In Re Downstream Addicks and Barker (Texas) Flood-Control Reservoirs v. United States

In the United States Court of Federal Claims

No. 17-9002

Filed: April 22, 2026

IN RE DOWNSTREAM ADDICKS AND

BARKER (TEXAS)

FLOOD-CONTROL RESERVOIRS

THIS DOCUMENT APPLIES TO:

ALL CASES

OPINION & ORDER

Rand P. Nolen, Fleming, Nolen & Jez, LLP, Jack E. McGehee, McGehee, Chang, Landgraf, Feiler,

and Richard Warren Mithoff, Mithoff Law Firm, co-lead counsel for plaintiffs.

Brian R. Herman, U.S. Department of Justice, Environment & Natural Resources Division,

counsel for defendant.

SMITH, Senior Judge

This case concerns whether government-induced flooding created a compensable taking

under the Fifth Amendment of the United States Constitution. Previous courts have answered in

the affirmative. But in finding liability, each taking depended on specific factual findings. Unique

to this case, the flooding here did not occur merely from the construction or operation of a

government flood control project. Rather, flooding arose from the government acting in

accordance with a discrete regulation that required mandatory releases of impounded water as part

of its flood control efforts. 1

In August 2017, Hurricane Harvey (“Harvey”) devastated the Houston metropolitan area.

Over a four-day period, Harvey poured approximately 35 inches of rain around Houston.

Residential and commercial property owners suffered significant damage to their properties and

interruption to their daily lives. Many affected property owners resided or conducted business

downstream of the Addicks and Barker Dams (“Reservoirs” or “Dams”). Historically, the Dams

were designed to protect downstream properties from major flooding events. Over 80-plus years,

the Dams have reduced flooding and prevented billions in damage. The United States Army Corps

of Engineers (the “Corps” or “defendant”) operates both Dams and aggregated its policies into a

Water Control Manual (“Water Manual”). In particular, Section 7-05(b) provides for “Induced

Surcharge Flood Control Regulation” (“Induced Surcharges”). When pool levels and the rate of

1

The Court wishes to note its appreciation for the scholarship and legal analysis by late Senior Judge

Charles F. Lettow. He issued a recently affirmed decision in a directly related case to this matter.

1

rise at each Dam exceed a certain elevation, the Corps will automatically release stored water in

connection with schedules found elsewhere in the Water Manual.

From August 28, 2017, through mid-September 2017, the Corp flooded private property

through Section 7-05(b). Following Harvey, the Court began receiving complaints from Houston-

area residents alleging that defendant’s actions violated the Takings Clause of the Fifth

Amendment. To promote judicial efficiency, plaintiffs in this case are a group of 12 test properties

selected to represent the Downstream Sub-Docket. Their properties sit at different distances from

Addicks and Barker. The Court initially held that plaintiffs failed to identify a cognizable property

interest and granted defendant’s motion to dismiss. In re Downstream Addicks, 147 Fed. Cl. 566

(2020) (subsequent history omitted). However, the United States Court of Appeals for the Federal

Circuit reversed and remanded the case to consider whether plaintiffs’ takings claims may prevail

or if defendant may avoid paying just compensation. Milton v. United States, 36 F.4th 1154 (2022).

This opinion addresses whether plaintiffs established liability.

On remand, the parties participated in a new round of summary judgment briefing under

Rule 56 of the Court of Federal Claims (“RCFC”). See ECF No. 262; ECF No. 266; ECF No. 277;

ECF No. 281. Plaintiffs argue that defendant’s actions constituted both a temporary and permanent

physical taking. They also allege that defendant’s actions caused more flooding to their properties

than if defendant had never released impounded water from the Dams. Furthermore, plaintiffs

asserted that defendant cannot protect itself under the necessity and relative benefits doctrines. In

response, defendant asserted that factual disputes preclude a finding that a temporary taking

occurred and that Section 7-05(b) does not create a permanent right of access to plaintiffs’

properties. Accordingly, the infrequent nature of induced surcharge flooding makes this action lie

in tort as opposed to a taking. In addition, defendant argued that plaintiffs would have experienced

more flooding to their properties had it never built Addicks and Barker. It also contends that the

“Hardwicke exception” is inapplicable and that the Court must consider all of defendant’s flood

risk-reducing measures undertaken in this flood-control project. Lastly, defendant believes that an

actual emergency posed an imminent danger to the integrity of Addicks and Barker such that the

necessity doctrine shields it from liability. And as a fallback position, the relative benefits afforded

to plaintiffs outweigh any damage that resulted from flooding.

Following briefing, the parties agreed that factual disputes necessitated a limited trial to

resolve certain issues. After holding trial in Houston, Texas, in October 2024 and which concluded

in Washington, D.C., in April 2025, the Court may now render its decision.

I. BACKGROUND

A. History Of The Buffalo Bayou And Construction Of The Dams.

The Buffalo Bayou is located in eastern Waller County and western Harris County in Texas

and runs approximately 75 miles. Def. Ex. 1, at 2008. 2 After passing through Houston, the Bayou

2

This opinion draws its factual references from each parties’ summary judgment record, their Joint

Stipulation of Facts filed before trial, their trial exhibits, and the trial transcript. Citations from plaintiffs’

summary judgment record will include the docket number, volume number, and a corresponding appendix

page number. References from defendant’s summary judgment record will include the exhibit number

2

joins the Houston Shipping Channel, which feeds into the San Jacinto and Galveston Bays and

eventually into the Gulf of Mexico. Pls.’ 266-4, at A2210. Between 1845 and 1935, Houston

experienced six major flooding events. Def. Ex. 56; Def. Ex. 57. Two storms in 1929 and 1935

resulted in flooding that cost millions of dollars in damage, several lives lost, and disruption to

Houston’s local economy. Def. Ex. 1, at 2010–11; Def. Ex. 4, at 2215.

In response, Congress passed the Rivers and Harbors Act of June 20, 1938, which

commissioned the Corps to study flood protection along the Buffalo Bayou. Jt. Stip. of Facts, ECF

No. 548, at ¶¶ 2–3; Def. Ex. 1, at 2005; see Pub. L. No. 75-685, 52 Stat. 802 (1938). The Act’s

subsequent modification by the Flood Control Act of 1939 (“FCA”) then authorized the

construction of Addicks and Barker dams and their corresponding reservoirs. ECF No. 548, at ¶

2; Def. Ex. 3, at 2140–41; Def. Ex. 5, at 2247. As part of the Buffalo Bayou and Tributaries Project,

defendant installed this flood control program “to provide for complete control of floods on the

Buffalo Bayou watershed” and to protect Houston and its shipping channel “against the estimated

probable maximum storm.” Def. Ex. 1, at 2007; see also id. at 2140–41.

Construction for Barker began in February 1942 and finished in 1945. Def. Ex. 4, at 2171;

Def. Ex. 6, at 2403. Barker’s earthen embankment measures approximately 71,900 feet or 13.6

miles long and the drainage area for its watershed spans 130 square miles. 3 ECF No. 548, at ¶¶ 9,

16. The top of Barker’s dam reaches 113.1 feet high, and the ends of its embankment also reach

104 feet. JX2, at USACE016309. Its spillway design flood—the maximum amount of water

defendant designed Barker to handle—stands at 108 feet. JX 3, at USACE019885. Thereafter,

construction at Addicks started in 1946 and concluded in 1948. Def. Ex. 4, at 2171; Def. Ex. 6, at

2403. Addicks’ embankment runs 61,166 feet or 11.6 miles long and created a 136 square mile

watershed. ECF No. 548, at ¶¶ 8, 13. The top of Addicks reaches 121 feet and the ends of its

embankment terminate at 112 feet on its west end. JX 2, at USACE016308. Furthermore, its

spillway design flood stops at 115 feet. JX 3, at USACE019883. Both dams are located

approximately 17 miles west of Houston. Pls.’ 266-1, at A174. During trial, the Court visited and

inspected both Dams.

Initially, defendant designed the Dams to include four ungated conduits and one gated

conduit that would permit a combined uncontrolled discharge of 15,700 cubic feet per second

(“cfs”). Def. Ex. 5, at 2248, 2272; Def. Ex. 6, at 2415. In 1948, the Corps gated two of the four

ungated conduits which lowered projected uncontrolled releases to 7,900 cfs. Def. Ex. 6, at 2415.

By 1963, defendant gated all remaining exposed conduits due to increased urbanization during the

1940s and 1950s. Pls.’ 266-1, at A310, A312; Pls.’ 266-5, at A2661. Total releases, “plus local

runoff downstream of the dams, would start at 4,000 cfs and be gradually increased to 6,000 cfs

except under emergency conditions.” Def. Ex. 5, at 2249. But continued development in the 1970s

followed by a page number. All citations to the parties’ stipulation of facts come from ECF No. 548 and

will include specific paragraph numbers. Plaintiffs’ trial exhibits will be abbreviated as “PX”; defendant’s

trial exhibits will be abbreviated as “DX;” and Joint Exhibits will be referred to as “JX.” As a general rule,

the Court uses both summary judgment records to dispose of issues raised by motion and trial materials for

issues argued at trial.

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Elevations at each Dam and corresponding flows within the Reservoirs are computed with respect

to height above sea level. The Corps currently uses the North American Vertical Datum of 1988

(“NAVD88”) to represent these figures.

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made downstream properties susceptible to first-floor flooding if flows exceeded 3,000 cfs. Id. at

2249–51. In 1984, the Corps further reduced combined releases from both Dams to 2,000 cfs.

Pls.’ 266-6, at A2714. It also raised the top of each Dam and added three feet of armor plating

with roller-compacted concrete at their ends. Pls.’ 266-1, at A310, A312. While defendant

contemplated increasing allowable releases in the 1990s, the Corps reaffirmed that the “gates are

kept closed and under surveillance as long as needed to prevent flooding below the reservoirs.”

Pls.’ 266-7, at A3117; see also Pls.’ 266-5, at A2681. In addition, Addicks and Barker have two

auxillary spillways at the ends of each Dam. Trial Tr. at 48:1–5, 92:17–23. As the Dams fill up

and approach their spillway design capacities, stored water flanks around the ends and into an

auxillary spillway, akin to an overflow hole in a sink. Id. at 88:7–90:1, 92:1–23. Those spillways

terminate into the natural ground and help avoid overtopping and potential dam failure during

major storms. Id. at 91:9–18; Pls.’ 266-4, at A2200.

Defendant considered purchasing downstream land in anticipation of increased flooding

events. Pls.’ 266-5, at A2664. It never acquired any properties due to “astronomical” costs and its

belief that acquisition “of such valuable and extensively developed areas . . . would be highly

unfavorable and unacceptable” to Houston residents. Id. As of 2009, “[n]ine out ten and eight out

of ten top pool events” have occurred at Addicks and Barker since the early 1990s. Pls.’ 266-1, at

A180. Today, Addicks and Barker are surrounded by residential and commercial developments,

which also face risks of flooding. Id. at A174. Both Dams “are classified as high hazard dams

due to the probable loss of life and impacts on economic, environmental, and lifeline interests in

the event of a failure.” JX 3, at USACE019768.

B. The Water Manual Of 2012 And The Corps’ Emergency Action Plan.

In connection with gating all remaining conduits, defendant consolidated its operations into

a Water Manual in 1962. Defendant updated the Manual in 2012, which was in effect during

Hurricane Harvey. ECF No. 548, at ¶¶ 59, 63, 70. The Corps enacted the Water Manual “to

document a definite plan of regulation, to establish a reference source for higher authority, as well

as to guide present and future personnel concerned with, or responsible for, regulation of the

reservoirs.” Id. at ¶ 60. The 1962 Manual contained an “Emergency regulation” which required

a Dam Tender to report and stay in communication with the District Hydrologist. Def. Ex. 2, at

2084. That regulation further dictated that when “a reliable prediction of inflow hydrographs are

not available,” outflows will be determined by two “plates” that contain release schedules based

on different elevations. Id. If conditions satisfied those plates, releases “[would] be made

regardless of channel capacities downstream.” Id.

According to the 2012 Water Manual, “[t]he chief regulation problem associated with

Addicks and Barker Reservoirs has been the continually diminishing downstream non-damaging

channel capacity due to encroachment.” Pls.’ 266-1, at A26. Despite this concern, both Dams

largely prevented flood damage by reducing the combined discharge rate to further accommodate

downstream development. Id. at A35. In total, Addicks and Barker have saved Buffalo Bayou

residents billions in damages. Id. at A168. During normal flood control operations, “the gates are

‘open’ which allows normal water flows to pass through the gates when the reservoirs are empty

and flooding on Buffalo Bayou downstream of the dams is not occurring or expected.” ECF No.

548, at ¶ 65. Corps members will close the floodgates “when there is a risk of downstream flooding

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due to rainfall over the watersheds either above or below the reservoirs.” Id. at ¶ 67. The Water

Manual further requires defendant to “[k]eep the gates closed and under surveillance as long as

necessary to prevent flooding below the dams.” Pls.’ 266-1, at A35. However, operations shift

from normal to Induced Surcharges under the following conditions:

Induced Surcharge Flood Control Regulation. At any time the

reservoir pool equals or exceeds 101 feet NAVD 1988 in Addicks

Reservoir and 95.7 feet NAVD 1988 in Barker Reservoir monitoring

of pool elevation should immediately ensue to determine if inflow

is causing pool elevation to continue to rise. If inflow and pool

elevation conditions dictate, reservoir releases will be made in

accordance with the induced surcharge regulation schedules shown

on plates 7-03 and 7-04. The gates should remain at the maximum

opening attained from the induced surcharges regulation schedules

until reservoir levels fall to elevation 101 feet NAVD 1988 in

Addicks and 94.9 NAVD 1988 feet in Barker. Then, if the outflow

from both reservoirs when combined with the uncontrolled runoff

downstream is greater than channel capacity, adjust the gates until

the total discharges do not exceed channel capacity and follow the

normal operating procedures.

Id. at A50. When invoked, releases from the Induced Surcharges flow downstream and into the

Buffalo Bayou region. Id. at A19–20, 33; ECF No. 548, at ¶ 41. Under Section 7-05(b), the

amount of impounded water released is determined by another set of plates within the Water

Manual based on elevation and the rate of rise in each Dam. Pls.’ 266-1, at A50. Once conditions

allow for a return to normal flood control operations, impounded water is released at lesser rates

until the Reservoirs are empty. See ECF No. 548, at ¶ 69.

Corps operations also include an Emergency Action Plan (“EAP”) which was in effect

during Harvey. Id. at ¶ 71. The Water Manual references the EAP, but notes the latter is a “stand-

alone document” that defendant may refer to. JX2, at USACE016341, USACE016348. In

practice, the EAP identifies “emergencies” that could threaten dam failure and non-breach

emergencies that could arise from normal operations, such as reservoir pools that exceed

government owned land. Trial Tr. at 581:6–13; JX 3, at USACE019764. It also provides an array

of options that defendant may use when addressing potential or actual emergencies. JX 3 at

USACE019817–25. The EAP lists two phases of Extended Watch that imposes inspection protocol

when pool levels exceed certain elevational thresholds. Id. at USACE019854–55. It also includes

three emergency levels with corresponding response measures. Id. at USACE019775–76,

USACE019817–25. Each Emergency Level provides for its own set of release schedules. Id. at

USACE019827–28. Only Emergency Level 3 addresses situations when dam failure “is judged

to be imminent or in progress.” Id. at USACE019828. Both parties stipulated that defendant acted

in accordance with the Water Manual, not the EAP, during Harvey. ECF No. 548, at ¶ 80.

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C. Hurricane Harvey And The Ensuing Flooding.

On August 11, 2017, a tropical wave moved westward across the Atlantic Ocean and into

the Caribbean Sea. Id. at ¶ 72. That tropical wave then traveled into the Gulf of Mexico and

became upgraded to a tropical depression. Id. On August 22, 2017, Corps District Commander

Colonel Lars Zetterstrom issued a Declaration of Emergency in Galveston County in anticipation

of what became Harvey. Id. at ¶ 73. The governor of Texas issued his own proclamation of disaster

the next day. See Def. Ex. 41, at 3708–11. On August 25, 2017, President Trump, through the

Federal Emergency Management Agency (“FEMA”), issued a federal disaster declaration for the

same areas, including Harris County. See generally Def. Ex. 46. Colonel Zetterstrom’s emergency

declaration activated the Addicks and Barker Emergency Coordination Team (“ABECT”) which

began moving key personnel in place to monitor the impending storm. Trial Tr. at 584:6-14,

653:12-21. ABECT and defendant used the Corps Water Management System Forecasts

(“CWMS”) to track Harvey’s progress. Def. Ex. 9–16.

Before Harvey, both Dams operated under “Normal Flood Control Regulation” with “dam

gates set at standard settings that allowed the daily reservoir inflows to pass through the dams and

into Buffalo Bayou.” ECF No. 548, at ¶ 75. Around 10:00 p.m. on August 25, Harvey made

landfall along the Texas coast as a Category 4 Hurricane. Id. at ¶¶ 72, 74. Harvey then weakened

into a tropical storm but stalled over Houston and Harris County for four days. Pls.’ 266-8, at

A3134. Based on projected rainfall and in compliance with the Water Manual, defendant closed

the floodgates at each Dam to reduce downstream flooding. ECF No. 548, at ¶ 76. By August 27,

2017, pool levels behind both Dams reached Stage 2 Extended Watch conditions under defendant’s

EAP. Id. at ¶ 77. At Stage 2, Corps personnel began monitoring the Dams’ performance. Id. That

same day, pool waters at Barker exceeded government-owned land and Addicks soon followed on

August 28. Id. at ¶¶ 78–79.

Starting on August 25, 2017, CWMS predicted 23 inches of precipitation and that pool

elevations would exceed government-owned land at both Dams by August 28. Def. Ex. 9, at 2598.

