Addicks-Barker Downstream Plaintiffs Win Summary Judgement

4/23/25 – Yesterday, the law firm McGehee, Chang, Feiler – the law firm representing downstream plaintiffs in the Addicks-Barker Reservoirs litigation – announced that Judge Loren A. Smith ruled in favor of plaintiffs in their “takings” case against the Army Corps of Engineers.

Takings Clause of Fifth Amendment

“Takings” refers to the Fifth Amendment of the US Constitution. One of its clauses mandates that private property cannot be taken for public use without “just compensation.”

When the Corps released water from the reservoirs during Hurricane Harvey, it flooded downstream residents. Plaintiffs argued that the flooding amounted to a taking under the Fifth Amendment and therefore they were entitled to just compensation for their losses.

Entering Year 9 of Litigation, More Likely to Come

We are now entering Year 9 of the litigation in the Addicks-Barker case. After Judge Smith’s ruling, the law firm wrote its clients in the case. They said, “This afternoon, we finally received the long-awaited decision from the Court. We are pleased to report that the Court found in our favor.”

The Court GRANTED summary judgment in favor of plaintiffs and DENIED a summary judgment in favor of defendant on all motions.

However, while basking in the win, the firm reminded clients that this is just the first phase of the case (the liability phase). “The second phase–the determination of damages, or how much the government needs to compensate the property owners–is still ahead,” said the release. “Nonetheless, we are pleased that the Court finally issued this ruling after nine years of litigation (since 2017).”

Basis for Addicks-Barker Judgement

The Opinion from the judge is 48 pages long and is filled with legal jargon. But it is still readable.

The first 15 pages cite the legal standards that apply to the case and lay out what the plaintiffs had to prove. Without going into every detail, I will observe that the Judge sided with plaintiffs on all key issues.

1. The time and duration of the flooding rose to the level of a taking.
2. Flooding from the release was both intentional and foreseeable.
   • Defendant’s own data and testimony revealed that the flooding of downstream was entirely foreseeable.
   • The Corps knowingly flooded plaintiffs’ properties.
3. The releases caused severe and catastrophic damage to plaintiffs’ properties.
4. The character of the land and plaintiffs reasonable investment-backed expectations did not anticipate intentional flooding of their properties.
5. Plaintiffs established that their properties experienced more flooding than if defendant had kept the gates closed.
6. The Corps could not invoke the “necessity doctrine” to excuse themselves because the dams were not in imminent peril before they chose to release water. Further, by the Corps own post-event analysis, “There were no observations of seepage, or critical distress areas located on the dams.” No structural damage or overtopping occurred.
7. The government’s “police powers” did not grant it immunity.

For a complete explanation, read the original opinion.

Posted by Bob Rehak on 4/23/26

3159 Days since Hurricane Harvey