for its jurisdiction, and lays to rest for purposes of the case before it the question of
whether the [source of law] on its merits provides a money-mandating remedy.” Fisher, 402 F.3d
at 1173.

In this case, the First Amended Complaint properly invokes the court’s subject matter
jurisdiction, as it states: “This is a claim seeking compensation from the United States for the taking
of private property for public use pursuant to Amendment V of the U.S. Constitution.” First Am.
Compl. ¶ 1; see also Moden v. United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005) (“Thus, to the
extent [Plaintiffs] have a nonfrivolous takings claim founded upon the Fifth Amendment, jurisdiction
under the Tucker Act is proper.”); Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987)
(“[T]he ‘just compensation’ required by the Fifth Amendment has long been recognized to confer
upon property owners whose property has been taken for public use the right to recover money
damages from the government.”).

The First Amended Complaint, however, does not allege when the named Plaintiffs became
property owners in the St. Bernard or Orleans Parishes, an essential fact to establish standing. See
Dow v. United States, 357 U.S. 17, 20-21 (1958) (holding that a plaintiff seeking just compensation
for a taking under the Fifth Amendment must be the owner of the property at the time of the taking);
Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992) (“Without undisputed ownership of
the [] property [at issue] at the time of the takings, [plaintiffs] cannot maintain a suit alleging that
the Government took their property without just compensation.” (citing Dow, 357 U.S. at 20-21));
Lacey v. United States, 595 F.2d 614 (Ct. Cl. 1979) (“The person entitled to compensation for a
taking of property by the Government is the owner of the property at the time of the taking.” (citation
omitted)). Accordingly, the court will afford the named Plaintiffs leave to further amend to satisfy
this jurisdictional requisite. See RCFC 15(a) (“a party may amend the party’s pleading once as a
matter of course before a responsive pleading is served . . . Otherwise a party may amend the party’s
pleading only by leave of the court . . . [to] be freely given when justice so requires”).

2

2

The court, at this juncture, takes no position on whether this is an appropriate case to be

certified as a class action. See RCFC 23(a).

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Case 1:05-cv-01119-SGB Document 39 Filed 03/29/2007 Page 6 of 11

2.

The Court Has Determined That Count II Is Not Ripe For Adjudication.

“Count II - Temporary Taking of Property” alleges that “only in the event that the MRGO
is closed and plaintiffs’ real property can be redeveloped in the future, plaintiffs have been deprived
of the use, occupancy, and enjoyment of their real property for the indefinite future and have suffered
a temporary taking of their real property.” First Am. Compl. ¶ 19. Since the MRGO is not closed,
Count II is not ripe for adjudication. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49
(1967) (“The ‘basic rationale’ of ripeness is “to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements[.]”) Accordingly, Count II is
dismissed, without prejudice.

3.

It Is Premature For The Court To Conduct The Ridge Line Inquiry.

The United States Supreme Court has stated that an inverse condemnation occurs where the
federal government condemns property, without conducting an eminent domain proceeding. See
Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980) (“Inverse condemnation should be
distinguished from eminent domain. Eminent domain refers to a legal proceeding in which a
government asserts its authority to condemn property. Inverse condemnation is ‘a shorthand
description of the manner in which a landowner recovers just compensation for a taking of his
property when condemnation proceedings have not been instituted.’”) (quoting United
States v. Clarke, 445 U.S. 253, 257 (1980)); see also Moden, 404 F.3d at 1342 (“Inverse
condemnation is the cause of action against the government to recover the value of property taken
where the government has not exercised the power of eminent domain.” (citation omitted)).

The United States Court of Appeals for the Federal Circuit has recognized that “‘[i]nverse
condemnation law is tied to, and parallels, tort law.’” Ridge Line Inc. v. United States, 346 F. 3d
1346, 1355 (Fed. Cir. 2003) (“Ridge Line”) (citing 9 PATRICK J. ROHAN & MELVIN A RESKIN,
NICHOLS ON EMINENT DOMAIN § 34.03[1] (3d ed. 1980 & Supp. 2002)). Thus, when the
Government challenges this court’s jurisdiction over a plaintiff’s inverse condemnation claim,
arguing that it is merely a tort and therefore outside this court’s jurisdiction, the Federal Circuit
requires that the trial court conduct a “two-part inquiry” to determine whether the alleged inverse
condemnation claim is subject to the requirements of the Just Compensation Clause and within the
court’s jurisdiction. See Ridge Line 346 F.3d at 1355.