CWMS further forecasted peak flows of 105 feet at Addicks and approximately 100 feet at Barker.

Id. The next day, CWMS estimated that each Dam’s watershed would receive 30 inches of rain

and “the reservoirs are expected to exceed record pools.” Def. Ex. 10, at 2604. At that time,

defendant did not expect “to make mandatory releases for surcharge operations.” Id. However,

the Corps changed its tune on August 27, 2017, when CWMS noted that “mandatory releases are

expected to be necessary . . . at Addicks later tonight and at Barker on Wednesday.” See Def. Ex.

11, at 2610. CWMS forecasted that peak flows around the ends of Addicks’ auxillary spillways

would reach 6,000 cfs but such flows would only flank around the ends of Barker at less than 100

cfs. Id. Despite ordering the Induced Surcharges, Colonel Zetterstrom confirmed that Addicks

and Barker “continue to perform as they were designed to do, which is to protect against flooding

in downtown Houston and the Houston Ship Channel.” Def. Ex. 12.

At around midnight on August 28, 2017, defendant invoked Section 7-05(b) and began

making surcharge releases “due to the speed at which the pools have been rising.” Def. Ex. 13, at

2619. The watershed had already received approximately 25 to 28 inches of rain with future

forecasted amounts “in flux.” Id. at 2619. The following day, CWMS reported that defendant was

releasing 2,600 cfs of impounded water from Addicks and 3,100 cfs from Barker. Def. Ex. 14, at

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2627. Defendant made clear that it expected to increase surcharges to 4,000 cfs at each Dam. Id.

By August 30, 2017, both Dams experienced peak flows, with Addicks releasing 7,500 cfs and

Barker releasing 6,300 cfs of impounded water that totaled 13,800 cfs. Def. Ex. 15, at 2634; Def.

Ex. 16, at 2642. CWMS also noted that “due to the increased releases from the dam yesterday and

less rain failing than was forecasted, Addicks is expected to peak today before the emergency

spillway is activated.” Def. Ex. 15, at 2634. Surcharges continued at 7,000 cfs at Addicks and

6,300 cfs at Barker and CWMS forecasted that surcharges would continue for at least ten days.

Def. Ex. 16, at 2642. The Induced Surcharges Releases concluded on September 16, 2017, when

normal operations resumed. See Def. Ex. 58, at 3876. Both Dams did not fully drain until mid-

October 2017. Def. Ex. 26, at 3148.

In total, Harvey poured around 32-35 inches of rain over Addicks and Barker’s watershed.

ECF No. 548, at ¶ 91. According to the Harris County Flood Control District, 4 areas within the

Barker watershed received 27 to 36.3 inches of rain and land falling within the Addicks watershed

received anywhere from 29.6 to 33.2 inches of precipitation. Id. at ¶ 99. As of 2022, Harvey sat

behind Hurricane Katrina as the second costliest storm in United States history. See generally Def.

Ex. 47. In its wake, sixty-eight people died, and the National Hurricane Center estimated that the

Houston area suffered $125 billion in damages. Def. Ex. 25, at 3118. Addicks set a new pool of

record at 109.09 feet NAVD 1988. Id. at 3119–20. Barker also reached a new pool of record of

101.56 feet NAVD 1988. Id. Defendant estimated that dam failure would have placed 600,000

lives at risk and caused approximately $21 billion in damages. Trial Tr. at 331:2–333:3.

D. Plaintiffs’ Acquisition And Descriptions Of Their Properties.

Plaintiffs all acquired their properties between 1976 and 2015. Pls.’ 266-2, at A458–92;

see also ECF No. 548, at ¶¶ 24–35. Their properties are located within the Buffalo Bayou

watershed. ECF No. 548, at ¶ 23. Defendant does not retain any ownership interests in plaintiffs’

properties. Id. at ¶103. Most plaintiffs reported that their properties experienced no flooding at

their properties until Harvey. See Pls.’ 266-2, at A599–625. Some testified that their properties

flooded beforehand, but to a much lesser extent when compared to Harvey. Id. at A626–60. A

more comprehensive description of each property follows:

850 Silvergate Drive, Houston, Texas 77079 (“Milton property”). Arnold and Virginia

Milton purchased their home in 1978. ECF No. 548, at ¶ 32. Mrs. Milton testified that their

property had not flooded prior to Harvey, and that “it never had a drop of water from any

thunderstorm, hurricane, or tropical storm.” Pls.’ 266-2, at A514. The Milton’s alleged that

flooding at their residence began on August 28, 2017, and remained until September 10, 2017. Id.

at A1123. When he woke up on August 28, Mr. Milton observed a “mess” and what “smelled like

dank swamp water.” Id. at A589. Following Harvey, Mr. Milton returned to his property by boat

to standing water that reached his chest. Id. at A730–32. He testified that such inundation reached

“4 foot 3 and 3 quarters [inches].” Id. at A681. In addition to appliances being submerged, the

Milton’s walls lost their brightness, carpets looked “grungy,” and a putrid smell lingered

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The Harris County Flood District “is a special purpose district created by the Texas Legislature in

1937” that “implement[s] flood damage reduction projects across Harris County.” ECF No. 548, at ¶ 47.

Its jurisdictional boundaries include Houston as well. Id.

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throughout their home. See id. According to Mr. Milton, “you couldn’t even open the drawers,”

because “everything was swollen.” Id. at A810.

931 Bayou Parkway, Houston, TX, 77077 (“Shipos Property”). Jennifer Shipos

purchased her property in 1996. ECF No. 548, at ¶ 33. Ms. Shipos alleged that flooding began at

her house on August 29, 2017, and remained until September 4, 2017. Pls.’ 266-2, at A1126. Ms.

Shipos believed her home experienced “12 to 15 inches” of first floor flooding. Id. at A683. She

also noted that her backyard sustained approximately 18 inches of flooding as well. Id. at A686.

In Harvey’s wake, floodwaters totaled her car, and Ms. Shipos purchased an entire new set of

furniture as well. Id. at A837, A840–41. In her opinion, Addicks and Barker operated to “control

the flow of water all the way downtown . . . not flooding” downstream areas. Id. at A582. While

stormwater from a 2016 storm reached her yard, Shipos noted that she had never experienced

flooding inside her residence. Id. at A485.

3 Magnolia Bend Drive, Houston, Texas 77024 (“Azar property”). Phillip Azar

purchased his property in 1990. ECF No. 548, at ¶ 25. Mr. Azar estimated that flooding began on

August 25, 2017, and persisted for “ten to fourteen days” until around September 8, 2017. Pls.’

266-2, at A1039. He further noted that flooding worsened on August 28, 2017, and reached “117

inches” at his house. Id. at A664–65; PX14, at 1A788. Following Harvey, Mr. Azar testified that

his house was uninhabitable and that the storm displaced his family. Pls.’ 266-2, at A750–51,

A891. As of July 2018, his family was “policing” cleanup of his property as Mr. Azar looked to

purchase a new residence. Id. at A751–52. Before Harvey, Mr. Azar estimated that his home had

experienced “[o]nly a couple of inches to maybe 1 foot of water” of flooding. Id. at A1040. But

he also noted that his property had sustained consistent indoor flooding during major precipitation

events, none of which compared to Harvey. Id. at A632–44. According to Mr. Azar, he “would

never [have] move[d]” to Houston had he known flooding from Induced Surcharges would happen.

Id. at A497.

835 Thornvine Lane, Houston, Texas 77079 (“Aldred property”). Val Aldred purchased

his property in 1997. ECF No. 548, at ¶ 24. While he admitted that it “rains a lot” in Houston,

Mr. Aldred did not consider the risk of flooding when he acquired his residence. Pls.’ 266-2, at

A494. Prior to the storm, Aldred’s property experienced slight flooding “that just barely crept in

from [] the driveway” but “[n]ot like Harvey.” Id. at A627. Mr. Aldred alleged that flooding began

on August 29, 2017, and remained until approximately September 2, 2017. Id. at A718, A1037.

He testified that his property received “[a]bout a foot and a half” of flooding from Harvey. Id. at

A662, A968. During Harvey, Aldred evacuated on August 29 because “the water was getting

higher to the point” that the entryway to his neighborhood became submerged. Id. at A697. Mr.

Aldred lost personal effects and removed walls, insulation, and sheetrock from his property after

Harvey passed. Id. at A718, A744.

107 Warrenton Drive, Houston, Texas 77024 (“Beyoglu property”). Gokhan and Jana

Beyoglu purchased their home in 2005. Id. at A601. 5 The Beyoglu’s alleged that flooding began

around August 27, 2017, and ended on September 5, 2017, or 10 days. Id. at A898, A1042. When

they purchased their house, the Beyoglu’s did not receive any information about prior flooding at

5

The parties’ stipulated that the Beyoglu’s purchased their property in 2009. See ECF No. 548, at ¶

26.

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their residence. Id. at A500. In fact, Mrs. Beyoglu thought Addicks and Barker served Houston

by providing residents with clean water. Id. at A539. During Harvey, the Beyoglu’s claimed that

peak inundation reached four feet. Id. at A669. She further testified that they “lost almost

everything” on the first floor. Id. at A756. After Harvey, the Beyoglus temporarily lived in an

apartment while they repaired their house. Id. at A903. The family attempted to move back into

the second floor of their property but ended up purchasing a new home in February 2018. Id.

311 Blue Willow Drive, Houston, Texas 77042 (“Cutts property”). Paul and Dana Cutts

purchased their property in 1976. ECF No. 548, at ¶ 27. They alleged that flooding in their home

began on August 30, 2017, and ended on September 7, 2017. Pls.’ 266-2, at A671, A723, A1046.

Until Harvey, the Cutts property “has never once flooded in the past 41 years [they] have lived

there.” Id. at A1047. According to the Cutts’, impounded waters from Addicks “began to quickly

flood back into our subdivision” when defendant invoked Section 7-05(b). Id. at A1046. On

August 30, 2017, a “thin layer of water covered [their] interior floors” at 3:00 a.m. Id. By 6:00

a.m., floodwaters “had flowed into and impacted all parts of” their house. Id. An hour later, they

evacuated by kayak. Id. When the Cutts’ returned on September 7, they had to wade on foot from

several blocks away to reach their house. Id. They alleged that watermarks reached eight inches

throughout their house, 10 inches in their garage, and 12 inches on their front lawn. Id. Outside,

their foliage and “significant plants and trees” sustained damages or were killed by exposure to

standing water. Id.

14334 Heatherfield Drive, Houston, Texas 77079 (“Godejord property”). Arnstein and

Inga Godejord purchased their property in 2008. ECF No. 548, at ¶ 28. The Godejord’s alleged

flooding at their home began on August 29, 2017 and that flooding ended on September 8, 2017.

Pls.’ 266-2, A1050. While in Canada, their son warned them that their house could flood from

Induced Surcharges. Id. at A553. Godejord’s son “felt that he had to run,” due to risks associated

with the flooding. Id. at A705–06. In total, flooding at the Godejord property reached

approximately two feet. Id. at A673. When they returned, the Godejord’s attempted to salvage

effects inside their house. Id. at A911. They used dehumidifiers and fans to dry their house which

took a couple of months to complete. Id. at A912–13. The sewage line also retained floodwaters

which necessitated repairs. Id. at A770. Since Harvey, the Godejord’s lived in a few hotels, rented

an apartment, and as of September 2018 resided in a rental house. Id.

760 Memorial Mews Street #4, Houston Texas 77079 (“Good Resources” property).

Good Resources LLC purchased its property in 2015. ECF No. 548, at ¶ 29. This property

consisted of four rental units. Pls.’ 266-2, at A1053. Mr. Jeremy Good, the owner, testified that

flooding began on August 28, 2017, and was otherwise inaccessible until September 10, 2017. Id.

at A1053. Prior to Harvey, he was unaware of flooding at or near his property. Id. at A507. During

Harvey, all tenants evacuated the premises. Id. at A708–09. Mr. Good estimated that his complex

experienced around 38-40 inches of flooding. Id. at A675. According to Mr. Good, floodwaters

damaged all four air conditioning compressors and the shared water heater. Id. When he returned

to his property, Mr. Good described the bottom units as “complete devastation.” Id. at A776. Mr.

Good thought Addicks and Barker provided an “overflow area if the storms ever got very, very

bad.” Id. at A550.

9

14914 River Forest Drive, Houston, Texas 77079 (“Hollis property”). Wayne Hollis Jr.

and Peggy Hollis purchased their property in 1983. ECF No. 548, at ¶ 30. The Hollis’ alleged that

flooding began on August 28, 2017, and ended approximately two weeks after the flooding began.

Pls.’ 266-2, at A1056. They further alleged their residence reached peak inundation of 43-45

inches. Id. at A678. As the Hollis’ sought to evacuate their house on August 28, two men in a

“catamaran that had a pontoon on each” side was able to move Mrs. Hollis and her 93-year-old

mom to safety. Id. at A711. Mr. Hollis returned around September 9, 2017, to sludge and water

in his home. Id. at A728. He further testified that their furniture and downstairs area “was ruined”

and that their personal property “was discarded and moved curbside where the City of Houston

hauled the damaged items to an unknown landfill.” Id. at A728, A1056. According to Mr. Hollis,

there had been no flooding at their home prior to their purchase. Id. at A509.

777 S. Mayde Creek Drive, Houston, Texas 77079 (“Memorial SMC 2013, LP

property”). In connection with a third party, John Britton acquired an old office building in 2013.

Pls.’ 266-2, at A479; ECF No. 548, at at ¶ 31. Mr. Britton then constructed an apartment complex

on that nine-acre parcel of land. Pls.’ 266-2, at A479–80. He alleged that flooding began on

August 27, 2017, reached peak inundation of six feet, and ended on September 11, 2017. Id. at

A1059. During Harvey, all tenants evacuated the premises and no one could return until December

20, 2017. Id. at A806. Mr. Britton testified that upon re-entry, tenants could not access common

area amenities, the pools, fitness center, and resident rooms. Id. at A928. While some residents

returned to their apartments, Mr. Britton admitted that it was difficult to achieve occupancy “even

by offering additional incentives, [and] rent concessions . . . in exchange for not having amenities

and common areas.” Id. As the Memorial SMC property became rebuilt, Houston required Mr.

Britton to adhere to stricter codes than when he originally constructed his apartment complex. Id.

12515 Westerley Lane, Houston, Texas 77077 (“Silverman property”). Peter and

Zhennia Silverman purchased their property in 1990. ECF No. 548, at ¶ 34. The Silverman’s

alleged that flooding began around August 29, 2017, reached peak inundation of 1.5 feet, and

ended around September 8, 2017. Pls.’ 266-2, at A1133; PX 14, at A1788. Mrs. Silverman testified

that their home had flooded in the 1990s and before Harvey, but “just enough to [] wet the carpet,”

or “make the tile floors a little damp,” not inches of water. Pls.’ 266-2, at A647–58. The Silverman

property sustained damage to their foundation and to their personal effects. Id. at A850–55. Mr.

Silverman described the scene as “surreal because things had moved to places where they normally

wouldn’t be because they . . . floated away.” Id. at A850. In addition to a stench that smelled like

“dead animals,” Mr. Silverman found mold covering the walls. Id. at A851. The Silverman’s hired

a contractor to perform “demo remediation,” which included removing entire rooms and built-in

features of their house. Id. at 856. The family moved into an apartment following Harvey. Id. at

A943–44.

5731 Logan Lane, Houston, Texas 77007 (“Welling property”). Shawn Welling

purchased his property in 2000. ECF No. 548, at ¶ 35. Mr. Welling alleged that flooding began on

or before August 28, 2017 and reached peak inundation of 10 feet. Pls.’ 266-2, at A1146. Mr.

Welling represented that he previously pumped 2-3 feet of water from his property. Id. According

to Mr. Welling, his property experienced around a quarter inch of prior flooding to an addition to

his property, not the original structure. Id. at A525. Dutch Lindeburg visited the property daily

and observed a noticeable increase in flooding from August 28 to August 29. Id. at A876, A1032.

10

Mr. Lindeburg testified that peak flooding occurred on August 29, when standing water reached

“over the doorjamb.” Id. at A695.

II. PROCEDURAL HISTORY

In September 2017, Houston-area property owners began filing complaints alleging that

defendant’s actions constituted a compensable taking under the Fifth Amendment. Soon after, this

Court consolidated all related cases into a Master Docket. See In re Addicks And Barker (Texas)

Flood Control Reservoirs, No. 1:17-03000-MMS (2017). That December, the Master Docket was

bifurcated into an Upstream Sub-Docket (No. 17-9001) and a Downstream Sub-Docket (No. 17-

9002). See Order Requiring Case Identification, ECF No. 10; Order Severing Claims into Two

Separate Dockets, No. 17-3000, ECF No. 102.

A. The Downstream Sub-Docket.

To promote judicial efficiency, the parties selected a group of 14 test properties to represent

all downstream plaintiffs in March 2018. See No. 17-9002, ECF No. 61; ECF No. 63; ECF No.

81. 6 Some test properties sued individually, but many stood as plaintiffs for a proposed class. See

ECF No. 81, at 1–2. During litigation, plaintiffs Becky Ho and Timothy Stahl voluntarily moved

to dismiss their cases, leaving 12 test properties. See ECF No. 96; ECF No.188.

On February 20, 2018, defendant moved to dismiss this case for lack of subject-matter

jurisdiction and for failure to state a claim under RCFC 12(b)(1) and 12(b)(6). Def.’s Mot. to

Dismiss, ECF No. 48. In its motion, defendant alleged that no taking occurred because state and

federal law did not provide plaintiffs with a compensable property interest and plaintiffs’ claims

sounded in tort. See generally id. Plaintiffs responded a month later and asserted that Texas law

granted them a cognizable property interest and that defendant could not assert necessity or the

relative benefits doctrine as affirmative defenses at the motion to dismiss stage. See generally Pls.’

