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Q: Who is responsible for the Addicks and Barker dams and reservoirs?
A: Both the Addicks and Barker dams and reservoirs are operated and maintained by the U.S. Army Corps of Engineers (the “Corps”). Neither Harris nor Fort Bend County have any responsibility for the construction, design, operation, or maintenance of the Addicks and Barker dams and reservoirs. As such, the dams and reservoirs are the sole responsibility of the United States government.
A: Both the Addicks and Barker dams and reservoirs are operated and maintained by the U.S. Army Corps of Engineers (the “Corps”). Neither Harris nor Fort Bend County have any responsibility for the construction, design, operation, or maintenance of the Addicks and Barker dams and reservoirs. As such, the dams and reservoirs are the sole responsibility of the United States government.
Q: What is the purpose of the Addicks and Barker dams and reservoirs?
A: The purpose of the Addicks and Barker dams and reservoirs is to protect downtown Houston and the Houston ship channel from damaging flooding. Importantly, Addicks and Barker provide no flood-control benefits to the Upstream community. In fact, as the Corps admitted in its October 2020 Interim Report, the Addicks and Barker reservoir pools “pose an unacceptable risk to health and human safety, private property, and public infrastructure.”
Over time, the Corps made substantial changes to Addicks and Barker. Unfortunately for the upstream community, these changes coupled with increasingly severe rainfall events in the Houston region increased the likelihood of reservoir flood pools invading private property. According to the Corps’, the reservoirs’ maximum pool elevations are 116 feet and 109.9 feet for Addicks and Barker, respectively. However, the Corps only purchased enough reservoir land to store 103 feet and 95 feet of impounded stormwater. As such, should the reservoirs reach their maximum pool elevations, some upstream homes would be 12-15 feet underwater.
During significant weather events the Corps uses the dams to impound all stormwater entering the reservoirs’ respective watersheds. The Addicks watershed comprises ~130 square miles, and includes South Mayde Creek, Bear Creek, Langham Creek, Horsepen Creek, and Turkey Creek. The Barker watershed comprises ~136 square miles, and includes Willowfork Diversion Channel, Upper Buffalo Bayou/Cane Branch, and Mason Creek. The dams, which are about 25.5 miles long, were originally built in the 1940s in response to the 1929 and 1935 flooding of downtown Houston.
A: The purpose of the Addicks and Barker dams and reservoirs is to protect downtown Houston and the Houston ship channel from damaging flooding. Importantly, Addicks and Barker provide no flood-control benefits to the Upstream community. In fact, as the Corps admitted in its October 2020 Interim Report, the Addicks and Barker reservoir pools “pose an unacceptable risk to health and human safety, private property, and public infrastructure.”
Over time, the Corps made substantial changes to Addicks and Barker. Unfortunately for the upstream community, these changes coupled with increasingly severe rainfall events in the Houston region increased the likelihood of reservoir flood pools invading private property. According to the Corps’, the reservoirs’ maximum pool elevations are 116 feet and 109.9 feet for Addicks and Barker, respectively. However, the Corps only purchased enough reservoir land to store 103 feet and 95 feet of impounded stormwater. As such, should the reservoirs reach their maximum pool elevations, some upstream homes would be 12-15 feet underwater.
During significant weather events the Corps uses the dams to impound all stormwater entering the reservoirs’ respective watersheds. The Addicks watershed comprises ~130 square miles, and includes South Mayde Creek, Bear Creek, Langham Creek, Horsepen Creek, and Turkey Creek. The Barker watershed comprises ~136 square miles, and includes Willowfork Diversion Channel, Upper Buffalo Bayou/Cane Branch, and Mason Creek. The dams, which are about 25.5 miles long, were originally built in the 1940s in response to the 1929 and 1935 flooding of downtown Houston.
Q: How did the Corps operate Addicks and Reservoir during Harvey?
A: During Harvey, the Corps operated Addicks and Barker pursuant to its 2012 water control manual. Section 7-05 of the Corps’ water control manual states that “the general plan for reservoir regulation will be to operate the reservoirs in a manner that will utilize, to the maximum extent possible, the available storage to prevent the occurrence of damaging stages on Buffalo Bayou…” During the May 2019 liability trial, the Corp’s designated witness admitted that this storage plan includes all land in the reservoirs behind the embankments, including land the government does not own. The Corps updated its water control manual in 2019. As before, it stipulates that the Corps will continue to use private upstream land for reservoir storage purposes.
This means that the Corps’ operating concept will, when necessary, impose flooding on private upstream property to protect other parts of Houston. This is important when one considers that the Corps only owns ~65% of the total reservoir storage capacity in Addicks and ~50% of the total reservoir storage capacity in Barker. The Corps refers to this as “transferred risk” (i.e., taking action to reduce risk in 1 area by shifting that burden to another area). In its October 2020 Interim Report, the Corps admitted that there has been a transfer of risk to the upstream community.
