Addicks/Barker Reservoirs Flooding Damages

August 03, 2018

Reminder – Upcoming Deposition Broadcast

We will be taking the deposition of Mr. Richard Long – the U.S. Army Corps of Engineers’ representative in charge of managing the Addicks and Barker reservoirs, on Tuesday, August 7, 2018, at 10:00 a.m. We will be coordinating with leadership attorneys for this deposition.

The deposition will be broadcast live in the conference room on the first floor of our office’s building. If you are interested in watching, please contact us at: 713-864-4000, or e-mail us at: txlaw@lawtx.com to RSVP.

Conference room address:

Towers at Westchase I
10370 Richmond Ave., 1st Floor – Conference Center
Houston, TX 77042

July 27, 2018

Upcoming Deposition – Invitation to Watch

Our firm is scheduled to take the deposition of Mr. Richard Long – the U.S. Army Corps of Engineer’s representative in charge of managing the Addicks and Barker reservoirs. The deposition will take place at our office on August 7, 2018, at 10:00 a.m. We will be coordinating with leadership attorneys for this deposition.

While the deposition will be taken at our office, it will be broadcast live in the conference room on the first floor of the building, and is open to the Plaintiff homeowners. If you are interested in watching the deposition, please contact us at: 713-864-4000, or e-mail us at: txlaw@lawtx.com to RSVP. Seating will be limited on a first come, first serve basis, please contact us soon.

Address to our conference room:
Towers at Westchase I
10370 Richmond Ave., 1^st Floor
Houston, TX 77042

Discovery and Other Issues

We are still heavily engaged in the discovery phase of the case. As of today, we are about half way through the depositions of the Plaintiffs test properties. At the present pace, we expect to conclude the depositions by September. Then, we expect to begin the “expert witness” stage.

We have been informed that the attorney previously representing the Government – Ms. Jaqueline Brown – is being reassigned to other tasks out of country. We have been informed that the Government has assigned new attorneys to the case, who are:

Downstream: Kristine Tardiff (from DOJ’s New Hampshire office)
Upstream: William Shapiro (from DOJ’s California office)

Hearing Before Judge Lettow

On July 24, 2018, Judge Lettow (Upstream) held a hearing on issues involving discovery. The parties discussed upcoming depositions of government witnesses, including Robert Thomas (Army Corps of Engineers’ chief of engineering and construction), and Richard Long (Army Corps of Engineers’ natural resource management specialist), and production of documents. Judge Lettow asked the government attorney to do what he can to move depositions forward as quickly as possible. Based on the current plan, the depositions of these individuals will be carried out by Upstream and Downstream counsel separately – meaning that these individuals may be deposed twice by different attorneys.

Documenting Damages

Although we are still in the first phase of the case (liability), we would ask everyone to document your losses to your property now rather than later. As time goes on, information and records could be lost, and memories could fade. Preservation of evidence concerning the property damage at this time is thus important.

As discussed in our previous updates, we would ask everyone to gather and maintain records for the following items for the time being:

(a): Documents reflecting the costs to repair your property. Estimates from contractors, invoices and bills, and receipts and checks in relation to any repair/rebuild. If such repairs were paid for with cash, we would ask you to please document the payment as well.

(b): Content (personal property) lost due to the flooding, such as furniture, appliances, electronics, and vehicles.

We are including a sample Excel Worksheet with this Update (titled “Content List Worksheet”). Please feel free to use this, or adjust it to fit your situation.

We know it is impossible to list and identify everything that was lost, so we only ask you to list them to the best of your ability. To the extent that there are receipts, appraisals, or insurance payment paperwork available for lost content, please also keep them. Additionally, photographs of the items lost, taken before loss (previous family photos capturing the dining room table that was lost, pre-loss insurance photos, etc.) work well.

(c): If you plan to sell your property, we would ask you to maintain an appraisal of the fair market value of the property before the flooding (if available).

(d): Any other out-of-pocket expenses – such as rent paid for temporary housing.

