I’m very fortunate to have an elite team that passionately and genuinely cares about your cases, and I’ve been inspired by their professionalism and tireless commitment during these challenging times. Per our prior posts on Armi’s Army, we made arrangements in the very early stages of COVID 19 to enable the Addicks Barker team to work from home. As shown below, so far, everyone here is healthy, and we hope you are as well.
We’re also happy to report that the Court has not postponed any deadlines; in fact, we are pushing through the compensation phase more quickly than we finished the liability phase.
We’re set to continue working from home as long as it is necessary to comply with the vari-ous executive orders. We hope you are all doing well during these trying times, and please know you are in our thoughts and prayers.
Update on Compensation Phase
As you know, the United States Court of Federal Claims issued a historic ruling in December of last year finding the government liable under the 5th Amendment for intentionally flooding Upstream homes and businesses during and after Harvey.
We’re currently in the compensation phase, during which the Court will decide how much the government owes to the families and businesses that owned or rented property in the Up-stream area on August 30, 2017 (i.e., the date the Addicks and Barker reservoir pools reached their maximum elevations: 109.1 feet in Addicks and 101.6 feet in Barker). As with the liability phase, the compensation phase involves court-selected bellwether test properties. On January 30th, the Court picked the following 6 test properties for the compensation phase:
Determining the correct method for calculating compensation for the test properties will en-able us to determine compensation for the thousands of Upstream homes and businesses the government flooded in order to protect the City of Houston.
During this phase of the case, we will seek all available compensation; including compensation for mucking-out, repairing structures, pools, fences, landscaping, and other items damaged by the government’s flood pools; compensation for diminished property values associated with now being a “flood property”; compensation for displacement costs (e.g. staying in a hotel, renting an apartment, temporary storage, utilities, etc.); compensation for diminished property values associated with the government’s taking of a flowage easement (i.e., the right to period-ically use your properties to store the rainfall runoff that is held back and controlled by the Addicks and Barker dams). We’re also seeking an award of attorneys’ fees, appraisal fees, en-gineering fees, and pre and post-judgment interest at the maximum lawful rate.
Compensation Phase Discovery
As you know, the Chief Judge of the Court of Federal Claims appointed me as Upstream Co-Lead Counsel for discovery and trial. The Court also appointed me to protect the rights of individual plaintiffs. Fact discovery for the compensation phase started on February 18th and is set to conclude on May 28th. Suffice to say, we’ve been very busy the last two months.
Consistent with our approach during the liability phase, we’ve adopted an extremely aggressive schedule and posture in our discovery requests. We drafted three separate requests for production of documents and served them on the government’s lawyers on February 20th, March 10th, and March 12th. We served interrogatories on April 8th (i.e., written questions which the government must answer under penalty of perjury).
We will be sending out deposition notices later today, and expect to begin taking depositions in the next 2 weeks. Kristin Hummel has already made arrangements to take those depositions via video conference so the government can’t use the COVID 19 situation to evade its dis-covery obligations. Consistent with the liability phase, I will be the lead lawyer for these dep-ositions, and am genuinely looking forward to getting back into action.
The primary purpose of these discovery requests is to get: (i) updated information from the Army Corps regarding their studies of the Addicks Barker dams and reservoirs (i.e., studies relating to the true risks of government-induced flooding); (ii) information about the amount of damage the Army Corps caused when it used your properties to store impounded rainfall runoff; (iii) what property rights the government contends it took from you when it used your homes as a detention pond to save the city; (iv) whether the government intends to try and offset compensation awards with prior FEMA grants, flood insurance payouts, GLO payments, and other items; (v) updated information from FEMA about the flood risks faced by the Upstream community and confirmation that the families and businesses inside the government’s flood-control reservoir will be eligible for disaster relief in the future; and (vi) the government’s position regarding your rights to compensation and other federal aid pursuant to the Uniform Relocation Act.
We’ve also been responding to the government’s discovery requests. Part of this was providing final Personal Property Inventories (“PPI”) for the test-property plaintiffs. The PPI is the list of all personal property destroyed and/or damaged by the Addicks and Barker flood pools. We previously provided comprehensive photos, videos, and written descriptions during the liability phase of the flood damage caused by the government’s decision to impose flooding on private property with no legal right.
We understand that time is of the essence in pushing this case forward, and we will continue to lead the charge when in the compensation phase. We are scheduled to have an oral argument before Judge Lettow on April 28th, and will have more information after that hearing.
The Date and Extent of the Government's Taking
Another big project we just completed was preparing and submitting legal briefing regarding the date and extent of the government’s taking. Part of Judge Lettow’s job is to decide the date the government physically invaded (and took) your property, and the extent of that taking. Here is a summary of that briefing:
The Date of the Taking. The date of the taking is important because it establishes the date for appraising the properties the government flooded.
We argued that the date of take was the date of the maximum government-induced reservoir pool flooding: August 30, 2017. We noted that controlling precedent leaves no other possibility. Using August 30th would mean that the appraisers would determine the fair market value of your home or business immediately before the government-induced flooding.