During the May 2019 liability trial, Armi Easterby introduced evidence and sworn testimony proving that the Corps deliberately used private upstream land to store billions of gallons of contaminated stormwater held back and controlled by the dams. Hence, as a direct result of the Corps use of the dams during Harvey, thousands of upstream property owners were submerged for several days. In December 2019, the trial court ruled that, based on the facts proved during trial, the government is liable under the 5th Amendment of the U.S. Constitution.
A: During Harvey, the Corps operated Addicks and Barker pursuant to its 2012 water control manual. Section 7-05 of the Corps’ water control manual states that “the general plan for reservoir regulation will be to operate the reservoirs in a manner that will utilize, to the maximum extent possible, the available storage to prevent the occurrence of damaging stages on Buffalo Bayou…” During the May 2019 liability trial, the Corp’s designated witness admitted that this storage plan includes all land in the reservoirs behind the embankments, including land the government does not own. The Corps updated its water control manual in 2019. As before, it stipulates that the Corps will continue to use private upstream land for reservoir storage purposes.
This means that the Corps’ operating concept will, when necessary, impose flooding on private upstream property to protect other parts of Houston. This is important when one considers that the Corps only owns ~65% of the total reservoir storage capacity in Addicks and ~50% of the total reservoir storage capacity in Barker. The Corps refers to this as “transferred risk” (i.e., taking action to reduce risk in 1 area by shifting that burden to another area). In its October 2020 Interim Report, the Corps admitted that there has been a transfer of risk to the upstream community.
During the May 2019 liability trial, Armi Easterby introduced evidence and sworn testimony proving that the Corps deliberately used private upstream land to store billions of gallons of contaminated stormwater held back and controlled by the dams. Hence, as a direct result of the Corps use of the dams during Harvey, thousands of upstream property owners were submerged for several days. In December 2019, the trial court ruled that, based on the facts proved during trial, the government is liable under the 5th Amendment of the U.S. Constitution.
Q: Why didn’t the Corps buy all the land it needed in the Reservoirs?
A: The Corps didn’t buy all the land it needed to save money. Back in the 1940s, the Corp conducted a cost benefit analysis, and determined that the cost of paying damages to upstream landowners was less than the cost of buying the then-undeveloped land. In other words, and as the court found in the December 2019 liability decision, the Corps was “willing to take the ensuing risk” of having to pay damages to upstream landowners.
As a result, the Corps only purchased 12,460 acres of reservoir land for Addicks and 12,060 for Barker. Internal Corps documents introduced into evidence during the liability trial show the Corps has always known there isn’t enough government owned land to store all the stormwater held back by the dams. One internal memo discussed the “critical need” to “bring the reservoirs to current capacity standards to avoid catastrophic damages.” Another internal memo talked openly of the Corps’ ongoing operating concept of imposing flooding on private upstream lands.
The Corps also discussed internally how its operating concept was illegal. Indeed, one internal Corps’ memo noted that federal law clearly states that no federal agency shall make it necessary for a property holder to file a lawsuit to establish the taking of his or her property. That same legislation clearly provides that in no instance can “too high a cost” be used as justification for not acquiring land that will be, or may be, adversely impacted by project operations.
However, despite its awareness that its operation and use of the Addicks and Barker Dams and Reservoirs would submerge private property, the Corps repeatedly decided to take no action because it believed doing nothing was the cheapest option. Had the Corps complied with federal law it would have either purchased the upstream land or acquired “flowage” easements for these tracts. This, in turn, would have prevented upstream development in the reservoir pool area.
A: The Corps didn’t buy all the land it needed to save money. Back in the 1940s, the Corp conducted a cost benefit analysis, and determined that the cost of paying damages to upstream landowners was less than the cost of buying the then-undeveloped land. In other words, and as the court found in the December 2019 liability decision, the Corps was “willing to take the ensuing risk” of having to pay damages to upstream landowners.
As a result, the Corps only purchased 12,460 acres of reservoir land for Addicks and 12,060 for Barker. Internal Corps documents introduced into evidence during the liability trial show the Corps has always known there isn’t enough government owned land to store all the stormwater held back by the dams. One internal memo discussed the “critical need” to “bring the reservoirs to current capacity standards to avoid catastrophic damages.” Another internal memo talked openly of the Corps’ ongoing operating concept of imposing flooding on private upstream lands.
