Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 1 of 20

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

In re UPSTREAM ADDICKS AND BARKER Sub-Master Docket No. 17-9001L

(TEXAS) FLOOD-CONTROL RESERVOIRS
Judge Charles F. Lettow

THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES

TEST PROPERTY PLAINTIFFS’ CROSS-BRIEF AND RESPONSE ON

TAKING DATE AND EASEMENT SCOPE

Daniel H. Charest Charles Irvine

E. Lawrence Vincent IRVINE & CONNER PLLC
BURNS CHAREST LLP 4709 Austin Street
900 Jackson Street, Suite 500 Houston, Texas 77004
Dallas, Texas 75202 713-533-1704
469-904-4550 charles@irvineconner.com
dcharest@burnscharest.com Co-Lead Counsel, Upstream Pre-Trial
lvincent@burnscharest.com Discovery and Dispositive Motions
Co-Lead Counsel, Upstream Pre-Trial
Discovery and Dispositive Motions
Co-Lead Counsel for Upstream Plaintiffs
as to Jurisdictional Discovery, Motion to
Dismiss, and Scheduling

Edwin Armistead “Armi” Easterby Vuk S. Vujasinovic

WILLIAMS HART BOUNDAS EASTERBY, LLP VB ATTORNEYS, PLLC
8441 Gulf Freeway, Suite 600 6363 Woodway Dr., Suite 400
Houston, Texas 77017 Houston, Texas 77057
713-230-2200 713-224-7800
aeasterby@whlaw.com vuk@vbattorneys.com
Co-Lead Counsel, Upstream Pre-Trial Of Counsel for Individual Upstream Plaintiffs as
Discovery and Dispositive Motions to Jurisdictional Discovery, Motion to Dismiss, and
Scheduling

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TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................... 1
ARGUMENT ..................................................................................................................................................... 2
I. THE DATE OF TAKE IS THE DATE OF MAXIMUM RESERVOIR
POOL FLOODING DURING HARVEY: AUGUST 30, 2017. .............................................. 2
II. THE EASEMENT SHOULD BE NARROWLY DRAWN BOTH IN ITS
PHYSICAL DIMENSIONS AND THE RIGHTS APPROPRIATED. .................................. 4
A. The Reference Frame: Assessment of Just Compensation on this
Record. ..................................................................................................................................... 5
B. The Current Task: Delineation of the Permanent Flowage Easement. ......................... 7
1. The Physical Extent of the Taking: The Property Inundated
on August 30, 2017 Defined in Terms of Elevation. .......................................... 8
2. The Scope of the Taking: To Store Impounded Rainfall
Runoff. ...................................................................................................................... 10
3. Plaintiffs’ Requested Formulations of the Permanent Flowage
Easement. ................................................................................................................. 13
CONCLUSION ............................................................................................................................................... 14
CERTIFICATE OF SERVICE .................................................................................................................... 15

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TABLE OF AUTHORITIES
Cases

Bachtel v. Murdoch,
11 F.3d 1069 (Fed. Cir. 1993) .................................................................................................................... 12
Barnes v. United States,
538 F.2d 865 (Ct. Cl. 1976) .......................................................................................................................... 3
Berman v. Parker,
348 U.S. 26 (1954) ......................................................................................................................................... 2
Biloxi Marsh Lands Corp. v. United States,
111 Fed. Cl. 385 (2013)............................................................................................................................... 10
Bistine v. United States,
226 Ct. Cl. 282 (1981) ................................................................................................................................. 10
Evans v. Tenn. Valley Auth.,
922 F.2d 841 (6th Cir. 1991) ...................................................................................................................... 11
Hardy v. United States,
138 Fed. Cl. 344 (2018)................................................................................................................................. 5
Hendricks v. United States,
14 Cl. Ct. 143 (1987) ................................................................................................................................... 13
In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs,
146 Fed. Cl. 219 (2019)......................................................................................................................... passim
Labruzzo v. United States,
144 Fed. Cl. 456 (2019)........................................................................................................................... 8, 10
Liebman v. United States,
139 Fed. Cl. 653 (2018)................................................................................................................................. 6
Macy Elevator, Inc. v. United States,
97 Fed. Cl. 708 (2011) ................................................................................................................................. 10
McCann Holdings, Ltd. v. United States,
111 Fed. Cl. 608 (2013)............................................................................................................................. 4, 6
Monongahela Navigation Co. v. United States,
148 U.S. 312 (1893) ....................................................................................................................................... 5
Narramore v. United States,
960 F.2d 1048 (Fed. Cir. 1992) .................................................................................................................... 2
National Food & Bev. Co. v. United States,
105 Fed. Cl. 679 (2012).......................................................................................................................2, 3, 13
National Food & Beverage Co. v. United States,
96 Fed. Cl. 258 (2010) ................................................................................................................................... 8
Otay Mesa Prop., L.P. v. United States,
670 F.3d 1358 (Fed. Cir. 2012) .................................................................................................................... 6

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Sears v. United States,

132 Fed. Cl. 6 (2017) ..................................................................................................................................... 7
Technical College of the Low Country v. United States,
145 Fed. Cl. 408 (2019)................................................................................................................................. 7
United States v. 320.0 Acres of Land,
605 F.2d 762 (5th Cir. 1979) ........................................................................................................................ 6
United States v. Causby,
328 U.S. 256 (1946) ..................................................................................................................................... 11
United States v. Clarke,
445 U.S. 253 (1980) ....................................................................................................................................... 3
United States v. Commodities Trading Corp.,
339 U.S. 121 (1950) ....................................................................................................................................... 6
United States v. Cress,
243 U.S. 316 (1917) ..................................................................................................................................... 11
United States v. Dickinson,
331 U.S. 745 (1947) ....................................................................................................................................... 5
United States v. Dow,
357 U.S. 17 (1958) ................................................................................................................................... 3, 10
United States v. Fuller,
409 U.S. 488 (1973) ....................................................................................................................................... 6
United States v. Reynolds,
397 U.S. 14 (1970) ......................................................................................................................................... 5
United States v. Virginia Elec. & Power Co.,
365 U.S. 624 (1961) ..................................................................................................................................... 13
Whitney Benefits, Inc. v. United States,
18 Cl. Ct. 394 (1989) ..................................................................................................................................... 3
Whitney Benefits, Inc. v. United States,
926 F.2d 1169 (Fed. Cir. 1991) .................................................................................................................... 3

