"The President said 'Little fat man, isn’t it a shame, what the river has done to these poor crackers’ land.'” (Randy Newman, Louisiana 1927)
Representatives holding Congressional hearings after Hurricane Katrina were stunned when an evacuee testified that the government bombed levees in New Orleans to intentionally flood parts of the city. However irrational the allegation, the paranoia is understandable. After all, this is New Orleans -- it happened before.
In Great Flood of 1927, officials blew a gap in a levee south of New Orleans in order to ease pressure on the city's levees and prevent what some feared would be catastrophic flooding in New Orleans. The levee at Caernarvon was dynamited only after New Orleans’ oligarchy agreed to indemnify the citizens of Plaquemines and St. Bernard Parishes for their losses. Cutting the levee seemed logical. The southern parishes were sparsely populated with little industry; the primary economic activities being trapping, fishing, gambling and bootlegging. On the other hand, New Orleans was a major financial, commercial, and population center with much to lose to the rising river.
However, promises made as the flood crest raged towards the city were seen differently when the danger had passed. Disputes and lawsuits followed. In Foret v. Board of Levee Commissioners, 125 So. 437 (La. 1929), the Louisiana Supreme Court sided with the New Orleans elite and ratified what many considered the city’s cynical negation of its promises to the southern parishes.
To appreciate the Foret litigation it is useful to consider the political, cultural, and economic environment of the area, and the strange events that preceded the crisis. In 1927 the high culture of the New Orleans elite co-existed with a marshland culture mere miles away, where a portion of the population lived much as it had in colonial times. The 1920s saw the rise to power of populist demagogues such as Huey Long – a revolution against the existing political order given impetus by the misery of the Great Flood and the Great Depression.
Plaquemines Parish is a sparsely-populated expanse stretching from the southern boundary of New Orleans to the Gulf of Mexico, straddling the Mississippi River on its 80-mile run to the Gulf. St. Bernard Parish is adjacent to Plaquemines and abuts the south-east boundary of New Orleans. Small islands and ridges interspersed among marshes, lakes, and bayous provide the only habitable land in a parish that is 74% water.
In the 1920s, the population of both parishes consisted largely of the descendents of the original French settlers with an increasing population of English-speaking “foreigners” who adopted the way-of-life of the French population. The area also included descendants of Spanish colonists from the Canary Islands. These “Isleños” retain aspects of their unique culture to this day. At the time of the Great Flood, the Isleños were a distinct community co-existing with the majority French and English speaking populations.
Flooding was not uncommon on the Mississippi as twelve “flood years” occurred from 1858 to 1927. William Faulkner observed that flooding represented the natural order and that a true “phenomenon” occurred when the river stayed within its artificial boundaries. Three Short Novels (Vintage Books, 1961). In response, the Army Corps of Engineers built the levees taller and stronger. As ever-stronger levees prevented flooding into natural spillways, the increasingly channelized river in turn exerted greater pressure on the levees.
New Orleans escaped significant damage during past flood years. A fortuitous natural levee break in Plaquemines Parish helped the city avoid flooding in 1922. The levee break, or “crevasse,” eased the pressure on the city levees by allowing flood waters an alternative route to the Gulf of Mexico through the bayous and streams of Plaquemines and St. Bernard. It seems counter-intuitive that a levee break or crevasse south of New Orleans would relieve flood conditions in the city. However, a levee break is like pulling a bathtub plug – water empties from the river through the gap and river levels decline. Also, overtopping the levee is only one danger. Equally dangerous is the possibility that a levee will collapse under the enormous constant pressure. Lowering the level of the river reduces the risk of levee failure.
