2019 CASE UPDATES

DECEMBER 17, 2019

BREAKING – Decision for the Upstream Liability Case: Government Found Liable for Upstream Flooding

This morning, Judge Lettow issued an opinion for the the Upstream case, Case No. 17-9001L.  Judge Lettow found that the government’s actions constituted a “taking” and that the government is liable.  He further instructed the parties to submit six (6) candidates for an adjudication on the issue of “damages” by January 21, 2020.  (this only affects those who are part of the “test properties”)

The opinion itself is 46 pages long, we will just provide the summary of Judge Lettow’s ruling below:

“For the reasons stated, the court finds that the government’s actions relating to the Addicks and Barker Dams and the attendant flooding of plaintiffs’ properties constituted a taking of a flowage easement under the Fifth Amendment. Thus, the court finds defendant liable.”

A copy of the opinion, in its entirety, is available at this link below:
https://www.dropbox.com/sh/vbmi0bl14dc2iri/AACx8HmM2H7CmPYJZRTRxqAUa?dl=0

This is very encouraging news and we are pleased by this ruling.  We certainly hope Judge Smith has this in mind for the Downstream case (17-9002L) as well.

We will report back the government’s response and reaction once we hear from them.  For now: we wish everyone a Merry Christmas and/or Happy Holidays!

DECEMBER 9, 2019

Reminder – Upcoming Downstream Hearing:

We would like to remind everyone that the rescheduled hearing before Judge Loren A. Smith will be held this Wednesday, December 11, 2019, at 10:00 a.m.  This hearing will address the motions for summary judgment for the Downstream case.  It could potentially determine the outcome of the matter.

Location of hearing: United States District Courthouse, Southern District of Texas, Houston Division
515 Rusk St.
Houston, TX 77002

Below is a link that shows the parking available by the Federal Courthouse:
https://www.parkwhiz.com/bob-casey-federal-courthouse-parking/?daily=1

We do not expect Judge Smith to make a ruling during the hearing, and would expect a decision within one to two months thereafter.  Mr. David Frederick of the Downstream litigation team will argue the motion(s) on behalf of the Plaintiffs.

If you are free this Wednesday morning, please join us.

It is now official: the new hearing (on the motions for summary judgment) before Judge Loren A. Smith is rescheduled for Wednesday, December 11, 2019, at 10:00 a.m.  This hearing could potentially determine the outcome of the case.  If you are able to attend this hearing, please come.  If not, we will update everyone about the developments of the hearing at a later time.

Location of hearing: United States District Courthouse, Southern District of Texas, Houston Division
515 Rusk St.
Houston, TX 77002

Below is a link that shows the parking available by the Federal Courthouse:
https://www.parkwhiz.com/bob-casey-federal-courthouse-parking/?daily=1

We hope to see you then!

Upstream: No Decision Yet

We are still awaiting a decision from Judge Lettow.  We have received no indication on the status of this process, and are still waiting for a ruling at this point.  Once a decision is reached, we will advise everyone as soon as possible.  

From all of us here at McGehee ☆ Chang, Landgraf, Feiler: we would like to wish everyone a Happy Thanksgiving!

We regret to inform everyone that the hearing scheduled for tomorrow, Thursday, October 17 has been cancelled. We have just been notified by the Court’s clerk that Judge Smith has fallen ill, and is unable to travel to Houston for the hearing. The clerk also advised that the Court is instead aiming to reschedule the hearing for December 11^th.

If you know anyone who was planning on attending the hearing, please pass this on to him/her. We will advise everyone again once we have a new hearing date scheduled.

Below is a copy of the message that we just received from the clerk:

Subject: Cancelling Oral Argument Tomorrow Good Morning,

I just spoke with Judge Smith and last night he developed a high fever and a stomach bug. Unfortunately, that means that he will not be able to travel today. As a result, the Court has no choice but to cancel tomorrow’s hearing on the cross-motions for summary judgment. I cannot express how greatly the court apologizes for the inconvenience this has caused. I will hopefully be in touch with you some time before the end of the day to set a date for oral argument. Due to two large suites of directly related bid protests, Judge Smith is unavailable for the next six weeks, so our target date for oral argument in Houston is December 11th. The Court again apologizes for the inconvenience this has caused.