The more information and documentation, the easier it will be to claim and prove them in Court. Let us know if you have any questions.

Houston After Harvey

The Houston Public Media has recently launched a program named “Houston After Harvey.” This is a program that discusses Houston’s experiences and memories following Harvey. Multiple community leaders, public officials, and Houstonians were interviewed and gave their perspectives. The program is available at: https://www.houstonpublicmedia.org/harvey/

Additional Information

Our firm is available to provide more information in person or via seminar to the general public. Please let us know if you are interested in obtaining more information, or would like to participate in the case. Please feel free call us at 713 864-4000 or write to us at: txlaw@lawtx.com to schedule a meeting, for a free information session.

June 29, 2018

Discovery Moves Forward

The deposition phase of the case has officially begun. On June 27, 2018, the first set of Plaintiff depositions for the Downstream cases were taken (the first set of depositions for the Upstream cases took place the week before). Plaintiff depositions will continue throughout the summer and into early August, with approximately two dozen depositions scheduled for the test property owners.

Depositions of the government’s representatives and employees may also take place during the same time frame, likely to start in mid-July. Our law firm is scheduled to depose various witnesses with knowledge of the government’s decision to open the Reservoirs’ flood gates during August 27 – 28, 2017; as well as witnesses who have been designated by the government as “representatives” of various subject matters under Rule 30(b)(6). We plan to provide further updates upon the completion of these depositions.

Additionally, the government is currently conducting another round of elevation surveys of the various test properties. These elevation surveys will continue in conjunction with the witness depositions.

June 29, 2018 Hearing with Judge Braden

On June 29, 2018, the Downstream counsel held a conference call with the Court. Judge Braden reiterated her commitment to take this case to trial pursuant to the current schedule. She urged the parties to move forward quickly and resolve any outstanding discovery issues. We will comply with her instructions and continue to prosecute the case aggressively.

Upcoming Harris County Flood Bond

For those who reside in Harris County:
Harris County is currently proposing a $2.5 billion bond for flood risk reduction projects. This bond will include the following projects:

• Channel modifications to improve stormwater conveyance
• Regional stormwater detention basins
• Major repairs to flood-damaged drainage infrastructure
• Removing large amounts of sediment and silt from drainage channels
• Voluntary buyouts of flood-prone properties
• Wetland mitigation banks
• Property acquisition for preserving the natural floodplains
• Drainage improvements made in partnership with other cities, utility districts, or other local government agencies
• Upgrading the Harris County Flood Warning System

The vote for this bond is currently scheduled for August 25, 2018 – the one-year anniversary of when Hurricane Harvey made landfall.  More information concerning the Bond Program is available at: https://www.hcfcd.org/bond-program/

More from Harris County

Recently, the Harris County Flood Control District (HCFCD) – the local partner of the U.S. Army Corps of Engineers – held a series of community meetings to provide information on Harvey and what Harris County is doing to address flooding risks.

Some key takeaways from the meeting:

• 154,170 houses in Harris County (11%), along with 300,000 vehicles flooded.
• HCFCD has been cleaning and clearing Buffalo Bayou since last year, and has substantially improved the channels.
• However, if another hurricane / tropical storm similar in size and magnitude to Harvey arrives, the outcome will likely be similar.If that happens, Harris County’s options will be limited. Please go buy flood insurance.

For a list of upcoming HCFCD Bond Program community meetings, please see: https://www.hcfcd.org/bond-program/community-engagement-meetings/

April 19, 2018

Today, Judge Braden issued a new scheduling order to the case (Downstream).  There are many material changes to her previous scheduling order.  Most importantly, the Judge pushed the trial setting back – from November of this year to April, 2019.