Resp. Br., ECF No. 72. In April 2018, Judge Susan G. Braden deferred ruling on defendant’s

motion to dismiss and set a pre-trial and discovery schedule. ECF No. 92. Later in January 2019,

the Court reassigned the Downstream Sub-Docket to Senior Judge Loren A. Smith. ECF No. 152.

At a March 2019 oral argument in Houston, Texas, this Court concluded that jurisdictional

issues prevented the case from proceeding to a liability trial. ECF No. 162. The Court then ordered

cross-motions for summary judgment and instructed the parties to address: (1) whether a protected

property interest existed under Texas law when the flooding occurred due to “an Act of God;” and

(2) the applicability of the FCA of 1928 and defining “floods or floodwaters.” Id. From June 2019

to mid-September 2019, the parties engaged in a full briefing schedule. See ECF. No. 175; ECF

No. 183; ECF No. 184; ECF No. 190. On December 11, 2019, the Court heard oral argument. It

encouraged the parties to settle, but no agreement resulted.

Following oral argument, the Court issued its initial opinion on February 18, 2020. See In

re Downstream Addicks and Barker (Texas) Flood-Control Reservoirs, 147 Fed. Cl. 566 (2020).

In its decision, the Court granted defendant’s motion to dismiss. Id. at 584. The Court also granted

6

Unless otherwise specified, all subsequent docket references refer to the Downstream Sub-Docket,

No. 17-9002.

11

defendant’s cross-motion for summary judgment and denied plaintiffs’ cross-motion for summary

judgment. Id. Specifically, the Court held: (1) that Texas state law did not recognize “perfect

flood control in the wake of an Act of God” as a protected property interest; and (2) that federal

law did not grant plaintiffs a protected property interest either. Id. at 577–84. On November 3,

2020, plaintiffs appealed this Court’s decision to the Federal Circuit. See Milton v. United States,

No. 21-1131 (2020).

On June 2, 2022, the Federal Circuit reversed the Court’s dismissal of plaintiffs’ case. See

Milton v. United States, 36 F.4th 1154 (Fed. Cir. 2022). There, the Federal Circuit concluded that

plaintiffs identified flowage easements in their properties, which was a cognizable property interest

under Texas law. Id. at 1161–62. At the same time, it refrained from answering whether an actual

taking occurred. See id. at 1163. Instead, the Federal Circuit remanded this case for the Court to

answer four questions. Id. Those questions, which form the basis of this opinion, are:

1. Whether plaintiffs have shown that a temporary taking occurred under the test

enunciated in Arkansas Game & Fish v. United States, 568 U.S. 23, 39 (2012);

2. Whether plaintiffs have shown that a permanent taking occurred;

3. Whether plaintiffs have established causation when considering “the impact of the

entirety of the government actions that address the relevant risk;” and

4. Whether defendant can invoke the necessity doctrine as a defense.

Id. After reopening the Downstream Sub-Docket, ECF No. 253, the Court ordered a new round

of cross-motions for summary judgment. See ECF No. 255. Defendant filed its cross-motion for

summary judgment on November 21, 2022. ECF No. 262. Plaintiffs filed their response and their

cross-motion for summary judgment on January 10, 2023. ECF No. 266. The parties further

exchanged reply briefs and briefing concluded in May 2023. ECF No. 277; ECF No. 281.

After another oral argument held on February 21, 2024, the parties agreed that certain

factual disputes existed that necessitated a limited trial. ECF No. 469; ECF No. 513. In response,

the Court asked the parties to answer two questions at trial:

1. Was there an emergency that necessitated the United States Army Corps of Engineers

(the “Corps”) opening the Addicks and Barker reservoir gates, or were the gates opened

as a matter of ordinary operating procedure; and

2. What would have happened if the gates had remained closed?

See ECF No. 514. Trial began on October 25, 2024, in Houston, Texas, and lasted four days. ECF

No. 565; ECF No. 566; ECF No. 568; ECF No. 569. Proceedings continued in Washington, D.C.,

on December 4, 2024, and the Court held closing arguments on April 8, 2025. ECF No. 573; ECF

No. 591.

12

During trial, both parties examined several witnesses. This included the following Corps

officials: (1) Natural Resource Management Specialist Richard Long who handled

communications during Harvey; (2) Galveston District’s Dam Safety Officer Robert Thomas; (3)

Colonel Zetterstrom; and (4) Branch Chief of Hydraulics and Hydrology Engineering Coraggio

Maglio. ECF No. 542, 545. The parties also called their experts Matthew Bardol and Dr. Robert

Nairn. Id. Plaintiffs and defendant then submitted post-trial briefing. ECF No. 576; ECF No.

577; ECF No. 580; ECF No. 581. In sum, plaintiffs argued that no actual emergency occurred at

the Dams during Hurricane Harvey to satisfy the necessity doctrine. See generally ECF No. 576.

According to plaintiffs, Section 7-05(b) was a non-emergency regulation. Id. Furthermore, their

properties would have experienced little to no flooding if defendant had kept the gates closed. Id.

In opposition, defendant argued that Harvey’s unprecedented rainfall endangered life and property

around the Reservoirs and that emergency conditions existed under defendant’s EAP and Water

Manual. See generally ECF No. 577. Defendant also contended that flooding downstream

properties was necessary to prevent potential dam failure and it acted reasonably under the

circumstances. Id.

B. The Upstream Docket And Ablan.

During the pendency of the Downstream Sub-Docket, the Upstream Sub-Docket moved

forward. In 2019, Senior Judge Charles F. Lettow issued his liability trial opinion. See In re

Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019). There,

the plaintiffs asserted that defendant’s “construction, modification, maintenance, and operation”

of the Dams led to flooding on their properties during Harvey. Id. at 255. Judge Lettow held that

defendant took a permanent flowage easement toward upstream properties under the test

announced in Arkansas Game & Fish. Id. at 249–250. The Court also held that defendant could

not use the necessity doctrine to escape liability or that its actions qualified as a valid exercise of

its police powers. Id. at 263–64.

On December 23, 2025, the Federal Circuit affirmed Judge Lettow’s 2019 opinion in Ablan

v. United States, 162 F.4th 1364 (Fed. Cir. 2025). The court concluded that a permanent taking

occurred because the intermittent, yet recurring flooding of upstream properties was foreseeable.

Id. at 1375–76. Alternatively, the Federal Circuit determined that it would hold defendant liable

under a temporary takings theory. Id. at 1376. It agreed with and incorporated Judge Lettow’s

findings under the Arkansas Game & Fish test to support its conclusion. Id. at 1377–78. Finally,

the court determined that defendant could not establish necessity as a defense. Id. at 1378.

According to the Federal Circuit, defendant’s choice to allocate floodwater between upstream and

downstream residents was not contemplated by the doctrine. Id.

In January 2026, this Court called a status conference to discuss the implications of Ablan

and whether the parties would be amenable to settlement negotiations. ECF No. 593. At the status

conference, defendant objected to engaging in such discussions. Defendant opined that this case

is factually distinguishable from Upstream and that it raises different legal arguments. ECF No.

596. The Court noted defendant’s opposition toward settlement and ordered supplemental briefing

for each party to elaborate how Ablan may or may not affect the disposition of this case. ECF No.

594. Instead of addressing “what the necessity defense is,” defendant took issue with the Federal

Circuit’s decision to provide three examples of what “the upstream case was not.” See ECF No.

13

598 at 5–6 (emphasis in original). With respect to necessity, defendant posited that the Court could

not resolve issues based on Ablan because of its obligation under RCFC 52(a) “where the [C]ourt

was presented with different evidence about differently situated upstream plaintiffs.” Id. at 8.

Next, defendant noted that Ablan failed to discuss questions related to causation. Id. at 9. And

finally, defendant averred that it could prevail under its relative benefits defense because the Dams

have provided “more than seventy years” of protection to downstream residents. Id. at 10.

Plaintiffs relied on Ablan’s holdings and its prior briefing. See generally ECF No. 599. They

believed that “Ablan is squarely on-point,” and while defendant did construct Addicks and Barker

“for the benefit of downtown Houston, it did not operate the dams in a manner to benefit the

Plaintiffs’ properties.” Id. at 11–12.

III. LEGAL STANDARDS

A. Summary Judgment Standard.

Summary judgment is “mandate[d] . . . after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added). There is no genuine factual dispute

in that situation “since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. Put

differently, a court may grant summary judgment when the materials in the record show that “there

is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of

law.” RCFC 56(a), (c). The nonmovant bears the burden of providing sufficient evidence to

establish a genuine issue of a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). A scintilla of evidence, conclusory allegations, speculation, and

unsubstantiated assertions will not carry this burden. Anderson v. Liberty Lobby Inc., 477 U.S.

242, 248, 250 (1986). A “genuine” dispute arises if the factfinder may reasonably resolve such

issue “in favor of either party,” and a fact is “material” if it might “affect the outcome of the case

under the governing law.” Id.

“[D]ue to the fact-intensive nature of takings cases, summary judgment should not be

granted precipitously.” Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir. 2005) (citing Yuba

Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed. Cir. 1983)).

B. Takings Framework.

The Takings Clause of the Fifth Amendment provides that private property shall not “be

taken for public use, without just compensation.” U.S. Const. amend. V, cl. 4. This protection is

“designed to bar [the] Government from forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States,

364 U.S. 40, 49 (1960); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123–

25 (1978). When the government physically appropriates private property for public use, the

Takings Clause imposes “a clear and categorical obligation to provide the owner with just

compensation.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322

14

(2002) (citation omitted); see id. at 322 (assessing per se takings according to a straightforward

rule: “[t]he government must pay for what it takes.”).

To determine whether a taking occurred, the Federal Circuit considers: (1) whether “the

claimant has identified a cognizable Fifth Amendment property interest that is asserted to be the

subject of the taking;” and (2) whether “the governmental action at issue amounted to a

compensable taking of that property interest.” Acceptance Ins. Cos., Inc. v. United States, 583

F.3d 849, 854 (Fed. Cir. 2009); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372

(Fed. Cir. 2004).

The Supreme Court, “quite simply, has been unable to develop any ‘set formula’ for

determining when ‘justice and fairness’ require” compensation under the Takings Clause.” Penn

Cent., 438 U.S. at 124; see Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 31

(2012) [hereinafter Arkansas Game I] (“[N]o magic formula enables a court to judge, in every

case, whether a given government interference with property is a taking.”). Some bright-line rules

exist. For instance, a taking occurs following a permanent physical occupation of property by

authorized government action. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,

426 (1982). Regulations that permanently deprive a landowner of all economically beneficial use

of their land also constitute a taking. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).

Nonetheless, most cases draw on “situation-specific factual inquiries.” Arkansas Game I, 568 U.S.

at 32; Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377–78 (Fed. Cir. 2008) (“The issue

of whether a taking has occurred is a question of law based on factual underpinnings.”).

In defining a constitutional taking, the government takes property physically or by

regulation. Caquelin v. United States, 140 Fed. Cl. 564, 573 (2018), aff’d, 959 F.3d 1360 (Fed.

Cir. 2020). Takings can be further divided into two sub-categories: categorical and non-

categorical. Id. The “classic taking” occurs when “the government directly appropriates private

property for its own use.” Horne v. Dep’t of Agric., 576 U.S. 350, 357 (2015). A regulatory taking

exists “when a regulatory or administrative action places burdens on the ownership of private

property that essential elements of such ownership must be viewed as having been taken.” Hendler

v. United States, 36 Fed. Cl. 574, 585, aff’d, 175 F.3d 1374 (Fed. Cir. 1999). “Categorical takings

deprive the owners of all economically viable use of their property. Non-categorical takings, on

the other hand, deprive the owner of some amount of the economic use of their land.” Caquelin,

140 Fed. Cl. at 573. Takings can be further divided into permanent and temporary takings.

Permanent takings refer to governmental activities substantial in nature but they need not be

“exclusive, or continuous and uninterrupted.” Hendler v. United States, 952 F.2d 1364, 1377 (Fed.

Cir. 1991). Temporary takings include activities “when what would otherwise be a permanent

taking is temporally cut short.” Wyatt v. United States, 271 F.3d 1090, 1097 (Fed. Cir. 2001).

Typically, the government initiates formal condemnation proceedings to effect a taking.

See First Eng. Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304,

316 (1987). But takings also occur under inverse condemnation when a landowner seeks to

“recover[] just compensation for a taking of his property when condemnation proceedings have

not been instituted.” United States v. Clarke, 445 U.S. 253, 257 (1980). Beginning in the late 19th

century, the Supreme Court held that government-induced flooding qualified as a taking. See

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872) (imposing liability when the Wisconsin

15

state government authorized actions that permanently submerged private property). Over time,

the Court’s case law grew to recognize intermittent, yet recurring flooding induced by the

government as a permanent taking. see generally United States v. Dickinson, 331 U.S. 745 (1947);

United States v. Cress, 243 U.S. 316 (1917). And in 2012, the Supreme Court formally held that

such flooding could qualify as a temporary taking. Arkansas Game I, 568 U.S. at 28–29.

IV. DISCUSSION

A. Question 1: Whether A Temporary Taking Occurred Under The Arkansas Game

& Fish Multi-Factor Test.

First, the Federal Circuit asked the Court to address whether the Induced Surcharges qualify

as a temporary taking. Id. Temporary takings “should be analyzed in the same constitutional

framework applied to permanent [] takings.” Yuba, 821 F.2d at 641–42. These types of takings

grew in recognition during World War II “when the Government took temporary possession of

many properties.” Arkansas Game I, 568 U.S. at 33 (citing Kimball Laundry Co. v. United States,

338 U.S. 1 (1949); United States v. Gen. Motors Corp., 323 U.S. 373 (1945)). Temporary takings

also include government actions that create “a direct and immediate interference with the

enjoyment and use of the land.” Id. (quoting Causby, 328 U.S. at 266).

In Arkansas Game I, defendant developed a Water Control Manual “to determine the rates

at which water would be released from [a dam].” Id. at 27. The “Manual set[] seasonally varying

release rates, but permit[ted] planned deviations from the prescribed rates for agricultural,

recreational and other purposes.” Id. From 1993 through 2000, defendant implemented deviations

by extending the period in which high amounts of water would be released. Id. As a result,

defendant’s actions destroyed 18 million feet of board timber and disturbed wildlife preservation

efforts on the plaintiff’s property. Id. at 27–28. The Supreme Court held, “simply and only, that

government induced flooding temporary in duration gains no automatic exemption from Takings

Clause inspection.” Id. at 38 (emphasis added).

When making similar inquiries, the Court instructed lower courts to consider the following:

(1) the time and duration of the alleged invasion; (2) “the degree to which the invasion is intended

or is the foreseeable result of authorized government action;” (3) the character of the land at issue

and the “owner’s reasonable investment-backed expectations regarding the land’s use;” and (4) the

severity of the interference. Id. at 38–39 (citations and quotations omitted). Furthermore, the

Supreme Court cautioned that lower courts should use its test “with reference to the particular

circumstances of each case, and not by resorting to blanket exclusionary rules.” Id. at 37.

In Upstream, the Court applied Arkansas Game I’s test and concluded that a permanent

taking occurred. See In re Upstream, 146 Fed. Cl. at 249–50. The Federal Circuit in Ablan

affirmed Judge Lettow’s opinion but then incorporated his findings to conclude that defendant’s

actions constituted a temporary taking. Ablan, 162 F.4th at 1375–78.

Defendant never addressed Arkansas Game I’s applicability in its opening brief. See

generally ECF No. 262. Instead, it posited that factual disputes prevent the Court from granting

summary judgment in favor of plaintiffs. ECF. No. 277, at 39–40. For support, defendant cited a

16

reply brief it filed almost six years ago. See ECF No. 194, at 17–19. There, defendant asserted

that plaintiffs disputed the accuracy of Dr. Nairn’s expert report and whether certain properties

experienced flooding of substantial duration. Id. at 17–18 (citing ECF No. 175, at 17 n. 9; ECF

No. 190, at 6 n. 5). Upon review, defendant misrepresented plaintiffs’ so-called concessions.

Indeed, plaintiffs did challenge the validity of Dr. Nairn’s report. ECF No. 190, at 6 n. 5.

But plaintiffs expressly stated that “for the purposes of this Motion, the Government’s expert

model shows that there is no dispute that, had the Government kept the gates closed, Plaintiffs

would have remained dry or suffered substantially less severe flooding.” Id. Also, whether

plaintiffs experienced more flooding from Induced Surcharges seems to address causation, not

whether a taking occurred under Arkansas Game I. Thus, no factual dispute exists. Next, plaintiffs

conceded in 2019 that “there is a dispute of fact as to whether the flooding prior to the

Government’s induced surcharge release was substantial” at Azar and Welling’s properties. ECF

No. 175, at 17 n. 9 (emphasis added). According to defendant, this admission implicated the

severity element in Arkansas Game I’s test. ECF No. 194, at 18. Not so. Unlike defendant’s

representations, plaintiffs’ footnote questioned the extent of prior flooding at two test properties,

not flooding that actually occurred during Harvey for all test properties. Compare ECF No. 175,

at 17 n. 9; with ECF No. 277, at 39–40.

The Court also concludes that plaintiffs’ second concession does not qualify as a judicial

admission. Alli v. United States, 86 Fed. Cl. 33, 35 (2009) (defining such admissions as “formal

act[s], done in the course of judicial proceedings, which . . . conced[es] for purposes of litigation

that the proposition of fact alleged . . . is true.”) (quotations omitted). Some circuits bind parties

to statements made in their briefs. See Berckely Inv. Grp., Ltd. V. Colkitt, 455 F.3d 195, 211 n. 20

(3d Cir. 2006) (collecting cases). At least one court in this circuit rejected statements found in a

brief as a judicial admission. See Prickett v. Mansfield, 257 F. App’x 288, 292 (Fed. Cir. 2007).

