Addicks/Barker Reservoirs Flooding Damages
December 31, 2020
DOWNSTREAM: Appellate Timeline
The Court of Appeals for the Federal Circuit issued an order on December 29, which laid out a number of timelines for various events and activities for the appeal.
First, the Court consolidated the various downstream appeals together into one case for the purpose of the appeal. Previously, the case was broken down into individual cases by Judge Smith. This Order brings unity back into the appeal.
Also, this Order sets the following important deadlines:
- March 1, 2021 – Submission of the Appellants’ briefs (Us)
- April 30, 2021 – Submission of the Appellee’s brief (The Government)
- May 21, 2021 – Submission of Appellants’ reply brief
The brief is the most important aspect of an appeal. It is the instrument that lays out all of the legal arguments, summarizes the evidence (documents, testimony, etc.), and explains to the Court why the lower court’s ruling should be overturned. The Downstream team will be working diligently to have the brief prepared in the next 60 days for the Court.
In the mean time, we wish everyone a happy, safe and prosperous 2021. May justice be restored to the people in the upcoming year.
As always, please feel free to contact us with any questions or comments.
October 30, 2020
DOWNSTREAM: Appeal Begins
We write to report that the appeal for the Downstream case has been officially filed. We, together with the Downstream team, submitted notices of appeal to take the case to the United States Court of Appeals For the Federal Circuit. The appeal is now underway. Next, we will be gathering the records to submit to the Court of Appeals, as well as preparing the appellate brief to lay out the law for the appellate court. We will do everything we can to accelerate the process and seek a decision as fast as possible. The ultimate goal: ask the appellate court to reverse the decision by the trial court, and apply the law to find in favor of the Downstream home- and property owners.
The appeals process is different from the litigation/trial process. We will not be re-arguing issues of fact before the appellate court – as it is generally not allowed. Instead, the appeals process only allows us to argue issues of law, and how the trial court made its decision. Also: unlike the trial, there will be three judges (although, we will not know the identity of the judges for some time). The process, from now until the appellate court officially hears the case, is fairly clerical and can be mundane – it involves the parties submitting records to the Court, and then exchanging briefs of the parties’ arguments. We do not expect to have much to report for the coming months. However, if there is any new development, we will of course keep everyone posted.
UPSTREAM:
Per the Court’s previous schedule, the “fact discovery” phase of the case was scheduled to be concluded by October 26. However, the Upstream team and the government have now jointly requested an extension of that timeline, as the parties still have a few motions pending before the Court on the scope of certain outstanding discovery issues. We expect Judge Lettow to extend the discovery deadline. As for the now, the case will continue on.
Next, Judge Lettow will establish a date for trial. Due to COVID-19, the judge does not yet have a definite date, although he has advised that he expects the trial to take place here in Houston – most likely in the federal courthouse in downtown Houston. We will advise again once we hear from the Court.
ARMY CORPS RELEASES STUDY:
The Army Corps has released an Interim Report concerning Buffalo Bayou and Tributaries. This Report outlines the Army Corps’ view on the functions of the Addicks and Barker reservoirs, and how the flooding risks associated with them should be addressed. There are new data and studies, which show what we already know – that the two reservoirs are not equipped to address challenges posed by Harvey (or another event similar to Harvey). For Addicks – it was just barely able to contain a 100-year flooding event; for Barker – a 100-year flooding event would exceed its capacity and flood nearby homes.
The Report also discusses several projects to mitigate flood risks. The plans that are being more seriously considered include: building a third reservoir (Cypress Creek Dam & Reservoir), improving the downstream Buffalo Bayou channel, and a combination of both. The Report reviews the possibility, as well as the cost of doing both – which is estimated to be $5.2 to 7.0 billion.
As the title suggests, this is an interim feasibility report and is not a final plan of action. However, this Report offers the Army Corps’ perspective on addressing the flooding risks. A copy of this report (210 pages) is available at the following link.
September 16, 2020
DOWNSTREAM: Final Order Received
Since our last case update – we have finally received the long-awaited final order from Judge Smith. This is the order that we needed to move forward to the next step in the case – the appeal.
We are working and coordinating with the Downstream litigation team on this as we speak. We had several initial discussions and one more meeting this week. Thereafter, we will be starting the appeal process, and ask the Court of Appeals to review (and reverse) the lower court – Judge Smith’s decision.
