Property Rights

The Houston Flooding Takings Litigation Continues

The federal government continues to deny any liability for deliberately flooding thousands of homes and other property in Houston in the wake of Hurricane Harvey in 2017.

|The Volokh Conspiracy |

Flooding in Houston caused by Hurricane Harvey in 2017. (LM Otero/AP)

CNN has an interesting article describing  ongoing litigation in which thousands of Houston property owners whose lands were deliberately inundated by the US Army Corps of Engineers in the aftermath of Hurricane Harvey in 2017 are suing for compensation under the Takings Clause of the Fifth Amendment:

Two days after Hurricane Harvey made landfall in Texas in August 2017, as historic rainfall submerged parts of Houston, the Army Corps of Engineers released water from two reservoirs into a river running through one of the country's richest zip codes.

The water crept out of Buffalo Bayou and into West Houston's Energy Corridor, home to numerous energy companies and residential neighborhoods. It inundated Kyle Haines' home, drowning his 71-year-old husband, Bob. It left Maria Sotolongo's home nearly uninhabitable….

Two years later, they're still trying to recapture the sense of security that was swept away with their possessions….

Hundreds of West Houston property owners are suing the federal government, claiming the Corps flooded their homes to save the rest of the city. They allege the government owes them for effectively taking their property to store water from the reservoirs, in violation of a Fifth Amendment right which says the government can't take private property for public use without just compensation….

In the litigation against the Corps, the two are part of a group of property owners whose homes were downstream of the reservoirs. The downstream cases are being tried separately from lawsuits involving properties that were upstream or behind the reservoirs because they involve different circumstances and legal arguments…

A trial for the upstream plaintiffs concluded in May, and closing arguments are scheduled for September in Washington. The next hearing in the downstream trial is scheduled for October.

Each trial is starting with a small group of plaintiffs who serve as "test cases" for the larger pool of property owners, said lawyer Rand Nolen, lead counsel for the downstream cases.

Sotolongo and Haines are not part of the test cases, but the outcome will affect them all the same, Nolen said.

Even if the property owners prevail, it will be a long time before they see a dime, given appeals, Nolen said.

"What's at stake is the plaintiffs' financial security for years to come," he said. "Many borrowed money to repair their homes. Some had to sell homes for pennies on the dollar. They suffered huge financial losses."

In addition to the huge stakes for the many thousands of people affected by the Corps' actions, these cases are also likely to set important precedents for future situations where the government deliberately floods or otherwise destroys private property in order to manage natural disasters, or perhaps for other purposes. I described the key issues at stake in this 2017 post:

In its unanimous decision in Arkansas Game and Fish Commission v. United States (2012), the Supreme Court rejected the Obama administration's dubious argument that temporary flooding of property by the government can never qualify as a taking. But the Court's decision was far from a model of clarity when it comes to the question of how to figure out whether a given case of deliberate temporary flooding should be considered a taking or not….

[In the Houston cases,] the government claims that one-time flooding can never qualify as a taking. Under this theory, only recurrent flooding can do so, as [happened] in the Arkansas Game and Fish case.

The plaintiffs understandably deride this "one flood free" rule, and urge the courts to reject it. It makes little sense to claim that a one-time flood can never be a taking regardless of how deliberate it was or how much damage it inflicts. In this instance, the damage to at least some of the homes and businesses was severe, and the deliberate flooding that caused it should be considered a taking…

It is difficult to predict which way the judiciary will ultimately rule on these cases. The Arkansas Game and Fish standards are far from clear and the courts have a history of siding with the government in many ambiguous takings cases….

This dilemma highlights a weakness in the Arkansas Game and Fish test that the Supreme Court should eventually fix by ruling that deliberate flooding is automatically a taking, at least if it inflicts significant damage on private property. I made this point in my 2013 article on [Arkansas Game and Fish]…

Since I wrote my 2017 post on the Houston flooding cases, the litigation has gradually progressed. In May of last year, the Court of Federal Claims issued a preliminary ruling in the "upstream" cases rejecting the federal government's motion to dismiss them before trial. Among other things, Judge Charles Lettow's opinion rejects the Justice Department's "one free flood" argument as inconsistent with Arkansas Game and Fish (see pp. 13-14). While this was just a preliminary opinion enabling a trial to go forward, it strongly suggests that Judge Lettow will ultimately resolve this issue in favor of the property owners. He also rejected a number of other arguments offered by the federal government. We have not yet had a ruling on the "one flood free" argument in the case involving downstream Houston cases.

Meanwhile, trials are proceeding in both cases, focused in part on issues of causation (the federal government claims that many of the affected property owners' land would have been damaged as much or more even if the Corps of Engineers had not flooded it.

In December, a Texas state appellate court issued a ruling siding with property owners in a similar case involving deliberate flooding of land by the state government's San Jacinto River Authority (also during Hurricane Harvey). The Texas decision does not bind the federal courts, of course. But it addresses very similar issues, and might be a persuasive precedent for federal judges.

In my view, the causation issues in the Houston cases are often genuinely difficult, and it is understandable that the government would contest this question in many of the cases. By contrast, the federal government's "one flood free" argument is much less defensible. If it prevails, the government would have a blank check to flood private property in many circumstances, without having to pay compensation. If the Obama administration had deliberately flooded thousands of homes and then trotted out a dangerous theory like "one flood free" in order to avoid having to pay compensation, conservatives would have been outraged.

Even when the flooding and destruction of property is for a good reason (such as preventing even worse flooding elsewhere), that's no justification for denying compensation.  I  summarized the reasons why in my 2017 post:

[T]he fact that the flooding might have been a good policy (or at least the lesser of the available evils under tragic circumstances) does not mean there was no taking. As the Supreme Court famously put it in a 1960 case, the whole point of the Takings Clause's just-compensation requirement is to "bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Even if the "public burden" is entirely justified, that does not mean it should be inflicted on the property owners, as opposed to "the public as a whole." That is true when the government takes property to build a highway or military base that benefits the general public. It is equally true when it floods some people's property to prevent potentially greater devastation elsewhere.

Whatever else happens in these cases, hopefully the courts will ultimately reject "one flood free" and make clear that deliberate flooding that inflicts grave damage on private property is a taking. At this point, I am guardedly optimistic the courts will  come down on the right side of the takings question, based on developments so far. But the trial court rulings are likely to be appealed, and the issue might even get to the Supreme Court. So it is still too early to make any definitive predictions.

