In booming, growing Texas, an inherent tension exists between the government’s need to build and expand public infrastructure and the need to protect fundamental property rights under the U.S. and Texas constitutions. Texas’ population growth, its thriving oil and gas economy, and its shared border with Mexico have created interesting eminent domain issues in both federal and state courts.
In the aftermath of Hurricane Harvey, hundreds of federal inverse condemnation lawsuits were filed in the Court of Federal Claims. The lawsuits assert that the U.S. Army Corps of Engineers intentionally flooded properties upstream and downstream of the Addicks and Barker reservoirs in western Houston in order to protect other areas of Houston from flooding if the reservoirs were breached. Judges Susan Braden (downstream) and Charles Lettow (upstream) of the U.S. Court of Federal Claims are managing these suits akin to multidistrict litigation cases with a handful of test properties set to go to trial in 2019. These cases will likely rely heavily on precedent from the latest U.S. Supreme Court case focusing on temporary floodings as takings, Arkansas Game and Fish Comm’n v. United States in 2012. In that 8-0 decision, Justice Ruth Bader Ginsburg held that government-induced temporary flooding is not exempt from the takings clause.
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