People along the river were well-aware of the danger presented by a crevasse – the very word was a harbinger of disaster much like “fire,” “tornado,” or “earthquake.” Glenn R. Conrad and Carl A. Brasseaux, CREVASSE! The 1927 Flood in Acadiana, (Center for Louisiana Studies, 1994). The water escaping through the gap might spread out gently covering hundreds of square miles for weeks, or might rush with destructive force in search of a new path to the Gulf. It was not unknown for turbulent crevasse waters to rejoin the Mississippi, bringing not only water, but also a cargo of destroyed buildings, vessels, and animal or human remains. The fortuitous 1922 crevasse so effectively lowered river levels that Corps of Engineers officials counseled New Orleans to break the levee if the city were threatened in the future.
Judge Leander Perez and the Trappers’ War.
For a half-century ending in 1969, Plaquemines and St. Bernard Parishes were dominated by Judge Leander Perez. From his position as Plaquemines District Attorney he eventually exercised absolute control over both parishes. In 1927 the Judge had not yet seen the big money that was to roll into town when oil and gas companies discovered the mineral rich area. What little wealth the area generated in the 1920s derived from industries like trapping, and the Judge’s machinations in the trapping business prompted litigation that led to the “Trappers’War.” Glenn Jeansonne, Leander Perez: Boss of the Delta (LSU Press, 1977).
The “Roaring 20s” were a time of unprecedented prosperity in the United States, particularly among middle class. For the first time middle class markets developed for luxury items formerly available only to the rich, such as the Model-T. While mink coats remained beyond the reach of most consumers, the furs of less valuable animals like muskrats were affordable and demand soared. In the muskrat-friendly Louisiana wetlands, local trappers enjoyed unprecedented profits.
For generations, trappers had worked the same lands without consideration of title. By common understanding, if not by law, no one owned the marshes and bayous. Prime trapping grounds were passed down informally through generations. Prosperity and competition challenged such traditions. Titles to these lands did exist and landowners came out of the woodwork to reclaim their lands and lease them to any number of newly formed corporate trapping entities, who in turn brought in their own contract trappers.
The trappers turned to Judge Perez for protection from the newcomers. The Judge formed groups such as the St. Bernard Trappers Association which pooled members fees to lease trapping rights over vast tracts of land. Association charters recognized the “custom of trappers on the Prairie,” meaning that traditional trapping grounds were respected. During the season of 1924-25, trappers experienced record profits.
Judge Perez, however, was not one to be satisfied with a slice when the whole pie was just sitting there by the window ripe for the taking. The life-blood of the associations was the right to trap 100,000 prime acres leased by Leander’s cousin and subleased to the associations. Following two successful trapping seasons in which each trapper paid $50 for the right to trap the subleased lands, Judge Perez convinced the boards to transfer the subleases to one J. Walter Michel. In return, Michel gave the trappers first consideration for subleasing the tracts. The uneducated trappers did not realize that the agreement allowed Michel to lease to whomever he wished if the association trappers would not agree to his fee schedule.
Michel soon tripled the trappers’ lease fees. Alarmed by the increase, suspicious trappers turned to another powerful local figure, Isleño leader Manuel Molero, a barely literate but prosperous businessman, and one of the largest bootleggers in the South. Molero and attorney Oliver Livaudais quickly concluded that fraud was involved. Michel soon admitted that he was only a front man for an unnamed principal. Although he steadfastly refused to identify his principal, most believed it was Leander Perez.
A majority of trappers rallied around Molero and challenged Judge Perez in association proceedings and in court. The ensuing litigation was no-holds-barred, with violence at public proceedings common. Trappers and attorneys opposing Perez were harassed and arrested on spurious charges. Following contentious court proceedings in this explosive atmosphere, a state district court ruled in favor of the trappers and annulled the Michel sublease. Judge Perez appealed the decision to the state supreme court.
The trappers’ legal victory only increased tensions as both sides mobilized for the 1926-27 trapping season. Rival trapper groups battled for control of the associations and elected competing boards of directors. Both sides claimed the right to trap the season that would begin on November 20th. Judge Perez’ deputies destroyed camps erected by his opponents. The trappers fought back, burning houses and rival camps. Judge imported gunmen from Texas and commissioned them as deputy sheriffs and conservation agents.