As the CNN article makes clear, another painful aspect of these cases - sadly not unusual for federal court litigation - is how long they have dragged on (almost two years, with a long time probably still left to go, if we include likely appeals). During that time, the victims continue to suffer without any compensation. As the saying goes, justice delayed is justice denied. And the one certainty in these cases is that any justice the owners get will only come after a lengthy delay (if at all).

In addition, as the article notes, the person whose husband was killed in the government-induced flooding may not be able get compensation for his spouse's death, which cannot be addressed by a takings claim (takings cases are for loss of property rights, not loss of life). I am not sure what, if any legal remedy might be available to him. This issue is not within my expertise,as a takings scholar, so perhaps there is a possible remedy I am overlooking.

UPDATE: I discussed the 2013 Arkansas Game & Fish case, the most relevant Supreme Court precedent for the Houston flooding cases, in much greater detail in this article.

NEXT: Olive Garden, Fake News, and the Rise of 'Conspicuous Non-Consumption'

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  1. That is true when the government takes property to build a highway or military base that benefits the general public. It is equally true when it floods some people’s property to prevent potentially greater devastation elsewhere.

    That is not what happened. The argument is a brew of fecklessness, and tendentious assertions.

    Downstream, when an uber flood arrived, overwhelming the government’s capacity to do anything, the places that would have been flooded anyway, got flooded. There had never been any place that water could have gone except where it did go. No place was flooded to save some other place. If I am mistaken about that, Somin please correct me. What downstream place was spared? Which downstream places which would never have flooded, got flooded?

    There was never, before dam construction or after, capacity to long delay water in that magnitude from going downstream. There was never any obligation for the government to build flood storage of unlimited capacity. The only question anyone could sensibly ask is whether flood storage capacity the government built, on contingency, to lessen destruction from lesser floods, somehow made this event worse, because of some reckless or irresponsible engineering misjudgment. There seems to be no argument asserting that.

    To present as deliberately chosen government policy—a government taking—the flood that resulted from such circumstances, is flabbergasting. Ideological hostility to government programs, taken to an extreme, can account for these arguments. I suggest that nothing else can, except maybe opportunism from some of the flood victims. What are they thinking?

    And where were their flood insurance policies? Is it the suggestion that these particular flood plain dwellers, unlike essentially everyone similarly situated nationwide, were owed a federal duty to hold them harmless, insured or not?

    As for the upstream “victims,” almost all of them are victims only of nature, or perhaps of their own recklessness. A very few could have legitimate claims, if they built on upstream land, before dam construction many decades ago, and never got compensation from the government for subsequently putting them in a (usually dry) flood control reservoir.

    As for the others—the vast majority who built after dam construction, and some of them quite recently—they had only to look up the elevation of the crest of the dam, and compare it to the elevation of their proposed building footings. That was public information, of course. They made their choice, and have themselves to blame, not the government.

    Regional newspaper reporting, which I cited when Somin presented his first piece two years ago, detailed a history of local government collusion with land developers. As I recall, one story mentioned deliberate abandonment of a warning requirement, proposed to alert upstream subdivision lot purchasers that they were buying land within a flood reservoir boundary. The allegation was that local government officials acceded to that to convenience development interests. That might be worth re-visiting if anyone wants to check my memory, and look it up in the Houston area press. If I were reporting the story, one angle I would want to check out is whether any state or local officials involved with reservoir-floor development are still politically active, and taking a hand in promoting the notion of blaming the federal government.

    1. “Downstream, when an uber flood arrived, overwhelming the government’s capacity to do anything, the places that would have been flooded anyway, got flooded. ”

      Literally, if you read the court documents, the places that got flooded, whose owners are suing, were upstream. They were flooded because the government closed valves that would normally be open, in order to prevent flooding downstream, causing the water to back up into areas that would not naturally have flooded, which were not in any flood plain, and which were beyond the boundaries of the water reservoir.

      So you have literally inverted the truth of the matter. Quite comprehensively!

      1. Sorry Brett,

        Technically both are true. Upstream of the res was flooded. But when the Corps opened the valves in a controlled release, downstream (the Energy Corridor) was flooded. It’s my understanding that it’s the downstream area that’s filing the lawsuits.

        1. If that’s your understanding, you need to look again.

          Among the first words you’ll see are,
          “IN RE UPSTREAM ADDICKS AND
          BARKER (TEXAS) FLOOD-
          CONTROL
          RESERVOIRS
          THIS OPINION AND ORDER APPLIES
          TO:
          ALL UPSTREAM CASES”

          1. Both upstream and downstream residents are suing. The issues are different because the flooding mechanism was different, so they have been separated in two groups.

          2. As noted, there are two sets of cases. The CNN article is about the downstream suits.

      2. Brett, from the OP, quoting CNN (note: “to store water from the reservoirs”; note also: “the two are part of a group of property owners whose homes were downstream of the reservoirs.”):

        Hundreds of West Houston property owners are suing the federal government, claiming the Corps flooded their homes to save the rest of the city. They allege the government owes them for effectively taking their property to store water from the reservoirs, in violation of a Fifth Amendment right which says the government can’t take private property for public use without just compensation….

        In the litigation against the Corps, the two are part of a group of property owners whose homes were downstream of the reservoirs. The downstream cases are being tried separately from lawsuits involving properties that were upstream or behind the reservoirs because they involve different circumstances and legal arguments…

    2. I think you’re missing the point. Somin did say that the “going to be flooded anyway and even worse” argument is defensible and that it’s the “one flood a-okay” rule that should be rejected.

    3. Stephen, if you turn the heat for a second you can distinguish two distinct questions:

      (1) Was the government response to the situation a good one, or should it have taken different actions

      (2) Having taken those actions, who should bear the costs associated with them

      One can very well support a robust government response as a fantastic, including actions well beyond those taken here, and still also believe that those property owners are due compensation. The two axes are totally orthogonal here, and it seems Ilya is arguing one and you are arguing the other.

      1. I think Stephen is thinking of this as a penalty or punishment, and rejecting it on the basis that the government didn’t do anything wrong.

        Whereas the proper way to look at this is just as a demand that the government pay its debts, not a claim that it was wrong to incur them.