Below are the new dates:

Date	Planned Schedule
May 17, 2018	The Court Will Convene A Telephone Conference At 1:00 P.M. (EST). Dial-In Information Will Be Provided Under Separate Cover.
September 14, 2018	Fact Discovery Concludes.
October 15, 2018	Both Parties Simultaneously Will Exchange Expert Reports.
December 7, 2018	Expert Discovery Concludes.
January 11, 2019	The Government Will File A Statement Of Material Facts To Support Any Motion For Summary Judgment, Together With Any Affidavits Or Declarations. See Rule of the United States Court of Federal Claims (“RCFC”) 56(a).
January 18, 2019	Plaintiffs Will File A Response, Either Accepting Or Rejecting The Government’s
January 11, 2019	Plaintiffs Will File A Response, Either Accepting Or Rejecting The Government’s January 11, 2019 Statement Of Material Facts. (If Plaintiffs Accept The Government’s January 11, 2019 Statement Of Material Facts, The Court Will Set A Briefing Schedule On February 1, 2019. If Plaintiffs Do Not Accept The Government’s January 11, 2019 Statement Of Material Facts, A Pre-Trial Conference Will Be Held On February 1, 2019.).
February 1, 2019	The Court Will Issue A Briefing Schedule For Summary Judgment And Oral Argument, Pursuant To RCFC 56, Or A Pre-Trial Conference And Hearing Will Be Held At 10:00 A.M. (CST) At The United States District Court For The Southern District Of Texas In Houston, Texas. See RCFC App’x A, VI (Post-Discovery Proceedings).
February 28, 2019	Both Parties Will Meet And Confer And Designate And Exchange Exhibit Lists, Including Any Exhibits To Be Proffered As A Summary. See RCFC App’x A, VI 13 (b), (c); see also FED. R. EVID. 1006. Both Parties Will Meet And Confer And Designate And Exchange Witness Lists, Including Experts And Rebuttal Experts. See RCFC App’x A, VI 13(b), (c). Both Parties Will Exchange The Direct Testimony Of Experts.
March 8, 2019	Both Parties Will File A Joint Certification. See RCFC App’x A, VI 13(d).
March 25, 2019	Both Parties Simultaneously Will File Any Pre-Trial Memorandum Of Law (Optional).
April 8, 2019	An Evidentiary Hearing To Develop The Factual Record Required To Adjudicate Contested Issues Concerning Jurisdiction And A Trial On Liability Will Commence At 10:00 A.M. (CST) At The United States District Court For The Southern District Of Texas In Houston, Texas. Both Parties Will Provide Opening Statements.
April 9, 2019	The Court Will Conduct A Ground And Aerial Site Tour With Both Parties’ Counsel And Expert Witnesses.
April 10, 2019	The Evidentiary Hearing And Trial Will Resume And Continue Until Completion.

 

Read Judge Braden’s order here.

March 21, 2018

Test Properties Selection
We are nearly set with the selection of the “test properties” for the downstream cases and are set with the upstream cases. The government advised its selections and we will be moving forward with these specific properties. We expect the Court to apply its rulings concerning these test properties to other properties in the same geographic zones, in lieu of taking the tens of thousands of flooded properties to trial.

Houston Chronicle Report
A recent Houston Chronicle article reported that, as early as August 24, 2017 (before Harvey arrived in Houston), the Army Corps of Engineers predicted that Hurricane Harvey would fill the Barker Reservoir to record levels and flood neighborhoods to the west of the reservoir. On August 25, 2017, the Army Corps of Engineers predicted that both Addicks and Barker reservoirs would spill beyond government-owned lands, and flood nearby homes and businesses. However, this information was not shared with the public until much later – as late as August 30, 2017. By then, many homes had been inundated for days.

This report does not change our legal theory (constitutional taking), but further reinforces our belief in that the government should take responsibility for flooding tens of thousands of properties both upstream and downstream of the reservoirs.

Comment From Fort Bend County Judge
Fort Bend County Judge Robert Hebert was interviewed by a local Houston radio station – Houston Matters. Judge Hebert commented on the Barker Reservoir flooding (in the upstream area), calling it a “manmade disaster” that occurred because of poor planning.

Listen to the interview here (from 7:50 to 10:23).