For now, the battles continues on! We will keep up the good fight!
August 31, 2020
UPSTREAM – Conference Before the Court:
August 2020 marks the third anniversary of Harvey and the government-induced flooding to this area. At this point, we are still moving forward with the case – through the “discovery” phase. Some of the recent activities include: another site visit to observe the newly constructed reservoir and dam gates, and the gages at the dams; appraisals of the “test properties”; and the deposition of several witnesses. Due to the ongoing pandemic, the process becomes slower. We are still expecting to conclude this phase of the case by the end of October. Judge Lettow has advised that he would prefer to hold a live trial here in Houston, if possible. Although – that also hinges on where things are with the status of the pandemic. We will know more as we move forward with the case.
Report from Local News:
Just last week, our city dodged a category four hurricane that narrowly missed us, but devastated our neighbors to the east. Several days ago, the Houston Public Media reported on the state of the Addicks/Barker reservoirs, and the risk of flooding that still remains to this day. Basically – while some improvements were made by the Army Corps of Engineers, they will not prevent another Harvey should it arrive again. Although the report addresses mainly Downstream area, it is still worth a listen. You can read and/or hear the report at this link:
As always, please do not hesitate to contact us with any questions or comments.
August 31, 2020
DOWNSTREAM:
August 2020 marks the third anniversary of Harvey and the government-induced flooding. As our city and our neighborhoods are still in the process of the long recovery, we would like to let everyone know that we are still in this fight and that the Downstream litigation team stands ready to take the next step – and we are ready to move forward to appeal the adverse ruling from the district court as soon as possible.
At this time, we are still waiting on the “final” ruling from the district court (so that we can file an appeal). The process is delayed, in part, due to the fact that there were several lengthy motions that were recently filed before the judge, which further diverted the judge’s time and attention away from this ruling. (Judge Smith has issued various intermittent rulings in the meantime.)
Each week, we receive multiple inquiries about the status of the case – and we want to assure everyone that as soon as we receive the “final” ruling from the district court, the Downstream litigation team will be moving forward to the appellate court for a decision expediently. We remain committed and hope to have more to report on this soon.
Report from Local News:
Just last week, our city dodged a category four hurricane that narrowly missed us, but devastated our neighbors to the east. Several days ago, the Houston Public Media reported on the state of the Addicks/Barker reservoirs, and the risk of flooding that still remains to this day. Basically – while some improvements were made by the Army Corps of Engineers, they will not prevent another Harvey should it arrive again.
The report is available at this link:
https://www.houstonpublicmedia.org/articles/news/hurricaneharvey/2020/08/26/380413/three-years-after-harvey-risks-remain-offlooding-from-reservoirs/
As always, please do not hesitate to contact us with any questions or comments.
July 31, 2020
We would like to update everyone with a recent case development:
UPSTREAM – Conference Before the Court:
On July 30, 2020, Judge Lettow held a brief status conference on the Upstream case. Judge Lettow has just recently extended the “discovery” deadline of the case to October 26, 2020 – giving the parties more time to exchange and obtain information. Judge Lettow also set up three more such discovery conference dates: in August, September, and October, to see where the parties are in the process.
During the conference, Judge Lettow stated that this case is the most pressing matter on his docket, and he has scheduled his other cases around this one. He reaffirmed his commitment to our case, both in his attention and time. We are glad to have such a committed judge with us.
As we move into August, the (expected) trial setting of the second stage of the case is getting closer and closer (November). We continue to urge everyone who has not yet had the chance to join the case to do so. If you have any questions about the case or would like to learn more, please feel free to contact our office, at 713-864-4000 to speak with one of us. No appointment is necessary.
As always, please do not hesitate to contact us with any questions or comments.
June 30, 2020
UPSTREAM – Discovery Issues and the Court’s Ruling:
Since our last update, the case continued through the “discovery” – the exchange of evidence – phase of the case. Although, the government has put up a number of fights along the way. As of three weeks ago, there were a number of discovery issues pending before the Court, which included:
- The Plaintiffs’ (property owners) request to the government to produce certain documents (such as: updated appraisals, Project analysis, updated inundation maps…etc),
- The Plaintiffs’ request to the government to answer certain Interrogatories – or, questions (such as: the scope of just compensation, the cost of just compensation, any claimed offset to the just compensation…etc),
- The Plaintiffs’ request to take the depositions of certain 30(b)(6) witnesses – representatives of the government, and
- The government’s request to the Plaintiffs for certain disaster-related casualty loss documents (such as the test property plaintiffs’ tax returns).