We would like to remind everyone that Judge Loren A. Smith will be coming to Houston this Thursday, October 17, 2019, at 10:00 a.m., to host a hearing on the motions for summary judgment in the Downstream case. If you are free this Thursday morning, please join us.

Location of hearing: United States District Courthouse, Southern District of Texas, Houston Division
515 Rusk St.
Houston, TX 77002

Below is a link that shows the parking available near the Federal Courthouse: https://www.parkwhiz.com/bob-casey-federal-courthouse-parking/?daily=1

This hearing could be the turning point in the case, where Judge Smith decides whether the federal government is liable for the flooding, or not. Although – we do not expect Judge Smith to render a decision during the hearing. Instead, we would expect a decision within one to two months thereafter. Mr. David Frederick of the Downstream litigation team will argue the motion(s) on behalf of the Plaintiffs.

See you Thursday!

DOWNSTREAM – GOVERNMENT’S REPLY

Today, the government filed its reply – the final piece in the series of motions and responses exchanged between the parties. This concludes all of the briefings for the motions for summary judgment in this case.

A copy of the government’s reply is available at this link: https://www.dropbox.com/sh/fvqigij6m41osfj/AAAgEt4m9MsIXV21IePJCSeTa?dl=0

Downstream:

On September 16, 2019, the Downstream team filed our response to the government’s motion for summary judgment. This states our position in response to the government’s claims, and our counter-arguments to same. A copy of the response is available at this link: https://www.dropbox.com/sh/fvqigij6m41osfj/AAAgEt4m9MsIXV21IePJCSeTa?dl=0

We would like to remind everyone that the hearing for the motion(s) for summary judgment will be held here in Houston on October 17, 2019, at 10:00 a.m., at:

United States District Courthouse, Southern District of Texas, Houston Division
515 Rusk St.
Houston, TX 77002

This hearing is open to the public and concerns a dispositive motion – where we ask the judge to find the government liable for downstream flooding as a matter of law; and where the government asks the judge to dismiss the case. We do not expect the judge to make a ruling on the day of the hearing, although this hearing could potentially decide the outcome of the case. If your schedule permits, please attend this hearing.

Upstream:

On September 13, 2019, the final arguments of the Upstream case were presented before Judge Lettow in Washington DC. The purpose of the hearing was for both sides to summarize the evidence and arguments presented during the trial of the case, and to conclude the record. This marks the end of the first phase of the Upstream case – the liability phase. We now await a ruling from Judge Lettow.

For those who are interested, a copy of the transcript from the hearing is available at: https://www.dropbox.com/sh/aro4m74ezsckgre/AADNFZvC7cYDc3hhUklK7WmVa?dl=0

Additional Information:

For the Downstream case, we will see you at the hearing on October 17, 2019. However, if the judge does not rule either way, then, the trial of the case is scheduled for February 10, 2020. These dates are fast approaching. If there is anyone who still has not taken action to file their potential legal claim, we encourage you to act quickly.

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 learning more about the case, or would like to participate. Please feel free call us at 713-864-4000 or write to us at: txlaw@lawtx.com to schedule a meeting or a free information session.

August marks the second anniversary of Harvey and the devastation it inflicted. We are reminded on a daily basis of its impact on our community. However, August 27-28 has a different meaning: this marks the second anniversary of the opening of the dams at the Addicks and Barker reservoirs that inundated the downstream area, as well as the flooding of large portions of the upstream area. What sets us apart from the rest of the Houston (and Fort Bend County) is that our properties were sacrificed to save others.
We know that the journey to recovery is still ongoing. We know that many of us were forced to leave their community, the city, and the state. We know many of us still do not have a home to return to, two years later. We want to let everyone know that we are continuing to fight hard for those of us who suffered from this unnatural disaster. We will continue to demand the government follow the Constitution, and fulfill its duty to justly compensate us for what this community deserves.
Below is a short summary of upcoming events:

Downstream:

The government filed its response to our motion for summary judgment, and its motion for summary judgment, on August 2, 2019. A copy of it is available at this link.