The first part of the Ridge Line inquiry requires the plaintiff to establish either that the federal
government “intends to invade a protected property interest or the asserted invasion is the ‘direct,
natural, or probable result of an authorized activity and not the incidental or consequential injury
inflicted by the action.’” Id. (quoting Columbia Basin Orchard v. United States, 132 F.Supp. 707,
709 (Ct. Cl. 1955) (emphasis added)). Second, the plaintiff must establish that the invasion
“appropriate[s] a benefit to the government at the expense of the property owner, or at least
preempt[s] the owner’s right to enjoy his property for an extended period of time, rather than merely
inflict an injury that reduces its value.” Id. (emphasis added) (citations omitted); see also
Banks v. United States, 69 Fed. Cl. 206, 212-13 (2006) (“To establish a takings claim here, plaintiffs

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must show that . . . the [Government’s] activities . . . were the likely cause of the [damage to
plaintiffs’] property and that the resulting [] damage was foreseeable.” (internal citation omitted)).
Because this inquiry is fact based, however, it is conducted after discovery, either on a motion for
summary judgment or following trial. See Moden v. United States, 404 F.3d 1335, 1341-45 (Fed.
Cir. 2006) (applying the Ridge Line inquiry at the summary judgment stage, after determining the
United States Court of Federal Claims had jurisdiction over the Just Compensation claim); Ridge
Line, 346 F.3d at 1355-59 (remanding to the trial court to conduct the Ridge Line inquiry after trial);
Banks, 69 Fed. Cl. 206, 212-14 (2006) (Ridge Line inquiry made at summary judgment stage); cf.
Vaizburd v. United States, 384 F.3d 1278, 1283 (Fed. Cir 2004) (Ridge Line inquiry recognized but
not conducted after trial, because the Government conceded that sand accretion at issue “amounted
to a taking”).

4.

Plaintiffs Are Ordered To Show Cause Why Counts I And III, As Pled,
Are Not Barred By The Statute Of Limitations.

The construction of the MRGO was completed in 1968. See First Am. Compl. ¶ 4.
Therefore, to the extent that Counts I and III allege a claim for Just Compensation based on the
“creation” of the MRGO, the court orders Plaintiffs to show why those claims should not be
dismissed, since “[e]very claim of which the United States Court of Federal Claims has jurisdiction
shall be barred unless the petition therein is filed within six years after such claim first accrues.” See
28 U.S.C. § 2501.

4

3

The United States Supreme Court has considered a Just Compensation case that is instructive
to Plaintiffs’ theory and pleadings. In 1937, the Government completed a dam to improve the
navigability of a river in West Virginia. See United States v. Dickinson, 331 U.S. 745, 746 (1947).
Subsequently, the river rose and reached a level in September 1938 that caused the permanent
flooding of the land owner’s property. Id. at 746-47. The Government argued that the last day from
when the statute of limitations should run was May 30, 1937, when the dam was fully operational
and the property at issue partially was submerged for the first time. Id. at 747. The property owners
did not own the land on May 30, 1937, but filed suit on April 1, 1943. Id. The Government did not
initiate “appropriate proceedings,” i.e., condemnation proceedings, that would establish a date certain

3

“Count I - Permanent Taking of Property” alleges that: “As a natural and direct result of the
creation of the MRGO and the continued operation, maintenance, and dredging thereof, the
plaintiff’s have been deprived of the use, occupancy, and enjoyment of their real property and the
improvements thereon thereby resulting in a permanent taking of their property for public use.” First
Am. Compl. ¶ 16.

4

“Count III - Permanent Taking of Flowage Easement” alleges, in relevant part that: “The
flooding of plaintiff’s property is recurring and is necessarily incident to and an inevitable
consequence of the creation and maintenance of the MRGO [whereby] the United States has created
a flowage easement on plaintiffs’ property thereby resulting in a permanent taking of plaintiffs’
property for a public purpose.” First Am. Compl. ¶¶ 24-25.

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for starting the statute of limitations. Id. To determine the date on which the land owner’s claim
arose, the Supreme Court first defined a “taking” in the context of the Just Compensation Clause:
“Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an
extent that, as between private parties, a servitude has been acquired either by agreement in course
of time.” Id. at 748. Then, the Court held that the cause of action for a taking by a “continuing
process of physical events” does not arise “until the situation becomes stabilized.” Id. at 749. As
the Court explained:

The source of the entire claim-the overflow due to rises in the level of the river-is not
a single event; it is continuous. And as there is nothing in reason, so there is nothing
in legal doctrine, to preclude the law from meeting such a process by postponing suit
until the situation becomes stabilized. An owner of land flooded by the Government
would not unnaturally postpone bringing a suit against the Government for the
flooding until the consequences of inundation have so manifested themselves that a
final account may be struck.

