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)
