Hurricane Harvey flooding impacted Texas property owners (i) with sufficient flood insurance to cover the loss, (ii) with insufficient flood insurance to cover the loss, and (iii) without flood insurance. This three-part series outlines the differences in the rights of these property owners and the different avenues to recovery. My previous post was Hurricane Harvey FEMA Claims vs. Inverse Condemnation Claims: Do You Know Your Recovery Rights? (Part I), where I discussed one avenue of recovery for property owners with flood insurance under the National Flood Insurance Act of 1968. This post focuses on a wholly separate recovery avenue for property owners with or without flood insurance under the Takings Clause of the Fifth Amendment to the United States Constitution.
The Fifth Amendment Takings Clause prohibits the government from taking private property for public use without just compensation. Inverse condemnation occurs when the government refuses to adequately pay the property owner for a compensable taking. Property owners can recover under inverse condemnation if the government: (i) intentionally damages the property or knows with substantial certainty damage to the property will result; (ii) damages or destroys the property for the public’s benefit; and (ii) fails to adequately compensate the property owner for the loss. The theory of recovery under inverse condemnation derives from our country’s foundation of fairness and justice, which discourages the government from arbitrarily sacrificing the well-being of a few for the benefit of the public as a whole.1
Hurricane Harvey flood victims may be able to seek recourse under inverse condemnation. Inverse condemnation may be the only avenue of recovery for some Texas property owners without flood insurance, and may provide a second avenue of recovery for those with insufficient flood insurance to cover the loss.
Hurricane Harvey lingered over Texas causing unprecedented rainfall and property damage. However, thousands of additional homes and businesses experienced flooding only after the government released a deluge of water from two Houston reservoirs. It is alleged that the Army Corps of Engineers directed the Harris County Flood Control District to release nearly seven million gallons of water per minute from the Barker and Addicks Reservoirs within days after Hurricane Harvey made landfall.
Plaintiffs can find comfort in U.S. Court of Federal Claims Chief Judge Susan G. Braden presiding over these cases. Judge Braden previously presided over Hurricane Katrina class action litigation. There, the court found the U.S. Army Corps of Engineers liable for flood damage resulting from the government’s operation and failure to maintain the Mississippi River Gulf Outlet.2
Merlin Law Group represents hundreds of Houston property owners whose homes and businesses were flooded. Rene Sigman heads our firm’s Texas inverse condemnation efforts, and you can contact her by email or phone if you have questions or experienced flooding from Hurricane Harvey.
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1 See Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).
2 St. Bernard Parish Gov’t et al. v. United States, 121 Fed.Ct.Cl. 687 (2015).