Judge finds government liable for flooding property owners upstream of Addicks, Barker reservoirs after Hurricane Harvey

A federal judge issued an opinion and order Dec. 17 related to the class action lawsuit in which property owners allege the Army Corps of Engineers unlawfully flooded thousands of properties upstream of the Addicks and Barker reservoirs after Hurricane Harvey.

Senior Judge Charles F. Lettow of the U.S. Court of Federal Claims denied the government’s February 2018 motion to dismiss the trial and concluded the Army Corps’ actions are liable, according to the opinion.

With the court, the parties involved must put a plan in place for addressing damages, according to the order and attorney Daniel Charest of Burns Charest LLP, one of the law firms representing the property owners.

Specifically, the lawsuit examined 13 test properties out of the thousands that flooded to determine whether the U.S. government was liable for taking private property without compensation to store impounded floodwaters from Hurricane Harvey, per the opinion.

All other upstream property cases were on hold while 13 test property cases were litigated at trial on the issue of the government’s liability, attorney Mary Conner of Irvine & Conner PLLC—the other law firm representing the property owners—said in May.

“The Army Corps allowed the west Houston homes to flood by not releasing water from the reservoirs downstream,” according to a press release from media relations firm Androvett Legal Media & Marketing Ltd. on behalf of Irvine & Conner and Burns Charest.

Neighborhoods upstream of the reservoirs include Cinco Ranch, Canyon Gate, Grand Lakes, Kelliwood, Lakes on Eldridge, Saddlebrook, Twin Lakes, and the subdivisions of Mayde and Bear creeks.

“[Not releasing the water] amounted to the ‘taking’ of their property under the Fifth Amendment ... [which] states that private property cannot be taken for public use without just compensation,” the release continued.

With Lettow’s order, property owners upstream of the reservoirs can seek certification as a class and may move the case to trial to determine damages to be paid by the government, per the release.

“Now that the court has determined that property owners should be compensated, the question now is for what and how much,” Charest said.

He said the parties will focus on determining the types of damages that can be compensated by the government. Charest was unable to provide a timeline and monetary figure for damages sought but said between 10,000-12,000 property owners are part of the lawsuit. There is a separate lawsuit related to properties flooded downstream of the reservoirs.

Community Impact Newspaper reached out to the defendant, the U.S. Department of Justice, which has not provided a comment as of 1 p.m. Dec. 18.

Lawsuit timeline

• Sept. 15, 2017: Lawsuit filed
• Spring 2018: Thirteen test cases selected for lawsuit
• May 16, 2018: Court of Federal Claims has hearing on the defense’s motion to dismiss the lawsuit
• May 6, 2019: 10-day trial held in Houston
• Sept. 13, 2019: Court hears closing arguments in Washington, D.C.
• Dec. 17, 2019, Court of Federal Claims issues opinion and order in favor of plaintiffs