by Don Wittig
“Please proceed.” O’Reilly could not have been more assured both of the competency of his witness and the integrity of her testimony.
“First, the Corps knew or should have known about the funnel effect between the Industrial Canal, Mr. Go, and the ICW, the Intracoastal Waterway. There was a 2004 study that simulated a hurricane called ‘Pam.’ This Pam simulation demonstrated the funnel effect of water piling up on both the Industrial Canal and the ICW. Specifically, where the two canals meet and narrow into the ICW, waves pile up. This causes the funnel effect and amplifies the wave intensity twenty to forty percent, according to the study. This is exactly what happened and caused the massive flooding and destruction, especially in the Ninth Ward. The intensified flooding effect poured through at least two breaches in the levees. That area is still devastated to this very day.
“Next, there was a lack of flood gates on the ICW. It was certainly foreseeable that a cat three hurricane would force waters up every inlet that was lower than the terrain or local levees. The fact that the Corps expected a cat three storm and surge is proven by the fact that we set out to construct all the levees to withstand a cat three storm.
“In fairness, I do believe we conducted sufficient soil samples under the levee construction. We tested every one-quarter mile. With over three hundred miles of levees, it is not practical to test every ten or even one-hundred feet. But the problem is we knew we were building on peat bogs and delta soils. We should have required T-shaped levees everywhere instead of the weaker I-shaped levees.”
“Let me stop you there. What is the difference between T and I shaped levees?”
“Basically, the T-shaped have a parapet or guard on top of the ground level to help prevent washouts. Washouts occur when water from over-topping or flooding wash away the ground supporting the levee structure. Which brings me to my next point.
“Whether we used I or T-shaped structures, there should have been underground bracing, like putting the legs of a tripod to brace the steel or concrete. Many of the levees were just a piece of steel stuck in the ground. If that levee or a neighboring levee got a rush of water behind it, the supporting soils would wash away. Then the piece of steel or concrete levee has no support and would just give way. It’s like a kid putting a thin, flat piece of wood in a stream bed. The water piles up on the front side and swirls around the back, eroding away the support. It’s only a matter of time before the homemade dam will fail. Water is powerful. That’s one example of the Corps ignoring the basic physics of hydrodynamics.”
Lewis paused and took a sip of water. She subtly surveyed the jury. She knew she was giving the jury a lot of facts. But as O’Reilly had instructed her, that is what trials are about: selling the jury your side of the story.
“Two examples of this type of failure occurred at both the London Street Canal and the Seventeenth Street Canal. The Industrial Canal had the same problem in places. This could have been alleviated or abated by concrete splash slabs or riprap to prevent or at least forestall erosion. There was so much soil movement on the Seventeenth Street Canal that a section of the levee was moved thirty-five feet sideways.”
“Dr. Lewis, what about the interplay between the Corps and state and local authorities?”
“There has always been some coordination, but often many agencies are working at cross-purposes. The Orleans Levee District might want to do maintenance one way and the Barnard Levee District another. I can’t blame the Corps when the local districts do things differently, but we have a responsibility to Congress and the people to see that the work gets done. It’s no different than the FBI working with local law enforcement. Sure there are turf battles, but ultimately somebody has to see that the job is done. In my opinion, the Corps should have been more forceful, exercised better leadership.”
“Going back to soil conditions, is there anything else the Corps should have done? You mentioned you thought the soil tests were sufficient and that T-levee walls should have been used. Is there anything else regarding the soil conditions that would dictate a more prudent construction by the Corps?” O’Reilly smiled to himself. Lewis was as good as they get.
