Reuters announced that owners of homes flooded during Hurricane Harvey are claiming billions in damages because of Federal and State water releases from storm-swollen reservoirs. Several lawsuits have been filed in Federal and State Court in Texas and claim properties were taken for public use without compensation. The U.S. Army Corps of Engineers and a Texas State agency have been named as the defendants responsible for the water releases. Damages are estimated to be as high as $3 billion. There may be more than 1,000 homes valued at between $750,000 and $1 million that could be covered by the lawsuit.
The United States Supreme Court has held that temporary flooding could be a taking in a unanimous opinion authored by Justice Ginsburg in Arkansas Game and Fish Comm. v United States, 568 U.S. ___, 133 S. Ct. 511 (2012). “We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U.S., at 435, n.12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U.S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v United States, 395 U.S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).” Slip op. at 14. The Court sent the case back to the Federal Circuit for further consideration.
Texas State Courts may not support an inverse condemnation claim. In Harris County Flood Control Dist. V Kerr, 499 S.W.3d 793 (Sup. Ct. Texas 2016), property owners brought an inverse case after their property was repeatedly flooded. Under Texas Law, a property owner must show government intent to damage private property for public use. It stated that a taking cannot be established by proof of mere negligent conduct by the government. “[T]he requisite intent is present when a governmental entity knows a specific act is causing identifiable harm or knows that the harm is substantially certain to result.”
The Texas Court stated that inaction cannot give rise to a taking. It continued, “[F]urther, the homeowners offered no evidence that the County was consciously aware that approval of unmitigated development in one defined area, such as a specific block or neighborhood, was substantially likely to cause flooding in another defined area….” The Court declined to extend takings liability vastly beyond the extant jurisprudence, in a manner that makes the government an insurer for all manner of natural disasters and inevitable man-made accidents.
Federal engineers said the controlled releases from reservoirs were necessary after both pools reached record levels. The Army Corps said the releases would protect the integrity of the damages and prevent catastrophic damage if the dams were breached. Obviously, Plaintiffs will have a difficult battle ahead.