Case 1:17-cv-09001-CFL Document 381 Filed 06/11/21 Page 1 of 2

In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L

(NOT TO BE PUBLISHED)

(Filed: June 11, 2021)

IN RE UPSTREAM ADDICKS AND

BARKER (TEXAS) FLOOD-
CONTROL RESERVOIRS

THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES

ORDER
LETTOW, Senior Judge.

Pending before the court is defendant’s motion for clarification of the court’s order of
June 29, 2020, with respect to plaintiffs’ Rule 30(b)(6) deposition notice (“Def.’s Mot.”), ECF
No. 374. In the motion, defendant states that it believes “it need not designate a witness to
testify on the topics set forth in Paragraphs 1 and 16 of [p]laintiffs’ Rule 30(b)(6) notice.” Id. at
1. Plaintiffs assert that the topics remain relevant. The topics at issue relate to the scope of the
flowage easements taken by defendant at properties flooded upstream of Corps’ dams during
Hurricane Harvey. A hearing was held June 8, 2021, to explicate the parties’ positions.

The root cause of the dispute, the scope of the flowage easements taken, directly affects
the expert reports due within weeks and months respecting just compensation, in preparation for
a trial scheduled to be held from December 6 through 14, 2021. The dispute is complicated by
the circumstance that, reportedly, defendant’s deposition fact witnesses have testified that Corps
policies relating to so-called “standard” flowage easements should apply in this case. That is not
correct. The flowage easements in this case are atypical in that their geographic limits are
bounded by the extent of the flooding of the affected properties due to Hurricane Harvey, and the
flowage easements, though permanent because of the circumstances attendant to the construction
of the Addicks & Barker dams, did not entail purchase by the Corps of all of the properties
potentially included in the flood pool behind the dams. Future flooding was and is not expected
to be regular or occurring on a frequent basis, but rather subject to particular meteorological
conditions, viz., heavy rainfall over a period of several consecutive days. See generally In re
Upstream Addicks & Barker (Texas) Flood Control Reservoirs, 146 Fed. Cl. 219 (2019) (post-
trial decision on liability). In short, the scope of the flowage easements is far from standard in
this case, and the Corps’ policies relating to “standard” flowage easements should not, and do
not, apply.
 Case 1:17-cv-09001-CFL Document 381 Filed 06/11/21 Page 2 of 2

The scope of the flowage easements was litigated by the parties more than a year ago,
resulting in a decision rendered on April 20, 2020. See In re Upstream Addicks & Barker
(Texas) Flood Control Reservoirs, 148 Fed. Cl. 274 (2020). In that opinion, the court decided
prior motions for clarification of the scope of the flowage easements and ruled that

Within the parameters of those elevation specifications [i.e., the elevation of the pools at
their highest level on August 30, 2017], the government took a permanent flowage
easement, leaving plaintiffs a fee simple interest in their properties which allows them to
continue their lawful use subject to the risk of occasional flooding caused by the
operation of the Addicks & Barker Dams.

Id. at 278. By referring to lawful use, the court primarily was concerned with zoning and other
use conditions imposed by local governmental units such as Harris and Fort Bend Counties.
Nothing in that prior opinion or in the court’s earlier post-trial liability decision explicitly or
implicitly triggered any legal requirement for abandonment and destruction of hundreds of
houses or other buildings, which the Corps’ standard policies would reportedly mandate for land
areas subject to a flowage easement. Thus, the flowage easements taken in this case are unusual,
and to date, the court has been pointed to no Corps policy that would bear on them.

As the court noted previously,“[t]he purpose of the court’s opinion [on scope] is to guide
the parties’ expert witnesses in evaluating the measure of just compensation due for the non-
categorical taking of a permanent flowage easement on the six bellwether properties [to be at
issue in the trial to come].” In re Addicks & Barker, 148 Fed. Cl. at 278. This revisiting of that
effort seems redundant, but the parties reportedly are adopting markedly different positions for
use by their expert witnesses in gauging the scope of just compensation. Much of that situation
seems to be driven by prior testimony by Corps fact witnesses, who reportedly cited Corps’
policies applicable to so-called standard flowage easements, not this somewhat unusual one. To
ameliorate the matter, the court GRANTS in part and DENIES in part the government’s motion
for clarification, as follows. Plaintiffs’ notice of deposition of the government’s designated Rule
30(b)(6) witness shall go forward, limited to testimony about the atypical flowage easements
specified in this case, contrasting them to the Corps’ so-called standard flowage easement. 1

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

1
Testimony of a governmental designee under Rule 30(b)(6) shall not be had respecting
topics 48 and 49.