Statutes

40 U.S.C. § 3114(a)............................................................................................................................................. 2
43 C.F.R. § 8.1(b) ............................................................................................................................................... 7

Other Authorities

Appraisal Institute, REAL PROPERTY VALUATION IN CONDEMNATION (2018) ................................ 7, 10

Lloyd Boettcher, Appraisal of a Flowage Easement, The Appraisal Journal (January 1957) ........................ 7

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Department of the Army, U.S. Army Corps of Engineers, ER 405-1-04 (January 29, 2016) .......... 7, 13
Interagency Land Acquisition Conference, UNIFORM APPRAISAL STANDARDS FOR FEDERAL
LAND ACQUISITIONS (2016) ........................................................................................................................ 7
Albert Johnson, Flowage Easement Market Analysis, The Appraisal Journal (January 1967) ..................... 7
Walstein Smith, Some Enchanting Easements (And Some That Are Not), The Appraisal Journal
(October 1980) ......................................................................................................................................... 8, 11
Joseph Strain, Appraisal of Flowage Easements—Another Look, The Appraisal Journal (October
1981) ................................................................................................................................................... 7, 11, 13

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INTRODUCTION

On December 17, 2019, this Court ruled that the United States had taken a permanent flowage

easement over the properties of thirteen Upstream Test Property Liability Plaintiffs. In re Upstream

Addicks and Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019) (the “Upstream Liability

Order”) (Dkt. #260). After identifying six Upstream Test Property Damages Plaintiffs (Dkt. #268),

the Court established a schedule that called for briefing on the date of taking and the scope of the

easement (Dkt. #273). The government filed its brief (Dkt. #276), but fundamentally misstates the

law on date of taking and urges an easement that both exceeds the Harvey event and fails to account

for the impact on the Upstream Test Property Damages Plaintiffs’ ownership rights.

The date of take was the date of the maximum government-induced reservoir pool flooding

during the Harvey event: August 30, 2017.1 Controlling authority leaves no other possibility. And while

the government suggests the date of take should be 70 years ago when the Addicks and Barker Dams

were built (see Dkt. #276, at 4-5), it offers no authority for that novel—and wrong—proposition. The

law in this area is clear.

As to the scope of the easement, it should not exceed the physical scope of the reservoir pool

flooding during the Harvey event. The law confirms this approach. As to the rights of entry and,

correspondingly, the ownership rights appropriated from the Upstream Test Property Damages

Plaintiffs, the easement should be drawn and defined as minimally as possible to preserve and maintain

the rights held by the Upstream Test Property Damages Plaintiffs. The government contends that,

notwithstanding the easement, the Upstream Test Property Damages Plaintiffs can “continue their

lawful use of those properties, subject to the risk of occasional flooding from the United States’

operation of the Addicks and Barker dams.” (Dkt. #276, at 4.) Upstream Test Property Damages

Plaintiffs contend that, if taken as true, that position would afford the government extremely limited

1
JX 143, USGS Gage 8073000 (Addicks); JX 144, USGS Gage 8072500 (Barker).

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rights with respect to the easement. And the Upstream Test Property Damages Plaintiffs advocate for

such a ruling on this unique record.

ARGUMENT

In the Upstream Liability Order, the Court determined that “[t]he government, through its

construction, maintenance, and operation of the Addicks and Barker Dams in the past, present, and

future, has taken a permanent flowage easement on plaintiffs’ properties.” 146 Fed. Cl. at 250.

However, because this is an inverse condemnation action, the government never filed a declaration of

taking to put forth a definitive description (and plan) of the land taken along with “a statement of the

estate or interest in the land taken for public use.” 40 U.S.C. § 3114(a); see also Narramore v. United States,

960 F.2d 1048, 1050 (Fed. Cir. 1992) (citing Berman v. Parker, 348 U.S. 26, 32 (1954), for the proposition

that, “[w]hen the Federal Government initiates eminent domain proceedings, federal courts lack

authority to expand or contract the property or estate described in the condemnation filing”).

The task of delineating the physical and legal scope of the easement taken by the United States

in this case now falls to this Court. To that end, the Court invited briefing on the scope of the easement

and the timing of the take. The government briefed its position and, in that brief, introduced other

elements which fall outside the scope of the easement briefing. The Upstream Test Property Damages

Plaintiffs address the issues requested by the Court and, only in passing to avoid confusion, take issue

with the other points the government raised. Fundamentally, the law drives the date of the take, which

is the date of the maximum reservoir pool flooding during the Harvey event. Next, the Court should

exercise its discretion as to the scope of the easement in order to minimize the impact on the Upstream

Test Property Damages Plaintiffs’ ownership rights.

I. THE DATE OF TAKE IS THE DATE OF MAXIMUM RESERVOIR POOL

FLOODING DURING HARVEY: AUGUST 30, 2017.

