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Addicks-Barker Upstream Trial Case Entering Final Phase

On the fifth Anniversary of Harvey, the law firm McGehee ☆ Chang, Landgraf, Feiler issued updates on both its upstream and downstream cases in the Addicks-Barker lawsuits against the Army Corps of Engineers.

Final Arguments Scheduled in Upstream Case

The upstream Addicks-Barker lawsuit is finally drawing to a close. Earlier, Judge Charles F. Lettow ruled that the Army Corps was liable for damages. The question being decided now is “How much will residents get?” On that issue…

  • Judge Lettow heard the plaintiffs’ opening post-trial brief on August 1, 2022.
  • Defendants will present their response on September 9.
  • Plaintiffs will get a chance to reply to that on September 23, 2022.
  • The judge will hear final arguments on September 29, 2022, at 2:30 p.m.

“Once the post-trial argument concludes, we expect Judge Lettow to render a decision – which outlines the amount of damages that the homeowners are entitled to,” said the law firm in a press release.  “We hope to receive the ruling by the end of the year.”

Addicks
Flooded Homes in Addicks Reservoir during Harvey

Downstream Case Still Alive but No Definite Schedule

The McGehee firm won an appeal in its downstream Addicks-Barker lawsuit last June. The ruling on the appeal revived the case, which a lower court had dismissed in 2020.

The lower court found that “Downstream property owners did not have a cognizable [clearly identifiable] property interest.” But in June, a Federal Court of Appeals’ reversed and remanded the lower court’s decision. That means the case will go back to the lower court for further proceedings that follow instructions given by the appeals court.

The lower court will now have to determine whether a “taking” of the Downstream properties occurred, and whether the government’s other defense (i.e., necessity) will apply.

McGehee ☆ Chang, Landgraf, Feiler

“The fight will continue,” said the McGehee team.

For More Information

I’ve covered the upstream and downstream cases since 2020. For more information, see:

The outcome of these cases could affect outcomes in similar “takings” cases in the San Jacinto watershed.

Beyond the lawsuits, flood-mitigation help for residents near the reservoirs remains years away. It could depend on flood tunnels which are still being studied.

Posted by Bob Rehak on 8/29/22

1826 Days since Hurricane Harvey

Upstream Addicks-Barker Trial Concludes, But No Ruling Yet on Damages

The damages phase of the Upstream Addicks-Barker class-action lawsuit over Hurricane Harvey flooding concluded Friday, 6/11/2022. Earlier, Judge Charles F. Lettow ruled that the Army Corps was liable for damages. The question being decided now is “How much will they get?” We don’t yet have that answer, but should before the end of the year.

Flooded homes inside Addicks Reservoir during Harvey but still outside even today’s 100-year floodplain.

Basis for Claims

After Hurricane Harvey, people and businesses both upstream and downstream of the Addicks and Barker Reservoirs on Houston’s west side sued the Army Corps. Plaintiffs in both cases alleged that the Army Corps’ operation of the dams flooded their homes and constituted a taking of their property without compensation. The Fifth Amendment of the U.S. Constitution prohibits that.

“No person shall be … deprived of … property, without due process of law; nor shall private property be taken for public use, without just compensation.”

From Fifth Amendment of U.S. Constitution

Difference Between Upstream, Downstream Cases

However, the Upstream and Downstream cases also have important differences. Upstream, the Corps did not own all the land inside the U-shaped reservoirs. Worse, the Corps permitted developers to build homes and businesses inside the reservoirs on land that remained in private hands. The Corps did not anticipate it all flooding based on storms they had studied going back to the 1890s. Yet the Corps still built the walls taller and longer than it needed to hold anticipated floods.

When Harvey came along, the water in the reservoir backed up onto that private property and flooded hundreds of homes.

Lawyers for the flooded property owners asserted that the federal government cannot use private property to store federal floodwaters without providing compensation. The judge agreed.

Second of Two Phases Nearing Completion

In the first phase of the upstream case, the court found the Corps liable. In the second phase, the court considered damages, i.e., how much compensation property owners should receive.

Although the trial portion of the damage phase just concluded, the case is not yet over. McGhee, Chang, Landgraf & Feiler, one of the law firms representing plaintiffs in the class-action suit, said they must still submit post-trial legal briefings. Then they will make final closing arguments in Washington D.C. in a few months. “We expect a decision to be rendered by the Court thereafter – probably sometime in late fall/winter,” said a press release by the firm.

Exponential Growth, Larger Storms, But No Mitigation

After reading the 46-page decision, I gained a better grasp of the history of the dams and the nature of the claims.

The Corps built the dams much higher than they needed to hold a 100-year flood based on what they knew at the time.

But the Corps did not purchase all land inside the reservoirs. They left private property outside the area expected to flood. At the time the dams were constructed, that land was used for ranching and rice farming.

If the land flooded, reasoned the Corps, not much damage would result. But then came Houston’s exponential growth in the 1950s. Those ranchers and rice farmers sold their land to developers. And developers started to build inside the reservoir.

Then the Corps realized that the storms on which it based the reservoirs’ designs (including a storm from the 1890s) were smaller than storms hitting the Houston area in the modern era. But by then, it was too late.

