Case 1:17-cv-09001-CFL Document 280 Filed 04/06/20 Page 1 of 10

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Electronically filed April 6, 2020

IN RE UPSTREAM ADDICKS AND )
BARKER (TEXAS) FLOOD-CONTROL )
RESERVOIRS )
) Sub-Master Docket No. 17-cv-9001L
V. )
)
THE UNITED STATES )
) Senior Judge Charles F. Lettow
THIS DOCUMENT RELATES TO: )
)
ALL UPSTREAM CASES )
)

UNITED STATES’ RESPONSE TO TEST PLAINTIFFS’ CROSS-BRIEF AND REPLY

IN SUPPORT OF ITS MOTION FOR CLARIFICATION ON THE SCOPE OF THE
EASEMENT AND DATE OF TAKING QUESTIONS

In accordance with the Court’s Scheduling Order of February 18, 2020, ECF No. 273,

Defendant United States submits this response and reply brief relating to the scope of the

permanent flowage easements that the Court held were taken, and the date of those takings. The

parties’ different interpretations of the Court’s Liability Opinion, ECF No. 260, demonstrate the

need for clarification on these aspects of the Court’s ruling. 1

I. The Duration and Scope of the Permanent Flowage Easements Define the Rights of
Both the Easement Holder and the Owner of the Fee Simple Estate Subject to the
Easement
In any Fifth Amendment takings action in which liability is determined, the measure of

just compensation is based on the property interest that the court held was taken. This case is no

different. Here, the Court held that the United States took permanent flowage easements over

1
In their briefing, both parties cite to the published version of the Court’s Liability Opinion, 146
Fed. Cl. 219 (2019). As noted in the United States’ Motion for Clarification at 1 n.1, ECF No.
276, in seeking clarification of the Court’s liability ruling, the United States does not waive any of its
prior arguments on the issue of liability or its right to appeal following the entry of final judgment.

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each of the subject test properties. The clarification sought on the scope of those easements is

necessary before the parties can assess just compensation during the next phase of this case.

The parties agree on three important aspects of the permanent flowage easements

identified in the Court’s Liability Opinion. First, the parties agree that the Court concluded the

United States took permanent flowage easements over the test properties, not temporary

easements. U.S. Mot. for Clarification at 2, ECF No. 276; Test Property Plaintiffs’ Cross-Brief

and Response (“Pls.’ Cross-Br.”) at 1, ECF No. 279. Second, the parties agree that these

permanent easements allow for the occasional flooding of the subject upstream properties from

reservoir flood pools that exceed the government-owned land elevation. See U.S. Mot. for

Clarification at 3-4; Pls.’ Cross-Br. at 7-8. Third, the parties agree that all of the subject test

properties are improved residential properties, and that the permanent flowage easements

described in the Court’s Liability Opinion do not preclude that current use or any other future,

lawful use of the properties. 2 See U.S. Mot. for Clarification at 4; Pls.’ Cross-Br. at 12 (“the

terms of the easement should not include any restrictions on how the Upstream businesses and

families may utilize their properties in the future”). As such, the flowage easements do not

prohibit the existing structures and other improvements on the subject properties, nor do they

prohibit the construction of new structures and improvements in the future.

The parties disagree on two important aspects of the permanent flowage easements: (1)

the geographic or physical extent of the easements, and (2) whether the taking of those

2
Current regulations and internal governing the Corps’ land and easement acquisitions for its
projects that Plaintiffs cite (Pls.’ Cross-Br. at 7 n.5) are irrelevant in this case. Here, the Court
found the United States liable for the taking of permanent flowage easements and the questions
presented relate to the scope of those easements.

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permanent flowage easements leave the fee owner with a right to obtain compensation for

damages each time that flooding within the scope of the easement occurs.

A. The Permanent Flowage Easements Described by the Court

The Court based its Liability Opinion on a belief that the design and construction of the

dams imposed a condition on the subject upstream properties under which flooding from

reservoir pools may occur. Liability Opinion, 146 Fed. Cl. at 250. If correct, that ruling means

occasional flooding from the reservoir flood pools may exceed the government-owned land

elevation and reach up to the maximum design spillway elevations of each dam. See U.S. Mot.

for Clarification at 3-4. The Court found that these maximum elevations were 114.6 feet for

Addicks Reservoir and 106.4 feet for Barker Reservoir. See id. (citing 146 Fed. Cl. at 234).

