Search results for: houston flooding

Here’s the latest in an issue we’ve been following.

In Alban v. United States, No. 23-1363 (Dec. 22, 2025), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’s judgment concluding that the failure of the Corps of Engineers to properly operate two dams, which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

The dams were built nearly 100 years ago to reduce downstream flood risks. The reservoirs are usually dry, and fill up when it rains a certain amount. At the time of construction, the Corps considered acquiring property which would be inundated when the reservoirs filled up to a certain level, but ultimately decided to not do so. The Corps made the decision to acquire only the properties predicted to be flooded in smaller storms. The Corps understood that flooding of additional property was predicted in more intense storms.

In 2017, Harvey became one of those events, and the water level in the reservoirs climbed higher than the level of government ownership of the property, which resulted in catastrophic flooding of private property “causing extensive damage.” Slip op. at 6. The flooding was not permanent in the sense that the floodwaters remained; the water eventually receded.

CFC takings lawsuits followed, “alleging that the operation of the Barker and Addicks Dams and the subsequent flooding constituted an uncompensated physical taking of their property. Slip op. at 6-7. The CFC eventually concluded that the feds are liable for a taking of flowage easements, “and that the government’s asserted defenses of police power and necessity did not absolve it of liability.” Slip op. at 7.

The Federal Circuit affirmed. It rejected the Corps’s argument that because the government was exercising “police power,” the owners didn’t own “private property.” The court also rejected the government’s claim that the flooding wasn’t a taking because it wasn’t permanent. Finally, the court rejected the argument that because the flooding was “necessary,” there was no taking.

On the property issues, the Federal Circuit undertook the proper analysis. The property interest alleged to have been taken was a flowage easement. It didn’t matter that the property was held subject to the police power (indeed, what property isn’t held subject to the power of the government to regulate it?).

Interestingly, it appears the government understood that the Federal Circuit has “rejected versions of those arguments” in prior decisions. Slip op. at 10. But to “preserve the issue[s] for further review,” it raised them here. Does this mean the government views the case as a vehicle to challenge existing doctrine? We shall see. In case you were wondering, the Federal Circuit again rejected the argument, concluding that yes, the plaintiffs possessed a property interest.

The court also rejected the government’s claim that there was no taking because the flood waters literally did not cover the owners’ land forever. Long ago, we took the position that the distinction between “temporary” and “permanent” is a rabbit hole and that the doctrine can’t rest on such metaphysical, illusory distinctions. The Federal Circuit recognized that the lay definitions of temporary and permanent are not dispositive, and even flooding that is not, you know, permanent, is considered “permanent” if it inevitably recurring. Slip op. at 11. And here the CFC determined the flooding as “permanently recurring.” Good enough, to the Federal Circuit:

We hold that the flooding of Plaintiffs’ properties gave rise to a permanent taking. The Supreme Court has distinguished between “intermittent but inevitably recurring overflows,” which give rise to permanent takings, Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 32 (2012) (quoting United States v. Cress, 243 U.S. 316, 328 (1917)), and “takings temporary in duration,” id. at 32, such as when a claimant was able to permanently “‘reclaim[] most of his land which the government originally took by flooding.’” Id. at 33 (quoting United States v. Dickinson, 331 U.S. 745, 751 (1947)). Where “land is not constantly but only at intervals overflowed, the fee may be permitted to remain in the owner, subject to an easement in the United States to overflow it with water as often as
necessarily may result from the operation of the” dam. Cress, 243 U.S. at 329. Our predecessor court specifically held that “only one actual flooding is enough when the property is upstream of the dam and below the contour line to which the dam is designed to impound water.” Stockton v. United States, 214 Ct. Cl. 506, 518–19 (1977). These cases confirm that whether flooding is inevitably recurring turns not on mere frequency, but on whether there is a “government action that will foreseeably produce intermittent invasions by flooding without identifiable end into the future.” Ideker Farms, 71 F.4th at 979. When that is true, “the government takes a permanent right of access, akin to an easement in gross, even if used only intermittently,” and has effected a per se taking. Id. at 980.

Slip op. at 12-13.

You may ask yourself “what does this case add to the oeuvre?” In our view, nothing. The Supreme Court’s and the Federal Circuit’s approach to this seems pretty well-established. But that doesn’t prevent the government from giving it yet another go, and pushing what seems to be arguments flatly and firmly rejected by the courts. Arguments that would get you and me risking sanctions if we made ’em. We have seen this approach before, so count us not surprised.

