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Home Owner Class Action Sues U.S. Over Harvey Flooding in Houston

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Lawyer fights back with maneuver to get around sovereign immunity

It wasn’t just Hurricane Harvey that rained on Houston’s parade in late August. Property owners in Harris County filed a class action lawsuit, claiming the  government intentionally lifted floodgates, unleashing 13,000 cubic feet per second or more of water into Buffalo Bayou from the nearby Barker and Addicks reservoirs. The action allegedly caused flooding for hundreds of homes and businesses that were outside of the city’s designated 500-year floodplain.

“The Army Corps of Engineer’s decision to take control of the flowage easements over private home and business property and make unexpected controlled releases was knowing and intentional,” stated a 10-page complaint written by Bryant Banes, a partner with Houston law firm Neel Hooper & Banes PC.

At the core of the pleading is the claim the enclave didn’t experience flooding until two days after the worst of the rain.

“State court plaintiffs seem to have a strong argument under the Texas Constitution by making an argument under Texas inverse condemnation law that the intentional release of water caused them damage,” said Jason Turchin, a personal injury and hurricane insurance attorney in Miami. 

But Mr. Banes filed the class action suit in the U.S. Court of Federal Claims on Sept. 5 on behalf of Neva Banes, Carlton Jones and NB Research.

“There are 300 people in my neighborhood that have houses worth $500,000 to $1 million and most of them have no house anymore,” said Banes, whose home was among those that there were impacted. “My house is worth zero to potential buyers because it’s now in an area that’s been flooded.”

By filing in the U.S. Court of Federal Claims, Mr. Banes deftly navigated around the Federal Tort Claims Act (FTCA), which permits private parties to sue the United States in federal court for property damage, personal injury or death allegedly caused by a federal employee’s negligence or wrongful act or omission torts only after they have submitted Standard Form 95 as a prerequisite. The government then reviews the case and decides whether a federal district court has jurisdiction.

“Had I filed a tort claim, sovereign immunity would prohibit the lawsuit or any government liability for damages or the actions taken by the Corps with respect to flood control,” Mr. Banes said.

The sovereign immunity doctrine dictates the federal government is immune from civil suit or criminal prosecution. Mr. Banes chose to file a takings claim in the Court of Federal Claims rather than State District court partly because a federal agency, not a state or county agency, decided to drain the dam.

“The Army Corps of Engineers consulted with the Harris County Flood Control District authority but the entity that actually took the action that damaged some 300 homes was the U.S. Army Corps of Engineers,” said Mr. Banes. “It was a federal, not a state, action.”

A takings claim is based on the Takings Clause of the Fifth Amendment of the U.S. Constitution, which dictates that private property shall not be taken for public use without just compensation even though      federal, state and local governments may take private property through their power of eminent domain.

“A successful takings claim will require the claimant to either persuade the courts to modify the Public Necessity Rule to require compensation even when a public necessity exists that justifies the water release or establish on the facts that there was no such public necessity or genuine emergency,” said Steven Barshov, partner with environmental law firm Sive Paget & Riesel in New York.

Also known as the conflagration rule, the public necessity doctrine provides that the government isn’t liable for damages when private property is destroyed under circumstances that are required to prevent far greater damage to land in general.

“The actions of the government may not be subject to formal eminent domain proceedings because the Army Corps of Engineers may have been acting to protect the public’s health, safety and welfare,” Barshov said.

By the same token, the actions of the government aren’t entirely insulated from a Takings claim simply because an event is an emergency or temporary, according to ruling in Arkansas Game & Fish Commission v U.S.

The case, which set a precedent concerning a large parcel of land along the Black River in northeastern Arkansas, relied on facts rather than blanket exclusionary rules to determine whether an emergency required public necessity rule. The U.S. Court of Appeals for the Federal Circuit held in Dec. 2013 that flooding cases, like other takings cases, should be assessed with reference to the particular circumstances of each case:

“Unlike permanent physical takings temporary invasions are subject to a more complex balancing process to determine whether they are a taking. The Court remanded the case for further proceedings, noting that the government had challenged several of the trial court’s fact findings, including those relating to causation, foreseeability, substantiality and amount of damages. The Court added that those issues the government had previously preserved for review in this court would remain open for further consideration.”

“We won’t know until this case is tried whether the imminence of the water overflowing the top of the dam was really an emergency situation that necessitated the government’s response,” said Barshov.

Justice Susan G. Braden determined in St. Bernard Parish Government v U.S. that the Army Corps’ construction, expansions, operation and failure to maintain the MR-GO in New Orleans caused subsequent storm surge that was exacerbated by a “funnel effect” during Hurricane Katrina and subsequent hurricanes and severe storms, causing flooding on plaintiffs’ properties that effected a temporary taking under the Fifth Amendment to the U.S. Constitution.

Ms. Braden wrote in her May 1, 2015, Order on Liability:

“Today, the court has issued a liability opinion and scheduled a non-public conference with all parties on May 6, 2015 in New Orleans to ascertain whether they will agree to have damages assessed by a knowledgeable and accomplished mediator—and, in short order.”

But the plaintiff’s victory is currently on appeal with the U.S. Court of Appeals.

Meanwhile, Mr. Banes maintains the Corps in Texas knew, or should have known, it was sacrificing and condemning hundreds or even thousands of homes.

“Defenses by the government are going to be very difficult because my home and everyone’s home in my neighborhood is not in the 500-year floodplain,” said Mr. Banes, who contends that had the dam not been drained the neighborhood would have remained otherwise relatively untouched. “All we’re saying is that even for a public purpose under a Takings analysis the government owes these homeowners, myself included, just compensation.”

According to court records, the Corps announced in a press release it was releasing water to prevent uncontrolled buildup overflowing from the dams.

“The government could try to mitigate compensation by arguing that some of the damage claimed was not from the water flowing from the dam but rather other causes like the rainwater itself or other damage caused by the storm,” said Jason Turchin. “In that case, the Plaintiffs may have to show the damage sustained was greater than what would have normally happened as a result of the hurricane’s significant rainfall and what degree of damage would have been sustained were there no dam in place.”

Despite the wash of it all, Mr. Banes will be able to repair his home, but he wants the federal government to fund the restoration for him and his neighbors who were left homeless after the government’s watershed decision.

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