Case Status
As expected, the government filed a motion to dismiss the case. In the motion, the government identified several points, to include:
1. The floodwater release downstream is the exercise of the government’s “police power.” And, nothing the government could do would have changed the outcome.
2. There is no right to be free from flooding under Texas law. Therefore, there was no “taking” since no “right” was taken. And, “taking” is only available for properties built before the dams were in place.
3. It is highly likely that the Plaintiffs’ properties would have flooded, had the Army Corps done nothing in the first place.
4. Plaintiffs did not state with sufficient specificity what property interests were taken.
5. This is really a “tort” and not a “taking.” Because this is a tort, the Court of Federal Claims has no jurisdiction.

We expected these arguments and are confident that the Court will not be persuaded. The leadership team filed a response to the government’s motion on March 20, 2018 (there was a similar motion filed by the government concerning the upstream cases; a response to that motion was filed on March 19). The motion(s) will not be heard by the Court until July 14, 2018. We are optimistic that the Court will not grant the government’s motion(s).

In a telephone hearing on March 1, 2018, Judge Braden indicated that she expects to this case to go to trial by November of this year on the “liability” aspect of the case. We will fully cooperate with the Judge’s instructions to ensure a speedy and timely compliance with that goal.

What’s Next

We are working on the next phase of the case – Discovery. This is the phase where we request documents from the government, take depositions of government witnesses and employees, and further “discover” information relevant to the case. We are working with the leadership team to arrange the next steps involved in the discovery phase.

Next Informational Session

We plan to host our next informational session on April 3, 2018, at Frostwood Elementary School (12214 Memorial Dr., Houston, TX 77024), from 6 to 8 p.m. Please pass this on to anyone who is interested in learning about the case, the legal theory, or the status of the lawsuit. We think there is an advantage to joining earlier rather than later, as the Court is likely to hear cases in the order that they were filed.

As always, please feel free to contact us with any questions or comments.

March 15, 2018

Fort Bend County Judge Robert Hebert was interviewed by a local Houston radio station – Houston Matters. Judge Hebert commented on the Barker reservoir flooding (in the upstream area), calling it a “manmade disaster” that occurred because of poor planning.

Hear the interview here (from 7:50 to 10:23).

February 28, 2018

Today, the government filed its “Answer” to the lawsuit, which provides its official response to the Complaint filed by the Plaintiffs (collectively) in this case. For the majority of the allegations, the government responded by either stating it lacks knowledge or information to respond; or, that the government generally denies the allegations made in the lawsuit. The government did raise some specific defenses (e.g. lack of jurisdiction, relative benefit, necessity…etc) in this document. This Answer is generally in line with what is typically filed in this type of cases. There is no need to file a response to this Answer.

A copy of the government’s Answer can be read here.

February 21, 2018

Houston Chronicle reports:
As early as August 24, 2017, the Army Corps of Engineer predicted that Hurricane Harvey would fill the Barker reservoir to record levels and flooding neighborhoods to the west of the reservoir. On august 25, 2017, the Army Corps of Engineer predicted that both Addicks and Barker reservoirs would spill beyond government-owned lands, and flood nearby homes and businesses. Yet, this information was not shared with the public until much later – as late as August 30. By then, many homes were already inundated for days.

See: https://www.houstonchronicle.com/news/politics/houston/article/Army-Corps-predicted-Addicks-and-Barker-flood-12714844.php

January 29, 2018

On Monday, January 29, 2018, our firm sent a team to the U.S. Army Corps of Engineer’s field office to inspect documents pertaining to its operation of the Addicks and Barker reservoirs. This inspection is conducted pursuant to the Court’s scheduling order, which requires an “initial disclosure” of certain information from the federal government. We were presented with about 20 boxes and several cabinets full of documents, drawings, maps, and files, some dated from more than 70 years ago.

During the inspection, we discovered various items of interest – to include an emergency action plan for the two reservoirs, designs and maps of numerous neighborhoods adjacent to the reservoirs, dam safety programs, and projected inundation maps. We are working with the leadership team to summarize and digest these documents.

