Upstream Litigation Update - March 31, 2024
Government Appeals Court Decision, Awaiting Date for Oral Arguments
As expected, the government filed its notice of appeal in December 2022. The case will be appealed to the United States Court of Appeals for the Federal Circuit in Washington, D.C.
As of March 2024, the Court of Appeals has not set a date for oral arguments. After oral arguments, the court of appeals will issue its ruling. This ruling is expected by the Fall of 2024, but it could be received either sooner or later than that date.
In the appeal, the government is trying to reverse both of the upstream litigants’ trial court victories (liability and compensation). If the upstream litigants win, the government has the option of trying to appeal to the United States Supreme Court. It is very unlikely that the Supreme Court would agree to look at this case, but the process could add some time to the timeline.
Assuming a victory by the upstream litigants on all appellate fronts, the government will have no option but to settle all claims after that. That will be a process involving the claims of thousands of property owners. At this juncture it is difficult to project a timeline for completing that process.
The deadline to file these claims (statute of limitations) expired in August 2023. To date, the government has not paid any money to anyone in connection with any upstream claims.
Message to South Mayde Creek Residents in the Flood Pool
Statute of Limitations to File Claim Approaches
Content assembled by Judith McGlaughlin (One Creek West) and Mike Dach (Addicks Flood Mitigation Network). Content reviewed by Upstream Litigation Plaintiffs’ Attorney Daniel Charest (Burns Charest LLP).
In 2019, the Court of Federal Claims found that the federal government was liable to some homeowners who live upstream of the Addicks and Barkers Reservoirs for “taking” their property and using it as a permanent flow easement during Hurricane Harvey - without providing them with “just compensation” for that easement.
In November of 2022, the Court determined what “just compensation” is for the “test cases” in the 2019 lawsuit – collectively awarding them over $500,000 with interest. Compensation to damaged property owners is a one-time payment for obtaining a permanent flow easement.
The compensation ruling awarded any decrease in real estate market value, structural damages, personal property loss, the costs of being displaced during the flood event, and loss of rental income. Personal suffering, impairment of employment access, and recovery expenses reimbursed by personal insurance, FEMA, grants, and private donations were not included.
Many of the residents of the Mayde Creek subdivision who were not part of the original lawsuit are eligible to file a claim before the statute of limitations passes. Residents must have owned their properties at the time of the Harvey event. During Hurricane Harvey, the flood pool water level reached an elevation of 109.1 feet for Addicks Reservoir and 101.6 feet for Barker Reservoir.
According to the Court ruling, that is the elevation of the easement taken by the Government. When the Federal Government purchased land for the two reservoirs, it did not acquire property to the reservoirs’ highest design pool levels. A “fringe” of land then consisting mostly of undeveloped prairie and pasture was left unpurchased, and was later developed for homes and commercial use.
For those upstream property owners that were not part of the original lawsuit, they must file a claim before the statute of limitations passes - or by August 2023. In order for these claims to be vetted by August, upstream property owners are strongly encouraged to file well by June 2023 or earlier. Plaintiffs’ attorneys believe there are about 10,000 residents that are eligible to file a claim, but only about half that number have signed up.
The Federal Claims Court rulings list the following “Co-Lead Counsel for Upstream Plaintiffs”: Charles Irvine (Irvine & Connor PLLC) and Daniel Charest and Larry Vincent (Burns Charest LLP) and Edwin Armistead Easterby (William Hart Boundas Easterby, P.C.). The Federal Claims Court rulings also list “With them at trial were”: Vuk Vujasinovic (VB Attorneys, PLLC), Lawrence Dunbar (Dunbar Harder PLLC), and Amanda Klevorn (Burns Charest LLP).
Those residents who sign up will have substantial time (maybe years) to provide loss documentation to a case manager assigned by the plaintiff's attorney. Losses to real estate property can include structural damage to the house, garage, and driveway (cracks due to settling). Losses to personal property can include damages to automobiles, appliances, clothes, food, and furniture.
In early 2023, the federal government appealed the Court’s ruling. The plaintiffs have cross-appealed, with the hope of gaining a better position in the “just compensation” calculations. The appeals process could take another 1-1/2 to 2 years before compensation is awarded.
Despite the appeal, however, the statute of limitations for filing a claim is unchanged. If you have not filed a claim by August 2023 (preferably earlier, to allow your claim to be vetted), then there will be no additional opportunities to do so.