The Federal Circuit also noted in dicta that even if this is only a “temporary” invasion by floodwaters, the owners would still win even if the case were not subject to the categorical permanent rule and the case were subject to a Penn Central type analysis. Slip op. at 14 (“Even if the flooding of Plaintiffs’ properties were temporary, we would still hold that the government took Plaintiffs’ properties.”).

Finally, the Federal Circuit correctly rejected the government’s argument that the “necessity defense” relieved it from the obligation to provide just compensation. Slip op. at 17. This wasn’t a case where the government took some action because the owners were engaged in a nuisance-like activity, or the government was responding to some “unforeseeable exigency.” Id. Not at all.

This was a case where government chose some property owner to be protected, and selected others to take the hit. In these cases, it is the prime function of the Just Compensation Clause to “flatten the economic curve” and spread the economic burden on everyone, and not keep it focused on those whom the government decided were to be sacrificed:

Instead, the government, as it does in every flooding case, allocated the location of water between private citizens. In doing so, it aided some property owners (downstream residents) and harmed others (upstream residents). “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). Accordingly, we reject the government’s necessity defense.

Slip op. at 17-18.

The opinion continues with analysis of the just compensation judgment, but we shall cover those in another post.

Stay tuned.

Alban v. United States, No. 23-1363 (Fed. Cir. Dec. 22, 2025)

We won’t go into the details of the Court of Federal Claims’ opinion and order in In re Upstream Addicks and Barker (Texas) Flood Control Reservoirs, No. 17-9001L (Dec. 17, 2019), since it is 46 single-spaced pages long. You can (and should) read the entire thing. But we shall highlight of a few of the highlights, since this is definitely a case to watch, especially as it progresses to the (inevitable) appeal to the Federal Circuit. 

This is the case in which Texas owners whose property upstream of two government created and maintained dams was intentionally flooded by the Corps of Engineers after Hurricane Harvey sued the feds for just compensation for a taking. The government sought dismissal, but after a 10-day trial, the CFC held the government is “liable for a taking on a flowage easement on the [thirteen test] properties.” Slip op. at 3. 

The court summarized the case and issues:

After making landfall in August 2017, Tropical Storm Harvey (“Harvey”) doused Houston with an average of 33.7 inches of rain over a four-day period. Many properties, including over 150,000 homes, flooded during the storm. Those affected included private property owners within the Addicks and Barker Reservoirs, west of Houston, upstream of the federally designed, built, and maintained Addicks and Barker Dams. During Harvey, the Addicks and Barker Dams collected storm water in their respective reservoirs causing properties within the reservoir to flood from the impounded water. At issue in this bellwether trial is the liability of the government under the Tucker Act, 28 U.S.C. § 1491, and the Takings Clause of the Fifth Amendment of the Constitution, for the damage to thirteen of these properties.

Slip op. at 2 (footnote omitted). The Corps of Engineers could have released water from the dams, but doing so would have flooded downstream properties. The U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23, 37 (2012) remains the polestar for flooding cases, and that provided the lens through which the CFC looked at the facts and the law. 

To us, the big issue is the “tort” vs “taking” argument the government put forward but which the CFC rejected. We presume the feds focused a lot of energy on that because of the MR/GO decision in which the Federal Circuit held that omissions by the government are torty not takings-y. While the issues presented are not the same here (indeed, the CFC opinion here doesn’t reference the MR/GO decision at all, because this case involved what the court concluded was a “calculated” decision by the Corps to not release water, contrasted with MR/GO which was more about failure to maintain), we think the torty vibe of the government’s argument will factor large in its Federal Circuit briefing. 

To us, the most interesting part of the CFC opinion on that issue starts on page 45, “Defenses to Liability.” Especially the “necessity” defense. In short, the government argued that it can be excused from paying for the flooded properties because it was acting in the common and greater good, to protect everyone. This was an “emergency.” But the CFC correctly recognized that the necessity defense only works – if at all – in situations where the harm caused was “unavoidable.”

The classic example is when the government blows up homes to create a firebreak when the city is on fire. If the homes blown up to save others’ homes were going to burn down in the fire anyway, there’s no taking according to the courts. As the CFC correctly put it, “‘[t]hus, it was not that the government had to respond to Tropical Storm Harvey as an emergency that necessitated the flooding of private land,’ but rather that the government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms.” Slip op. at 45. In other words, the government long ago purposefully chose that someone’s private property would have to take the hit during severe storms.

