Case study

Federal Circuit Reverses Dismissal of Tropical Storm Harvey “Takings” Claims, Reinstating the Claims of Hundreds of West Houston Property Owners

June 2, 2022 Case Study

On June 2, 2022, the United States Court of Appeals for the Federal Circuit ruled in favor of hundreds of West Houston property owners whose residential and commercial properties were catastrophically flooded during Tropical Storm Harvey when the U.S. Army Corps of Engineers—for the first time in history during a storm—opened the floodgates of the Addicks and Barker Reservoirs and flooded downstream properties. The property owners sued the U.S. government, alleging that their private properties had been “taken” for a public use without just compensation in violation of the Fifth Amendment to the U.S. Constitution. After the Court of Federal Claims dismissed the downstream property owners’ claims, Beck Redden appellate partners Russell Post and David Gunn were retained to appeal the dismissal order. With the able assistance of appellate associate Parth Gejji, Post and Gunn took the lead in representing hundreds of downstream property owners on appeal. Briefs were filed on behalf of several groups of property owners, with Beck Redden representing a majority of the property owners on appeal. At oral argument in January 2022, Post presented the argument on behalf of all the downstream property owners.

The Court of Federal Claims had dismissed the property owners’ claims on the ground that they had no protected property right to “perfect flood control” in the face of an Act of God, and as such, the government’s decision to flood the downstream properties had not “taken” any protected property right from the property owners. Beck Redden established on appeal that Texas law has long recognized a property owner’s right to hold private property free of a “flowage easement,” i.e., a right to store water on private property, and government actions that flood private property can constitute a “taking” of private property.

In the Federal Circuit, the government attempted to defend the dismissal ruling by arguing that Texas property owners own their lands subject to the government’s exercise of its “police powers” and the decision to open the floodgates was a non-compensable exercise of those police powers. But Beck Redden demonstrated, and the Federal Circuit agreed, that Texas property law recognizes no bright-line exception for property taken for public use in a purported exercise of governmental police powers.

Therefore, the Federal Circuit reinstated the claims of all the downstream property owners and remanded their cases for further proceedings in the Court of Federal Claims. While the downstream appeal was pending, meanwhile, property owners upstream of the Addicks and Barkers Reservoirs whose properties had flooded when waters backed up behind the reservoirs – prior to the government’s decision to open the floodgates – prevailed on their own takings claims against the government. The Court of Federal Claims is currently conducting a trial to determine the amount of damages owed to the upstream property owners, and with the benefit of the Federal Circuit’s ruling, downstream property owners will now have the opportunity to pursue the same relief. Beck Redden was honored to be entrusted with the rights of so many fellow Houstonians, and the Firm is deeply gratified by the Federal Circuit’s ruling.

Russell S. Post 713.951.6292
David M. Gunn 713.951.6290
Parth S. Gejji 713.951.6288