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La. residents near levee lose fight to keep trees

Carol Byram sees paradise every time she gazes at the trees in the backyard of her New Orleans home. The federal government sees the seeds of a disaster: levee failure.
/ Source: The Associated Press

Carol Byram sees paradise every time she gazes at the dogwood, hackberry and cherry laurel trees in the backyard of her New Orleans home. The federal government sees the seeds of another disaster for a city still recovering from Hurricane Katrina.

A federal judge sided with the government Thursday, denying a bid by Byram and several other homeowners to block the Army Corps of Engineers from removing trees and fences from their properties.

Byram's home abuts the 17th Street Canal, where a levee breach after Katrina flooded her neighborhood nearly three years ago. The corps says removing hundreds of trees from the city's levees will make them stronger.

But Byram and her husband, George, argued that the government's tree-cutting project represents an unconstitutional seizure of property without due process.

"Our yard is our life," Carol Byram, 63, testified before U.S. District Judge Carl Barbier issued his two-page ruling. "That's what I look at every day. That's what I consider to be our paradise back there."

'Burden of persuasion'
Federal lawyers argued that the government is immune from such lawsuits and warned that barring the tree-removal project could lead to another catastrophe.

"It goes back to the safety of the entire city and the stability of" the 17th Street Canal, said Maj. Tim Kurgan, a corps spokesman.

Barbier said the plaintiffs failed to meet the "burden of persuasion" for securing a preliminary injunction in the case.

The corps said trees that blow over during a hurricane can leave a gap that allows water to saturate the ground behind a floodwall. Flood water can penetrate a floodwall and levee and leave them vulnerable.

The corps said it already has spent roughly $4 million to remove about 300 trees and 4,500 feet of fence from dozens of homes along the canal and around 1,200 trees from property abutting other levees in greater New Orleans.

The corps plans to remove trees from about 25 more properties on the east side of the 17th Street Canal, but it agreed to wait for Barbier's ruling before removing trees from the property owned by plaintiffs in the federal case.

Impact on landowners
After the ruling, Kurgan said the corps expects to finish removing trees on the east side of the canal within a week.

"We are working very hard to minimize the impact to the landowners," he said.

Two lawyers for the plaintiffs didn't immediately return calls for comment.

In court papers, lawyers for the homeowners say the case isn't merely about preserving the aesthetic value of their properties. They argue that removing fences would leave homes more vulnerable to vandals, criminals and other potential liabilities.

They also note that the corps built a gate at an outlet of the 17th Street Canal that it plans to close if there is a hurricane. That would prevent flood waters from entering the canal and breaching the levee, they say.

Battles after Katrina
A state judge in New Orleans already had rejected a similar bid by property owners to block the corps from removing trees from the levees. On July 6, Judge Kern Reese ruled that the government has a right to commandeer private property for public purposes.

"In southeast Louisiana, there is no more paramount purpose than flood protection, a lesson painfully inculcated and never to be forgotten," he wrote.

Reese ruled that homeowners affected by the tree-cutting program have a right to seek "just compensation." The federal government has agreed to cover the cost of removing trees and fences from the levees.

The tree-cutting case isn't the first to pit homeowners against the corps after Katrina. In January, a different federal judge in New Orleans threw out a class-action lawsuit that sought to hold the corps liable for levee breaches after the Aug. 29, 2005, hurricane.