To us, this is precisely the situation in which the Supreme Court held that the Takings Clause works to spread the cost over all who benefit, and not concentrate costs solely on the property owners whom the government selects to bear the brunt of the damage. 

While not binding on any other courts, the CFC’s opinion certainly sets out a roadmap that other courts considering similar claims could follow. The Supreme Court’s “takings” doctrine isn’t necessarily one that is easy to comprehend, and this opinion does address it in an understandable way, in our view. The long-term usefulness of the CFC opinion will – as above – turn on whether it survives appellate review by the Federal Circuit, of course, and that takes us to our biggest question (as noted above), whether the decision will survive review by the Federal Circuit, which as you know has been somewhat of a mixed bag when it comes to these type of cases. In the MR/GO case involving Katrina-related flooding in New Orleans, for example, the Federal Circuit overturned the CFC’s takings verdict on the basis that the government’s actions there were more tort than takings. The Supreme Court denied review in that case. We shall see here. 

The CFC also rightly rejected the Government’s argument that Texas property is always subject to flood control projects, so the plaintiffs here have no right to be free of flood waters that emanate from such projects. But the CFC concluded that this isn’t some consequential side effect of a flood control project, but the Government making a “conscious decision” to flood Property A instead of Property B (pretty much the same circumstance that was presented in Arkansas Game).  

Finally, one thing that really sticks out to us is the government arguments the CFC rejected (see slip op. at 28, first paragraph for example). Especially the argument that “plaintiffs have no right to be free from invasions because their ownership post-dates the dams’ construction.” Oh my. That type of argument was rejected by the US Supreme Court in Palazzolo v. Rhode Island back in 2001 (you don’t lose property rights simply by obtaining property subject to regulatory restrictions), yet governments nationwide continue to make this very argument. Until the Supreme Court weighs in (again) to clarify, expect this to continue.  

This opinion isn’t the last we’re all going to hear about this case, so stay tuned.

Order and Opinion, In re Upstream Addicks and Barker (Texas) Flood Control Reservoirs, No. 17-9001L 

Continue Reading CFC: “Calculated” Hurricane Harvey Flooding Is A Taking – But Will Decision Survive Federal Circuit Review?

Here’s the latest in the Houston flood cases against the federal government asserting inverse condemnation, which we’ve been following. 

In this Opinion and Order, the Court of Federal Claims (Judge Lettow) rejected the Government’s motion to dismiss, deferring it until trial. If you want a quick rundown of the case, the procedures, and the claims, you can’t do better than the order. It also sets out the Arkansas Game test established by the Supreme Court:

To establish a viable takings claim, a plaintiff must prove two things. First, he or she must show that he or she has “a property interest for purposes of the Fifth Amendment.” Members of the Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing Conti v. United States, 291 F.3d 1334, 1339 (Fed. Cir. 2002)); Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001) (“[O]nly persons with a valid property interest at the time of the taking are entitled to compensation.”) (internal citations omitted). Second, he or she must establish that the government’s actions “amounted to a compensable taking of that property interest.” American Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004). For flooding cases, the Supreme Court has identified at least five factors relevant to, but not necessarily dispositive of, this latter inquiry. See Arkansas Game I, 568 U.S. at 38-39. They include (1) time—the duration of the physical invasion; (2) causation; (3) intent or foreseeability, that is, “the degree to which the invasion is intended or is the foreseeable result of authorized government action;” (4) “the owner’s reasonable investment-backed expectations regarding the land’s use,” including “the character of the land;” and (5) the “[s]everity of the interference.” Id. (internal quotations omitted); see also Arkansas Game II, 736 F.3d at 1369-75 (considering each of these factors).

Slip op. at 6.