“Yes. First, there is the fact of subsidence. We are on the Mississippi Delta. There is no rock for over fifteen hundred feet. So all the riprap you see is hauled on barges or trucks from some distance. The soil here is sinking and boggy. Some levees are built on top of peat. Without a solid base to anchor to, the pilings and sheeting must be very deep. We should have sunk the steel sheets at least fifty feet. Some of the new concrete levee structures are now being dug and placed at seventy-five feet deep. That’s what it takes. Before Katrina, we were only going down fifteen to twentyseven feet. That’s just not enough to hold rushing water in weak, boggy soils. As I mentioned, we could have paved the top of earthen levees. Somehow we had to prevent the washout.”
O’Reilly pivoted his towering frame toward the jury, smiled confidently, and continued. “Finally, let me direct your attention to Old Man River. Do you have an opinion concerning the environmental and ecological consequences of the Corps’ engineering and construction in and along the Mississippi River?”
Mack sprang to his feet. “Objection! The witness has been allowed to testify as an engineering expert only. We have been given no notice that she would testify about environmental factors. Furthermore, Ms. Lewis has not been shown to be an expert in environmental matters.”
“Your honor, as the court well knows, the Army Corps of Engineers is also charged by law to enforce certain regulations under the Environmental Protection Agency,” O’Reilly answered breezily. “However, I do concede that my colleague was not notified of this line of questioning. I’ll withdraw the question.” Three of O’Reilly’s admirers on the jury smiled in appreciation.
“Thank you, Mr. O’Reilly. Do you have anything further from Dr. Lewis?”
“Yes, your honor. Briefly, Dr. Lewis, from an engineering perspective, does the flow of the Mississippi affect the levees in the New Orleans area?”
“Yes it does and dramatically. The jury needs to understand that the Mississippi is not a typical river affected by tides. Until after the time of Mark Twain, riverboats only went one way. Downstream. Folks upstream would build barges or boats out of wood, float down river, then use the lumber from their boats to build houses or warehouses. Because of the swift currents, no one went back up river by boat until the steamboat came along.
“Every year the river would flood, typically in spring. The river would naturally overflow its banks and deposit rich sediment throughout the Mississippi Delta. Even though the land has been sinking for as long as we know, it was also being built back up by nature. As it is now, millions of tons of silt are being shot out into the Gulf of Mexico. The more the Corps tries to stop the river from flooding by building canals and building flood levees along the river, the more the sediment and silt have no place to go but into the Gulf of Mexico. This to me is one of the greatest engineering disasters caused by the Corps. We have prohibited nature from rebuilding around New Orleans all the way through the wetlands and into the Gulf. That’s one reason we have lost so much of the barrier protection and caused such ecological….”
DON WITTIG “Objection!” Mack was on his feet again and stared at Lewis. He had successfully disqualified her as an expert on ecology. However, O’Reilly was well up to the task of injecting her environmental opinions anyway.
“Sustained.” “Dr. Lewis, is there anything further from the engineering perspective you wish to tell the jury about the Mississippi?”
“Yes. From an engineering perspective, natural hurricane protection could be revived if we would cut sloughs and install floodgates along the river to allow the delta and barrier islands to rebuild themselves. This solution was suggested years ago, but no one would listen. It’s time for the Corps to work with nature and stop fighting it. I believe the Corps has several projects going on now. The down side of the new sloughs is the flooding that will be caused. Some farms an
d other lands will definitely be affected.”
O’Reilly could barely contain himself. He grinned from ear to ear. Deerman was ecstatic. O’Reilly lowered his voice and almost whispered, “Pass the witness.”
Lewis visibly squirmed in the hot seat. Was Mack going to play it on the up and up or would he stoop to innuendo and games? Would her engineer’s mind be able to keep up with a professional wordsmith? At least she felt more prepared for Mack this time. At her deposition, he had caught her off guard. Lewis felt relieved that she had warned her husband about the innuendo about Deerman that Mack might try to inject in order to discredit her or distract the jury.
