Judge dismisses Harvey damage claims

Ruling says Corps not responsible for homes downstream of Addicks, Barker that flooded

A federal judge dealt a devastating blow to thousands of Hurricane Harvey victims Tuesday, ruling that the hurricane itself and not the government was to blame for damage caused by floodwaters released from two U.S. Army Corps dams west of Houston.

U.S. Judge Loren A. Smith dismissed the downstream lawsuits outright, saying property owners had no grounds to sue the government for inundating their land in a flood classified as a once-in-2,000years event, which means, he wrote, “the last such event occurred during the life of Jesus!” Another judge from the same court ruled last fall that the Army Corps of Engineers was liable for damage caused to thousands of property owners from water that backed up above the Addicks and Barker dams.

But Smith, of the U.S. Court of

Federal Claims, indicated in a blunt and unequivocal 19-page opinion late Tuesday that it was ludicrous to blame the Corps for its controlled releases from Addicks and Barker downstream into the Buffalo Bayou watershed.

“Of course, the water from the hurricane was not the government’s water, unless the storm was also created by the government’s wind and air and sun and sky,” he wrote. “These were flood waters that no entity could entirely control.”

The government constructed the dams decades ago to protect the City of Houston from catastrophic flooding, Smith wrote. Officials in 2017 had tried to mitigate damage from Harvey, but property owners were not entitled to “perfect flood control simply because govern

ment set up a flood control system.”

A spokesperson for the Justice Department said he was reviewing the ruling. Lawyers for the Corps argued in December that the dams operated exactly as designed amid heavy accumulation. Harvey had been unprecedented, and the Corps followed protocol for the circumstances, even though it knew it could cause damage. Had the Corps not opened the floodgates, the properties would have flooded anyway, just not as precipitously, they said.

The city and county have allowed development worth billions along and in the floodways, which unquestionably put a lot of the property involved in this suit in the path of the surging floodwaters.

Mayor Sylvester Turner had a speaking engagement Tuesday evening and could not be reached for comment.

‘Takings’ claims

“We strongly disagree with this ruling,” lawyers for the upstream clients wrote in a news release. They said that Smith had contradicted another judge’s findings that the government was liable for property damage upstream of the two dams.

“Judge Smith’s ruling is also contrary to other case precedents, either from the Supreme Court or the Court of Federal Claims,” the lawyers from McGehee Chang, Landgraf, Feiler said. They are considering an appeal. Smith set a telephone status conference about the case for Feb. 26.

The plaintiffs argued in December that the flooding by the Corps was “intentional and foreseeable.” While the government had helped the city avoid worse damage, it had knowingly inflicted harm and should compensate victims accordingly.

Smith’s ruling stems from claims by about 2,500 businesses and homeowners who sued Army Corps of Engineers in the specialized Court of Federal Claims in Washington, D.C. saying their properties would not have flooded in the 2017 storm if the government hadn’t opened the floodgates on Aug. 28, 2017.

The court oversees “takings” claims under the Fifth Amendment. In this case litigants argued that the government chose to take temporary control of their private property to store floodwaters and therefore it owed them just compensation for damage caused by the controlled releases. Part of Smith’s rationale for the ruling was that the properties would have flooded had no reservoirs or dams been present, so the Corps’ actions can’t be blamed.

A separate group of property owners, whose land flooded from water that backed up above the two massive reservoirs, won a separate claim before a different judge last fall. That judge will hear oral argument on April 28 in Washington, D.C. to assess damages.

Smith addressed the opinion of his colleague, Judge Charles F. Lettow, in the upstream case, saying Lettow determined that “the taking of upstream property occurred as a result of the general operation of the Addicks and Barker dams and reservoirs.”

Harvey ‘sole’ cause

“In contrast,” he wrote, “the Downstream plaintiffs do not allege that the general operation of the Reservoirs caused the flooding of their property.” He says the downstream plaintiffs ignored that the gates were initially closed for the “sole purpose” of protecting their property, and that the impounded waters exceeded the reservoirs’ capacity, and that Harvey “was the sole and proximate cause of the floodwaters.”

Therefore, he said, he did not believe Lettow’s findings were relevant in the downstream case.

Lawyers for flood victims estimate that 8,500 homes and 1,000 businesses took on water from the controlled releases and at least one person died inside his home from the flooding. Neighborhoods damaged by downstream flooding include Fleetwood, Thornwood, Westchester, Nottingham Forest and the Energy Corridor. About 2,500 plaintiffs filed cases with the federal court, but attorney H.C. Chang estimated that as many as 30,000 people were flooded by the downstream deluge.

He said the vast majority did not flood until gates were opened.