        1. I have to disagree with you Brett. Although my view is perhaps tainted by living in the Houston area. The Corps held out for as long as possible before releasing water downstream. The problem is that the system was not built for continual water flooding over days as well as the fact that where the water would normally drain was not draining because Houston was on the side of the hurricane that was forcing water back up the ship channel and normal drainage paths. If they hadn’t used controlled releases then the system may have been damaged with a non-stop release like occurred with New Orleans levees.

          1. I’m not seeing anything in your comment that disagrees with mine.

    4. I think you are going a little too far, Stephen.

      However, there are several things that I will say to my neighbors. You chose to build in a reservoir. Did you not read your deeds? I chose my land carefully and have an extremely large drive to work each morning, but my home was undamaged by Harvey.

      A judgement in favor of the plaintiff will only provide a perverse incentive. If the government does not build flood control, they cannot be held liable for acts of nature. However, if the flood control is built, they are liable for both using it or not using it.

      1. ” You chose to build in a reservoir.”

        There’s your problem, right there: They didn’t build in a reservoir.

        They built upstream of a reservoir, perhaps not knowing that the people running the reservoir had plans to flood areas outside the reservoir in an emergency.

        1. If their flood insurance isn’t paying, because the government intentionally flooded the area, then they have a claim against the government.
          If they couldn’t get insurance, because insurance companies knew this land was subject to become flooded in an emergency, then they took the risk and shouldn’t be in line for compensation.
          If they didn’t buy insurance, for whatever reason, same thing.

        2. Brett, the elevation of the crest of the dam establishes the boundary of the reservoir. Draw a contour at that elevation from one end of the dam to the other, and that is the reservoir boundary.

          Above that contour (plus an allowance for depth of water above the dam crest, as the water flows over), any flooding which occurs has nothing to do with the dam. In short, the people behind the dam either built below the reservoir contour, and are responsible for their own predicament, or they built above it, and were flooded by entirely natural causes having nothing to do with the dam.

          The only exceptions would be the few people who built below the reservoir contour before the dam was built, and never got compensated for the peril the dam then imposed upon them. Those (if they even exist) may be among the people Somin is looking to see compensated, but they are far from all of them.

  2. “There had never been any place that water could have gone except where it did go. No place was flooded to save some other place. If I am mistaken about that, Somin please correct me.”

    You are mistaken about that.

    “Is it the suggestion that these particular flood plain dwellers, unlike essentially everyone similarly situated nationwide, were owed a federal duty to hold them harmless, insured or not?”

    What flood plain did these dwellers dwell in?

    “Regional newspaper reporting, which I cited when Somin presented his first piece two years ago, detailed a history of local government collusion with land developers.”

    No it didn’t.

    1. Jph, it’s called the Addicks reservoir. The name isn’t for show. The flood control reservoir was made in response to early-1900s hurricanes. It now holds a substantial part of Houston and Eastern Katy in it. This includes a lot of houses that were knowingly constructed in a flood control reservoir.
      https://en.wikipedia.org/wiki/Addicks_Reservoir

      Secondly, most of the city is in the 500 year flood plain. A good chunk is in the 100 year plain for that matter.

      1. Okay, this case wasn’t for the homes in the reservoir itself, but the ones downstream of it.

        Seriously, if you live in a coastal city, water damage from major hurricanes is expected.

        1. There are two separate sets of cases, one for upstream residents and one for downstream residents.

          While damage is certainly expected (I lived in Houston for Allison, and that was just an unusual tropical storm), that doesn’t mean residents are barred from making a claim based on the amount of damage being greater than it would have been otherwise. It’s a tough row to hoe, but it’s not unthinkable.

  3. [In the Houston cases,] the government claims that one-time flooding can never qualify as a taking. Under this theory, only recurrent flooding can do so, as [happened] in the Arkansas Game and Fish case.

    This seems like the exact opposite of logical. A recurrent flooding is expected, and you’d know it prior to buying, while a one time thing was unexpected and thus a taking.

  4. It sounds like government should never do flood control. If it attempts it, it somehow becomes responsible for all flooding that occurs. Who would want that responsibility.

    Next: If provides health care, it can be sued whenever someone dies. If it provides police, it can be sued whenever a crime is committed. Etc.

    1. The argument is not that they shouldn’t do flood control, but instead that, if they chose to affirmatively act to flood private property, in order to advance the greater good, they owe the owners of that property compensation.

      It’s no different than if they decided that the public good required destroying any other property which would have gone unharmed if the government simply didn’t act.

      The cost of advancing the public good is supposed to be born by the public, not selected fall guys.

      1. What if the public does not approve of a choice made for the public good?

        I don’t like this train of thought focusing on who is morally culpable. The people most responsible for the choices that led to this outcome can’t individually compensate the homeowners, but we can’t just assume that society has the means to foot the bill either. At the individual, municipal and state level, most Americans had nothing to do with this outcome, yet they would pay. That kind of reasoning, that we pay because we can, is in my view a warped sense of responsibility and entitlement.

        Sometimes bad things happen and we shouldn’t resort to scapegoating, regardless of who that scapegoat happens to be.

      2. The problem here is that flooding would have happened anyway. In order to argue the government caused your particular flooding, you should have to, at the very least, show it wouldn’t have happened if the government had never attempted flood control in the first place.

        That seems like a tough thing to show regarding storm-induced floods.

        The situation seems to me a little bit like the 19th century cases where people tried to sue weathermen for the consequences of predicting the weather incorrectly. It’s an inexact science. If entering the field means you get sued whenever you’re wrong, nobody would undertake it. And that means society would be worse off, on the whole, than it would be if people tried and sometimes failed. Same here.

        1. The problem here is that the flooding would have happened to somebody else absent the government’s actions. The people whose case the OP is about are the people who were upstream, who would never have flooded but for the government’s own deliberate choice to close valves and flood their land.

          The government flooded their land in order to reduce the damage to the downstream properties. And maybe that was a reasonable choice. But the government, if it decides to destroy property for the greater good, that would not have been otherwise destroyed, (Not like cutting a fire break in the middle of a fire, where the property you cut it through was doomed anyway.) should pay for it out of general taxes, not just make the owners the designated fall guys.