The government, on the other hand, argued that the date of taking should be when the dams were originally built back in 1948. Not only did the government ignore the controlling precedent, it didn’t even attempt to cite a single case supporting its argument. I believe this is be-cause the government knows the law in this area is perfectly clear: the date of the taking is the date when the government’s reservoir pools physically invaded your properties. Why is the government taking such a weak and bizarre position? It wants to use 1948 land values instead of August 30, 2017 pre-flood property values.
As y’all know, back in 1948, there were very few homes behind the dams. The land use at that time was rural and unimproved. In fact, the government could have bought all the land the reservoirs need to hold 100% of the impounded runoff for approximately $700,000. In sum-mary, we are very optimistic that Judge Lettow will choose the August 30th date.
The Extent of the Taking. The extent of the taking is also important, as it establishes the maximum extent of the property rights the government appropriated. As per our prior news-letters, the government prevented $7 billion in additional downstream flood damages by using your properties as part of the Addicks and Barker reservoirs during Harvey. The Court already found that the government took a “flowage easement,” which is the legal term for an easement recognizing that the government took the right to periodically overflow, flood, and submerge private property in connection with the Army Corps’ authorized use and operation of the Addicks Barker Flood Control Project.
As to the extent of the easement, we argued that the maximum extent of the easement should not exceed the physical scope of the reservoir pool flooding on your property on August 30, 2017. Here again, the law directs this approach. Since we have excellent August 30th overhead imagery taken by NOAA, elevation information for the entire Upstream area, and thousands of photos we obtained through discovery and from our clients, showing the maximum extent of flooding on August 30th is a relatively straightforward exercise. As an example, the photos below illustrates how we can identify the boundaries of the August 30th reservoir flood pools:
On the other hand, however, the government’s position regarding the extent of the easement is at odds with the law, common sense, and fundamental notions of fair play and substantial justice. Instead of using the August 30th reservoir pools to define the extent of the easement, the government seeks to impose a permanent flowage easement over lands that its flood-control project did not flood during Harvey, or at any other time. In other words, the govern-ment seeks to appropriate property rights for tracts that the government did not inundate or otherwise physically possess with its impounded rainfall runoff.
Specifically, the government seeks to impose a flowage easement up to 109.6 feet in Addicks and 103.1 feet in Barker. These elevations are higher than the corresponding August 30th res-ervoir flood pools of 109.1 feet and 101.6 feet. According to the Army Corps’ operative Water Control Manual’s elevation-area capacity tables, the government’s proposal would impose flowage easements on 1,280 acres of private land that weren’t submerged by the government’s reservoir pools: 423 acres behind Addicks and 857 acres behind Barker. As depicted below, government-owned reservoir land ends at 103 feet in Addicks and 95 feet in Barker:
There is literally no support for the government’s argument. In our brief, we noted that adopt-ing the government’s position would violate constitutional rights of everyone whose property was not inundated on August 30th. This is because controlling precedent clearly states that you are not allowed to file a 5th Amendment claim until the government floods you.
To the extent there are going to be any flowage easements recorded in the real property rec-ords, we’re also asking that Judge Lettow require that the Army Corps file notices of the flow-age easements it took through inverse condemnation. One of the reasons for doing this is we believe it is unfair and unjust to require Upstream plaintiffs to sign a document transferring valuable property rights that the government took without permission or prior payment. This approach will also help protect our clients from baseless accusations that the clients are some-how responsible for the government’s choices and actions. We were able to locate a court case where this approach was used, and I based our proposed notice from real property filings made in connection with that court case.
In summary, as with the date of the taking, we are confident that Judge Lettow will adopt our arguments instead of the government’s.
We Are Still Accepting Eligible Claims
To date over 1,300 Upstream families and business have hired us to prosecute their 5th Amend-ment cases. According to the Court’s official records, we have filed  roughly 65% of all up-stream cases--more than all other law firms combined.
As per our prior newsletters, we feel strongly about holding the government accountable for its decision to sacrifice Upstream properties to save the City of Houston. After all, the entire point of the Takings Clause is to protect us from the government, and to prohibit the govern-ment forcing some people to bear the financial burden that should, in all fairness and justice, be borne by the public as a whole.
It isn’t too late to file a claim. We’re still accepting eligible clients on our standard 25% con-tingency agreement. It doesn’t matter if you had flood insurance, received FEMA aid, or have an SBA loan. None of these disqualify eligible claimants from filing a lawsuit.
The law is crystal clear that you have to file a claim to receive an award. In other words, people who do nothing will get nothing. After the 6 year statute of limitation expires in August of 2023, it will be too late.
The government is counting on thousands of eligible claimants getting nothing because they did nothing. Please help us educate the Upstream community about their rights to Just Com-pensation under the 5th Amendment by directing them to myreservoirclaim.com.
Armi Easterby, Partner
WILLIAMS HART BOUNDAS EASTERBY, LLP
Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs
 Of course, we will have experts assist us during the compensation trial to delineate the reservoir pool boundaries, as well as the maximum vertical and lateral extent on each of the test-properties.
 Please bear in mind that Court records only report filed cases (i.e., other law firms may have a large number of clients with unfiled cases, which would not show up on the Court’s filing portal). We have no idea why others law firms would delay filing their clients’ cases for weeks, months, or even years, and express no opinions on such practices.