Addicks/Barker Reservoirs Flooding Damages

Home or property owners near the Addicks / Barker reservoirs whose property was flooded due to the actions of the Army Corps of Engineers on August 27-28, 2017, this applies to you.

houston flooding attorney

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:

  1. Judge Smith instructed us to prepare for a 1 to 1 ½ week trial, which will aim to start on October 7, 2024.
  2. 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.

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