          1. Here’s the problem though, Brett. Doesnt’ that encourage the government NOT to act, and let greater destruction happen, because they won’t be liable for it? Making the government pay when they do this – totally leaving aside questions of moral culpability and justification – aligns the incentives in a worse way for everybody.

            1. It may (encourage the government not to act), but the moral principle Brett is putting out there still holds. The federal government made an affirmative choice to open the valves. They knew what the result would be. They own the moral culpability for their decision.

              1. “The federal government made an affirmative choice to open the valves.”

                No, Brett is talking about the upstream flooded people. The decision to open the valves reduced the flooding for the upstream people and caused more flooding for the downstream people. The upstream people are complaining about the construction of the dams in the first place. So tkamenick is absolutely correct, the right decision for the government (to avoid liability) is not to have built the dams at all, at least with respect to the upstream plaintiffs.

                The downstream plaintiffs are in a different position. Yes, the government released water into their land. But if the dam hadn’t been built at all, there would have been more water in that neighborhood. They have their own problems.

                1. “The downstream plaintiffs are in a different position. Yes, the government released water into their land. But if the dam hadn’t been built at all, there would have been more water in that neighborhood. They have their own problems.”

                  Not really. The dam collected water and channeled it through particular bayous. Without the dam, the flooding pattern would have been different.

                  1. If that is true, would you at least agree with me that the downstream plaintiffs have to show that their property would not have flooded (at least to the extent it did) but for the construction of the dam?

                    1. Absolutely (although I think it’s more the release of the water than the construction of the dam itself–statute of limitations purposes and all that). I don’t think either upstream or downstream is an easy case for the landowners.

                    2. @jph,

                      I think the statute of limitations for the downstream plaintiffs is the release of the water. But I’m much more sympathetic to the government’s SOL argument re: the upstream plaintiffs. If the thing they’re complaining about is building the dam in the first place, why isn’t that the taking event? I think it’s difficult for the upstream plaintiff to argue that the government’s failure to release more of the water on the downstream plaintiffs is the event giving rise to the claim.

                    3. I tend to agree for the upstream residents. My one caveat is about how the dam was supposed to function–how high the water was supposed to be allowed to get before it was released. It may not be as simple as saying that if you are below the top of the dam, you are SOL because dams aren’t designed to have water up to the top of the dam. So there may be some people upstream who were damaged by the USACE’s decision to let the dam exceed its intended design capacity (if it did so–not sure about the facts).

                    4. ” If the thing they’re complaining about is building the dam in the first place, why isn’t that the taking event?”

                      As I understand it, they built the dam to flood a specific area, which they purchased the rights to do. But then they made plans to flood a larger area in certain emergencies, which area they didn’t bother buying either as property, or right to flood property. THAT is the problem. Not the dam or reservoir, but the the area beyond it they made plans to flood, but which they didn’t purchase any right to flood.

                      To be clear, my concerns are limited to the people upstream of the dam, outside the reservoir. Flooding downstream of dams during extreme rainfall events isn’t a novel issue. The government diverting flood waters into areas that wouldn’t otherwise have flooded, THAT is the interesting issue here.

                  2. Not really. The dam collected water and channeled it through particular bayous. Without the dam, the flooding pattern would have been different.

                    As a matter of hydrology, how does that work? Did the government pump the water into different drainages?

                2. The decision to open the valves reduced the flooding for the upstream people and caused more flooding for the downstream people.

                  No. So long as the water level in the reservoir was not falling, the dam, even at full discharge, was either reducing (reservoir rising) the flooding downstream, or was not affecting (reservoir level stable, including stable with the dam over-topped) flooding downstream. Only if the dam operator was lowering the reservoir level by discharging water at a higher rate than the incoming flood, would the dam have been the cause of any flooding downstream.

                  If that last did happen, then perhaps downstream property owners could argue plausibly that the dam was mismanaged, and caused them damage. Otherwise, the dam was a benefit to them, or a non-factor in the flood they experienced.

            2. “Here’s the problem though, Brett. Doesnt’ that encourage the government NOT to act, and let greater destruction happen, because they won’t be liable for it?”

              Doesn’t that argument argument apply to any taking? If we make the government pay for the land they seize to build roads, maybe they won’t build roads, even if it is more beneficial to build the road? And the response is the same. If the government doesn’t act to the people’s benefit, the people will vote them out. It’s not a great answer, but it’s the answer.

              1. In any event, that isn’t really the choice faced by the government, who of course doesn’t spend it’s own money. If they have a choice between allowing $X in taxpayer property to be destroyed, or incurring less than $X in liability to be paid by the same taxpayers, there’s no advantage for them to choose the former.

    2. The doctrine of sovereign immunity, with its shaky underpinnings, should be abolished, and the government should be held responsible for its negligence and wrongdoing just as any other natural person or corporation. There is no good reason to give government a pass by holding it to no or lower standards.

      1. Can you hold the government accountable without taxing citizens who had nothing to do with the govt’s choices?

  5. I’m concerned about one aspect of your analysis:

    ‘Even if the “public burden” is entirely justified, that does not mean it should be inflicted on the property owners, as opposed to “the public as a whole.” ‘

    In most related cases the property owners should bear a significant portion of the costs, either individually or through their insurance companies. The decision to buy/build a house on a flood relief plain is not one that the taxpayers should bear the entire burden of.

    I think the decision should hinge on whether the area was clearly designated for flood relief or not. If it was, then the property owners are on the hook for the damages. If it was not, then the 5th amendment applies. This would both incentivize care in where you live, and timely updating of state and federal flood plans to reflect current realities.

    1. In the immediate case, it was not.

    2. N Allen, I don’t think that works, either. That would put the government on the hook for all flood damage that engineers failed to anticipate. But I don’t think it is practical to hold government to that standard of perfection in predicting future outcomes. Climate change makes it harder.

      I am surprised to have to be saying this while commenting on an ostensibly libertarian blog, but there are some things where people have to go it alone, do their own due diligence, and suffer the consequences. Investing in the stock market is like that. If you screw up, it is not on government to make you whole. Picking a place to build that will not be flooded, will not get swept by an avalanche, and is not subject to wildfires ought to be another.

      If people are not on their own mettle on questions of those kinds, then you create incentives to build recklessly, with government on the hook for whatever goes wrong. That will maximize the amount of stupid, avoidable destruction which occurs, and will make it occur over and over again. That cannot be the right answer.