When dealing with a problem which arises under such diverse circumstances
procedural rigidities should be avoided. All that we are here holding is that when the
Government chooses not to condemn land but to bring about a taking by a continuing
process of physical events, the owner is not required to resort either to piecemeal or
to premature litigation to ascertain the just compensation for what is really ‘taken.’

Id. (emphasis added).

In this case, if Plaintiffs’ takings theory is premised on the creation of the MRGO, to satisfy
the statute of limitations, Plaintiffs would have to establish that the effects from the “creation” of the
MRGO were not “stabilized” until on or after October 17, 1999, i.e., six years prior to filing the
October 17, 2005 Complaint. If Plaintiffs’ theory is premised on the expansion of the MRGO by
“continued operation, maintenance, and dredging,” to satisfy the statute of limitations, Plaintiffs
would have to establish that the “situation” created by these activities was not “stabilized” until on
or after October 17, 1999. Assuming that Plaintiffs can satisfy the statute of limitations, their choice

5

5

Plaintiffs First Amended Complaint does not state concise or clear allegations. See e.g.,
compare First Am. Compl. ¶ 12 (“[The] flooding was a direct, natural or probable result of the
creation of the MRGO and the continued operation, maintenance, and dredging thereof[.]”)
(emphasis added), with id. ¶ 13 (“[B]ut for the creation and maintenance . . . the flooding . . . would
not have occurred.”) (emphasis added), with id. at ¶ 24 (“The flooding . . . is . . . an inevitable
consequence of the creation and maintenance of the MRGO.”) (emphasis added), with id. at Prayer
¶ (a) (“[P]roperty was taken . . . through the construction and continued operation, maintenance and
dredging[.]”). See RCFC 8(e), 12(e), 15(a). When Plaintiffs respond to the court’s Show Cause
Order, Plaintiffs should further amend their complaint not only to state the required facts to establish
standing, but also to state facts sufficient to identify their takings theory in a concise and clear
manner, so that the court can properly resolve the statute of limitations issue.

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of theory necessarily will define the scope of discovery and direct the court’s subsequent Ridge Line
inquiry.

D.

The Court’s Resolution Of Plaintiffs’ November 8, 2006 Motion In Limine.

The Government’s October 4, 2006 Motion to Dismiss had five supporting exhibits attached.6
See Gov’t Mot. Dis. Ex. A-E. On November 2, 2006, Plaintiffs filed a Motion In Limine to exclude
these exhibits. First, Plaintiffs argue that the exhibits are not admissible under the Federal Rules of
Evidence (“Fed. R. Evid.”). See Pl. Mot. In Limine at 3. The Government responds that Exhibits
A-D, were not offered as evidence, “but as demonstrative exhibits intended to help the Court better
understand the facts surrounding this case.” Gov’t Resp. Pl. Mot. In Limine at 7. Accordingly,
Plaintiffs’ November 2, 2006 Motion In Limine, with respect to Exhibits A-D, is denied.

As for Exhibit E, the Government argues that it is admissible, as a public record, pursuant
to Fed. R. Evid. 803(8) and Fed. R. Evid. 902(5). Exhibit E, is a Tropical Cyclone Report on
Hurricane Katrina, prepared by the National Hurricane Center, a component of the National Weather
Center, that prepares Tropical Cyclone Reports for all depressions, storms, and hurricanes. See
National Hurricane Center, 2005 Atlantic Hurricane Season, available at
http://www.nhc.noaa.gov/2005atlan.shtml (last visited March 29, 2007). The NHC’s Tropical
Cyclone Reports “contain comprehensive information on each tropical cyclone, including synoptic
history, meteorological statistics, casualties and damages, and the post-analysis best track[.]” Id.
Plaintiffs seek to exclude this document from the record, because it was updated after original
publication and the “process of updating adds to the sense that Exhibit E would not be covered by
a hearsay exception (such as the ‘public records and reports’ exception of 803(8)).” Pl. Mot. In
Limine at 12; see also Gov’t Mot. Dis. Ex. E at 1 (indicating that the report originally was issued on
“20 December 2005” and “[u]pdated [on] 10 August 2006 for tropical wave history, storm surge,
tornadoes, surface observations, fatalities, and damage cost estimates”). In addition, Plaintiffs argue
that this Report was not properly authenticated. Id.

