Frequently Asked Questions

Below are some common questions home and business owners have related to the Army Corp of Engineers “controlled release” of water from the Barker and Addicks reservoirs that caused severe flooding. If you have any questions, don’t hesitate to contact us at (713) 999-4552.

Who is Responsible for the Addicks and Barker Reservoirs?

Both the Addicks and Barker reservoirs are operated and maintained by the U.S. Army Corps of Engineers (the “Corps”), and as such are the responsibility of the United States government. The Corps also owns specific reservoir property behind the dams. The dams are intended to serve as “detention” reservoirs, and pursuant to its standard operating procedures, during a large storm event the Corps impounds virtually all stormwater entering Addicks and Barker until the storm event ends. The Corps originally designed the reservoirs to release as much as 15,000 cubic feet per second (“cfs”) down Buffalo Bayou during major storms, but later reduced that flow rate to protect downstream property.

In 2010, the Corps reclassified both Addicks and Barker as Dam Safety Action Classification level 1. This is the most dangerous classification for a Corps dam, and means “the dam is almost certain to fail under normal operations” without intervention. Due to its concern of catastrophic dam failure, in mid-2010, the Corps created and implemented an interim operating procedure (the “Interim Procedure”).

Additionally, the Corps knew that at specific “pool elevations,” the stored stormwater would inundate private residences and businesses located behind the reservoirs. In other words, the Corps didn’t buy enough reservoir property, and instead decided to operate the dams knowing that during major storm events Upstream properties within the Reservoirs project boundaries would be subjected to “extended controlled inundations under the management of the Corps.”

Further, on August 28th – 30th, the Corps authorized releases from the Addicks and Barker reservoirs, which eventually reached 16,000 cubic feet per second (“CFS”). The Corps did this knowing that releases greater than 4,100 CFS would flood a large percentage of the “downstream” structures. While these releases may have been necessary to avoid greater damage, hundreds of West Houston property owners are now dealing with catastrophic damage to their homes and personal property due to the additional water flow.

What is an Inverse Condemnation Claim?

If you own residential or business property that was inundated by Addicks or Barker stormwater, you may an inverse condemnation claim for Just Compensation under the 5th Amendment’s Takings Clause. The 5th Amendment’s Takings Clause is designed to bar the government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.

Normally, the Government makes a determination that it needs to take land for a public purpose, and then condemns the land and pay the owner Just Compensation. An inverse condemnation case works backwards: the Government takes the property first, and the property owner is forced to file a lawsuit in order to recover Just Compensation.

The United States Supreme Court has held that claimants asserting an inverse condemnation claim associated with government-induced flooding must establish: (1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) the degree to which the invasion was intended, or was the foreseeable result of the government’s decision; (4) the flooding was the “direct, natural, or probable result” of the government’s decision; and (5) that the government’s decision had a substantial or severe impact on the affected property. Stated simply, government-induced flooding can constitute a taking of property for which Just Compensation is owed. Notably, proving an inverse condemnation case doesn’t require proof of negligence or wrongdoing.

How long do these types of cases take?

On November 20, 2017, the Chief Judge for the U.S. Court of Federal Claims (“CFC”) issued an Order appointing Williams Kherkher Partner Armi Easterby as Co-Lead Counsel, and also setting deadlines for the disposition of this case. The Court’s Order reflects that the Court intends on deciding the liability issue in or around October of 2018.

What does Lead Counsel do?

As Co-Lead Counsel, Mr. Easterby is responsible for conducting pre-trial discovery, drafting and responding to dispositive motions, and serving as trial counsel at the trial that will determine whether the Government is liable under the 5th Amendment’s Takings Clause for Army Corps’ operations of the Addicks and Barker Reservoirs before, during, and after Tropical Storm Harvey. Pursuant to the Co-Lead Counsel appointment, Mr. Easterby and Williams Kherkher are, together with three other lawyers, responsible for: (i) gathering and serving pre-trial disclosures and discovery documents on or before January 30th; (ii) completing pre-trial discovery, including expert discovery, between February 28th and May 31st; (iii) handling any motions for summary judgment between June 15th and July 31st; and (iv) serving as trial counsel for plaintiffs.

Is there a Deadline for Filing my Inverse Condemnation Claim?