The Government raised five issues in its motions to dismiss:

  • Statute of limitations – the dams at issue were built 70 years ago, last modified in the 1980’s. That’s more than six years ago. The court concluded, however, the taking was experienced by the plaintiffs in 2016, and they filed suit within six years of that date. Slip op. at 7-8.
  • Action vs inaction – the court held that the complaints alleged that government action in building the dams — not its inaction of not buying land — was the complained-of action. Slip op. aat 8.
  • Property interest – the court rejected the Government’s argument that under Texas law, the property owners do not possess a property interest in keeping water off their land in these circumstances. Slip op. at 10 (“Almost as if he were addressing this case directly, then-Justice Willett, writing for the Texas Supreme Court, explained: “[W]here the government made a conscious decision to subject particular properties to inundation so that other properties would be spared, as happens when a government builds a flood-control dam knowing that certain properties will be flooded by the resulting reservoir[,] . . . of course the government must compensate the owners who lose their land to the reservoir.”).
  • Investment-backed expectations – The Government also argued that because the property owners purchased their land after construction of the dams, they had no expectation the dams would not one day flood their properties. No, held the court, Palazzolo says otherwise: “The government’s argument based on preexistence fails. Palazzolo explicitly rejects the “sweeping[] rule” that “[a] purchaser or a successive title holder . . . is deemed to have notice of an earlier-enacted restriction and is barred from claiming that it effects a taking.” Slip op. at 12 (citing Palazzolo, 533 U.S. at 626).
  • Police power – Finally, the court rejected the Government’s claim that because it was exercising its police power to protect property and life, it could not be liable for a taking. Slip op. at 12 (“Thus, it was not that the government had to respond to Tropical Storm Harvey as an emergency that necessitated the flooding of private land, but rather it was the design of the dams and the government’s procedures for operating them, all put in place well before Harvey arrived. The government cannot, therefore, invoke its police power to limit plaintiffs’ property rights and obtain dismissal of their complaint.”).

Claimants who assert inverse condemnation based on government induced flooding also must prove that “treatment under takings law, as opposed to tort law, is appropriate under the circumstances.” Slip op. at 7 (quoting Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003)). The court rejected the Government’s invitation to adopt a “one free flood” rule, noting (correctly, in our view) that the Supreme Court rejected that same argument in Arkansas Game. 

Final analysis of all of the Government’s arguments requires development of a factual record, and since this was a motion to dismiss for failure to state a claim and for lack for jurisdiction, the court accepted the complaints’ version of the facts, reserving final ruling until later. 

In other words, stay tuned. 

In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, No. 17-9001L (Fed. Cl. May 24, 2018) 

Continue Reading The Latest In The Houston Flood Cases: CFC Rejects Gov’t’s Motion To Dismiss

Flooding

For obvious reasons, much of our recent traffic has come to the blog looking for information or cases about inverse condemnation and flooding. So instead of having you chase down links through a search engine or our Search page, here are some of the more popular links regarding government liability for flooding: 

While all this law talk is interesting, let’s hope this all blows over and no one really needs to research this topic further. 

Continue Reading Flooding And Inverse Condemnation Links

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Today’s the kickoff events for William and Mary Law School’s Brigham-Kanner Property Rights Conference. We started the day with eminent domain and property law attorneys speaking about the practice of law (pictured above, Justin Hodge (TX) and Christian Torgrimson (GA)).

Toronto’s Shane Rayman and I spoke about international and comparative property and eminent domain (expropriation) and how even though our way of approaching cases may be different, the goals are the same: justice and fair treatment for our clients. And what we can learn about our own cases by looking at how other jurisdictions do it. 

In that vein, here are the links to the cases we (and others) mentioned:

There will be more during tomorrow’s scholar/practitioner sessions. 

Continue Reading 2019 Brigham-Kanner Property Rights Conference Kickoff

Screenshot 2024-11-04 at 12-34-18 Texas Supreme Court
Charles McFarland, arguing.

Here’s the latest in a case we’ve been following closely (and disclosure: our firm filed an amicus brief in the Texas Supreme Court).

In The Commons of Lake Houston, Ltd. v. City of Houston, the Texas Court of Appeals held that the city could not be liable for a taking for an ordinance that limited development and use within the city’s 100-and-500-year floodplains because the ordinance was a valid exercise of police power and otherwise survived the rational basis test.

As we wrote here, that seems like utter nonsense to say that a valid police power reason categorically insulates a government action from a takings challenge. After all, the entire regulatory takings doctrine is built on the notion that an otherwise-valid exercise of government power (here, the police power, delegated from the State to the city) can so impact an owner’s property rights that the law will treat it as a de facto exercise of eminent domain, and require just compensation. The doctrine pretty much presumes that the governmental action is valid, and challenges to what are claimed to be invalid government actions fall under the due process label.

Our friend and colleague Charles McFarland represents the property owner. Last week, he presented oral argument at the Texas Supreme Court (watch the video here). 

