Litigation Update: After a hearing, the Court rules that the case will go to trial

Today, the Court of Federal Claims ruled that the Government was not entitled to dismiss the upstream case, and that we get to proceed to trial. This ruling came just a week after the Court held a hearing in Houston on the Government’s motion to dismiss.

At the hearing, the Judge asked many thoughtful questions of all parties. He wanted to understand more about how the dams operate, and the Corps’ intent to impound large volumes of water behind the dams during heavy rains. And it was great to see so many of our clients at the hearing, and for those who could not attend, you can read the full transcript.

In today’s sixteen-page order, the Court largely agreed with the legal framework we urged in our briefing, and rejected the Government’s arguments.  The Court made several important points. The Court affirmed that our case is founded on government action: “the government acted when it built and then modified the dams in such a way that they could and did impound storm water behind the dams on both government and private property.” The Court also rejected the government’s argument that the pre-existence of the dams renders plaintiffs’ claims invalid: “courts award[] compensation to plaintiffs who acquired their land while on notice that a taking was occurring or had the potential to occur.” (Of course, we do not think the plaintiffs in our case were on notice because the Corps never explained the reach of the maximum design pool to the public; even so, we are pleased that the Court has rejected the government’s argument based on the law.) Finally, the Court affirmed that a single flood event can rise to the level of a Fifth Amendment taking.

At the end of the opinion, the Court did not outright deny the Government’s motion to dismiss, but instead deferred the issue until trial so that the Court can make more detailed fact-findings. Overall, the Court’s opinion demonstrates a thorough understanding of all the legal issues at play in this case. We are very pleased with this result.

We are in the process of confirming a trial date.

At the hearing last week, in addition to discussing the motion to dismiss, we also discussed the overall schedule with the Court. Most importantly, the Court stated that it was in the process of arranging a courtroom for a trial on the merits, possibly starting February 19th, 2019 in Houston. The government asked (again) to delay the case. We have opposed. This issue was not resolved at the hearing, and the Court asked for proposals by the government, and by upstream counsel, so that it can decide what works for the parties. Briefing is underway, with the government’s reply (the last round) due today. We will keep everyone informed once the final schedule is set.

Not too late to join the lawsuit!

We continue to get new clients day after day. And a lot of people ask whether it is too late to join the litigation. If you have not signed up so far, you are not too late. We would be happy to help. And we are positioned to provide the representation needed to protect the interests of all upstream flood victims.

We have set up different places to get information and/or send us questions. Please feel free to access these resources and/or pass them along to your neighbors. Getting the word out about the case and our meetings will be a big help to us and the affected upstream flood victims.

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As always, please feel free to call 888-248-5215 or 713-533-1704, or email or with any questions.