Upstream Litigation - Update November 2, 2022
Federal Court Issues Monetary Awards in Harvey Upstream Litigation
The U.S. Court of Federal Claims has issued a long-awaited ruling providing guidance on the amount of compensation for property owners upstream of the Addicks and Barker reservoirs who suffered flood damage in the aftermath of Hurricane Harvey in 2017. The ruling by Senior Judge Charles F. Lettow, including interest, resulted in an award of almost $550,000 for the six test cases.
The compensation ruling factored in amounts for the decrease in real property value, the "damage or destruction" of personal property, and the costs being displaced. The biggest awards went to flood victims who suffered structural flooding and damage during Harvey, with the largest award of just over $195,000 before interest. After interest, the average award for flooded homes calculates at roughly $130 per square foot of flooded interior. The ruling and the judgment are available here and here.
The government is expected to appeal the judge's ruling.
For those upstream property owners that were not part of the original "test cases", they must file a claim before the statute of limitations passes - or by August 2023. In order for these claims to be vetted, upstream property owners are strongly encouraged to file well before the August deadline.
Other documents and information about the litigation can be found at //insideaddicksbarker.com/.
Upstream Litigation - Update June 14, 2022
Second phase of litigation focuses on compensation to flood victims
After lengthy delays, Senior Judge Charles Lettow of the U.S. Court of Federal Claims hosted a hearing by phone regarding litigation about properties upstream of the Addicks and Barker reservoirs that flooded during Hurricane Harvey due to the Army Corps of Engineers Galveston District’s operations of the reservoirs. The trial started on May 31 and concluded on June 10.
Over 30 witnesses testified during the trial, including expert real estate appraisers who calculated how much the Addicks and Barker Reservoir Pool flooding harmed the claimant’s properties.
This hearing is part of the second phase of the upstream litigation. The first phase involved determining whether the Corps’ actions were liable and whether the upstream property owners were eligible to receive compensation. Lettow issued an opinion and order in December, concluding the actions were liable and the property owners were eligible for compensation.
The second phase will determine damages, the team said at the meeting. Receiving compensation—which could range from $1 billion-$5 billion divvied out among the thousands of property owners who join the class-action lawsuit—will not come immediately for property owners, the team representing the property owners said at the January town hall meeting. After Letter issues an opinion and order about the damages, the government will likely appeal the judge’s decisions.
To receive compensation, however, property owners upstream of the reservoirs must join the lawsuit. They have until August 2023 to sign up. More information is available here.
Sources: https://whlaw.com/upstream-harvey-flood-victims-to-be-awarded-in-historic-win/
Upstream Litigation - Update May 5, 2020
Judge determines date, scope of Corps' taking of private property
Another opinion and order have been issued in the lawsuit regarding the litigation about properties upstream of the Addicks and Barker reservoirs that flooded during Hurricane Harvey due to the Army Corps of Engineers Galveston District’s operations of the reservoirs.
After a hearing April 28, Senior Judge Charles Lettow of the U.S. Court of Federal Claims issued an opinion and order April 30 concluding that the Corps took the upstream private property to store stormwater on Aug. 30, 2017, not the 1940s when the reservoirs' construction completed, as argued by the government.
This date is important because it will help determine how much compensation property owners may be eligible for due to the taking of the property, according to the opinion and a press release from the team of lawyers representing the property owners. A trial on the damages is on schedule for a fall date, per the release.
“[The Aug. 30, 2017, date] means the value of the property will be measured from the time of Harvey, not decades before as the Government requested,” the release states.
The Department of Justice said in a February email that it declines comment because the lawsuit is in active litigation.
Federal Judge Dismisses Downstream Lawsuit
Is the Decision Consistent with the Upstream Ruling?
On February 18, U.S. Judge Loren A. Smith dismissed the lawsuit filed by residents who live downstream of the Addicks and Barkers Dams, concluding that property owners had no grounds to sue the federal government for releasing Harvey flood waters. Smith noted that, while he had sympathy for downstream victims, Harvey had been an “act of God”. No one is guaranteed “perfect flood control”, Smith wrote in a 19-page opinion, and any damage from accumulated floodwater released from the dams was not the government’s fault.
The ruling appeared to be in polar opposition to the decision by Judge Charles Lettow’s in December 2019 that the U.S. Army Corps of Engineers was liable for the damage caused to property owners upstream of the dams.
However, Smith wrote that the two situations were fundamentally different because people upstream of the reservoirs did not derive any benefit from the dams. The very existence of the dams, he said, caused the flooding to their homes. By contrast, in the downstream case, property owners had benefited from the dams – which were constructed in the 1940’s to protect people and property downstream of the dams. They derived a benefit by being protected from flooding for decades, but that didn’t mean they could rely on that protection to be infallible.