Here are the Issues Presented by the property owner:

1.     The lower court erred in applying a bright-line flooding mitigation exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

2.    The lower court erred in applying a bright-line “police power” exception to the Texas Constitution’s requirement of compensation for the taking, damaging, or destruction of private property.

3.    The lower court erred in failing to apply the state-law standard of the Texas Constitution’s takings clause, which allows for compensation when government action damages private property for public use.

The State of Texas does not agree with this formulation of the issues. Instead, it argues these are the issues (apparently leaving nothing, kitchen sink included, off the table):

1.    Whether Petitioner has standing to assert purported takings/damaged property claims?

2.    Alternatively, whether Petitioner’s purported takings/damaged property claims are ripe?

3.    Alternatively, whether Petitioner’s claims are redressable; therefore, whether Petitioner was improperly deprived of review under Penn Central or any other requested test?

4.    Alternatively, whether Houston is immune from Petitioner’s takings/damaged property claims because local floodplain regulations that track FEMA/NFIP requirements do not constitute a taking?

5.    Alternatively, whether Houston is immune from Petitioner’s claims because this Court’s decision in Turtle Rock and its progeny hold that the application of Houston’s floodplain regulations to Petitioner’s property, if any, is not a compensable taking?

6.    Alternatively, whether Petitioner’s new, blanket rule—that all local land-use regulations that adversely affect property automatically constitutes a taking and/or “damaged” property under article I, section 17, entitling the landowner to Penn Central or other compensation analysis—contravenes Texas law?

7.    Whether Petitioner’s “damaged” property claim is time barred?

8.    Whether Petitioner has suffered a compensable injury under Article I, Section 17’s “damaged” property provision?

Watch the oral argument recording to see how the court addresses these seemingly very divergent worldviews.

More on the case here, including all the briefing.

Stay tuned. We’ll bring you the court’s ruling when it is issued.

Continue Reading Oral Arguments In Texas Takings Case: If The Govt Limits Use For Healthsafetywelfaremorals, Is It Exempt From Takings?

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We’ve covered some of the litigation against the federal government for its actions flooding property during Hurricane Harvey, including at least one from the “upstream” owners. Well here’s one from the case involving the “downstream” owners.

In Milton v. United States, No. 21-1131 (June 2, 2022), the U.S. Court of Appeals for the Federal Circuit addressed the first question in every takings claim: does the plaintiff possess “private property?” The court held that the plaintiffs indeed have a property interest.

Now that may seem like an obvious conclusion. After all, it’s right there in the first sentence of the opinion that the plaintiffs are owners of … property: “[a]ppellants Virginia Milton and hundreds of other individuals and companies owned property downstream from the Addicks and Barker Dams in Houston, Texas.” Slip op. at 1 (emphasis added). But as you takings mavens know, owning property doesn’t mean you truly “own property” for purposes of the Fifth Amendment. You have to have a “cognizable property interest.” Slip op. at 9.

The Federal Circuit reversed the Court of Federal Claims’ conclusion that despite owning property that was flooded allegedly by or because of the U.S. Government, the “property” the owners owned was not their flooded land, but the right to not have the U.S. Government flood their land in these circumstances. In other words, what the CFC called “perfect flood control.” Slip op. at 7. And besides, the CFC held, the owners bought their properties after construction of the dams, so they took their properties subject to the dams and the possibility of flooding. 

The CFC’s method of determining the property interest is what we’ve called “bootstrap logic” where the reviewing court defines the property as the right to not have the very thing the plaintiffs are claiming happened, happen. This to us is a problem because it nearly always presages the outcome (no taking), by front-loading the merits question (does the government’s action have similar effects on the owner as eminent domain?) into the pleading stage, which deprives the factfinder of the opportunity to, you know, find the relevant facts.

The Federal Circuit did not go all in on our analysis (fee ownership is enough to establish a property interest) but came close. It focused on the sticks, and concluded that the plaintiffs essentially alleged an interest in flowage easements on their land, and that qualified. Under Texas law, an owner of real property can peel off one of the sticks and grant a third party the right to flood their land. Aka, a flowage easement. That sounds a lot like “plaintiffs own the fee simple, so yeah they own ‘property,'” but we are lawyers so we know we have to state the principle more complexly.

