On November 21, 2022, the U.S. Government filed a 70-page motion for a summary judgment in the Addicks-Barker Downstream Cases. In 2020, Judge Loren A. Smith dismissed the downstream cases, ruling that the plaintiffs had no right to sue the government for “taking” their property in what he called a 2,000-year storm. However, in June 2022, a federal appeals court reversed Judge Loren’s decision, re-opening the case. The appeals court ruled on a number of procedural issues and remanded the case back to Loren’s court for further consideration.

Both appellants and the government had urged the appeals court to order a summary judgment. But the appeals court declined. It noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously.”

Now three years later, the parties are again asking for summary judgement. The government has already filed its motion and the plaintiffs have until January 10, 2023, to respond with their own cross-motion.

Government Claims

In summary, the government contends 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 contends 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.

Dams Modified in Response to Downstream Development

The government brief contains an illuminating historical discussion (starting on Page 23) of how the Army Corps modified the release capacity of the dams over the years in response to downstream development. Both dams release water through concrete box culverts, some of which have been gated to help the Corps reduce discharges.

The original design from the 1930s included a downstream channel with a capacity of approximately 18,000 cubic feet per second (CFS), and 4 ungated and 1 gated outlets on each dam. They permitted a combined, uncontrolled discharge of floodwater into Buffalo Bayou of approximately 15,700 cfs.

In 1948, the Corps constructed gates on two additional conduits on each dam so that three of the five conduits were gated. This design reduced the combined uncontrolled discharge into Buffalo Bayou to approximately 7,900 cfs, which was considered at that time to be the capacity of that channel.

“However, increasing urban development along Buffalo Bayou in the 1940s and 1950s created a potential flood threat from uncontrolled releases at that level,” says the motion.

The Corps then added gates to additional conduits in the early 1960s to provide more protection to developing downstream areas. With all conduits gated, “[t]he total of all releases, plus local runoff downstream of the dams, would start at 4,000 cfs and be gradually increased to 6,000 cfs except under emergency conditions.”

Later, the motion states, “Continued residential development along Buffalo Bayou downstream of the reservoirs resulted in channel encroachment and by late 1970, water flows in excess of 3,000 cfs in the unimproved channel below the dams would begin to threaten the first floor elevations of some residences, and release rates of 2,500 to 2,800 cfs would produce nuisance type flooding of flower beds, trees and lawns in some areas along Buffalo Bayou and its tributaries.”

Causation Argument

Plaintiffs claimed that the opening of the dams’ gates during Harvey caused their flooding. But the government argues that the plaintiffs must demonstrate what would have happened if the government had not acted at all. In other words, the government argues that “causation” must be “based on the entirety of government actions.” See Page 26. That includes construction of the dams! And without them, the government says on Page 42, “properties along Buffalo Bayou would have experienced much greater flooding.”

“Plaintiffs have not alleged—let alone identified any evidence to prove—that their properties experienced more flooding than they would have experienced if the Corps had never constructed the Project, their claims fail,” the government argues.

Doctrine of Relative Benefits

The government also invokes a legal principle called the “relative benefits doctrine.” Under the relative benefits doctrine, “[e]ven if a causal relationship exists between the Government’s action and plaintiff’s damage . . . no liability attaches if the Government’s conduct bestowed more benefit than detriment on plaintiff’s property.”

The motion then alleges that the benefits to downstream properties far outweigh the Harvey-related damages. A 2016 study the government quotes alleges the dams reduced/avoided damages to downstream properties by $16.5 billion. That total is updated annually and based on a with/without the dams comparison.

Comparison of Peak Inflows/Outflows

The government motion cites the following statistics of the two reservoirs during Harvey:

• Addicks peak inflow: 70,000 cfs
• Addicks peak release: 6,500 cfs or 9.3% of the peak inflow.
• Barker peak inflow: 77,000 cfs,
• Barker peak outflow: 4,821 cfs or 6.3% of the peak inflow.

Peak flow rates downstream along Buffalo Bayou ranged from 13,800 cfs to 36,400 cfs. The government alleges that at those levels, plaintiffs properties would flooded regardless of discharge from the dams. The government also alleges that without the dams, flooding in Piney Point would have been 7 to 8 feet higher.

The Corps calculated after Harvey that the dams prevented 30,000 structures from flooding.

Government Motion for Summary Judgement, Page 57

In this section of the motion, government lawyers point out that plaintiffs’ properties would have flooded in previous floods such as Tax Day and Memorial Day had it not been for the dams.

What Constitutes a Taking?

In conclusion, the government argues that the flooding during Harvey did not constitute a “taking” under the Fifth Amendment.

1. It was not intended.
2. It resulted from an extreme hurricane with unprecedented rainfall.
3. The government’s role in any flooding of downstream properties was secondary to the severe rainfall.
4. The dams were designed and built decades before the plaintiffs’ properties.
5. Releases during Harvey were designed to protect the integrity of the dam.
6. Flooding of plaintiffs’ property is not frequent enough to rise to the level of a taking.
7. The failure of government to take certain actions alleged by plaintiffs would constitute a tort a most, not a taking.

A tort is a failure to take action that results in damage to someone.

To see the exact text of the full 70-page motion, click here.

I will let you know how the plaintiffs’ lawyers respond later this month.

Posted by Bob Rehak on 1/1/2023

1951 Days since Hurricane Harvey