Just compensation is measured as of the date of taking. National Food & Bev. Co. v. United States,

105 Fed. Cl. 679, 695 (2012) (“The date of taking will determine the date of valuation of the property

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and the interest due to National Foods.”) (“National Food II”); Whitney Benefits, Inc. v. United States, 18

Cl. Ct. 394, 406 (1989), aff’d, 926 F.2d 1169 (Fed. Cir. 1991) (“Having determined that a taking has

occurred, the court must find the value for which plaintiff is to be compensated. The first inquiry

necessarily involves establishing the date on which the taking took place.”).

The government contends that, “[u]nder the fairest and most faithful reading of the Court’s

Liability Opinion, the date of taking is the construction of the dams in the 1940s.” (Dkt. #276, at 5.)

The government cites no authority for the fanciful suggestion that the mere construction of the dams

created a flowage easement behind them. And none exits. Indeed, the Upstream Liability Order

expressly disclaims that reading: “But the taking at issue here does not begin and end with the

construction of Addicks and Barker.” 146 Fed. Cl. at 256.

Contrary to the government’s erroneous position, binding authority dictates that the date of

the government’s physical invasion determines the date of the take. “When a taking occurs by physical

invasion . . . the usual rule is that the time of the invasion constitutes the act of taking, and it is that

event ‘which gives rise to the claim for compensation and fixes the date as of which the land is to be

valued’ . . . .” United States v. Clarke, 445 U.S. 253, 258 (1980) (quoting United States v. Dow, 357 U.S. 17,

22 (1958)); National Food II, 105 Fed. Cl. at 695 (“A physical taking begins when the government’s

action ‘interferes with or substantially disturbs the owner’s use and enjoyment of the property.’

Typically this is the date when the government actually takes possession of the land or other property.”

(citation omitted)); Barnes v. United States, 538 F.2d 865, 873 (Ct. Cl. 1976) (“We have heretofore said

that the date of taking is the date the Government enters into possession of the interest seized.”).

As the Court found in the Upstream Liability Order, the physical invasion of private property

began on August 28, 2017, and increased incrementally until “[t]he flood pools in the reservoirs crested

at a record pool elevation of 101.6 feet in Barker and 109.1 feet in Addicks on August 30, 2017.” 146

Fed. Cl. at 241. On this record, the date of taking for purposes of assessing just compensation should

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be August 30, 2017—the date on which the Government took maximum physical possession of each

Upstream Test Property Damages Plaintiffs’ property through inundation of the areas behind the

Addicks and Barker dams at 109.1 feet and 101.6 feet, respectively. The Court should reject the

government’s suggestion to the contrary as unsupported in either law or fact.

II. THE EASEMENT SHOULD BE NARROWLY DRAWN BOTH IN ITS

PHYSICAL DIMENSIONS AND THE RIGHTS APPROPRIATED.

In assessing the contours of the permanent flowage easement taken in this case, the Court

should employ its significant discretion to fashion a remedy that will put the property owners in as

equitable a position pecuniarily as possible, given some of their property rights have been permanently

taken—after also temporarily flooding them—in an attempt to render them “whole.” McCann Holdings,

Ltd. v. United States, 111 Fed. Cl. 608, 613 (2013) (citations omitted). That remedy should (a) impose

the permanent flowage easement only over that portion of the land owned by each Plaintiff which

was actually inundated by the maximum flood pools of the Addicks and Barker reservoirs on August

30, 2017, and (b) identify the minimum amount of property rights the government needs to

accomplish the avowed public purpose of its flood-control Project—the occasional right to store

impounded rainfall runoff on Plaintiffs’ properties as dictated by the configuration and operation of

these two dams—while preserving each Upstream property owners’ right to seek compensation for

future losses to fixtures, improvements, and personal property damaged by the government’s use of

the easement, as well as those losses incurred if the government exceeds the easement. And, finally,

as discussed below, the remedy and monetary compensation should recognize that the Upstream Test

Property Damages Plaintiffs’ properties (and the entire Upstream area) are already developed and in

residential and commercial use, which makes the appropriation of a permanent flowage easement on

such developed land an extraordinary burden on these properties, especially when the government

elected not to take such an easement through normal condemnation procedures in order to save itself

money.

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A. The Reference Frame: Assessment of Just Compensation on this Record.

“The Fifth Amendment provides that private property shall not be taken for public use

without just compensation. And ‘just compensation’ means the full monetary equivalent of the

property taken. The owner is to be put in the same position monetarily as he would have occupied if

his property had not been taken.” United States v. Reynolds, 397 U.S. 14, 15-16 (1970) (citations omitted);

see also Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 (1893) (“[I]n any society the fullness

and sufficiency of the securities which surround the individual in the use and enjoyment of his

property constitute one of the most certain tests of the character and value of the government. . . .

[The constitutional requirement of just compensation] prevents the public from loading upon one

individual more than his just share of the burdens of government, and says that when he surrenders

to the public something more and different from that which is exacted from other members of the

public, a full and just equivalent shall be returned to him.”).

This determination of just compensation arises in an inverse condemnation action, which this

Court has noted is “markedly different from eminent domain takings, i.e., direct condemnations.”

Hardy v. United States, 138 Fed. Cl. 344, 350 (2018). As the Supreme Court stated in a similar case in

which private property was flooded and eroded following the government’s decision not to condemn

sufficient property for a flood control dam project, “[w]hen dealing with a problem which arises under

such diverse circumstances procedural rigidities should be avoided.” United States v. Dickinson, 331 U.S.

745, 749 (1947).

The significant differences between an eminent domain and an inverse condemnation action

are singularly important on this record because the Upstream Test Property Damages Plaintiffs did

not know their properties were located within a government flood control reservoir and therefore

subject to attendant government-induced flooding. 146 Fed. Cl. at 262. Believing their properties were

ordinary suburban residences, the Upstream Test Property Damages Plaintiffs have used and occupied

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their properties in ways that never would have been permitted had the government acquired sufficient

real estate to store the rainfall runoff retained by the Project as designed, constructed, modified, used

and operated. The government, on the other hand, “knew from the outset that the land it purchased

was inadequate to hold the amount of water that would be contained in the reservoirs” during a storm

of Harvey’s magnitude, and nonetheless made the decision to assume the risk of paying damages from

storms producing pools greater than the limits of government-owned land. 146 Fed. Cl. at 233; 259.

Thus, through no fault of Upstream Test Property Damages Plaintiffs, the areas encumbered

by the flowage easement taken by the government will be subject to inevitably recurring reservoir pool

inundation and its resultant damage to fixtures, improvements, and personal property. On this record,

applicable law, and the balance of the equities,2 empowers the Court to use its considerable discretion

to define the flowage easement to afford the government only the right to use real property for

floodwater storage under the circumstances that existed during Harvey. Should the government

believe it needs additional rights for operation of the Project, it can take those rights through its

eminent domain power, with the corresponding payment of just compensation via proper

condemnation procedures.

2
Since the question of just compensation for property taken by inverse condemnation is a factual
issue, this Court holds significant discretion when determining the appropriate design for a remedy.
Liebman v. United States, 139 Fed. Cl. 653, 661 (2018); see also McCann Holdings, Ltd. v. United States, 111
Fed. Cl. 608, 613 (2013) (“The Court has discretion in adopting a methodology that awards a takings
plaintiff just compensation.”) (citing Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1369 (Fed.
Cir. 2012)). Significant case law validates the application of equitable tenets when fashioning the
remedy in this case. See United States v. 320.0 Acres of Land, 605 F.2d 762, 780 (5th Cir. 1979) (“The
Fifth Amendment itself, specifically the Just Compensation Clause of that Amendment, contains no
mention of the “scope of the project” rule or the principle of “highest and best use.” It merely
provides that no “private property (shall) be taken for public use, without just compensation.” The
only standard of compensation mandated by the Constitution is that it be “just,” which in turn “evokes
ideas of ‘fairness’ and ‘equity.’”) (citing United States v. Commodities Trading Corp., 339 U.S. 121, 124
(1950)); see also United States v. Fuller, 409 U.S. 488, 490 (1973) (“The constitutional requirement of just
compensation derives as much content from the basic equitable principles of fairness [as it] does from
technical concepts of property law.”).

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B. The Current Task: Delineation of the Permanent Flowage Easement.

An easement is the right to use a particular parcel of land, or a portion of a parcel of land, for

specified purposes without owning the underlying fee.3 An easement is normally the dominant estate

and bars the servient estate (the underlying fee) from any use of the realty that interferes with the

easement holder’s reasonable use of the easement.4 A flowage easement grants the easement owner—

subject to the terms and conditions of the easement—the right to flood the fee owner’s land either

occasionally or permanently. A flowage easement “usually include[s] the right to prohibit human

habitation and the erection of structures.”5 Since the Addicks and Barker reservoirs are normally dry

and only impound water to alleviate flood risks downstream, the easement here would be for the

3
See Interagency Land Acquisition Conference, UNIFORM APPRAISAL STANDARDS FOR FEDERAL
LAND ACQUISITIONS at 168 (hereinafter the “YELLOW BOOK”); see also Appraisal Institute, REAL
PROPERTY VALUATION IN CONDEMNATION at 211 (2018). The YELLOW BOOK provides “[t]he
approach that government appraisers must follow in opining on the value of land taken by the federal
government,” and has routinely been cited as providing the definitive guidance for appraisals in federal
takings cases. Technical College of the Low Country v. United States, 145 Fed. Cl. 408, 426 (2019); see also
Sears v. United States, 132 Fed. Cl. 6, 12 n.8 (2017) (noting that the YELLOW BOOK “sets forth the
standards and methods to be applied in appraisals of land acquired by the federal government”).
4
YELLOW BOOK at 168.
5
Albert Johnson, Flowage Easement Market Analysis, The Appraisal Journal at 82 (January 1967); Lloyd
Boettcher, Appraisal of a Flowage Easement, The Appraisal Journal at 35 (January 1957) (“Generally
speaking, there are two major types of flowage rights to be acquired: the right to permanently overflow,
and the right to occasionally overflow.”); see also Joseph Strain, Appraisal of Flowage Easements—Another
Look, The Appraisal Journal at 581 (October 1981) (noting that dwellings for human habitation are
generally prohibited within a flowage easement). As several federal sources confirm, the real property
over which the Government will now be awarded a flowage easement would have been subject to a
prohibition on the occupancy and improvements currently located thereon if it had been taken by
eminent domain. See e.g., 43 C.F.R. § 8.1(b) (USACE required to acquire fee title to all lands “the
maximum flowage line of the reservoir including lands below a selected freeboard where necessary to
safeguard against the effects of saturation, wave action, and bank erosion and the permit induced
surcharge operation” as part of any reservoir construction); 43 C.F.R. § 8.6 (“Buildings for human
occupancy as well as other structures which would interfere with the operation of the project for any
project purpose will be prohibited on reservoir project lands.”); Department of the Army, U.S. Army
Corps of Engineers, ER 405-1-04 at § 4-36 (January 29, 2016) (when appraising flowage easements
consideration must be given to “what, if any, structures are to be allowed in the easement area”).

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occasional flooding of the Upstream Test Property Damages Plaintiffs’ properties resulting from the

Army Corps following its operating procedures. 146 Fed. Cl. at 239.

Two core aspects define a flowage easement: the area that it encumbers and the rights it gives

to the easement holder.6 Both are examined in turn.

1. The Physical Extent of the Taking: The Property Inundated on August

30, 2017 Defined in Terms of Elevation.

Determination of the area encumbered by the permanent flowage easement affects not only

the amount of just compensation the Upstream Test Property Damages Plaintiffs are currently due,

but also their Fifth Amendment right to just compensation the next time the Government floods their

properties. See Labruzzo v. United States, 144 Fed. Cl. 456, 474 (2019) (because original commandeering

order only divested the affected landowners of limited rights for a limited duration, subsequent work

by the Corps which permanently deprived them of all interests constituted a second taking); National

Food & Beverage Co. v. United States, 96 Fed. Cl. 258, 264 (2010) (“National Food I”) (holding that the

pertinent commandeering order “effected a temporary taking of the access to the clay deposits, but

the Corps’ physical removal of the clay effected a permanent taking of the excavated material itself”

and, therefore, a second taking).

The easement’s legal description sets forth the property area “taken” by physical possession

and delineates that portion of Plaintiffs’ real property which the Government may utilize in the future

to store impounded rainfall runoff.7 To minimize the impact on the Upstream Test Property Damages

6
YELLOW BOOK at 91 (“An appraiser cannot develop an opinion of market value for just
compensation purposes without knowing what, exactly, the United States will acquire. A legal
description identifies a property’s precise physical or geographic location. The property interest or
interests to be acquired must be described with equal precision.”) (emphasis in original).
7
Walstein Smith, Some Enchanting Easements (And Some That Are Not), The Appraisal Journal at 534
(October 1980) (“The appraiser should be furnished a legal description of the easement, a legal
description of the entire property, and a plat of the entire property with the proposed easement path
drawn and all measurements shown. In addition to the area involved, width, height, and depth
measurements are very important.”).

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Plaintiffs, the physical parameters of the easement should be no more than the maximum area, defined

in terms of elevation, that the United States took physical possession of through its government-

induced flooding on August 30, 2017—the day that the reservoir pools behind the Addicks and Barker

dams reached their maximum levels at 109.1 feet and 101.6 feet, respectively, for the Addicks and

Barker reservoirs. 146 Fed. Cl. at 241.8

The government contends that the easement it appropriated should “allow[ ] for occasional

flooding from reservoir pools that exceed the government-owned land elevation and may reach up to

these maximum design spillway elevations,” i.e., 114.6 feet (Addicks) and 106.4 feet (Barker),

exceeding the government-owned land by 6.6 vertical feet in Addicks and 8.1 vertical feet in Barker.

(Dkt. #267, at 3-4.) By this argument, the government would seek to impose a permanent flowage

easement over lands that it did not take either through eminent domain or inverse condemnation (i.e.,

the government’s proposed elevation of 106.4 feet in the Barker reservoir is substantially higher than

the 101.6 foot Barker reservoir pool on August 30, 2017). Again, the government offers no authority

for the proposition that the maximum extent of the easement it appropriated should exceed the scope

of the corresponding physical invasion. And, again, no such authority exists.

Based on the above-cited authorities, the Upstream Test Property Damages Plaintiffs request

that the Court define the maximum extent of the flowage easement taken by the government as those

areas inundated by the reservoir pools behind the Addicks and Barker dams up to 109.1 feet and 101.6

feet (NAVD ’88, 2001 adj.) respectively, as measured and recorded by the USGS gauges at these dams

8
See also Dkt. No. 211, Stipulations of Fact for Trial Nos. 110, 111, 112, 114; PX 526, Expert Report
of Philip Bedient at 2, 3 (November 5, 2018, Figures 2A, 2B); 7 RR 1935:14-1942:7 (Dr. Bedient
discussing his map figures and their demonstration of Harvey’s peak reservoir pool flooding for both
Addicks and Barker on August 30, 2017); DX 608, Expert Report of Dr. Robert Nairn at 94
(Government’s expert admission that the peak flood elevations—i.e., the maximum inundation—at
all the upstream Test Properties was attributed to backwater due to high pool elevations in Addicks
and Barker reservoirs); JX 143, USGS Gage 8073000; JX 144, USGS Gage 8072500.

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in place at the time of the Harvey event.9 See Bistine v. United States, 226 Ct. Cl. 282, 284-85 (1981)

(addressing intermittent flowage easement for property “above elevation 2062.5 feet above mean sea

level” and permanent right to “flood and submerge those portions of the hereinabove described lands

lying below elevation 2062.5 feet above mean sea level”). This demarcation would limit the area

burdened by the flowage easement taken by the government to those portions of each property

inundated by the relevant maximum pool level on August 30, 2017—and therefore actually “taken”—

for Fifth Amendment purposes. United States v. Dow, 357 U.S. 17, 22 (1958) (“The usual rule is that if

the United States has entered into possession of the property prior to the acquisition of title, it is the

former event [physical possession] which constitutes the act of taking.”).

Restricting the boundary and extent of the flowage easement on each property to the area

inundated on August 30, 2017 will also reserve to property owners the right to seek compensation for

any portion of their property not within the area encumbered by the easement as a new taking for any

future government-induced flooding. See Biloxi Marsh Lands Corp. v. United States, 111 Fed. Cl. 385, 386

(2013) (erosion of property outside original servitude granted to the Government supported claim for

taking); see also Labruzzo v. United States, 144 Fed. Cl. 456, 472 (2019) (noting “this court has recognized

the accrual of a second taking when the government expands the scope of its original taking”); Macy

Elevator, Inc. v. United States, 97 Fed. Cl. 708, 718 (2011) (if recreational trail use authorized by NITU

exceeds the scope of original easement “a taking has occurred”).

2. The Scope of the Taking: To Store Impounded Rainfall Runoff.

“[I]n a valuation involving acquisition of a dominant easement, the appraiser must clearly

understand the specific terms of the easement involved to analyze the burden the easement imposes

9
REAL PROPERTY VALUATION IN CONDEMNATION, supra note 2, at 213 (“A flowage easement is
generally described as encumbering all of the fee ownership lying between a low and high elevation
mark.”); JX 143, USGS Gage 8073000; JX 144, USGS Gage 8072500; JX 233, Upstream View of
USGS Gage 8073000; JX 239, USGS Gage 8072500.

10
 Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 16 of 20

on the servient estate and the resulting impact on the value of the affected land.”10 Which rights are

appropriated by the government through its taking via inverse condemnation of a permanent flowage

easement is a critical element in determining the ability of Upstream families and businesses to use

and enjoy their properties in the future. United States v. Causby, 328 U.S. 256, 267 (1946) (reversing and

remanding case where easement was not “precisely described” since “an accurate description of the

property taken is essential, since that interest vests in the United States”).

Given the unique facts and circumstances presented by this record of this taking through

inverse condemnation, the contours of the flowage easement should be drawn to protect the rights of

the Upstream Plaintiffs to the maximum extent possible. And, while the government has taken a

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

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

fixtures, improvements, and personal property located within the flowage easement should remain

with the government. Only those rights necessary to achieve the public purpose of the Project—the

occasional storage of rainfall runoff collected by the dams in order to protect downstream Houston—

ought to be included in the easement. United States v. Cress, 243 U.S. 316, 329 (1917) (noting that

“where, as in this case, the property owner resorts to the courts, as he may, to recover compensation

for what has actually been taken, . . . such a right or interest will be deemed to pass as is necessary

10
YELLOW BOOK at 169 (citing United States v. Causby, 328 U.S. 256, 268 (1946)); see also Evans v. Tenn.
Valley Auth., 922 F.2d 841, 1991 WL 1113 at *2 (6th Cir. 1991) (unpublished) (“In order for the
commissioners to determine the ‘before and after’ value of the land, it was necessary that they clearly
understood what rights the landowner would retain in the land subject to the easement.”); Joseph
Strain, Appraisal of Flowage Easements—Another Look, The Appraisal Journal at 580-81 (October 1981)
(“Compensation must correspond with the exact nature of the rights taken, and the estimate of just
compensation is precisely the purpose of the appraisal.”); Walstein Smith, Some Enchanting Easements
(And Some That Are Not), The Appraisal Journal at 534 (October 1980) (“The lawyer and the appraiser
should study the declaration of taking in a condemnation trial very carefully to know the rights (uses)
granted in an easement and the rights (uses) remaining in the right-of-way area still available to the
servient estate owner during the existence of the easement.”).

11
 Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 17 of 20

fairly to effectuate the purpose of the taking”). Plaintiffs, therefore, request the easement be drawn as

narrowly as possible, and leave intact the right to obtain just compensation for future losses to

property resulting from government-induced flooding beyond the narrowly-defined limits of the

permanent flowage easement appropriated by the government. The government seems to take a

similar view as it has argued that the Plaintiffs can “continue their lawful use of those properties,

subject to the risk of occasional flooding from the United States’ operation of the Addicks and Barker

dams.” (Dkt. #276, at 4.) To achieve that use, the flowage easement in this case cannot include any of

the typical restrictions on use that flowage easements typically acquired through eminent domain.

For example, the easement should not include any “hold harmless” clause to exempt the

United States from any liability “arising from or incident to the flooding of the said premises by the

Government” as is often included in cases involving an affirmative acquisition of property rights by

the Government. See, e.g., Bachtel v. Murdoch, 11 F.3d 1069 (Fed. Cir. 1993) (unpublished decision).

Moreover, the terms of the easement should not include any restrictions on how the Upstream

businesses and families may utilize their property in the future; and, in addition to paying for any losses

attributable to fixtures, improvements, and personal property in any future pool-related flooding

event, the government should remain liable for erosion and other aspects of physical harm due to the

exercise of the flowage easement.11

“The valuation of an easement upon the basis of its destructive impact on other uses of the

servient fee is a universally accepted method of determining its worth.” United States v. Virginia Elec.

& Power Co., 365 U.S. 624, 630 (1961) (citations omitted). In making this determination, “the court

11
In its brief, the government seeks to limit the Upstream Liability Order to avoid liability for
temporary takings and taking of personal property. (See Dkt. 276, at 3.) But the Upstream Liability
Order is not so limited. And, further, the extent of liability is not the point of this briefing exercise.
But, to make the Upstream Test Property Damages Plaintiffs whole, all of those measures of
compensation must be employed.

12
 Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 18 of 20

looks to the highest and best use of the property at issue. . . . The Court does not confine its inquiry

to the use to which the property was devoted at the time of the taking, but also considers that use to

which it may readily be converted.” National Food II, 105 Fed. Cl. at 699. The restrictions placed on

any future uses of the area, burdened by the permanent flowage easement taken, directly impact the

ability of the Upstream Test Property Damages Plaintiffs to put their properties to their highest and

best use—a critical part of the upcoming assessment of just compensation which must be addressed.12

3. Plaintiffs’ Requested Formulations of the Permanent Flowage

Easement.

Based on the foregoing principles, Upstream Test Property Damages Plaintiffs request this

Court approve the form of Notice and the delineation of the flowage easement taken by inverse

condemnation on each property in the Addicks and Barker reservoirs as set forth in the exemplars

submitted as Exhibit 1 (Addicks properties) and Exhibit 2 (Barker properties) submitted herewith.13

The flowage easement should be drawn narrowly to protect the flood victims’ ownership interests.

12
See, e.g., Department of the Army, U.S. Army Corps of Engineers, ER 405-1-04 at § 4-6 (January 29,
2016) (discussing importance of highest and best use determination in appraising property for
Government acquisition), § 4-23(c) (noting ER 405-1-04 applies to appraisals obtained in connection
with the enlargement of existing federal projects), § 4-38(a) (noting the amount that the market value
of the property is diminished by the imposition of an easement “could include change in the highest
and best use [or] a loss of access”); Joseph Strain, Appraisal of Flowage Easements—Another Look, The
Appraisal Journal at 580-81 (October 1981) (“Special attention must be given, however, to understand
more fully the rights taken [by the flowage easement] and the subsequent changes in highest and best
use created by the loss of those rights.”).
13
The form and terminology are based on the language used by the Corps when taking flowage
easements in connection with the Harry S Truman Dam and Reservoir. Hendricks v. United States, 14
Cl. Ct. 143, 145-46 (1987) (“[The United States has] the perpetual right, power, privilege and easement
occasionally to overflow, flood and submerge [the Ainsworth property] . . . [and] improvements now
situate on the land, except fencing and levees above elevation 706’ m.s.l.; reserving, however, to the
owner, his heirs and assigns, the right and privilege at the owner's expense to use and maintain the
levee, now situate on the land; provided, however, that the aforesaid privilege of use and maintenance
shall be totally subordinate to the absolute right of the United States, without notice and without
incurring any liability of any nature whatsoever, to remove, breach, flood or otherwise damage or
destroy in any manner whatsoever, the said levee.”).

13
 Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 19 of 20

CONCLUSION

The Upstream Test Property Damages Plaintiffs respectfully request that the Court determine

that the flowage easement, found to have been taken by the Government during Harvey in 2017,

minimizes the impact on their rights, permits only the use of the rights necessary to support the Project

as done during Harvey, and holds Plaintiffs harmless and subject to being compensated for any future

taking or harm to their property by the Government.

Respectfully submitted,

/s/ Daniel H. Charest

Daniel H. Charest
Larry Vincent
Burns & Charest LLP
900 Jackson Street, Suite 500
Dallas, Texas 75202
469-904-4550
dcharest@burnscharest.com
lvincent@burnscharest.com
Co-Lead Counsel, Upstream Pre-Trial
Discovery and Dispositive Motions
Co-Lead Counsel for Upstream Plaintiffs
as to Jurisdictional Discovery, Motion to
Dismiss, and Scheduling

Charles Irvine
Irvine & Conner PLLC
4709 Austin Street
Houston, Texas 77004
713-533-1704
charles@irvineconner.com
Co-Lead Counsel, Upstream Pre-Trial
Discovery and Dispositive Motions

Edwin Armistead “Armi” Easterby

WILLIAMS HART BOUNDAS
EASTERBY, LLP
8441 Gulf Freeway, Suite 600
Houston, Texas 77017
713-230-2200
aeasterby@whlaw.com
Co-Lead Counsel, Upstream Pre-Trial Discovery
and Dispositive Motions

14
 Case 1:17-cv-09001-CFL Document 279 Filed 03/24/20 Page 20 of 20

Vuk S. Vujasinovic
VB ATTORNEYS, PLLC
6363 Woodway Dr., Suite 400
Houston, Texas 77057
713-224-7800
vuk@vbattorneys.com
Of Counsel for Individual Upstream Plaintiffs as
to Jurisdictional Discovery, Motion to Dismiss,
and Scheduling

CERTIFICATE OF SERVICE

The undersigned attorney hereby certified that a true and correct copy of the foregoing

instrument was served on all counsel of record in this Sub-Master Cause by filing it via the Court’s

ECF system on March 24, 2020.

/s/Daniel H. Charest
Daniel H. Charest

15
 Case 1:17-cv-09001-CFL Document 279-1 Filed 03/24/20 Page 1 of 4

EXHIBIT 1 - ADDICKS

THE STATE OF TEXAS

COUNTY OF HARRIS

NOTICE

WHEREAS, [Plaintiff], an individual, was, as of August 30, 2017, owner of that certain real

property described in Exhibit A, attached hereto and incorporated by reference herein; and

WHEREAS, the United States of America wishes to place a notice upon the public record of

the existence of an easement for flooding on the property described in Exhibit A;

NOW, THEREFORE, PLEASE TAKE NOTICE that an easement has been and is imposed

upon the property described in Exhibit A, which easement is described in Exhibit B, attached hereto

and incorporated by reference herein.

This _____ day of ______________, ______.

UNITED STATES OF AMERICA

By: ______________________________
 Case 1:17-cv-09001-CFL Document 279-1 Filed 03/24/20 Page 2 of 4

THE STATE OF TEXAS

COUNTY OF HARRIS

I, ___________________, a Notary Public, do hereby certify that _____________________

personally came before me on this day and acknowledged that he/she is _______________________

of the United States of America, and acknowledged, on behalf of the United States of America, the

due execution of the foregoing Notice.

Witness my hand and official seal, this ____ day of _______________, _________.

__________________________________________
Notary Public
 Case 1:17-cv-09001-CFL Document 279-1 Filed 03/24/20 Page 3 of 4

EXHIBIT A

As of August 30, 2017, all that certain tract of land, with the building and improvements

thereon and easements and appurtenances thereunto belonging, situated, lying, and being [SPECIFIC

LEGAL DESCRIPTION OF PROPERTY], according to the map or plat thereof recorded in

Volume ___, Page ___, of the Records of Harris County, Texas.

