Can flooded-out Houstonians win lawsuits against Army Corps?

In Harvey's Wake

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HOUSTON — Late last month in a well-off neighborhood on the west side of town, the sun finally pierced through bloated rain clouds. The core of Hurricane Harvey — now diminished to a tropical storm — had moved eastward, leaving behind inconceivable damage.

Then the floodwaters that lingered in Robert Pledger’s street began rising again.

“After the sun came out and the rain was over, the water started really coming in higher,” he recalled.

It didn’t stop until 2 feet had accumulated on the first floor of the house he'd built 34 years ago and had purposely elevated above the 100-year floodplain. It was the first time it had ever flooded, and Pledger was miffed.

Now, he’s shopping for lawyers.

In the weeks since the storm, a slate of high-powered law firms have coordinated to recruit as many as 10,000 plaintiffs in Houston. Other lawyers — particularly those who specialize in eminent domain and environmental law — are operating independently. Most of them are pursuing cases for residents like Pledger.

On a recent weeknight, Pledger and dozens of other flood victims packed into a private meeting room at a local Mexican food restaurant to consider a pitch from yet another legal firm over complimentary fajitas. Other than flooding during Harvey — most for the first time — the residents all had one thing in common: They live downstream of two reservoirs called Addicks and Barker that got so full during the unrelenting rainstorm that the U.S. Army Corps of Engineers had to release a torrent into Buffalo Bayou, which snakes through their neighborhoods.

Those “controlled releases” — which the Army Corps ramped up significantly after the storm had moved on — propelled water into thousands of homes and businesses that wouldn’t have otherwise flooded and whose owners thought they had emerged from the worst rainstorm in modern U.S. history largely unscathed.

Prodded on by a throng of trial lawyers — some of whom are promising “quick cash” — many of the property owners are now looking to sue the Army Corps, along with the city of Houston and Harris County. Some already have filed suit alleging that the decision to open the gates on the Addicks and Barker dams — which the agencies knew would flood additional homes — constitutes a governmental land seizure that requires “just compensation” under the Fifth Amendment to the U.S. Constitution.

Lawyers also have filed at least one class action lawsuit in federal court on behalf of property owners upstream of the dams who also flooded when the reservoirs got so full that water backed into their neighborhoods. Hundreds of flooded homes in those areas aren’t in any known floodplain, meaning mortgage companies didn’t require owners to buy flood insurance.

That suit also alleges the government seized private land without compensating the owners — a legal concept known as "inverse condemnation." But it has one notable addition: It says the Army Corps should have warned property owners of their flood risk — and compensated them for it by purchasing easements — because they were built on land the agency considers part of the reservoirs.

The Army Corps is no longer answering questions about its actions during Harvey because of the lawsuits and has referred all media inquiries to the U.S. Department of Justice, which declined to comment.

All told, lawyers and legal experts say the spate of lawsuits may become one of the largest inverse condemnation-related legal challenges in U.S. history, driven in part by the high value of the impacted homes, which are all on Houston’s wealthier west side.

But they are mixed in their forecasts of how the cases might play out. Many say the property owners have little chance of winning, citing a variety of state and federal legal opinions; others say property owners have a fighting chance, although many admit it’s not a slam dunk.

They all agree on one thing: It will take years and untold millions of dollars to litigate.

“Generally speaking, I think it’s easy to say the government will win,” said New York University law professor Richard Epstein, who has been called the nation’s leading academic expert on eminent domain and takings law. But, he added, “There’s nothing about this which is straightforward or simple.”

Flooding cases will be very complex 

Still, some of Texas’ top lawyers are betting on success and have taken cases on a contingency fee basis, meaning they will only get paid if they win.

One firm recruiting clients is Bell Rose, owned by former Democratic Houston congressman, city councilman and gubernatorial candidate Chris Bell and his partner Ben Rose, a young lawyer who waged an unsuccessful bid for a seat in the state Legislature last year.

“I really believe we’re on the side of angels and justice,” Rose said in an interview.

But Bell admitted that for him and Rose, this is unfamiliar legal territory.

“This is new ground for most of us,” Bell told Robert Pledger and his neighbors earlier this month during an informational meeting. Rose added that there aren’t many attorneys in the state — or the country — who have tried inverse condemnation suits.

Those who have say they can be extremely complicated.

"The hard part is going to be separating out if someone is at fault,” said Robert T. Thomas, a Hawaii-based lawyer who has been practicing, teaching and blogging about eminent domain law for 30 years and isn’t involved in any of the lawsuits.

“We love to assign blame and the thing about inverse condemnation — why lawyers choose that as remedy rather than negligence — is it doesn’t focus on fault, it focuses on the economic justice of who has to bear the burden of public necessity, public good.”

Thomas said property owners should look for a lawyer who specializes or has some experience in eminent domain and takings law.

Houston environmental attorney Jim Blackburn, who has represented flood victims in inverse condemnation cases, said he thinks that both upstream and downstream cases are "unwinnable," for different reasons.

While the Corps never purchased easements that would’ve allowed them to flood upstream areas within the reservoirs — something they have done at many other reservoirs they operate around the country — Blackburn said they still have a “de facto easement,” so the cases should be relatively easy for the Corps to defend.

But Houston-area environmental lawyer and engineer Larry Dunbar, who is co-counsel in the class action lawsuit that argues the Army Corps should have done a better job of informing upstream property owners of their risks, said he thinks his clients have a strong case.

“People upstream clearly wouldn’t have flooded but for the reservoirs,” he said.

Yet the Army Corps “flooded them anyway," he said. "It was part of the plan, but they never paid the landowners for the right to flood them."

As for downstream cases, Blackburn said lawyers will have to prove that the reservoirs were the primary reason people flooded.

“I would not take that lawsuit,” he added.

Corps official: 'We're between a rock and a hard place'

Last year, the Army Corps described in detail to the Tribune the tough decisions it has to make every time the reservoirs fill up, knowing that property owners on either side might flood.

Back when the agency built the dams in the 1940s after two back-to-back storms put downtown Houston underwater, the earthen berms were in the middle of open prairie some 15 miles from downtown. But in recent decades, rapid growth has eclipsed the reservoirs. Homes and businesses have been constructed right beside them — even on land the Army Corps considers part of the reservoirs but that it doesn't own (It only purchased enough land behind the dams to hold water from a 100-year flood, and Harvey far exceeded that).

“We’re between a rock and a hard place,” Richard Long, the reservoir project manager, said in that 2016 interview.

Whether the Army Corps had to release such large quantities of water during Harvey — which filled the reservoirs to record levels in two days — to prevent an even worse disaster such as a dam failure is sure to become a major issue in the downstream lawsuits. The agency has estimated that a dam failure would result in thousands of deaths and billions of dollars in damage.

No one is questioning whether the Army Corps made the right call when it opened the floodgates, lawyer Derrick Carson, a partner at Locke Lord in Houston, said in a podcast on the mega-firm’s eminent domain blog: “They were making rational decision for the greater good, but when they flooded few people to save the many, the question becomes: What are you going to do to compensate the few?”

Thomas, the Hawaii-based eminent domain lawyer, agrees.

“Essentially the Corps made a decision — somebody is going to get flooded,” he said. “In this case, it’s not a question of negligence, it’s just a question of damages.”

“It’s in the public good," he added. "The government should pay for it.”

Neena Satija contributed reporting.