When the Corps realized future floods would likely invade homes, it launched an awareness program and held some public meetings. But the judge felt that information didn’t filter down to most homebuyers.

Also, the Corps took no concrete steps to reduce flood risk when it realized the severity of the problem. Worse, the Corps continued to issue permits and authorizations for more developments.

To sum up 46 pages in a sentence, “The Corps knew it had a problem and did nothing to fix it.” (That’s my takeaway, not the judge’s language.) The Corps remained focused on its primary objective – preventing downstream flooding.

Downstream Focus Looms Large in Upstream Decision

Said Judge Lettow, “Equipped with the knowledge that storms of the design-storm magnitude were probable, the Corps did not stray from its primary objective to prevent downstream flooding (indeed, it probably could not), even when it knew that could well mean impounding water on private property.”

Lettow cites a 2012 Water Control Manual which the Corps followed during Harvey. It instructs the Corps to operate the dams in a manner consistent with their original purpose: to protect downstream property by impounding water in upstream reservoirs. It states “…operate the reservoirs in a manner that will utilize to the maximum extent possible [Emphasis added] the available storage to prevent the occurrence of damaging stages on Buffalo Bayou.”

Knew Larger Floods Probable

According to the judge, the Corps continued to follow that policy even though it understood that rainfall events – larger than ones they designed the dams around – were “probable, rather than merely possible.”

Lettow also found it “undisputed that plaintiffs did not know their properties were located within the reservoirs and subject to attendant government-induced flooding.”

Government Planned for Years to Impound Floodwater on Private Property

Said one hydrologist who reviewed a detailed history of the Corps’ decision making, “The Corps of Engineers did NOT buy the entire area they knew would be inundated if Addicks and Barker reservoirs were at peak storage capacity.”

Judge Lettow said, “The government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms. Defendant cannot now claim that this harm was unavoidable when it planned for years to impound floodwaters onto plaintiffs’ properties.”

The Corps made the best decisions it could with the information AVAILABLE at the time.  But as we all know, things change! And that’s what worries me most about this case.

Right now, developers are building projects all around the region based on flood maps that will soon be replaced.

To read the original complaint by one of the law firms (Irvine $ Conner), click here.

For the complete text of the liability ruling, click here.

Posted by Bob Rehak on 6/11/2022

1747 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.

 

 

New Presentations on Barker-Addicks Upstream Case and State of Regional Flood Mitigation

On February 19, the Bayou City Initiative hosted presentations by Charles Irvine of Irvine & Connor, PLLC and Professor Jim Blackburn of Rice University. Irvine was the Court-appointed, Co-lead Counsel for the Addicks-Barker “Upstream” case. Blackburn is co-director of the Severe Storm Prevention, Education and Evacuation from Disaster (SSPEED) Center at Rice and a faculty scholar at the Baker Institute – just two of many distinctions.

The oral explanations that accompanied each of these presentations provided much of the interest. But even without those, they are still understandable and compelling. Let me attempt to fill in some of the gap.

Barker-Addicks Upstream Case: What Corps Knew and Did

Irvine focused mainly on what the Army Corps knew about flooding potential upstream of the reservoirs and what they consciously permitted to happen through inaction. His presentation is packed with memos and reports dating back to 1973.

In a landmark ruling last December, the judge ruled that the US Government and Army Corps were liable in all 13 test cases for a “taking” private property for public use without just compensation.” That language comes from the Fifth Amendment of the US Constitution.

The Barker-Addicks cases have been divided into upstream and downstream groups because of their different characteristics. On February 19, 2020, Judge Loren A. Smith dismissed all the downstream cases outright. 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.”

Both of these cases set potential precedent for people in the Lake Houston area. The downstream cases contain some circumstances that parallel SJRA actions during Harvey.

The upstream cases contain elements that apply to future flooding now that the SJRA has consciously chosen to balance upstream boating, property and commercial interests with downstream safety.

All in all, it’s an interesting read. The last slide in Irvine’s presentation shows him and co-counsel standing in front of a wall with a quote from Abraham Lincoln. The quote says, “It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same, between private individuals.”

Charles Irvine is third from left.

State of Region and Prescriptions for Future

Blackburns presentation can roughly be broken into two parts: what has been done since Harvey and what still needs to be done to protect us in the future.

Regular readers will recognize many past projects from the archives of ReduceFlooding.com although Blackburn’s purview is admittedly wider than mine. I focus mainly on the Lake Houston Area; Blackburn focuses on the region.

Blackburn, however, makes many prescriptions to reduce future flooding re:

  • Development in flood plains
  • Acknowledging climate change
  • Impacts to low-income and minority areas
  • A black-mold public-health crisis
  • Location of hazardous waste sites
  • Cancer clusters
  • Allocation of public funds
  • Design of freeways that flood
  • Tunneling as a mitigation alternative
  • Flood alert systems
  • Ike-Dike Options and more
Jim Blackburn’s biggest worry.

Blackburn does not shy from controversy. But it’s not necessary to agree with each of his observations. It is necessary to discuss them if we are going to move beyond the thinking that keeps us mired in the past.

To download both presentations, click here.

Posted by Bob Rehak on 2/26/2020 with thanks to Charles Irvine, Jim Blackburn and the Bayou City Initiative

911 Days after Hurricane Harvey