The Federal Circuit rejected each of the Government’s contrary arguments: 

  • There’s no general “police power” exception to takings (a point we harp on a lot). Slip op. at 10-11.
  • There’s no general “Act of God” exception, either. That’s a merits question. Slip op. at 12 (“Acts of God relate, if at all, to whether a taking has occurred, not whether a party has a cognizable property interest.”).
  • What about the fact that the owners bought their properties after the dams were built? “There is no blanket rule under Texas law that property rights are held subject to owners’ expectations on acquisition.” Slip op. at 13.
  • Finally, a claim of “necessity” isn’t something that defines property, but “is a defense.” Slip op. at 13.  

Having concluded that the plaintiffs own property, the Federal Circuit declined to determine whether the Government took that property (in the CFC, both sides sought summary judgment). The takings question is is a fact-intensive inquiry, and “summary judgment should not be granted precipitously.” Slip op. at 13-14. Now remember that this is a physical takings claim and subject to the Supreme Court’s categorical rule (which you might think makes summary judgment kind of appropriate). But the Federal Circuit was not comfortable deciding the issue “in the first instance,” because the CFC had not developed the record even for a physical taking. Remanded:

Thus, it is appropriate to remand this case to the Court of Federal Claims to address the second prong of the takings analysis in the first instance. In other words, we leave it for the lower court to consider: (1) whether Appellants have shown that a temporary taking occurred under the test applicable to flooding cases, Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012); (2) whether Appellants have established causation when considering “the impact of the entirety of government actions that address the relevant risk,” St. Bernard Par. Gov’t v. United States, 887 F.3d 1354, 1364 (Fed. Cir. 2018), cert. denied 139 S. Ct. 796 (2019); and (3) whether the Government can invoke the necessity doctrine as a defense.

Slip op. at 14.

Milton v. United States, No. 21-1131 (Fed. Cir. June 2, 2022)

Continue Reading CAFED: Flooded Property Owners Owned Property

We all know that Knick v. Township of Scott, 139 S. Ct. 2162 (2019) only knocked out the “state action” prong of the two-part Williamson County takings ripeness requirement. You may not need to pursue and lose compensation via state procedures to ripen a takings claims, but still active is the “final decision” requirement under which the alleged taker must have made a decision applying the regulation to the property owner, so that a reviewing court can determine what, if any, uses the owner may make of the property under the regulation. 

Here’s the latest on that one, from the U.S. Court of Appeals for the Fifth Circuit. In DM Arbor Court, Ltd. v. City of Houston, No. 20-20194 (Feb. 12, 2021), the court was faced with a choice between final decision ripeness on one hand (and the notion that an unripe case can become ripe down the road when the government does get around to making a final decision), and on the other the rule that appeals courts generally take the record as they find it, and events after the trial court’s final judgment can’t be considered by the appeals court.

In this case, the district court dismissed the plaintiff’s takings claim as unripe because the plaintiff filed suit challenging the city’s placing a “hold” on repair permits and refusing to issue such permits, even though the city had not actually determined whether the plaintiff could get one of those permits. Slip op. at 2. After the dismissal, however, the city public works director denied the permit because of the risk of flooding. 

So what to do on appeal? Reverse because the case had ripened post-final judgment? Or affirm because the district court’s decision was correct at the time it made its decision? The Fifth Circuit chose the first path. 

First, it noted that the district court was indeed correct: “At the time the district court ruled, Arbor Court’s claims were not ripe.” Slip op. at  3. See also slip op. at 5 (For City of Houston development permits, the City Council has the final say. Floodplain Ordinance art. II, § 19-23(g). When this matter was pending in district court, the Council had not yet reached a decision about Arbor Court’s permits. Because the City had not taken a “final, definitive position” about the permits, the asserted claims were not ripe.”). The court noted that takings ripeness is a timing thing, and that an unripe case “becomes ripe when it ‘would not benefit from any further factual development and when the court would be in no better position to adjudicate the issues in the future than it is now.'” Slip op. at 3-4. 

Because after the district court’s ruling the city had made a final decision, and “[a]s ripeness is perculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court’s decision that must govern.'” Slip op. at 5 (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974)). Thus, the court of appeals may consider post-judgment events when evaluating ripeness.

This is more so correct because takings ripeness is a prudential rule, not jurisdictional, and a district court only declined to exercise jurisdiction even though it possessed jurisdiction. But even though that side of the equation is prudential, the court concluded the other side is not: if the case ripened on appeal, “we have an obligation to exercise the jurisdiction Article III and Congress grant us when any impediments, such as prudential concerns, have been eliminated.” Slip op. at 7.