Fundamentally, the decisions of the upstream and downstream courts are consistent. For upstream residents, Smith wrote that Judge Lettow determined that “the taking of upstream property occurred as a result of the general operation of the Addicks and Barker dams and reservoirs.” “In contrast,” he continued, “the downstream plaintiffs do not allege that the general operation of the reservoirs caused the flooding of their property.” The gates were initially closed for the “sole purpose” of protecting their property, but when the impounded waters exceeded the reservoirs’ capacity, Harvey itself “was the sole and proximate cause of the floodwaters.”
The downstream case was rejected on what is called a “summary judgment”, meaning the judge decided the plaintiffs did not have legal grounds to go to trial. This means that the plaintiffs did not have the opportunity to vet the facts of the case as they did in the upstream case – which was held for trial.
Without a trial, the plaintiffs were unable to present their view that the properties below the dams could have been saved had the Army Corps retained the water a few days longer. The decision to release floodwater on August 28 was not necessary, they contend, even though holding onto it longer would adversely impact the upstream properties. This argument was based on the judge's belief that Harvey’s floodwaters “overwhelmed the system’s capacity” - a belief that was shared by Judge Lettow. The plaintiffs, notably, cite the Corp's chief of engineering and construction, who asserts that the structural integrity of the dams was never threatened. An appeal of Judge Smith's decision appears all but certain.
Judge Lettow’s December 19 ruling related only to the issue of the government’s liability in the upstream litigation. Lettow will hear oral argument on April 28 in Washington, D.C. to assess damages.
This information alert was prepared to provide you with background information about the lawsuit. We are not offering either legal advice or a legal opinion: all residents who believe they may be qualified for compensation should consult an attorney.
Upstream Litigation Update - December 17, 2019
Army Corps found liable for flooding damage upstream of Addicks, Barker reservoirs
On December 17, U.S. Judge Charles F. Lettow ruled the U.S. Army Corps of Engineers was liable for damage caused by its decision to retain floodwaters upstream of the Addicks and Barker reservoirs during Hurricane Harvey, acknowledging that the flood damage above the two World War II-era dams was a foreseeable result of government’s actions.
Judge Lettow detailed how government officials knowingly and intentionally used private property to store rising floodwaters. He ruled that the victims living near the federally owned reservoirs did not know their property was in a flood pool and that they must be allowed to seek compensation for their losses.
The Corps’ decision to retain floodwaters, designed to avert worse flooding downstream, caused major flooding in 10,000 to 12,000 properties. Attorneys for the residents and businesses that brought suit estimated that the cost of damages could surpass $1 billion.
The judge will assess evidence on damages at a hearing set for Jan. 21, 2020 in Houston. Property owners may file suit for six years from the time of the flooding.
This information alert was prepared to provide you with background information about the lawsuit. We are not offering either legal advice or a legal opinion: all residents who believe they may be qualified for compensation should consult an attorney.
Upstream Litigation Update - September 14, 2019
Harvey flood victims above dams make plea for government compensation
In May of this year, Harvey flood victims - who live upstream of Addicks and Barkers Reservoirs - sued the U.S. Army Corps of Engineers, asking to be compensated for storing floodwater on their properties, in violation of the “takings clause” of the Fifth Amendment. Closing arguments were heard a few weeks ago, concluding on September 13. The decision on whether the Corps is liable for the flood victims’ losses is expected this month. If the judge rules the government is liable in the coming weeks, he will hold a second trial to assess damages.
The plaintiffs did not include all potential victims, but rather focused on 13 “test properties” to allow the litigants to present detailed evidence.
If they prevail, the larger pool of all (to be defined in the settlement) flood victims upstream of the two reservoirs may be eligible for compensation. Lawyers for the plaintiffs estimate that owners or occupants of 10,000 to 12,000 houses, businesses and rental units may be eligible for compensation for sustaining more than $1 billion in damage.
Depending on the judge’s decision, this lawsuit could impact some of all of the residents whose homes were flooded in your subdivisions. This information alert was prepared to provide you with background information about the lawsuit. We are not offering either legal advice or a legal opinion: all residents who believe they may be qualified for compensation should consult an attorney.
This information alert was prepared to provide you with background information about the lawsuit. We are not offering either legal advice or a legal opinion: all residents who believe they may be qualified for compensation should consult an attorney.
U.S. Judge Charles Lettow listens to testimony from Capt. Charles Ciliske of the Corps of Engineers