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.

Historic Win in Upstream Inverse Condemnation Trial

Posted on Wednesday, December 18th, 2019 at 9:07 pm    

Yesterday, the United States Court of Federal Claims issued an official ruling in favor of Upstream homeowners and businesses on their Fifth Amendment inverse condemnation claims. Bottom Line Up Front: We Won!!

A full copy of the Order is available here. According to the government, this the largest inverse condemnation case in the history of the United States.

Judge Lettow’s ruling relates to a May 2019 trial for thirteen “test properties” located behind the Addicks and Barker dams. The purpose of the trial was to determine whether the government is liable under the Fifth Amendment, with the issue of damages being bifurcated for a separate trial. Over 30 witnesses were called to testify, including property owners, representatives from Harris County and Fort Bend County, personnel from the Army Corps of Engineers, as well as experts in hydrology, meteorology, and real estate valuation. The trial included a site inspection during which Judge Lettow personally viewed Addicks and Barker, and the surrounding neighborhoods. As y’all know from prior newsletters, the Court appointed me as Co-Lead Counsel for the Upstream case, which included handling the bulk of trial.

During the trial, we showed how the dams held back and controlled stormwater in two massive “flood pools,” which submerged over 7,000 acres of privately-owned land located “Upstream” of the dams’ respective embankments.

 photo of neighborhoods behind Barker dam

August 30, 2017 photo of neighborhoods behind Barker dam
submerged by Impounded Floodwaters

As stated in his Order, Judge Lettow found that the government’s actions relating to the Addicks and Barker Dams and the ensuing flooding of plaintiffs’ properties constituted a taking under the Fifth Amendment. “Thus, the court finds defendant liable.”
Here are some of the major points from the Court’s Order on liability.

The Government Caused the Flooding.
Throughout the liability trial the government relentlessly argued that Harvey’s rainfall was the cause of all flooding, and even went so far as to claim that we were taking an “extreme position” by filing a lawsuit. The government also tried to blame plaintiffs for buying homes in a “flood prone” area. Judge Lettow rejected these arguments. In truth, and as recognized in Judge Lettow’s ruling, the flooding that caused the taking was, “different in kind from that which had occurred naturally and from what plaintiffs had reason to anticipate,” because it was, “not the result of natural conditions but rather of deliberate government action.” P. 42. After considering the evidence, Judge Lettow held that plaintiffs met their burden of showing their flooding was the “direct, natural, or probable result” of the government’s activity.

The Flooding Was Intentional.
During trial we introduced evidence showing that the Corps’ standard operating procedure was (and still is) to intentionally use private property to store the water held back and controlled by the dams’ embankments. As explained by Judge Lettow, intent in this context means whether the government, “intended to occupy the pertinent property without lawful authority or excuse.” For example, we unearthed internal Corps’ “Reservoir Structure” maps, which clearly depict thousands of homes inside Addicks and Barker’s reservoir area:

Addicks Reservoir Structure Map

A big part of our trial plan was to provide the Court with overwhelming evidence showing that, “the Corps knew from the outset that the land it purchased was inadequate to hold the amount of water” that could be contained in the reservoirs. To that end, on the first day of trial I introduced a May 1973 Memo that the Williams Hart team unearthed during:

Cross-Examination of Army Corps Representative Robert Thomas During 1st Day of Trial

Cross-Examination of Army Corps Representative Robert Thomas During 1st Day of Trial

The Smoking Gun -- May 1973 Internal Corps Memo</p>
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<p>The Smoking Gun — May 1973 Internal Corps Memo</p>
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<p>This memo shows in plain terms that, nearly 50 years ago, the Corps created and embraced an, “operating concept of imposing flooding on private lands,” with no legal right. Judge Lettow’s Order cites to this memo repeatedly, which demonstrates that he recognized the significance of this document in deciding the Army Corps’ liability.</p>
<p>Crucially, Judge Lettow agreed that, “the government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms.” </p>
<p>Judge Lettow also noted another key document we dug up in discovery:  a 1974 Army Corps’ internal memo that predicted that Upstream development and how the Army Corps’ operating concept would eventually lead to the government damaging homes in the reservoirs during future storms:</p>
<div class= 1974 Internal Corps Memo Predicts Upstream Flooding and Damage

1974 Internal Corps Memo Predicts Upstream Flooding and Damage

The Government Benefited from the Taking.
Legally, we had to prove not only that the government-induced flooding was intentional (or foreseeable), but that the use of plaintiffs’ homes for Project operations conferred a benefit to the government. To this point, the trial testimony conclusively proved that use of Upstream homes and businesses located in the flood pools helped prevent $7 billion in additional damage during Harvey:

Trial Testimony of Robert Thomas Regarding Net Damages Prevented

Trial Testimony of Robert Thomas Regarding Net Damages Prevented

The Order clearly states that the government expropriated a benefit when it used Plaintiffs’ lands for flood-control purposes stating that, “in the case of Addicks and Barker, the government received a notable benefit at the expense of the upstream private property owners … the government protected downstream properties from an estimated $7 billion in losses during Harvey … while concurrently causing upstream properties to suffer from severe flooding.”

Proving that there was a massive benefit associated with the takings of the Upstream properties was really the cornerstone of the case, as the Fifth Amendment’s takings clause applies the fundamental notion that “the government cannot force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” As Judge Lettow’s Order recognizes, this is exactly what occurred in the Upstream case.

Government’s Liability Defenses Rejected.
The government raised various defenses during the liability trial, all of which were rejected. For example, “the government’s suggestion that this flooding is not a compensable taking because it was temporary and confined to a single flood event carries no water.” Next, in considering the government’s “emergency” defense, Judge Lettow observed that, “where, as here, the government is responsible for creating the emergency, granting the government immunity from liability under the necessity doctrine would ‘stretch the doctrine too far.’”

Will the Government Appeal?
We’ve had several clients ask us if the government will appeal Judge Lettow’s ruling. Under federal law, the government can ask for an “interlocutory appeal” (i.e., an interim appeal) of the ruling. However, since we still have to complete the damages phase of the case, the government doesn’t automatically have the right to immediately file an appeal. Instead, it has to get permission before appealing.

We will be speaking with the government’s lawyers in the coming weeks, and expect that this issue will be one of the points of discussion. As always, we’ll keep you updated regarding the status of any potential interim appeal.

There is Still Time to File New Claims
We understand that several of the Upstream property-owners were uncertain if we could win this case, and deferred hiring a legal team until we received a decision on the liability trial. To be clear, even though we just won 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 1,000 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.

Under the Court of Federal Claims’ rules, if you do nothing you get nothing. In order to receive compensation, Upstream individuals have to file a claim within the six-year statute of limitations. More information is available on our dedicated website for inverse condemnation claims against the Federal Government: https://www.myreservoirclaim.com/.

Upcoming Town Hall Meetings
We’ve deferred having town hall meetings because we were waiting for the Court’s liability decision. Now that we have it, we’ll be having town hall meetings in the coming weeks, and will be providing updates and answering questions. Kristin Hummel will be coordinating these town hall meetings, which we expect to occur in January 2020.

Lastly, I’d like to thank our clients for helping us secure a huge win in a historic case. Serving as Co-Lead Counsel is an honor and a privilege, and our entire team here at Williams Hart looks forward to progressing to the damages phase.

Thanks,
Armi

Armi Easterby, Partner
Williams Hart Boundas Easterby, LLP
Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs


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: 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.

/s/ Armi Easterby

Armi Easterby, Partner

WILLIAMS HART BOUNDAS EASTERBY, LLP

Appointed as Upstream Co-Lead Counsel for Individual Plaintiffs