On November 20, 2017, the Chief Judge for the U.S. Court of Federal Claims (“CFC”) issued an Order setting a deadline for filing amended complaints against the Government. Per that Order, the current deadline for filing amended complaints is January 15, 2018.

However, the January 15th deadline is not the same as the statute of limitations for an inverse condemnation claim. The applicable statute of limitations expires six (6) years after the “accrual” of the inverse condemnation claim. We believe that applicable law is clear that the inverse condemnation claim accrues at the time of the physical invasion of plaintiff’s property. For example, in Sponenbarger v. United States, 308 U.S. 256, 267 (1939), the Supreme Court held that a takings claim could be valid only after the plaintiff had actually experienced flooding imposed by federal action. Thus, under well-settled law the apprehension of flooding does not constitute a taking. Accordingly, we believe that the statute of limitations will expire in late August 2023.

Further, the inclusion of a landowner’s property in a survey, plat, or map of properties that are expected to be acquired and/or inundated does not constitute a taking. This is important to the extent any surveys, plats, or maps include language that private land could be subject to extended controlled inundation under the management of the U.S. Army Corps of Engineers.

Did the Corps know “upstream” Properties would flood?

As discussed above, the degree to which the flooding was intended or foreseeable is part of proving an inverse condemnation claim. Based on our internal investigation, we believe that the Corps was well aware that its management and operation of the dams would inundate “upstream” homes and businesses (i.e., properties located within the Reservoirs’ respective project boundaries). While the decision to make use of private property arguably served the public’s interest, the Corps knew its management and operation of the Addicks and Barker dams would cause major flooding and substantial damage to “upstream” property owners. The Takings Clause is designed to bar the government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.

Internal Corps documents show that the Corps knew that subdivisions behind the Reservoirs would be subjected to extended controlled inundations under the management of the Corps during storm events. For example, an internal 2011 Corps email obtained through a Freedom of Information Act Request states that, “both Addicks and Barker Dams can impound or store more water than the Corps owns real estate to store it on” and that “a large number of residents, businesses and infrastructure located within the maximum possible pools could be severely impacted for an extended period of time.” In other words, the Corps operates the Reservoirs such that it can store more floodwater than it owns property on which to store it.

On August 28th, the Corps admitted that “water from Addicks and Barker dams extend beyond government-owned reservoir land.” Stated simply, by August 28th the Corps had purposefully invaded private property by inundating hundreds of homes and businesses with stormwater trapped behind the Addicks and Barker dams

Did the Corps know “downstream” properties would flood?

The Corps’ internal documents also demonstrate it knew higher release rates would flood downstream properties. Indeed, despite knowing that higher release rates would cause downstream flooding, one of the Interim Procedure’s most significant changes was to increase the dams’ maximum allowable release rates. Using its own elevation surveys, the Corps determined that the lower level of homes near the West Beltway Bridge flood when the Corps discharges 4,100 cfs into Buffalo Bayou. At flows greater than 4,100 cfs, the Corps knew that “a large percentage” of structures between the bridges over Buffalo Bayou at North Wilcrest Drive and Chimney Rock would incur flood damage. In accordance with its own Flood Emergency Plans, the Corps prepared detailed “inundation” maps detailing the areas that would experience flooding at these higher release rates.

On August 28th, the Corps announced it was starting water releases immediately from Addicks and Barker dams. The Corps said it would start releasing around a total of 1,600 cfs, and would increase that to 8,000 cfs. The Corps subsequently decided to raise the release rates to 16,000 cfs – nearly four times the level associated with downstream flooding. As stated in its August 29th press release, “these additional releases have added to the out-of-banks flooding in neighborhoods along Buffalo Bayou.” Accordingly, the Corps knew these releases would flood downstream homes. While the decision to open the floodgates arguably served the public’s interest, it was foreseeable that doing so would cause increased flooding and substantial damage to “downstream” properties.

Is one Government-induced flood enough to create a taking?

