Last September, during the deluge caused by Hurricane Harvey, the Army Corps of Engineers found itself between a proverbial “rock and a hard place.” As the historic rainfall from this category 4 hurricane pounded the Houston area, two upstream reservoirs filled up quickly and the gates of those reservoirs were at risk of collapsing.
Such an accident would have caused a catastrophic amount of death and property damage downstream. In the Corps’ view, therefore, there was only one reasonable choice: approve controlled releases from the reservoirs notwithstanding the fact that it would flood certain homes and businesses. The Corps went ahead with these controlled releases, easing the pressure on the reservoir barriers.
Not everyone was pleased. Landowners and others affected by the Corps’ decision have commenced litigation, seeking damages from the United States under the Takings clause. Kiah Collier at the Texas Tribune has a lengthy article on the issue here. George Mason Law Professor Ilya Somin blogged last week about the legal implications here.
In 2012, the U.S. Supreme Court provided guidance to this question in a unanimous decision in Arkansas Fish and Game Commission vs United States. (Click here for my 2012 blog regarding the SCOTUS opinion.) The Court held that any induced flooding caused by the United States, no matter how infrequent or short in duration, must be analyzed by considering four factors before concluding whether a Taking has occurred; namely, “the duration of the interference, whether the invasion was foreseeable when the government acted, the severity of the interference, and the degree to which it upsets the property owner’s reasonable expectations regarding the land’s use.” The opinion leaves much to interpretation.
Duration: The properties were indeed flooded for a short period of time. However, when considering duration, the following questions are applicable:
Was the flooding sufficient in duration to constitute an appropriation of property rights;
Was the duration such that the owners could no longer utilize their property for its intended purpose; and;
Was the damage permanent in nature.
Foreseeability: In order for a taking to occur, it is not necessary that the government intended to damage the property, as long as the act of releasing waters was the foreseeable cause (Causation) of the damage. Here the Corps knew that the release of waters would damage downstream properties. Accordingly this arguably was the prima facie cause of the injury. This may be rebutted by the Corps establishing the fact that the cause of the damages was not only the release of waters from the reservoirs, but would have happened anyway without such releases given the heavy rains occurring from the Cat 4 hurricane.
Severity: The severity of the damages is established by the effects of the intrusion on the property owner. Here the owners may easily show that the destruction was such that certain homes were no longer livable and the businesses could no longer operate.
Reasonable Investment-Backed Expectations: Here the properties were downstream of two reservoirs constructed to prevent flooding. These home and business owners thus had a reasonable expectation for continued use of their property without any deliberate flooding by the Corps of Engineers.
As noted above, any induced flooding caused by the United States, no matter how infrequent or short in duration, must be analyzed by considering the four stated factors. The Plaintiffs have a prima facie case of forseeability and can establish the requisite severity and reasonable investment-backed expectations.
But the linchpin is duration. The Court of Federal Claims might still find no Taking based on the “one free flood” concept being an exemption. But it might also otherwise find that the short duration of the flooding will be outweighed by a strong position on the other three factors. This is simply too close to call.
Stephen Temmel Senior Advisor
For 30 years, Steve served as District Counsel for the Los Angeles District of the U.S. Army Corps of Engineers. For more about his legal career with the Corps of Engineers, click here.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.