HOUSTON (CN) - The sun had finally broken in Houston after four days of deluge from Hurricane Harvey. Dana Cutts stood outside watching water that had flooded her front yard drain down her driveway.
“And we were saying we dodged a bullet and then all of a sudden the water started coming right back up again,” she said.
Her home is on Buffalo Bayou. Houston’s main waterway, its flow is controlled by outlets in two earthen dams 20 miles west of downtown. The U.S. Army Corps of Engineers built the dams in the 1940s.
Harvey’s biblical rainfall in August 2017 led the Corps of Engineers to do an “induced surcharge,” opening up the gates as far they could go and letting the water flow, something the agency had never done in the history of managing the Addicks and Barker Reservoirs.
The agency was following a water control manual, a guide for operating the reservoirs it adopted in the 1960s, which called for the gates to be opened when reservoir pools reached a certain level.
The Corps increased the normal 2,000 cubic feet per second rate of release from the dams to 13,000, and Buffalo Bayou came calling in the home Cutts and her husband had owned since 1976 with no flooding.
“We did not flood until the whole storm was over. … We were out nine months. We only got 5 to 8 inches, but it was enough to wreck the whole house,” Cutts said at the Houston federal courthouse Wednesday.
Cutts’ home is one of 13 test properties selected as a sample in a class action out of more than 1,000 home and business owners who sued the federal government in the U.S. Court of Federal Claims.
They say Uncle Sam must compensate them for the up to 12 days the Corps stored water on their private property, displacing them before it drained off and they returned to muck out their flooded homes.
They are making their case under the Fifth Amendment’s Takings Clause, which lets the federal government take private property for public use if it provides "just compensation."
Though there’s no doubt Harvey was a natural disaster, the plaintiffs’ attorney David Frederick argued at a hearing on cross claims for summary judgment Wednesday that the downstream release was a standard nonemergency procedure for the Corps, which even had models that told them down to the house, block and street who would flood when it released the water.
“So there can’t be any question as to intent and foreseeability,” he said, citing a factor needed to win a takings claim under U.S. Supreme Court precedent. He said if the Corps would have kept the gates closed, none of the downstream properties would have flooded.
But as Cutts said in an interview Wednesday, for the government it was “damned if you do, damned if you don’t.”
It is also facing similar claims from dozens of Houstonians who sued because the water pooled behind the dams and flooded their homes. They are waiting for a ruling from Federal Claims Judge Charles Lettow, who heard closing arguments in September.
Federal Claims Judge Loren Smith is presiding over the downstream case. Early in a three-hour hearing before 100 people packed in the gallery Wednesday, he seized on the government’s no-win situation.
“There’s an anomaly because if the government opens the gates it gets sued by the downstream people. If it doesn’t, it gets sued by the upstream. It’s odd whatever the government does is taking because it built a dam to control flooding,” he said.
Frederick said, “Does the government shoot itself in the left foot before the right foot? And that’s what they did.”
“If they hadn’t done anything they wouldn’t have shot themselves in either foot,” Smith said.
Both the upstream and downstream litigants say the government erred by not buying enough land for the reservoirs, which are usually dry and empty as the Corps only impounds water in them from sustained rains, to keep surrounding properties dry.
Department of Justice attorney Kristine Tardiff said the property owners are using the wrong causation standard because they are basing their claims on what would have happened if the Corps had kept the gates closed as compared to opening them up.
“The proper comparison … is what would have happened without the project in place,” she said.
She said the flooding was inevitable – before the dam gates were opened homes upstream and downstream were flooding, and without the dams it would have been worse.
But Smith was skeptical.
“That’s an impossible standard because it’s very hard and speculative to figure out what would have happened, a standard guaranteed to fail,” the judge said.
Frederick agreed. He’s with the Washington D.C. firm Kellogg, Hansen, Todd, Figel & Frederick.
“All of us when we buy homes, we don’t expect we’ll have to go into ancient history to find out what would have happened if a government project was not done,” he said.
Smith said he’ll take the matter under consideration, but that he’d rather not have to rule. “I think it’s an ideal case for settlement,” he said. “One thing that makes a settlement easier is when it’s about money. This is about money.”
Smith said the case is not black and white and does not call for a clear-cut victory for either the property owners or the government. “I think it’s somewhere in between,” he said.
He ordered the parties to hold a settlement meeting next week and another in the first two weeks of next month.
Garland Robinson said after the hearing his insurance did not cover his home’s damage and he and his wife had to take out a loan to cover repairs. He hesitated when asked what settlement amount would make him happy.
“If I had to put a price on it?” he said. His wife grabbed his arm.
“We don’t know,” Ruth Robinson said.
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