The Corps also discussed internally how its operating concept was illegal. Indeed, one internal Corps’ memo noted that federal law clearly states that no federal agency shall make it necessary for a property holder to file a lawsuit to establish the taking of his or her property. That same legislation clearly provides that in no instance can “too high a cost” be used as justification for not acquiring land that will be, or may be, adversely impacted by project operations.
However, despite its awareness that its operation and use of the Addicks and Barker Dams and Reservoirs would submerge private property, the Corps repeatedly decided to take no action because it believed doing nothing was the cheapest option. Had the Corps complied with federal law it would have either purchased the upstream land or acquired “flowage” easements for these tracts. This, in turn, would have prevented upstream development in the reservoir pool area.
Q: Why is there development in the reservoirs?
A: The simple answer is because the Corps enabled development. Beginning in the late 1970s, developers sought permission to extend upstream channel improvements onto government-owned land. Initially, the Corps denied these requests because it knew channelization would result in in larger and more frequent reservoir pools. However, in 1981 the Corps reversed its decision, and allowed requests to build improved channels on government-owned land. Thus, the Corps itself enabled the development of thousands of residences and businesses in the reservoirs.
A: The simple answer is because the Corps enabled development. Beginning in the late 1970s, developers sought permission to extend upstream channel improvements onto government-owned land. Initially, the Corps denied these requests because it knew channelization would result in in larger and more frequent reservoir pools. However, in 1981 the Corps reversed its decision, and allowed requests to build improved channels on government-owned land. Thus, the Corps itself enabled the development of thousands of residences and businesses in the reservoirs.
Q: What is an Inverse Condemnation Claim?
A: Normally, when the Government decides that it needs to take land for a public purpose it files a condemnation case and pays the owner Just Compensation prior to taking the property. An inverse condemnation case works backwards: the Government takes the property first, and the property owner must file a lawsuit to recover Just Compensation.
Inverse condemnation cases involving Corps-induced flooding are not new—in fact, the U.S. Supreme Court decided long ago that land can be “taken” in the constitutional sense by occupation of private land by floodwaters controlled by the Corps. Stated simply, government-induced flooding can constitute a taking of property for which Just Compensation is owed.
It is important to know that an inverse condemnation action is not a “tort” case and doesn’t require proof that the Corps was negligent in its design, operation, or use of the Addicks and Barker Dams and Reservoirs. Instead, inverse condemnation cases involve highly specialized and complex issues of constitutional law, which must be brought in the Court of Federal Claims. Armi Easterby has been licensed in the Court of Federal Claims for over 20 years.
A: Normally, when the Government decides that it needs to take land for a public purpose it files a condemnation case and pays the owner Just Compensation prior to taking the property. An inverse condemnation case works backwards: the Government takes the property first, and the property owner must file a lawsuit to recover Just Compensation.
Inverse condemnation cases involving Corps-induced flooding are not new—in fact, the U.S. Supreme Court decided long ago that land can be “taken” in the constitutional sense by occupation of private land by floodwaters controlled by the Corps. Stated simply, government-induced flooding can constitute a taking of property for which Just Compensation is owed.
It is important to know that an inverse condemnation action is not a “tort” case and doesn’t require proof that the Corps was negligent in its design, operation, or use of the Addicks and Barker Dams and Reservoirs. Instead, inverse condemnation cases involve highly specialized and complex issues of constitutional law, which must be brought in the Court of Federal Claims. Armi Easterby has been licensed in the Court of Federal Claims for over 20 years.
Q: Did the Corps obtain flowage easements on private property prior to Harvey?
A: No. During our pre-suit investigation Armi Easterby used the Freedom of Information Act to obtain internal Corps documents that proved the Corps had never obtained flowage easements giving it the right to inundate private property. Next, during the May 2019 liability trial we proved that “Plaintiffs are owners of private property no subject to flowage easements” and that the Corps “had no legal right to cause flood waters to enter the properties.”
In the trial court’s December 2019 liability ruling, it found that, effective August 30, 2017, the Corps had appropriated a permanent flowage easement by flooding the upstream properties that lay within the boundaries of the Harvey reservoir pools (109.1 feet and 101.6 feet in Addicks and Barker, respectively, as measured by USGS gauges). This so-called “easement area” occupies over 7,000 acres of privately-owned land. However, the Corps has never recorded these flowage easements in the county real property records. As such, the public has no way of knowing that these easements exist
A: No. During our pre-suit investigation Armi Easterby used the Freedom of Information Act to obtain internal Corps documents that proved the Corps had never obtained flowage easements giving it the right to inundate private property. Next, during the May 2019 liability trial we proved that “Plaintiffs are owners of private property no subject to flowage easements” and that the Corps “had no legal right to cause flood waters to enter the properties.”