Judge Smith will be coming to Houston to host a hearing on the above motions, on October 17, 2019, at 10:00 a.m. (*a change from the previous setting of October 29). The location of the hearing is:

United States District Courthouse, Southern District of Texas, Houston Division
515 Rusk St.
Houston, TX 77002

We ask that as many Downstream homeowners attend this hearing as possible. This is the hearing where we ask the judge to hold the government liable for the flooding of the Downstream area as a matter of law without the need of a trial. Conversely, the government is also asking the judge to relieve it from liability of the flooding it caused. This could potentially be the hearing that decides the outcome of the case. If your schedule permits, please attend.
We will send out more reminders to everyone as the date approaches.

Upstream:

The government filed its post-trial memorandum on August 21, 2019. This is a summary of the totality of the government’s evidence and legal position.

A copy of it is available at this link.

Judge Lettow will host the final hearing for the case at the Court of Federal Claims in Washington D.C. on September 13. We will attend the hearing and advise Judge Lettow’s instructions. We do not expect the judge to issue a decision immediately after the hearing, and a ruling may take a few months thereafter.

New Law Going into Effect:

On September 1, 2019, a new Texas law will go into effect. Under the new Senate Bill 339, signed by Governor Greg Abbott, homeowners who want to sell their property will have to provide more disclosure about the flooding risk of their property to potential buyers. This, however, will likely further depress home values for properties in the affected areas – both for Upstream and Downstream.

The Texas Tribune has an article on this new law, available at https://www.texastribune.org/2019/08/22/texas-law-requires-buyers-to-disclose-flood-risks

“Their Neighborhood was flooded to save Houston”

The following news article was published on Sunday, August 25. This is a detailed story from national media that described our case, and the sacrifices that we were forced to make: https://www.cnn.com/2019/08/25/us/hurricane-harvey-addicks-barker-litigation
(story provided courtesy of Mr. Walt Laflin)

Very few activities occurred during July, both for the Upstream and the Downstream dockets. Although, we expect the cases to pick up momentum again in August.
For Upstream: the Government is scheduled to file its response brief (to Plaintiffs’ opening brief) on August 20, 2019. For Downstream: the Government is scheduled to file its response to our motion for summary judgment – along with the Government’s motion for summary judgment against the Plaintiffs – on August 2, 2019. We expect these briefs to set out the Government’s official legal position on the flooding that it caused.
For the time being, we will wait for the Government briefs to arrive and counter them vigorously. We will also provide the government’s brief(s) to everyone when they become available.

Documenting Damages:

We again remind and urge everyone to take this time to document your losses due to the flooding. If you have not done so yet – please send materials reflecting your losses to us. Over time, memories will fade and documents lost. Preservation of “evidence” of your property loss is important – the more materials we have, the stronger your case will be. It is never too early to act.
Below is a summary of the documents that we are looking for:

(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 (write it down).

(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.

Of course – if you still need more time to put the list of your losses together – that is still time – until the cases enter the second stage (the “damages” stage) of litigation. Let us know if you have any questions.

Additional Information:

It will soon be the two-year anniversary of Harvey by August. If you know anyone who was affected by the flooding, either on the Downstream or the Upstream side, but has not yet joined the case, please remind them to act quickly.

Downstream – Motion for Summary Judgment Filed

With the combined effort of the Downstream team, we have filed our motion for summary judgment against the government. As discussed previously, the motion for summary judgment is a legal tool that we use to bypass the trial, and ask Judge Smith hold the government liable for downstream flooding as a matter of law.
Here, we believe the relevant facts are not disputed – that the Army Corps made a conscious decision to open the floodgates in the early morning of August 28, 2017. And, thereafter, properties along Buffalo Bayou flooded as a result. The federal government made a deliberate decision to sacrifice our homes and properties for a “public use.” We are asking Judge Smith to hold the government liable based on the above.

A copy of the motion is available at the Dropbox link below:
https://www.dropbox.com/sh/fvqigij6m41osfj/AAAgEt4m9MsIXV21IePJCSeTa
Per Judge Smith’s schedule, the government will be filing its motion against us by mid-July, as well as its response to our motion. Our team stands ready to respond to and refute the government’s motion.