On November 2nd the Louisiana Supreme Court dealt the trappers a legal setback by reversing the trial court and upholding the validity of the Michel sublease. St. Bernard Trappers Association, Inc. v. Michel, 110 So, 2d 617 (La. 1926). The court did not reach the merits of the dispute; rather ruling that the trappers had no right to sue on behalf of the association “against the will and over the protest” of the directors charged with the management of the association. The court glossed over the egregious absence of corporate formalities (“even though the board was not legally and regularly elected, and even though a majority were ineligible”) by finding that the board members were de facto officers, acting under color of law.
The court ruling failed to curtail the violence, which erupted into shooting war at daybreak on November 15th. A group of Perez gunmen commandeered an oyster lugger (the “Delores”) and set off for the town of Delacroix Island, reportedly planning to “make Spanish soup” of the trappers in that Isleño town. Unknown to the gunmen crowded on the Delores, 400 armed trappers had gathered at Delacroix Island to discuss strategy. The appearance of the Delores, packed with gunmen and boasting two mounted machine guns, led to a brief but tense stand-off between the numerically superior trappers and the better armed outsiders.
Both sides denied firing the shot that broke the stand-off, but the trappers got the best of the ensuing exchange. The Delores was riddled with bullets and drifted out of control onto a sand bar. When the trappers ceased fire, one man lay dead on the deck of the Delores, and many of the men on board were seriously wounded.
News of the shoot-out electrified the marshes. Outsiders fled the area in droves. Trappers swept through the swamps, seizing control key roads and encouraging the exodus of outsiders. Judge Perez’ pleas for assistance were rejected by the Governor, the U.S. Marshall, and the Police Superintendent of New Orleans. The marshes belonged to the trappers.
Judge Perez held no cards against the trappers, and was powerless to enforce the court ruling. When no retaliation resulted from the Delores incident, the trappers drifted back into the marshes to work their traditional trapping grounds. The 1926-27 season proved to be the bonanza that had been predicted and no one was ever prosecuted for the death and injuries at Delacroix Island.
The trappers had little time to enjoy their victory. Within months, the intentional breaking of the levee at Caernarvon would wash their livelihood into the Gulf. Before the muskrats could repopulate the marshes, the Great Depression would destroy the market for inexpensive furs.
The Great Flood of 1927.
The Mississippi River flood of 1927 was a disaster on a truly epic scale. Over 700,000 people were displaced by flooding that covered an area the size of New England. Record rainfalls throughout the Mississippi River Valley during the fall and winter of 1926-27 laid the foundation for disaster, and heavy rains continued in the spring of 1927. Flooding began on the upper Mississippi and its tributaries as early as September 1926. The volume of water was so great that the river at one point measured 70 miles across. Water pouring through a crevasse north of Greenville, Mississippi covered a one million acre area to a depth of 10 feet. The magnitude of the catastrophe exceeded anything seen in the country before or since. (John M. Barry, Rising Tide, Simon & Schuster, 1997.)
One aspect of the Great Flood set it apart from other natural disasters – it was expected, and relatively predictable. Flood crests started in the north and rolled inexorably south. Engineers were adept at predicting river crests and could quickly factor in levee breaks and variations in rainfall. Extensive news coverage caused consternation in New Orleans, even as local newspapers played down the threat. Adding to the city’s anxiety was the most unpredictable variable in the flood equation -- whether or not the city’s levees would hold. In and around New Orleans, every foot of the river was patrolled to protect against levee sabotage.
New Orleans was dominated by a oligarchy of private citizens from the business and social elite. Key figures who guided the city during the flood included J. Pierce Butler, Jr., president of Canal Bank, J. Blanc Monroe, the city’s leading attorney, and James Thomson, owner of two city newspapers. On April 15, 1927, as 15 inches of rain were falling on New Orleans, city leaders met and decided that the levee south of the city must be broken in order to reduce the threat to the city.