In the trial court’s December 2019 liability ruling, it found that, effective August 30, 2017, the Corps had appropriated a permanent flowage easement by flooding the upstream properties that lay within the boundaries of the Harvey reservoir pools (109.1 feet and 101.6 feet in Addicks and Barker, respectively, as measured by USGS gauges). This so-called “easement area” occupies over 7,000 acres of privately-owned land. However, the Corps has never recorded these flowage easements in the county real property records. As such, the public has no way of knowing that these easements exist
Q: Is this a class action case?
A: While several class action lawsuits relating to the Addicks and Barker flooding during and after Harvey have been filed by various attorneys, none have been certified as class actions. And, on December 15, 2021, the Court of Federal Claims denied a motion to certify a liability class action. As such, at present this is not a class action case.
Class actions in the Court of Federal Claims are substantially different than typical class actions. In the class action context, the Court of Federal Claims uses CFC Rule 23, which only allows “opt-in” classes, as opposed to the traditional opt-out class actions. CFC cases have explained that CFC Rule 23 requires an “affirmative action on the part of every potential plaintiff.” This means that all property owners will have make the affirmative choice to “opt in” a class action if one is ever certified.
A: While several class action lawsuits relating to the Addicks and Barker flooding during and after Harvey have been filed by various attorneys, none have been certified as class actions. And, on December 15, 2021, the Court of Federal Claims denied a motion to certify a liability class action. As such, at present this is not a class action case.
Class actions in the Court of Federal Claims are substantially different than typical class actions. In the class action context, the Court of Federal Claims uses CFC Rule 23, which only allows “opt-in” classes, as opposed to the traditional opt-out class actions. CFC cases have explained that CFC Rule 23 requires an “affirmative action on the part of every potential plaintiff.” This means that all property owners will have make the affirmative choice to “opt in” a class action if one is ever certified.
Q: How long do these types of cases take?
A: Armi Easterby, serving as co-lead counsel, won the upstream liability trial in December of 2019. The compensation phase of the trial (i.e., the phase that will determine how much plaintiffs are owed for the deliberate flooding of their property) was supposed to be held in November 2020. Unfortunately, COVID-related delays have delayed that trial, which is now tentatively set for March of 2022.
In spite of repeated delays, Armi Easterby and his team are ready to go the distance. While the delays have been frustrating, they will not change our commitment to hold the federal government accountable for its decision to impose flooding on private property with no legal right.
A: Armi Easterby, serving as co-lead counsel, won the upstream liability trial in December of 2019. The compensation phase of the trial (i.e., the phase that will determine how much plaintiffs are owed for the deliberate flooding of their property) was supposed to be held in November 2020. Unfortunately, COVID-related delays have delayed that trial, which is now tentatively set for March of 2022.
In spite of repeated delays, Armi Easterby and his team are ready to go the distance. While the delays have been frustrating, they will not change our commitment to hold the federal government accountable for its decision to impose flooding on private property with no legal right.
Q: What does Lead Counsel do?
A: As Co-Lead Counsel, Mr. Easterby is responsible for conducting pre-trial discovery, arguing important motions, and serving as lead trial counsel. Armi Easterby was also appointed to protect the interests of individual upstream plaintiffs. Armi and his team currently represent roughly 65% of all upstream plaintiffs and are honored to serve in the capacity of co-lead counsel.
Armi is no stranger to serving as court-appointed counsel. Over the past twenty-five years, Armi has devoted most of his time to complex environmental litigation, including litigating Oil Pollution Act claims, property damage claims related to mass-incidents, amongst others. This work has encompassed serving as court-appointed lead counsel in consumer class actions, as well as “mass actions” relating to oil spills, aquifer contamination, property damage claims related to man-made wildfires, and various pharmaceutical and medical device litigation
A: As Co-Lead Counsel, Mr. Easterby is responsible for conducting pre-trial discovery, arguing important motions, and serving as lead trial counsel. Armi Easterby was also appointed to protect the interests of individual upstream plaintiffs. Armi and his team currently represent roughly 65% of all upstream plaintiffs and are honored to serve in the capacity of co-lead counsel.
Armi is no stranger to serving as court-appointed counsel. Over the past twenty-five years, Armi has devoted most of his time to complex environmental litigation, including litigating Oil Pollution Act claims, property damage claims related to mass-incidents, amongst others. This work has encompassed serving as court-appointed lead counsel in consumer class actions, as well as “mass actions” relating to oil spills, aquifer contamination, property damage claims related to man-made wildfires, and various pharmaceutical and medical device litigation
Q: Is there a Deadline for Filing my Inverse Condemnation Claim?