Upstream – Post Trial Brief Filed:

Meanwhile, the Upstream team filed the Post Trial Brief with the Court as well. This is a summary of the facts, evidence, and legal arguments presented during the Upstream trial (which concluded on May 17). The government will be filing its Brief next month. As previously advised: Judge Lettow will host one more hearing in Washington, D.C. on September 13 to address these briefs.
A copy of the Brief is available at the Dropbox link below:
https://www.dropbox.com/sh/aro4m74ezsckgre/AADNFZvC7cYDc3hhUklK7WmVa

MAY 20, 2019

Upstream Trial Concludes

The Upstream trial concluded on May 17, 2019. Judge Lettow did not immediately issue a ruling. Instead, he requested both sides to provide post-trial briefing, with the Plaintiffs submitting theirs first. Judge Lettow has scheduled a post-trial hearing in Washington DC for Friday, September 13, 2019 to receive final arguments for the case.
The Upstream trial team did an outstanding job presenting the case. Although, the battle is not over. The remaining parts of the case will be laid out through additional legal briefing. We do not expect a ruling prior to September of this year.

Upstream Trial Update – Week 2

Below is a recap of the second week of the trial. The following witnesses testified:

• Richard Long – the natural resource manager at Army Corps, who oversaw the operations of the Addicks and Barker reservoirs. He claims that, during Harvey, there was so much rainwater coming, that Upstream flooding was inevitable – even if the floodgates were opened completely.
• Dr. Phil Bedient – Plaintiffs’ hydrology expert from Rice University. He laid out the foundation of the Upstream case, and how government flooding caused the flooding to over 10,000 properties Upstream. Dr. Bedient is perhaps the most well-known and qualified expert in this area – e.g. flooding in Houston. Dr. Bedient also refuted the report from the government’s expert witness (Dr. Nairn), and pointed out various factual mistakes in Dr. Nairn’s report.
• Jeffrey East – hydrologist at the U.S. Geological Survey. He testified to basic mechanics and measurements in relation to the Harvey flooding.
• Matthew Deal – appraisal expert for the Plaintiffs. He conducted appraisal for properties in Houston. He testified about the “severity” component of the takings case.
• Les Hansmann – cartographer at the U.S. Geological Survey. He testified that the homeowners should have been aware that their property(s) were subject to flooding.
• Dr. Elizabeth Ash – insurance analyst at FEMA. She testified about the flood insurance and its application to flooded homeowners.
• Michael Nokagaki – program specialist at FEMA. He discussed the rates for flood insurance premiums.
• Steven Fitzgerald – former chief of engineering at Harris County Flood Control District. He talked about Harris County’s involvement during Harvey.
• Dr. Gerald Galloway – expert witness for the government on how the entire City of Houston, and especially the Upstream area, is flood prone. However, Dr. Galloway was excluded by the judge, as the judge did not consider his opinion reliable.
• Dr. Robert Nairn – engineering expert witness for the government. He used computer modeling to project the flooding situation with “floodgates opened,” “floodgates closed, and “no dams built.”
• David Hooper – expert witness for the government. He discussed property losses for the test property plaintiffs based on his assessment.
• Pam Glasschroder – program specialist at FEMA. She discussed the financial assistance provided by FEMA for Harvey victims.
• Stanley Gimont – deputy assistant secretary for grants at the Department of Housing and Urban Development. He addressed the grants and money given to states for community development for flooding.
• Andrew Ickert – hydrology expert for the government (the government attempted to offer him also as an expert in hydraulics and engineering – which was rejected by the court). He testified that the urban development in the Upstream area contributed to the flooding.

In addition to the above, multiple homeowners also got on the stand to testify about their flooding experience and the damages to their properties. Their stories were emotional, heartfelt, and sometimes heartbreaking. Their first-hand experiences provided the human component in this trial.

We will further update everyone when we learn more about the judge’s decision.