      1. In this case, the record shows that the government didn’t inadvertently flood that property, but instead had a plan in place to flood that property under circumstances such as occurred.

        The property owners didn’t screw up in this case. They built in a safe location, and the government took affirmative steps to flood that safe location.

        This doesn’t mean it was the wrong thing for the government to do. It just means the government owes them compensation.

        1. You are just wrong on the facts, Brett. Do your research.

          Not one square foot which flooded upstream of the dam was in a “safe location.” Least wise, not unless you are tendentiously pretending not to recognize the dam was there before almost all the development. Sure, some of what got flooded, might, or might not, have been flooded if the dam had never been built. Is that what you are trying to suggest, but not saying it, because it would be embarrassing to admit you argue that way?

          1. As I read the facts, each dam had associated with it an “impoundment area”.

            The problem is that the Baker dam had an impoundment area capable of holding 95′, for a dam capable of holding 101.7′. The Atticks dam had an impoundment area capable of holding 103.1′ for a damn capable of holding 108.3′. In both cases the dams were designed to be able to flood areas much larger than the areas designated to be flooded!

            The houses in question weren’t in the impoundment area. They were in the larger area that would be flooded if the dams were filled to capacity.

            The legal problem, the taking, is that the government had plans to use properties it didn’t bother purchasing. It took that property, and now the owners are demanding to be paid.

            This in no way says that the government was wrong to flood those areas. Just that, having used them without purchasing them, it now needs to pay for what it took.

      2. Mr. Lathrop, I don’t think your investing analogy really holds. Because if we follow your analogy, then market makers like GS and JPM deliberately mis-priced market instruments, and when you invested, you lost money (through no lack of action or wrong action of yourself). So no, I don’t see where the property owners who were wiped out by federal government action (opening valves) are on their own….and we say, “Gee, really too bad. Tough luck. Hope everything works out for you”.

        1. Atlas, pretty sure the feds opened the valves to keep the downstreamers from being wiped out worse, by uncontrollable over-topping, or even the loss of the dam entirely. Is it your opinion that absent the dam, and given the Houston rain event, the folks downstream of the dam location would have been safe and dry? You might think that, and it would make sense of your comment. I doubt you will find a good hydrologist to agree with you.

  6. Isn’t there a case directly on point that didn’t go the property-owners’ way from back in the 1903 San Francisco fire?

  7. Wow. Folks are really giving it to poor Ilya. Apparently not everyone hates the damn gummint as much as he does. I’ll take another tack:

    “As the CNN article makes clear, another painful aspect of these cases – sadly not unusual for federal court litigation – is how long they have dragged on (almost two years, with a long time probably still left to go, if we include likely appeals). During that time, the victims continue to suffer without any compensation. As the saying goes, justice delayed is justice denied. And the one certainty in these cases is that any justice the owners get will only come after a lengthy delay (if at all).”

    Uh, doesn’t this happen in private litigation as well, a lot? In 1974, a man named Victor De Costa sued CBS over trademark infringement regarding the “Have Gun, Will Travel” tv show. In 1991, a court ruled in his favor. Isn’t running out the clock a standard legal strategy in private litigation? Does government have a legal duty to be virtuous, while private litigators do not?

    1. Of course, not all government lawyers are winners:

      Federal Judge Holds Entire US Attorney’s Office in Contempt of Court
      https://lawandcrime.com/high-profile/federal-judge-holds-entire-us-attorneys-office-in-contempt-of-court/

    2. It’s probably better for the plaintiffs to have a rock-solid lower court proceeding (evidentiary and legal) and a well-considered opinion than to speed it up and risk an appellate court finding an undotted ‘i’.

      Haste makes waste, measure twice cut once, better to do it right the first time, etc…

    3. “the victims continue to suffer without any compensation.”

      Why didn’t they buy the (federally subsidized) flood insurance?

      1. Because they weren’t in any place that would naturally have flooded.

        1. “Because they weren’t in any place that would naturally have flooded.” So flood insurance should have been very inexpensive, no? Places that are more likely to flood sometimes can’t be insured, or if they can, only at high expense.

        2. “Because they weren’t in any place that would naturally have flooded.”

          Water flows to the low points after it falls from the sky, does it not?

      2. Are NFIP plans available to people who don’t live in a flood plain?

        1. No, they are not.

  8. IMO this issue should be settled by Congress, not the courts.

    I used to help run the power grid. There were emergency cases where we had to dump whole cities to rescue the grid from even more widespread blackouts. One can argue that the other cities that benefit should compensate the injured city, but the compensating party should not be the utility or the government.

    Same thing with parents who lose a child because of vaccinations. Should they be compensated? Who pays?

    It can also be argued that ordinary insurance is the solution. Everyone pays premiums, the unfortunate few get compensated from those funds. The problem is that if we insure for too many huge risks, the premium get high, and the insurance company making 20% of all premiums gets too rich.

    It is legitimate to debate these issues. It is not wise IMO, to use the courts and The Constitution, to do it.

    1. Generally speaking, private insurance does not cover flood damage because the occurrence of flooding outside of identified and designated flood plains is too sporadic and unpredictable, while the resulting damage is often quite extensive. This is why the federal government provides flood insurance, albeit too cheaply. It’s a form of welfare for those who build on flood plains and the coasts.

  9. I really don’t know how to feel about this “one free flood” rule. I understand the engineers felt they had to do it and that US citizens lost private property. People shouldn’t live in disaster prone areas. People shouldn’t be subject to unaccountable govt being responsible for flood safety. It’s not like these homeowners chose to have politicians who didn’t effectively design Houston to deal with flooding. When everyone is at fault I’m more inclined to throw them a bone, but why are we taxing the rest of us who aren’t even involved to pay these people back?

  10. I’m having a difficult time understanding the facts based on the article and the opinion. The action-inaction distinction in the opinion focuses on the construction of the dams. The CNN article makes it sound like the issue is that the federal government released water into the neighborhoods. While it’s possible that both are true, the focus on the former makes me think that the plaintiffs complaint is not that the government released water in their lands, but that the government built dams that they knew could be overrun and therefore flood private property.

    If that’s the case, the court’s SOL analysis is at war with the next section. But more importantly, there is an action/inaction problem since the claim is functionally that the federal government didn’t buy enough land. Where is the takings? If the federal government had bought no land, the houses would have flooded. If anything, the dams mitigated that flooding, since they were holding a lot of water that otherwise would have flowed to the private land.

