Hurricane Harvey Litigation Updates
Houston property owners affect by reservoir flooding during Hurricane Harvey recently argued that the Federal Circuit decision in Ideker Farms v. United States supports their takings claim against the U.S. Army Corps of Engineers. Ideker Farms held that the Corps. had taken property usage rights from farmers by flooding their land due to the agency’s Missouri River management.
Harvey takings claimants argue the Corps similarly took easements on their property by releasing water from reservoirs during Hurricane Harvey, resulting in downstream flooding.
They argued Ideker Farms supports their causation argument and that the risk was not reasonably foreseeable when they bought their properties. They also argued that the flood control benefits did not outweigh the burdens, which invalidates the Corps’ defense. Claimants cite Ideker Farms in asserting the flooding was a categorical taking rather than a trespass.
United States Court of Appeals for the Federal Circuit reversed Federal Court of Claims Senior Judge Loren A. Smith’s dismissal of thousands of property owners’ claims against the United States arising out of the Army Corps of Engineers decision to release millions of gallons of water from the Addicks and Barker Reservoirs in the aftermath of Hurricane Harvey. The ruling in favor of approximately 8,000 downstream property owners along with a prior ruling in favor of upstream property owners means that the largest Fifth Amendment takings case in U.S. history can now move forward and could result in the government paying out billions. Estimates of the property owners’ damages range from $6.5 Billion to $13 Billion.
The Case: 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.”
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.
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.
The Initial Court Dismissal
On November 20, 2017, U.S. Court of Federal Claims Chief Judge Susan Braden consolidated what has since become several thousand lawsuits by property owners and divided the consolidated case into two subcases, one for those who were inundated upstream and one for those who were inundated downstream. Judge Braden appointed Rand Nolen of Fleming, Nolen & Jez, L.L.P. to serve as Co-Lead Counsel for the downstream property owners. During the pendency of the case, Judge Braden retired and after the case was reassigned to Judge Smith, the court considered and granted motions to dismiss filed by the government.
The dismissal came in 2020 after the completion of extensive discovery. Thirteen downstream test properties had been inspected and surveyed. Property owners served 19,000 documents related to the test properties. Government produced more than 250,000 documents. Expert reports were exchanged. Forty-three depositions had been taken. Those who were deposed included 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.
Getting a Court Appeal
Despite the property owners’ appellate rights following dismissal, the district court disbanded the leadership structure. However, Jack McGehee, Richard Mithoff, and Rand Nolen continued to prosecute the cases on behalf of most of the property owners and took the lead in appealing Judge Smith’s dismissal of the cases. On June 2, 2022, the Court of Appeals for the Federal Circuit reversed Judge Smith’s opinion dismissing the cases and remanded them for further proceedings in the Court of Federal Claims.
The formerly appointed Downstream Leadership and the lawyers representing the overwhelming majority of the Downstream property owners are very pleased with the court of appeals’ ruling. “There has never been any real question that property owners downstream of the Addicks-Barker reservoirs suffered billions of dollars in damages because the United States Army Corps of Engineers chose to open the reservoir flood gates sending millions of gallons of water down buffalo bayou and right into their living rooms,” said Rand Nolen. “In doing so, the Corps took the water impounded in the reservoirs and moved it right into the homes and businesses downstream.”
The court of appeals opinion rejected the government’s argument that it is immune from liability in this case. The court held: “The Tucker Act . . . waived sovereign immunity from—’any claim against the United States founded either upon the Constitution, or . . . for liquidated or unliquidated damages in cases not sounding in tort.’ The property owners sued under the Tucker Act to assert their Fifth Amendment rights to just compensation for government’s taking of their private property for public use when government moved the water out of the reservoirs and onto their properties.
The appeals court concluded: “In other words, we leave it for the lower court to consider:
- Whether Appellants have shown that a temporary taking occurred under the test applicable to flooding cases, Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012)
- Whether Appellants have established causation when considering “the impact of the entirety of government actions that address the relevant risk,” St. Bernard Par. Gov’t v. United States, 887 F.3d 1354, 1364 (Fed. Cir. 2018), cert. denied 139 S. Ct. 796 (2019)
- Whether the Government can invoke the necessity doctrine as a defense.” Thus, although the appeals courts opinion does not resolve every issue in this litigation, it affords the property owners the opportunity to pursue these cases on their merits.
This is the second significant loss for the government. The upstream case was tried for ten days in the Spring of 2019 before U.S. Court of Federal Claims Judge Charles Lettow. Following post-trial briefing, Judge Lettow issued his opinion in December 2019, ruling in favor of upstream property owners. The damages phase of that case is currently being tried at the federal courthouse in Houston.
Support for Hurricane Harvey Takings Claims
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 support clients who have active cases.
New claimants, however, are no longer eligible to file a claim due to the statue of limitations (six years since the initial decision to close the reservoir gates and flood upstream, and to open the reservoir gates and flood downstream) which was on August 28th 2023.