MAY 13, 2019

Upstream Trial Update – Week 1

The Upstream trial commenced on May 6, 2019, with a full courthouse packed with lawyers and homeowners. Both sides presented opening statements on Monday, May 6.
Mr. Dan Charest opened for the Plaintiffs. He described how the Army Corps knew that there existed flooding risks for the Upstream properties and the need to take action for decades, but chose to do nothing. He further identified specific examples of flooding damages to the test properties homeowners.
Mr. Bill Shapiro presented opening statement for the government – and the government’s defenses are: that there was just too much rainfall during Harvey for the reservoirs to handle, that the homeowners should have known about the risk of flooding, that the duration of flooding was short (as he puts it: the flooding only lasted a few days), and that the government is not liable under the Flood Control Act. Needless to say, we disagree with all of the above.
Witness examinations followed thereafter. Thus far, the following witnesses have been presented:

• Robert Thomas – chief of engineering and construction at Army Corps of Engineers. He discussed the general facts surrounding the flooding, the decision to open the floodgates, the mechanics and hardware of the reservoirs…etc. He also claimed that, in the past, the Army Corps had held various public meetings to announce the possibility and likelihood of flooding in the Upstream area.
• Jeff Lindner – meteorologist with Harris County Flood Control District. He discussed the weather condition surrounding Harvey in August – September of 2017. He also claimed that Houston is flood prone, and that everyone should have gotten flood insurance.
  Mark Vogler – Fort Bend County Drainage District Engineer. He testified that, in his experience, the vast majority of the residents in Ft. Bend County, adjacent to Barker reservoir, were unaware that their properties were in the boundaries of a reservoir.
• Paula Johnson-Muic – an attorney for the Army Corps of Engineers. She addressed the decision by the Army Corps to not acquire additional lands for the reservoirs (e.g. to increase storage capacity).
• Bill Kappel – a weather expert for the government. He testified that Harvey is a 2,800 year event. Although – he also admitted that it could occur again in our lifetime.
• Kurt Buchanan – an economist at the Army Corps. He testified about the flooding model and the evaluation of impact of flooding upon Houston, as calculated by the Army Corps.
• Randall Bell – real estate expert for the Plaintiffs. He discussed the impact of flooding upon the real estate market for the Upstream area, as well as the “severity” component of the impact of the Harvey flooding.

In addition to the above, the Plaintiffs also called several homeowners to the stand, who described their view and experience of the flooding on their homes and properties.
We will continue to update everyone on the progress of the Upstream trial, as it now moves into the second week. Again: the trial is supposed to conclude by Friday, May 17.

Media Reports

The Houston Chronicle has been following and covering the trial. Some of their reports are available digitally. For example:

• Hurricane Harvey flooding victims get their day in federal court https://www.houstonchronicle.com/news/houston-texas/houston/article/Hurricane-Harvey-flooding-victims-get-their-day-13823974.php
• Hurricane Harvey victims slog through mud with out-of-town judge https://www.houstonchronicle.com/news/houston-texas/houston/article/Hurricane-Harvey-victims-slog-through-mud-with-13830833.php#photo-17377955

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

APRIL 30, 2019

Downstream Schedules Set

We had a telephonic conference with Judge Smith on Friday, April 26. During the conference, Judge Smith established timelines for the upcoming summary judgment motions to be filed by the Plaintiffs and the government.
Our firm’s senior partner, Jack McGehee, then approached the judge and specifically requested a date for the trial for the downstream case. Jack explained to the judge that many homeowners are still suffering from the adverse consequences of flooding, nearly 2 years after the fact. Many of us are looking for a definitive date for trial – Houstonians want our day in Court.
Judge Smith heard us, and agreed — he then scheduled the trial for the Downstream case for February 10, 2020.

The following is a list of the timelines for the Downstream case set forth by the Court:

June 14, 2019: Plaintiffs’ Motion for Summary Judgment
July 16, 2019: Status Conference
July 26, 2019: Defendant Government’s Response and Cross-Motion for Summary Judgment, and supplemental briefing on issues set forth in the Court’s Order (of April 1, 2019)
September 9, 2019: Plaintiffs’ Reply to Government’s Response to Motion for Summary Judgment, Plaintiffs’ Response to Government’s Cross-Motion for Summary Judgment, and supplemental briefing on the issues set forth in the Court’s Order (of April 1, 2019)
October 7, 2019: Defendant Government’s Reply
October 23, 2019: Oral Argument on the motions for summary judgment in Houston at 10:00 a.m. Central.
February 10-21, 2020: Trial (in Houston, Texas).

