Potential Remedy for Addicks & Barker Reservoir Release Victims

by Strasburger & Price, LLP

Strasburger & Price, LLP

On August 25, 2017, Hurricane Harvey made landfall as a Category 4 hurricane, settling in the lower Texas gulf coast and inundating southeast Texas with almost 50 inches of water over a four-day period. The storm caused flooding in many areas that run along bayous and rivers.

In the early morning hours of August 28, 2017, the U.S. Army Corps of Engineers (the Corps) determined that the Addicks and Barker dams risked structural failure or uncontrolled releases as a consequence of the immense rainfall. The Corps made the decision to initiate controlled storm water releases from the Addicks and Barker reservoirs, announcing that “The Corps started water releases from Addicks and Barker dams at 1am due to dramatically increased water levels.”[1]

In addition to the many homes and businesses flooded as a result of the heavy rainfall, many more that would not have been flooded, or that would have been the victims of only short-term flooding, sustained far more severe damage as a result of the release of water from the Addicks and Barker reservoirs.

Owners of property or businesses that first sustained flooding after those releases on August 28, or that had worse flooding as a result of those releases, may have a claim for the resulting damage to their property interests separate and apart from any insurance claim. Mortgage holders whose interests were impaired, or insurers required to pay for flood damage, may also have a claim.

It’s called inverse condemnation. Put simply, when the government takes private property for a public use, the government must pay just compensation to the person whose property was taken.

Typically, the government makes a determination that it needs to take land for a public purpose, such as building a highway, and then initiates proceedings to take the land and compensate the owner. But inverse condemnation is the typical process in reverse. When the government takes private property for a public use without any formal process or condemnation proceeding providing for “just compensation,” it violates the takings clause of the Fifth Amendment of the United States Constitution which clearly states that “[P]rivate property [shall not] be taken for public use, without just compensation.”[2] In such cases, the owner may file an inverse condemnation proceeding seeking compensation from the government.

Inverse condemnation does not mean there was any wrongdoing on the part of the government agency. Rather, it provides for compensation to those whose land was involuntary used for a public purpose without a formal process.

It is settled that the federal government is liable for the takings of its agents in their official capacity, and agents may include private parties, state officials, or federal officials.[3] This includes the Corps which operates and maintains the Addicks and Barker reservoirs and dam structures.[4] The Supreme Court has held that government-induced flooding, although temporary in nature, can give rise to a takings claim entitling the property owner to just compensation.[5]

A property owner does not need to have flood insurance to assert an inverse condemnation claim. If a property owner has insurance, recovery in an inverse condemnation claim is separate from any insurance claim.

If your property has been damaged or destroyed as a result of the release of the Addicks and Barker reservoir, you may be entitled to compensation through an inverse condemnation action.

[1] @USACEGALVESTON, Twitter (Aug. 28, 2017 2:23 P.M.) https://twitter.com/USACEGALVESTON/status/902280561481437186.

[2] U.S. Const. amend. V.

[3] Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 22 (1940) (“The action of the agent is ‘the act of the government’”.).

[4] Breenana Moor, Addicks and Barker reservoirs in West Houston are rising; water could impact area roads, U.S. Army (Aug. 8, 2017), https://www.army.mil/article/192003/addicks_and_barker_reservoirs_in_west_houston_are_rising_water_could_impact_area_roads; Emily Wax-Thibodeaux et. al., Houston dam spills over for the first time in history, overwhelmed by Harvey rainfall, Washington Post (Aug. 29, 2017), https://www.washingtonpost.com/pb/news/post-nation/wp/2017/08/28/houston-releases-water-from-two-dams-in-attempt-to-prevent-uncontrolled-overflow/?outputType=accessibility&nid=menu_nav_accessibilityforscreenreader.

[5] Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 32 (2012).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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