On December 17, 2019, Judge Charles Lettow of the U.S. Court of Federal Claims entered an order and opinion that “the government’s actions relating to the Addicks and Barker Dams and the attendant flooding of plaintiffs’ properties constituted a taking of a flowage easement under the Fifth Amendment. Thus, the court finds defendant liable.” The Court’s opinion ruled out key government defenses and confirmed that United States law protects property owners upstream of the Addicks and Barker reservoirs by providing just compensation for the taking of their property.
The next step in the upstream case is the damages phase in order to identify the “just compensation” afforded under the Constitution. The Court’s opinion sets out the next steps to that end, as follows:
The court proposes to adjudicate damages for five out of the thirteen test properties. To that end, the parties shall each propose three properties for consideration as to damages, thus providing the court with a total of six candidates. The court will then select five test properties from the six properties proposed. Each party is requested to file with the court a notice detailing its three proposed test properties for damages and its respective arguments for selection of those properties as bellwethers by January 21, 2020.
Upstream Order Will Be Persuasive In Downstream Claims
Judge Lettow’s ruling applies only to the upstream test litigation. There is a separate lawsuit, presided over by Judge Loren Smith, for downstream test property owners. Judge Smith recently heard arguments on the parties’ motions for summary judgment, which he took under advisement. Although Judge Lettow’s ruling in the downstream case has no direct impact on Judge Smith’s decision in the downstream test case, and Judge Smith is under no obligation to follow Judge Lettow’s ruling, we are confident that certain important legal conclusions in the opinion will be persuasive and apply in the downstream case as well.
Certain aspects of Judge Lettow’s legal analysis could be applied just as easily to the upstream cases as it would to the downstream cases, because the same federal legal framework for what constitutes a taking applies in all of these cases. A few examples:
Page 34 of opinion, discussing “benefit to the government” factor in takings analysis:
“The flooding suffered by plaintiffs and the associated damage were not merely consequential. They were the product of a direct invasion of [plaintiff’s] domain.”
Page 35-36, discussing “foreseeability” of the flooding and damage:
“Defendant’s reliance on the contention that foreseeability in this scenario is most properly measured from the viewpoint of the government in the 1940s, at the time the Addicks and Barker Dams were constructed, is not appropriate because the foreseeability inquiry should not be so constrained . . . It is irrelevant in this case whether foreseeability is measured in the 1940s, the 1970s, or even the 2000s, because at all of these points defendant should have objectively foreseen that the pools could and would exceed government-owned land.”
“The law offers the government no loophole whereby it may escape takings liability by putting landowners on notice of the risk that it could or would take their property…in short, the government gains no immunity for an uncompensated taking by giving advance notice that it will take property. When the taking actually occurs, it still must provide compensation.”
Upstream and Downstream: Where Is My Property Located?
The liability theory for the upstream taking is that the Government (operating through the U.S. Army Corps of Engineers) created flood pools in and around the Addicks and Barker reservoirs that overflowed during Harvey’s sustained rainfall. The Corps knew the land it purchased was inadequate to hold the amount of water that would need to be contained in the reservoirs in the event of a major storm. And it knew that if such a storm happened, the water would flood private property. This is exactly what happened during Harvey, and Judge Lettow held it constituted a taking under the Fifth Amendment.
The liability theory for the downstream property owners is a bit different. Several days after Harvey made landfall – and, indeed, after it had stopped raining in Houston – the Corps made the conscious decision to open the Addicks and Barker dams via controlled releases to prevent a total failure of the dams. This caused catastrophic flooding of thousands of properties downstream of the dams.
Very generally speaking, whether you fit into the upstream or downstream zone can be determined by your zip code:
Upstream: property located in 77094, 77084 and potentially some of 77041;
Downstream: property located in 77077, 77079, 77063, 77057, 77056, 77048, 77042, 77024, and experienced significant flooding only *after* the release that occurred on or after August 27, 2017.
Again, these are general guidelines, so if you’re not sure which zone you fit into, please let us know and we can answer that question.
Not Too Late For Representation By Experienced Houston Real Property Damage Lawyers
The property damage lawyers at Raizner Slania LLP are working with property owners on both upstream and downstream cases to fight for their legal rights. Our lawyers understand the unique legal challenges involved in succeeding with inverse condemnation claims and the factual hurdles in recovering just compensation for losses. It is not too late to assert your claim. If your property was flooded either downstream or upstream of the Addicks and Barker reservoirs, contact us immediately to learn your legal options.