Addicks/Barker Reservoirs Flooding Damages
November 6, 2024
UPSTREAM – Appellate Oral Argument this Friday – November 8, 2024, at 09:00 a.m. (Central)
We write to remind everyone that the oral argument for the upstream appeal is scheduled for Friday, November 8, 2024, at 9:00 a.m. (Central; or 10:00 a.m. Eastern) at the courthouse for the Federal Circuit in Washington DC. This is the event that sets the stage for the final disposition of the appeal. Each side is given 15 minutes to argue (for a combined total of 30 minutes).
For those who are interested in listening in, the oral argument will be available on YouTube, at the Court’s channel:
U.S. Court of Appeals for the Federal Circuit – YouTube
We do not yet know the identity of the judges, which will not be revealed until the morning of the oral argument. We expect a ruling to be made within three to six months after the oral argument.
As always, please do not hesitate to contact us with any questions or comments.
October 21, 2024
DOWNSTREAM – The Trial Begins This Friday
As previously reported, we are getting ready for trial that begins at 10:00 a.m. this Friday at the Federal Courthouse in downtown Houston. This is a limited trial, which is aimed to answer two questions from the judge:
- Was there an emergency that necessitated the United States Army Corps of Engineers (the “Corps”) opening the Addicks and Barker reservoir gates, or were the gates opened as a matter of ordinary operating procedure; and
- What would have happened if the gates had remained closed?
The Downstream litigation team has been working hard in preparation for this long-awaited day. We are prepared to answer these questions for the judge.
The trial will start from this Friday and is expected to conclude by next Wednesday (October 30); followed by a site visit of the reservoirs by the judge on October 31. The trial will take place at the Federal Courthouse at 511 Rusk St, Houston, TX 77002. Our trial will be held in courtroom 8B on the 8th floor. This is a smaller courtroom that will not be as large as previous court hearings, and seating capacity will be somewhat limited. Attendance to this limited trial is not required, although welcome.
We will fight hard to advocate for the Downstream home and property owners this and next week, and report back once the trial concludes. Wish us luck!
As always, please do not hesitate to contact us with any questions or comments.
September 24, 2024
UPSTREAM – Appellate Oral Argument Scheduled – November 8, 2024, at 09:00 a.m. (Central)
We write to report that the long-awaited oral argument for the upstream appeal has finally been scheduled for Friday, November 8, 2024, at 9:00 a.m. (Central; or 10:00 a.m. Eastern) at the courthouse for the Federal Circuit in Washington, DC. This is the event that sets the stage for the final disposition of the appeal.
The argument will be presented at the United States Court of Appeals for the Federal Circuit in Washington, D.C. Both sides (our side, and the government’s sides) are given 15 minutes each to argue (for a combined total of 30 minutes).
For those who are interested to listen in, the oral argument will be available on YouTube, at the Court’s channel:
U.S. Court of Appeals for the Federal Circuit – YouTube
There will be three judges assigned to hear our case – although, the identity of the judges will not be revealed until the morning of oral argument. We expect a ruling to be made on our case anywhere upon three to six months after the date of oral argument.
This is the date that we have been waiting for since the conclusion of the briefings, and we await anxiously for a chance to appear before the Court of Appeals. We will send out another reminder as we get closer to the date of oral argument.
As always, please do not hesitate to contact us with any questions or comments.
August 27, 2024
DOWNSTREAM – Update
We are writing to report that we are expecting another adjustment of the downstream trial date. At the present time, we expect the Court to move the trial to October 25, 2024, and continue on through October 30, 2024. We also expect the Court to schedule a site visit to inspect the reservoirs on October 31, 2024. If additional time is needed by the parties, the Court will schedule additional trial dates.
As previously advised, the trial will be limited to two questions:
- Was there an emergency that necessitated the opening of the reservoir gates, and
- What would have happened if the gates had remained closed?
We have been busy over the past several months. We concluded two expert depositions, including a government engineering expert, and our engineering expert. There is one more expert deposition scheduled in September. In the meantime, we will be gearing up for trial.
Today also marks the 7-year anniversary of the downstream flooding that resulted from the government’s decision to open the flood gates. This is one of the most catastrophic events in the history of our city. And, finally – the long-awaited trial is almost upon us.
The downstream litigation team is ready for our day in court. We will continue to fight on. For all of us.
As always, please do not hesitate to contact us with any questions or comments.
June 10, 2024
DOWNSTREAM – Update
We write to report that there has been an adjustment to the trial date. After some discussion, the Court moved the trial date to October 21, 2024, due to schedule conflicts. Additionally, the Court has also scheduled a site visit to inspect the reservoirs.
The Court has allotted two weeks for the trial, although we do not expect the trial to take that long.
And, as previously advised, Judge Smith advised that the trial will be limited to just two issues, which, in the Court’s own words, are:
- Was there an emergency that necessitated the United States Army Corps of Engineers (the “Corps”) opening the Addicks and Barker reservoir gates, or were the gates opened as a matter of ordinary operating procedure; and
- What would have happened if the gates had remained closed?
Wish us luck in the meantime! As always, please do not hesitate to contact us with any questions or comments.
May 9, 2024
DOWNSTREAM – Update And October Trial Setting
Here is a long-awaited follow-up and case update:
Today, we attended a conference before Judge Smith. Basic takeaways:
- Judge Smith instructed us to prepare for a 1 to 1 ½ week trial, which will aim to start on October 7, 2024.