On June 10, 2020, the Upstream team argued and addressed these motions and issues before Judge Lettow (telephonically) for nearly two hours. Judge Lettow took these motions under advisement. Just yesterday, he returned a ruling – and granted some of the Plaintiffs’ requests while denying some as well. Judge Lettow allowed the Plaintiffs to seek updated hydrology reviews of the flood control plan (concerning Buffalo Bayou) but denied requests for information concerning “offsets” or previous flowage easement. Judge Lettow also denied the government’s request for the Plaintiffs’ tax returns but allowed the request for the records of direct payments (e.g. such as FEMA financial assistance). And – he also allowed part of the Plaintiffs’ request for various documents but denied the Plaintiffs’ request for interrogatories.
These discovery issues can be rather technical, and they are part of the litigation process. Nonetheless, with these points resolved, we are given a bit more clarity on how to move forward with the case. For the time being, we are still scheduled to go to trial in November. We will see if the pandemic has any impact on its timing (hopefully not).
As always, please do not hesitate to contact us with any questions or comments.
June 30, 2020
DOWNSTREAM – Moving Toward The Appeal:
We have received many inquiries about the status of the appeal. At this point, Judge Smith has yet to render a definitive ruling or judgment – although we expect one to be issued after July 10 – the time for the government to file its response per Judge Smith’s “Show Cause” order (as discussed in our March 31 update). The issue to be resolved is whether Judge Smith’s ruling will impact all downstream cases, or whether it will impact just the “test property” cases. But one way or another – we are ready to move forward with an appeal.
We remain committed to taking this case forward and filing an appeal with the Downstream team as soon as possible. The team is ready to present this case before the court of appeals at the Federal Circuit. We hope to have more news to report back, soon.
As always, please do not hesitate to contact us with any questions or comments.
April 30, 2020
Upstream Case – Hearing Before the Court:
On April 28, 2020, Judge Lettow hosted a telephonic hearing on the issue of the “taking” that was the subject of his prior ruling. The purpose of this hearing is to address issues that were briefed by the parties – to include the date and the scope of the “taking.” At the end of the hearing, Judge Lettow announced that he will issue a ruling quickly.
Just this morning, Judge Lettow issued his decision. To summarize: Judge Lettow found that the date of the “taking” is August 30, 2017. He explained that this is –
“…the date on which the government’s physical possession of the property during the Harvey event reached its highest level….”
As for the scope of the “taking,” Judge Lettow held that it should be to the elevation of the pools at their highest level on August 30, 2017 – in other words, 101.6 feet in Barker reservoir, and 109.1 feet in Addicks reservoir. Judge Lettow concluded that:
“Within the parameters of those elevation specifications, the government took a permanent flowage easement, leaving plaintiffs a fee simple interest in their properties which allows them to continue their lawful use subject to the risk of occasional flooding caused by the operation of the Addicks and Barker Dams.”
And, Judge Lettow also held that the taking by the government also encompassed the homeowner’s personal property, fixtures, and improvements damaged or destroyed by the flood.
A copy of Judge Lettow’s opinion is available at this link:
https://www.dropbox.com/sh/1mgvlkwqfaw65ao/AABG_yrOr7A4nPPT3jy9Yj5pa?dl=0
And, with this ruling – the case now enters the next stage – the expert discovery stage.
During the hearing, Judge Lettow mentioned the possibility that the trial of the case (scheduled for November), may not move forward as planned due to the current pandemic. Judge Lettow advised that the Court will address this again in the upcoming conference in May. We will advise again once we hear from the Court.
April 30, 2020
DOWNSTREAM – No New Development:
We attended a short telephonic hearing before the Court on April 15. The Court did not have any new ruling or comment. Judge Smith reiterated his previous order (to show cause, as discussed in our March 31 case update). Except, the government will be given a chance to respond by July 10, 2020. We would expect that a decision or judgment to be issued thereafter. Thus, we do not expect the case to be finalized for the purpose of appeal until some time this summer.