19 Mack the Knife
B RADLEY MACK LOVED THIS PART of the game: the art of cross-examination. There are almost no rules when it comes to the right to confront a witness. Both trial and appellate courts jealously protected a party’s rights to confront their accuser, be it civil or criminal. Mindful of the task at hand, Mack rose slowly and deliberately placed a single, legal-size, yellow sheet of paper on the dais. “Good afternoon, Ms. Lewis. I have a few questions on behalf of the United States of America and the Army Corps of Engineers. You were a career officer and engineer in the Corps, were you not?”
“Yes sir.” “And as a retired officer of the Corps, you are not here today to carry tales or malign the Corps, are you?”
“Of course not. The Corps has done a lot of good work, and I am proud of most of what we did.”
“Yet you have sued my clients, your former employer, for one trillion dollars?”
“Yes, along with the Sahara Club, Greenpreserve, and Natureone.”
“You were faulting your Corps for not coordinating the levee system with local authorities. It is a fact, Ms. Lewis, that local infighting has killed many safety proposals made by my clients?”
“Yes. Local levee boards, different cities, and parishes often did not see things the way we did and resisted our efforts to improve parts of the levee systems.”
“If you know, how many different levee boards, cities, parishes, and Louisiana state agencies have a hand or voice in the work of the Corps in Louisiana?”
“I believe the number is thirty-five, but I couldn’t swear to it.”
“Thirty-five governing bodies are supposed to coordinate and cooperate with the Corps in order to protect the folks of Louisiana. And they don’t, do they?”
“Oftentimes not, true.”
“Sorta like herding cats, would you say?”
“More like respecting the desires of the local communities whose lives are most affected.”
“An example of what I mean is the Orleans Canal, which didn’t fail. That was a miracle in itself because those levees were built by five different agencies at five different heights and made of five different materials. True?”
“True.”
“So going back to 1965, the Corps recommended putting a floodgate or a series of gates to prevent hurricane surges from even entering Lake Pontchartrain. That’s what the Corps wanted to do, but the local cats said no?”
“Objection.”
“Overruled. The witness may answer.”
“If I recall, the Corps lost that battle in Washington, DC. There were environmental concerns raised so the plan never got off the ground.”
“Exactly. Some of the same environmentalists who have joined you in this lawsuit, some of your ecological buddies, prevented the Corps from doing its job of protecting the citizens of this fine state. Now these same special interests are suing my client.”
“Are you asking me a question or stating your opinion?” Lewis confidently returned Mack’s stare.
“I’ll ask the questions if you don’t mind, Ms. Lewis. You said one of the things the Corps did wrong was not coordinate. How can the Corps cooperate with the locals when their proposals for human safety are scuttled before they even get out of Congress?”
“In the case of what happens in Washington, I suppose the local agencies have little say, except through their Congressmen and women.”
“Sure. So the first problem facing the Corps in trying to protect both human lives and the environment is Washington itself and all its politics. For example, the people and representatives of Alaska want to drill for oil in their own state, and Washington politics stops them from drilling. Correct?”
“Yes, I suppose.”
“So if the Corps, like Alaska, can’t get Washington to do the responsible thing, the thing even the locals want, that’s not the fault of the Army Corps of Engineers, is it?”
“No.”
“Speaking of Washington, do you know how many federal agencies are involved with the ICW, the levees, and the Mississippi watershed?”
“About twenty-five.”
“Twenty-five different federal agencies have their hands in the Corps’ plans and pie. Astonishing! Is it any wonder, Ms. Lewis, that the Corps was never able to close off the seaward entrance to Lake Pontchartrain that would have prevented the flooding from the London Street and Seventeenth Street Canals?”
“I’m not sure that plan would have worked, depending on how it was engineered. But if it had been done right, perhaps. But then you must wonder what would have happened to the surge in Lake Borgne. With the Pontchartrain entrance blocked, wouldn’t even more water have poured through the ICW and Industrial Canals?”
“Good point, Ms. Lewis, but purely hypothetical because Washington would not let the Corps do their job. So we know the Corps is subject to not only local politics of many boards, agencies, the state, and the cities but also to Washington, DC, and the entire federal bureaucracy. By the way, do you know how many Congresspeople have come down to New Orleans to see what actually happened here?”
