“Unlawful Government Takings”

Among the many, many flooded homes in Houston after Hurricane Harvey are some for which the owners say the government is responsible. A group of homeowners is suing both the Army Corps of Engineers and the San Jacinto River Authority for releasing water from a reservoir—water, they say, that damaged or destroyed more than a thousand homes that wouldn’t have otherwise been flooded. With some of those homes valued as high as a million dollars, the damages could run to billions.

Water is sometimes released from reservoirs to prevent overtopping or failure of dams or levees. In this case, water was released to the San Jacinto River. The river authority maintains that the action did not cause flooding or make the existing floods worse. The plaintiffs say it did, though, and that the release of water constituted the taking of their property for public use without compensation.

As this article notes, property owners in Louisiana brought similar suits after Hurricane Katrina in 2005, saying that the government’s failure to maintain the levees, and the subsequent damage when they were breached, was an improper taking. A Loyola College of Law professor quoted in the article says those suits were unsuccessful—and, at the time, they were. However, in 2015, a Federal Claims Court judge ruled in Saint Bernard Parish Government, et al., v. The United States that the Corps’ actions did result in a “temporary taking” and recommended that a mediator assess damages:

“Weighing all the evidence in this case, the court has determined that Plaintiffs established that the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO [Mississippi River-Gulf Outlet] caused subsequent storm surge that was exacerbated by a ‘funnel effect’ during Hurricane Katrina and subsequent hurricanes and severe storms, causing flooding on Plaintiffs’ properties that effected a temporary taking under the Fifth Amendment to the United States Constitution,” wrote Judge Susan G. Braden.

This summary of the case warns of the implication for local governments:

“Notably, Saint Bernard Parish, if it survives appeal, expands government liability from situations in which the government deliberately causes flooding, for example by releasing water from a dam, to include situations in which inaction by the government exacerbates flooding from severe weather. This developing area of law will also have broad implications for local and state governments seeking to prepare for—or deliberately deciding not to prepare for—climate change impacts.”

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