We know that this process is slower than expected, and we are disappointed by this delay in timing. We would prefer a faster timeframe for the appeal. However, we ask everyone to please bear with us in the meantime for the process. We will continue to push for the case to move forward to the next stage as soon as possible.
March 31, 2020
Upstream Update – First Round of Briefing Exchanged
The Upstream case is moving on schedule at this time. On March 10, the government filed its brief per the Court’s order. In this brief, the government asked for a determination on the scope of the “taking” of the flowage easement (as to geographic limits and the fee owners’ rights), as well as the date when the “taking” occurred.
Then, on March 24, the Upstream team filed the response to the government’s motion. The Upstream team asked for the following:
- The date of the “taking” by the government: August 30, 2017 (date of the maximum government-induced reservoir pool flooding)
- The extent of the “taking”:
Defined in terms of elevation –
For Addicks reservoir: up to 109.1 feet elevation
For Barker reservoir: up to 101.6 feet elevation
(as measured and recorded by USGS gauges)
The Upstream team also prepared proposed formulations and terms of the “flowage easement” that is the subject matter of the “taking” for the Court’s and government’s review and comment. Next up, the government will prepare its response in early April.
The case is still on track at this point, and we will continue our updates to let everyone know the status of the Upstream case. Due to the ongoing COVID-19 pandemic, Courts throughout the country have reduced activities and availability. We have yet to receive any notice of postponement from this Court. If anything happens, we will continue to update everyone.
As always, please do not hesitate to contact us with any questions or thoughts.
March 31, 2020
Downstream Update – No Judgment Yet
In our last update, we advised that Judge Smith was planning on issuing a judgment for the downstream case that covers just the “test properties” – so that we can file an appeal. However, Judge Smith did not issue this judgment as of yet. Instead, Judge Smith has now advised that he is planning on issuing a judgment that covers all cases – test properties or not. Judge Smith has not told us when this judgment will be issued. We cannot appeal until his ruling is reduced to a judgment.
The Court is also scheduling another conference with the lead counsel on April 15 to discuss case status. We will attend that conference and advise you of any developments.
In the meantime, Judge Smith also issued a show-cause order for those who feel they have a different case from what was ruled on in the judge’s February 18 order. We plan to discuss this with the judge in the upcoming conference; although we do not think this order is useful or applicable to our clients. A copy of the order is available at:
https://www.dropbox.com/sh/2ytejve9a1wyrhq/AACtMQ75OjvWrNb3DZdh7l4Za?dl=0
Due to the ongoing COVID-19 pandemic, courts throughout the country have reduced activities and availability. We have yet to receive any notice of postponement from this Court. If anything happens, we will continue to update everyone.
As always, please do not hesitate to contact us with any questions or thoughts.
February 28, 2020
Upstream – Conference Before the Court:
We attended the conference before Judge Lettow on February 24, 2020. The conference was brief. The parties discussed scheduling of the case, and where to go from this point on. Judge Lettow also issued an order and scheduled a number of events to take place from now until the end of the year. At this point, we are officially in the second stage of the case – the “damages” stage – where the Court will determine how much the government is liable for the flooding of the Upstream area.
Some of the major items in Judge Lettow’s scheduling order:
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Fact Discovery:
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February 18, 2020
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Oral Arguments:
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April 28, 2020 (in Washington DC)
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Discovery Conference:
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May 18, 2020
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Close of Discovery:
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May 28, 2020
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We also expect the trial of the “damages” stage to take place in November of 2020 (although, Judge Lettow has not issued an order yet).
During the conference, there were two interesting things that were mentioned:
- When asked, the government’s attorney advised that the government is not planning on filing an “interlocutory appeal” to appeal Judge Lettow’s December 17, 2019 order (which held the government liable for flooding). Although, the government may still file an appeal by the conclusion of the case (after the trial of the damages phase and when Judge Lettow issues a final judgment).
- Also, Judge Lettow is now aware of the adverse ruling by Judge Smith for the Downstream case, and asked the parties whether that ruling has any impact on the Upstream case – and the government advised that it does not think there is.
We will continue to update everyone as the case moves forward. As always, please do not hesitate to contact us with any questions or thoughts.