“Maybe one-third by last count.”
Mack allowed a slight, sinister sneer to show and resorted to type with some rhetorical sarcasm. “I see. So Congress is really curious about what happened? Washington really doesn’t know what they are doing and yet they are telling the folks down here and the Corps what they should do. OK, let’s go on. Let’s talk about the local responsibility to maintain the levees. I understand that the local levee boards are supposed to maintain these levees, correct?”
“Correct, but other authorities are also involved.”
“Precisely. Trees and brush were growing on both the Seventeenth Street and London Avenue Canals. The Orleans Levee District Board claimed they maintained their side of the levee but that inside the canal was the responsibility of the sewer and water board, true?”
“I believe so. I am not sure who was supposed to keep the inside of the canals maintained.”
“You admit, don’t you, Ms. Lewis, that trees and brush weaken the levees, especially the all-earthen levees?”
“Yes. That’s not the Corps’ responsibility.”
“And the Corps didn’t plant those huge oak trees on the Seventeenth Street Canal that toppled over and left gaping holes in the levee, did they?” Mack methodically led Lewis as he shifted the focus away from the Corps.
“Of course not.” Lewis tightened a bit and fired back. “But we don’t know if the trees toppled before or after the breaches.”
“In any event, oak trees with roots digging their way well into the levees is the worst type of maintenance and was caused by some local agency. Lord only knows which one.”
“I would not know.”
“Trees cause piping, erosion, and tunneling though the levees?”
“Yes.”
“And what about running fiber-optic cable twenty-six miles through the levees? Was that good local maintenance?”
“I would not recommend it, but it’s not nearly as bad as tree roots growing in the levees.”
“You are familiar with the train accident when it derailed on the west side of the Industrial Canal? Less than a year before Katrina?”
“Yes. Heard about it after Katrina. There was a floodgate missing caused by the train derailing. The levee district was working on it but hadn’t completed the re
pairs. So yes, the Industrial Canal was missing a floodgate.”
“Ms. Lewis, were you also aware that the railroad gave the levee board a check for over four hundred and twenty-seven thousand dollars back in December 2004 to repair the floodgate? Yet the board didn’t even award the repair contract until May eighteenth, 2005, two weeks before hurricane season.”
“I was not familiar with those dates, but I cannot dispute what you say.”
“The result of not having floodgate number thirty fixed was flooding to the south and west of the canal. And that was not the fault of the Corps, was it?”
“No, it was not.”
“Now, the Orleans Canal didn’t cause any serious flooding, did it?”
“No, but there was flooding in the park.”
“Could well have been disastrous, especially with five different heights, five different materials, and five different agencies involved. Right?”
“Could have but wasn’t,” Lewis calmly answered.
“Well, what could have happened where a lower earthen levee was abutting a concrete levee?”
“As I believe I already testified, a flood will overtop the lower structure first and then potentially cause a washout of either structure.”
“What about marinas? Is it right for a levee board that is supposed to be maintaining levees to use its multimillion-dollar budgets to build marinas and condos?”
DON WITTIG “Mr. Mack, I do not know if the Louisiana or federal laws allow that or not.”
“I’ll accept that, but you do know that the members of the levee boards are not salaried and receive only so much money when they attend meetings. I think it’s like seventy-five dollars per meeting.”
“That is my understanding.”
“You are also aware that the chairman of one of the levee boards took a salary, which was not allowed by state law?”
“Yes.”
“The Corps is not at fault or to blame for the conduct of local levee, sewer, and water boards, is it?”
“No.”
“Finally, Dr. Lewis, over the twenty-five years you were with the Corps, a lot of water has passed under the bridge or over the levee. The Corps has fought many budget cuts. The Corps has lost expertise by outsourcing construction. And cutbacks have no doubt affected its geotechnical expertise as well?”