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Federal Circuit revives claims of Hurricane Harvey flood victims

Following its manual for the operation of two Houston dams, the Army Corps of Engineers opened the gates and flooded thousands of downstream properties with stormwater from Hurricane Harvey.

(CN) — The government is not immune from the takings claims of Houston residents whose homes flooded after the Army Corps of Engineers released Hurricane Harvey stormwater from two dams, the Federal Circuit ruled Thursday, reviving hundreds of cases.

The largest storm in U.S. recorded history, Harvey made landfall in August 2017 and dumped more than 50 inches of rain in parts of Houston.

As Harvey runoff pooled behind two earthen dams the Army Corps of Engineers built 20 miles west of downtown in the 1940s to control Buffalo Bayou and prevent it from flooding structures in downtown Houston, the Corps turned to an operating manual for the reservoirs it adopted in the 1960s.

The manual called for the gates on Addicks and Barker dams to be opened when reservoir pools reached a certain level. So the Corps increased the normal 2,000 cubic feet per second rate of release from the dams to 13,000 and kept it at 13,000 for five days, which proved disastrous for homes and businesses within Buffalo Bayou’s floodway.

Some homes took on as much as 8 feet of water. And the water sat in them for over a week before owners could reach them to muck them out and start the long process of rebuilding.

Business and homeowners filed 176 lawsuits against the government in the U.S. Court of Federal Claims, claiming it had to compensate them for storing water on their property under the Fifth Amendment’s Taking Clause.

But U.S. Court of Federal Claims Judge Loren Smith dismissed the cases in a February 2020 ruling.

Smith bought the government’s arguments property owners did not have a cognizable property interest in a “flowage easement” the Corps took when it flooded their homes because Harvey was an act of God, and under Texas law they own their land “subject to the legitimate exercise of the police power to control and mitigate against flooding.” 

A three-judge panel of the Federal Circuit on Thursday reversed Smith’s order and remanded the case to him.

“We hold that appellants have alleged cognizable property interests in flowage easements,” U.S. Circuit Judge Tiffany Cunningham wrote in a unanimous opinion.

The panel stopped short of finding the government on the hook for taking that property interest and tasked Smith with sorting it out.

If found liable, the government could be ordered to pay as much as $13 billion in damages as plaintiffs’ counsel expect an additional 2,000 lawsuits to be filed by people affected by the downstream flooding, Claims Journal reported.

Cunningham made short work of the government’s claim that the Flood Control Act of 1928 gives it sovereign immunity against any liability associated with flood control.

“The government cannot avoid suit so easily,” the Joe Biden appointee wrote.

She noted the Tucker Act, passed more than 40 years before the Flood Control Act, waived sovereign immunity for “any claim against the United States founded either upon the Constitution, or . . . for liquidated or unliquidated damages in cases not sounding in tort.”

Cunningham also rejected the government’s contention that pursuant to Texas law, flood control is an exercise of police power by the government to provide for public health and safety.

“The Texas Supreme Court expressly tied the exercise of the police power to the abatement of nuisances. Here, there is no allegation that appellants’ properties constituted public nuisances,” she stated in a 14-page order.

The judge did, however, note the government may have grounds on which to build a solid defense.

She said the Supreme Court has recognized a taking may be non-compensable if there is destruction of property in cases of “actual necessity,” such as to prevent the spread of a wildfire.

The ruling comes as a trial is underway in Houston federal court to determine how much the government owes property owners whose homes were flooded by water the Corps of Engineers impounded behind Barker and Addicks dams during Harvey.

In finding the government liable for this upstream flooding, U.S. Court of Federal Claims Judge Charles Lettow determined the Army Corps of Engineers had not adequately warned residents the reservoir pools could exceed government-owned land in extreme storms.

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