Court Dismisses All Downstream Addicks and Barker Reservoir Claims – Read the Federal Opinion Just Released Today

U.S. Court of Federal Claims Senior Judge Loren A. Smith dismissed all downstream Addicks and Barker Reservoir claims in an opinion just released this afternoon.  Judge Smith writes, “[b]ased on the above analysis of both state and federal law, it seems clear to this Court that neither Texas law nor federal law provides plaintiffs with a cognizable property interest in perfect flood control in the wake of an Act of God. As the government cannot take a property interest that does not exist, and as the Corps cannot be held liable when an Act of God inundates a plaintiff’s real property with flood waters that the government could not conceivably have controlled, plaintiffs have failed to state a claim upon which relief can be granted.” Dkt. 203, Pg 18.

Judge Smith goes on to hold, “[t]hough the Court is sympathetic to the losses plaintiffs suffered as a result of Hurricane Harvey, the Court cannot find the government liable or find it responsible for imperfect flood control of waters created by an Act of God. For the reasons set forth above, defendant’s MOTION to Dismiss is hereby GRANTED pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief could be granted. Defendant’s CROSS-MOTION for Summary Judgment is GRANTED. Dkt. 203, Pg 19.

This opinion only applies to downstream cases.  Judge Smith referenced U.S. Court of Federal Claims Senior Judge Charles F. Lettow’s December 17, 2019 upstream opinion, writing, “[i]n that opinion, Senior 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, as a direct result of the Corps’ decision to close the flood gates in order to protect properties downstream at the expense of the upstream properties located within the maximum pool size for the Reservoirs.  In contrast, the Downstream plaintiffs do not allege that the general operation of the Reservoirs caused the flooding of their property.  Rather, plaintiffs downstream advance a takings theory predicated on the Corps’ decision to open the flood gates and begin Induced Surcharge releases.” “… the downstream plaintiffs’ theory of causation ignores the simple fact that the gates were initially closed for the sole purpose of protecting their properties from floodwaters, that such mitigation failed because the impounded storm waters exceeded the Reservoirs’ controllable capacity, and that the Harvey was the sole and proximate cause of the floodwaters.” Dkt. 203, Pgs 8-9.

Judge Smith found, ultimately the Downstream cases and Upstream cases are very different, writing “[w]ith those legal differences between the Upstream and Downstream causes of action in mind, the Court concludes that the legal analysis in the Upstream Opinion is not relevant to the Court’s evaluation of the downstream cause of action. Additionally, due to the significant factual differences between the Upstream and Downstream cases, the Court does not believe the findings in the Upstream Opinion are relevant to its downstream findings.  Id.

Read the entire opinion from the Court below:

Court’s February 18, 2020 opinion dismissing downstream cases.