The court also addressed the city’s claim that to hold the case ripe on appeal did not take into account it was the plaintiff’s premature lawsuit that raised this problem in the first place:

The remand should not be viewed as a “reward” to Arbor Court. As is proper when a dispute is not ripe, the district court dismissed the case without prejudice. A without-prejudice dismissal allows the filing of a new lawsuit once the case ripens. In fact, Arbor Court did just that after the City Council denied the permit; there is now a second suit in district court (though it was stayed pending the outcome of this appeal). We have trouble seeing the practical difference between Arbor Court’s pursuing the merits of its claims on remand in this case as opposed to going forward in the recently filed case. Either way, Arbor Court will be able to litigate its claims. The City is understandably frustrated that it had to devote resources to litigating ripeness because Arbor Court filed this suit prematurely. But Arbor Court’s premature filing of its claims does not appear to have benefitted it in any way; pursuit of this appeal rather than just proceeding in the newly filed suit has only delayed resolution of the merits.

Slip op. at 8.

Ripeness dismissal vacated, case sent back down.

DM Arbor Court, Ltd. v. City of Houston, No. 20-20194 (5th Cir. Feb. 12, 2021)

Continue Reading CA5: Final Decision Takings Ripeness Is All About Timing (So Yes, A Filed-Too-Early Case Can Become Ripe On Appeal)

We’ve posted a lot of complaints lately (the lawsuit kind, not the “can I see the manager” kind), mostly coronavirus-related. All involving in one way or another a takings claim. See here, here, here, here, here, here, here, here, here, here, here, here and here, for a sampling.

This latest complaint does not challenge a government’s response to COVID, but instead might be even more “ripped from the headlines.” Read on!

As you may be aware, a neighborhood in Seattle, Washington has been blocked off and declared a no-go zone for certain folks. Most recently labeled “CHOP” (Capitol Hill Occupying Protest) after the first naming action went badly and someone realized that the acronym for “Capitol Hill Autonomous Zone” was CHAZ, “[p]eople can now freely walk in the area, which has been covered with signs, murals, memorials and different types of art. The day after police left, protesters put up a sign on the East Precinct, now boarded up, that reads: ‘This space is now property of the Seattle people.'” [Barista’s note: as long as it’s not “C.H.U.D.,” we’re fine with whatever names or shortenings people want to use to refer to something.]

What about the people who, pre-CHOP, lived, worked, and ran their businesses in the zone? Well, the other shoe has now dropped. In a complaint filed in federal court yesterday, some of them (on behalf of others similarly-situated — this is a class action) sued the City of Seattle for skedaddling out of the area. The complaint alleges that the City essentially abandoned the area, which “has enabled the widespread destruction and vandalism of private property.” Complaint at 4.

There’s a host of federal and state law claims, including a takings claim (of course, which is why we are posting the complaint here).

194. Plaintiffs and the Class have constitutionally protected property rights to use and enjoy their properties, to exclude others from their properties, and to access their properties via public rights-of-way.

195. The City has deprived Plaintiffs of those rights by affirmatively creating, assisting, endorsing, and encouraging an indefinite, unpermitted invasion, occupation, and blockade of the public rights-of-way that provide access to Plaintiffs’ private properties, as well as by affirmatively creating, assisting, endorsing, and encouraging the physical invasion of Plaintiffs’ private properties by CHOP participants.

196. The City has done so pursuant to City policy as created and ratified by City policymakers, including Mayor Durkan.

197. Plaintiffs have not received compensation for the deprivation of their property rights.

198. The City’s actions constitute an unlawful taking for private use and/or an unlawful taking for public use without just compensation, which has caused Plaintiffs economic harm, including through a loss of property value, loss of business revenue, and a loss of investment-backed expectations.

Complaint at 54-55.

We urge you to read the entire document. A couple of general thoughts:

We will continue to follow along with this case, for sure.

Class Action Complaint, Hunters Capital, LLC v. City of Seattle, No. 2:20-cv-00983 (W.D. Wa. June 24, 2020)

Continue Reading Complaint: City’s Abandonment Of CHOP/CHAZ Neighborhood Is A Taking

Openthefloodgates

We’re doing lawyer things this week, so can’t do much blogging, so we’re going to just leave this here, the Court of Federal Claims’s Opinion and Order in the case seeking compensation for a taking by the “downstream” owners whose lands were flooded by the U.S. Army Corps of Engineers in the aftermath of Hurricane Harvey. 

