The Volokh Conspiracy
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In the wake of the devastating Hurricane Harvey in 2017, the US Army Corps of Engineers deliberately flooded thousands of homes and other properties in Houston, because they they believed it was necessary in order to prevent even worse flooding elsewhere. Numerous property owners filed lawsuits claiming that the flooding amounts to a taking requiring "just compensation" under the Takings Clause of the Fifth Amendment.
The litigation in these cases has dragged on for over two years. But, earlier today, we finally got a decision on the merits in one of them, issued by Judge Charles Lettow of the US Court of Federal Claims. His ruling is a major victory for the plaintiffs, in so far as he concludes that the flooding does indeed qualify as a taking, and the federal government must pay compensation for the enormous damage inflicted. The decision potentially has significant implications for other similar cases.
To many people, it may seem obvious that the government has "taken" your land if they deliberately flood it, and inflict massive damage in the process. I share that sentiment. But, unfortunately, the Supreme Court's jurisprudence on the subject is far from a model of clarity, which is one of the reasons why today's decision is important.
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 also did not hold that such flooding is automatically a taking. Instead, they gave us a complex multi-factor test to help determine which cases of government-induced flooding are takings and which are not.
In this article, I counted four factors: the duration of the flooding, "the character of the land at issue, the owner's 'reasonable investment-backed expectations' regarding the land's use," and "the degree to which the invasion is intended or is the foreseeable result of authorized government action." Where I saw four factors, Judge Lettow counts six: The factors…. include: (1) 'time;' (2) 'inten[t];' (3) 'foreseeab[ility];' (4) 'character of the land;' (5) 'reasonable investment-backed expectations;' and (6) 'severity' [of the damage]." Some of the difference between his count may be considered a matter of terminology. But I now think I probably erred in not considering "severity" to be a separate factor, as opposed to being subsumed under the others.
However many factors the test has, the Court gave little guidance on how they are to be assessed, how much weight should be given to each, and what happens if some factors come down in favor of the government and some in favor of the property owners. Nonetheless, in my view, the factors in the Houston cases strongly support the plaintiffs. Judge Lettow agrees:
The time and duration of the government invasion is an important consideration in many takings cases…. The government, through its construction, maintenance, and operation of the Addicks and Barker Dams in the past, present, and future, has taken a permanent flowage easement on plaintiffs' properties. Defendant argues that its actions had only temporary consequences, because flood waters from Harvey were only on the properties for a matter of days…. This argument, however, fails to account for the fact that the government's actions have subjected plaintiffs' private properties to the possibility, rather probability, of government-induced flooding ever since the construction of these dams, throughout subsequent changes to the dams and reservoirs, and for at least the foreseeable future. The time and duration of the government's actions at issue here is not measured by "the length of time the water inundates the properties," as the government would have it….; rather, it is measured by a permanent right to inundate the property with impounded flood waters. Thus, this factor weighs in favor of plaintiffs….
This focus on potential recurrence and the permanent nature of the right claimed by the government strikes me as correct, and as more convincing than the government's focus on the length of time during which the property was actually covered with water. However, to my mind, the problem could be resolved more easily by simply concluding that the duration is permanent because the damage inflicted by the flooding is permanent (or at least lasts indefinitely, until such time as the owner is able to have it repaired).
Here is the ruling's assessment of severity:
The flooding at issue here went well beyond a tort and was sufficiently severe to rise to the level of a compensable taking. The government's suggestion that this flooding is not a compensable taking because it was temporary and confined to a single flood event carries no water. Even if a single event of this nature were insufficient to rise to a taking, the sheer frequency of significant storms in the region both before and since construction of the dams… suggests that this was more than an isolated event, and that it is likely to recur…. [I]n the nearly inevitable event of a future storm of significant magnitude, it can be expected that the government would similarly impound water on plaintiffs' properties to prevent what would be catastrophic flooding downstream. As a result, the likelihood of recurrent flooding is high, weighing strongly in favor of the finding of a compensable taking…
The significant harm caused to plaintiffs' properties, almost entirely preventing their normal use and enjoyment, is also relevant to the severity analysis. Water measuring as much as several feet in some cases inundated plaintiffs' homes—for as long as a week in multiple instances—destroying substantial personal property, causing structural damage, and rendering properties uninhabitable or unusable until repairs could be completed months or years later.
The severity question strikes me as an easy call.
On both this point and time/duration, it is significant that the ruling sidesteps the government's egregious "one flood free" argument (that a single instance of flooding can never be a taking), by holding that this should not actually be considered a single instance. In my view, the one flood free theory should simply be rejected outright. Judge Lettow's approach leaves the issue open. But it does reduce the possible damage such a rule can do, if adopted, by narrowing the range of circumstances that can be considered a single, isolated flood. If, as in the Houston cases, the government has a disaster-management plan that is likely to require deliberate flooding on multiple past or future occasions, it cannot be considered a one-time occurrence.
To my mind, these questions of whether the government is immune from liability when it floods private property "only" once, and (if so) what qualifies as a single, isolated flood, are the most significant raised by the case. Today's ruling does not fully resolve them. But it does move the doctrine in a more pro-property rights direction.
Here is the analysis of intent and foreseeability:
Arkansas Game & Fish next requires the court to assess "the degree to which the invasion is intended or is the foreseeable result of authorized government action…"
Despite being separate inquiries, the two factors are interrelated—one cannot find intent without foreseeability; but what is an objectively foreseeable result may not have been the intended result….
Here, the evidence demonstrates the Corps was aware or should have been aware since the initial construction of the dams and at every point onward, that the flood pools in the Addicks and Barker Reservoirs would at some point (and thereafter) exceed the government-owned land, inundating private properties….
As early as the 1940s, the Corps understood that storms of exceptionally large size were possible in the Houston metropolitan area….
To an objectively reasonable person, it was not a question of whether the pools would reach the level they did—it was merely a question of when and how often. Just as in Cotton Land Co. v. United States, "The events which occurred, although they took some time, were only the natural consequences of the [government's actions]. If engineers had studied the question in advance[,] they would . . . have predicted what occurred…."
Later events only magnified the risk of flooding beyond government-owned land, rendering it virtually inevitable….
Not only is it evident that the Corps believed flooding beyond the extent of government-owned land was probable, it is unreasonable to contend otherwise….
It is true that Tropical Storm Harvey was a record-setting storm. But the evidence markedly shows that pools of this size and the attendant flooding of private property were, at a minimum, objectively foreseeable. Thus, Harvey's magnitude does not exculpate the government of liability for its actions….
Intent does not concern whether the government meant to abridge a private property right but whether it intended to occupy the pertinent property without lawful authority or excuse…. Thus, the intent element is present if the government intended its physical occupation even if it did not intend to effect a taking….
Intent is present here because, like foreseeability, intent is not measured at one singular point in time. Again, this is because the government action at issue is not simply the construction of the dams, but the totality of their construction, modification, maintenance, and operation over the project lifespan. The Corps subjectively knew by the 1940s, and particularly by the 1960s, that storms larger than the design storm were likely to occur over Addicks and Barker…. From that time forward, it had subjective knowledge that pools exceeding government-owned land were probable at some point. Indeed, by 1973 the Corps expected the possibility of flooding off of government-owned land to become a public concern… Thus, intent can be inferred here because the government knew flood waters would likely occupy plaintiffs' private properties at some point.
I am not convinced that intent and foreseeability really are separate factors, as opposed to merely a single factor that counts in favor of the plaintiff if the government either 1) intended the damage resulting from its flooding to occur, or 2) could reasonably foresee that it would happen, whether or not they subjectively knew it would. But, either way, this factor (or two factors) support the property owners here, as the damage was both objectively foreseeable and subjectively expected by the relevant federal agency. This part of the ruling is significant because it rejected the government's claims that foreseeability only applies to such damage as could be foreseen when the dams in question were first built back in 1940, and that the Corps therefore cannot be responsible for any damage to structures built since then, if they were larger and more valuable than those that existed at the time of construction. This theory would have greatly reduced takings liability for property destruction in any number of areas where development has occurred over the years.
The court also ruled that the plaintiffs had "reasonable, investment-backed expectations," in part because the government did not do enough to make them aware of the possibility that their land might be deliberately flooded in the event of a hurricane. I would have preferred a stronger ruling: that even if the owners were so aware that this was the Corps' policy, they still could reasonably invest in the land, and reasonably expect that the government would compensate them for deliberately inflicted damage.
Finally, Judge Lettow rejects claims that the government is immune from takings liability because it was using its "police powers" and because the flooding was driven by a "necessity" created by a natural disaster. On both issues, he emphasizes that the flooding was not merely a result of a natural disaster, but also of the government's own long-planned approach for dealing with it. Police power emergencies and "necessities" justifying exemption from takings liability only exist where the harm inflicted was "unavoidable." But here, "the government had made a calculated decision to allow for flooding these lands years before Harvey, when it designed, modified, and maintained the dams in such a way that would flood private properties during severe storms… Defendant cannot now claim that this harm was unavoidable when it planned for years to impound floodwaters onto plaintiffs' properties."
In my view, the better approach here would be to simply do away with the very inconsistently applied idea that exercises of the police power or necessity can exempt the government from takings liability. Even if there is a good reason for the destruction of private property, and even if that reason is a genuinely unforeseen emergency, that is not a good justification for denying innocent property owners compensation for their losses. But a trial court judge does not have the authority to fully cut this Gordian knot.
Today's ruling is far from the end of the Hurricane Harvey takings litigation. It will surely be appealed, and perhaps even get all the way to the Supreme Court. In addition, this case ruling only deals with claims by property owners whose land was upstream of the dams that the government opened. There is a separate case addressing claims by downstream owners, which remains to be decided. Both cases involve factual issues related to causation (whether the government's actions actually caused the damage inflicted on the property at issue), as well as legal questions about what qualifies as a taking. Today's ruling resolves the causation questions for many of the upstream properties, but that too might be challenged on appeal.
As Winston Churchill might put it, this more the end of the beginning of the legal struggle over Hurricane Harvey flooding, than the beginning of the end. It is nonetheless a significant win for property rights, and a rebuke to the federal government's policy of trying to wipe its hands of all liability for the enormous damage it caused.
Prominent takings expert Robert Thomas has some thoughts on today's ruling here. I previously wrote about the Hurricane Harvey cases here and here. Judge Lettow's ruling reaches the same general conclusion as a recent Texas state court decision in a similar case, which I analyzed here.
UPDATE: I should perhaps note that today's decision only addresses the claims of thirteen property owners who "selected to serve as bellwethers for the hundreds of property owners who have filed suit raising similar claims against the government." But, presumably, these thirteen were selected as "bellwethers" precisely because the resolution of their cases is likely to dictate the outcome of all or most of the others.