Breaking News: Court Rules Homeowners Behind Addicks and Barker Dams Are Entitled to Fifth Amendment Compensation -- Government Liable for Project-Induced Flood Damage

Read the Press Release here and the Judge's Order here.

Upstream Reservoir Newsletter June 18, 2019

Posted on Tuesday, June 18th, 2019 at 11:41 am    

Upstream Liability Trial Complete

As you know, we had a two week trial regarding the 13 Upstream Bellwether plaintiffs, which we finished on Friday, May 17th. We anticipate receiving the Court’s decision as to whether the United States has an obligation to pay Just Compensation under the Fifth Amendment this fall.

We all believe the trial went very well for the Upstream plaintiffs. I’ve become superstitious during the last 25 years of practicing law, and accordingly would never outright predict victory in any case. I will say that we proved what we intended to prove (i.e., the Government intentionally occupied and used privately-owned Upstream property during and after Harvey to store contaminated stormwaters held back by the Addicks and Barker dams, the Government had no right to make use of the privately-owned land, the Government action of holding back contaminated stormwater on Plaintiffs’ properties substantially interfered with Plaintiffs’ property rights, etc.), and that I remain optimistic that under the specific facts relating to the Upstream plaintiffs I believe the Government has a categorical duty to pay Just Compensation to eligible plaintiffs.

We are currently working on our post-trial brief, which is due on June 26th. The Government’s brief is due on August 20th, with our reply brief due on September 6th. Judge Lettow scheduled closing arguments at 10:00 am September 13th at the National Courts Building in Washington, D.C. I am part of the team that is working on the post-trial briefing, and I will be at the closing arguments on behalf of the Upstream plaintiffs.


We Are Still Accepting New Clients

We’ve been asked by several potential new clients if it is too late to hire us to prosecute their Fifth Amendment inverse condemnation claims against the Government. To be clear, even though we just wrapped up the Upstream liability trial, it is not too late to bring a claim, and we’re still accepting clients that meet our criteria on a 25% contingent fee basis.

So far, we have filed individual cases on behalf of over 875 Upstream families and businesses. Based on our internal research, we believe fewer than 25% of the Upstream families and businesses that were submerged by the Federal Government have filed a claim. This means there are still thousands of potentially-eligible plaintiffs that may be owed Just Compensation. We believe the law in this area is absolutely clear: if you do nothing you get nothing (i.e., in order to receive any award, the claimant has to file a lawsuit within the applicable six-year statute of limitations). More information is available on our dedicated website for inverse condemnation claims against the Federal Government:


Texas Senate Bill 339 Become Law Effective September 1, 2019

Senate Bill 339 (86th Legislative Session) was signed in to law by Governor Abbott signed on June 14, 2019. The text of this new law is available here.

This new law becomes effective on September 1, 2019. This means contracts for the sale of real property entered in to on or after September 1, 2019 will need to comply with this new law (the new law does not apply retroactively to contracts entered into prior to September 1, 2019).

The new law requires additional flooding disclosures, including whether the subject property is located wholly or partly in a “Flood Pool” or “Reservoir.”

The new law defines “Flood Pool” to mean “the area adjacent to a reservoir that lies above the normal maximum operating level of the reservoir and that is subject to controlled inundation under the management of the United States Army Corps of Engineers.” It also defines “Reservoir” to mean “a water impoundment project operated by the United States Army Corps of Engineers that is intended to retain water or delay the runoff of water in a designated surface area of land.” Unfortunately, the new law does not define or provide additional information regarding what area comprises “the normal maximum operating level of the reservoir” or what area is within “a designated surface area of land.” In other words, the new law does not provide specific addresses, or even an elevation as to what properties are within in Addicks or Barker’s respective “Flood Pools” or “Reservoirs.”

Since this new law has the potential to impact our clients, I drafted and sent the attached Freedom of Information Act request to the Galveston District on June 17, 2019. I’ll share any response I receive (it generally takes them about 2-3 weeks to respond and provide documents).

According the text of the new law, this can include situations where a 100-year floodplain includes a “Flood Pool” or “Reservoir,” although it appears that the new law limits 100-year floodplains to those areas identified as such in FEMA Flood Insurance Rate Maps (“FIRMs”).

It is our understanding that Harris County Flood Control District and Fort Bend County Drainage District are in the process of reviewing preliminary FIRMs, and that the new FIRMs may include “Flood Pool” and/or “Reservoir” areas within the 100-year floodplain.


Summer 2019 Town Hall Meetings

We’ll be having town hall meetings in the coming weeks, and during which we will be providing updates regarding the Upstream liability trial, the new law and its potential impact on property owners in the Addicks and Barker Upstream areas, and other topics. As always, I’ll be there to provide the presentation and answer questions.

/s/ Armi Easterby

Armi Easterby, Partner


Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs