Major flood decision in Texas turns on Divine Intervention.
Analyzing and comparing tort to taking is difficult. A tort is generally seen as something wrongful. A private injury committed by one person against another. A classic “taking” by exercising the power of eminent domain in direct condemnation to acquire land and pay compensation is not a wrongful act. It merely is. It is something the government can do. And, so long as the taking is for a bona fide public use and the compensation is just and a perfect equivalent for the loss of the property, there is nothing improper or wrongful about it. The two concepts do not touch one another. They are not parallel and they do not intersect.
Inverse condemnation, then, causes an analytical headache. This is because an inverse condemnation as a wrongful flavor to it. In inverse condemnation the government has (allegedly) taken private property without paying the required just compensation. This seems patently wrong. And yet, most scholars and courts have held that a wrongful taking is not a tort. It is, in most formulations, a self-executing action flowing directly from the constitution, requiring no authorizing statute. The distinction is important because governments have many immunities and protections when being sued in tort. But because takings flow directly from the constitution, those immunities do not apply to inverse condemnation.
Further complicating things, the clearest federal mechanism for vindicating a landowner’s right to just compensation – an action under 42 U.S.C. § 1983 – IS a suit at law in tort. So, some flavors of inverse condemnation actions are shoe-horned into tort. Finally, there exists a thing called a torte, and they are delicious. This is . . . confusing.
So how does one distinguish a tort from a taking? Does it depend on the injury? Does property destruction qualify as a taking, because in being destroyed it has been taken from the owner? Or does destruction mean that property has been lost – not taken? Does it matter whether you’re in a state with “takings” only or “takings and damages” constitutional provisions? Does any property destruction proximately caused by the government result in a taking of property? Does it matter what the government was trying to do? Does intent or forseeability matter?
200-plus years after the enactment of the 5th Amendment and we aren’t quite sure.
All of the above is background for today’s actual post:
The United States Court of Federal Claims, in an opinion by Senior Judge Loren Smith issued an order granting a government’s motion to dismiss under FRCP 12(b)(5) (failure to state a claim) and also the government’s motion for summary judgment – with the effect being the termination of a case arising from the government’s response to Hurricane Harvey.
To be as neutral as possible in the set-up. Hurricane Harvey was a historic storm causing a deluge and flooding estimated to be in the 2000-year to 5000-year range. Flood year ranges are estimates of probability. A Hundred Year flood event has a one percent (1/100) chance of occurring in any given year, with the law of averages predicting that such an event would likely occur once a century. But that’s not how statistical distribution works, it is entirely possible to have a cluster of Hundred Year floods in back-to-back years. And in an era of an increasingly volatile climate, such storms have been more common in recent years.
Harvey’s rain waters inundated all the lands in southeast Texas. And all the reservoirs. Relevant here, the Army Corps of Engineers in the 1940s had constructed the Addicks and Barker Dams along the Buffalo Bayou, as well as corresponding resevoirs and a water detention system, in response to floods in the early 20th century in the Houston area. The purpose of these projects was to prevent downstream flooding.
Over time the dams and reservoirs were modernized with control gates. The reservoirs were kept dry during ordinary weather. These were flood mitigation facilities. To operate this flood mitigation system, the government has policies and procedures – some based on a multi-agency team, some in a manual. These procedures and policies explain how the dam should be operated during normal weather conditions, flooding, and emergency events. I’d like you to keep the term “emergency events” in the back of your mind.
As Harvey approached Texas, the Governor of Texas issued a “disaster proclamation”, and the President of the United States also issued a “disaster declaration” through FEMA. The Army Corps of Engineers mobilized and activated their multi-agency response plan.
When Harvey made landfall, it poured. In “anticipation of flooding from Harvey” the Corps closed the gates. Initially the Corps believed that the reservoirs would exceed record pooling of water, but that a mandatory release of water would not be warranted. As the storm progressed, the Corps determined that they would need to perform a mandatory release of water.
For the first time since construction, the Corps made like Elsa and opened up the gates to allow water to escape downstream. Nevertheless, the waters in the reservoir persisted in rising. The gates stayed open for days. Much water was released.
At the same time, properties surrounding the Addicks and Barker Dams flooded. The landowners claimed that the flooding was caused by the government’s actions relating to Hurricane Harvey, and constituted a taking of private property without just compensation (i.e. an inverse condemnation). The matters were consolidated and then bifurcated into an Upstream Case and a Downstream Case. The Upstream Case was previously resolved by another judge (Senior Judge Lettow) in the Court of Federal Claims – which you can read about here and here. The upshot is that for Upstream Properties, the court concluded that the inundation of waters to the upstream properties was a taking of a flood easement because that flooding was the natural and frankly intentional result of the governments construction and operation of the Addicks and Barker Dams.
But for the Downstream Properties, Senior Judge Smith reached a different result – concluding that there were factual and legal differences between the two sets of properties.
Judge Smith concluded that unlike the upstream properties, which were designated to be flooded by the operation of the reservoir system, the downstream properties were designated to be protected by the dams’ operation; that the closure of the dam gates was for the sole purpose of protecting the downstream property; and that the governments efforts failed because the storm waters exceeded the reservoir system’s capacity to control flooding; and (and I think most critically) that the natural storm Harvey was the sole and proximate cause of the flood waters.
In short, the upstream owners were always the sacrificial lambs, and this was a taking. The downstream owners were the protected species, and the failure of the protective plan was not a taking.
I agree with this bottom-line analysis. But there are a lot of analytical points that I think Senior Judge Smith got . . . not right. I hesitate to say wrong, because I agree with his result. And I hesitate to say wrong, because I think that this area of law is not clear enough to call the analysis erroneous. Rather, I hope that future jurists simply don’t follow Senior Judge Smith’s analysis in full.