The Government has already taken the position that, as a matter of law, a single flood is not a taking. We disagree, and believe that the Government has misstated the U.S. Supreme Court’s holding in Arkansas Game & Fish Comm’n v. United States. A recent Court of Federal Claims decision held that even one government-induced flood may trigger the Government obligation to pay just compensation:

it is conceivable that a takings might lie where defendant, using a permanent structure, purposely floods a property once and expressly reserves the right to do so in the future. In this instance, it is conceivable that defendant’s actions may be viewed not as an “isolated invasion,” but rather as reserving a flowage easement over the affected property.

Quebedeaux v. United States, 112 Fed. Cl. 317, 324 (2013). Here, the Government, using permanent structures (i.e., the Addicks and Barker Dams and Reservoirs), purposefully flooded thousands of properties. The Addicks and Barker dams are permanent flood control structures, and the Army Corps purposefully operates them to impound floodwater beyond the limits of Government-Owned Land. Accordingly, given the design, management, and operation of these dams, the Government has also expressly reserved the right to repeatedly flood private property in the future. As such, we believe that the Government is simply mistaken about this issue, and that it is unlikely that the Court will accept this argument.

What does “Just Compensation” include?

The 5th Amendment’s Taking Clause forbids the Government’s taking of private property for public use without “Just Compensation.” The United States Supreme Court has defined Just Compensation as 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.” The United States Supreme Court has reiterated that measuring Just Compensation is not amenable to a rigid formula, and that courts should adjust their approach to damages to fit the situation before them. Not all losses suffered by the claimant as a result of the taking are compensable, and the appropriate amount of damages depends largely upon the particular circumstances in each case.

Under “temporary taking” circumstances, such as the flooding associated with the Addicks and Barker dams, we believe the Government should pay Just Compensation for the “direct, natural, or probable results” of the Corps’ operation and management of the dams. As recognized by the U.S. Court of Appeals for the Federal Circuit, Just Compensation includes compensation for diminished property values, for the “cost to cure” damaged improvements (i.e. remediating and repairing permanent structures, landscaping, and fences), and for damaged personal property (e.g. furniture, clothing, etc.).

Additionally, we believe that applicable law entitles us to recover reasonable costs and expenses, including filing fees, appraisal fees, engineering fees, and other costs and expenses actually incurred in the litigation. The recovery of these costs and expenses would increase the gross recovery obtained, with the overall goal is to ensure that the client is made whole.

Aren’t there already class actions that cover me?

We are well aware of the public’s perception that class actions typically take far longer than standard cases, and are harder to win because of the extra hurdles associated with getting a class certified. We also understand that individual claimants may be reluctant to entrust their claim to attorneys they didn’t hire, and most likely have never met. The Government has repeatedly indicated that it will oppose class certification, and will likely seek an appeal of any order certifying a liability class.

Further, On November 20, 2017, Chief Judge Braden issued an Order stating that “the issue of class certification is premature at this juncture.” Williams Kherkher has not filed a class action lawsuit related to the issue of whether the Corps is liable under the 5th Amendment’s takings clause. Instead, we have filed five (5) individual lawsuits on behalf of 303 residents that live within the design pool area of the Addicks and Barker reservoirs. We will continue to file additional lawsuits on a rolling basis as we accept new clients. Further, one of the reasons Armi Easterby was appointed to serve as Co-Lead Counsel was to “ensure that the interests of individual plaintiffs are represented, since Williams Kherkher LLP represents only individual plaintiffs who, at this point, do not seek class treatment.”

Thus, 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. Additionally, 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. Accordingly, nobody is part of a class action until and unless it is certified by the Court, and individuals decide to “opt-in” that class action.

We agree with Chief Judge Braden’s statement that the issue of class certification is premature at this point in time. Property owners who have suffered a significant financial loss associated with the Corps’ authorized actions need more time before they decide whether or not they should “opt in” a class action. If and when the Court determines that the Government is liable, the Government may want to enter into a class action settlement agreement, which would ostensibly provide a procedural framework for compensating property owners. At that time, it may make more sense of individual claimants to opt in to that class, as by doing so they would ostensibly be entitled to just compensation under the 5th Amendment.

Does it matter whether I have flood insurance?

In order to maintain an inverse condemnation claim, a property owner does not need to have flood insurance – in fact, whether or not you have flood insurance doesn’t impact the strength of your inverse condemnation claim. As a practical matter, since virtually all flood insurance policies only cover up to $250,000 of damage to the dwelling and $100,000 to contents, many of the affected property owners will have uninsured damage. Accordingly, property owners with flood insurance should give serious thought to bringing an inverse condemnation action.

