Answers to these frequently asked questions will be updated periodically. A copy of the Amended Complaint is available for review here.
What is this lawsuit about?
Between August 25 and 29, 2017, the federal government stored massive amounts of stormwater from Tropical Storm Harvey in Addicks and Barker Reservoirs. As a result, both reservoirs reached historically high levels and flooded many thousands of homes and businesses which were built within the reservoirs’ maximum “design pools.” This class action lawsuit asserts that the federal government cannot use private property to store federal floodwaters without providing compensation.
How did this happen?
The U.S. Army Corps of Engineers built the reservoirs in the 1940s and 1950s. They were designed to flood a predetermined area of land known as the “design pool.” However, the federal government only purchased part of the land within the design pools and left a large portion of land within the design pools as private property. As a result, over the next several decades, subdivisions with homes and commercial properties were built in the remaining portion of the design pools.
The recent flooding in these neighborhoods reveals the grave error committed by the federal government. The federal government sat back silently and watched while developers built out private property, within the reservoir, that was designed to flood. In many cases, the federal government helped the developers by issuing authorizations and permits. If the federal government had bought this land in the first place or obtained flood easements, the devastation during Harvey could have been prevented.
Who does this lawsuit cover?
This lawsuit covers all property owners, whether residential homeowners or businesses, whose property is located within the maximum “design pool” of Addicks and Barker Reservoirs and that flooded during Harvey. We filed our lawsuit as a class action because it is the most established procedural vehicle for obtaining relief for all flood victims (see FAQ below for explanation). For Addicks, the class is all owners of property that flooded that is below approximately 109.1 feet elevation. For Barker, the class is all owners of property that flooded that is below approximately 101.5 feet elevation.
What is the legal theory?
The legal theory is straightforward: Under the Fifth Amendment of the U.S. Constitution, the federal government cannot take private property for a public use without providing “just compensation.” Typically, the government will ask the courts to authorize a condemnation proceeding and set the amount of compensation. This allows private property owners to challenge the taking and seek the maximum amount of compensation available under the law.
When the government “takes” the property without consulting the courts or offering any compensation, this also violates the Fifth Amendment, and injured property owners can file what is called an “inverse condemnation” lawsuit. To assert an inverse condemnation claim based on flooding, a plaintiff must show: (1) a protectable property interest under state law (that you own or lease real or personal property); (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) the degree to which the invasion was intended or the foreseeable result of the federal government’s decision; (4) the flooding was the “direct, natural, or probable result” of the federal government’s decision; and (5) that the federal government’s decision had a substantial or severe impact on the affected property.
Here these elements are met because the federal government foreseeably stored its floodwaters on private property without obtaining the right or permission to do so. The class action lawsuit we have filed seeks just compensation under the Fifth Amendment for members of the class. If the lawsuit is successful, funds will be distributed to members of the class who opt in.
WHAT IS JUST COMPENSATION?
“Just compensation” under the Fifth Amendment of the U.S. Constitution is the value of the property of which you as the owner has been deprived. Not all losses will be compensable. The proper amount of damages depends on the particular circumstances in each case. We will assert that the federal government should pay just compensation for the “direct, natural, or probable results” of the Corps’ operation and management of the dams. This might include compensation for diminished property values, the “cost to cure” (or repair) damaged improvements, and damaged personal property.
What do I need to do to participate?
You need to sign up with an attorney, and we are here to represent you. Please contact us to tell us that you want to participate, and we will discuss the case with you.
If you just wish to be added to our email list for updates, please submit your contact information here. Please understand that you only become one of our clients by signing an engagement letter with us.
Why is this lawsuit a class action?
First, it is important to understand what a class action lawsuit is. A class action is a procedural vehicle that attorneys (or the court) use to manage a large number of claims. We still represent all of our clients the same way—whether the court decides to use class treatment in this case or not. Every client’s case is evaluated for where you are in the Harvey flood pool and what your monetary losses are.
