On January 10, 2023, McGehee ☆ Chang, Landgraf, Feiler responded to the government’s most recent motion in the Addicks Barker Downstream “Takings” Case on behalf of the plaintiffs. Their response included a counter-motion against the government. Here is a copy of their motion. Each side will have a chance to file one more round of written arguments before trial.
Background: Government Denies Claims
To recap, in November 2022, the government again moved for a summary judgment in the case. The government contended that the Addicks and Barker dams:
- Historically prevented far more damage ($16.5 billion through 2016) than the release of water during Harvey caused
- Reduced plaintiff’s level of flooding by up to 7-8 feet
- Did not “cause” – in a legal sense – the plaintiffs’ flooding
Further, the government contended that plaintiffs’ claims are based on a single, extraordinary, catastrophic event and any action undertaken by the Corps during the event does not constitute a “taking” under the Fifth Amendment.
The government compared peak flows at several points along Buffalo Bayou during Harvey and contended that the plaintiffs properties would have flooded regardless of the release. It claims that the releases constituted less than 10% of total flow. The government also claimed that had it never built the dams, downstream flooding would have been far worse.
Plaintiffs Allege They Were Not Informed of Risk
The plaintiff’s response (which included 3800+ pages of arguments, depositions and appendices) focuses on how the government modified the dams and its procedures over time.
It adjusted discharge rates to maintain a “non-damaging channel capacity over time.” The rates went from the original design concept of 15,700 cubic feet per second down to about 2,000 cubic feet per second in a series of incremental steps over decades. The changes were designed to accommodate residential construction along Buffalo Bayou.
The plaintiffs allege that the Corps publicly reassured property owners that it would not open the dams to a point where it would cause downstream flooding. Plaintiffs further allege that over the years, people grew to rely on these assurances and none of the test properties experienced any flooding.
Nor did any of them know that the Government might deliberately release water from the Reservoirs in sufficient quantities to flood their properties.
One commercial property reported just a few inches of flooding prior to the releases, escalating to six feet afterward. Plaintiffs argue that they would have suffered no or substantially less flooding if the government had not released water, a decision motivated in part to protect upstream properties.
Crux of Plaintiff’s Arguments
Plaintiffs claim the government:
- Repeatedly promised downstream property owners that it would keep the floodgates closed
- Could have kept the floodgates closed; the Reservoirs were never in danger of failing
- Elected to open the floodgates even though it did not have to do so to avoid any imminent failure
- Knew that opening the floodgates would flood the downstream property owners
- Cannot meet the high bar required to assert releases were necessary.
- Could have bought-out the properties it flooded but chose not to because of the expense.
Plaintiffs conclude by saying that:
- The Government’s summary judgment motion should be denied
- The Court should enter a partial summary judgment for the Plaintiffs on the liability and causation elements of their claims
- All other issues, including damages, should be set for a prompt trial.
To review all the appendices submitted by plaintiffs, click here. Size caution: 330 megabytes.
A Shakespearean Tragedy
Although it might be buried somewhere in thousands of pages of filings, neither side in this case appears to directly address which properties would have flooded regardless of the release and which flooded because of the release.
The government seems to contend it is responsible for none of the flooding because it was unavoidable. And the plaintiffs contend the government is responsible for all of it.
This is like watching a Shakespearean tragedy unfold. Not even at issue here are the policies that allowed lucrative development in dangerous places, the lack of risk disclosure, and the erosion of safety margins.
Next up: The government can reply to plaintiff’s motion by February 9, 2023. Plaintiffs will then have a chance to reply to the reply by March 11. Then both sides will gear up for a hearing before the Judge.
Posted by Bob Rehak on 1/19/2023
1969 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.