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:...
...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.
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