 Case 1:17-cv-09001-CFL Document 279-1 Filed 03/24/20 Page 4 of 4

EXHIBIT B - ADDICKS

An easement in favor of the U.S. Army Corps of Engineers (the “Corps”) to occasionally
overflow, flood, and submerge the property described in Exhibit A (the “Property”) in connection
with the Corps’ intended and authorized use and operation of the Addicks and Barker Flood Control
Dams/Reservoirs (the “Project”), which maximum extent of such easement is defined as the lateral
and the vertical extent of the surcharge of floodwaters experienced on the Property on August 30,
2017, when the water surface elevation of the Addicks reservoir was 109.1 feet above NAVD 1988
(2001 adjustment), as measured and recorded by U.S.G.S. Gage 08073000.
This easement permits the Corps to impose flooding on the Property only to the above-stated
lateral and vertical extent and only by using and operating the Project as was done in August and
September 2017 in accordance with the Corps’ 2012 Water Control Manual. The owner of the
Property, including all heirs, assigns, and successors in title (collectively, the “Owner”), reserves the
right and privilege to use the Property, develop the Property, and build and/or maintain any and all
fixtures and improvements now or later (consistent with then-existing laws, ordinances, and
regulations) situated on the Property without limitation by this easement; further provided that the
aforesaid privilege of use, development, and maintenance shall not be subordinate to the easement;
and further provided that such easement shall be subject to the right of the Owner to seek just
compensation from the United States (and the United States shall have an obligation to pay) for any
damage or loss to any fixture, improvement, or personal property on or in the Property, or loss of use
of and other related costs stemming from displacement from the Property, resulting from the Corps’
authorized and intended use of the easement over the Property and operation of the Project. The
scope and extent of this easement shall be narrowly construed such that the rights of the Owner to
the Property are as fully protected as possible under law and equity; all rights not expressly granted to
the Corps over the Property in this easement are expressly reserved to the Owner.
This easement was determined to exist by court order entered on December 17, 2019, in an
inverse condemnation action, In re Upstream Addicks and Barker (Texas) Flood Control Reservoirs, Case No.
17-9001L, in the United States Court of Federal Claims. For a full description of the facts and
circumstances surrounding the easement, reference should be made to the court record therein.
 Case 1:17-cv-09001-CFL Document 279-2 Filed 03/24/20 Page 1 of 4

EXHIBIT 2 - BARKER

THE STATE OF TEXAS

COUNTY OF FORT BEND

NOTICE

WHEREAS, [Plaintiff], an individual, was, as of August 30, 2017, owner of that certain real

property described in Exhibit A, attached hereto and incorporated by reference herein; and

WHEREAS, the United States of America wishes to place a notice upon the public record of

the existence of an easement for flooding on the property described in Exhibit A;

NOW, THEREFORE, PLEASE TAKE NOTICE that an easement has been and is imposed upon

the property described in Exhibit A, which easement is described in Exhibit B, attached hereto and

incorporated by reference herein.

This _____ day of ______________, ______.

UNITED STATES OF AMERICA

By: ______________________________
 Case 1:17-cv-09001-CFL Document 279-2 Filed 03/24/20 Page 2 of 4

THE STATE OF TEXAS

COUNTY OF FORT BEND

I, ___________________, a Notary Public, do hereby certify that _____________________

personally came before me on this day and acknowledged that he/she is _______________________

of the United States of America, and acknowledged, on behalf of the United States of America, the

due execution of the foregoing Notice.

Witness my hand and official seal, this ____ day of _______________, _________.

__________________________________________
Notary Public
 Case 1:17-cv-09001-CFL Document 279-2 Filed 03/24/20 Page 3 of 4

EXHIBIT A - BARKER

As of August 30, 2017, all that certain tract of land, with the building and improvements

thereon and easements and appurtenances thereunto belonging, situated, lying, and being [SPECIFIC

LEGAL DESCRIPTION OF PROPERTY], according to the map or plat thereof recorded in

Volume __, Page ___, of the Records of Fort Bend County, Texas.
 Case 1:17-cv-09001-CFL Document 279-2 Filed 03/24/20 Page 4 of 4

EXHIBIT B - BARKER

An easement in favor of the U.S. Army Corps of Engineers (the “Corps”) to occasionally
overflow, flood, and submerge the property described in Exhibit A (the “Property”) in connection
with the Corps’ intended and authorized use and operation of the Addicks and Barker Flood Control
Dams/Reservoirs (the “Project”), which maximum extent of such easement is defined as the lateral
and the vertical extent of the surcharge of floodwaters experienced on the Property on August 30,
2017, when the water surface elevation of the Addicks reservoir was 109.1 feet above NAVD 1988
(2001 adjustment), as measured and recorded by U.S.G.S. Gage 08073000.
This easement permits the Corps to impose flooding on the Property only to the above-stated
lateral and vertical extent and only by using and operating the Project as was done in August and
September 2017 in accordance with the Corps’ 2012 Water Control Manual. The owner of the
Property, including all heirs, assigns, and successors in title (collectively, the “Owner”), reserves the
right and privilege to use the Property, develop the Property, and build and/or maintain any and all
fixtures and improvements now or later (consistent with then-existing laws, ordinances, and
regulations) situated on the Property without limitation by this easement; further provided that the
aforesaid privilege of use, development, and maintenance shall not be subordinate to the easement;
and further provided that such easement shall be subject to the right of the Owner to seek just
compensation from the United States (and the United States shall have an obligation to pay) for any
damage or loss to any fixture, improvement, or personal property on or in the Property, or loss of use
of and other related costs stemming from displacement from the Property, resulting from the Corps’
authorized and intended use of the easement over the Property and operation of the Project. The
scope and extent of this easement shall be narrowly construed such that the rights of the Owner to
the Property are as fully protected as possible under law and equity; all rights not expressly granted to
the Corps over the Property in this easement are expressly reserved to the Owner.
This easement was determined to exist by court order entered on December 17, 2019, in an
inverse condemnation action, In re Upstream Addicks and Barker (Texas) Flood Control Reservoirs, Case No.
17-9001L, in the United States Court of Federal Claims. For a full description of the facts and
circumstances surrounding the easement, reference should be made to the court record therein.