The main purpose of a class action is to achieve relief for all flood victims, without hundreds or thousands of cases overwhelming the court system. The Court has indicated that a streamlined process will be used in the Harvey litigation. At this time, only a small number of “test properties” will be litigated while other cases are put on hold. For our lawsuit, our clients that are serving as “test properties” have also agreed to be “class representatives.” What this means is that, as we litigate the government’s liability, we will also file a motion with the court for “class certification.” If a class is certified, and if we “win” on the liability for our test cases, then everyone who is part of the class (i.e., all the upstream flood victims within the design pools) will benefit from the liability finding.
The class action is the most established and efficient way to achieve relief for everyone if we are successful on the test properties. It has been used in other flooding and Fifth Amendment cases. And because everyone behind the Addicks and Barker dams flooded for the same reason, class treatment makes a lot of sense. However, while the government’s liability is uniform across all clients and plaintiffs, and the types of damages are common, we believe that clients’ actual damages are individualized.
If the court does decide to certify a class for liability, then we will recommend that our clients “opt in” to benefit from any positive liability finding. “Opting in” to the class doesn’t mean the clients are treated differently; it means that they do not have to separately litigate their claims to achieve the liability finding. At this point in time, we do not know whether or when the court will decide to “certify” the class.
WHAT IF OTHER LAW FIRMS ARE CALLING / EMAILING ME? WHAT SHOULD I BE CAREFUL ABOUT?
We are aware that a lot of law firms are trying to sign up clients. You can, and should, pick whichever firm you are most comfortable with. You can, and should, interview several attorneys and make the best decision for you and your family.
In our agreement, the client pays no expenses, does not pay anything in the event that we are unsuccessful, and we commit to a 25% contingency fee. We are not aware of any attorneys with a lower fee. We would advise individuals to check the contingency fee in any contract they consider.
Also, while many firms are urging quick action and demanding tough terms, our law firm will not ask you to give up any portion of funds if Congress buys out your property before any litigation has even occurred. We also will not put an attorney lien on your property for any reason. We urge you to talk to an independent lawyer before you sign any engagement that contains any provision regarding a claim on pre-suit property buyouts or an attorney lien on future buyouts.
And, most importantly, we plan to hold your case—not refer it to some other lawyer—in order to see your claim through to the best recovery possible for you. Make sure that any lawyer you speak to is actually planning to handle and manage your case.
How long will the lawsuit take?
Resolving these claims will take substantial time because it involves complex litigation against the federal government. Depending on the exact size of the class, the potential cost to the federal government may be substantial, which likely will require Congressional involvement and authorization. Please be wary of any attorney promising quick results.
What will this lawsuit cost me?
Nothing. The lawyers will cover all expenses and will recover a fee only if we obtain a successful result.
Who is handling this case?
Our team comprises attorneys with environmental and class action experience from Irvine & Conner PLLC and Burns Charest LLP, along with attorney and engineer Larry Dunbar.
Irvine & Conner PLLC and Larry Dunbar. Attorneys with Irvine & Conner and their co-counsel Mr. Dunbar regularly handle technical flooding and drainage cases. In addition to being an attorney, Mr. Dunbar has been a registered professional engineer in Texas since 1983, and has served as a flood expert witness in that capacity in numerous state and federal judicial and administrative proceedings.
Among counsel’s most pertinent experiences are two federal cases centered on the Addicks Reservoir, in which Irvine & Conner’s attorneys were part of plaintiff’s litigation team and Mr. Dunbar served as plaintiff’s flooding and drainage expert:
- Sierra Club v. U.S. Army Corps of Engineers, No. 4:11-CV-3063 (S.D. Tex.) (Ellison, J.). This case concerned potential flood and dam safety impacts to Addicks Reservoir from upstream residential and commercial development. Judge Ellison granted summary judgment to the Sierra Club and ordered the Corps to complete a full analysis of the impacts of upstream development on the Addicks Dam and Reservoir.
