The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, Senior Judge Loren Smith of the US Court of Federal Claims ruled against a group of property owners who argued that the US Army Corps of Engineers violated the Takings Clause of the Constitution when they deliberately flooded their homes and businesses during Hurricane Harvey in 2017, in order to prevent even worse flooding elsewhere. This case concerns claims by property owners whose lands were downstream of the dams the Corps opened during the Hurricane.
In December, a different judge of the same court ruled in favor of similar takings claims by the upstream owners (I analyzed that ruling here). The two decisions may seem contradictory. But I actually think Judge Smith's opinion outlines a strong justification for distinguishing them. While it may annoy some of my friends in the property rights community, I believe there is a strong likelihood this ruling is correct, even though I also agree with the earlier pro-plaintiff ruling in the upstream case, and more generally believe that the Takings Clause requires the government to compensate property owners when it inflicts damage on their property by deliberately flooding it. At the same time, I do have reservations about some parts of Judge Smith's analysis.
The key reason why Judge Smith concluded that the downstream and upstream cases are different is that there is a strong case that the government's actions were not really the cause of the flooding damage in the former situation. Had the government done nothing, the property owners would likely have suffered the same sort of harm. And the Takings Clause doesn't protect owners against property damage that was not caused by the government or its agents:
In [the] opinion [in the upstream case], Senior Judge Lettow determined that the taking of upstream property occurred as a result of the general operation of the Addicks and Barker Dams and Reservoirs, as a direct result of the Corps' decision to close the flood gates in order to protect properties downstream at the expense of the upstream properties located within the maximum pool size for the Reservoirs…. In contrast, the Downstream plaintiffs do not allege that the general operation of the Reservoirs caused the flooding of their property…. Rather, plaintiffs downstream advance a takings theory predicated on the Corps' decision to open the flood gates and begin Induced Surcharge releases…. As more fully explained below, the downstream plaintiffs' theory of causation ignores the simple fact that the gates were initially closed for the sole purpose of protecting their properties from floodwaters, that such mitigation failed because the impounded storm waters exceeded the Reservoirs' controllable capacity, and that the Harvey was the sole and proximate cause of the floodwaters….
Perhaps the government should have protected the owners better. Having failed to do so, perhaps it should still compensate them for the damage they suffered (though this is highly debatable). But such compensation isn't required by the Takings Clause. Later in the opinion, Judge Smith quite properly distinguishes between the seizure or destruction of property rights by the government (which is a taking requiring compensation), and withdrawal of government benefits—including protection against naturally occurring flood damage:
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.
All of the above seems sound. Another good aspect of the opinion is that Judge Smith did not embrace any of the more extreme theories advanced by the federal government, such as the "one flood free" theory, under which deliberate government flooding of land can never be a taking so long as the flood is temporary, and "only" happens once. In that respect, it is also consistent with the Judge Lettow's ruling in the upstream case.
I do have one nagging concern about the outcome here: it is possible that the government's decision to keep the dam closed for several days after the hurricane started, and only then release the accumulated water might have caused even more damage to the plaintiffs' land than would have occurred had the water been allowed to spread unimpeded from the start and therefore hit the affected properties at a slower pace. I lack the technical expertise to assess this possibility. But it seems to me an issue that the court should have considered. If the government's decision inflicted damage beyond that which naturally occurred, then its actions did in fact inflict a taking, albeit the amount of compensation due is likely to be far smaller than the plaintiffs would want (because much of the damage would still have been unavoidable regardless of what the government did).
Judge Smith's opinion also engages in some problematic rhetorical excesses, such as this:
[P]laintiffs 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 Houston area.
The idea that the plaintiffs are demanding "perfect flood control" strikes me as a strawman caricature of their position. Their claim is not that a taking occurs anytime flood control is imperfect, but that the government deliberately released large quantities of water onto these owners' land, and inflicted damage that could have been avoided, and would not have occurred absent its actions. As Judge Smith explains, the plaintiffs' theory of causation here is subject to serious question. But a demand for "perfect flood control" it is not.
Judge Smith further concludes that no property right was lost here because none had been created by federal or state law:
So, do plaintiffs have the right to be perfectly protected from flooding? The simple answer is no; the right to perfect flood control it is not recognized by either Texas property law or federal law. The purpose of the Constitution's Fifth Amendment protections is to protect legally recognized property rights, but those property rights can only be created by the states or the federal legislative and executive departments.
The idea that property rights are purely the creation of state and federal governments is deeply embedded in modern jurisprudence, and I can understand why Judge Smith chose not to question it. It is, nonetheless wrong, for reasons I summarized in this article, which points out how the Takings Clause—and the Constitution generally—are based on natural rights theories of property under which many types of property (including property in land) have justifications independent of any endorsement by state law. In my book The Grasping Hand (ch. 2), I discuss how the dominant view in eighteenth and nineteenth century legal thought was that state and federal takings clauses were intended to protect natural property rights, but not necessarily those that existed only because of state law. For that reason, abolitionists and others argued that the abolition of slavery would not be a taking, since the generally accepted view of the "peculiar institution" was that it was contrary to natural law and could only legally exist where endorsed by the positive law of the state or federal government.
If consistently applied, the theory that constitutional property rights are purely the creation of state and federal law would undermine many of our other constitutional rights, which could similarly be declared purely creations of the government, and thus ineligible for constitutional protection unless affirmatively endorsed by state authorities. Hopefully, the Supreme Court will someday set this issue straight.
I have a few other reservations about the judge's analysis of relevant Texas law and how it should influence a federal constitutional takings analysis. But those are best saved for a later time, as this post is already quite long.
Like the earlier decision in the upstream case, this one will almost certainly be appealed. These cases have now dragged on for over two years, and are likely to continue for some time to come. But, despite my concerns about some parts of the judges' reasoning, it is heartening that so far the rulings in both cases seem largely correct.
Questions of causation will often pose difficult questions in these types of cases. But, hopefully, the end result of this legal battle will be to establish the principle that when the government deliberately floods your land, the Takings Clause requires compensation for any damage that would not have occurred absent the government's actions.
UPDATE: I have modified a passage in this post to make it clearer.