Addicks reservoir

Appeals Court Revives Addicks-Barker Downstream Takings Cases

After Hurricane Harvey, people downstream of the Addicks and Barkers Reservoirs on the west side sued the Army Corps for “taking” their property. On February 19, 2020, Judge Loren A. Smith dismissed the takings cases. According to the Houston Chronicle, he said that property owners had no right to sue the government for inundating their land in what he called a “2000-year storm.”

However, today a Federal Appeals Court reversed Judge Smith’s dismissal of the takings cases. A lawyer following the issue described today’s ruling as “a victory for the downstream homeowners. This revives their claims – at least for now.” The appeals court ruled that the lower court incorrectly denied appellants takings claims when it ruled that “Hurricane Harvey was an Act of God.”

This ruling may affect similar cases in the Lake Houston area against the SJRA, also based on takings claims. The Fifth Amendment forbids the government from taking private property “for public use, without just compensation.”

The Lake Houston Area cases are in discovery and working toward a trial date, according to Kimberley Spurlock, an attorney for many of the plaintiffs.

Addicks reservoir
File photo. Looking upstream (NW) at Addicks Reservoir on May 20, 2021.

Summary of Appeal

Hundreds of individuals and companies that owned property downstream from the Addicks and Barker Dams alleged that the Army Corps of Engineers flooded their properties when it opened the dams’ floodgates during Hurricane Harvey.

The U.S. Court of Federal Claims (the lower court) held that plaintiffs did not have “a cognizable property interest in perfect flood control.” Thus, they could not claim “takings” against the United States. The appeals court disagreed. It sent the case back to the lower court for further proceedings.

Today’s ruling describes the history of the dams, the operating procedures for the gates, and analyzes the claims and precedents cited.

Lower Court Erred on “Property Interest,” Governmental Immunity

Basically, the lower court concluded that, “…because there was no cognizable property interest under either state or federal law, Appellants had failed to state a claim upon which relief could be granted.”

As you would expect, much of the appeal discusses whether a property interest does, in fact, exist.

The appellate decision also discusses whether the Army Corps had governmental immunity from takings claims that stem from Government attempts at flood control. The appeals court ruled that the government does NOT enjoy such immunity.

The appellate judges then turned their attention to property interests. They found that the precedents cited by the trial court were either not on point or stretched their points.

In short, the appeals court ruled that the “Court of Federal Claims erred in concluding that Appellants failed to assert a cognizable property interest.”

Summary Judgment Denied, Case Remanded

Both appellants and the government urged the appeals court to order a summary judgment in their favor. The appeals court declined. It noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously.” Thus, they remanded the cases back to the lower court. “Remand” in this context means “return a case for reconsideration.”

The appeals court judges asked the lower court to rule on three specific things. Whether:

  • Appellants have shown that a temporary taking occurred under the test applicable to flooding cases.
  • Appellants established causation considering the impact of government actions.
  • The Government can invoke the “necessity doctrine” as a defense.

The last point refers to a Supreme Court ruling. It recognizes that a taking claim may be non-compensable if there is “the destruction of ‘real and personal property, in cases of actual necessity…” Example: to prevent the spread of a fire.

For those reasons, the appeals court reversed the original decision of the Court of Federal Claims. It remanded the case back to the original court for further proceedings “consistent with this opinion.”

For the full text of the appeal, click here.

Posted by Bob Rehak on 6/3/2022

1739 Days since Hurricane Harvey