*As explained last time, below is the explanation of what a “motion for summary judgment” is:

“A motion for summary judgment is a motion where either side can ask the judge to make a decision based on the law. If the judge agrees, then, the judge would enter a “judgment” summarily for either side. In our case, if the judge agrees with the government, then he would issue a judgment in its favor, and dismiss the case. Conversely, if the judge agrees with us, he would enter a judgment in our favor, and hold that the government has “taken” our property. Or, the judge could deny both motions, and we would move forward to the next stage – trial.”

Upstream – Trial

The upstream trial is scheduled to start on May 6, 2019 at the federal courthouse in downtown Houston. Although you are welcome to attend, unless you have been specifically notified, you do not need to attend the trial.

The trial will last two weeks, and will conclude by May 17, 2019. Each side will be given 32 hours (for a total of 64 hours) to present their case and arguments. In addition, Judge Lettow has scheduled a site visit to the reservoirs on Wednesday, May 8, 2019, and will be accompanied by the Plaintiffs’ and the government’s lawyers, plus a court reporter and other personnel.

At the conclusion of the upstream trial, we expect judge Lettow to then take the matter under advisement. We do not expect him to issue a ruling on the same day – it could take the Court a while before a decision is made and a ruling is written.

APRIL 18, 2019

Downstream

Judge Smith did not issue a ruling on the government’s motion to dismiss. Instead, he hosted a telephone conference on Wednesday, April 17, 2019, and explained to us what he would like to do next.

He asked both sides to file a “motion for summary judgment” – one from the Plaintiffs, and one from the government. Thereafter, both sides will file a response to the other side’s motion, and a reply to the response.

A motion for summary judgment is a motion where either side asks the judge to make a decision based on the law. If the judge agrees, then, the judge would enter a “judgment” summarily for either side. In our case, if the judge agrees with the government, then he would issue a judgment in its favor, which ends the case at the trial level. Conversely, if the judge agrees with us, he would enter a judgment in our favor, and hold that the government has “taken” our property.

Or, the judge could deny both motions, and we would move forward to the next stages – expert discovery and trial.

Judge Smith’s instruction is a very interesting development in the case. He asked us to coordinate with the government on scheduling dates and timing for the motions (and the response and the reply). We will do so. Based on his plan, we would file our motion first, with the government filing its motion and its response about 30 days later.

Upstream

The upstream trial is scheduled to begin in 17 days. The government has identified 850 exhibits (this includes expert reports and rebuttal reports) and 29 witnesses (fact witnesses, and experts). There will be a pretrial conference on April 24, 2019. The first day of trial will likely consist of a morning in the courtroom and the afternoon performing a site visit of the reservoirs and the upstream test properties. The site visit is planned to be on the record as if in court. We will provide updates as the trial moves forward.

Upcoming Events and Meetings with Governmental Representative

There are a number of upcoming events involving the Army Corps of Engineers:

(1): Conversation on Flooding

Congresswoman Lizzie Fletcher (TX-07) is hosting a conversation on flooding on Thursday, April 25, 2019, at 10:00 a.m. (to 11:30 a.m.). Representatives from FEMA and the Army Corps of Engineers are expected to be in attendance.
Location of the event:
Memorial Drive United Methodist Church
12955 Memorial Drive
Houston, Texas 77079

(2): Public meeting on Buffalo Bayou and tributaries study

Houston City Council member Greg Travis will be hosting a public meeting on the Buffalo Bayou and tributaries resiliency study, sanctioned by the Army Corps of Engineers and the Harris County Flood Control District, aimed to study flood risk management. There will be five such meetings, and the two meetings that are the closest to us (Upstream and Downstream) are:

Upstream:
April 30, 2019, 5:00 P.M. to 8:00 P.M.
Kingsland Baptist Church Activity Center
20555 Kingsland Blvd.
Katy, TX 77450

Downstream:
May 2, 2019, 5:00 P.M. to 8:00 P.M.
St. John Vianney Catholic Church Activity Center
625 Nottingham Oaks Trail
Houston, TX 77079

We encourage everyone to attend if your schedule permits, and ask lots of questions to see what the federal and county governments are planning to do.

