Addicks-Barker Litigation Update
12/9/2024 – Testimony concluded today in the latest appeal of the Addicks-Barker lawsuits arising out of Hurricane Harvey.
During Harvey, homes both upstream and downstream of the Addicks and Barkers Reservoirs flooded. Residents allege that the Army Corps’ management of gates on the reservoirs contributed to flooding their homes. The cases have wended their way through the federal court system almost since the storm flooded large parts of Houston’s west side.
Downstream Case
Previously, a trial court ruled against the downstream plaintiffs. The U.S. Court of Federal Claims held that plaintiffs did not have “a cognizable property interest in perfect flood control.” An appeals court disagreed. It sent the case back to the lower court for further proceedings.
The new downstream trial began on Friday October 25 at the Federal Courthouse in downtown Houston. It is a limited trial aimed at answering two questions from the judge:
(1) Was there an emergency that necessitated the United States Army Corps of Engineers (the “Corps”) opening the Addicks and Barker reservoir gates, or were the gates opened as a matter of ordinary operating procedure; and
(2) What would have happened if the gates had remained closed?
McGehee ☆ Chang, Landgraf, Feiler, attorneys for the plaintiffs in the Addicks-Barker cases, reported that they examined one expert witness and three fact witnesses on October 31, 2024. The witnesses included the former district commander of the Army Corps and the Corp’s chief of engineering for the district.
An expert witness for the plaintiff testified that: (1) There was no emergency involved in opening the flood gates. And (2) If the gates were closed, most of the downstream properties would not have flooded; and the duration and extent of flooding would have been reduced for those who would have inevitably flooded.
After testimony by two more expert witnesses, the next phase of the trial concluded today in Washington DC.
The plaintiffs’ attorney’s report that Corps’ staff “admitted that no emergency was ever declared by the Corps (during Harvey).” Also, plaintiffs’ attorneys say that “the Corps’ own expert witness had largely agreed that the majority of downstream properties would not have flooded if the gates had remained closed.”
Next Steps in Downstream Case
Plaintiffs will submit their post-trial brief summarizing their case to the Court on or before January 31, 2025. The government must submit its brief on or before February 25, 2025. Closing arguments are scheduled to take place in Houston on March 6, 2025, at 3:00 p.m.
There is no indication when the judge will make a final ruling.
Upstream Case
The upstream trial concluded in 2022. The government appealed on December 29th that year. On June 21, 2023, the government filed a 168 page brief, contending that:
- The upstream flooding was caused by the unprecedented nature of Harvey rainfall – and not by the government’s actions
- The government was trying to save life and private property – and that private properties are subject to the government’s “police power” (to protect public safety)
- That the home owners are not entitled to recover certain categories of “damages” (such as lost profits and leasehold, displacement costs, personal property…etc).
Plaintiffs then responded to those claims in October 2023.
The court heard oral arguments from both sides on November 8, 2024. The government continued to claim that Harvey was a disaster that was a once in one-thousand-year occurrence, and that the government should not be penalized for this extremely rare event.
Plaintiffs contended that while Harvey was a significant rain event, it was not as infrequent as the government claimed.
Plaintiffs’ attorneys expect the court to issue its decision within another five months or so. That would ring the bell for the next round sometime in April or May of 2025.
Editorial Comment
We’re already more than seven years beyond Harvey, the event that triggered these lawsuits. Delays underscore the need for flood insurance; many homeowners will have likely died before the courts resolve these cases.
But flood insurance costs are rising rapidly. To help combat those rising costs, visit FloodSmart.gov. This FEMA-sponsored site gives you flood insurance quotes, connects you with agents, explains your flood risk, and discusses what to do before and after a flood. It also contains links to flood maps.
Posted by Bob Rehak on 12/8/2024
2659 Days since Hurricane Harvey