A: Yes. The applicable statute of limitations expires six (6) years after the “accrual” of the inverse condemnation claim. The trial court has ruled that the upstream claim accrued in late August of 2017, and therefore that statute of limitations for the government’s taking of private property will expire in late August 2023. Similarly, the statute of limitations associated with the government’s use of private property during and after the Tax Day 2016 weather event would be in mid-April 2022. We recommend that you speak to an attorney about the statute of limitations for your case.
A: Yes. The applicable statute of limitations expires six (6) years after the “accrual” of the inverse condemnation claim. The trial court has ruled that the upstream claim accrued in late August of 2017, and therefore that statute of limitations for the government’s taking of private property will expire in late August 2023. Similarly, the statute of limitations associated with the government’s use of private property during and after the Tax Day 2016 weather event would be in mid-April 2022. We recommend that you speak to an attorney about the statute of limitations for your case.
Q: Did the Corps know “upstream” Properties would flood?
A: Yes, the Corps knew that its operating concept would impose flooding on private upstream land. Part of what Armi Easterby proved at the May 2019 liability trial was that the flooding was intended and foreseeable. Evidence admitted during that trial conclusively proved the Corps knew its management and operation of the dams would inundate, and substantially damage, upstream homes and businesses.
Some of this evidence included internal Corps documents, which showed the Corps knew its use of the dams to impound Harvey’s stormwater would submerge thousands of upstream homes and businesses. The reason for this is simple: “both Addicks and Barker Dams can impound or store more water than the Corps owns real estate to store it on.” The Corps was similarly aware that its use of the dams would “severely impact” thousands of properties within the dams’ project boundaries for an extended period.
But the evidence also showed that during the 1990s and 2000s the Corps had completed extensive surveys of the upstream properties. The Corps conducted these surveys to determine the amount of flood damage that would result from the Corps’ flooding of upstream properties. Information recorded during these field surveys included the street address, owners’ names, square footage of structures, the ground elevation of structures, and the specific “flooding threshold” for over 10,000 upstream buildings. In other words, the Corps knew where and at what elevation water would enter each property. Armed with this evidence, the Court found, “the government had the requisite intent to invade plaintiffs’ properties because the Corps had been well aware that storms capable of overflowing government-owned land were likely to occur, and despite that knowledge it still intended to occupy the property concerned without lawful authority or excuse.”
Most recently, in October 2020 the Corps issued a public report admitting that high water levels in Addicks and Barker reservoirs will extend beyond government owned land and “pose an unacceptable risk to health and human safety, private property, and public infrastructure.” In that report, the Corps considered several alternatives to reduce the downstream flood risk. Importantly, however, the Corps admitted that none of these alternatives reduce the duration of upstream reservoir pool flooding
A: Yes, the Corps knew that its operating concept would impose flooding on private upstream land. Part of what Armi Easterby proved at the May 2019 liability trial was that the flooding was intended and foreseeable. Evidence admitted during that trial conclusively proved the Corps knew its management and operation of the dams would inundate, and substantially damage, upstream homes and businesses.
Some of this evidence included internal Corps documents, which showed the Corps knew its use of the dams to impound Harvey’s stormwater would submerge thousands of upstream homes and businesses. The reason for this is simple: “both Addicks and Barker Dams can impound or store more water than the Corps owns real estate to store it on.” The Corps was similarly aware that its use of the dams would “severely impact” thousands of properties within the dams’ project boundaries for an extended period.
But the evidence also showed that during the 1990s and 2000s the Corps had completed extensive surveys of the upstream properties. The Corps conducted these surveys to determine the amount of flood damage that would result from the Corps’ flooding of upstream properties. Information recorded during these field surveys included the street address, owners’ names, square footage of structures, the ground elevation of structures, and the specific “flooding threshold” for over 10,000 upstream buildings. In other words, the Corps knew where and at what elevation water would enter each property. Armed with this evidence, the Court found, “the government had the requisite intent to invade plaintiffs’ properties because the Corps had been well aware that storms capable of overflowing government-owned land were likely to occur, and despite that knowledge it still intended to occupy the property concerned without lawful authority or excuse.”
Most recently, in October 2020 the Corps issued a public report admitting that high water levels in Addicks and Barker reservoirs will extend beyond government owned land and “pose an unacceptable risk to health and human safety, private property, and public infrastructure.” In that report, the Corps considered several alternatives to reduce the downstream flood risk. Importantly, however, the Corps admitted that none of these alternatives reduce the duration of upstream reservoir pool flooding
Q: Did the Corps know “downstream” Properties would flood?
A: Yes, the Corps knew that opening the floodgates would flood properties downstream of the Addicks and Barker dams. The Corps’ internal documents demonstrate it knew higher release rates would flood downstream properties. In fact, by using its own elevation surveys, the Corps knew that opening the floodgates would submerge “a large percentage” of downstream structures
A: Yes, the Corps knew that opening the floodgates would flood properties downstream of the Addicks and Barker dams. The Corps’ internal documents demonstrate it knew higher release rates would flood downstream properties. In fact, by using its own elevation surveys, the Corps knew that opening the floodgates would submerge “a large percentage” of downstream structures
Q: Wasn’t the flooding an “Act of God” or an Emergency?