Regardless, plaintiffs’ statement acts as a legal conclusion, not a factual assertion. Additionally,

plaintiffs are not judicially estopped from asserting their claim because this Court never adopted

their position. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996). In its current

brief, defendant also cited plaintiffs’ contention that whether a temporary taking occurred “[a]t the

very least . . . warrants full factual development at trial.” ECF No. 262, at 13. When read in

context, the Court agrees that plaintiffs’ statement serves as a “fallback position.” See ECF No.

281, at 4. Therefore, the Court finds that plaintiffs’ prior statements do not preclude it from

answering Question 1.

Aside from its attempt to manufacture factual disputes, defendant failed to offer a

substantive rebuttal to plaintiffs’ temporary takings theory. Thus, plaintiffs’ assertions proceed

largely unopposed. After careful consideration, the Court holds that a temporary taking occurred.

1. The Time And Duration Of The Flooding Rises To The Level Of A Taking.

Starting from the top, the Court looks at the time and duration of defendant’s alleged

invasion. Arkansas Game I, 568 U.S. at 38.

On remand, the “temporary and ad hoc” nature of the flooding in Arkansas Game did not

preclude liability. Arkansas Game & Fish Comm’n v. United States, 736 F.3d 1364, 1369 (Fed.

17

Cir. 2013) [hereinafter Arkansas Game II]. Since the Supreme Court held that temporary flooding

could result in a compensable taking, the Federal Circuit believed that defendant’s argument

limited itself to the duration of its deviations. Id. at 1369–70. The court ignored defendant’s

contention that each deviation failed to effect a taking since defendant’s actions “had a consistent

overall impact on the Management area” that imposed a severe burden on the plaintiff’s land. Id.

at 1370. Thus, defendant could not prevail “on the ground that the series of interim deviations

were adopted on a year-by-year basis, rather than as part of a single multi-year plan, when the

deviations were designed to serve a single purpose and collectively caused repeated flooding.” Id.

In Ablan, the Federal Circuit held that defendant “reserves the right to repeat the

impoundment” of floodwaters and “the likelihood of recurrent flooding is high.” See Ablan, 162

F.4th at 1377 (quoting In re Upstream, 146 Fed. Cl. at 250). By subjecting upstream properties to

probable future flooding, defendant’s “actions at issue here is not measured by the length of time

the water inundates the properties . . . rather it is measured by a permanent right to inundate the

property with impounded flood waters.” Id. (quoting In re Upstream, 146 Fed. Cl. at 250.

Flooding experienced by upstream properties, then, did not amount to an “isolated trespass” that

would be used “during only the most extreme natural disasters.” Id.

Here, Upstream and Ablan focused on defendant’s right to flood private property, whereas

Arkansas Game II addressed actual flooding. Both analyses weigh in favor of plaintiffs. Under

Arkansas Game II’s approach, the Induced Surcharges caused weeks of flooding that devasted

plaintiffs’ properties. As plaintiffs noted, “this was not some fleeting episode.” See ECF No. 266,

at 21. Defendant began releasing floodwater under Section 7-05(b) on August 28, 2017, and

concluded such releases on September 16, 2017. Pls.’ Ex. 266-8, at A3628–29; Def. Ex. 58, at

3876. Some properties reported receiving flooding well into September 2017. Pls.’ Ex. 266-2, at

A721, A725, A728, A732–33, A735, A737. 7 Each plaintiff experienced varying duration of

flooding at their property. For instance, Ms. Shipos testified that floodwaters took six days to

recede from the interior of her house. Id. at A737. Mr. Hollis did not return to his home until

around September 9, 2017, after water cleared from his residence. Id. at A728. Mr. Milton

reported that standing water stayed inside his house for “at least two weeks.” Id. at A735. Thus,

the “day-by-day” basis in which surcharges flooded and persisted on plaintiffs’ properties

“collectively caused repeated flooding.” Arkansas Game II, 736 F.3d at 1370.

On the ground level, plaintiffs were forced to evacuate their properties. Pls.’ Ex. 266-2, at

A696–716. Invoking Section 7-05(b) “deprived [plaintiffs] of the use and enjoyment of their

properties for months,” with many unable to inhabit their properties up to a year. ECF No. 266, at

21; Pls.’ 266-2, at A884–966. Some plaintiffs were forced to rent apartments or stay at hotels

following Harvey. Id. at A903, A913, A956–58. Mr. Britton could not reopen his apartment

complex until December 2017 and struggled to attract business thereafter. Id. at A928–29. Indeed,

defendant in Arkansas Game began its deviations from September 1993 to December 1993 and

adopted deviations of similar lengths in subsequent years. Arkansas Game I, 568 U.S. at 27–28.

But when undergoing its inquiry, the Federal Circuit viewed defendant’s deviations “as having

lasted for seven years,” and concluded that any taking “must be assessed in light of an invasion of

7

The property descriptions found in the factual background section provide more information

regarding each plaintiffs’ experience during and following Harvey. Supra Section I.D.

18

that duration.” Arkansas Game II, 736 F.3d at 1370 (citations omitted). Thus, the ensuing

interference with plaintiffs’ properties appears to factor into duration.

Defendant’s only cognizable rebuttal arises from its belief that Harvey’s singular

occurrence turns plaintiffs’ claims into a tort. ECF No. 266, at 51–55. But the alleged taking arose

from defendant’s decision to flood plaintiffs’ properties through induced surcharges, not the storm

itself. Additionally, courts must reconcile duration with the rest of Arkansas Game I’s test. See

Arkansas Game II, 736 F.3d at 1370 (finding temporary nature of deviations did not stand as a

valid ground to deny takings liability). 8 And for further support, courts have already concluded

that a singular flood may constitute a temporary taking. See Ablan, 162 F.4th at 1376–78; see also

Quebedeaux v. United States, 112 Fed. Cl. 317, 324 (2013) (collecting cases).

Temporary flooding case law does not impose a temporal threshold. See Arkansas Game

I, 568 U.S. at 37. The Court holds that the time and duration of flooding in this case weighs in

favor of a temporary taking.

2. Flooding From The Induced Surcharge Was Both Intentional And Foreseeable.

i. Defendant’s Own Data And Testimony Reveals Flooding The Downstream

Properties Was Entirely Foreseeable.

Next, the Court analyzes “the degree to which the invasion is intended or is the foreseeable

result of authorized government action.” Id. at 39 (emphasis added); see also Moden, 404 F.3d at

1343; Ridge Line, 346 F.3d at 1357. If government actions merely contributed toward flooding,

then such actions most likely lie in tort as opposed to a taking. See Columbia Basin Orchard v.

United States, 132 F. Supp. 701, 709 (Ct. Cl. 1973). Courts review “whether the results of the

government actions could have been objectively foreseen.” See John Horstmann Co., 257 U.S. at

146; Sanguinetti v. United States, 264 U.S. 146, 147–48 (1924).

In Arkansas Game II, the Federal Circuit found that “a reasonable investigation by the

Corps of Engineers prior to implementing the deviations . . . would have revealed that the

deviations would result in a significant increase” in flooding.” Arkansas Game II, 736 F.3d at 1373.

8

Plaintiffs also satisfied the time and duration element in contemplation of Upstream and Ablan’s

holding. But the Court intends to distinguish its reasoning. There, Upstream held that “when the taking is

one of a permanent nature . . . the time and duration of the invasion is essentially undisputed and manifestly

supports the finding of a taking.” In re Upstream, 146 Fed. Cl. at 250 (emphasis added). Judge Lettow

concluded that defendant took a permanent flowage easement in the plaintiffs’ properties. Id. In this case,

Section 7-05(b) exists in perpetuity. To date, the Water Manual still includes Section 7-05(b). Pls.’ 266-1

at A441. If the Court applied Upstream’s logic and found that Section 7-05(b) effects a permanent right to

flood plaintiffs’ properties, then the interim use of such provision constitutes a taking. This squarely meets

the definition of a temporary taking “when what would otherwise be a permanent taking is temporally cut

short.” Wyatt, 271 F.3d at 1097; Quebedeaux, 112 Fed. Cl. at 323 (“[I]t is conceivable that a takings might

lie where defendant, using a permanent structure, purposely floods a property once and expressly reserves

the right to do so in the future.”). Similarly, if the Court held that defendant took plaintiffs property

whenever it invoked Section 7-05(b), each use could qualify as a temporary taking.

19

“Notwithstanding [plaintiff’s] complaints,” defendant continued its deviations despite being

warned that it could kill wildlife and disturb timber production on the affected property. Id.

Similarly, the subsequent “modification, operation, and maintenance” of Addicks and

Barker made it more foreseeable that upstream properties would flood. In re Upstream, 146 Fed.

Cl. at 255. “As early as the 1940s, the Corps understood that storms of exceptionally large size

were possible in the Houston metropolitan area.” Id. Accordingly, “it was merely a question of

when and how often,” the Buffalo Bayou region would flood. Id. at 256. Id. By the 1960s,

defendant knew that the Reservoirs would likely face much larger pool sizes. Id. Defendant later

conceded that urban development in downtown Houston would force it to flood areas around the

Reservoir to protect downstream properties. Id. Furthermore, evidence at trial established that a

series of moderate storms could produce a similar effect to Harvey. Id.

The Court agrees that flooding from the Induced Surcharges was foreseeable. Defendant

possessed flowage maps that charted “with startling precision” which properties would be flooded.

ECF No. 266, at 23; Pls.’ 266-1, at A326–31, A452–56. Colonel Zetterstrom, who ordered the

surcharges, acknowledged that defendant was “aware of the potential for inundation of structures

downstream due to controlled release.” Pls.’ 266-2, at A1182. Mr. Long also knew that the induced

flooding would “hurt” property owners upstream and downstream of the Reservoirs. Id. at A1148.

Unlike Arkansas Game where defendant received warnings about deviating from its Water

Manual, defendant already knew the consequences of invoking Section 7-05(b). Thus, flooding

plaintiffs’ properties “was not just foreseeable—it was actually foreseen, and it occurred precisely

as predicted by [defendant].” ECF No. 266, at 23 (emphasis added). Therefore, a reasonable

person could predict that plaintiffs’ properties could flood through Induced Surcharges.

This case also shares the same historical context as Upstream. Defendant enacted

legislation to build Addicks and Barker following extreme flooding events in the 1920s and 1930s.

Def. Ex. 1, at 2010–11; Def. Ex. 5, at 2247. Defendant explicitly built the Dams to protect

downtown Houston from flooding. Pls.’ 266-1, at A22, A162. The fear of downstream flooding

became apparent in the latter half of the 20th century, which led to defendant gating all exposed

conduits by 1963. Id. at A310, A312. It also gradually reduced permitted releases to 2,000 cfs.

Id. at A24–26, A175, A310, A312. In addition, defendant raised the Dams and installed roller-

compacted concrete to combat higher pool levels in the late 1980s. Id. at A311, A313.

Still, most of Addicks and Barker’s top pool of record events have occurred since 1990.

See id. at A180 As upstream development continued, the Corp suggested that it should increase

release rates which would result in increased downstream flooding. Pls.’ 266-5, at A2681–82. It

further admitted that failing to act would force subject defendant to potential claims for money

damages. Id. at A2677. Yet, defendant did not purchase flowage easements in downstream

properties, increase upstream storage space, or provide additional outlet works. Id. at A2679–82.

Defendant’s actions culminated in 2012 when it enacted Section 7-05(b) that mandates automatic

releases which could flood downstream properties. Pls.’ Ex. 266-1, at A50. Against this backdrop,

a reasonable person could anticipate that defendant would eventually flood the downstream

properties on a temporary basis. In re Upstream, 146 Fed. Cl. at 255–56.

20

Therefore, the Court concludes that the flooding of plaintiffs’ properties was entirely

foreseeable.

ii. The Corps Knowingly Flooded Plaintiffs’ Properties Through Section 7-05(b).

Alternatively, defendant intended to flood plaintiffs’ properties. See In re Upstream, 146

Fed. Cl. at 259 (finding intent exists if “defendant intended its physical occupation even if it did

not intend to effect a taking.”) (quotation omitted).

While persuasive, Texas precedent imposes liability when the government intentionally

floods private property. See Milton, 36 F.4th at 1160 (citing cases); see also Tarrant Reg’l Water

Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004) (citing City of Dallas v. Jennings, 142 S.W.3d

310, 314 (Tex. 2004) (“[T]he requisite intent is present when a governmental entity knows that a

specific act is causing identifiable harm or knows that the harm is substantially certain to result.”);

Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 803, 807 (Tex. 2016) (imposing liability when

the government makes a “conscious decision to subject particular properties to inundation so that

other properties [will] be spared.”). Courts may also infer defendant’s intent if it subjectively

foresaw flooding as a “direct, natural, or probable consequence of its action.” See In re Upstream,

146 Fed. Cl. at 259 (citations and quotations omitted).

Defendant consciously decided to open the floodgates in accordance with Section 7-05(b).

ECF No. 262, at 23. The Corps invoked Section 7-05(b) to protect the structural integrity of each

Dam. Pls.’ 266-1, at A47; Pls.’ 266-8, at A3400. Corps personnel uniformly testified that they

followed the Water Manual by the book and ran their decision up the chain of command. Pls.’

266-8, at A3389–91, A3402–04, A3383–92. Defendant did so with knowledge of the flowage

maps that predicted which properties would flood. Pls.’ 266-1, at A136–42. Corp members also

reconciled potential releases with daily forecasts of projected rainfall. Pls.’ 266-7, at A3169–74;

Def. Ex. 9–16. In doing so, Mr. Thomas testified that the Corps “planned to take as much risk in

[the] releases as is possible.” Pls.’ 266-7, at A3173. Defendant also made this decision with

knowledge that that properties below the Reservoirs could sustain damages at flowage rates greater

than 3,000 cfs. Pls.’ 266-1 at A282. During Harvey, those releases combined to reach 13,800 cfs,

which defendant knew would adversely impact downstream properties. Pls.’ 266-2, A1238,

A1253. Thus, the record demonstrates that the Corps knowingly flooded downstream properties.

See In re Upstream, 146 Fed. Cl. 259 (inferring intent).

Therefore, the Court holds that the Corps intended to flood plaintiffs’ properties based on

its advanced knowledge of the Induced Surcharge tables, and its decision to abide by the Water

Manual.

3. The Induced Surcharges Caused Severe and Catastrophic Damage To Plaintiffs’

Properties.

Third, the Court examines the severity of defendant’s actions. See Arkansas Game I, 568

U.S. at 38; see also Ridge Line, 346 F.3d at 1355–56 (reviewing whether the “nature and

magnitude” caused “a direct and immediate interference with the use and enjoyment of the land.”).

21

In Arkansas Game II, defendant asserted that the plaintiff’s property was “part of a

floodplain that floods regularly,” and the “marginal increase in flooding did not constitute a

sufficiently severe invasion” to support a takings claim. Arkansas Game II, 736 F.3d at 1374.

Unconvinced, the Federal Circuit concluded that “the point [of severity] is that after the deviations

began the flooding lasted for significantly longer periods of time and had much more serious

consequences than the flooding of the pre-deviation period.” Id. Such deviations “effected a

wholesale change” for supporting timber harvesting and wildlife preservation on the plaintiff’s

property which went beyond an incremental intrusion of property. Id.

On analogous facts, the flooding in Upstream diminished the plaintiffs’ use and enjoyment

of their properties, materially disrupted their lives, devalued their property values, destroyed real

and personal property, and displaced them from their homes. In re Upstream, 146 Fed. Cl. at 250–

52. In opposition, defendant believed that “repairable damage resulting from temporary flooding

during a single flood event is not the type of severe impact that can support a claim for

compensation under the Fifth Amendment.” Id. at 251. The Court disagreed. Id. While one

plaintiff did not experience any flooding inside his house, he still suffered damage to the

foundation of his property. Id. at 252. Furthermore, related substances and materials that mixed

into the floodwater “became putrid, smelling of fecal material and dead animal material and

chemicals.” Id. (citation and quotations omitted). How much water “actually entered the

structures [was] not reflective of, and actually much less, than the severity of the water level

outside the structures in the lawns.” Id.

In this case, the Induced Surcharges were severe enough to constitute a taking. Much like

Upstream, releases under Section 7-05(b) caused substantial interference with plaintiffs’ use and

enjoyment of their property. See ECF No. 266, at 21. Combined releases rose from 6,000 cfs to

13,000 cfs and lasted at varying rates for two weeks. Pls.’ Ex 266-2, at A1238, A1252. Peak flows

shattered the recommended 2,000 cfs defendant previously said properties along the Buffalo

Bayou could accommodate. Pls.’ 266-1, at A25–26. The flooding forced plaintiffs to evacuate

their properties. Pls.’ 266-2, at A696–717. For instance, Aldred left his property on September

29, 2017, before the entryway to his neighborhood became submerged and Cutts left her property

by kayak. Id. at A697, A702. Plaintiffs also suffered varying levels of inundation at their

properties. Id. at A662–88. Mr. Hollis estimated that his house received 43-45 inches of water.

Id. at A678. Mr. Good recalled water reaching 38 to 40 inches, almost to the bottom of his

windows. Id. at A675. Mr. Hollis testified that 42-44 inches of standing water inundated his home,

and Mr. Milton measured four feet-three inches of water in his house. Id. at A678, A681. While

some properties experienced smaller amounts of first-floor flooding, those amounts still materially

interfered with the use and enjoyment of their properties. See, e.g., id. at A671, A673.

