“Unlawful Government Takings”

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Among the many, many flooded homes in Houston after Hurricane Harvey are some for which the owners say the government is responsible. A group of homeowners is suing both the Army Corps of Engineers and the San Jacinto River Authority for releasing water from a reservoir—water, they say, that damaged or destroyed more than a thousand homes that wouldn’t have otherwise been flooded. With some of those homes valued as high as a million dollars, the damages could run to billions.

Water is sometimes released from reservoirs to prevent overtopping or failure of dams or levees. In this case, water was released to the San Jacinto River. The river authority maintains that the action did not cause flooding or make the existing floods worse. The plaintiffs say it did, though, and that the release of water constituted the taking of their property for public use without compensation.

As this article notes, property owners in Louisiana brought similar suits after Hurricane Katrina in 2005, saying that the government’s failure to maintain the levees, and the subsequent damage when they were breached, was an improper taking. A Loyola College of Law professor quoted in the article says those suits were unsuccessful—and, at the time, they were. However, in 2015, a Federal Claims Court judge ruled in Saint Bernard Parish Government, et al., v. The United States that the Corps’ actions did result in a “temporary taking” and recommended that a mediator assess damages:

“Weighing all the evidence in this case, the court has determined that Plaintiffs established that the Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO [Mississippi River-Gulf Outlet] 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 United States Constitution,” wrote Judge Susan G. Braden.

This summary of the case warns of the implication for local governments:

“Notably, Saint Bernard Parish, if it survives appeal, expands government liability from situations in which the government deliberately causes flooding, for example by releasing water from a dam, to include situations in which inaction by the government exacerbates flooding from severe weather. This developing area of law will also have broad implications for local and state governments seeking to prepare for—or deliberately deciding not to prepare for—climate change impacts.”

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What do you think? Should federal or local governments be held liable for property damage from flooding?

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Comments
  • There should be a fourth choice: “Yes, but only for the failure to maintain infrastructure”. Intentional release of water, to prevent structures from failing catastrophically, is sometimes necessary to prevent more significant damage and loss of life.

    Reply
  • Roger Griffin.

    More importantly, the local governments (county and/or cities) should be held liable for knowingly allowing homes to be built in areas known to be in a flood plain!

    Reply
  • George Akens.

    Here we go again. Nobody takes responsibility for their actions. Everyone is looking for their payday. No governmental body forced you to build in a flood plain, and as at least one Houston councilman, who tried to institute zoning reform, was severely criticized by developers and builders for being “anti-business”. Of course, the builders and developers were looking out for their “pay day”. It always boils down to individual responsibility. As a person who is intimately involved in residential home developments, it astounds me in regard to how little thought people give to making the most significant purchase of their lives. Most of them do not even drive around the area to see what is there. I have no sympathy for them.

    Reply
    • Michael Murphy.

      George, While I agree overall with your sentiment regarding the lack of care in building in floodplains, I do not hols the unsuspecting home buyers responsible. The failure in making the proper decisions regarding the initial development in the floodplains lays with the builders, designers and zoning officials who allowed the new development to take place in a high flood risk zone.

      The truth is that the average home buyer has no expertise to make decisions regarding flood risk, when they tour the home site on a bright sunny day when they are in search of a new home flood risk is probably not on their radar.

      All that being said, Hurricane Harvey was one for the record books and delivered more rainfall than anybody could have reasonably predicted.

      Reply
  • Tim McMahon.

    Your question is to broad. Yes they should be held responsible if there was a lack of maintenance. In the case I don’t believe that was the case, the release of water was to prevent the damn from breaching do to the heavy rainfall. In this case an act of God. These folks should have thought about this before building a home below a damn. Just saying.

    Reply
  • Betty Lambright.

    I agree with Tim McMahon that your question is too broad. Having worked in local government in a city that is considered environmentally aware, I can say that the development community is all powerful when it comes to getting their way of building in inappropriate areas. The local government should be held accountable, yes, but the developers are the last to be held responsible for their moneymaking shortsightedness.

    Reply
  • Maggie.

    I also agree with Tim McMahon – the question is too broad. Which “government” should be held responsible? The U.S. Congress for not allocating enough money, or raising taxes to ensure that there is enough money, to properly maintain infrastructure? The Texas state government for the same reasons? Local politicians who allow developers to build in floodplains or below dams? Developers themselves for putting profits ahead of human health and safety? What about realtors that sell homes in flood plains? Homeowners, too, should have proper insurance.
    I’ll be watching to see how the Saint Bernard Parish Government, et al., v. The United States court case turns out.

    Reply

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