Federal judge rules for Houston landowners in flood case: Here’s the impact

In April, Court of Federal Claims Senior Judge Loren A. Smith ruled in favor of Houston landowners downstream of the Addicks and Barker Dams who had sued claiming that the release of floodwaters by the U.S. Army Corps of Engineers during Hurricane Harvey resulted in a taking of their private property under the 5^th Amendment.

Judge Smith dismissed all of the government's arguments in defense of its actions including the argument that the releases were driven by the emergency given Harvey’s historic flood levels. He wrote that USACE officials released floodwaters "before an actual emergency posed an imminent danger to the structural integrity of [the] Addicks and Barker [Dams]."  

Dawson & Associates has blogged about this litigation and related flooding issues (here and here). During Harvey, our colleague Gen. (Ret) Don Riley, who had previously commanded emergency response operations at the Corps, appeared twice on Fox News to explain how the Corps’ responds to emergency flooding (here).

 For entities wondering how or if this decision may affect Corps actions, especially involving permitting near areas prone to flooding, here are a few thoughts:

• National implications. The impact of Judge Smith’s decision is emphatically not confined to Houston. Corps officials across the country are potentially looking at increased upstream and downstream liability, especially involving reservoir actions taken during flooding. 

  
  

  Judge’s Smith’s decision cited a previous Court of Federal Claim’s decision which had found that property upstream of the two dams was also taken under the 5^th Amendment.  In that case, the court found that by holding floodwaters back, private property was used for additional flood storage. This shows that government actions, both in holding back or releasing floodwaters, will be closely scrutinized.

• Impact likely to be felt on Section 408 permit requests.  Under the Corps 408 program, applicants request permission to develop or use Corps managed flood control basins in a manner compatible with the federal project.  The decisions handed down in the Addicks and Barker 5^th Amendment takings cases will likely influence the analysis of future Section 408 requests.

• Federal defenses eroded. Judicial takings determinations are made on the unique factual circumstances of each case.  Here, following the Supreme Court’s 2012 Arkansas Game & Fish decision, the court applied a multi-factor test to determine if a taking had occurred: time and duration of flooding, foreseeability, intent, character of the private lands and reasonable investment-backed expectations of land use. The court paid strict attention to flood control operations manuals used during Harvey.  Ultimately, the court rejected all the defenses posed by the federal government. 

The Addicks and Barker decisions, once concluded, will no doubt become important precedent in 5^th Amendment takings cases.

Elizabeth Fagot

Senior Advisor

An expert in federal real estate law and policy, Liz spent 30 years as an attorney with the U.S. Army Corps of Engineers, both as the Deputy Director of Real Estate and becoming the first Assistant Chief Counsel for Real Estate (2004-2011).