The U.S. Court of Federal Claims has ruled in favor of property owners who sued the U.S. Army Corps of Engineers (COE) for damages to property resulting from the overflow of reservoirs, located in suburbs west of Houston, Texas, that the Army Corps designed and manages.
The Addicks and Barker reservoirs overflowed in the aftermath of Hurricane Harvey, flooding adjacent homes and properties, after COE decided not to release water from the reservoirs to prevent greater flooding downstream.
The Army Corps claimed the reservoirs and dams, originally constructed in the 1940s when most of the surrounding area consisted of fields and farmland, had performed as designed, preventing an estimated $7 billion in damage to downstream properties from what it said was “an extraordinarily rare and large storm.”
The decision is the second major ruling against COE in a year. In a March ruling, Federal Claims Judge Nancy Firestone upheld a previous decision finding COE responsible for flood damage suffered by hundreds of residents along the Missouri River sustained in the late 2000s and early 2010s, partly because of its flood management decisions.
Judge: COE Acted Unreasonably
Federal Claims Judge Charles Lettow rejected COE’s claims, ruling in favor of the plaintiffs. Lettow found the likelihood of such an event occurring and resulting in damage to the properties was foreseeable and COE had failed to take reasonable action to expand the capacity of the reservoirs.
“The Corps knew from the outset that the land it purchased was inadequate to hold the amount of water that would be contained in the reservoirs should the embankment-design storm occur,” Lettow wrote in his December 17, 2019 decision. “It knew then that if such a storm transpired, the water produced would exceed government-owned land and flood private property.”
Losses Constitute a Taking
The ruling follows the unanimous 2012 U.S. Supreme Court decision in Arkansas Game and Fish Commission v. United States in which the Supreme Court rejected the Obama administration’s argument that temporary flooding of property by the government cannot qualify as a ‘taking,’ in which private property is taken by the federal government for a public purpose.
The Court did not hold that such flooding is automatically a taking, but it created a complex, multifactor test to determine which cases of government-induced flooding are takings. The factors to be considered include time, intent, foreseeability, character of the property, reasonable investment-backed expectations, and severity of damage. Lettow found the factors had been satisfied in this case.
Justice Department spokesman Wyn Hornbuckle said the ruling is being reviewed. The government is expected to appeal.
Property Owners Uninformed
Lettow correctly applied the Supreme Court’s multifactor test and precedents in relation to the “takings clause” of the U.S. Constitution, says University of Houston Law Center Professor Victor Flatt.
“I believe that the takings clause was accurately applied in this case because the area that flooded was a designed part of the floodway from the inception of the dams, and the vast majority of purchasers of that land did not have adequate constructive notice of this fact,” Flatt said. “The dam was designed with a floodway that flooded, and that land should have been purchased by the government and not sold to private developers.”
More to Come
Although this case was brought by only thirteen of the affected property owners, this case opens the door for additional plaintiffs, says Daniel Charest, a lead attorney for the property owners.
“This ruling only affects the 13 test property plaintiffs, but the point of doing bellwether trials is to get a sense of the law under various conditions,” Charest said. “The fact that each of the test property plaintiffs won on liability gives assurances to all other upstream flood victims because the test properties were chosen by plaintiffs to test different aspects of liability by the government for more challenging cases.
“We also anticipate seeking class certification with the test properties as class representatives,” Charest said.
Kevin Stone ([email protected]) writes from Dallas, Texas