U.S. Court of Federal Claims Issues Reported Opinion Involving Texas Flood-Control Reservoirs
IN RE DOWNSTREAM ADDICKS AND BARKER (
THIS DOCUMENT APPLIES TO: ALL DOWNSTREAM CASES
Fifth Amendment Taking; Motion to Dismiss; RCFC 12(b)(6); Motion for Summary Judgment; Act of God; Perfect Flood Control; Flood Control Act of 1928; 33 U.S.C. Sec. 702c (2018); "Flood Water"; Protected Property Interest;
OPINION AND ORDER
SMITH, Senior Judge
This case is brought by residents of
Two questions must be asked. First, what property did the government take? Second, how did the government take that property? The answers to these questions go to the heart of the
The remaining question is what were the property rights allegedly taken? Plaintiffs suggest that the government took an easement against their property by storing of water on their lands. Plaintiffs' Opposition to the Government's Motion to Dismiss (hereinafter "Pls.' Resp. to MTD") at 14. Put a different way, plaintiffs allege that the government could have done more to ensure perfect flood control efforts, and because the government did not do more, it failed to stop the flooding of their lands. 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. These were flood waters that no entity could entirely control. The government attempted to mitigate against them, but it could not. Thus, plaintiffs' claims are essentially that they were entitled to perfect flood control, simply because government set up a flood control system to help protect residents in the
This case comes before the Court on defendant's Motion to Dismiss and on the parties' Cross-Motions for Summary Judgment. Plaintiffs allege that the Corps intentionally opened the gates and released massive volumes of water from the Addicks and Barker Reservoirs, causing widespread destruction to the homes and businesses located downstream from the Reservoirs along the
I. Background
A. Construction of the Addicks and
Between 1854 and 1935, the
Construction of the
The Corps maintains and operates the Reservoirs in accordance with the Water Control Manual ("Manual"), which the Corps first implemented in
Induced Surcharge Flood Control Regulation. At any time the reservoir pool equals or exceeds 101 feet [North American Vertical Datum of 1988 ("NAVD 1988")] in
Pls.' App. at A50. Accordingly, the Induced Surcharge Flood Control Regulation is triggered when the Reservoir pools reach specified elevations, and, once conditions allow for the return to normal flood control operations, the Corps releases floodwaters from the Reservoirs at a lesser rate until the Reservoirs are empty. Pls.' App. at A19-A20; Pls.' App. at A49-A50.
In or around 2007, the Corps formed the Addicks-Barker Multi-Agency Emergency Coordination Team ("ABECT"), which designated points of contact for federal, state, and local agencies and developed lines of communication for storm and flood events involving the Addicks and
B. Plaintiffs' Acquisition of their Properties/1
Between 1976 and 2015, plaintiffs acquired their respective properties. See Pls.' App. at A458-A492. The houses and structures on those properties were built between 1962 and 2016, either while under the ownership of plaintiffs or their predecessors. See generally Def.'s Ex. 35. All of the test properties are located in
See generally Pls.' App. at A1036-1147. Nine of the plaintiffs remained free from flooding during the period between the acquisition of their properties and
C. Hurricane Harvey and the Induced Surcharge Release
On
On
According to Corps records and the CWMS Forecasts, both Reservoirs were empty, and the flood gates were set to their normal settings prior to
The Addicks and Barker watersheds have received 10-18 inches across the watersheds in the last 48 hours. Gates are currently closed. Forecasted rainfall amounts are in flux. The 7-day accumulation assumed for this forecast is approximately 30-inches as received from the
At this time, mandatory releases are expected to be necessary for surcharge operations at Addicks later tonight and at Barker on Wednesday.
Def.'s Ex. 25 at 1018-19; Pls.' App. at A3141. On
At approximately midnight on
On
II. Procedural History
A. In re Downstream Addicks and Barker (
Beginning in September of 2017, property owners in the
On
On
On
1. Whether a protected property interest exists under
2. The general applicability of the Flood Control Act of 1928, its successor acts, and the definition of "floods or flood waters."
