The plaintiffs’ lawyers lined up shoulder to shoulder on a recent Friday in a Houston courtroom, filling every available bench, jury box and table. All had come to hear how they could get a piece of sprawling litigation emerging from the devastation wrought by Hurricane Harvey, the Wall Street Journal reported today. The lawyers have coalesced around a corner of eminent domain law they hope will lead to big payouts from the federal government. Dozens of lawsuits filed so far seek compensation for the damage homeowners say was caused when the U.S. Army Corps of Engineers released water from two area reservoirs in the days after a Category 4 hurricane and historic rainfall flooded Houston in late August. With an estimated 10,000 homes or more affected by the reservoirs, the litigation has the potential to reach into the billions of dollars. But convincing a judge the controlled release counts as an improper “taking” of private property under eminent domain law could face challenges in court, and a payout isn’t a sure thing. The Addicks and Barker dams were built in the 1940s to reduce the risk of flooding in Houston. By ordering the controlled release, the Army Corps alleviated water levels that could have poured over or around the two earthen dams, potentially rupturing them and causing significant damage. The government said in a court filing the flooding was a 1,000-year event and that the release of water to relieve the Addicks and Barker dams doesn’t qualify as a taking under the Constitution’s Fifth Amendment. A “single flood — as opposed to an inevitably recurring flooding caused by the Government — is not a taking as a matter of law,” the filing says.