A: No, the government-induced flooding of the upstream community wasn’t an “Act of God” or an emergency. In its legal sense, an “Act of God” applies only to natural events as opposed to man-made events. The Corps’ use of the dams during Harvey to hold back and control contaminated stormwater caused the upstream flooding. Or stated simply, Harvey didn’t flood the upstream property owners, the Corps did.
Additionally, “Act of God” events refer to unforeseeable storms. Here, the evidence showed that the Corps designed the dams to impound rainfall from storms larger than Harvey. Accordingly, the Corps cannot claim that Harvey was an unforeseeable storm.
Nor was the Corps confronted with an emergency during or after Harvey. During Armi Easterby’s cross-examination of the Corps’ designated representative, Armi established that the Corp never declared a state of emergency during or after Harvey. Further, the evidence showed that it wasn’t an emergency that necessitated the flooding of private land, “but rather 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.” When, as here, the government is responsible for creating the supposed emergency, this defense cannot apply because the flooding that occurred was the direct result of the Corps’ calculated planning.
A: No, the government-induced flooding of the upstream community wasn’t an “Act of God” or an emergency. In its legal sense, an “Act of God” applies only to natural events as opposed to man-made events. The Corps’ use of the dams during Harvey to hold back and control contaminated stormwater caused the upstream flooding. Or stated simply, Harvey didn’t flood the upstream property owners, the Corps did.
Additionally, “Act of God” events refer to unforeseeable storms. Here, the evidence showed that the Corps designed the dams to impound rainfall from storms larger than Harvey. Accordingly, the Corps cannot claim that Harvey was an unforeseeable storm.
Nor was the Corps confronted with an emergency during or after Harvey. During Armi Easterby’s cross-examination of the Corps’ designated representative, Armi established that the Corp never declared a state of emergency during or after Harvey. Further, the evidence showed that it wasn’t an emergency that necessitated the flooding of private land, “but rather 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.” When, as here, the government is responsible for creating the supposed emergency, this defense cannot apply because the flooding that occurred was the direct result of the Corps’ calculated planning.
Q: Is one Government-induced flood enough to create a taking?
A: Yes, one government-induced flood is enough to create a compensable taking under the 5th Amendment. As the trial court stated in its December 2019 liability decision, “even a single flooding event may give rise to a taking where the defendant uses a permanent structure to ‘purposely flood a property once and expressly reserves the right to do so in the future.’”
As the U.S. Supreme Court has made clear, the liability analysis is focused on the severity of the harm rather than the frequency of flooding. This makes sense, as submersion of raw land is dramatically different than submersion of a private residence or business. In other words, while it may take repeated submersions to damage raw land, even a single submersion will inflict massive damage on a dwelling or a business. That being the case, it made no sense to allow the government to intentionally submerge Houston property-owners once for free.
A: Yes, one government-induced flood is enough to create a compensable taking under the 5th Amendment. As the trial court stated in its December 2019 liability decision, “even a single flooding event may give rise to a taking where the defendant uses a permanent structure to ‘purposely flood a property once and expressly reserves the right to do so in the future.’”
As the U.S. Supreme Court has made clear, the liability analysis is focused on the severity of the harm rather than the frequency of flooding. This makes sense, as submersion of raw land is dramatically different than submersion of a private residence or business. In other words, while it may take repeated submersions to damage raw land, even a single submersion will inflict massive damage on a dwelling or a business. That being the case, it made no sense to allow the government to intentionally submerge Houston property-owners once for free.
Q: What does “Just Compensation” include?
A: 5th Amendment Just Compensation includes the value of the property of which the owner has been deprived. Stated differently, the property owner is entitled to be restored to “as good a position pecuniarily as if his property had not been taken,” and “must be made whole.” Not all losses suffered by the claimant because of the taking are compensable, and the amount of compensation depends upon the circumstances in each case.
Prior court cases have established that Just Compensation includes diminished property values, reasonable and necessary remediation and repair costs (i.e., mucking out and repairing structures, landscaping, etc.), damaged personal property (e.g., furniture, clothing, etc.), and displacement costs. Additionally, applicable law entitles us to recover reasonable costs and expenses, including filing fees, appraisal fees, engineering fees, and other costs and expenses incurred in the litigation. The recovery of these costs and expenses would increase the gross recovery obtained
A: 5th Amendment Just Compensation includes the value of the property of which the owner has been deprived. Stated differently, the property owner is entitled to be restored to “as good a position pecuniarily as if his property had not been taken,” and “must be made whole.” Not all losses suffered by the claimant because of the taking are compensable, and the amount of compensation depends upon the circumstances in each case.
