Asking feds to pay for damages
Most of the western Houston area remains under water, but not because of flooding caused directly by Hurricane Harvey.
A complaint filed Tuesday alleges the Army Corps of Engineers knowingly “condemned” homes and businesses when they released water from the Barker and Addicks reservoirs after Harvey had passed.
Residents in the west side of Houston who made it through the storm unscathed, woke up post-storm to find their homes filled with rising water. Interestingly, the attorney is not suggesting the federal government acted improperly, but is requesting they fork over cash to pay for damages.
Video from part of the flooded area:
The Houston Chronicle reports:
“When they opened up the dams full blast, several hundred homes that were dry and not yet directly impacted by the storm — including mine —got flooded by the Corps’ action,” Banes said.
Banes doesn’t contend that the Corps did the wrong thing, only that the government must pay for the damages it caused.
“When they make a choice to flood one area to save another, it’s their responsibility to pay for the consequences,” he said.
Banes’ is one of three lawsuits filed Tuesday in state and federal court seeking to hold government agencies liable for flooding from the controlled releases.
A spokesperson for the U.S. Army Corps deferred questions about two federal lawsuits to the Justice Department, but a spokesman had not responded to a request for comment late Tuesday.
The third lawsuit, filed in state court, targets the City of Houston and Harris County Flood Control District for compensation for property losses downstream of the reservoirs.
We watched officials explain prior to releasing water from the Barker and Addicks reservoirs that the goal was to control flooding in some areas to prevent widespread uncontrolled flooding across the board. They also explained (on local news) they were fully aware that meant some residents in the wake of the reservoirs would flood.
Houston Chronicle ctd:
In one of the two federal cases, Banes and his eight-person civil law firm, Neel, Hooper & Banes, filed a so-called “takings” claim in the U.S. Court of Federal Claims in Washington, D.C., on the grounds that the Army Corps made a willing choice to save some areas after the storm subsided.
Justin Hodge, an expert in eminent domain at Johns Marrs Ellis & Hodge LLP, said such cases boil down to knowledge and intent — whether the government knew what it was doing and intended to cause flooding that essentially amounted to “taking” of people’s properties.
“The government can’t accidentally take your property,” Hodge said. “If they accidentally opened the lever to the dam or the gates, that would not be a taking — that would be negligence.
“But if the government intentionally floods someone’s property there would be real merit,” he said.
Individuals can’t sue the government for an accident. But if the flooding was intentional and knowing, a person can file a claim. He said historically class actions have occurred in condemnation lawsuits but they’re very difficult to pull off.
“A lot of folks may be directly damaged by the dam releases but an investigation has to be made into each person’s claim,” he said. “I would caution property owners … not to try to jump in and file something without doing an appropriate investigation.”
He added, “I’d caution them to hire a lawyer that’s knowledgable in this area of the law.”
Hodge said in the press conferences in the wake of Hurricane Harvey the Army Corps of Engineers was straightforward about the fact that they knew homes were going to flood from the releases from the reservoirs. He saw statements on the Corps website indicating federal officials had knowledge that flooding would happen.
The government could make such a decision if it was acting in the public interest, he said.
“It’s a public use decision,” Hodge said. “They decided to use your property for public use. They decided the general public needs to use your property.”
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