Ten days of intense negotiation and arm-twisting followed. Although federal officials believed the city’s levees would hold, they agreed to go along with the levee break if state officials requested it. Governor Simpson found himself in a difficult position because cutting the levee to save New Orleans would be unpopular in rural areas. Under extreme pressure, he agreed to authorize the act under three conditions. Simpson demanded proof that: (1) he had legal authority to order the break; (2) that the break was necessary to save New Orleans; and (3) that New Orleans promised to compensate the victims of the break for their losses.
The second condition proved the most difficult. There was no consensus among experts that breaking the levee was necessary. With almost every passing day, levees failed in Arkansas and north Louisiana. Each failure diverted water from the river and reduced the threat to New Orleans. The chief of the regional office of the U.S. Weather Bureau, Isaac Cline, doubted that the city would flood, and Simpson hesitated to act in light of Cline’s opinion. Cline eventually relented to pressure from the city leaders and agreed that the city was in danger of flooding. Governor Simpson then reluctantly agreed to authorize the artificial crevasse.
To ensure compensation for the victims of the break, 57 city leaders signed an agreement “pledg[ing] ourselves to the people of Plaquemines and St. Bernard to use our good offices in seeing that they are reimbursed by proper governmental agencies, the losses they may sustain as a result of this emergency work.” Seven government officials signed the document, including the Governor of Louisiana and the Mayor of New Orleans. Not one public official from Plaquemines or St. Bernard was present when the decision to flood the parishes was made, nor was any involved in the negotiations leading up to that decision.
A mass meeting concerning the threat to the southern parishes was held in the Plaquemines town of Braithwaite. Hundreds of trappers turned out to meet with Judge Perez and Manuel Molero. Not six months removed from the bitterness of the Trapper’s War, the two sides were allied against a common enemy. Molero, who was on good terms with Governor Simpson, had already failed in his attempts to sway the Governor. Perez and Molero recognized that nothing could be done to stop the levee break. With difficulty they persuaded the infuriated citizens that resistance would only add bloodshed to the tragedy. Despite their successful resort to violence in the Trappers’ War, the trappers and other residents accepted the futility of resistance against city, state, and federal authorities.
On April 26, 1927, Governor Simpson signed the order to dynamite the levee, allowing 2½ days to evacuate the parishes. Authorities selected a site near Caernarvon, 13 miles from New Orleans and only 2 miles from the location of 1922 Poydras break. Ironically, as levees collapsed almost daily upriver, the levee at Caernarvon stubbornly refused to break. It would take 10 days and 78,000 pounds of dynamite to create the Caernarvon crevasse. Adding insult to injury, the Glasscock levee north of Baton Rouge failed one day after dynamiting began at Caernarvon. The Glasscock crevasse created a direct route for flood waters to reach the Atchafalaya River and thence the Gulf. As predicted by Isaac Cline and other experts, natural levee failures upriver ensured that New Orleans would escape flooding.
The “Citizens Resolution” to compensate crevasse victims was a peculiar instrument. Not one public signer committed public funds for compensation. Not one private signer committed one dollar to the cause. Rather, public officials and private citizens pledged to do their best (“to use our good offices”) to see that victims were reimbursed. Although an amendment to the Louisiana Constitution authorizing reparations would be adopted one year later, that amendment merely ratified the apparatus put into place by private citizens soon after the crevasse was created. Butler, Monroe, and Thomson determined that compensation would be made by the Orleans Parish Levee Board, funded by bonds issued by the Levee Board. They determined that Monroe would serve as legal counsel to the Levee Board.