Those maximum design spillway elevations, then, necessarily delineate the geographic and

physical extent of the easements that the Court concluded the United States imposed over the test

properties.

In contrast, Plaintiffs contend that the area burdened by the permanent flowage easements

should be limited to the elevation of the Addicks and Barker flood pools during Harvey, because

those pools represent the extent of the physical invasion by flood water that occurred in August

2017. See Pls.’ Cross-Br. at 9-10. Plaintiffs acknowledge that the purpose of their proposed

limitation is to “reserve to property owners the right to seek compensation for any portion of

their property not within the area encumbered by the easements as a new taking for any future

government-induced flooding.” Pls.’ Cross-Br. at 10 (citations omitted).

This argument, like Plaintiffs’ argument on the date of taking, ignores the Court’s ruling

that “[t]he government, through its construction, maintenance, and operation of the Addicks and

Barker Dams in the past, present, and future, has taken a permanent flowage easement on

plaintiffs’ properties.” Liability Opinion, 146 Fed. Cl. at 250 (emphasis added). The Court’s

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Liability Ruling found that the United States acquired a property interest, namely the “permanent

right to inundate” the subject properties, premised on the government action, which is the

construction of the dams in the 1940s and the maintenance and operation of the Project since that

time, and the flood risk created by the totality of those government actions. Id. The Court did

not base its ruling on the particular flooding that occurred during Hurricane Harvey alone.

Plaintiffs’ proposal to limit the geographic limits of the easements to the Harvey flood pools

cannot be reconciled with these aspects of the Court’s Liability Opinion.

B. The Scope of the Easements Define the Easement Holder’s Rights, and Plaintiffs
Do Not Retain a Right to Obtain Compensation for Damages Resulting from
that Use of those Easements
Plaintiffs next seek to narrow the scope of the permanent flowage easements described in

the Court’s Liability Opinion by asking the Court to leave them with a reserved right to obtain

compensation for damages if and when the subject properties are flooded in the future. See Pls.’

Cross-Br. at 2. Specifically, Plaintiffs assert that “while the government has taken a flowage

easement to store future rainfall runoff on the property inundated by the Addicks and Barker

flood pools, the risk of and liability for reservoir pool-related flood damage to the privately-

owned fixtures, improvements, and personal property located within the flowage easement

should remain with the government.” Id. at 11. Plaintiffs request in this regard that “the

easement be drawn as narrowly as possible, and leave intact the right to obtain just compensation

for future losses to property resulting from government-induced flooding beyond the narrowly-

defined limits of the permanent flowage easement appropriated by the government.” 3 Id. at 12.

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Similarly, Plaintiffs propose notices describing the permanent flowage easement as “subject to
the right of the Owner to seek just compensation from the United States (and the United States
shall have an obligation to pay) for any damage or loss to any fixture, improvement, or personal
property on or in the Property, or loss of use of and other related costs stemming from
displacement from the Property, resulting from the Corps’ authorized and intended use of the
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Plaintiffs’ position is nonsensical and misconstrues any reasonable definition of the word

“permanent” or the phrase “permanent easement.” If the Court concluded the United States took

permanent flowage easements over the trial properties, as the parties agree the Court clearly did,

the United States owns, and must now pay just compensation for, a permanent property right that

allows it to occasionally flood those properties. The compensation for the taking of those

permanent flowage easements necessarily includes the right to continue operating the Addicks

and Barker Dams, even if such operations result in the flooding of the subject properties during

large storms in the future. Plaintiffs’ novel suggestion—that the United States pay them for a

permanent flowage easement but that Plaintiffs also retain the right to obtain compensation for

damages each time future flooding occurs “from the Corps’ authorized and intended use of the

easement[,]” (Exhibit 1 to Pls.’ Cross-Br., ECF 279-1 at PDF p. 4 of 4)—is nothing more than an

unsupported request that the Court reconsider its holding that the interest taken is a permanent

flowage easement and instead hold the United States liable for a tort. In other words, according

to Plaintiffs, the United States must pay for damages experienced during Hurricane Harvey now

and then, at some point in the future, also pay for any additional flood damages these properties

might experience. If Plaintiffs’ position is adopted, the United States would be required to pay

for permanent flowage easements, but would not actually acquire such an interest. Plaintiffs’

position represents a significant departure from the very nature of a Fifth Amendment claim and

would directly conflict with the Court’s Liability Decision. The Court’s ruling as to the

easement over the Property and operation of the Project.” Exhibit 1 to Pls.’ Cross-Br., ECF No.
279-1 at PDF p. 4 of 4.