February 28, 2020
Downstream – Conference Before the Court:
We attended the conference before Judge Smith on February 26, 2020. The conference was brief. We advised Judge Smith that we plan to appeal his decision. Judge Smith informed us that he will therefore enter a judgment – so that the Plaintiffs can file an appeal (which would be before the U.S. Court of Appeals for the D.C. Circuit). This judgment will address just the test properties – and all the other cases will remain stayed, while the appeal is ongoing. Judge Smith advised that he plans to enter this judgment by next week. Once the judgment is entered, we intend to file an appeal as soon as possible thereafter.
Reports from Media:
Meanwhile, multiple news agencies and outlets have reported Judge Smith’s decision. For example:
Houston Chronicle:
They both sued the Army Corps after Harvey flooding in Houston. So why did only one win?https://www.houstonchronicle.com/news/houstontexas/houston/article/Hurricane-Harvey-lawsuit-upstreamdownstream-win-15071315.php
Click2Houston (KPRC):
Homeowners respond to federal judge dismissing lawsuit over Addicks, Barker releases during Hurricane Harvey
http://click2houston.com/news/local/2020/02/19/federal-judgedismisses-lawsuit-over-addicks-barker-releases-during-hurricaneharvey/
Fox 26 Houston (KRIV):
Judge dismisses lawsuit over reservoir releases that flooded homes during Harvey
https://www.fox26houston.com/news/judge-dismisses-lawsuit-overreservoir-releases-that-flooded-homes-during-harvey
Univision:
Libran de responsabilidad a ingenieros de represas Addicks y Barker por inundaciones de casas durante Harvey
https://www.univision.com/local/houston-kxln/libran-deresponsabilidad-a-ingenieros-de-represas-addicks-y-barker-porinundaciones-de-casas-durante-harvey-video
As always, please do not hesitate to contact us with any questions or thoughts.
February 20, 2020
Upstream Case – Reminder:
We received a number of inquiries following Downstream Judge Loren Smith’s decision earlier this week. We want to remind everyone that Judge Smith’s decision only applies to the Downstream area (area along Buffalo Bayou). It does not affect the Upstream case.
The Upstream case pertains to properties on the Upstream sides of the Addicks and Barker reservoirs (generally, properties to the west of the reservoirs). It is under a different judge (Judge Charles Lettow) and a different case number (17-9001L). The Upstream case will continue to move forward, under a different schedule from the Downstream case.
If you have any questions as to whether your case is Upstream or Downstream, please feel free to contact us.
February 18, 2020
BREAKING – Decision for the Downstream Liability Case: Judge Smith Dismissed the Downstream case
Unfortunately, we have bad news to report. This afternoon, Judge Smith issued an opinion for the Downstream case, Case No. 17-9002L. In this opinion, Judge Smith found that the flooding in the Downstream area was caused by an “act of God,” and that the government is not responsible. He then went on to dismiss the Downstream case. Judge Smith stated:
- “Based on the above analysis of both state and federal law, it seems clear to this Court that neither Texas law nor federal law provides plaintiffs with a cognizable property interest in perfect flood control in the wake of an Act of God. As the government cannot take a property interest that does not exist, and as the Corps cannot be held liable when an Act of God inundates a plaintiff’s real property with flood waters that the government could not conceivably have controlled, plaintiffs have failed to state a claim upon which relief can be granted. See RCFC 12(b)(6).”
- “Though the Court is sympathetic to the losses plaintiffs suffered as a result of Hurricane Harvey, the Court cannot find the government liable or find it responsible for imperfect flood control of waters created by an Act of God.”
A copy of Judge Smith’s opinion is available at this link:
https://www.dropbox.com/sh/40tggkcmei4x9vo/AAD8CyYifhKvJFEEozQIpnC9a?dl=0
We strongly disagree with this ruling, which is contrary to Judge Lettow’s decision for the Upstream case. Further, Judge Smith’s ruling is also contrary to other case precedents, either from the Supreme Court or the Court of Federal Claims (this very court). We will convene the Downstream litigation team and explore our option to appeal this ruling to the court of appeals.
Judge Smith is holding a status conference on February 26, 2020 concerning this ruling. We will attend this conference and hear what Judge Smith says. We will also let everyone know the Downstream litigation team’s plan for the next step as soon as possible.