An excellent lawyer and fierce litigator, Monroe designed a reparations system to protect his client (ostensibly the Levee Board, but in effect also the New Orleans oligarchy) by paring down compensation payments as much as possible. To be fair, Monroe would face claims in excess of $30 million – ten times higher than expected. Honest concerns existed that the wily trappers, gamblers, and smugglers would, if left unchecked, take advantage of the noblesse oblige of the city.
Reparation rules provided no counsel for indigent claimants. Monroe also quashed proposed contingency fee arrangements by pursuing ethics claims against the offending attorneys. He used the same tactic to prevent pro bono representation of indigent claimants. Another procedural rule related to the timing of claims. Claimants were required to categorize their claims by damage type: (1) land; (2) crops; (3) livestock; (4) buildings and equipment; (5) other personal property; (6) damages relating to moving to avoid the flood; and (7) other damages. Payment on one schedule precluded future claims for any other damages falling into that category. Because many properties would be under water for months, owners could not determine their damages immediately after the flood. Many were forced to accept settlements far below the value of their lost property in order to meet their immediate obligations.
Reparation policy regarding emergency relief was also harsh. The Citizens Resolution established a fund for those “placed in necessitous circumstances” by the levee cut. Reparations rules required that the value of such relief be deducted from any damage compensation payment.
Monroe played hard-ball with the trappers, whose compensation claims could cost the city dearly. Monroe brought in conservation officials to audit trapper compensation claims. It was not uncommon for trappers to avoid state taxes by under-reporting income or sending pelts out of state. Discrepancies between state records and compensation applications exposed trappers to tax evasion charges. Monroe also worked with state conservation officials to claim all muskrats as the property of the state, precluding trapper claims for loss of the muskrats as property. These maneuvers saved the city millions of dollars. Monroe’s tactics were challenged in courts, in the press, and in back room meetings among state officials. With Butler’s firm support, Monroe won virtually every challenge to his authority.
In September 1927, Governor Simpson convened a special emergency session of the State Legislature to adopt a constitutional amendment to be presented for popular vote. The amendment would give retroactive legitimacy to both the act of breaking the levee and to the existing compensation process. The proposed constitutional amendment was ratified in an April 1928 popular election. It authorized “just compensation for losses sustained by individuals, firms or corporations within the affected area as the result of the encroachment of said waters [from the artificial break].” Louisiana Constitution of 1921, Article 16-A, § 1 (Repealed by Acts 1962, No. 549).
Many claimants challenged Monroe’s partial payment restriction in the district court and the court of appeal. None was successful and that issue never reached the Louisiana Supreme Court. One question that did reach the court involved the scope of compensable damages. On August 3, 1927, Claude P. Foret filed a crevasse compensation claim with the Levee Board. Foret was the General Manager of the St. Bernard Motor Company. His claim involved only one of the seven schedules – Schedule G “Claim for Other Damage.” Foret claimed $2,625.00 in lost salary based on the expectation that the business would remain closed until at least December 1927.
On behalf of the Levee Board, Monroe’s law firm rejected Foret’s claim as not covered by the reparations agreement. The claim proceeded to the Reparations Commission which was advised by Monroe’s law partner to deny the claim on the ground that “even [assuming] these facts be correct, there is no legal liability for this claim.” The Reparations Commission dutifully accepted the advice of counsel and denied Foret’s claim.
Foret appealed the denial to the District Court, which affirmed the Reparations Commission decision. His counsel was Leander Perez. Judge Perez appealed Foret’s case to the Louisiana Supreme Court. The only disputed issue in Foret v. Board of Levee Commissioners was whether the now-statutory promise to compensate flood victims for losses sustained from the Caernarvon Crevasse applied to a claim for income lost because of the resultant flooding. The Supreme Court’s ruling would determine the fate of many similar lost income claims pending in the judicial pipeline.