6

The five exhibits attached to the Government’s October 4, 2006 Motion to Dismiss are:
Exhibit A is a map, “New Orleans Elevation by neighborhood with major roads” apparently prepared
by the Greater New Orleans Community Data Center; Exhibit B is the “Fiscal Year 2005, Annual
Report of the Army of Civil Works Activities,” prepared by the Army Corps of Engineers; Exhibit
C is “Note on the Influence of the Mississippi River Gulf Outlet on Hurricane Induced Storm Surge
in New Orleans and Vicinity,” prepared by Joannes Westerink, Department of Civil Engineering and
Geological Sciences, University of Notre Dame, Bruce Ebersole, Coastal and Hydraulics Laboratory,
U.S. Army Engineering Research and Development Center, and Harley Winer, New Orleans District,
U.S. Army Corps of Engineers; Exhibit D is “The Direct Impact of the MRGO on Hurricane Storm
Surge,” prepared by the URS Corporation for the State of Louisiana, Department of Natural
Resources; and Exhibit E is “Tropical Cyclone Report Hurricane Katrine 23-30 August 2005,”
prepared by the National Hurricane Center, a part of the National Oceanic and Atmospheric
Administration.

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The Government responds that Exhibit E “sets forth [the NHC’s] factual findings relating
to Hurricane Katrina[] and that this document is admissible under Fed. R. Evid. 803(8)(C).” See
Gov’t Resp. Pl. Mot. In Limine at 11. In addition, the document is self-authenticating, pursuant to
Fed. R. Evid. 902(5) as a “publication[] purporting to be issued by a public authority[.]” Id.

7

8

The Tropical Cyclone Report contains the NHC’s factual findings related to Hurricane
Katrina and includes a detailed summary of the meteorological data gathered by the agency in the
course of tracking the storm. See Gov’t Mot. Dis. Ex. E at 1-13. The Report provides an overview
of Hurricane Katrina and the storm surge at issue in this case. Id. at 9. Given the scope of Hurricane
Katrina and the damage associated with the storm, it is not surprising that the NHC updated factual
findings as improved data became available. Because this Report contains “factual findings resulting
from an investigation made pursuant to authority granted by law,” the Tropical Cyclone Report is
admissible under Fed. R. Evid. 803(8)(C). See Complaint of Munyun, 143 F.R.D. 560, 566 (D.N.J.
1992) (holding that weather reports by the National Weather Service are admissible under Fed. R.
Evid. 803(8)(C) as “trustworthy reports of weather conditions”). In addition, as a public agency
publication, the Report is self-authenticating. See FED. R. EVID. 902(5).

Accordingly, Plaintiff’s November 2, 2005 Motion In Limine regarding Exhibit E is denied.

IV.

CONCLUSION.

The court has determined that it has jurisdiction to adjudicate the claims in Plaintiffs’ January
13, 2006 First Amended Class Action Complaint, however, the named Plaintiffs are hereby ordered

7

Fed. R. Evid. 803 provides, in relevant part:

The following are not excluded by the hearsay rule, . . . (8) Public records and
reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth . . . (C) in civil actions and proceedings . . . factual
findings resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of
trustworthiness.

FED. R. EVID. 803(8)(C).

8

Fed. R. Evid. 902(5) provides, in relevant part:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not
required with respect to the following . . . publications purporting to be issued by
public authority.

FED. R. EVID. 902(5).

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to further amend to allege sufficient facts of ownership of the properties at issue to establish
standing.

Count II is not ripe for adjudication and is dismissed.

The Government’s October 4, 2006 Motion to Dismiss concerning the Ridge Line inquiry
is denied as premature, without prejudice, to being reasserted after discovery is completed either on
a Motion for Summary Judgment or after trial.

Plaintiffs are ordered to show cause why Counts I and III, as pled, are not barred by the

statute of limitations.

Plaintiffs’ November 2, 2006 Motion In Limine is denied.

The court will convene a telephone status report on April 11, 2007 at 2:00 p.m. EST to

establish a schedule for Plaintiffs to comply with this Order.

IT IS SO ORDERED.

s/ Susan G. Braden
SUSAN G. BRADEN
Judge

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