On August 25, 2017, Hurricane Harvey made landfall near Rockport, Texas as a Category 4 Atlantic hurricane. It then stalled over Houston. After landfall, winds diminished but precipitation did not, and over the next four days, the wettest tropical cyclone in the United States’ recorded history dropped an unprecedented amount of rain on Houston and environs.
In order to manage the stress on the city’s reservoirs, the Army Corps of Engineers engaged in “controlled release” of water from the Addicks and Barker reservoirs, which water caused flooding to areas located downstream of the reservoirs. The flooding caused by these controlled releases was extensive and largely in areas outside of demarcated flood plains.
Photo courtesy of Harris County Flood Control District.
The purpose of this Whitepaper is to analyze the statutory framework and existing decisional law relating to potential subrogation causes of action against governmental entities in connection with the above-described events.
II. LEGAL ANALYSIS A. Federal Jurisprudence Uses a Multi-Factor Balancing Test for Inverse Condemnation Arising from Temporary Flooding 1. Constitutional Considerations:The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation. It applies to states through the Fourteenth Amendment. As early as 1872, the U.S. Supreme Court found that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material … so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. 166, 181, 20 L. Ed. 557 (1871).”
When government action leads to a temporary sacrifice of property interests, the issues presented become more complex and subject to fact-specific inquiries. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 332, 122 S. Ct. 1465, 1484, 152 L. Ed. 2d 517 (2002). In Arkansas Game & Fish Commission v. United States, 568 U.S. 23, 31, 133 S. Ct. 511, 518, L. Ed.2d 417 (2012), the Supreme Court held that “government induced flooding temporary in duration gains no automatic exemption from Taking Clause inspection.” 133 S. Ct. at 523. The Court then identified the factors of analysis for such an inspection: 1) the duration of the invasion, 2) the degree to which the invasion is intended or foreseeable as the result of government action, 3) the character of the land at issue and the owner’s reasonable investment-backed expectations of the property and 4) the severity of the interference. Id. In Arkansas, the Court ultimately found that the Arkansas Game & Fish Commission had made out a prima facie case for inverse condemnation after repeated flooding of a game and forest preserve by the Army Corps of Engineers.
Arkansas concerned several years’ worth of seasonal decisions to alter the flow of water so as to facilitate farming at the expense of forestry but did not concern catastrophic, isolated events. However, federal courts have found that a takings can result from the interplay between public infrastructure and extreme weather. For example, St. Bernard Parish Government v. United States held that the Army Corps of Engineers was liable to the St. Bernard Parish government and individual property owners in New Orleans for widespread flooding in Hurricanes Katrina, Rita, Gustav, Ike, and other tropical storms, which flooding resulted from the construction and poor maintenance of the Mississippi River Gulf Outlet. 121 Fed. Cl. 687 (Fed. Cl. 2015).
To satisfy foreseeability and causation, the St. Bernard plaintiffs had to introduce substantial evidence of precisely how the construction and neglect of the MRGO foreseeably caused flooding.
2. Hurricane Harvey Considerations:One of the key factors distinguishing Harvey litigation from either Arkansas or St. Bernard is that Harvey is a single event. Although the balancing test articulated in Arkansas Game and Fish Commission does not categorically bar a takings claim for a single, isolated event, repetition of invasion has been a touted factor of analysis in the relevant case law. For example, both Arkansas Game and Fish Commission and St. Bernard mention the repetition of flooding events as evidence of severity of interference and reason to...
