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.