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permanent nature of the flowage easements described in its Liability Opinion is clear, and the

Court should reject Plaintiffs’ proposed interpretation as inconsistent with that ruling. 4

C. Plaintiffs’ Proposed Notice Forms Are Inconsistent With The Court’s Liability
Opinion

Plaintiffs propose Notice forms to describe the flowage easements, but these proposed

forms are inconsistent with the Court’s Liability Opinion for all of the reasons described above.

In addition, Plaintiffs state that their proposed Notice forms are based on the language

used to describe the easements taken in connection with the Harry S. Truman Dam and

Reservoir, as described in Hendricks v. United States, 14 Cl. Ct. 143, 145-46 (1987). Pls.’

Cross-Br. at 13 n.13. However, the Notice forms proposed by Plaintiffs contain language that is

significantly different from the language Plaintiffs quote from Hendricks. The easement

described in Hendricks grants the United States “the perpetual right, power, privilege and

easement occasionally to overflow, flood and submerge” the subject property and the

“improvements now situate on the land . . . .” 14 Cl. Ct. at 145-146. Those improvements

included a levee, and the easement specifies that the fee owner’s retained right of use and

maintenance is “totally subordinate to the absolute right of the United States, without notice and

without incurring any liability of any nature whatsoever to remove, breach, flood or otherwise

damage or destroy in any manner whatsoever, the said levee.” Id. at 146. In this case, as

described above, Plaintiffs ask the Court to craft permanent flowage easements that state, if their

properties are flooded in the future as a result of the Corps’ “authorized and intended use” of the

4
The constitutional remedy available for a taking is just compensation, and the measure of just
compensation depends on the property rights the court held were taken. Here, the interest the
Court held was taken is a permanent flowage easement. Plaintiffs’ approach to narrowing the
scope of the permanent flowage easement appears to be driven by the remedies they seek for the
Harvey flooding, and the desire to retain the right to sue for such remedies each time the subject
properties experience flooding from the operation of the Project. Plaintiffs’ tort-based approach
to remedies is inconsistent with the Court’s Liability Opinion. See 146 Fed. Cl. at 251-254.
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permanent flowage easements, then the United States has an obligation to pay additional

compensation each time such flooding occurs. Again, that proposed construct eliminates the

right to occasionally flood the subject properties in the future altogether, and would effectively

convert the “permanent flowage easement” identified in the Court’s Liability Opinion into a

temporary flowage easement limited in duration to the Hurricane Harvey flooding. That is

inconsistent with the Court’s Liability Opinion.

For these reasons, the United States objects to Plaintiffs’ Proposed Notice Forms and

those proposed forms should be rejected as inconsistent with the Court’s Liability Opinion. The

drafting of such forms is premature and any such forms should be drafted only after the Court

clarifies its ruling on the scope of the permanent flowage easements.

II. Clarification on the Court’s Ruling as to the Date of Taking is Necessary

In the Court’s Liability Opinion, it held the United States liable for the taking of

permanent flowage easements on the subject test properties, but that ruling does not specify the

date of that taking. The parties agree that the date of that taking is important because just

compensation must be assessed as of the date of taking, but disagree on that date.

In the United States’ Motion for Clarification, it demonstrated that the Court’s Liability

Opinion treats the dates of taking for each property as the dates the United States constructed the

dams and reservoirs, 1945 for Barker Dam and 1948 for Addicks Dam. See U.S. Mot. for

Clarification at 4-6. Plaintiffs contend that this position is not supported by any authority or the

Court’s ruling. Pls.’ Cross-Br. at 3. This is incorrect. The United States’ motion seeks

clarification of the liability ruling already made by the Court. That motion cites to findings

throughout the Court’s Opinion showing that the Court’s determination of liability was not

premised solely on the single physical invasion of the subject properties with flood water during

the Hurricane Harvey event. See U.S. Mot. for Clarification at 4-6. Although the United States

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disagrees with the Court’s conclusion, fundamental and central to the Court’s analysis was that

the government action that imposed permanent flowage easements began long before the date

when Plaintiffs’ properties first flooded. See Liability Opinion, 146 Fed. Cl. at 250.

