Five years ago…
Although the rains for Harvey began several days earlier, it was not until the early hours of Monday August 28, 2017, that the Addicks and Barker pools impounded by the Corps began to reach private property. By the morning of that Monday, the first homes, businesses, schools and churches began to flood. Even as the rains abated, the pools continued to rise as rain that had fallen across the watersheds continued to drain into the two reservoirs. Both reservoir pools crested on Wednesday August 30, 2017, which is when the upstream property owners experienced the maximum depth of flooding on their properties.
On September 15, 2017, and on behalf of Christina Micu, Irvine & Conner filed the first upstream lawsuit against the United States of America at the Court of Federal Claims. And we have been working for you and all upstream flood victims ever since.
Status of the litigation
The Court of Federal Claims created a master upstream docket and appointed lead counsel and selected thirteen test properties for the liability phase. Three lawyers from this group—more than any other group—were appointed in leadership positions. After a two-week trial, extensive post-trial briefing, and closing arguments, on December 19, 2019 the Court found the government was liable for taking a permanent flowage easement over each of the thirteen test properties. With liability established, the only question now was how much should the government pay the property owners as “just compensation” for the taking.
The Court commenced the compensation phase in early 2020. As a first step after selecting six test properties, the Court ruled that the date of the taking was August 30, 2017, and the extent of the permanent flowage easement was the depth and coverage of the two reservoir pools. After many delays during the pandemic, we finally got to a trial on compensation in May-June 2022. The trial went very well for the plaintiffs, and we were able to make a strong showing for a large compensation award.
Compensation post-trial brief
After trial, the Court set a schedule for post-trial briefs. We filed our brief on August 1. You can read it here. Our brief summarizes the evidence and testimony of our witnesses and our experts. The government must file its brief on September 9, and we will file a reply on September 23.
Our team will travel to Washington, D.C. to present closing arguments on September 29. As he did in the liability phase, Daniel Charest will take the lead presenting our final arguments. The Court of Federal Claims remains under COVID protocols which means hearings are limited to the arguing counsel, and the Court is not open to the general public.
Statute of limitations—IMPORTANT FOR ALL FLOOD VICTIMS!
On this fifth anniversary of Harvey, the local media has published a number of articles about the event. This one is specifically about the litigation, and quoted Daniel Charest and Larry Dunbar. In the article, Daniel Charest spoke about the need to get a lawsuit on file:
The fifth anniversary of Hurricane Harvey’s landfall means any property owners who have opted not to pursue their claims until now have only one year to make a claim. There is a six-year statute of limitations in takings cases.
“We’ve had more claims come in recently because of the anniversary,” said Charest. “But only about half of the people who had flooding have hired lawyers and are proceeding.”
Charest said more town hall-style meetings, like those that took place after Harvey, may be called soon to educate possible plaintiffs about their options.
“The people that live in these upstream areas have been inundated with attorneys and advertisements from all over for the past five years, and a lot of them have gone deaf to it,” he said. “But if they haven’t yet got it on file, in a year from now they will lose their claim and that’s never going to come back.”
We have heard that some misinformed lawyers may have been telling upstream flood victims that they have to get their case on file within five years. The actual deadline for filing a lawsuit in this case is six years from the date of the take. The six-year deadline is set by federal statute. If anyone has not consulted a lawyer, or asked a lawyer to get their claim filed, you still have one year left to do so. However, and most importantly, if your do not file a claim by August 30, 2023, you may forever lose you chance to be compensation for the Harvey upstream flooding. You may also be barred from claiming compensation in the event that the Corps floods your property again after that date. In short, the Corps may claim that they took a permanent flowage easement during Harvey, and if you did not file a lawsuit within the six-year period, then you get no compensation and any new lawsuit may be dismissed.
Plans for year six after Harvey
We are tentatively planning two Town Hall Meetings for October 8 and 1 (Location TBD).
In addition, our team intends to increase its outreach effort in the coming year. You can be part of that progress by sending this message to any neighbors who flooded and have not retained a lawyer. They need to know about their rights—and to protect those rights—before the rights disappear.
It’s not too late to join and get the word out!
As we have said before, it is not too late to join. And, now that the first bellwether Just Compensation trial has concluded, we want to get the word out that the litigation is progressing apace. Please spread the word to your neighbors on Facebook, Nextdoor, or just word of mouth—whatever it takes. It’s important to remember that we are stronger as a community than any of us are standing alone.
As a reminder, this is who we are: The Court appointed our team of lawyers to 3 of the 6 leadership positions for the upstream cases. (We are happy to share the Court’s appointment order with you.) Our team is comprised of environmental attorneys with experience in flooding litigation—Irvine & Conner—and a complex litigation firm that handles high stakes litigation—Burns Charest. Plus, one of our team lawyers, Larry Dunbar, is also an engineer/hydrologist with extensive knowledge on the Addicks/Barker reservoirs.
In addition, 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 (or even this email) 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.
Charles Irvine, Irvine & Conner PLLC
Daniel Charest, Burns Charest LLP
Larry Vincent, Burns Charest LLP
Co-Lead Counsel for Upstream Harvey Flood Cases