The Army Corps of Engineer’s field office itself was flooded during the stormwater release, so the document inspection was hosted off-site at a nearby location. We were able to make digital copies of some of the documents at the inspection site, and our team also ended up taking more than 350 photographs of the documents. The government advised that it will scan and copy these documents, although the process is expected to extend into March.

Information Seminar on January 20, 2018

Several weeks ago McGehee, Chang, Landgraf held an information session for home and business owners affected by the Addicks/Barker reservoirs flooding. The room was full and everyone contributed with questions and discussion. Flood victims came to learn about the case, ask questions, and meet the lawyers responsible for seeking relief from the Government.

As you might have heard, the Court expects the attorneys and the government to streamline the litigation. We are working hard to do so. However, each client still has damages to calculate and work up. We will work on the individualized damages for each client and will have expert appraisers look at each and every house that we represent.

At our meeting this Saturday, we will explain in detail the damages process, how to get signed up, realistic expectations, and current issues in front of the Court. If you or someone you know has not yet joined the litigation, please contact us or attend the next information session.

Next Information Meeting: Saturday, January 20th at 10:00am.
We had standing room only at our last meeting. We will hold another information session for flood victims who want to learn about the status of the case, the representative property process, and the plans for recovery of individual damages.

Meeting Location: 10370 Richmond Ave., Suite 890, Houston, TX 77042.
It is at the corner of Richmond and Beltway 8. Please pass this announcement along to your neighbors. Getting the word out about the case and our meetings will be a big help to us and the affected flood victims.

Due to the volume of attendees at the last meeting, please RSVP if at all possible so that we make enough room for everyone. As always, please feel free to call 713-864-4000, email txlaw@lawtx.com to RSVP or with any questions.

January 15, 2018

We filed our second amended complaint today and included additional home and property owners in our case. Click here for a copy of our second amended complaint.

January 4, 2018

Our firm hosted the leadership attorneys for both Downstream and Upstream litigation at our offices. Representatives from the Department of Justice attended the meeting. Both sides discussed how to efficiently move the case forward and handle case related information (such as discovery). Also on the agenda was the selection of “test properties” – cases that are representative of the properties that were damaged as a result of the Addicks/Barker reservoir flooding. Although still a point of significant discussion, it is expected that between 12 to 20 properties will be selected to represent the totality of the affected home and property owners (to be divided between downstream and upstream).

January 3, 2018

We will be meeting with the attorneys representing the Federal Government at our firm to discuss the possibility of selecting “test properties” that are representative of the upstream and downstream properties for the case this Thursday (Jan. 4, 2018).

December 20, 2017

We attended the hearing before the Court today concerning the scheduling of the case. The judge expressed her displeasure of the extensions of time requested by the government, and denied the government’s requests. Although – the judge also indicated that she is willing to reconsider, if the government’s request is more reasonable.

The Court advised that, due to the unavailability of Judge Bruggink and Judge Horn, the Court will likely appoint just one judge for the upstream cases and one for the downstream cases. The parties discussed utilizing the “test property” approach (also referred to as “bellwether cases” by some) in lieu of litigating each and every single case. Judge Braden requested the government’s attorney to advise its position by January 4, 2018.

December 15, 2017

We filed our amended complaint today and included additional home and property owners in our case. Click here for a copy of our first amended complaint.

December 12, 2017

The Court issued an order today, setting a hearing for Wednesday, December 20, 2017, at 10:300 a.m. in Courtroom 10-B in the United States District Court for the Southern District of Texas, at 515 Rusk Street, Houston, Texas. The Court is inviting comment to address alternative “reasonable and instructive recommendations about how to adjudicate jurisdiction and dispositive issues in these cases. This hearing is open to the public, although only the co-counsel appointed by the Court’s November 20, 2017 Orders will be recognized to address the Court.

