If your home was flooded during or after Hurricane Harvey because the government decided to retain water behind the Barker or Addicks Reservoirs, you may be entitled to payment of just compensation from the government.

What is a takings case?

Takings cases arise from the Fifth Amendment to the U.S. Constitution which states, “nor shall private property be taken for public use, without just compensation.”

A governmental taking is typically by condemnation. This occurs where a governmental entity decides to exercise the power of imminent domain to take private property for public use and goes through a formal condemnation process in which it offers the property owner compensation for taking the property.

But that is not the only basis for a takings claim. Takings also occur when government regulations deprive property owners of all beneficial use of their property or when the government is overly aggressive in seeking to exact concessions from a property owner in exchange for building permits. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Dolan v. City of Tigard, 512 U.S. 374 (1994).

What is an “inverse condemnation?

Another form of taking is an “inverse condemnation.” An inverse condemnation occurs when government action deprives an owner of all or part of the value or beneficial use and enjoyment of the owner’s property. In this situation, there is no formal action by the government to acquire the affected property.  Such actions are called ‘inverse condemnations” because it is the landowner, not the government entity, who sues for compensation. See San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 638 n.2, (1981) (Brennan, J., dissenting).

One form of inverse condemnation occurs where the government entity takes action that physically invades private property.

Is flooding of your property by government action an “inverse condemnation”?

Inverse condemnation may occur when water overflows from a government agency’s land or facilities onto adjacent private property. This certainly is the case where government approved projects inundate private property. See Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). Even such temporary government-induced flooding may be a taking.   For example, construction of a dam that causes “intermittent but inevitably recurring overflows” onto private property is also a taking.  See United States v. Cress, 243 U.S. 316 (1917).  However, there is no bright line rule to determine if temporary flooding is a compensable taking.

What damages are available for inverse condemnation?

Potential damages for inverse condemnation include recovery of the diminution in value of your property, compensation for loss of use and the cost of repair. Attorneys’ fees may also be recoverable in some cases.  Damages must be determined on a case-by-case basis.

Are there any recent U.S. Supreme Court cases on government-induced flooding?

In 2013, the U.S. Supreme Court held that a recurrent flooding of limited duration is not categorically exempt from Takings Clause liability and may be compensable. See Arkansas Game and Fish Comm’n v. United States, 568 U.S. 23 (2012). In that case, the U.S. Army Corps of Engineers managed a dam.  Releases from the dam repeatedly flooded a Wildlife Management Area owned by Arkansas.  The Management Area was flooded for longer than planned periods of time in response to requests from downstream farmers for water over an extended growing season.  The Commission sued claiming that the longer periods of flooding adversely impacted the Wildlife Area’s tree growing season. The Management Area was in a floodplain, but the evidence showed that the longer periods of artificially induced flooding damaged trees to be harvested.  The trial court awarded the Commission the value of the lost timber and costs of reclamation. The Supreme Court rejected the Government’s argument that temporary flooding of property is categorically exempt from the Takings Clause.

What factors are relevant to determining if a taking occurred?

A temporary physical invasion of property by the government must be assessed on a case by case basis to determine if a taking has occurred. Several considerations are used to evaluate each case.

Time is an important factor in determining whether a taking occurred. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).  Obviously, the longer the physical invasion lasts, the stronger the argument that a taking occurred.

Whether the invasion of property was intended or the inevitable result of government action is another factor. The flooding that occurred behind the Barker and Addicks reservoirs was the inevitable result of the Corps not purchasing sufficient land to ensure that property behind the dams would not flood when the reservoirs filled up.

The character of the land and owner’s reasonable investment-backed expectations regarding the land’s use are other factors to be considered. See Palazzolo v. Rhode Island, 533 U.S. 606 (2001).

The severity of the interference with the owner’s use and enjoyment of the property must also be evaluated. See Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).

Where do you assert a takings claim against a federal agency?

The U.S. Court of Federal Claims has jurisdiction to hear claims against the United States based on an unlawful taking under the U.S. Constitution. See 28 U.S.C. § 1491 (also known as the Tucker Act). There are no jury trials in the Court of Federal Claims.  The Court is in Washington, D.C. but has authority to hear cases in other locations where there is a federal courthouse.

Are there takings claims under Texas law?

The Texas Constitution has a Takings Clause in Section 17:

No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:

(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:

(A) the State, a political subdivision of the State, or the public at large; or

(B) an entity granted the power of eminent domain under law; or

(2) the elimination of urban blight on a particular parcel of property.

The Texas Takings Clause applies to appropriation of private property by the actions of the state or local government entities such as counties, school districts and municipalities. Texas courts apply similar standards to federal courts in determining whether an inverse condemnation has occurred.  An inverse condemnation occurs when the government physically invades private property or when it unreasonably interferes with the landowner’s right to use and enjoy the property. See Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex. 1992).

Contact Us

If your home or property was flooded because the government stored water in either the Barker or Addicks Reservoir, you may be entitled to just compensation from the government.  Contact the attorneys at Ferguson Braswell Fraser Kubasta, PC today for a free consultation. (713) 403-4200

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