Reminders

We want to again remind everyone that the Upstream trial is scheduled to commence on May 6, 2019. If you are interested in joining the Upstream case to seek compensation for government flooding, now is the time. Please act quickly.
Our firm is available to provide more information in person or via seminar to those affected by the Addicks / Barker reservoirs floodings, as well as the general public. If you are interested in learning more about the case and how to join, please feel free to call us at.

MARCH 14, 2019

Downstream Hearing

The hearing on the government’s motion to dismiss was held yesterday before Judge Smith, who traveled to Houston from Washington D.C. for the hearing. The government’s legal team traveled from all over the country for this motion. We asked Mr. David Frederick and Mr. Will Consovoy, who practice in D.C. and are well known appellate lawyers to present the arguments on behalf of the Downstream team.
The government focused on two points (it previously raised multiple points in its motion) to the Court: (1) Causation: the government claims that the homeowners have to show that their homes would not have flooded, but for the construction of the Addicks and Barker reservoirs. In other words, the government contends that we have to show that the construction of the Addicks and Barker reservoirs (built in the 1940s) caused the flooding. (2) Frequency: The government claimed that one event does not constitute a taking, and that for the homeowners, there is no right to be free from flooding guaranteed by law.
These two points were fiercely refuted by the team. First: for many, many homeowners, the flooding only occurred after the storm had ended, the rain had stopped, and the sun came out. Hurricane Harvey itself was not necessarily the cause of the flooding – instead, the government’s decision to open the floodgate was.
Judge Smith asked a question: what if, when the homeowners purchased their homes, they knew that the homes were in a known flood plain? (The government had claimed that Houston is the city that is most likely to flood in the U.S.)
David responded by explaining that, here in Houston, we have a saying: Houston floods, and Houston drains. Temporary flooding that lasted hours was known to occur in the past. But, the flooding suffered by the homeowners in this case – which lasted days and weeks, occurred not as a result of nature, but as a result of manmade flooding. Plus, the vast majority of the homeowners here have never flooded before. In fact, even the government’s own expert conceded that the majority of the test properties (the representatives) flooded as a result of the government’s action – known and referred to as “federal water.”
And, based on the documents produced by the government and the testimony given by government’s own witnesses, the Army Corps of Engineers knew that its decision was going to flood homes, knew that there was a “public use” behind this decision, and went ahead and did it anyway. This is the classic example of a government “taking” – which requires compensation, per the Constitution.
That concluded the hearing, which lasted more than two hours. Judge Smith advised that he will take the arguments from both sides into consideration, and will try to have a ruling within 2-3 weeks. He will then host another hearing on setting up the remaining schedule for the case.
Overall, we think the hearing went well. In the meantime, we will keep our fingers crossed on the judge’s decision. We will of course update everyone when we hear more from the judge.

Thank you

We want to thank everyone who attended the hearing yesterday. The courtroom was full, and it made an impression on Judge Smith. He commented that this has been one of the most attended hearings that he had seen in recent times. We made an impact together. Thank you.
For those who did not get the chance to participate yesterday – don’t worry. There will be more opportunities, as we expect several more hearings down the road. We will provide more updates when further dates are scheduled.

FEBRUARY 13, 2019

Status of the Case

Downstream

On February 12, 2019, Judge Smith convened a telephone conference on the status of the case. We attended the hearing, and again iterated the importance of moving the case forward and having a trial date scheduled, as well as the emphasis that our community has placed on this case. Judge Smith considered the arguments, although he did not schedule a trial date. Instead, Judge Smith stated that he would like to first consider the motion to dismiss that was previously filed by the government last year (February 2018), and scheduled March 13, 2019, 9:30 a.m. as a hearing date for same. This hearing will take place here in the federal courthouse in Houston, Texas (515 Rusk St., Houston, TX 77002). No other dates have been scheduled at this time. We encourage everyone to attend.
We will of course attend the hearing and oppose the government’s motion. We anticipate that Judge Smith may schedule further dates during the hearing, including a possible site visit to the reservoirs and the test properties located along Buffalo Bayou. We hope to find out more by the time of the March 13 hearing.