December 8, 2017

The Court issued an order today denying the Government’s motion to vacate. Judge Braden wrote:

Counsel-

The court will be issuing an Order in response to the Gov’t’s December 1 Motion to Vacate either today or Monday and does not believe any response from the plaintiffs is necessary. That Order, however, will ask both parties views about a potential modification to the court’s November 20th Orders.

Susan G. Braden, Chief Judge
United States Court of Federal Claims

December 5, 2017

Judge Braden issued an order, consolidating the cases that fall under the “downstream” for the purpose of pretrial management. Judge Braden issued a similar order that also consolidated the “upstream” cases.

Per Judge Braden’s order, she has made the following assignments:

Downstream cases
– The Honorable Susan G. Braden has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7).

– The Honorable Marian Blank Horn has been assigned to this Sub-Master Docket to manage pre-trial discovery and adjudicate all pre-trial dispositive motions.

Upstream cases
– The Honorable Susan G. Braden has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7)

– The Honorable Charles F. Lettow has been assigned to this Sub-Master Docket to manage jurisdictional discovery and adjudicate issues presented by any motion filed, pursuant to RCFC 12(b)(1)–(7).
The Honorable Eric G. Bruggink has been assigned to this Sub-Master Docket to manage pre-trial discovery and adjudicate all pre-trial dispositive motions.

December 1, 2017

The Government filed a motion to vacate to challenge Judge Braden’s November 20, 2017 order.  The motion claims that the November 20 orders do not give the Government enough opportunity to “obtain meaningful fact and expert discovery,” and that these orders “will cause inefficiencies and waste, prejudice to the United States in defending the large number of claims presented, and potentially inconsistent and overlapping decisions.”

November 20, 2017

Judge Braden issued a total of four orders. In the order (Document 67), Judge Braden appointed our firm as one of the representatives for the individual cases.

Read Judge Braden’s order here.

Judge Braden’s order also appointed additional judges to the case, and established the following deadlines:

Date	Judge Susan G. Braden (Downstream)	Judge Marian Blank Horn (Downstream)
	Judge Charles F. Lettow (Upstream)	Judge Eric G. Bruggink (Upstream)
12/8/2017	the Government will file any Motion For A More Definite Statement, pursuant to RCFC 12(e).
12/15/2017	the parties will exchange Mandatory Initial Disclosures, including lists of documents and tangible items.
12/29/2017	the parties will exchange electronically stored information and hard-copy documents.
1/15/2018	Plaintiffs may file an Amended Complaint, consolidated or otherwise, in response to any motion filed on December 8, 2017, pursuant to RCFC 12(e).
1/30/2018		all initial disclosures and electronically stored information and hard copy documents filed in the pre-trial phase of this case, will be provided to opposing counsel.
2/15/2018	the Government will file any Motion To Dismiss, pursuant to RCFC 12(b)(1)-(7).
2/28/2018		the Government will file an Answer, pursuant to RCFC 7(a)(2), in response to any Amended Complaint filed on or beforeJanuary 15, 2018. Thereafter, the parties may conduct discovery, subject to court Order, including any expert discovery, to conclude no later than May 31, 2018.
3/15/2018	Plaintiffs will file any Response to the Government’s February 15, 2018 Motion To Dismiss.
4/2/2018	the Government will file any Reply to theMarch 15, 2018 Plaintiffs’ Response.
6/15/2018		the parties will file any dispositive motion(s), pursuant to RCFC 56.
7/14/2018	the court will convene an oral argument in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on the Government’s February 15, 2018 Motion To Dismiss.
7/16/2018		the parties may file any Responses and/or Cross-Motions to May 14, 2018 dispositive motion(s)
7/31/2018		the parties simultaneously may file any Replies.
10/29/2018		the court will convene an oral argument in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on any dispositive motions.

November 1, 2017

Chief Judge of the Court of Federal Claims, the Honorable Susan Braden, along with Chief Judge of the Southern District of Texas, Houston Division – the Honorable Lee Rosenthal, held a hearing to determine the lead counsel for the Harvey flooding case.