- Sierra Club v. FEMA, No. 4:07-CV-608 (S.D. Tex.) (Rosenthal, J.). This case challenged FEMA’s final flood elevations for Cypress Creek overflow, which contributes a large portion of the water that flows into Addicks Reservoir. As a result of the court’s rulings, FEMA corrected the errors on the floodplain maps that Sierra Club identified.
As a result of work on these cases and other projects, Irvine & Conner and Mr. Dunbar have compiled a repository of data, documents, and studies directly relevant to the upstream claims. Further, Mr. Irvine holds a Masters in Science, and Mr. Dunbar has an engineering background. They both have extensive experience working with large sets of data, sophisticated computer models, and have previously overseen large teams of experts in complicated science-based litigation, including flood cases.
Burns Charest LLP. Founded in 2015 by two former Susman Godfrey LLP partners in Dallas and an environmental and complex litigation lawyer in New Orleans, Burns Charest currently serves as lead or co-lead in complex cases throughout the country. Burns Charest has two offices, twelve attorneys, and a large staff of paralegals and litigation support specialists.
Currently, Burns Charest serves as co-lead counsel in several complex actions including In re EpiPen (Epinephrine Injection USP) Marketing, Sales Practices, and Antitrust Litigation, MDL 2785 (D. Kan.), In re: Chesapeake Barnett Royalty Litigation #2, MDL No. 48-000000-15 (48th District Court, Tarrant County, Texas), and on the Plaintiffs’ Executive Committee in In re Domestic Airline Travel Antitrust Litigation, MDL 2656 (D.D.C.), and In re Dental Supplies Antitrust Litigation, No. 16-cv-696 (E.D.N.Y.). Each of these cases involve class wide claims and complex and sometimes novel issues of law.
Additionally, Burns Charest is co-lead counsel in Salvation Army v. Union Pacific Railroad, a groundwater contamination suit designed to remediate harmful contaminants in the drinking water source for most of Southwest Louisiana. In the past, Burns Charest has been appointed to serve as co-lead counsel for a class of end-payor indirect purchasers in In re Vehicle Carrier Services Antitrust Litigation, MDL No. 2471 and appointed as co-lead counsel in In re Crude Oil Commodity Futures Litigation, No. 11-cv-03600, a class action involves complex antitrust and commodities claims.
Just as important as the Firm’s experience is its ability to work cooperatively and efficiently with other firms to achieve results. For example, when Warren Burns and Daniel Charest served as co-lead counsel in In re Crude Oil Commodity Futures Litigation, they managed dozens of firms in that litigation, and Mr. Burns personally negotiated a class settlement with the defendants that was approved by the Court. Similarly, Mr. Charest coordinates with attorneys with individual clients in the Chesapeake Barnett MDL for discovery issues, motion practice, and hearing preparation. And, while at Susman Godfrey, Mr. Burns served as co-lead counsel for the end-payor class in the In re Automotive Parts Antitrust Litigation, MDL No. 2311, and personally led negotiations resulting in substantial settlements for the indirect purchaser classes.
WHAT IF I DO/DO NOT HAVE FLOOD INSURANCE?
Whether you had flood insurance has no impact on your ability to opt into the class action or seek recovery. It simply may change the amount you are able to recover. All flooded property owners should give serious thought to bringing an inverse condemnation action in hopes of being able to fully repair damage to their homes, businesses, and other property.
WHAT IF I WANT TO SELL MY PROPERTY?
It will not affect your ability to opt into the class action or recover damages. If you decide to engage our law firm and sell your flooded property, we will assist you by providing specific language to include in the sales contract at no additional charge.
Can I see a copy of the Complaint?
Where can I find more information?
We will continue to post more information on this website. To join our email list, please submit your contact information here. Additional information may be posted to our Facebook page and/or Twitter account.