Texas plaintiffs firms have begun filing lawsuits on behalf of clients who live in Houston neighborhoods that flooded when the Army Corps of Engineers authorized controlled water releases from two reservoirs in the wake of Hurricane Harvey. The suits allege that the intentional flooding was an unlawful government taking of property.

An estimated 4,000 Houston homes flooded after the controlled release of water from the Addicks and Barker reservoirs in the early morning hours of Aug. 28, after the Houston area had already been pelted by Harvey rain for two days. In suits filed over the last few days, including a number of class actions, the plaintiffs seek compensation for the unlawful taking of their property in violation of the Fifth Amendment to the U.S. Constitution.

“It’s totally property damage. It’s totally a takings case under the Fifth Amendment,” said George Fleming, whose Houston firm, Fleming, Nolen & Jez, filed a class action complaint against the federal government and the Corps of Engineers on Sept. 12 in the U.S. Court of Federal Claims.

Richard Laminack, a partner at Laminack, Pirtle & Martines in Houston, whose firm filed a class action complaint on Sept. 5 in U.S. Court of Federal Claims, is confident the flooded-out property owners have a strong case.

“The case law is there solidly behind us. The precedent is there. The Supreme Court has already ruled that even temporary flooding is a taking. The Army Corps of Engineers will freely admit this was an intentional act,” Laminack said, noting that damages include the cost of repairing the property and the diminution of value.

In the suit that Laminack’s firm filed along with three other Houston firms, the named plaintiffs allege the Corps of Engineers “deliberately and intentionally released an unprecedented amount of water” into Buffalo Bayou, a river that flows from west Houston to downtown and then into the Houston Ship Channel.

“These businesses and residences suffered substantial flooding that would not have occurred but for the intentional and deliberate decision to unprecedented controlled release rates of water into Buffalo Bayou,” the plaintiffs allege in Y and J Properties v. United States, filed on Sept. 5 in Federal Claims Court.

On behalf of the Corps of Engineers, the U.S. Department of Justice declined to comment on the litigation.

Other types of litigation will likely result from Harvey, such as tenants suing landlords, and property owners suing insurance companies over coverage. But the involuntary takings suits are a hot area and a potentially lucrative opportunity for Texas plaintiffs firms.

Laminack acknowledged the competition in the market to sign up clients with property that flooded, but he noted that his clients are limited to those with property that flooded after the reservoir releases began on the morning of Aug. 28.

“It’s only properties that flooded because of the release or wouldn’t have flooded as bad but for the release,” he said. “I’m worried there may be lawyers out there gathering up cases of all stripes thinking this will be another Hurricane Ike situation.”

Thousands of coverage lawsuits were filed by property owners against insurance companies after Ike ravaged Southeast Texas in 2008.

Laminack said the Harvey class action that his firm filed on Sept. 5 may be the first in Federal Claims Court. Court records show that at least two other similar class action complaints were filed against the federal government or the Corps of Engineers on the same day. Since then, other cases, including Fleming Nolen’s class action, have been filed in the Washington, D.C.-based court.

Tony Buzbee

Photo by Tom Callins

Other Houston lawyers with strong track records, such as Anthony Buzbee of Buzbee Law Firm, are taking a different tack.

Buzbee said he sent a demand letter to the Corps of Engineers, and also hired a lobbyist to “raise some awareness” in Washington, D.C., about what happened to Houston neighborhoods in the wake of the reservoir releases. Buzbee said he would like the government to establish a fund to compensate the property owners for their losses.

“Failing all that, of course, I’m going to file a lawsuit. I’m going to file suits individually,” he said, adding that the crux of the case is proving what the Corps of Engineers intended when choosing to release water from the reservoirs during the hurricane, and if officials knew that homes would be flooded if it did so.

Buzbee said inverse condemnation claims, made when the government takes private property without compensation, are “very strong” in this case, even though such cases are typically tough to prove. “If an inverse condemnation case still exists in federal common law, this is certainly it,” he said.

Buzbee said he has about 250 clients so far, and in all cases, their property had never previously flooded, and they did not flood during Harvey until the Corps of Engineers opened the gates of the reservoirs.

“These folks went to sleep, woke up with no power and [with] water in their homes,” he said. “This is a pretty strong case.”

With a different strategy, Potts Law Firm of Houston filed a class action petition in state district court in Harris County against the Harris County Flood Control District and the city of Houston, alleging a taking under §17 of Article 1 of the Texas Constitution. Houston City Attorney Ron Lewis did not immediately respond to a request for comment. Melissa Spinks, managing attorney of litigation for the Harris County Attorney’s Office, said, “We deny all the allegations in the lawsuit.”

Buzbee said his clients aren’t suggesting the government acted with mal intent, but instead maintain the government knowingly released water that would flood their neighborhoods “for the greater good.”

Fleming had a similar take, noting that the plaintiffs in his class action aren’t claiming the Corps of Engineers did anything wrong. “They properly decided to flood a number of homes to save the masses, and the question on the table is who should pay for saving the masses. Should it be the relatively few homeowners? Under our Constitution, the law says it should be the government that pays,” he said.

Buzbee said winning a lawsuit or settlement from the government may be essential for many of the property owners, because few carried flood insurance since they did not live in a flood-prone area.

“For many of these people, this is their only shot,” he said.

Senior reporter Brenda Sapino Jeffreys covers the business of law in Texas. Contact her at bjeffreys@alm.com. On Twitter: @BrendaSJeffreys.