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…

Continue Reading CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking

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 …

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…

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: 

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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:

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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…

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…

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…

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 …

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…

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