Here’s why:
“Perfect flood control”. In order to establish a takings case, a landowner must point to some property right that has been taken for public by the government. Texas has a “takings or damages” constitution, so it should be sufficient for a landowner to show some “damage for public use”. Judge Smith frames this case in a dispositive way by saying that the landowners claimed property right is the property interest in “perfect flood control in the wake of an Act of God.”
This is not right.
The right to not have your property invaded by flood waters that have been directed there by the government is a valid property interest. Flooding is a physical invasion.
The government has the power to mitigate flooding. This power is based in the police power and has been characterized as an “ancient” power of the sovereign. I agree.
But, as with the Upstream Landowners, that does not mean that the government can freely select who gets flooded with no consequences. The Downstream Owner’s proper interest was to be free from government caused flooding. It is ok, in my opinion, for Judge Smith to determine that the government did not “cause” this flood. But that does not mean that the landowners did not point to a valid property right.
“Act of God”. Judge Smith concludes that the waters of Harvey were God’s own waters. He specifically ruled that the waters were certainly not the government’s waters. I am not sold on this analysis. In a state of nature it certainly is the case that the rain belongs to no one. But, governments can (and often do) regulate rain water by barring landowners from collecting rain waters in barrels for irrigation purposes. Because the rains recharge the groundwater tables, governments have been allowed to claim that landowner’s interfering with the natural cycle of recharge can be banned. In short, I think these were the governments waters . . . especially once they landed in government facilities totally within the government’s control. If I find a rabid fox in the wild, that’s not my fox. But if I catch it and carry it into town and throw it at your face, I can’t disclaim liability just because it’s God’s fox.
Judge Smith seems to be inching into “emergency exception” territory with this analysis – in that the government HAD to deal with the water as it found it – but chooses instead to blame the Divine as the proximate cause while ignoring the government’s agency in how the waters were treated once they arrived in government operated facilities. I think this skips an analytic step.
“Property rights can only be created by the states or the federal legislative and executive departments”. No. Full stop. No. Property is an inalienable right of all humanity and each human. Although state law in particular may define property, create new property rights, or restrict property rights within reason, they may not legislatively define away well-established property rights – such as homeownership.
Judge Smith’s opinion does acknowledge common law property rights, so it seems likely that this is just a passing phrase in an introduction. But, this way lies dragons.
“Last such event occurred during the life of Jesus!”. That’s not how 2000-year events work. It’s a mild quibble to be sure. But, small errors in assumptions lead analyses astray.
“Common enemy”. I love the common enemy doctrine, because it sounds cool. Roughly, it is a common law doctrine that privileges any landowner to dispose of surface water in any manner, including by diverting it onto the property of another, without facing liability.
Judge Smith seems to apply the common enemy doctrine here in favor of the government, locating it as part of a police power. Meanwhile, in California, the Court have routinely rejected or severely limited the application of common enemy doctrine in dam failure cases. (Pro Tip: California is actually very protective of property right for physical invasions). See, e.g., Bunch v. Coachella Valley Water Dist., 15 Cal.4th 432 (1997). Candidly, I need more time to sort out my own analysis on this issue, but off-the-cuff, I think I’m inclined to agree with California on this particular issue.
So, why do I think Judge Smith’s conclusion is right?
Well, I agree with his order’s apparent opinion that the government did the best it could, and got overwhelmed by a massive storm.
Based on the record in front of the Court, it appears that the flooding would have occurred irrespective of the government’s actions. Consequently, I don’t think there is a proximate causal link between what the landowners say the government did and the flooding that resulted.
To the extent that the landowners allege the government (and not Harvey itself) caused additional flooding, the government’s actions were directly in response to Harvey and were in turn caused by Harvey. I think that this sort of emergency response is allowed for in the “public perils” exceptions to the Takings Clause. The government here did not flood property because it wanted to. The government was simply trying to avert catastrophe. Harvey was an emergency. When the government is responding to an emergency and losses occur as a consequence, those casualties that result are not “takings for a public purpose.” Here, I think that the government conduct is no different than shelling an enemy position, or responding to a 911 phone call and demolishing part of a building to put out a fire or to apprehend a fleeing felon.
I think that Judge Smith’s opinion discussing “perfect flood protection” and “common enemy” and “not the government’s water” hints around these issues while trying to avoid analyzing the takings vs. casualty in public peril doctrines.
Judge Smith characterizes his opinion as involving the lack of a property right. I disagree. I think there was a valid property right, I simply think that there was no legally sufficient proximate causation between government action and the resulting loss of property. As the waters flooding property in this case were caused by a storm severe enough to warrant multiple emergency declarations, any additional water added by the government was privileged as an emergency response. Prof. Somin differs here, and would have allowed an inquiry on whether the government added any additional flood waters based on its initial decision to hold water and then release water. (See his very good article here). I think the question is immaterial because this particular additional water was in response to an emergency. The fact that flooding of downstream properties occurred is unfortunate, but not is a taking.
By contrast, the Upstream Property owners were designed to be flooded. They weren’t flooded because a storm wreaked havoc that the government responded to in the moment. Rather, the government (at least as far as the Court found) always intended to use their properties for the public use of water storage during major storm events.
Prof. Somin would extract an ultimate rule that “when the government deliberately floods your land, the Takings Clause requires compensation for any damage that would not have occurred absent the government’s actions.” I generally agree, but would delete the period and replace it with a comma and continue, “except in cases of great public peril, where the government’s conduct may be privileged.” What the government has done is an important inquiry, but the why also matters.