Specifically, in addressing the “[t]ime & duration of the taking,” 146 Fed. Cl. at 249, the

Court found that “[t]he government, through its construction, maintenance, and operation of the

Addicks and Barker Dams in the past, present, and future, has taken a permanent flowage

easement on plaintiffs’ properties.” Id. at 249, 250 (emphasis added). Similarly, in rejecting the

United States’ argument that a single flood event might give rise to a tort claim but not a takings

claim, the Court found that “the government’s actions have subjected plaintiffs’ private

properties to the possibility, rather probability, of government-induced flooding ever since the

construction of these dams, throughout subsequent changes to the dams and reservoirs, and for at

least the foreseeable future.” Id. at 250. The permanent flowage easements described in the

Court’s ruling result from conditions that were created by the construction of the dams and that

have existed since that time. The United States seeks clarification that this Court found that the

construction of the dams created these easements, and that the dates of taking therefore

correspond with the completion of the dams. Those dates of taking are based on and supported

by the Court’s findings about the time and duration of the government action, which Plaintiffs do

not address.

Plaintiffs erroneously contend the Court’s Liability Opinion “expressly disclaims” the

United States’ interpretation because of the Court’s statement that “the taking at issue here does

not begin and end with the construction of Addicks and Barker.” Pls.’ Cross-Br. at 3 (citing 146

Fed. Cl. at 256). However, that statement from the Court’s analysis of the foreseeability factor,

like other statements throughout the Liability Opinion, reflects the Court’s finding that the

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relevant government action resulting in a taking of permanent flowage easement was not limited

to the single, first-time flooding of the subject properties due to the operation of the Project’s

dams during the rare rainfall event in August 2017, Hurricane Harvey. Instead, the government

created a condition when it constructed the dams in 1945 and 1948, and that condition has

existed since that time. This same condition existed in 2017 when Hurricane Harvey hit, and it

will continue to exist for as long as the Project continues to operate as designed and constructed.

See 146 Fed. Cl. at 250.

Rather than address the fact that the Court concluded the United States took permanent

flowage easements, Plaintiffs focus solely on the single flooding of their properties during

Hurricane Harvey and ask the Court to find that the date of the taking described in the Court’s

Liability Opinion is “the date of the maximum government-induced reservoir pool flooding

during the Harvey event.” Pls.’ Cross-Br. at 1. It is true that none of the subject properties

experienced flooding from a Project flood pool prior to Hurricane Harvey. That fact is

undisputed. However, the Court’s Liability Opinion did not identify the date of taking based on

this one flood, but instead found that the United States had taken permanent flowage easements

through its construction, maintenance, and operation of the Addicks and Barker dams. See

Liability Opinion, 146 Fed. Cl. at 250. The reason the Court held the United States liable for a

taking was, in large part, due to its belief that the “government’s actions have subjected

plaintiffs’ private properties to the possibility, rather probability, of government-induced

flooding ever since the construction of these dams. . . .” Id. at 250. The date of the taking must

be based on the interest the Court concluded the United States took, and it necessarily follows

from the Court’s Liability Decision that the dates of taking of easements over the subject test

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properties are the dates the dams were constructed—1945 for properties upstream of Barker Dam

and 1948 for properties upstream of Addicks Dam.

III. Conclusion

For the reasons set forth above and in the United States’ Motion for Clarification, the

United States respectfully requests that the Court clarify the Liability Opinion regarding the

scope of the permanent flowage easements and the dates of taking.

Dated: April 6, 2020

Respectfully submitted,

JEAN E. WILLIAMS
Deputy Assistant Attorney General
Environment & Natural Resources Division

s/ Kristine S. Tardiff
KRISTINE S. TARDIFF
WILLIAM J. SHAPIRO
LAURA W. DUNCAN
SARAH IZFAR
Trial Attorneys
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
53 Pleasant Street, 4th Floor
Concord, NH 03301
Telephone: 603-230-2583
E-Mail: kristine.tardiff@usdoj.gov

Counsel for the United States

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