Tag Archive for: takings cases

SJRA Loses Plea in Harvey “Takings” Case, Attacks Expert Witness, Files Another Appeal

Downstream property owners who claim their property was unconstitutionally “taken” by the San Jacinto River Authority (SJRA) during Harvey face more delays in their legal battle for compensation. A final outcome could still be years away.

Appeal After Appeal

After losing a motion to dismiss the case against it in 2020, SJRA appealed the ruling. But the appellate court also ruled against the SJRA and remanded the case back to the trial court for further proceedings.

So, the SJRA then entered a “plea to the jurisdiction.” Basically, a plea to the jurisdiction also seeks to dismiss a case. But it does that by challenging the court’s subject-matter jurisdiction, not by arguing the merits of the case.

On December 16, 2022, the trial court dismissed that, too. Now the SJRA is appealing the dismissal of its plea to the jurisdiction as well. SJRA uses a quirk of Texas law that allows government agencies to file appeals before a case is decided, thus dragging them out.

In the meantime, SJRA has been attacking the report of Dr. Phillip Bedient, a professor of engineering at Rice University, acting as an expert witness for the plaintiffs. Bedient’s report contains explosive allegations. If a jury finds them persuasive, it could be very costly to the SJRA and State of Texas, which backstops the SJRA financially.

SJRA’s delaying tactics and appeals suggest it fears Bedient’s testimony in front of a jury.

Seven Months Arguing over an Expert Witness

The chronology of 334 filings to date with the Harris County Clerk in this case (#1123430) reveals as much about the SJRA legal strategy as the contents of the SJRA filings themselves.

The latest dust-up over Bedient started in August 2022. SJRA claimed plaintiffs had not given them notice of Bedient’s expert testimony. Plaintiffs had given notice two years earlier.

Then it took almost two months to find a mutually agreeable time for Dr. Bedient’s deposition. During that time, the two sides argued about document production related to Bedient’s testimony. SRA allegedly requested the same documents more than once; plaintiff’s claim they produced them and were under no obligation to produce them twice.

On October 27, 2022, SJRA asked for a continuance until plaintiffs complied. Then, on October 31, plaintiffs again claimed they had complied and that SJRA was trying to manufacture a “discovery non-compliance dispute where none exists, presumably as a pretext to inject further unnecessary delay into this case.”

The next item in the court record (November 28, 2022) is SJRA’s objections to Bedient’s declaration. SJRA urged the judge to strike Bedient’s testimony. Plaintiffs objected to SJRA’s objections on 12/1/2022.

On 12/16/2022, the judge denied SJRA’s objections to Bedient’s testimony.

Then, on 1/4/2023, SJRA gave notice of its intent to file an interlocutory appeal on its plea to the jurisdiction. But it took a whole month for the SJRA to write a $3,067 check for the appeal.

Next, the SJRA requested the clerk to forward more records to the court of appeals. Three and a half months later, on 5/18/2023, the clerk finally filed the receipt for the additional records with the court of appeals.

Net: the SJRA has spent the last 7 months trying to keep Bedient’s testimony from being heard by a jury. One legal expert I talked to predicts that the SJRA will appeal its plea to the jurisdiction all the way to the Texas Supreme Court. And that plea revolves heavily around Bedient’s testimony.

Bombshells in Bedient Testimony

So, what did Bedient claim that could be so damaging? Read his entire testimony here. It contains a number of explosive allegations.

  1. SJRA told the court it did not model a “no-Lake-Conroe-Dam Scenario.” But Bedient claims SJRA produced a “no dam” model during discovery. Oops!
  2. The no-dam scenario showed:
    • Lower flood peaks downstream than with the 79,000 cubic-feet-per-second SJRA actually released
    • Flood peaks without a dam would have arrived slower and given people more time to evacuate.
  3. SJRA originally designed a dam that would have served two purposes: flood control and water supply. It later modified the design before construction to be water supply only.
  4. Flooding would have been less damaging had SJRA constructed the flood-control dam originally authorized.
  5. SJRA justified its release of 79,000 CFS by saying peak inflow was 130,000 CFS. But Bedient says the 130,000 estimate was a short-lived spike from one small area, and that had the SJRA averaged the inflow across the entire watershed, it could have released far less water – 60,000 CFS – while still following its dam operating procedures.
  6. A 1994 storm, during which SJRA released 33,000 cubic feet per second from Lake Conroe, badly flooded Kingwood and Humble. The SJRA later modified its gate operating procedures to avoid downstream flooding, but then released 79,000 CFS during Harvey.
  7. Downstream flooding will likely recur as a result of the current design and operation of the Lake Conroe Dam.

Read more about these and Bedient’s other conclusions on pages 25-27. No wonder SJRA is fighting this testimony!

At the current rate, it could be years before this case goes to trial. Two-years ago – on 5/21/21, the judge issued a deadline for challenges to expert testimony; they were supposed to have been heard 18 months ago.

Posted by Bob Rehak on 5/20/23

2090 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.

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