Hurricane Harvey and the U.S. Army Corps of Engineers
On August 25th 2017, the greater Houston area was hit by a devastating category 4 hurricane that wreaked havoc along the southeast coastal region of Texas. This tropical storm caused upwards of 4.6 feet of rain across different areas of our city. Some neighborhoods and residential areas managed to not flood during the onslaught of rain. Unfortunately, for property owners behind or adjacent to the Addicks and Barker reservoirs, the U.S. Army Corps of Engineers flooded their properties by impounding more water in the reservoirs than the capacity of the land the government owned, allowing the impounded water to flow off government owned land and into private residences and businesses. When the Army Corps of Engineers decided to release the impounded water, it fully opened the reservoirs gates and flooded thousands of downstream properties. More than 7,000 acres of privately held land was impacted by these decisions.
In the aftermath of Hurricane Harvey, property owners who lived upstream and downstream from the reservoirs began filing suits in The U.S. Court of Federal Claims (CFC). The first upstream cases already have been tried, and the Court held that the Army Corps of Engineers were liable for upstream flooding. No downstream cases have been tried yet, but thousands of cases are currently pending in both the upstream and downstream litigations.
The Fifth Amendment
The Fifth Amendment reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Claims
Property owners in the upstream cases and downstream cases are seeking money damages as just compensation for the government’s taking of their possessions and properties.
When the government impounded the water behind the reservoirs, the Corps knew that it would migrate off government owned land into peoples’ homes and businesses upstream of the reservoirs.
Likewise, when government released the impounded water the Corps knew that it would flood the homes and businesses downstream of the reservoirs along and near Buffalo Bayou. The government did not purchase easements from any of the upstream or downstream property owners, and none of the property owners ever agreed to have their properties flooded and their possessions damaged or destroyed.
Fleming, Nolen & Jez Attorney Rand Nolen was appointed by the U.S. Court of Federal Claims as one of the lead counsel for the downstream litigation. Since his appointment, thirteen downstream trial test properties were inspected and surveyed. Downstream property owners served 19,000 documents related to the test properties. The Government produced more than 250,000 documents. Expert reports were exchanged. Forty-three depositions have been taken, including both military and non-military personnel with the United States Army Corp of Engineers, a witness from the United States Geological Survey, various witnesses that were City of Houston employees, and Harris County Flood Control District officials.
Court Takeaways
The property owners learned through this litigation that Army Corps officials never determined that the reservoirs were in danger of eminent failure. In other words, despite some reports to the contrary, there was no evidence that the reservoirs were about to collapse. Property owners also now know during the events Hurricane Harvey, the decision to open the flood gates was made in the Army Corp of Engineers’ Galveston Division by the senior technical leader for dam safety and water control pursuant to the Army Corp’s Water Control Manual. He ran that decision up the ladder and obtained buy-in for the decision by the colonel in charge of the Galveston Division, the colonel in charge for the Southwest Division, a host of Corps senior technical civilians, and a pentagon general who is the deputy to a three-star general serving directly below the Secretary of Defense’s chief of staff. The release of 16,000 cubic feet of water per second and the flooding that happened downstream was intentional, intentionally sustained for two-weeks, and the government knew exactly who would flood when they did it.
Time for Filing a Claim is Running Out
Fleming, Nolen & Jez has been representing homeowners and business owners who were impacted by the U.S. Army Corps decisions during Hurricane Harvey since 2017. We continue to accept new claimants, however, those who have yet to file their claim are running out of time. The six year anniversaries of the decisions to close the reservoir gates and flood upstream, and to open the reservoir gates and flood downstream are in August 2023. That means the statute of limitations for property owners to sue is August 28th. For timely filing, the Fleming, Nolen & Jez law firm is accepting new claims until August 1st.