    Someone tell me what I’m missing.

    1. I see now that the opinion is re: upstream flooding and the article is about downstream flooding.

      I still don’t know how the upstream flooded people get around the action/inaction distinction. They can’t very well claim that the federal government is liable because it didn’t flood more downstream properties. And so they have to say that the claim is that the feds did not build sufficient capacity to avoid flooding the upstream. The SOL is still a problem, too.

      1. It appears to me that the feds were treating private property as that “sufficient capacity”; They’d built their dam with the capacity and plan in place to flood private property beyond the reservoir, without bothering to purchase the land, or the right to flood it.

        1. Not “beyond the reservoir,” Brett. The reservoir is all the land, public or private, behind the dam, and below the crest of the dam.

          One omission, by the federal government, was not to buy all that land, instead of buying just part of it, which is what happened. Then came other omissions: The omission to zone undeveloped land in the reservoir, federally purchased or not, as open space—the only zoning its location and elevation could possibly justify. The omission to prohibit subdivision of in-reservoir land. The omission to stop developers and builders from speculating on that land, building on it, and selling it to fools. The omission to warn the fools adequately. The omission by the fools to notice that they were investing in developed land on the floor of a flood control reservoir. The omission of practically everyone in the Houston area to avail themselves of absurdly inexpensive, federally subsidized flood insurance.

          God help us, but that is a lot of omissions, only the first of them by the federal government—and that was an action which arguably did not change the status quo much at all, because the land was almost entirely undeveloped at the time. All the other omissions lie at the soggy feet of state and local government, the land developers, or the purchasers. The court should tell them so.

        2. Your position walks head first into the action/inaction problem. The government is deciding to buy one or two fire stations. It chooses to buy only one. Are houses that are burned down because of a lack of capacity to manage a high burn season, subject to takings reimbursements? If an earthquake takes out the Hoover Dam, is there going to be a taking claim based on the government’s failure to design/install more reinforcement?

          Maybe the answer is yes. But I’m not persuaded yet.

      2. “They can’t very well claim that the federal government is liable because it didn’t flood more downstream properties.”

        They can, and they are not entirely without support. If a private landowner builds a dam that backs up and floods the upstream properties, I do believe the landowner is liable for the damage regardless of whether it prevented damage downstream. I’m pretty sure it’s even strict liability in most states if you choose to impound water on your property.

        There are, of course, cases cutting the other way because the government is involved (such as being able to destroy a house to prevent the spread of a fire), so I’m not confident the landowners will, or even should, win. And it’s even worse for the owners who bought land after the dam was constructed. But there is some logic to their arguments.

        1. This is fair but in my view it would at least X out any taking claim by upstream owners who purchased their land after the construction of the dams.

  11. I think there should be an alternative “You chose to live is a flood zone, moron” argument.

    Or more politely put, the consequences of flooding are an Assumed Risk when you live in those kinds of places. I’m sympathetic to the Takings argument but I’m skeptical that there’s been an actual taking when the government does something it always said it might do in response to a natural disaster.

    1. But this was not an assumed risk, because the upstream properties were not subject to natural flooding. The only reason they flooded was that the government decided to use them as part of the reservoir’s emergency capacity without compensation or notice.

      1. 1. I think you’re missing that this article is primarily about the plaintiffs in the downstream case.

        2. I’m not sure that the assumed risk doctrine is necessarily limited to natural flooding. Assumed risk covers lots of other man-made risks as long as they were pre-existing and known to you before you purchased the property. For example, you don’t get to complain about noise pollution when you move next door to a shooting range that’s been in business at that location for longer than you’ve been alive.

        The risk that the government would use those properties as part of the emergency capacity was arguably something the property owners knew or should have known. The very fact that they had the capability is an argument that they might someday use that capability.

        1. Even most of the downstream properties involved in this litigation weren’t in recognized flood plains subject to natural flooding.

          Of course, a large part of the problem is that this was an unprecedented rain event which will make proving what would have happened all the more difficult.

          1. Your first sentence is nonsense. Flood plain identity is a fact of nature. It has nothing to do with “recognized” status. Nature does not check for recognized status before flooding the land. Recognize it or not, if it is a flood plain according to nature, it stays a flood plain, and someday it gets flooded.

            Recognition, with regard to FEMA flood zones (note, not flood plains) is more a political football than anything else. There are always pressures to draw the boundaries too narrowly, and the pressures are almost always to some extent yielded to.

            Sometimes the extent of the yielding—especially in the vicinity of the Gulf Coast—has been so great it required energetic political connivance to pull it off. That may explain why only ~ 15% of properties in one of the nation’s most-flooded regions (the Houston area) pays flood insurance premiums. In other regions facing similar challenges (Florida) a far higher percentage of properties are covered.

            Thus, FEMA flood zones tell you little or nothing about what a cautious person would investigate while trying to discover what to expect from nature. A basic geology text and an on-site look-around serves more reliably.

            1. “Flood plain identity is a fact of nature.”

              Hard to make that case when there’s a dam involved. And man made bayous. And paved roads that serve as diversion channels. Not all that much nature involved in it, actually. Other than the rain, of course.

              1. In his example, all of the above would be part of nature. He means, the flood plain identity is fact of physics, not of maps created by FEMA, which are subject to political calculations that have nothing to do with the physics of flooding.

                1. “not of maps created by FEMA, which are subject to political calculations that have nothing to do with the physics of flooding.”

                  Which is complete and utter bullshit. As is his claim that he can do a better job of determining how prone a site is to flooding by walking around it than by referencing a map.

                  1. Which is complete and utter bullshit. As is his claim that he can do a better job of determining how prone a site is to flooding by walking around it than by referencing a map.

                    jph12, that is not quite my claim. My claim involves instances where the map excludes flooding, but I can see the site is on a flood plain. Both conditions are quite likely to be found at locations on FEMA maps. In those instances, I can do a better job of predicting flooding than the map, which fails to predict flooding at all—in many instances at locations where flooding is certain.

                    And by the way, that is no special talent of mine. Any geologist can do it better than I can. Many land use administrators can do it. Surveyors can do it. Anyone who has access to the decades-old text, Geology Illustrated can do it. This is not occult knowledge.