February 13, 2020
We would like to update everyone with a case development:
DOWNSTREAM – Conference Before the Court — Ruling Expected Next Week:
This afternoon, we attended a telephone conference before Judge Smith. During the conference, the downstream litigation team advised the judge that settlement discussions with the government have not been successful, and, that, despite multiple attempts, the parties have not gotten anywhere. And, until the judge makes a decision on the pending motion(s) for summary judgment, it is unlikely that there will be any meaningful result in further discussions.
Judge Smith acknowledged our concern. He then advised that he will try to render a ruling on the motion(s) for summary judgment by early next week – Monday or Tuesday. Then, he will schedule another conference with the parties thereafter to discuss what to do next.
We are surprised by this announcement, although we look forward to receiving Judge Smith’s decision next week. We hope Judge Smith has good news for us then. We will keep our fingers crossed. Once we receive that ruling, we will update everyone as soon as possible.
As always, please feel free to contact us with any questions or comments.
February 3, 2020
We would like to update everyone with a few recent case developments:
DOWNSTREAM – Case Development:
During the hearing back in December, Judge Smith asked us to explore the possibility of settlement with the government. We have since done so, and spoke with and engaged the government’s counsel on multiple occasions. Unfortunately, despite our best effort to conduct good faith negotiations, the possibility of a settlement is dim at this point. We are of the opinion that it is highly unlikely that this case can be settled at this time.
Judge Smith is scheduling another telephone conference with the downstream team by February 13, 2020. We plan to advise the Judge that we have been unable to settle this matter. We also plan to ask Judge Smith to move forward with the case, and make a ruling on the motion(s) for summary judgment, currently still pending before the Court. Again – since both sides agree that there are no material factual disputes to what happened, the Downstream case can be decided by the judge without the need of a trial.
Meanwhile, we ask everyone to please also take note that Judge Smith has decided to postpone the trial of the Downstream case to June 15, 2020.
UPSTREAM – Moving Forward:
Following Judge Lettow’s ruling on December 17, 2019 (which held that the government is liable for the “taking” of a permanent flowage easement of Upstream homeowners), the case continues to move forward. The case is divided into two stages: Stage One is “liability” – whether the government is liable. Now that there is a decision for Stage One, the case moves to Stage Two – “damages” – namely, how much is the government liable for.
On January 21, 2020, pursuant to the ruling, the government and the Upstream team exchanged “test properties” on the issue of “damages.” Each side proposed three candidates (for a total of six). For those who are interested, the six Upstream “test properties” are located in the following area(s):
UPSTREAM: January 30, 2020 hearing:
Judge Lettow held a status conference on January 30, 2020 to address the direction of the Upstream case and where to go from this point on. Below are some key takeaways from the judge’s instructions:
- Judge Lettow decided to take all six test properties (proposed by both the Plaintiffs and the government) into consideration (he previously advised that he was planning on considering only five).
- Judge Lettow also stated that he is planning on scheduling the second phase of the case for trial by late September to early October of this year. He also asked both sides to submit a scheduling order to lay out the plan ahead on how to move the case forward.
- The parties will file motions to submit their proposed categories of recoverable “damages” to the Court. In his December 17 ruling, Judge Lettow held that the government has taken a “flowage easement” from the Upstream home and business owners. Judge Lettow will review the proposals from both sides, and determine what is encompassed in this “flowage easement” and its value. We expect Judge Lettow’s decision to then be applied to all other Upstream home and property owners.
- Judge Lettow asked the parties to conclude the “discovery” phase of the case, followed by the “expert” phase of the case. This applies to only the “test properties.” Unless you have been specifically notified, you will not need to attend the trial for Stage Two.
We should have a proposed schedule completed by February 14. We will of course report back again once we learn more.
One additional note for Upstream:
The case has been moving forward quickly, and the trial for Stage Two will likely conclude by September to October of 2020. For those who were affected by the Upstream reservoir flooding and have not yet taken action, we urge you to act quickly to protect your lawful rights. There is still time to join the case now. Please feel free to call us to determine if you have a case.
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 to call us at 713-864-4000 or write to us at txlaw@lawtx.com to schedule a meeting or a free information session.
As always, please feel free to contact us with any questions or comments.