- Judge Smith advised that the trial will be limited to just two issues, which, in Court’s own words, are:
- Was there an emergency that necessitated the United States Army Corps of Engineers (the “Corps”) opening the Addicks and Barker reservoir gates, or were the gates opened as a matter of ordinary operating procedure; and
- What would have happened if the gates had remained closed?
The judge will not grant either side’s “motion for summary judgment,” but will instead hear evidence and witness testimony to pave way for a ruling.
The trial will be held in the Federal courthouse in downtown Houston (at 515 Rusk St., Houston, TX 77022).
This is the long-awaited trial that we have been hoping for since 2017. We are now finally entering the trial phase. And, since this is a limited trial, the home and property owners do not need to appear for trial (although you are welcome to come watch the process). We expect the trial to last one week (or so).
In the meantime, the Downstream litigation team will be gearing up for trial.
Wish us luck in the meantime! As always, please do not hesitate to contact us with any questions or comments.
February 22, 2024
DOWNSTREAM – All Motions Hearing – Recap
Thank you for showing up to the hearing yesterday. Nearly half the court room was filled with our clients. The Judge noticed and told everyone that he understands the urgency to move forward more quickly.
A recap of the hearing:
The hearing was presided over by Judge Loren Smith – here at the Federal Courthouse in downtown Houston. Both us and the government filed competing motions for summary judgment– which requested the Court to enter a ruling without the need for a trial. The various motions, responses, and replies are available at this link.
Mr. Russell Post of the Downstream litigation team presented arguments before the judge. Mr. Post pointed out that:
- The Army Corps clearly knew that the opening of the floodgates would flood downstream properties
- Per the witnesses from the Army Corps – there was no “emergency” at the time of the floodwater release.
- The Army Corps never declared an emergency – and the Addicks and Barker dams performed as intended
- From a causation perspective, there is no question that the Army Corps’ act (of floodwater release) caused the damages to the downstream property owners.
Mr. Post cited two recent caselaw that addressed the takings doctrine under the 5th Amendment – Ceder Point Nursery v. Hassid, (U.S. Supreme Court) and the Ideker Farms, Inc. v. U.S. (court of appeals for the federal circuit) decisions, and both support our claim of a per se taking, due to the floodwater release – occasioned by the Army Corps. Accordingly – Mr. Post argued that the Army Corps must be liable per se, and the issues concerning damages can be addressed separately later. Alternatively – the government is also liable under a temporary taking theory (under Arkansas Game & Fish Comm. v. U.S. precedent, from the U.S. Supreme Court).
The government then presented its defense – consisted of similar arguments previously presented. The government mainly argues that the dams did withhold a large amount of floodwater, that the release of floodwater was far less than the water that was kept in the dams – and that the dams were overwhelmed by the size of the rainfall during Harvey. The government also insisted that the Court must look at the past benefits – of all the floodings that were prevented prior to Harvey. We will note that the government presented similar arguments during the Ideker Farms, Inc. v. U.S. case, although the court of appeals did not find it persuasive.
The hearing was concluded by about the two hour mark. No decision was reached – and Judge Smith indicated that he would like the parties to prepare to address a few issues. Judge Smith asked the parties to confer with each other and report back to the Court by March 6, 2024. The judge also indicated that he would like to proceed with a trial – with witnesses and expert opinions to aid the judge in making rulings. The judge also indicated that he may be interested in a tour of the Addicks / Barker Dams for a better understanding of their operations.
We will report back once we learn more about the plans for the possible trial of the case.
Many thanks again for those of us who were able to attend the hearing – the presence of the home and property owners was certainly seen and noted by the judge.
As always, please do not hesitate to contact us with any questions or comments.
February 19, 2024
DOWNSTREAM – Hearing Rescheduled
February 21, 2024, at 10:30 a.m.
We write to remind everyone that the hearing on our case is scheduled for this Wednesday, February 21, 2024, at 10:30 a.m. We encourage everyone who is available to attend the hearing in person.
Location of the hearing:
The Bob Casey Federal Courthouse in downtown Houston
515 Rusk St.
Houston, TX 77002
Below is a link that shows parking availability near the Courthouse: https://www.parkwhiz.com/bob-casey-federal-courthouse-parking/?daily=1
The hearing concerns the Downstream case collectively – the judge will not be making a decision on individual cases yet.
Hope to see you then!
February 7, 2024
DOWNSTREAM – Hearing Rescheduled
February 21, 2024, at 10:30 a.m.
We write to advise that, after some delay, the Court has just scheduled the hearing for our motion (and the government’s motion) for Wednesday, February 21, 2024, at 10:30 a.m. We encourage everyone who is available that day to attend the hearing in person.
Location of the hearing:
The Bob Casey Federal Courthouse in downtown Houston
515 Rusk St.
Houston, TX 77002
Below is a link that shows parking availability near the Courthouse: https://www.parkwhiz.com/bob-casey-federal-courthouse-parking/?daily=1
This hearing could be dispositive to our case – as the judge could make a decision that decides the outcome, without the need of a trial. Although – we do not expect Judge Smith to make a ruling at the time of the hearing. We would expect a decision to be made thereafter.
We will remind everyone again as the hearing date approaches.As always, please do not hesitate to contact us with any questions or comments.
January 2, 2024
DOWNSTREAM – Hearing Postponed to February
ATTENTION! JANUARY 10, 2024, DOWNSTREAM HEARING IS POSTPONED.
We know that many of us were planning on attending the upcoming hearing scheduled for January 10, 2024, in the Downstream case. Please note, however, that we were informed today by the Court Clerk that the hearing has been postponed until a day to be determined in February. Once we have a new date and time from the Court regarding the hearing, we will advise immediately.
Thank you for your continued support. We will keep fighting.