              2. You seem to be mistaking “flood plain,” for “flooded area.” Which seems just another way to get back to the mistaken reliance on FEMA flood zones.

                Flood plains exist on geologically relevant time scales. Some of them were flooded in geologically recent time, and will not flood again until a geologically incipient future—both of which could be time frames too long to be relevant to the human engineering you focus on.

                Take a look at a satellite image of the Mississippi Delta region, from Memphis southward. Between boundaries which are mostly miles distant from the river, it is all a flood plain, because it was made by floods. Because of evident meandering streams and oxbow lakes, you can see that in the satellite photos.

                What was made by floods will be flooded again, pretty reliably. What is hard to predict is when it will happen at any particular location. Maybe next month, right where you are.

                Nothing about the engineering will likely have much effect. New Orleans will probably demonstrate that to the world within the next century or so, maybe sooner—and maybe in a way which most folks would not expect at all. For instance, consider the possibility of New Orleans without the Mississippi. That could happen, if even one giant flood overwhelms upstream engineering, and sends the bulk of Mississippi flow down to the Gulf along the course of the Atchafalaya. Then the engineers can try to figure out if it makes more sense to move New Orleans to Morgan City, or to try to force the Mississippi to go where it does not want to go. Or maybe, give up and let nature dictate what happens, a bit sooner than it will anyway.

  12. Do we really want to create a situation where the incentive is there to allow a dam burst or overtopping rather than allow controlled release?

    1. Look, this is NOT a punishment. It’s just a question of whether the government has to pay for things when it destroys them for the public good.

      1. Brett, you miss the point. It doesn’t matter if it’s “punishment” or not. Having to pay still creates an incentive not to act, especially when the government won’t have to pay for the larger damage that would occur without action.

        1. Government isn’t monolithic. The individual officials still have an incentive to act, especially considering that they aren’t too guarded with the government’s money anyway.

          1. But government officials DO care about their budgets. If they didn’t, we wouldn’t have to worry about civil asset forfeiture. On the theory that government officials are indifferent to having more or less money to spend.

        2. Yes, this is a problem, and this is one of the reasons old timey cases tended to hold that a City wasn’t liable if it destroyed your house to contain a fire sweeping through the City.

      2. Liability IS punishment. More importantly, it creates perverse incentives. The government isn’t liable when it does nothing and people perish. But it IS liable if it does something, saving lives, if property damage results.

        Either make the government liable in both cases (insuring everyone for the consequences of natural disaster) or neither. We don’t want to tip the scale of government decision with liability.

  13. Here’s an analogy. Let’s say my both my house and my neighbor’s house are on fire at the same time. The Fire Department shows up. They don’t have enough hoses to save both houses. They can save one, or let them both burn. So they choose one. They put out the fire on my neighbor’s house, while mine burns to the ground.

    Serious question: would I have a case to sue the government for reimbursement of my house, since it was their decision not to save it?

    1. Your example doesn’t fit the case. Because the fire in this example would have burned your house down even if the fire department did nothing. Here is a more appropriate analogy.

      A fire is approaching your house and will surely burn it down, killing you and your entire family. The fire department can only prevent this by redirecting the fire to burn down your neighbors property (which otherwise would not have been damaged), which consists of extensive vineyards and a very nice mansion that is currently unoccupied.

      Under the theory pushed by Somin, if the fire department allows your home to burn and your family to perish, it faces no liability whatsoever. But if it instead it directs the fire to burn your neighbors vineyards and very nice mansion, saving lives since no one will die in that case, it must pay them, even if doing so causes the fire department to go bankrupt.

      So, under Somin’s theory, the fire department should let your family burn to death if it wants to avoid liability.

  14. I’m surprised no one has mentioned that this strongly parallels the Trolley Problem. Lost of analysis of that dilemma.

    I personally don’t think the government should be making those kind of decisions.

    1. You are right about the parallel to the trolley problem.

      But guess what, the trolley problem can’t be avoided by not making a decision. Doing nothing is still a decision. A decision with foreseeable consequences.

      Saying you would like to avoid a decision is nothing different than wishing you weren’t facing the problem you are facing. Think of the story of the ostrich sticking its head in the sand.

      1. But guess what, David Welker: you are not the ultimate authority on anything. Inaction, even deliberate inaction, is to not intervene, and therefore escape culpability. Acting implicates. If the government did nothing, in the absence of a performance contract, they are not responsible. If they act, for whatever reason – their sense of obligation to mitigate or perhaps spread the damage, or whatever – they become responsible for the outcome. In this case they made a moral decision, whether they think so or no, and acted on it, which I think is wrong for government to do.

  15. This is just irresponsible.

    If the government chooses to let the flooding do even more damage (and perhaps kill more people), it doesn’t have to pay compensation, just so long as it didn’t lift a finger. Just as soon as the government does the right thing (taking action calculated to minimize property damage and saving as many lives as possible), it must pay compensation.

    The litigation here, if successful, would have the unintended consequence of incentivizing irresponsible behavior by the government. If the government does the right thing (minimizing damage to property and, especially lives, without favor to anyone), it shouldn’t have to pay any damages.

    1. “If the government chooses to let the flooding do even more damage (and perhaps kill more people), it doesn’t have to pay compensation, just so long as it didn’t lift a finger.”

      It sounds like your problem is with the takings clause. Why, if the government wants to take land to build a road, or a school, then it has to compensate the owner. But if it doesn’t build the road or the school, then it doesn’t have to pay a cent. So there’s no incentive to build roads or schools, even if they benefit the public!

      Or maybe your problem is with government itself. If the government wants to provide police services, or fire services, then they have to pay the cops and firefighters, but if they provide nothing, they save that money. There’s no incentive for the government to to anything at all, amirite?

      The answer, of course, is that the government is not spending their own money, but the taxpayers money. Andy those are the taxpayers whose land you are suggesting that they should allow to get flooded. If they fail to build roads and schools, or to provide police or fire services, or if they allow large tracks of land to be flooded, then they won’t get reelected. And they like getting reelected.

      1. “Why, if the government wants to take land to build a road, or a school, then it has to compensate the owner.”

        Sure, but in that case the government created the burden, which is why it would be unjust to force the individual landowners to bear the entire brunt of the cost for the public benefit.