When Mr. Milton returned to his property by boat, he found his refrigerator floating in his

kitchen, and his piano submerged in the living room. Id. at A820–21. His clothes “were totally

mildewed and everything stank because the sewer water backed up into the house.” Id. at A810–

11. Mr. Silverman found mold covering his walls. Id. at A851. He later hired a contractor who

removed “the bathrooms, the kitchen, and the Sheetrock, the doors, the trims, the moldings, [and]

the cabinets under four feet high.” Id. at A856. Mr. Good characterized the bottom units of his

property as “complete devastation.” Id. at A776. Following Harvey, the Silverman family faced

financial constraints to rebuild their house, and they began looking to purchase another home. Id.

22

at A863. Some of Mr. Milton’s neighbors sold their properties and moved out of his neighborhood.

Id. at A824.

In total, plaintiffs declared $22 million in damages. Pls.’ 266-8, at A3333–56. Mr. Britton

reported that his business suffered $17 million in damages alone. Id. at A3185. A local appraiser

calculated that plaintiffs’ property values declined by “no less than 20 [percent],” from 2017 to

2021. Id. at A3358. In addition, plaintiffs suffered losses to their personal property and faced high

repair costs. Pls.’ 266-2, at A773–883. Some property owners were completely ousted from their

properties for up to a year. Id. at A770, A890–91, A936, A943–44. Thus, the instant flooding

exceeded “a range that [plaintiffs] could have reasonably expected to experience in the natural

course of things.” Arkansas Game II, 736 F.3d at 1375. And while plaintiffs eventually regained

access to their property, the Court cannot look past the costly, burdensome, and devastating

consequences the Induced Surcharges created.

Therefore, the Court concludes that the flood created by Hurricane Harvey was severe

enough to be a taking.

4. The Character Of The Land And Plaintiffs’ Reasonable Investment-Backed

Expectations Did Not Anticipate Intentional Flooding Of Their Properties.

Lastly, determining the reasonableness of a landowner’s expectations is a fact-driven,

objective inquiry. Chancellor Manor v. United States, 331 F.3d 891, 904 (Fed. Cir. 2003); Cienega

Gardens, 331 F.3d 1319, 1346 (Fed. Cir. 2003). A court must then examine “the extent to which

the [government action] interferes” with those expectations. See Palazzolo v. Rhode Island, 533

U.S. 606, 617 (2001); see Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)

(requiring reasonable investment-backed expectations to “be more than a unilateral expectation or

abstract need.”) (quotations omitted). Arkansas Game II declined to review this last factor because

defendant waived its argument at the trial level. 736 F.3d at 1375. But the Supreme Court

determined that the plaintiff’s land “had not been exposed to flooding comparable to the 1990’s

accumulations in any other time span either prior to or after the construction of the dam.” Arkansas

Game I, 568 U.S. at 39.

In Upstream, the plaintiffs “neither knew, nor reasonably should have known, of the risk

posed by the dams.” In re Upstream, 146 Fed. Cl. at 261. Publicly available information and

notifications by local government authorities did not inform the plaintiffs that their properties

could flood. Id. at 261. Nor did public meetings guarantee effective communication because

defendant lacked evidence that the meetings were well-attended or publicized. Id. at 263. The

Court also found unavailing that subdivision plats and other property documents gave plaintiffs

notice when they purchased their properties. Id. at 262. Even if purchasers examined the

documents “it would take an uncommonly attentive eye to notice and comprehend the import of

such a disclosure.” Id. (quotations omitted). Additionally, Houston’s rapidly developing

metropolitan area led to “a regular flow of people moving in and out of the area, further reducing

the likelihood that new residents adapting to the area would know of the risk.” Id. at 263.

Once more, plaintiffs have satisfied their burden. Despite being located in a historical flood

zone, plaintiffs largely did not know of any previous flooding that reached the inside of their

23

properties. Pls.’ 266-2, at A493–527. In fact, only a few test properties experienced any flooding

prior to Harvey. Id. at A626–60. Thus plaintiffs had not “been exposed to flooding comparable”

to “any other time span.” Arkansas Game I, 568 U.S. 39. It reasonably follows that downstream

properties in the Buffalo Bayou region did not anticipate their land would be subject to

government-induced flooding through a regulation that mandated automatic surcharge releases.

Thus, the character of plaintiffs’ land did not contemplate flooding to the extent caused by the

Induced Surcharges.

Defendant’s own policies also failed to create any reasonable investment-backed

expectations that plaintiffs could expect that their properties would be intentionally flooded.

Beginning in 1964, the Water Manual instructed defendant to keep the “gates closed and under

surveillance as long as needed to prevent flooding below the dam.” Pl’s. Ex. 266-1, at A222. For

years, defendant maintained this policy. Pls.’ 266-8, at A2674, A2681, A2714, A3002, A3117. In

light of increased development, defendant operated the Reservoirs “strictly to prevent downstream

flooding; therefore, the gates remain shut even if pool elevations increase and flood upstream

properties.” Pls.’ 266-1, at A181. And after a 2016 flooding event, defendant publicly stated that

“[w]e will not open the dam to a point where it will cause flooding downstream.” Pls.’ 266-8, at

A3331–32.

Plaintiffs also relied on Addicks and Barker to protect them from flooding. Mr. Cutts

believed the Dams were in place to keep floodwaters from “overtaking the land.” Pls.’ 266-2, at

A547. From Mr. Hollis’ understanding, “the dams were built to protect us, and we always relied

on that theory.” Id. at A567. Mrs. Beyoglu thought both Dams provided downstream residents

with “clean water.” Id. at A559. Mr. Milton recalled his father telling him that the land “wouldn’t

have been developed without those dams.” Id. at A572. In sum, residents took Addicks and Barker

for granted and assumed they “were there to protect that part of town.” Id. at A573, A582, A591–

92. As for Section 7-05(b), plaintiffs further testified that they were unaware of the regulation.

Pls.’ 266-8, at A3333–56. Nor did they anticipate or realize that defendant could flood their

properties under that provision. Id. At the same time, Corps members could not recall if they

ever publicly disclosed that they could flood downstream properties by Induced Surcharges. Id.

at A3367–69, A3402–04, A3408. These manifestations would not lead a reasonable person to

expect defendant would flood downstream properties. Thus, plaintiffs maintained reasonable

investment-backed expectations that defendant would not flood their properties. Arkansas Game

I, 568 U.S. at 14.

As to whether defendant interfered with plaintiffs’ reasonable investment-backed

expectations, the Court need not reinvent the wheel. Defendant severely interfered with plaintiffs’

expectations regarding their properties. Plaintiffs bought their homes to live safely and to raise

families. Commercial entities bought property to conduct business. But the Induced Surcharges

displaced plaintiffs, destroyed real and personal property, devalued their properties, and cost

millions in repair costs. Thus, the final factor in the Arkansas Game test weighs in favor of a

taking.

Therefore, the Court concludes that a temporary taking occurred through defendant’s

Induced Surcharges. The subsequent flooding was severe, intentional and foreseeable, and

significantly interfered with plaintiffs’ reasonable investment-backed expectations. Accordingly,

24

the Court hereby GRANTS summary judgment in favor of plaintiffs and DENIES summary

judgment in favor of defendant as it relates to Question 1.

B. Question 2: Whether The Government’s Actions Amounted To A Permanent

Physical Taking.

The Court now considers whether the Induced Surcharges qualify as a permanent taking.

Plaintiffs contended that Section 7-05(b) in substance acts like a flowage easement that burdens

their properties. ECF No. 262, at 14–18. In response, defendant asserted that the infrequent use

of Section 7-05(b) and its associated flooding defeats plaintiffs’ claim. ECF No. 277, at 30–31.

The parties sparred over their interpretations of the Supreme Court’s decision in Cedar Point

Nursery v. Hassid, 594 U.S. 139 (2021), and its applicability to this case. The Federal Circuit’s

holdings in Ideker Farms, Inc. v. United States, 71 F.4th 964 (Fed. Cir. 2023), and Ablan also prove

instructive. After review, the Court concludes that plaintiffs established a permanent taking.

“There is no difference of kind, but only of degree, between a permanent condition of

continual overflow by backwater and a permanent liability to intermittent but inevitably recurring

overflows; and, on principle, the right to compensation must arise in one case as in the other.”

Cress, 243 U.S. at 328. A permanent physical occupation exists even if a particular individual or

entity “does not station himself permanently upon the premises.” Nollan v. California Coastal

Comm’n, 483 U.S. 825, 832 (1987). The Federal Circuit in Ideker Farms clarified that Arkansas

Game I “does not apply to permanently recurring flooding. Instead, such flooding that foreseeably

or intentionally results from government action is a categorical physical taking.” Ideker Farms,

71 F.4th at 980.

In Cedar Point, a California regulation granted agricultural union organizers an explicit

“right of access” to an employer’s premises. Cedar Point, 594 U.S. at 143. That regulation

allowed labor organizations to enter private property for up to 120 days in a calendar year. Id. A

group of employers asserted that the access regulation amounted to a per se physical taking

because defendant appropriated an easement. Id. at 145. The Court agreed in part and held that

the regulation interfered with the plaintiffs’ right to exclude, “one of the most essential sticks in

the bundle of rights that are commonly characterized as property.” Id. at 149–52 (collecting cases).

While the Court did not formally declare the access regulation as an easement, it “followed our

traditional rule: Because the government appropriated a right to invade, compensation was due.”

Id. at 156; see id. at 149 (summarizing that “Government action that physically appropriates

property is no less a physical taking because it arises from a regulation.”).

On similar facts, defendant in Ideker Farms built a series of dams in accordance with

federal legislation. 71 F.4th at 971–72. The Corps later synthesized dam operations into a Master

Manual, which initially prioritized flood safety first and environmental consequences last. Id. at

972. In 2004, defendant amended the Manual to emphasize returning the waterways back to its

natural state. Id. at 973. This allegedly caused “frequent and severe flooding on Plaintiffs’ farms

between 2007 and 2014,” to which “[defendant] has not ceased and does not plan to cease flooding

Plaintiffs’ lands.” Id. at 973, 980. The Federal Circuit concluded that a permanent taking occurred,

noting that while “floodwaters come and go during the year, i.e., are intermittent, [it] does not

25

negate the existence of a [permanent] taking. Those considerations bear only on the amount of

compensation.” Id.

Recently, Ablan held that defendant in Upstream should have foreseen that the Reservoirs

would experience pool levels that exceeded government-owned land. Ablan, 162 F.4th at 1376.

Defendant’s operations allowed it to take “a permanent right of access, akin to an easement in

gross,” even though flooding occurred intermittently. Id. The court further determined that

“[t]here was ample record evidence that the Houston area was prone to large storms.” Id. And

while “the exact frequency of storms that would flood private property is unknowable,” it was not

clear error to hold “that the flooding at issue here was objectively foreseeable and would inevitably

occur.” Id.

The Court may view whether a permanent taking occurred from two perspectives. First, it

may examine whether Section 7-05(b) created physical taking by regulation under Cedar Point.

Next, the Court may determine whether flooding under Section 7-05(b) amounts to intermittent

yet recurring flooding as found in Ideker Farms.

1. The Cedar Point Argument.

Plaintiffs posit that Section 7-05(b) “constitutes a per se physical taking” to flood plaintiffs’

properties. ECF No. 266, at 16. In their opinion, defendant “unequivocally [took] the right to a

flowage easement over” their properties, and the “right to flood private property is legally

indistinguishable from the taking of an easement through regulation.” Id. at 17–18. In doing so,

defendant interfered with plaintiffs’ right to exclude, a fundamental property right. Id. at 15–16.

And by diminishing that right, defendant physically appropriated their property which does not

subject Section 7-05(b) to Penn Central’s balancing test. See id. at 16. As such, Section 7-05(b)

“is no less a physical taking because it arises from a regulation.” Id. at 15. The Court agrees.

In practice, Section 7-05(b) allows defendant to flood plaintiffs’ properties if certain

conditions are met. Pls.’ 266-1, at A50. Like the plaintiffs in Cedar Point, Section 7-05(b)

interferes with plaintiffs’ right to exclude, “one of the most treasured rights of [] ownership.”

Cedar Point, 594 U.S. at 149. Plaintiffs are also left with no recourse to prevent government

induced-flooding from encroaching on their properties. See ECF No. 266, at 16. In effect, Section

7-05(b) “reserves the right to repeat impoundment” of water on plaintiffs’ properties on a

permanent basis. In re Upstream, 146 Fed. Cl. at 250, 251 n.20. Additionally, exercising Section

7-05(b) need not occur on a permanent, continuous basis to establish takings liability. Nollan, 483

U.S. at 832. As implied from Judge Lettow’s 2019 opinion, an interim use of a permanent right to

flood private property amounts to an indefinite encumbrance on said properties. In re Upstream,

146 Fed. Cl. at 250.

While the Court need not determine whether defendant took an easement in plaintiffs’

properties, Cedar Point, 594 U.S. at 156, Ablan commented that such permanent flooding from

Addicks and Barker created a “permanent right of access . . . akin to an easement in gross” toward

Upstream properties. Ablan, 162 F.4th at 1376. There, defendant created a right to flood and store

water on upstream properties through its actions. Id. But in this case, defendant tethered its

permanent right to flood downstream properties through Section 7-05(b). Thus, the Court finds

26

that Section 7-05(b) acts like an easement because it explicitly grants defendant the permanent

ability to flood properties in the Buffalo Bayou region as a flood control measure. See id. Section

7-05(b) also arguably satisfied defendant’s proposal to purchase flowage easements in the 1990s,

except without paying plaintiffs just compensation. Pls.’ 266-5, at A2680. To date, the Water

Manual still contains Section 7-05(b), thereby preserving defendant’s ability to flood private

property. Pls.’ 266-1, at A441. Regardless, since defendant “appropriated a right to invade,” such

flooding “is no less a physical taking” that is subject to the per se rule. Cedar Point, 594 U.S. at

149.

In opposition, defendant asserted that Cedar Point “carved out temporary flooding from

per se treatment.” ECF No. 277, at 29. Under its interpretation of that case and Arkansas Game

I, the Supreme Court developed its multi-factor test to “reflect the unique considerations that

accompany temporary flooding.” Id. at 30 (emphasis added). The Court disagrees. Again,

defendant retains a permanent right to engage in downstream flooding, albeit under certain

conditions. Defendant also argues that Arkansas Game I did not evaluate whether a permanent

taking occurred when defendant deviated from a similar Water Manual that caused intermittent

flooding to private property. See ECF No. 266, at 30; Arkansas Game I, 568 U.S. at 27–28.

However, plaintiffs are free to assert both temporary and permanent takings claims. Milton, 36

F.4th at 1163 (instructing this Court to address both theories).

Defendant further contends that the express language of Section 7-05(b) does not “declare

any formal entitlement to invade Plaintiffs’ properties,” “does not authorize any permanent and

physical occupation,” and “does not grant the public any permanent and continuous right to cross

Plaintiffs’ properties.” ECF No. 277, at 31 (citations and quotations omitted). Unlike other

regulations and statutes that qualified as a physical taking, Section 7-05(b) contains pre-requisites

that must be satisfied before defendant can open the floodgates. Compare Pls.’ 266-1, at A50; with

Cedar Point, 594 U.S. at 143 (granting immediate right to enter plaintiffs’ properties); Loretto, 458

U.S. at 421 (requiring landowners to allow cable companies to install facilities on private

property). But whether conditions allow for releases under Section 7-05(b) impacts how often

defendant may use the regulation. That bears on compensation, not liability. Ideker Farms, 71

F.4th at 980.

If the Court examined the plain language of Section 7-05(b), then yes, it does not expressly

authorize defendant to invade plaintiffs’ properties. See Pls.’ 266-1, at A50. However, when

considering Section 7-05(b) in context, the provision empowers defendant to engage in mandatory

releases which diminishes plaintiffs’ right to exclude. A requirement that a physical taking by

regulation must explicitly allow defendant to invade private property seems too harsh a rule and

incongruent to real-world realities. Holding along these lines would enable defendant to escape

future liability by carefully curated legislative and contractual language.

Therefore, defendant’s Induced Surcharge provision acts as a government regulation that

physically amounts to a categorical, per se taking.

27

2. Intermittent Yet Recurring Flooding Argument.

The Court also holds that flooding under Section 7-05(b) constitutes permanent yet

recurring flooding that will occur “without identifiable end into the future.” Ablan, 162 F.4th at

1376 (citing Ideker Farms, 71 F.4th at 979); see ECF No. 266, at 18. While defendant invoked

Section 7-05(b) for the first time, the Court should not have to wait for another occurrence to find

liability. See Ablan, 162 F.4th at 1375–76.

Again, the historical development of the Buffalo Bayou watershed is informative. Between

1854 and 1935, the area experienced six major floods. Def. Ex. 1 at 2010. In particular, storms in

1929 and 1935 culminated in catastrophic flooding that led to the creation of Addicks and Barker.

Id.; Def. Ex. 5 at 2247. The Reservoirs principally worked to reduce flooding downstream in the

floodplain region, which included Houston. Def. Ex. 2, at 2055; Def. Ex. 3, at 2140–41; Def. Ex.

5, at 2244. As time passed, defendant decreased allowable releases which increased risks to

upstream properties and the areas around both Dams. In response, Defendant contemplated

purchasing downstream lands to protect the Houston area. But in the face of exorbitant costs, it

elected not to. Pls.’ 266-5, at A2681–82. In 1992, the Corps recognized that failing to act “would

mean accepting the risk that substantial numbers of houses will be damaged by rare, severe flood

events. . . . [and] [t]he Government will continue to be subject to potential claims for monetary

losses.” Id. at A2677 (emphasis added). These concerns persisted for years before Harvey, and

defendant opined that “it might be desirable to increase the allowable release rates from the

reservoir . . . and accept some increased duration of downstream flooding” as areas upstream of

the Reservoirs developed. Id. at A2681–82.

Following Harvey, the Upstream Court noted that “recent trends suggest that storms and

hurricanes on par with Harvey are becoming increasingly frequent, and the government fails to

adequately to account for this increase.” See Pls.’ 266-8, at A3437. 9 Defendant also admitted that

a series of moderate storms could create similar conditions akin to Harvey at the Dams. In re

Upstream, 146 Fed. Cl. at 256. Mr. Long further testified that the Corps could open the floodgates

in the future under similar circumstances. Pls.’ 266-2, at A1152. In his opinion, such flooding

could be inevitably recurrent. Id. Furthermore, many record pool events have occurred at both

Dams since the 1990s. Pls.’ 266-1, at A180. Thus, while “the exact frequency of storms that would

flood private property is unknowable,” it is foreseeable that downstream flooding could occur

through Induced Surcharges given defendant’s anticipation for an event like Harvey and historical

and contemporaneous precipitation trends. See Ablan, 162 F.4th at 1376.

Lastly, defendant suggests that the lack of “permanence and absolute exclusivity of a

physical occupation” makes the Induced Surcharges temporary. ECF No. 277, at 31–32 (citing

Loretto, 458 U.S. at 435 n. 12 (1982)). Indeed, our predecessor court has held that one single flood

establishes a taking to upstream properties of a dam “but below the contour line to which the dam

is designed to impound water.” See Stockton v. United States, 214 Ct. Cl. 506, 518–19 (1977).

9

The above citation comes from Judge Lettow’s October 28, 2022, just compensation trial opinion.

See In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 162 Fed. Cl. 495, 523 (2022),

aff’d in part, vacated in part, remanded sub nom. Ablan v. United States, 162 F.4th 1364 (Fed. Cir. 2025).

To avoid confusion with Upstream’s liability opinion, the Court resorts to plaintiffs’ pagination of the just

compensation opinion in its summary judgment record.

28

The Court of Claims distinguished flooding in that case from situations where flooding “is

downstream of the dam and the damage is an unintended and unwanted result of changes effected

by the dam in the downstream flow or consequential and indirect upstream flooding.” Id. at 519.

Unlike those scenarios where courts found no liability, the Induced Surcharges foreseeably and

intentionally resulted in downstream flooding. And much like Ideker Farms, the permanency of

defendant’s regulations indefinitely interferes with plaintiffs’ property rights. Ideker Farms, 71

F.4th at 979–80.

Thus, the Court concludes that plaintiffs have established a permanent physical taking.

Therefore, the Court GRANTS summary judgment in favor of plaintiffs and DENIES defendant

summary judgment as it relates to Question 2.

C. Question 3: Whether Plaintiffs Established Causation “When Considering The

Impact Of The Entirety of Government Actions That Address The Relevant Risk.”

To establish causation, a plaintiff must show “what would have occurred” if the

government had not acted. St. Bernard Par. Gov’t v. United States, 887 F.3d 1354, 1362 (Fed. Cir.

2018) (citing United States v. Archer, 241 U.S. 119, 132 (1916)). In other words, “absent

government action, plaintiffs would not have suffered the injury.” Id. When making this inquiry,

courts should consider “the impact of the entirety of government actions that address the relevant

risk.” Id. at 1364 (emphasis added).

The parties disagree on two aspects of the causation analysis. First, they dispute what “but-

for world” the Court should compare defendant’s actions against. Plaintiffs asserted that the Court

should compare the Corps’ decision to flood downstream properties against a world in which it

had kept the gates closed. ECF No. 266, at 47–49. By contrast, defendant argues that the Court

should analyze its decision against a world in which it never constructed Addicks and Barker. ECF

No. 262, at 24–35.

Second, the parties dispute whether the Hardwicke exception applies. See generally John

B. Hardwicke Co. v. United States, 467 F.2d 488 (Ct. Cl. 1972). St. Bernard interpreted that

exception to apply when a risk-reducing action precedes a risk-increasing action, “the [flood] risk-

reducing action would only be considered in assessing causation if the risk-increasing action was

contemplated at the time of the [flood] risk-reducing action.” St. Bernard, 887 F.3d at 1367 n. 14.

At the same time, Ideker Farms viewed such exception as determining whether a reasonable

landowner at the time of the taking would have expected that a flood risk-increasing action was

“probably within the scope of the project . . . from the time the Government was committed to the

project.” Ideker Farms, 71 F.4th at 982 (citations and quotations omitted). The Federal Circuit

released its decision in Ideker Farms after summary judgment briefing concluded. This Court

gave the parties an opportunity to provide supplemental briefing on the case. See ECF No. 451;

ECF No. 452; ECF No. 453. Nonetheless, defendant advances that the Hardwicke exception

amounts to non-precedential dicta that the Court should ignore. ECF No. 277; ECF No. 452. It

advocates for the Court to follow the Federal Circuit’s approach in St. Bernard. Id. Plaintiff

contends that the Hardwicke exception is precedential, and Ideker Farms resolves this issue. ECF

No. 266; ECF No. 451.

29

1. The Proper Baseline For The Court To Analyze Causation Is A World In Which

Defendant Kept The Gates Closed During Hurricane Harvey.

Defendant argues that the Court should compare flooding from Section 7-05(b) to a world

without the Dams for causation purposes. Plaintiff believes that the Court should entertain a

scenario in which the floodgates remained closed. The Court adopts plaintiffs’ approach.

In Ideker Farms, the Federal Circuit affirmed the lower court’s decision to measure

defendant’s actions before and after the 2004 Changes to its Mater Manual. Ideker Farms, 71 F.4th

at 981–82. There, defendant’s alterations “led to more increased and more severe flooding than

would have occurred had these Changes not been made.” Id. at 981.

However, Arkansas Game II held that defendant’s deviations from its Water Manual caused

a “substantial increase in the number of days of growing season flooding” when compared to: (1)

the period between 1953 and 1993; and (2) before the construction of the Clearwater dam.

Arkansas Game II, 736 F.3d at 1371. At oral argument, the parties agreed that the proper baseline

to assess causation “would be between the flooding that occurred prior to the construction of

Clearwater dam and the flooding that occurred during the deviation period.” Id. at 1372 n. 2. But

since the “water release policy under the Manual largely mimicked [] pre-dam water flows,” both

baselines produced the same result. Id.

According to defendant, plaintiffs “cherry-picked” its isolated decision to invoke Section

7-05(b) for causation purposes. ECF No. 262, at 29–30. It proposed that the Court should evaluate

causation by considering: (1) the construction of Addicks and Barker; (2) the gating of two

conduits at each Dam in 1948 to reduce uncontrolled flows in the Buffalo Bayou region; (3) the

gating of all conduits in 1963 to protect downstream development; (4) operations changes to

reduce downstream flows following channel encroachment; (5) issuance of a water control manual

to govern reservoir operations after the gating of all the dam conduits or outlets; and (6) the

decision to close the gates as Hurricane Harvey approached Houston. ECF No. 277, at 4.

Defendant opined that its actions were undertaken in furtherance of the Buffalo Bayou and

Tributaries Project which addressed the “relevant risk . . . of flooding along Buffalo Bayou in

Houston.” ECF No. 262, at 29–30.

For support, defendant cited Supreme Court precedent that adopted its preferred but-for

world. See Archer, 241 U.S. at 128 (1916) (analyzing whether construction of a dike that led to

gravel and sand deposit to develop on plaintiff’s land was a taking); Sanguinetti, 264 U.S. at 147

(determining whether construction of a government canal effected a taking from the associated

flooding); United States v. Sponenbarger, 308 U.S. 256, 262 (1939) (involving alleged taking in

which levees diverted water to plaintiff’s land which caused flooding). The Court does not dispute

these findings. However, defendant’s precedent differs from this matter in one crucial aspect. The

plaintiffs in those cases challenged defendant’s construction and operation of flood control

projects, not a discrete decision made by Corps members to comply with a regulation. Unlike their

Upstream counterparts, plaintiffs do not assert that the construction and general maintenance of

the Dams caused flooding to their properties. In re Upstream, 146 Fed. Cl. at 255. Instead,

plaintiffs attributed flooding to their properties from defendant’s decision to invoke Section 7-

05(b).

30

As such, Ideker Farms is the most appropriate authority to follow. Since the alleged taking

there occurred when defendant amended its Water Manual, the Federal Circuit narrowed its scope

for causation. See Ideker Farms, 71 F.4th at 982. In this case, a taking occurred when defendant

opened the floodgates, which sets the Court’s baseline of analysis. The Court acknowledges that

Arkansas Game II compared flooding against a world in which the Corp never built its flood-

control project. Arkansas Game II, 736 F.3d at 1371. But it would have reached the same result

if it compared defendant’s deviations to the period beforehand. Arkansas Game II, 736 F.3d at

1372 n. 2. Those parties also proceeded without the benefit of Ideker Farms. And as a case-

specific inquiry, the Court’s proposed baseline better suits this matter. If the Court considered

every action defendant undertook from the past 80 years, it would frustrate the causation analysis.

That inquiry would include events and actions that share an attenuated relationship with

defendant’s decision to intentionally flood plaintiffs’ properties through Section 7-05(b).

Defendant’s preferred case, St. Bernard, reiterated that courts must consider “the impact of the

entirety of the government actions that address the relevant risk.” St. Bernard, 887 F.3d at 1364

(emphasis added). The relevant risk here is not mere flooding. Rather, the risk encompasses

intentional induced flooding from an express regulation that defendant followed. Compare Pls.’

266-1, at A50; with Ideker Farms, 71 F.4th at 982. Had the Corps not acted, or invoked Section

7-05(b), the question becomes whether plaintiffs’ properties would have sustained more damage.

St. Bernard, 887 F.3d at 1362. Therefore, the Court will assess causation against a world in which

the gates remained closed.

2. The Hardwicke Exception Is Precedential And Is Appropriate To Apply Under The

Circumstances.

Plaintiffs argue that this matter “falls squarely within the Hardwicke rule.” ECF No. 266,

at 36–47, 49; ECF No. 281, at 6–11. In particular, plaintiffs identified the Corps’ decision to close

Addicks and Barker’s floodgates as the risk-reducing action. See ECF No. 266, at 46–47. This

preceded defendant’s decision to invoke Section 7-05(b) and flood plaintiffs’ properties. Id. In

opposition, defendant challenged Hardwicke’s precedential value. See ECF No. 262, at 33–34;

ECF No. 277, at 9–14. 10 Defendant further opined that its affirmative act under plaintiffs’ scenario

“includes the construction of the Project in the 1940s, the operation of the Project to reduce flood

risk below the dams since that time, as well as the closing of the gates at the onset of Hurricane

Harvey, not just the opening of the gates during that storm.” ECF No. 262, at 34. Resolving this

issue turns on examining how courts have applied Hardwicke.

10

In 1982, the Federal Circuit adopted the jurisprudence developed by its predecessor court. S. Corp.

v. United States, 690 F.2d 1368, 1371 (Fed. Cir. 1982). The Federal Circuit has consistently held that “[a]

prior precedential decision on a point of law by a panel of this court is binding precedent and cannot be

overruled or voided unless or until the court sits en banc.” Sacco v. Dep’t of Justice, 317 F.3d 1384, 1386

(Fed. Cir. 2003) (citing Newell Co. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1998) (subsequent

history omitted). And “[t]here can be no question” that the Court of Federal Claims is required to follow

Federal Circuit and Court of Claims precedent. Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353

(Fed. Cir. 2006). In this case, the Court of Claims issued its opinion in Hardwicke which the Federal Circuit

subsequently adopted. Thus, the Court may use the exception as Federal Circuit or Court of Claims

precedent. Coltec Indus., 454 F.3d at 1353. Furthermore, no Federal Circuit decision has overruled

Hardwicke in an en banc opinion. ECF No. 281, at 8. Therefore, the Court holds that the Hardwicke

exception is not merely dicta and carries precedential value.

31

The Hardwicke exception arises from United States v. Miller, 317 U.S. 369 (1943). There,

the Court considered whether landowners could receive additional value from defendant’s

commitment to a railway re-location project. Id. at 377. That answer depended on “whether []

respondent’s land were probably within the scope of the project from the time the Government was

committed to it.” Id. (emphasis added). If the landowner’s parcels fell within the scope of the

project, they could not receive additional value. Id. at 378; see also United States v. Reynolds, 397

U.S. 14, 21 (1970).

In Hardwicke, the United States and Mexico signed an accord in 1932 “which provided for

flood control works along the lower Rio Grande Valley.” Hardwicke, 467 F.2d at 489. That plan

contemplated two diversion dams that would divert water from Rio Grande into Mission Inlet and

to a floodway at times of flooding. Id. A subsequent 1944 treaty “constituted” the 1932 plan

which also included “three international storage dams.” Id. In 1950, the original plan became

modified and proposed constructing one diversion dam instead of two dams. Id. In 1952,

defendant constructed Falcon Dam, a storage dam, that reduced flooding at the plaintiffs’ property

“from once every two years to once every ten years.” Id. Seven years later, defendant began

operating Anzalduas Dam, a diversion dam, which increased flooding to once every seven or eight

years. Id. In finding that no taking occurred following a 1967 flooding event, the Court of Claims

opined that “[b]efore 1950 a buyer of land . . . knew or should have known that the [1932] flood

control plan agreed upon with Mexico contemplated the construction of both storage and diversion

dams.” Id. at 490 (emphasis added). Since 1932, “Mission Inlet had been viewed as a strategic

means of diverting floodwater.” Id. Accordingly, constructing Anzalduas Dam “did not alter the

potential burden on plaintiffs’ property since defendant continued to rely on Mission Inlet for

diversion, as the 1932 plan had done.” Id. (emphasis added).

Decades later, Ideker Farms applied Hardwicke’s reasoning but reached a different result.

There, Congress passed the FCA of 1944 which authorized construction of dams to reduce flooding

along the Missouri River. Ideker Farms, 71 F.4th at 971. That “Mainstem System” was completed

in 1967. Id. In 1945, Congress also passed the Bank Stabilization and Navigation Project that

implemented other measures to control flooding. Id. at 971–72. The Corps consolidated its

operations into a Water Manual in 1979. Id. at 972. When applying Hardwicke to defendant’s

2004 changes to its Manual, the Federal Circuit considered: “[w]hether a reasonable property

owner at the time the taking occurred would have understood the 2004 Changes to be ‘probably

within the scope of” the 1944 FCA “from the time the Government was committed to the project.”

Id. at 982. In doing so, the Federal Circuit held that a reasonable landowner would not have

anticipated the 2004 Changes were contemplated under the 1944 FCA. Id. at 983. Since that

legislation intended for “people to be protected from flooding . . . agricultural production increased

and developers moved in.” Id. at 984. Based on these expectations, the 2004 changes ran

“antithetical to the original FCA priorities.” Id.

On the other hand, St. Bernard interpreted Hardwicke as suggesting that “if the risk-

reducing government action preceded the risk-increasing action, the risk-reducing action would

only be considered in assessing causation if the risk-increasing action was ‘contemplated’ at the

time of the risk-reducing action.” St. Bernard, 887 F.3d at 1367 n. 14 (citation omitted). There,

defendant initially constructed a navigation channel in New Orleans that “increased storm surge

along the channel.” Id. at 1357. Congress then authorized funding for a subsequent Barrier Plan

32

called the LPV project which reduced flooding. Id. at 1358. During Hurricane Katrina, levees

constructed from the LPV project breached and contributed to flooding private property. Id. Under

these circumstances, the court opined that Hardwicke “would only be relevant if the LPV project

had been constructed before MRGO.” Id.

After careful review, the Court believes that Hardwicke’s applicability does not simply

turn on the ordering of defendant’s actions. Indeed, Hardwicke involved intermediate risk-

reducing actions such as the 1944 treaty and 1952 construction of Falcon Dam. Hardwicke, 488

F.2d at 490–91. Ideker Farms also alluded to defendant’s Mainstem System, the BSNP, and its

Master Manual from 1979. Ideker Farms, 71 F.4th at 981–84. But both courts tailored their

analyses toward comparing the alleged taking (risk-increasing action) to the original project.

While Falcon Dam decreased flooding in Mission Inlet, the Hardwicke court instead focused its

attention on whether a reasonable landowner could have contemplated the construction of

diversion dams in 1932. Hardwicke, 488 F.2d at 490–91. This included reconciling its decision

with defendant’s 1950 modification to the 1932 flood control plan that changed how many

diversion dams would be constructed. 11 Similarly, the Federal Circuit in Ideker Farms did not

consider the Mainstem System, BSNP, and defendant’s 1979 version of its Manual in its analysis.

Instead, it determined whether a reasonable property owner would have anticipated that the 2004

changes were contemplated in the original 1944 FCA. Ideker Farms, 71 F.4th at 981–84. As for

St. Bernard, the Federal Circuit admitted that the parties did not raise Hardwicke as an issue. St.

Bernard, 887 F.3d at 1367 n. 14. This Court does not purport to resolve an issue in another case. 12

Therefore, the Court concludes that it must determine whether a reasonable property owner

could have foreseen that Section 7-05(b) was “within the scope of the project . . . from the time the

Government was committed to the project.” Ideker Farms, 71 F.4th at 982 (emphasis added). In

other words, could a reasonable property owner at the time of Harvey have foreseen that Section

7-05(b) “was probably within the scope of” the Buffalo Bayou and Tributaries Project in 1938.

The Court thinks not.

Under plaintiffs’ “erroneous” causation standard, defendant opined that “[t]he only

question [] is whether the allegedly risk increasing action—opening the gates during Harvey—was

contemplated at the time of the risk-reducing actions.” ECF No. 277, at 14–15. Those risk-

reducing actions included the “construction and operation of the Project, [and] the closing of the

gates as the storm approached.” Id. at 15. But as discussed in Hardwicke and Ideker Farms, the

Court should consider defendant’s decision to open the floodgates against its original project.

11

The Court in Hardwicke did mention that “there never was a time when an owner near Mission

Inlet could have directly benefited from Falcon [Dam], yet have been unaware that Anzalduas [Dam] would

arise in fulfillment of the same scheme.” While the Court mentions Falcon Dam, its conclusion

acknowledged that a reasonable landowner should have been aware of Anzalduaus Dam which arose from

the same, original flood control measure.

12

St. Bernard opined that “the risk-increasing action (MRGO) was constructed before the risk-

reducing action (LPV project), and in any event, MRGO was certainly contemplated when the LPV levees

were built.” There, the court appears to be prioritizing the ordering of defendant’s actions. If it applied

Hardwicke and Ideker Farms’ approach, it would assess whether a reasonable landowner would have

expected that the LPV levees, which allegedly caused a taking, were contemplated by the original MRGO

project.

33

Thus, defendant’s proposed risk-reducing actions do not factor into this Court’s Hardwicke

analysis. 13 Defendant also contests that plaintiffs “have not identified any physical modifications

to the existing Project, impacts from a new project, or substantive changes to the Project’s [Water

Manual].” ECF No. 452, at 5. According to defendant, Ideker Farms rested on significant,

unanticipated changes to defendant’s Master Manual and plaintiffs failed to identify an

“intervening risk-increasing project.” Id. at 3 (quotations omitted). 14 As such, since the Buffalo

Bayou and Tributaries Project (which became authorized by the Rivers and Harbors Act of June

20, 1938) only contemplated flood control “there is nothing ‘distinct’ about the history of this

Project that would support departure from the established legal standard for determining causation

in this case.” Id. at 4. The factual circumstances from another case do not change this Court’s

analysis. Ideker Farms provided a standard for lower courts to follow.

Defendant further asserted that “[t]he potential that the Corps would open the dam gates

during a large enough storm has always been contemplated since the gates were installed on all

the conduits.” ECF No. 262, at 33 (emphasis in original). “Given that timing, such releases—

under what is currently called the induced surcharge regulations of the Manual—were

contemplated from the very start.” ECF No. 277, at 16. In addition, modifications of the Corps’

Water Manual from 1962 to 2012 “merely reinforces the vast benefits Plaintiffs have already

received from the Project.” ECF No. 277, at 17. Defendant’s arguments are not persuasive. In

the aggregate, these contentions charge that the Corps had contemplated flooding akin to Section

7-05(b) since the early 1960s. See ECF No. 262, at 33; ECF No. 452, at 4. However, Hardwicke

addresses a reasonable landowner’s expectations at the time defendant committed to the project,

not a regulation enacted 24 years after. While defendant enacted a similar, yet distinct,

“Emergency regulation” in its 1962 Water Manual, the Corps’ subsequent development of its Water

Manual and provisions within its original Manual does not factor into Hardwicke here. See Ideker

Farms, 71 F.4th at 982.

Lastly, the Court concludes that a reasonable landowner could not contemplate Section 7-

05(b) was within the scope of the project. Defendant took issue with plaintiffs’ use of their

subjective knowledge and expectations to establish their case. ECF No. 277, at 16–17.

Specifically, plaintiffs’ expectations “premised on something other than the actual manuals under

which the Corps operates the dams,” and the notion that “the Corps would always keep the dam

gates closed” was objectively unreasonable. Id. at 17. To support their position, plaintiffs cited

their own testimony and representations made by the Corps about downstream flooding. ECF No.

266, at 45–46. Both viewpoints are improper. Once more, this Court must address whether a

reasonable landowner would have anticipated that Section 7-05(b) was “probably within the scope

of the project from the time the Government was committed to” the project. Ideker Farms, 71

13

Ideker Farms acknowledged that St. Bernard addressed an initial risk-increasing action followed

by a subsequent risk-reducing action. Ideker Farms, 71 F.4th at 985. It does not expound on this distinction.

Additionally, this observation did not change or alter its conclusion when comparing the 2004 Changes to

the 1944 FCA.

14

The 2004 Changes arose from discussions with the Fish and Wildlife Service and litigation in

federal district court in the 1990s and early 2000s. See Ideker Farms, 71 F.4th at 972–73. If defendant

asserted that such Changes were unexpected when compared to the 1944 FCA, the Court agrees. And while

the 2004 Changes materially departed from its 1979 predecessor, the court in Ideker Farms did not consider

this fact in its Hardwicke analysis.

34

F.4th at 982 (emphasis added). In 1938, the Buffalo Bayou and Tributaries Project focused on

providing “complete control of floods on the Buffalo Bayou watershed and the protection” of

Houston. Def. Ex. 1, at 2007. Houston sits on a historical floodplain and experienced a string of

major precipitation events. Def. Ex. 1, at 2010–11; Def. Ex. 4, at 2215; Def. Ex. 56; Def. Ex. 57.

Congress then enacted legislation to construct Addicks and Barker because of persistent flooding

that devastated Houston’s metropolitan area. In the following decades, areas upstream,

downstream, and around Addicks and Barker became densely populated with residential and

commercial properties. See Ideker Farms, 71 F.4th at 984. Since Section 7-05(b) runs “antithetical

to the original” priorities of the project, “it stands to reason that . . . property owners[] would not

have contemplated” an Induced Surcharge regulation with pre-set conditions could flood their

properties. Id. Doing so would undercut a primary goal for building Addicks and Barker—to

protect downstream properties from flooding.

Therefore, the Court concludes that the Hardwicke exception applies. The Court will not

consider defendant’s prior risk-reducing actions when addressing causation.

3. Plaintiffs Established that Their Properties Experienced More Flooding Than If

Defendant Had Kept the Gates Closed.

With the above issues resolved, the Court may now determine whether plaintiffs’ properties

experienced greater flooding due to the Induced Surcharges than if defendant had kept the gates

closed.

Both parties submitted expert testimony. Mr. Bardol measured flooding based on what

actually occurred during Harvey and a hypothetical “gates closed” scenario. PX 14, at A1791.

Mr. Bardol used the same models the Corps, the Harris County Flood Control District, and FEMA

would have used at the time of Harvey. Trial Tr., at 185:24–186:2; see PX 14, at A1791–94. His

methodology included a modified HEC-HMS hydrologic model to “evaluate and quantify

precipitation-only flows within Buffalo Bayou.” PX 14, at A1791. He also selected a related

HEC-RAS hydraulic model to predict inundation depths. Id. at A1791–92. The hydraulic model

tracked how much water would flow around the ends of the auxillary spillways and back into the

Buffalo Bayou. Trial Tr. at 187:11–188:6. Mr. Bardol’s methodology also included 2D modeling

to gain a “general understanding of downstream flow rates and inundation depths” and a 1D model

to “simulate the baseline conduit as it occurred during Hurricane Harvey and approximate the

water surface elevation along Buffalo Bayou.” PX 14, at A1792–93. In addition, he relied on

observed data provided by property owners, USGS gauge information, and other data produced by

federal agencies. Id. at A1793–94. According to Mr. Bardol, observed data helps confirm accuracy

when modeling scenarios like Harvey. Trial Tr. at 189:11–16.

On the other hand, Dr. Nairn modeled: (1) flooding during Harvey; (2) a gates closed

scenario; (3) a gates open scenario; and (4) if defendant had never built the Dams. See generally

DX 469; DX 522. Dr. Nairn employed a similar methodology to Mr. Bardol that produced similar

results. Trial Tr. at 993:25–994:3, 184:19–185:11. His report took into account rainfall, model

topography, hydrologic losses, roughness of the ground, and hydraulic structures. See DX 469, at

BAIRD0000801–13. After considering four models, Dr. Nairn selected the TELEMAC model to

simulate each scenario. Trial Tr. at 1002:16–22. Dr. Nairn chose this open-source model in large

35

part because it produced faster results, and it “can consider spatially and temporally varying

rainfall.” Id. at 1002:23–1003:18. A French company developed the TELEMAC Model and it

does not appear to be commonly used by federal agencies. Id. at 188:12–21.

In Upstream, the Court previously found Dr. Nairn’s analysis to be less persuasive than the

plaintiffs’ expert. In re Upstream, 146 Fed. Cl. at 257. There, Dr. Nairn allegedly failed to

incorporate observed data into his models, and his conclusions appeared to agree with the

plaintiffs’ expert. Id. at 257–58. Here, this Court already concluded that the proper baseline to

assess causation is to compare actual flooding from Harvey against a world in which defendant

kept the gates closed. Thus, the Court need not address Dr. Nairn’s models that predicted flooding

without Addicks and Barker and his gates open scenario. With respect to a gates closed scenario

and actual Harvey, both experts largely reached similar conclusions.

Mr. Bardol concluded that no flooding would have occurred if defendant kept the gates

closed at the following properties: (1) Milton; (2) Shipos; (3) Memorial SMC; (4) Good Resources;

(5) Aldred; (6) Hollis; (7) Silverman; (8) Godejord; (9) Cutts; and (10) Beyoglu. See ECF No.

576, at 18; PX 14, at A1819–24; Trial Tr. at 192:14–18; 193:23–194:5; 195:3–7. Dr. Nairn

attributed peak flooding from Milton to Beyoglu to the Induced Surcharges. Trial Tr. at 1087:13–

18. Except for a small discrepancy in the Aldred property, eight of the first nine properties would

not have experienced any first-floor flooding under his gates closed scenario. Id. at 1088:7–12.

Since both experts do not dispute that increased flooding occurred at those nine properties, no

further discussion is warranted. However, the Court must take a closer look at Aldred, Azar, and

Welling’s properties.

As for the Aldred property, Mr. Bardol believed that no flooding would have occurred had

the gates remained closed. Trial Tr. at 193:10–12. Dr. Nairn modeled that Aldred would have

received 0.4 feet of flooding in that same scenario. See DDX 3, at 23. Since Dr. Nairn concluded

that Aldred’s property experienced 1.5 feet of flooding during Harvey, the experts agreed that

Aldred sustained greater flooding due to the Induced Surcharges than if defendant had kept the

gates closed. Id. at 23. Therefore, plaintiffs established causation for Aldred’s property. When

reviewing the Azar property, Dr. Nairn concluded that it experienced the same amount of flooding

under either scenario due to local rainfall. Id.; Trial Tr. at 1052:19–22. On the other hand, Mr.

Bardol opined that “a substantial increase in duration of inundation (on the order of 12 days)” at

Azar’s property resulted from such flooding. PX 14, at A1825. Similarly, Dr. Nairn modeled that

Azar’s property would have flooded almost nine days less had defendant kept the gates closed.

DDX 3, at 27. In this case, since Azar’s property flooded for greater duration due to the Induced

Surcharges, causation is established.

Finally, Dr. Nairn again concluded that local rainfall caused peak inundation at the Welling

property. Trial Tr. at 1059:19–22. Mr. Bardol also determined that Welling’s property experienced

some flooding prior to the Induced Surcharges. PX 14, at A1818. He also opined that based on

“testimony and general trends of the USGS gauge,” an increase in flooding on August 29, 2017,

“could reasonably be the result of the induced surcharge releases.” PX 14, at A1826. According

to Mr. Bardol, Welling’s property experienced greater duration of flooding under a gates closed

scenario as well. Id. at A1802, A1818. During trial, defendant argued that Mr. Bardol’s conclusion

“doesn’t add up” because he found that a nearby property did not satisfy causation. Trial Tr. at

36

362:19–363:3. In response, Mr. Bardol noted that Dr. Nairn “doesn’t provide a narrative of each

these properties. He just has a table of elevations.” Trial Tr. at 194:24–25. Similar to Judge

Lettow’s conclusion, this Court finds that Mr. Bardol provided more reliable testimony than Dr.

Nairn. In re Upstream, 146 Fed. Cl. at 257. Here, Dr. Nairn did not provide results for his gates

closed scenario in his downstream report. Trial Tr. at 1064:10–16, 1066:10–25. Defendant’s

counsel apparently directed him to not include such results in his downstream report. Id.

When addressing each property, Mr. Bardol used a generally accepted methodology to

reach his conclusions unlike Dr. Nairn. Trial Tr., at 185:24–186:2. While data of flows past Piney

Point became less reliable, Mr. Bardol leaned on observed testimony when reaching his

conclusions. Id. at 353:4–19. Instead of adjusting his model, Mr. Bardol believed that “there was

good reporting at this area” to rely on observed conditions. Id. at 369:3–24. On the other hand,

Dr. Nairn relied on his modeling without further explanation. “While modeling can be a useful

tool for . . . analyzing hypothetical outcomes and at times may be able to provide more

sophisticated insights than even real-time data,” Dr. Nairn did not confront facts that could

undermine his opinions. In re Upstream, 146 Fed. Cl. at 257 (finding Dr. Nairn’s report less

persuasive for analogous reasons). For instance, Mr. Lindeburg testified that flooding began at the

Welling property on August 28, 2017. PX 14, at 1826. Mr. Lindeburg also observed that flooding

on August 29, 2017, rose to the “doorjamb” on Welling’s property. Pls.’ 266-2, at A695. None of

those facts appeared to be considered by Dr. Nairn. Thus, the Court finds that plaintiffs presented

sufficient evidence to establish causation at Welling’s property.

Therefore, the Court holds that plaintiffs established that their properties suffered greater

flooding due to defendant’s actions than if defendant had never opened the floodgates. As such,

the Court finds in favor of plaintiffs as it relates to Question 3.

D. Question 4: Whether The Government May Invoke The Necessity Doctrine As A

Defense.

Lastly, the Court rounds out the Federal Circuit’s questions by answering whether the

necessity doctrine relieves defendant from liability. Defendant asserted that Harvey’s

unprecedented and record-setting rainfall constituted an actual emergency. See generally ECF No.

577; ECF No. 581. According to defendant, Harvey tested Addicks and Barker’s storage capacity,

created unacceptable risks of dam failure, and endangered life and property. Id. In response,

plaintiffs contended that the Dams exhibited no signs of imminent failure and the Water Manual

and EAP failed to create conditions sufficient for an emergency. See generally ECF No. 576; ECF

No. 580. After trial, the Court concludes that defendant cannot protect itself by claiming necessity.

The necessity doctrine absolves the Government “of liability for the destruction of real and

personal property . . . to prevent” or “forestall grave threats to the lives and property of others.”

Lucas, 505 U.S. 1003, 1029 n. 16 (1992) (quoting Bowditch v. City of Boston, 101 U.S. 16, 18–19

(1880)). In other words, “the [necessity] defense requires both an actual emergency and an

imminent danger that is actually necessary.” TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1380

(Fed. Cir. 2013); see In re Upstream, 146 Fed. Cl. at 264 (citations and quotations omitted)

(separating the test into three elements). As prerequisites, Supreme Court precedent “has

consistently held that the doctrine of necessity may be applied only when there is an imminent

37

danger and an actual emergency.” TrinCo Inv. Co. v. United States, 722 F.3d at 1378 (Fed. Cir.

2013) (emphasis added). Those requirements “are specific, but somewhat subjective in their

definition.” TrinCo Inv. Co. v. United States, 130 Fed. Cl. 592, 599 (2017); see id at 601 (“If those

two prerequisites are satisfied, the court turns to the “actually necessary” component of the

necessity defense.”). Whether government action was actually necessary “must be measured at

the time of the actual emergency and imminent danger, not in hindsight.” Id. at 601 (emphasis in

original).

Necessity arises “in times of imminent peril—such as when fire threatened a whole

community,” or during wartime. United States v. Caltex (Philippines), Inc., 334 U.S. 149, 154

(1952) (destroying oil depots in the face of an imminent Japanese bombardment during World War

II); Bowditch, 101 U.S. at 18–19 (burning houses to create firebreaks during a city-wide fire).

However, courts should refrain from expanding the scope of necessity for “any of [defendant’s]

actions so long as they are part of an effort” to protect the general public. TrinCo, 722 F.3d at 1378

(declining to grant summary judgment when defendant burned portions of plaintiff’s property in

anticipation of a fire spreading). Indeed, “[t]he terse language of the Fifth Amendment is no

comprehensive promise that the United States will make whole all who suffer from every ravage

and burden” of government action. Caltex, 334 U.S. at 155.

The Court in Upstream rejected defendant’s necessity defense “when the flooding that

occurred was the direct result of calculated planning.” In re Upstream, 146 Fed. Cl. at 264.

According to the Court, emergency “refers to a state of things unexpectedly arising.” Id. (emphasis

in original). Since defendant knew that a storm like Harvey would occur and that flooding would

impact upstream properties, the “invasion alleged here was by no means unexpected.” Id. As

such, “defendant cannot now claim that this harm was unavoidable when it planned for years to

impound floodwaters onto plaintiffs’ properties.” Id. Ablan further held that the flooding was not

“in response to an unforeseeable exigency” or protected a “landowner from activities akin to public

nuisances.” Ablan, 162 F.4th at 1378. Instead, defendant “allocated the location of water between

private citizens. In doing so, it aided some property owners (downstream residents) and harmed

others (upstream residents).” Id.

Defendant devoted much of its post-trial briefing to address the reasonableness of its

actions. See ECF No. 577, at 20–30; ECF No. 581, at 20–27. Plaintiffs conceded that they “have

never taken the position that the Government’s actions were unreasonable.” ECF No. 580, at 5.

Thus, the Court need not analyze whether the Induced Surcharges were “actually necessary.” Id.

But defendant must first establish that an actual emergency and imminent danger existed for

necessity to apply. See TrinCo, 722 F.3d at 1380. In doing so, the Court may evaluate whether

those “prerequisites” existed with hindsight. TrinCo, 130 Fed. Cl. at 601. The Court now

concludes that no imminent danger or actual emergency occurred during Harvey. 15

15

Plaintiffs asserted that necessity becomes relevant when defendant must make “last-minute

decisions to sacrifice property that is likely to be destroyed anyway.” ECF No. 580, at 6. Defendant averred

that this “bizarre” logic would make any federally planned response to life-or-death events a non-

emergency. ECF No. 581, at 7. The Court finds plaintiffs’ characterization unworkable, but defendant’s

concerns too extreme. For instance, defendant in Caltex deliberated for days before it destroyed oil facilities

in the Philippines. See Caltex, 344 U.S. at 154–55. This “planned” measure arose from the unexpected

attack on Pearl Harbor, which initiated a string of military campaigns across Asia. Id. In that context,

38

To begin, defendant stipulated that it followed the Water Manual, which included Section

7-05(b). ECF No. 548, at ¶ 80; see also Trial Tr. at 148:5–149:5, 661:10–663:2; 828:17–829:12;

JX 53 at USACE016691. The Corp enacted Section 7-05(b) in 2012, approximately five years

before Harvey. ECF No. 548, at ¶ 63. In application, when pool levels exceed 101 feet NAVD

1988 at Addicks and 95.7 feet NAVD 1988 at Barker, “reservoir releases will be made in

accordance with the induced surcharges regulation schedules.” see ECF No. 548, at ¶¶ 68, 80

(emphasis added). According to the Corps, Induced Surcharges are used to “restore storage

capacity in the reservoirs” and to “reduce risk of failure to the structures.” Trial Tr. at 867:20–22.

However, those releases occur at elevations below the spillway design flood, the maximum amount

each Reservoir was designed to handle. Similar to Upstream, defendant’s “calculated planning”

to flood downstream properties does not qualify as an emergency. In re Upstream, 146 Fed. Cl.

at 264. In effect, defendant allocated flooding between upstream and downstream residents, which

benefitted some property owners to the detriment of others. See Ablan, 162 F.4th at 1378. Here,

defendant cannot retroactively claim necessity “when it planned for years to impound floodwaters

onto plaintiffs’ properties.” In re Upstream, 146 Fed. Cl. at 264. Absent proof that the Dams were

failing, the Induced Surcharges acted more akin to “precautionary steps that [were] triggered . . .

before any genuine emergency could arise.” ECF No. 576, at 4 (emphasis added) (citing Trial Tr.

at 867:18–22; 149:20–24).

Additionally, defendant argues that Induced Surcharges occur under emergency situations

which makes Section 7-05(b) not an “ordinary operating measure.” ECF No. 577, at 7 n.7; see

ECF No. 576, at 4 (conceding defendant’s point but denying that Section 7-05(b) qualifies as an

emergency measure). Indeed, defendant flooded downstream properties by using Section 7-05(b)

for the first time in Addicks and Barker’s history. Trial Tr. at 629:16-19, 171:20-172:5. In this

context, defendant’s actions do not seem “ordinary” or “normal.” ECF No. 577, at 7 n. 7. At the

same time, Mr. Long previously testified that the Water Manual only provided guidance on

standard operations. Trial Tr. at 948:8–12. Regardless, the Court must examine the conditions at

Addicks and Barker, not labels used by the parties. TrinCo, 130 Fed. Cl. at 599. Using arbitrary

and pre-set definitions of what or may not constitute an emergency would impermissibly expand

the scope of necessity to include actions in support of a general effort to protect the public. See

TrinCo, 722 F.3d at 1378. In this case, if the Dams faced no threat of failure, it appears less likely

that an actual emergency occurred. Without more, defendant’s use of a regulation that ordered

automatic flooding fails to establish an actual emergency. ECF No. 548, at ¶¶ 68, 80.

Much of defendant’s trial testimony addressed the harrowing accounts of Harvey. Corps

personnel uniformly believed that conditions amounted to an emergency. See Trial Tr. at 535:22–

25, 712:1–2, 870:17–21, 881:20–882:4, 557:16–17, 558:5–11. Colonel Zetterstrom testified that

Harvey “was the most stressful and traumatic experience of my life.” Id. at 854:19–20. Mr.

Thomas said he never had experienced “anything like that before. It was exceptional.” Id. at

869:21–970:21. During Harvey, defendant turned the power off at Addicks to prevent potential

electrocution. Id. at 531:20–532:11, 626:8–627:2. Personnel stayed on site for weeks, with some

sleeping on air mattresses or in their cars and one member worked 20 hours a day. Id. at 160:18–

necessity may be applicable to a coordinated response from a non “last-minute” threat. Id. Yet, whether an

imminent danger and actual emergency occurred is a subjective, case-specific inquiry which the Court must

undertake. TrinCo, 130 Fed. Cl. at 599.

39

22, 523:20–25, 865:9–15. Field observers lost their personal vehicles and some had to be rescued

by other team members. Id. at 525:14–25. Afterwards, the National Oceanic and Atmospheric

Administration called Harvey the largest rain event in United States history. Id. at 868:17–18; JX

54, at 2–6.

As for the Dams themselves, defendant ranked Addicks and Barker as two of the highest

risk projects in its inventory. JX 3, at USACE019768, USACE019772–73. It further represented

that Harvey was the first time impounded flood waters exceeded government land and flowed

around the ends of each Dam. Trial Tr. at 254:1–3, 266:23–267:1. Recorded inflows almost

doubled the previous pools of record at both Dams. Id. at 873:6–8. Defendant estimated that

potential dam failure placed 600,000 lives at stake and around $21 billion in projected damages.

Id. at 331:2–333:3. Furthermore, both Dams were undergoing construction during Harvey. Corps

members installed a cofferdam at both structures as it renovated the primary outlet works. Id. at

526:17–25, 617:9–14. As water pooled in the Reservoirs, the primary outlets became fully

submerged and made strange noises at which “the Corps didn’t really know at the time whether

they would be safe.” Id. at 562:1–7. The Corps also feared that auxillary spillways would fail if

water levels exceeded 112 feet at Addicks and lead to uncontrolled releases. Id. at 538:13–539:2.

The Court does not intend to diminish or disrespect defendant’s efforts. Corps members

exhibited a high degree of professionalism amid Harvey’s circumstances. Nonetheless, defendant

failed to establish that conditions threatened the integrity of the Dams to create an actual

emergency. See id. at 620:22–621:8. As defined in Upstream, “emergency” refers to a state of

things unexpectedly arising.” In re Upstream, 143 Fed. Cl. at 564 (emphasis in original). Nothing

surprising occurred from the Induced Surcharges. The Corps had forecasted potential flooding

through its flowage maps. JX3, at USACE019785–90. They also planned and monitored

conditions for days using CWMS and invoked Section 7-05(b) after conditions were met. See

generally DX213. Unlike Caltex, in which defendant deliberated for days before destroying oil

depots in Asia as the Japanese armed forces advanced, defendant acted in accordance with pre-set

obligations it enacted years in advance. See Caltex, 344 U.S. at 154–55. Furthermore, defendant

conceded that no imminent danger existed at the Reservoirs. Colonel Zetterstrom testified that the

Corps could not wait to open the floodgates because “[o]nce dam failure is imminent, it’s almost

impossible to stop that sequence and ultimate failure.” Trial Tr. at 890:9–16. Again, plaintiffs do

not question defendant’s decision to open the floodgates. But invoking the Induced Surcharges

before imminent failure prevents a finding that an imminent danger existed. TrinCo, 130 Fed. Cl.

at 599. And as one of two prerequisites to necessity, defendant’s representation cuts against a

finding that it can seek protection under the doctrine. Id.

The Corps further tells on itself. Following Harvey, defendant published a Report of

Performance which concluded that the “embankment, outlet structures, and emergency spillways

functioned as intended. . . . There were no observations of seepage, or critical distress areas located

on the dams.” JX 53 at USACE016689. Overall, Addicks and Barker performed “as expected

with no significant problems during this pool of record event.” Id. (emphasis added).

Additionally, the “full capacity of the emergency spillway [at Addicks] was not reached with only

the end scour pad going underwater . . .” Id. at USACE016697. Defendant further wrote that on-

site conditions would not impact future performance of the Dams. Id. at USACE016691.

Defendant’s report incorporated its final observations and “what the Corps knew and believed

40

during these events.” ECF No. 576, at 8. 16 Senior Corps officials also testified that no structural

damage or overtopping occurred as well. ECF 548, at ¶ 100.

Despite pool levels at Addicks and Barker approaching their spillway design floods, risk

of failure remained minimal. Approximately 27 to over 35 inches of rain fell around the Reservoirs

and in the Buffalo Bayou region over four days. ECF No. 548, at ¶ 99. Addicks recorded its

highest pool level at 109.09 feet, and the most extreme forecast called for a 112-foot pool elevation.

Id. at ¶ 85. At peak elevation, the Dam held a flood pool volume of 217,726 acre feet of water.

Id. at ¶ 86. Still, Addicks did not meet or exceed its spillway design flood of 115 feet. Trial Tr.

at 73:25–75:25. Barker reported a peak flow of 101.6 feet. ECF No. 548, at ¶ 87. At peak

elevation, Barker held 170,941 acre-feet of water. Id. at ¶ 89. Barker also did not meet or exceed

its spillway design flood of 108 feet either. JX 53, at USACE019885. Defendant calculated that

the spillway design flood created a 14 percent risk that the auxillary floodways would fail at

Addicks. Trial Tr. at 572:11–18. However, the risk of failure at pool elevations below 111.6 feet

is zero. JX 42, at USACE066222. Even elevations slightly higher posed a risk of less than one in

a million, which conforms to defendant’s policy for an acceptable amount of risk. 17 ECF No. 580,

at 10 (citing JX42, at , at USACE066222); see also Trial Tr. at 573:12–17 (defining Corps’ policy

for risk as one in ten-thousand). Still, defendant made the “necessary” releases “because the

Manual dictated it to be done.” Trial Tr. at 974:23–25.

At Addicks, Mr. Maglio also observed minimal shallow flows at its north end that was

“barely moving” on August 29, 2017. Id. at 139:2–141:13–144:6, JX 109–10. Those flows

“[s]pread out for a distance from the end of the dam, just due to the flat topography of the land.”

Trial Tr. at 972:17–21. But aside from the north auxillary spillway at Addicks, its south spillway

“and both [spillways] at Barker [] did not see any flows.” JX 53, at USACE016697; Trial Tr. at

141:13–144:6. In response, defendant cited Mr. Bardol’s report that “upstream properties would

have experienced deeper, longer, and more extensive flooding if the Corps had disregarded the

[Water Manual] and left the gates closed.” ECF No. 581, at 22; Trial Tr. at 1038:18–1040:2;

381:17–383:2. Under this scenario, Mr. Bardol estimated that 5,700 cfs of water would cause

flooding to other downstream properties to the east and southeast of Addicks. See DDX 3, at 21.

The Court fails to see how this argument relates to plaintiffs’ properties. Such allocation of

floodwater between different upstream, downstream, and adjacent properties embodies the policy

behind takings liability: to prevent some property owners from bearing public burdens alone. See

Armstrong, 364 U.S. at 49.

Furthermore, the EAP failed to trigger an emergency. That document serves two purposes:

(1) “to identify emergencies that could threaten dam failure[;]” and (2) “to identify emergencies

that could arise from normal project operations such as reservoir pools” exceeding government

owned land and uncontrolled spillway releases. Trial Tr. at 581:6–13; JX 3, at USACE019764.

Emergency procedures become “automatically effective when actual or predicted water surface

elevations within the reservoirs reach designated limits or when [defendant] declares an emergency

condition.” JX 3, at USACE019765. Here, the parties already stipulated that defendant flooded

16

Colonel Zetterstrom admitted that the word “emergency” never appeared in the report. Trial Tr. at

419:10–420:12.

17

According to Mr. Bardol, each Dam has “been analyzed for much larger storms than Hurricane

Harvey to be able to operate safely.” Trial Tr. at 68:14–17.

41

plaintiffs’ properties under the Water Manual, not the EAP. ECF No. 548, at ¶ 80. And the Court

remains unconvinced that a document itself can satisfy whether an actual emergency occurred.

Still, the Court will address defendant’s arguments.

Defendant first contended that Colonel Zetterstrom’s declaration of emergency on August

22, 2017, obviated the need for a formal declaration under the EAP. See JX 1; Trial Tr. at 599:20–

600:23. Substantively, the declaration allowed defendant to initiate emergency administrative and

personnel services. For instance, defendant activated ABECT to regularly update local and county

officials. ECF No. 577, at 12. The EAP also allowed defendant to deploy observation teams to

monitor and report on dam integrity. Id. at 14. However, none of those measures addressed

whether an actual emergency occurred at Addicks and Barker. Instead, they serve as ancillary

measures and responses to a general emergency. While defendant was concerned about the

performance of Addicks and Barker, the Corps is always assessing risk and failed to answer

whether they faced an actual emergency of failure. The parties also disagreed on how to reconcile

the Water Manual with the EAP. Colonel Zetterstrom believed that the Water Manual “is a part

of the [EAP] and subordinate to it. It’s a subset of the [EAP].” Trial Tr. at 878:12–14. According

to Mr. Long, the EAP and Water Manual worked simultaneously during Harvey. Id. at 969:20–

25. But once more, “everything that the Corps did during the reservoir releases was covered by

the Water Control Manual.” Id. at 940:15–21, 949:7–22, 948:8–949:5.

Next, the EAP’s terms failed to establish that Harvey presented an actual emergency to the

Dams. “The EAP consists of advance preparation, two phases of extended watches for detection,

and 3 classifications of emergency levels for evaluation and emergency response actions.” JX 3

at USACE019774. In particular, Extended Watch 2 becomes active when pool elevation reaches

97.5 feet at Addicks and 93.6 feet at Barker. Id. Emergency Levels 1 and 2 occur following an

“Unusual Event or Developing Condition” or “Expected Flooding from Uncontrolled/Controlled

Releases or Potential dam Failure Situation.” Id. at USACE019827–28. Emergency Level 2 exists

when “no immediate threat of dam failure exists.” Id. at USACE019827 (emphasis added). Only

Emergency Level 3 contemplates “an extremely urgent situation where conditions are such that

failure . . . is judged to be imminent or in progress.” Id. at USACE019828 (emphasis added).

Plaintiff argues that defendant did not exceed Extended Watch 2 during Harvey. ECF No. 580, at

13. In opposition, defendant contended that it reached Emergency Level 2. ECF No. 577, at 10–

14. 18 Either way, both scenarios do not pass muster. Emergency Level 2 plainly states that “there

is not an immediate threat of dam failure.” JX 3, at USACE019827–28. If defendant acted under

Emergency Level 2, they primarily used the status to activate administrative services. ECF No.

577, at 12–14. By definition, defendant conceded that the Dams did not face an imminent danger.

JX 3, at USACE019827. On the flip side, if defendant only reached Extended Watch 2, their

actions do not support a finding that an emergency existed. In addition, the Corps did not release

impounded water through the EAP’s release schedules either. Id. at USACE 019826–26.

Therefore, the EAP did not create an actual emergency or imminent danger in this scenario.

Finally, defendant has been under a mandate since 1966 to acquire all lands “below the

maximum flowage line of the reservoir . . . and to permit induced surcharge operation.” See JX

18. It made no acquisitions of downstream properties. Trial Tr. at 686:5–692:12. As of 2009,

18

In his report, Mr. Thomas wrote that conditions satisfied Extended Watch 2 but did not report that

conditions surpassed any of the Emergency Levels. Trial Tr. at 412:7–17.

42

defendant concluded that the “available hydrologic models indicate that the limit of the

[government-owned land] would be exceeded in extreme events.” PX333 at USACE464090.

During Harvey, Mr. Thomas requested “federal funding to buy all of the property in the A&B

reservoirs and in the surcharge corridor.” PX 131, at USACE803821. Under these circumstances,

defendant stood idle for 51 years as Buffalo Bayou developed and became densely populated. But

now it claims necessity when it could have resolved the problem decades ago. In this case, where

defendant is culpable for creating conditions it believes constituted an emergency, “the

government immunity from liability under the necessity doctrine would stretch the doctrine too

far.” In re Upstream, 146 Fed. Cl. at 264 (alterations omitted).

Therefore, the Court concludes that the necessity defense cannot absolve defendant of

liability, and the Court now finds in favor of plaintiffs.

E. Additional Question: Whether The Flooding Passes The Takings Versus Tort Test

Under Ridge Line.

The parties also briefed whether the Induced Surcharges satisfied the tort versus taking

distinction outlined in Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003); ECF No.

262, at 52–56; ECF No. 266, at 26–32. To establish a taking under that test, a plaintiff must show:

(1) that the government intended to invade a protected property interest “or the asserted invasion

is the direct, natural, or probable result of an authorized activity and not the incidental or

consequential injury inflicted by the action;” and (2) the Court must consider “the nature and

magnitude of the government action.” Ridge Line, 346 F.3d at 1355–56. A taking must also

“appropriate a benefit to the government at the expense of the property owner, or at least preempt

the owners right to enjoy his property for an extended period of time.” Id. at 1356.

Defendant argued that plaintiffs’ temporary and permanent takings claims must both pass

Ridge Line. ECF No. 262, at 51. Plaintiffs believe that Arkansas Game I’s test subsumes Ridge

Line. ECF No. 266, at 26. Recent Supreme Court language suggests this outcome. 19 But in his

2019 opinion, Judge Lettow framed his conclusions around Ridge Line’s tort versus taking test.

See generally In re Upstream, 146 Fed. Cl. 219. To date, the Federal Circuit has not held that

Ridge Line cannot apply toward temporary takings. Since the Court believes plaintiffs satisfied

Ridge Line’s test under both scenarios, it will refrain from answering that question.

According to defendant, Ridge Line requires a showing that the Induced Surcharges were

“intended, or should be deemed intended, because it was the direct, natural, or probable result of

an authorized activity and not incidental or consequential injury inflicted by the action.” ECF No.

62, at 52 (emphasis added). Defendant misreads the text. Ridge Line expressly states that a

plaintiff may establish a taking under either option. See Ridge Li

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