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

Earlier today, the Texas Court of Appeals for the First District issued a notable ruling in a takings case arising from deliberate flooding of private property by the government in the wake of Hurricane Harvey, which hit the Houston, Texas area last year. In an opinion by Justice Michael Massengale, the court ruled that the San Jacinto River Authority's flooding of numerous privately owned properties could potentially qualify as a taking requiring compensation under the Texas state constitution, and therefore allowed the property owner's lawsuits against the agency to proceed. The River Authority flooded numerous privately owned homes and other properties in the hope that doing so would prevent still worse flooding elsewhere, resulting from the hurricane.

The case was decided based on a Texas state law allowing owners to sue for compensation for "governmental action[s]" that result in a taking under the Texas or federal constitutions. The issues at stake in the case are very similar to those currently being litigated against the federal government in the Court of Federal Claims. The US Army Corps of Engineers flooded a much larger number of properties in the wake of the very same hurricane, and for much the same sort of purpose: preventing even greater damage elsewhere. The two sets of cases involve similar arguments.

Justice Massengale's opinion (rightly, in my view) rejects the River Authority's argument that there could not have been a taking because the flooding of the plaintiffs' homes was the result of a "confluence of particular circumstances," including the hurricane itself. As he points out, the owners have substantial evidence indicating that their properties either would not have been flooded at all absent the Authority's actions, or at least would have suffered far less damage. He also expresses skepticism about the Authority's argument that there can be no taking unless the plaintiffs can prove that the Authority specifically foresaw that their specific properties would be flooded.

In my view, as long as the government knew or should have known that its actions would flood at least some private property, it should be liable for a taking even if they did not know ahead of time exactly what property it would be. To make an admittedly rough analogy, a person who deliberately or negligently fires a gun into a crowd and kills someone is liable for wrongful death, even if the shooter could not know ahead of time exactly which person he would hit. In this case, however, the court did not definitively resolve the issue of "specific intent," because the plaintiffs presented evidence indicating that the River Authority could indeed foresee that their specific properties would be flooded.

The court also refused to adopt the River Authority's theory (very similar to the federal government's in the federal case) that there can be no taking if they only flooded the plaintiffs' land just one time, as opposed to recurrent flooding. Justice Massengale did not make a definitive decision about whether this "one flood free" theory is valid, but was clearly skeptical of it. He does not resolve the question because he concludes that the plaintiffs had presented evidence of previous government-created flooding in the same areas, sufficient to show a recurrent pattern.

The ruling also addressed a number of procedural issues. I will not cover them here, as they are significant to the broader constitutional questions at stake.

This Texas state decision is obviously not binding on the federal court considering very similar cases against the federal government. But the two cases raise related issues, and Justice Massengale's opinion could help influence the federal court in the plaintiffs' favor, if the outcome is otherwise in doubt.

In this October 2017 post, I discussed the key constitutional issues at stake in the federal Harvey flooding litigation. The cases are important both in their own right, and as potential precedents for the future. It is particularly important that the courts reject the "one flood free rule" and other similar subterfuges that would give government agencies a relatively free hand to inflict enormous damage on private property without paying compensation. In that post, I emphasized that the fact that the deliberate flooding here may have been a wise, well-intentioned decision does not mean there was no taking:

[T]he federal government claims that it had good reasons for flooding the affected land. In the Houston case, the goal was to prevent even greater flood damage from occurring.... But the 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.

Longtime Volokh Conspiracy readers may be interested to know that this is apparently the third Texas state court decision that cites a VC post (in this case, my 2017 post on the federal Harvey takings litigation).