Short story: no property, no taking. 

How does the following square with the same court’s (but a different judge’s) ruling about the “upstream” owners?

Two questions must be asked. First, what property did the government take? Second, how did the government take that property? The answers to these questions go to the heart of the Constitution’s taking clause. The waters that actually caused the invasion came from the unprecedented floodwaters from Hurricane Harvey when it stalled over Houston for four days, dumping approximately thirty-five inches of water on Harris County. See Plaintiffs’ Appendix (hereinafter “Pls.’ App.”) at A3140; see also Defendant’s Exhibit (hereinafter “Def.’s Ex.”) 12 at 591–92. The federal government erected two dams in the 1940s to mitigate against flood damages in the plaintiffs’ area. See Pls.’ App. at A2214. This storm, which overwhelmed the system’s capacity was classified as a once in 2000-year event, Def.’s Ex. 12 at 594–95, which means the last such event occurred during the life of Jesus! Nevertheless, plaintiffs contend that their property was only inundated when the Corps opened the Addicks and Barker Reservoirs’ (the “Reservoirs”) gates to prevent additional upstream flooding. Pls.’ MSJ”) at 1. This leads the Court to the question of whether the government did something wrong? The plaintiffs do not allege that it did, and, even if the plaintiffs had made such an allegation, the Court does not have tort jurisdiction, so it cannot analyze whether the government action was negligent. The answer of what caused the damage is thus inescapable to the Court’s eye and mind. The damage was caused by Hurricane Harvey, and such a hurricane is an Act of God, which the government neither caused nor committed.

The remaining question is what were the property rights allegedly taken? Plaintiffs suggest that the government took an easement against their property by storing of water on their lands. Plaintiffs’ Opposition to the Government’s Motion to Dismiss (hereinafter “Pls.’ Resp. to MTD”) at 14. Put a different way, plaintiffs allege that the government could have done more to ensure perfect flood control efforts, and because the government did not do more, it failed to stop the flooding of their lands. Of course, the water from the hurricane was not the government’s water, unless the storm was also created by the government’s wind and air and sun and sky. These were flood waters that no entity could entirely control. The government attempted to mitigate against them, but it could not. Thus, plaintiffs’ claims are essentially that they were entitled to perfect flood control, simply because government set up a flood control system to help protect residents in the Houston area. Plaintiffs also claim that the mere presence of the water control structures means that the government owned all waters that passed through them. So, do plaintiffs have the right to be perfectly protected from flooding? The simple answer is no; the right to perfect flood control it is not recognized by either Texas property law or federal law. The purpose of the Constitution’s Fifth Amendment protections is to protect legally recognized property rights, but those property rights can only be created by the states or the federal legislative and executive departments. While the Court sympathizes with the plaintiff’s loss, the Court’s function is to say what the law is, not what the law might become.

Slip op. at 1-2. 

So let’s get this straight: the government’s intentionally choosing to flood downstream properties in order to prevent other properties from flooding isn’t a negligence tort (agree with that), but can’t be a taking (not so sure we agree with that). We don’t have time right now to dive into it deeper, but a quick glance through this opinion reveals to us that the court looked at the case more through a tort than a takings lens. Should these questions have been answered a different way?

  • What is the property interest plaintiffs claim was taken? The land, the right to exclude. Not “perfect flood control.” When the court revised the narrative about the rights they claim were taken by focusing on the government action, it’s game over, man, game over. (“Put another way…”). The Achilles’ Heel of the opinion was the court’s Hobbesian assumption that the property rights here were those “created” by the government (“but those property rights can only be created by the states or the federal legislative and executive departments”). We thought that the owners here were alleging “old” property, not “new” property? 
  • This wasn’t “negligence,” and no one alleged it was. Yet, the court talked re-casted the claim as a negligence action. (“This leads the Court to the question of whether the government did something wrong.”). No one says that the Corps did something wrong. Indeed, a takings claim in premised on the assumption that the Corps did it right (i.e., the taking of the downstream properties was “for public use”). 

With so much at stake, and a seeming conflict with the upstream decision, this one isn’t over yet.

In Re Downstream Addicks and Barker (Texas) Flood Control, No. 17-9002 (Fed. Cl. Feb. 18, 2020) 

Continue Reading CFC: God Forced Corps Of Engineers To Open Floodgates