Id. at 1. Plaintiffs filed their Motion for Summary Judgment on
B. In re Upstream Addicks and Barker (
During the pendency of the Downstream Sub-Docket proceedings, the parties in the Upstream Sub-Docket proceeded to a trial on liability. On
In that opinion, Senior
With those legal differences between the Upstream and Downstream causes of action in mind, the Court concludes that the legal analysis in the Upstream Opinion is not relevant to the Court's evaluation of the downstream cause of action. Additionally, due to the significant factual differences between the Upstream and Downstream cases, the Court does not believe the findings in the Upstream Opinion are relevant to its downstream findings.
III. Discussion
The Court will dismiss a case under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy."
The Takings Clause of the Fifth Amendment of the
On
Do plaintiffs have a protected property interest in perfect flood control, under either federal or state law, when a government-owned water control structure erected for the sole purpose of flood control fails to completely mitigate against flooding created by an Act of God?
Upon careful consideration, and with all due sympathy to the plaintiffs' plight, the Court finds that, under both federal and state law, plaintiffs lack the requisite property interest in perfect flood control in the face of an Act of God, and thus cannot succeed on their takings claims.
A. Property Rights
The courts have long held that "[f]or a takings claim to succeed under the Fifth Amendment, under either a physical invasion or regulatory takings theory, a claimant must first establish a compensable property interest." Avenal v.
The
In Stop the Beach, the
B. Perfect Flood Control 1. State Law
As property rights are defined by state law, the Court must look to
Article 17 of the Texas State Constitution provides that "[n]o person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." TEX. CONST. art. I, Sec. 17. Nevertheless, the Texas State Constitution also specifically enumerates that the police power is an exception to takings liability and that compensation is not required for "an incidental use, by (A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law." TEX. CONST. art. I, Sec. 17(a)(1)(A)-(B).
The
Id. at 471. The Court interprets such precedent to stand for the conclusion that
In addition to holding that efforts expended to mitigate against flooding constitute a legitimate use of the police power,
When determining whether a party is liable for flood-related damage to another's property,
In one case where property owners alleged that a water control structure "could have done more" to ensure their properties were free from flooding, the
In addition to finding that uncontrollable flooding cannot result in a taking, the Court in
In addition to the fact that appellee never released more water than was entering the San Jacinto River, Adams' deposition testimony makes it clear that the water being released from
979 S.W.2d at 883. Under
See
Finally,
Before the Court can analyze whether a Fifth Amendment Taking has occurred, the Court first must look to what property interest was allegedly taken. Federal law dictates that "the issue of what constitutes a 'taking' is a 'federal question' governed entirely by federal law, but that the meaning of 'property' as used by the Fifth Amendment will normally obtain its content by reference to state law." Bartz,
2. Federal Law
While "state law defines property interests," Stop the Beach, 560 U.S. at 707, federal common law may also identify which property rights are protected under the
Plaintiffs repeatedly argue that, because their properties had never flooded before (or at the very least because such flooding was minimal), they had a "reasonable, investment-backed expectation" that they would remain free from flooding. Pls.' MSJ at 32. Additionally, plaintiffs seemingly contend that, even though the Reservoirs were dry prior to
The Court believes plaintiffs mischaracterized the events that preceded the flooding of their properties. As an initial matter, the government's construction of the Reservoirs and the resulting benefit of flood control does not, by its nature, affirmatively create a cognizable property interest in perfect flood control. In Avenal v.
There is a fundamental difference between property rights and the benefits a government provides to its citizens. To ignore this would be to discard the last several hundred years of Anglo-American legal history. That difference is based upon the relationship between the source of the property and the new owner of the property right. The property right is created by the conveyor and arises out of the conveyor's relationship with the recipient. That relationship most commonly takes the form of a contractual obligation. Furthermore, a property interests can occasionally be created as a gift--for example, an inheritance, an award, or a personal gift. These then become the recipient's property. However, when a government creates programs that benefit its citizens, those programs rarely provide members of the public with property interests. Cf. Grav, 14 Ct. Cl. 390. This is because the justification and intention behind the program--be it flood control, the construction of a highway, or some other benefit--is for the general good of the community. It is almost never a benefit intentionally awarded for a specific group of individuals.