Prior court cases have established that Just Compensation includes diminished property values, reasonable and necessary remediation and repair costs (i.e., mucking out and repairing structures, landscaping, etc.), damaged personal property (e.g., furniture, clothing, etc.), and displacement costs. Additionally, applicable law entitles us to recover reasonable costs and expenses, including filing fees, appraisal fees, engineering fees, and other costs and expenses incurred in the litigation. The recovery of these costs and expenses would increase the gross recovery obtained
Q: Is this a class action case?
A: Not yet. While several class action lawsuits relating to the Addicks and Barker releases have been filed by various attorneys, none have been certified as class actions. However, it is possible that a class action could be certified in the future.
Class actions in the Court of Federal Claims are substantially different than typical class actions. In the class action context, the Court of Federal Claims uses CFC Rule 23, which only allows “opt-in” classes, as opposed to the traditional opt-out class actions. CFC cases have explained that CFC Rule 23 requires an “affirmative action on the part of every potential plaintiff.” This means that all property owners will have make the affirmative choice to “opt in” a class action when and if one is certified.
Now that the trial court has found the government liable under the 5th Amendment, we believe it makes sense to seek certification of a liability class. A liability class would enable us to extend the benefits associated with us winning the liability trial to the thousands of upstream plaintiffs that are still waiting for their day in court. We are in the process of working on a motion to certify a liability class and will update our FAQs when we do. Of course, each of our clients will have the opportunity to carefully consider our recommendation regarding whether it makes sense for them to opt-in to the liability class action, or any other class action.
A: Not yet. While several class action lawsuits relating to the Addicks and Barker releases have been filed by various attorneys, none have been certified as class actions. However, it is possible that a class action could be certified in the future.
Class actions in the Court of Federal Claims are substantially different than typical class actions. In the class action context, the Court of Federal Claims uses CFC Rule 23, which only allows “opt-in” classes, as opposed to the traditional opt-out class actions. CFC cases have explained that CFC Rule 23 requires an “affirmative action on the part of every potential plaintiff.” This means that all property owners will have make the affirmative choice to “opt in” a class action when and if one is certified.
Now that the trial court has found the government liable under the 5th Amendment, we believe it makes sense to seek certification of a liability class. A liability class would enable us to extend the benefits associated with us winning the liability trial to the thousands of upstream plaintiffs that are still waiting for their day in court. We are in the process of working on a motion to certify a liability class and will update our FAQs when we do. Of course, each of our clients will have the opportunity to carefully consider our recommendation regarding whether it makes sense for them to opt-in to the liability class action, or any other class action.
Q: Does it matter whether I have flood insurance?
A: No. Whether you have flood insurance has zero relevance as to the issue of whether the government is liable under the 5th Amendment. When it comes to damages, it also shouldn’t matter if you had flood insurance. This is because insurance payments should not reduce damages owed by the government under the “collateral source rule.” This rule provides that defendants are “not permitted to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to purchase insurance.” To be clear, the Corps will almost certainly argue that flood insurance payments should reduce the award of just compensation, and this is an important issue to be resolved in the forthcoming compensation trial.
A: No. Whether you have flood insurance has zero relevance as to the issue of whether the government is liable under the 5th Amendment. When it comes to damages, it also shouldn’t matter if you had flood insurance. This is because insurance payments should not reduce damages owed by the government under the “collateral source rule.” This rule provides that defendants are “not permitted to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to purchase insurance.” To be clear, the Corps will almost certainly argue that flood insurance payments should reduce the award of just compensation, and this is an important issue to be resolved in the forthcoming compensation trial.
Q: What if my property has previously flooded, or is in a FEMA floodplain?
A: Being in a FEMA floodplain does not automatically bar your inverse condemnation claim. However, your property’s vulnerability to flooding due to “natural conditions” may impact your inverse condemnation claim. This is because the plaintiff in an inverse condemnation action has the burden to prove that the government’s actions caused the submersion.
A: Being in a FEMA floodplain does not automatically bar your inverse condemnation claim. However, your property’s vulnerability to flooding due to “natural conditions” may impact your inverse condemnation claim. This is because the plaintiff in an inverse condemnation action has the burden to prove that the government’s actions caused the submersion.
Q: How do I find out if my property is in a FEMA floodplain?
A: We recommend that Harris County residents visit http://www.harriscountyfemt.org , and that Fort Bend County residents visit FBC Floodplain Mapping Tool. Simply enter your property’s address in the Address Search bar, and you will receive an immediate response indicating whether your property is in the FEMA floodway, 100-year floodplain, or 500-year floodplain.
