At Least We All Agree On One Thing: Nobody Agrees On Harvey Inverse Condemnation Liability

Check out this story by Kiah Collier in the Texas Tribune, "Can flooded-out Houstonians win lawsuits against Army Corps?" The short answer is not everyone agrees.

We noted that inverse cases don't focus on fault, but on distribution of public benefits:  

"The hard part is going to be separating out if someone is at fault,” said Robert T. Thomas, a Hawaii-based lawyer who has been practicing, teaching and blogging about eminent domain law for 30 years and isn’t involved in any of the lawsuits.

“We love to assign blame and the thing about inverse condemnation — why lawyers choose that as remedy rather than negligence — is it doesn’t focus on fault, it focuses on the economic justice of who has to bear the burden of public necessity, public good.”

Thus, we concluded, the cases should focus on compensation, and not whether there's been a taking, because there's little question the Corps purposefully chose to flood the plaintiffs' land, in order to prevent flooding elsewhere.

Others, however, have a different view:

Houston environmental attorney Jim Blackburn, who has represented flood victims in inverse condemnation cases, said he thinks that both upstream and downstream cases are "unwinnable," for different reasons.

While the Corps never purchased easements that would’ve allowed them to flood upstream areas within the reservoirs — something they have done at many other reservoirs they operate around the country — Blackburn said they still have a “de facto easement,” so the cases should be relatively easy for the Corps to defend.

But Houston-area environmental lawyer and engineer Larry Dunbar, who is co-counsel in the class action lawsuit that argues the Army Corps should have done a better job of informing upstream property owners of their risks, said he thinks his clients have a strong case.

Maybe Professor Epstein captured the vibe best when he noted:

“Generally speaking, I think it’s easy to say the government will win,” said New York University law professor Richard Epstein, who has been called the nation’s leading academic expert on eminent domain and takings law. But, he added, “There’s nothing about this which is straightforward or simple.”

We're having a session on flooding cases, and another on property rights in the age of global warming (a topic that naturally includes liability for inundation) at the ALI-CLE Eminent Domain and Land Valuation Conference in Charleston, SC, in January 2018, where you will hear from experts in the field.