Property owners without flood insurance should seriously consider pursuing an inverse condemnation action, as it may be their best and only option to recover the money needed to repair and replace the damage to their homes, businesses, and personal property.

Does it matter if my property has previously flooded, or is in a floodplain?

The location of your property, as well as its history in prior storms may impact your inverse condemnation claim. However, simply being located in a floodplain does not automatically bar your inverse condemnation claim.

In 2012, the United States Supreme Court decided an inverse condemnation case related to temporary government-induced flooding. In that case, the property was in a floodplain, and had experienced flooding in the past. Importantly, however, the prior flooding was not comparable to the government-induced flooding giving rise to the inverse condemnation claim. The Court ultimately decided that temporary, government-induced flooding can trigger a compensable inverse condemnation claim.

How do I find out if my property is in a floodplain?

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 floodway, 100-year floodplain, or 500-year floodplain.

Unfortunately, the Corps’ inundation affected hundreds of homes and businesses that were not located in a 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.

What if I’d already flooded before the releases?

“Downstream” clients that may have experienced flooding prior to the August 28th releases can still seek Just Compensation under the 5th Amendment. The Corps’ decision to release millions of gallons of stormwater caused additional damage to several structures that had already taken on water, to say nothing of the fact that the Corps’ decision caused hundreds of downstream properties to be inundated for nearly two weeks. Tragically, many of these homes may have to completely torn down, as they’ve been exposed to raw sewage and toxic chemicals. Additionally, “downstream” property owners may have to elevate their homes to comply with the City of Houston’s permitting requirements.

Do I still have a claim if I sell my 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.” In 2009, the Court of Federal Claims addressed this issue and held that, under applicable precedent, the individuals who owned the property at the time of the taking were entitled to just compensation even if they’d subsequently sold their property. If you decide to engage our law firm and sell your flooded property, we will assist you by providing you with specific language to include in the sales contract. There is no additional charge or additional attorneys’ fee for this service.

If you are in the process of selling your home, we strongly encourage you to contact an attorney regarding your inverse condemnation claim, as it will be important to preserve evidence of the damages incurred before the sale closes.

Will you handle these cases on a contingent fee basis?

The Williams Kherkher law firm is handling these inverse condemnation cases on a contingent fee basis. Our standard fee is 25% of any recovery obtained after a suit is filed. This means 25% is the maximum contingent fee we will charge. If there is no recovery, you owe us nothing.

We are aware that other law firms are charging as much as 40%, and also seeking recovery of litigation expenses out of the client’s share of the recovery. This is a fairly standard contingent fee arrangement; however, we didn’t feel it was appropriate for a disaster of this magnitude, especially since it involves people’s largest investment: their homes.

Additionally, we believe that applicable law entitles us to recover reasonable attorneys’ fees from the Government as part of any judgment or settlement. The recovery of reasonably attorneys’ fees would increase the gross recovery obtained, and the overall goal is to ensure that the client is made whole.

Who pays for filing fees and other expenses of litigating my case?

We pay filing fees and all costs of litigating your case as part of our fee agreement, and you are never out-of-pocket for litigation expenses. Unlike most firms, Williams Kherkher will not reimburse itself for litigation expenses out of the Client’s share of a recovery. This means that the client will, at a minimum, receive 75% of any recovery obtained.

Additionally, we believe that applicable law entitles us to recover reasonable costs and expenses, including filing fees, appraisal fees, engineering fees, and other costs and expenses actually incurred in the litigation. The recovery of these costs and expenses would increase the gross recovery obtained, with the overall goal is to ensure that the client is made whole.

Have you handled cases like this before?

Yes, we have handled inverse condemnation and takings cases before. Armistead “Armi” Easterby, the Williams Kherkher partner overseeing these inverse condemnation cases, has been licensed in the U.S. Court of Federal Claims since January of 2000. Additionally, as discussed above, Mr. Easterby was recently appointed as Co-Lead Counsel.

How do I hire you to handle my inverse condemnation claim?

Please submit an inquiry 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.

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