Unfortunately, the Corps’ inundation affected hundreds of homes and businesses that were not located in a FEMA floodplain and had no history of prior flooding. Moreover, property owners were given almost no prior notice that their properties would be inundated, which made mitigating potential damage all but impossible.
A: We recommend that Harris County residents visit http://www.harriscountyfemt.org , and that Fort Bend County residents visit FBC Floodplain Mapping Tool. Simply enter your property’s address in the Address Search bar, and you will receive an immediate response indicating whether your property is in the FEMA floodway, 100-year floodplain, or 500-year floodplain.
Unfortunately, the Corps’ inundation affected hundreds of homes and businesses that were not located in a FEMA floodplain and had no history of prior flooding. Moreover, property owners were given almost no prior notice that their properties would be inundated, which made mitigating potential damage all but impossible.
Q: Do I still have a claim if I sell my property?
A: If you owned (or rented) the property as of August 30, 2017, you still have a claim even if you later sell the property (or lease another property). The U.S. Supreme Court has previously explained that because “compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, receives the payment.” Thus, under applicable precedent, individuals who owned the property at the time of the taking still have a claim even if they later decide to sell.
A: If you owned (or rented) the property as of August 30, 2017, you still have a claim even if you later sell the property (or lease another property). The U.S. Supreme Court has previously explained that because “compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, receives the payment.” Thus, under applicable precedent, individuals who owned the property at the time of the taking still have a claim even if they later decide to sell.
Q: Will you handle these cases on a contingent fee basis?
A: Yes, Armi Easterby is handling these inverse condemnation cases on a contingent fee basis. Under a contingent fee arrangement if there is no recovery you owe us nothing. Our standard fee is 25% of the gross recovery obtained. We are aware that other law firms are charging a 40% contingent fee, which is a fairly standard; however, we didn’t feel it was appropriate for a case of this magnitude, especially since it involves people’s largest investment: their homes.
Importantly, applicable law allows for the recovery of reasonable attorneys’ fees, appraisal fees, and engineering fees from the government as part of any successful judgment or settlement. The award of these fees would increase the gross recovery obtained (i.e., the gross recovery includes the award of damages, attorneys’ fees, appraisal fees, engineering fees, costs of court, pre- and post-judgment interest, and any other money recovered). We calculate our 25% contingent fee on this gross recovery, all with the overall goal of striving to ensure that the client is made whole.
A: Yes, Armi Easterby is handling these inverse condemnation cases on a contingent fee basis. Under a contingent fee arrangement if there is no recovery you owe us nothing. Our standard fee is 25% of the gross recovery obtained. We are aware that other law firms are charging a 40% contingent fee, which is a fairly standard; however, we didn’t feel it was appropriate for a case of this magnitude, especially since it involves people’s largest investment: their homes.
Importantly, applicable law allows for the recovery of reasonable attorneys’ fees, appraisal fees, and engineering fees from the government as part of any successful judgment or settlement. The award of these fees would increase the gross recovery obtained (i.e., the gross recovery includes the award of damages, attorneys’ fees, appraisal fees, engineering fees, costs of court, pre- and post-judgment interest, and any other money recovered). We calculate our 25% contingent fee on this gross recovery, all with the overall goal of striving to ensure that the client is made whole.
Q: Have you handled cases like this before?
A: Yes. In addition to winning the liability trial, Armi Easterby has been licensed in the U.S. Court of Federal Claims for over 20 years and continues to serve as court appointed as co-lead counsel for upstream claimants. Armi and his team have been representing individuals in connection with mass-incident cases for over 25 years and have a proven track-record of winning in high-stakes cases such as this one.
A: Yes. In addition to winning the liability trial, Armi Easterby has been licensed in the U.S. Court of Federal Claims for over 20 years and continues to serve as court appointed as co-lead counsel for upstream claimants. Armi and his team have been representing individuals in connection with mass-incident cases for over 25 years and have a proven track-record of winning in high-stakes cases such as this one.
Q: How do I hire you to handle my inverse condemnation claim?
A: Please submit an inquiry on www.myreservoirclaim.com, or call us. After you submit your contact information, you will receive a call from one of our attorneys to discuss your claim and to set up a free consultation. To be clear, we don’t accept all cases, only those cases that meet our internal criteria.
A: Please submit an inquiry on www.myreservoirclaim.com, or call us. After you submit your contact information, you will receive a call from one of our attorneys to discuss your claim and to set up a free consultation. To be clear, we don’t accept all cases, only those cases that meet our internal criteria.
Speak with a Case Evaluation Specialist Today:
713-230-2200
713-230-2200