Tag Archive for: Downstream cases

Downstream Addicks Barker Case Moves Another Step Closer to Trial

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.

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

Appeals Court Revives Addicks-Barker Downstream Takings Cases

After Hurricane Harvey, people downstream of the Addicks and Barkers Reservoirs on the west side sued the Army Corps for “taking” their property. On February 19, 2020, Judge Loren A. Smith dismissed the takings cases. 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.”

However, today a Federal Appeals Court reversed Judge Smith’s dismissal of the takings cases. A lawyer following the issue described today’s ruling as “a victory for the downstream homeowners. This revives their claims – at least for now.” The appeals court ruled that the lower court incorrectly denied appellants takings claims when it ruled that “Hurricane Harvey was an Act of God.”

This ruling may affect similar cases in the Lake Houston area against the SJRA, also based on takings claims. The Fifth Amendment forbids the government from taking private property “for public use, without just compensation.”

The Lake Houston Area cases are in discovery and working toward a trial date, according to Kimberley Spurlock, an attorney for many of the plaintiffs.

Addicks reservoir
File photo. Looking upstream (NW) at Addicks Reservoir on May 20, 2021.

Summary of Appeal

Hundreds of individuals and companies that owned property downstream from the Addicks and Barker Dams alleged that the Army Corps of Engineers flooded their properties when it opened the dams’ floodgates during Hurricane Harvey.

The U.S. Court of Federal Claims (the lower court) held that plaintiffs did not have “a cognizable property interest in perfect flood control.” Thus, they could not claim “takings” against the United States. The appeals court disagreed. It sent the case back to the lower court for further proceedings.

Today’s ruling describes the history of the dams, the operating procedures for the gates, and analyzes the claims and precedents cited.

Lower Court Erred on “Property Interest,” Governmental Immunity

Basically, the lower court concluded that, “…because there was no cognizable property interest under either state or federal law, Appellants had failed to state a claim upon which relief could be granted.”

As you would expect, much of the appeal discusses whether a property interest does, in fact, exist.

The appellate decision also discusses whether the Army Corps had governmental immunity from takings claims that stem from Government attempts at flood control. The appeals court ruled that the government does NOT enjoy such immunity.

The appellate judges then turned their attention to property interests. They found that the precedents cited by the trial court were either not on point or stretched their points.

In short, the appeals court ruled that the “Court of Federal Claims erred in concluding that Appellants failed to assert a cognizable property interest.”

Summary Judgment Denied, Case Remanded

Both appellants and the government urged the appeals court to order a summary judgment in their favor. The appeals court declined. It noted that “due to the fact-intensive nature of takings cases, summary judgment should not be granted precipitously.” Thus, they remanded the cases back to the lower court. “Remand” in this context means “return a case for reconsideration.”

The appeals court judges asked the lower court to rule on three specific things. Whether:

  • Appellants have shown that a temporary taking occurred under the test applicable to flooding cases.
  • Appellants established causation considering the impact of government actions.
  • The Government can invoke the “necessity doctrine” as a defense.

The last point refers to a Supreme Court ruling. It recognizes that a taking claim may be non-compensable if there is “the destruction of ‘real and personal property, in cases of actual necessity…” Example: to prevent the spread of a fire.

For those reasons, the appeals court reversed the original decision of the Court of Federal Claims. It remanded the case back to the original court for further proceedings “consistent with this opinion.”

For the full text of the appeal, click here.

Posted by Bob Rehak on 6/3/2022

1739 Days since Hurricane Harvey