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: http://www.myreservoirclaim.com.
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.
Armi Easterby, Partner
WILLIAMS HART BOUNDAS EASTERBY, LLP
Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs
UPDATE: We are very excited to announce that our trial date has been set for the 6th of May 2019!
For many people affected by the Upstream Addicks and Barker reservoirs floods, the nightmare which started during Hurricane Harvey is not over. So many families are still struggling to recover after the Army Corps of Engineers released thousands of gallons of water from the Addicks and Barker reservoirs into neighborhoods, many of which were not zoned as floodplains.
We are proud to be fighting for justice on behalf of so many wonderful people. We have been touched by the stories shared by many of our clients. There is still time to sign up if you or someone you know has been affected by the Addicks or Barker reservoir floods. Call us for a free consultation.
Photo Credit: H. Trammell
We went down to the Corps of Engineers office to review about 100 of their boxes with the hope of locating some items that had been referenced in deposition testimony which were not in the items produced by the government. We found several upstream inundation maps that clearly demonstrate as early as the year 2000 that the Corps studied exactly which upstream homes near the Addicks and Barker reservoirs would be flooded. We have not seen any indication that these maps were ever shared with the public.
Co-Lead Counsel Armi Easterby said, “I have found several ‘smoking guns’ in my legal career, and these maps are some of the best I’ve seen. We are getting all of these maps copied this weekend, and will be using them and some depositions next week and at trial.”
The Federal Government filed a motion to stay the February trial several times and has been denied. Justice delayed is justice denied. We look forward to the upcoming trial and will be posting any updates.
Update: Due to the government shut down Judge Lettow has suspended the deadlines and case which means that once the shutdown ends the case will automatically come back online.
Armi said it best, “I’m disappointed but not discouraged — the Government may be shut down but Williams Hart isn’t. We’ll make good use of the extra time by making a strong case even stronger.”
Thursday, August 17th
The National Hurricane Center issues advisories on Tropical Depression #9. By noon it is a tropical storm named Harvey.
Friday, August 18th
Harvey passed over the Windward Islands but with a max wind speed of only 40 mph. It was unclear where it would end up. No one could have known that the 19 trillion gallons of water that would soon fall over Texas.
Saturday, August 19th
Harvey weakens and is only a “tropical wave,” which is even less than a tropical depression. Weather forecasters determine that there was only a “low chance” of regeneration.
Armi has also personally negotiated hundreds of oil spill claims and has collected in excess of $50 million for eligible claimants from previous disasters. Armi lives in Houston with his wife and 5 children. He is active in giving back to his community and passionate about the mentoring younger attorneys.
Most of Armi’s cases have centered around situations where a large company has taken advantage of a small family business. “The ‘David and Goliath’ theme is almost always present in my cases,” Armi says, “I know people like to make lawyer jokes and criticize our court system, but time and time again I’ve seen the civil justice system as the only recourse my clients have. It is gratifying to see a small company take on a Fortune 500 company in front of a jury.”
Hundreds of home and business owners have filed claims against the Army Corp of Engineers for their “controlled release” of water from the Barker and Addicks reservoirs. While many people lived in floodplains and were flooded during Harvey many of the neighborhoods upstream of the Addicks and Barker reservoirs were not in the 100 or even 500 year floodplain. These homes had no prior experience of flooding. As such many families were not required to purchase the flood insurance required for floodplain zoned homes. These families experienced up to neck-deep water without any warning. Cases in which average Americans have been harmed by a much larger entity is Armi’s specialty. His experienced legal team is working to get the victims of upstream reservoir flooding back on their feet.