Upstream

On February 13, 2019, Judge Lettow also convened a telephone conference. Judge Lettow set May 6, 2019 as the trial for the Upstream case. In addition, Judge Lettow also scheduled May 8, 2019 as the date for a site visit (of the reservoirs), to take place in the afternoon (1:30 to 2:00 p.m.). Both sides and the Judge also discussed some other deadlines for various other events (exchanging exhibits list, witness list…etc).

JANUARY 31, 2019

Status of the Case

The partial government shutdown came to an end on Friday, January 25, 2019. A number of things have happened since then.

Downstream

Within hours of the shutdown ending, our firm filed a request for an expedited conference with the Court. We asked the judge to maintain the previous trial setting (April 9, 2019), and cited examples of many homeowners who are still suffering from the aftermath of the flooding to this day – one and a half years later. We asked the judge to maintain the pace and to not let up, and to continue to meet the expectations of Houstonians.

On January 28, 2019, Judge Loren A. Smith issued an order denying our request and stating that a telephone conference would be scheduled in the coming weeks. Thereafter, the Court plans to hold a hearing in Houston sometime in March.

Upstream

While Judge Lettow suspended the Upstream case on January 18, 2019, the Upstream case was only suspended for seven days. The suspension was lifted when the temporary government shutdown ended on January 25, 2019. The Upstream team has proposed a new trial date of March 19, 2019.
The government has since filed a motion with the Court asking Chief Judge Sweeney to set up a scheduling conference and to establish a coordinated schedule for both the Upstream and Downstream cases. The government also asked for a conference with the Chief Judge before February 15, 2019 (which is also the date of the next possible government shutdown).
As of the time of this update, we still do not have a schedule or trial date in place, and many questions remain to be answered. We are hoping to have more clarity in the coming days from the Court. Once we have more information, we will continue to update everyone.
As always, please feel free to contact us with any questions or comments.

JANUARY 21, 2019

Upstream Case Deadlines Suspended

We write to report that last Friday, Judge Charles Lettow signed an order suspending the case deadlines, including the trial schedule, of the Upstream case (previously scheduled for February 19, 2019). The Court’s order was due to the partial government shutdown and the lack of funding for the Department of Justice (and other branches of the government). The government attorneys argued that the partial shutdown and lack of funding prejudiced their ability to prepare for the trial as scheduled. Judge Lettow reluctantly agreed and issued an order suspending all deadlines in the Upstream case, until Congress appropriates funding to the Department of Justice.
We are disappointed with the suspension and hope the President and Congress can quickly find a compromise to end the political stalemate that caused it. As argued by Plaintiffs’ Counsel to the Court, the people in our community are still suffering from the harms inflicted by the government in August of 2017. We need a resolution, fast.

JANUARY 9, 2019

New Judge(s) Assigned; Change in Downstream Case

We just received an order from the Court with a new development: the Downstream case has been reassigned from Judge Susan Braden to Judge Loren A. Smith. This reassignment came without any prior notice from the Court, and there was no motion before the Court requesting the reassignment.

The Upstream case is still assigned to Judge Charles F. Lettow. Although, both the Downstream and Upstream cases are also assigned to the (now) Chief Judge Margaret M. Sweeney.

Downstream Case Postponed; Upstream Case Continues

On January 8, 2019, Judge Smith issued an order postponing the Downstream case. Citing the recent partial government shutdown, Judge Smith stated that the current trial and pre-trial schedules were “infeasible and inoperable.” Judge Smith stayed the Downstream case, and will convene a scheduling conference once the partial government shutdown is over and appropriations to fund the Department of Justice have been re-initiated. At this moment, we do not know when the Downstream trial (scheduled in April) will move forward.

Although the trial setting and deadlines in the Downstream case were stayed, the trial setting and deadlines in the Upstream case are still in place and, at this time, set to move forward as scheduled.

We are disappointed with the postponement of the Downstream case and hope it will get back on track soon. We will strongly urge Judge Smith to move the case forward and minimize any delay. Once Judge Smith convenes a scheduling conference, we will immediately advise every one of the Downstream case’s status.

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