The Levee Board, represented by Monroe, addressed Foret’s claim as a matter of cold hard statutory interpretation. From its brief, one can almost forget that the “promise” was born of a pledge by 57 individuals on behalf of the city of New Orleans. In contrast, Foret’s brief invokes the passion of the day – “By the perversity of a strange psychology, public conscience, like human conscience, grows less sensitive with the lapse of time. Sacrifices of a day long past seem less heroic in the present and gratitude therefore constantly grows less ardent.” Amicus Brief of Labor Claimants, at p. 4.
Monroe presented the Supreme Court with a well-crafted argument. First, the Levee Board did not cut the levee -- the State did. Second, when the State acts under its emergency police power, it can take private property without compensation. When the State seizes property in a non-emergency setting, it must compensate the property owner, but only for the value of the property. Third, the State acted under its emergency police power and therefore had no legal obligation to compensate property owners. Fourth, the State voluntarily assumed the obligation to pay compensation for the levee cut. Finally, there was no reasonable ground to believe that the State intended to pay more in compensation than it would have been liable for if it had expropriated the property.
The Supreme Court rejected Foret’s attempt to equate the moral obligation of the New Orleans oligarchy to the legal obligation of the state, and focused solely on the construction of the constitutional amendment itself, not the Citizens Resolution or any other document. The preamble to the constitutional amendment stated that “it is proper that just compensation should be made for the losses sustained by individuals, firms or corporations within the inundated area as the result of the waters from said artificial break.” The body of the amendment added the clause, “as the result of the encroachment of said waters.” The Supreme Court seized upon the “encroachment of said waters” language as meaningful. “In using these words, the Constitutional Amendment conveys the idea that just compensation is directed to be paid for damages to what is encroached on by the waters, that is, physical property.” Foret, 125 So. 437, 441 (La. 1929). The court therefore concluded that consequential damages, such as Foret’s lost wages, were not within the scope of the State’s compensation obligation. The decision to deny the claim was affirmed.
In Rising Tide John M. Barry takes the court to task for equating the encroachment of waters solely to property damage and, indeed, the court’s emphasis on that connection is unconvincing. However, the case was not lost there. The court accepted Monroe’s argument that, even in an expropriation case, the State would be liable only for damages to property. The court further reasoned that a tort-feasor in the State’s position would not be liable for such consequential damages. Accepting Monroe’s characterization of the constitutional amendment as a voluntary assumption of an obligation not imposed by law, the court was obliged to strictly construe the terms of the constitutional amendment. Applying strict construction to the amendment, the court’s ruling is not unreasonable.
The conduct of the city of New Orleans, conversely, cannot be justified. The cream of the city pledged use of their “good offices” to see that victims of the Caernarvon Crevasse were compensated. Instead, they used their good offices to confect a reparations process designed to squeeze every last concession from the flood victims. Certainly, the Levee Board’s legal argument that it did not blow up the levee (“the State did it”) was disingenuous. New Orleans deserves blame for reneging on its moral obligation to the victims of the crevasse who, with no voice in the matter, suffered damages so that New Orleans would be spared.
Total reparation claims from St. Bernard and Plaquemines Parishes reached $35 million. Only $12.5 million in claims were accepted by the board. Monroe settled those claims for $3.9 million, of which $1.0 million was deducted to cover the cost of food and shelter provided to claimants. Another $1.5 million of the total went to Manuel Molero’s Acme Fur Company in a deal negotiated behind the scenes during the special legislative session that adopted the constitutional amendment.
Faulkner compared the Mississippi to a mule that works by a farmer’s side for ten years, patiently waiting for that one chance to kick its master. Three Famous Short Novels, (Vintage Books, 1961). The 1927 Flood was a gut-kick for many Americans. While residents of Plaquemines and St. Bernard Parishes suffered injury similar to that experienced up-river, destruction from the Caernarvon Crevasse was calculated as preferable to damage in New Orleans. Turning those victims into supplicants of the very people who benefited from their sacrifice added insult to their injuries.
Patrick O'Hara (2008)
Published in Litigation, Volume 35, Number 1, Fall 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
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