Additionally, despite the fact that the Corps has routinely erected water control structures to benefit property owners by mitigating against downstream flooding, the federal government never intended to provide plaintiffs downstream of a water control structure with a vested right in perfect mitigation against "flood waters." To the contrary, Section 702c of the Flood Control Act of 1928 ("FCA") provides that "[n]o liability of any kind shall attach to or rest upon
It is relatively easy to determine that a particular release of water that has reached flood stage is "flood water" . . . or that a release directed by a power company for the commercial purpose of generating electricity is not . . . . It is, however, not such a simple matter when damage may have been caused over a period of time in part by flood waters and in part by the routine use of the canal when it contained little more than a trickle.
Id. at 436 (citations omitted). Interpreting this precedent, the Court concludes that the character of the release at issue in this case is clearly "a release of water that has reached flood stage." See id. Accordingly, the Court determines that, contrary to plaintiffs' assertion that the Corps affirmatively decided to store its water on their properties, the waters released from the Reservoirs--waters only impounded behind the dams because of the occurrence of a natural disaster--were "flood waters" in excess of what the Corps could reasonably control. As such, the Court now must look to whether the existence of a dam erected for the sole purpose of protecting downstream properties from "flood waters" affords plaintiffs a vested property interest in perfect flood control when storm waters exceed a volume over which the government can successfully control.
When interpreting the
An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government's work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.
Id. at 265. Essentially, when the government undertakes efforts to mitigate against flooding, but fails to provide perfect flood control, it does not then become liable for a compensable taking because its mitigative efforts failed. See id. Indeed, "[i]f major floods may sometime in the future overrun the river's banks despite--not because of--the Government's best efforts, the Government has not taken [plaintiff's] property." Id. at 266 (emphasis added). In its decision, the
In the years following, this Court has routinely upheld the
In sum, there exists no cognizable property interest in perfect flood control against waters resulting from an Act of God, and "the Fifth Amendment does not make the Government an insurer" against flooding on a plaintiff's real property when the government fails to completely protect against waters outside of its control. Sponenbarger, 308 U.S. at 265. The mere fact that plaintiffs' properties had not sustained this level of flooding prior to
IV. Conclusion
Based on the above analysis of both state and federal law, it seems clear to this Court that neither
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. For the reasons set forth above, defendant's MOTION to Dismiss is hereby GRANTED pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief could be granted. Defendant's CROSS-MOTION for Summary Judgment is GRANTED. Plaintiffs' CROSS-MOTION for Summary Judgment is DENIED. A telephonic status conference will be held on
IT IS SO ORDERED.
s/
Senior Judge
(Filed:
* * *
Footnotes
1/ For the purposes of this sub-section, and this sub-section alone, "properties" refers to the thirteen test properties designated in the Court's Order Regarding Test Property Selection. See generally Order Regarding Test Property Selection, No. 17-9002, ECF No 81. Additionally, "plaintiffs" in this sub-section refers exclusively to the individuals and entities that own those test properties. See generally id.
2/ "Five Hundred Year Floodplain (the 500-year floodplain or 0.2 percent change floodplain) means that area, including the base floodplain, which is subject to inundation from a flood having a 0.2 percent chance of being equalled [sic] or exceeded in any given year." 44 C.F.R. Sec. 9.4 (2009). In colloquial terms, this means that properties located within the 500-year floodplain have a 1-in-500 chance of flooding in a given year. 500-year floods are storms with a return frequency of 500 years or more--or storms that occur once about every 500 years. Properties within the 100-year floodplain have a 1-in-100 chance of flooding in a given year and are expected to flood once every 100 years or more. Properties located outside the 500-year floodplain are expected to flood less than once every 500 years.
3/ In analyzing whether
4/ Of note, this Court's finding that plaintiffs' flood-related damage is the result of an Act of God is consistent with the findings of the
5/ The Court notes that, in the wake of
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