        In a flood situation such as this, the government did not create the burden. It’s merely choosing how to best allocate the burden. It’s not at all clear to me why the government should be liable for opening the valves to prevent the dam from being overtopped if it wouldn’t be liable for damage resulting from keeping the valves closed and allowing the dam to be overtopped.

    2. David, your response is loaded with assumptions about what is right and wrong, what is moral and ethical and what is not, and is only rationale in that context. Not everyone agrees with what you think is right and ethical and moral. You say ” as soon as the government does the right thing” – and then you go on to define that as “minimize property damage and saving as many lives as possible.” Well, under the circumstances, many would agree that that isn’t necessarily right. Why should anyone determine the fate of one upon whom providence has smiled? One who is killed to to government action who would not otherwise have died has been killed by the government. Surely that is not right. It’s not up to the government to choose who lives and dies, who’s life is worth more, or to minimize mortality or property damage at the expense of others’ lives and property. If you think it is – show it to me in the Constitution, please.

  16. I’m sorry if anybody, (Mainly Stephen Lathrop, but others.) has mistaken my comments. To be clear: I think the only interesting legal issue here is in regards to the upstream owners outside the impoundment areas. Everybody else is SOL for well established reasons.

    So my remarks have been directed solely to those landowners, and nobody else. They are the people whose property the government made plans to use, but didn’t bother purchasing either the property, or the right to use it. And then used, and doesn’t want to pay for using.

    No different in principle from a municipality building a retention pond for firefighting, undersizing it to save money, and planning to drain a neighboring private pond in an emergency. (Including sizing the pumps for that purpose, and having hose on hand to reach it.)

    Then the emergency arrives, they carry out that plan, and the owner of the private pond wants to be paid for the water and damage.

    When the government built the dams, they purchased impoundment areas for each dam, but made the choice to purchase areas smaller than the dams were capable of flooding. And planned on flooding private property beyond the impoundment areas if necessary.

    They planned on using private property for public use, they so used it, and now, properly, they should pay for having done so.

    1. To be clear: I think the only interesting legal issue here is in regards to the upstream owners outside the impoundment areas. Everybody else is SOL for well established reasons . . . So my remarks have been directed solely to those landowners, and nobody else.

      Brett, hyrdrologically, how can those even have suffered damage at the hands of the government? Or is this another tendentious argument premised on the notion that whatever the government did not pay for is therefore outside the impoundment area—even if by elevation it is below the crest of the dam, and thus predictably within the flooded area the dam might create? Are you saying we will call it outside the impoundment area anyway, to make property owners there look less responsible for their own damage? Is that what you are doing? Otherwise, I cannot understand why flood damage that occurred completely above the impoundment could be charged against the federal government.

      1. “Or is this another tendentious argument premised on the notion that whatever the government did not pay for is therefore outside the impoundment area—even if by elevation it is below the crest of the dam, and thus predictably within the flooded area the dam might create?”

        The argument is that the government only bought part of the actual impoundment area, though it planned to use the rest. What part of “If the government wants to use property, it must pay for it.” is confusing you?

        1. That is not what you have been saying the argument is.

          I already said that if there were any developed properties in the reservoir area before the dam was built, then the government owes for whatever it did not previously pay. Undeveloped agricultural land? Nah. Not unless someone can show flooding that land temporarily somehow permanently reduced its value as undeveloped agricultural land.

          1. Flooding agricultural land usually destroys the crop, so it does reduce the value. Furthermore it is alleged that the government did not give notice that the upstream land, that previously never flooded, _would_ flood when the water level reached the top of the dams.

            If the government had banned building on that land, it would have clearly been a taking – at the value of undeveloped agricultural land, which often takes into account the possibility of later development. But since it did _not_ take the land, compensate the owners for the reduced value, or even warn the owners and later builders, it’s now a taking of the developed land and everything constructed on it.

            The downstream land is a different situation. It was subject to flooding before the dams were built. The dams reduced the flooding, but cannot eliminate all possibility of flooding. There, I could see a possible government liability only if the government made erroneous or false assurances that it could keep some areas flood-free.

    2. Hi Brett,

      So, why is this the only “interesting” set of cases? You have three distinct sets of cases, Upstream in-res(ervoir), upstream out-of-res, and downstream.

      For the upstream, in-res cases, it was noted that it could be flooded.

      For the upstream out-of-res cases, this represents the edge of the dam, where once filled to capacity, the water started to flow around the outside of the edge of the dam, causing flooding. The argument could be made that without the dam there, the flooding wouldn’t occur.

      For the downstream cases, the Corps deliberately opened the flood gates, causing a mass of water to flow through, in excess of what the water channels could hold. This cased flooding as well.

      Aren’t all three of these “takings”? (And yes, it’s a catch-22 for the Corp, damned if you do, damned if you don’t)

      1. For the downstream cases, the Corps deliberately opened the flood gates, causing a mass of water to flow through, in excess of what the water channels could hold. This cased flooding as well.

        Once again, no. A dam operator does not cause flooding by releasing water while the reservoir level is rising. So long as the water level is rising, more water is being impounded than is being released—which means the dam operator is ameliorating flooding, not causing it. That is true even if the dam is releasing water as fast as it can, and even if that amount of release, by itself, is sufficient to cause a flood. As long as the reservoir is rising, flooding is being reduced.

        If the dam is overtopped, and the operator thus loses control of the flow, then again, no. That is just a natural flood doing what a natural flood does. The dam has added nothing and subtracted nothing. The dam is a non-factor, however great a disappointment it may be.

        Only if the dam operator draws down the reservoir, adding water to a downstream channel that is already in flood, does the dam operator cause flooding. As you might suppose, that is not a common practice. I have not seen any claim that it happened in Houston. And even if it did, there could be a question whether such a release became a necessity, to prevent catastrophic collapse of an otherwise sound dam.

  17. Which came first here, the dam or the houses? It seems unreasonable for people who build houses on a known flood area to expect government to compensate them whenever there’s a flood. Surely those who prefer to live dangerously ought to assume some of the risk.

    1. Keeping in mind my above statement, (My remarks being directed only to upstream plaintiffs outside the impoundment areas.) the problem is with the idea that you are in a “known flood area” if you are upstream of, and outside of, an impoundment zone, and only going to flood if the government undertakes affirmative actions to assure that it happens.

      Were they on notice that the government had plans to flood their property in emergencies?

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