Tag Archive for: takings

Addicks-Barker Downstream Plaintiffs Win Summary Judgement

4/23/25 – Yesterday, the law firm McGehee, Chang, Feiler – the law firm representing downstream plaintiffs in the Addicks-Barker Reservoirs litigation – announced that Judge Loren A. Smith ruled in favor of plaintiffs in their “takings” case against the Army Corps of Engineers.

Takings Clause of Fifth Amendment

“Takings” refers to the Fifth Amendment of the US Constitution. One of its clauses mandates that private property cannot be taken for public use without “just compensation.”

The vast Addicks reservoir in a May 2021 rain event. During Harvey, water was even higher.
Barker Reservoir, also in May 2021.

When the Corps released water from the reservoirs during Hurricane Harvey, it flooded downstream residents. Plaintiffs argued that the flooding amounted to a taking under the Fifth Amendment and therefore they were entitled to just compensation for their losses.

Entering Year 9 of Litigation, More Likely to Come

We are now entering Year 9 of the litigation in the Addicks-Barker case. After Judge Smith’s ruling, the law firm wrote its clients in the case. They said, “This afternoon, we finally received the long-awaited decision from the Court. We are pleased to report that the Court found in our favor.”

The Court GRANTED summary judgment in favor of plaintiffs and DENIED a summary judgment in favor of defendant on all motions.

However, while basking in the win, the firm reminded clients that this is just the first phase of the case (the liability phase). “The second phase–the determination of damages, or how much the government needs to compensate the property owners–is still ahead,” said the release. “Nonetheless, we are pleased that the Court finally issued this ruling after nine years of litigation (since 2017).”

Basis for Addicks-Barker Judgement

The Opinion from the judge is 48 pages long and is filled with legal jargon. But it is still readable.

The first 15 pages cite the legal standards that apply to the case and lay out what the plaintiffs had to prove. Without going into every detail, I will observe that the Judge sided with plaintiffs on all key issues.

  1. The time and duration of the flooding rose to the level of a taking.
  2. Flooding from the release was both intentional and foreseeable.
    • Defendant’s own data and testimony revealed that the flooding of downstream was entirely foreseeable.
    • The Corps knowingly flooded plaintiffs’ properties.
  3. The releases caused severe and catastrophic damage to plaintiffs’ properties.
  4. The character of the land and plaintiffs reasonable investment-backed expectations did not anticipate intentional flooding of their properties.
  5. Plaintiffs established that their properties experienced more flooding than if defendant had kept the gates closed.
  6. The Corps could not invoke the “necessity doctrine” to excuse themselves because the dams were not in imminent peril before they chose to release water. Further, by the Corps own post-event analysis, “There were no observations of seepage, or critical distress areas located on the dams.” No structural damage or overtopping occurred.
  7. The government’s “police powers” did not grant it immunity.

For a complete explanation, read the original opinion.

Posted by Bob Rehak on 4/23/26

3159 Days since Hurricane Harvey

SJRA Wins Appeal Against Downstream Homeowners

October 20, 2025 – On October 16, 2025, the Fourteenth Court of Appeals ruled that the San Jacinto River Authority (SJRA) enjoyed governmental immunity in one set of “takings” claims arising out of Hurricane Harvey. The three-judge panel reversed a ruling by the 152nd District Court in Harris County.

The new ruling said that the SJRA acted reasonably and that the property owners failed to prove their case. The property owners had accused the SJRA of causing or worsening their flooding during Hurricane Harvey as a result of releases from Lake Conroe.

SJRA Lawsuit win on appeal

Case Specifics

The case in question – SJRA v. Thomas E. and Beth F. Ross, Et Al. included 295 appellees.

When the three judge panel ruled that SJRA enjoyed governmental immunity, all of plaintiffs’ other claims became moot.

Justice Kevin Jewell, Conclusion on Page 31

Even so, the ruling runs to 33 pages. Every paragraph represents a Tylenol moment for the plaintiffs. From discussions of applicable law to standards of proof, expert witness testimony and more.

The justices relied heavily on the gravity and immediacy of the threat posed by Hurricane Harvey (page 18) in determining that SJRA deserved immunity. Harvey was “significantly serious” and “likely to produce great harm or danger,” they said (page 20).

Key Factors in Finding

The judges believed that SJRA acted “reasonably,” a pivotal word they applied. “SJRA created a Gate Policy that was intended to minimize threats to life and property and to comply with applicable rules and legal authority. Adhering to that policy during a storm emergency is objectively reasonable,” they added on Page 21.

Further they found (page 25) that the downstream property owners failed to prove that “the threat to life or property posed by Harvey [did] not qualify as grave and immediate.”

And they agreed with the SJRA (page 29) that releasing the stormwater from Lake Conroe was “necessary,” even though:

  • Some buffer existed before SJRA would have flooded upstream residents
  • The dam could have withstood higher levels.

In the end, they said (page 31), “The decision of whether, when, and how much, water to release was discretionary and the Property Owners have not presented evidence that the amount released was so extreme as to be objectively unreasonable.”

Conclusion: Reversal With Prejudice

Thus, they concluded, “We reverse the trial court’s order and render judgment dismissing with prejudice [emphasis added] the Property Owners’ statutory takings claims.”

A dismissal “with prejudice” means the case is over. Plaintiffs cannot refile the claim ever again. This final judgment permanently ends the lawsuit and prevents the same issues from relitigation in the future. Except through a successful appeal to a higher court.

It’s unclear how this case differs from several other similar takings cases arising out of Harvey. It’s also unclear at this point whether the plaintiffs will appeal the case.

Posted by Bob Rehak on 10/20/2025

2974 Days since Hurricane Harvey