Following the devastating flooding of hundreds of privately owned properties in an area on the western edge of Houston, Buffalo Bayou, caused by flood control actions of the U.S. Army Corps of Engineers in response to Hurricane/Tropical Storm Harvey, the flooded property owners (including those represented by Marzulla Law) sued the United States for a taking. The suit, filed in the U.S. Court of Federal Claims, sought to recover millions of dollars in damage to their properties caused by the Corps’ actions.

Plaintiffs, Virginia and Arnold Milton and several hundred other property owners moved for summary judgment, and the Government moved to dismiss or for summary judgment. The CFC trial judge granted judgment for the Government, dismissing the case, and entering summary judgment for the Government, holding that Milton had failed to articulate a cognizable property interest because “neither Texas law nor federal law creates a protected property interest in perfect flood control in the face of an Act of God.”

On June 2, 2022, , the Federal Circuit reversed, holding that the Milton property owners had alleged the taking of property interests in “flowage easements.” The Federal Circuit also flatly rejected the Government’s argument that the property owners did not possess a compensable property interest because Hurricane Harvey was an Act of God. The Federal Circuit explained that the cases cited by the Government to support this argument “do not stand for the broad proposition that property is held subject to an Act of God.”

The Federal Circuit also rejected the Government’s argument on appeal that the United States is immune from takings claims that stem from Government attempts at flood control. The Federal Circuit explained:  “The Government cannot avoid suit so easily. . . . [T]here was not evidence in the text or legislative history of the Flood Control Act” that Congress had withdrawn Tucker Act jurisdiction over these claims.

Finally, the Federal Circuit rejected the Government’s argument (raised seemingly in every taking case) that property rights are held subject to the police power under federal law: “The Supreme Court has rejected the notion that private property is subject to ‘unbridled, uncompensated qualification under the police power.’”

Read full decision here.