Government faces suit over Addicks and Barker dam releases Class action lawsuit in Washington, D.C. says Army Corps of Engineers flooded after Harvey passed

An airboat travels north along S. Kirkwood Rd. west of Beltway 8 and south of Interstate 10 where homes are inundated with water from the overflowing Buffalo Bayou to the north, Saturday, September 2, 2017, in Houston. Houston mayor Sylvester Turner issued a new mandatory evacuation order Saturday for homes with water in them south of Interstate 10, north of Briar Forest, east of Highway 6 and west of Gessner Rd. As water continues to be released from the Addicks and Barker reservoirs. less An airboat travels north along S. Kirkwood Rd. west of Beltway 8 and south of Interstate 10 where homes are inundated with water from the overflowing Buffalo Bayou to the north, Saturday, September 2, 2017, in ... more Photo: Mark Mulligan, Mark Mulligan / Houston Chronicle Photo: Mark Mulligan, Mark Mulligan / Houston Chronicle Image 1 of / 47 Caption Close Government faces suit over Addicks and Barker dam releases 1 / 47 Back to Gallery

A group of flooded-out Harris County homeowners and businesses sued the federal government on Tuesday, accusing the U.S. Army Corps of Engineers of knowingly condemning their properties by releasing water from the Barker and Addicks reservoirs after Hurricane Harvey.

Bryant Banes, a civil attorney whose Heathwood home and his wife's home business were deluged after the rains had subsided, is seeking compensation that could reach into the billions of dollars in what he hopes will become a massive class-action lawsuit that would include compensation for homeowners, building managers and business owners within the area flooded by the controlled releases.

"When they opened up the dams full blast, several hundred homes that were dry and not yet directly impacted by the storm — including mine —got flooded by the Corps' action," Banes said.

Banes doesn't contend that the Corps did the wrong thing, only that the government must pay for the damages it caused.

"When they make a choice to flood one area to save another, it's their responsibility to pay for the consequences," he said.

Banes' is one of three lawsuits filed Tuesday in state and federal court seeking to hold government agencies liable for flooding from the controlled releases.

A spokesperson for the U.S. Army Corps deferred questions about two federal lawsuits Tuesday to the Justice Department. Mark Abueg, a Justice Department spokesman in Washington, D.C., said Wednesday, "We will review the complaint and respond in a timely manner."

The third lawsuit, filed in state court, targets the City of Houston and Harris County Flood Control District for compensation for property losses downstream of the reservoirs.

Alan Bernstein, a spokesman for Mayor Sylvester Turner, said he could not comment on a pending lawsuit. Robert Soard, at the Harris County Attorney's Office, said he had seen a copy of the state lawsuit and would be filing a response in court on behalf of the Flood Control District in District Court.

A 'taking' claim

In one of the two federal cases, Banes and his eight-person civil law firm, Neel, Hooper & Banes, filed a so-called "takings" claim in the U.S. Court of Federal Claims in Washington, D.C., on the grounds that the Army Corps made a willing choice to save some areas after the storm subsided.

Justin Hodge, an expert in eminent domain at Johns Marrs Ellis & Hodge LLP, said such cases boil down to knowledge and intent — whether the government knew what it was doing and intended to cause flooding that essentially amounted to "taking" of people's properties.

"The government can't accidentally take your property," Hodge said. "If they accidentally opened the lever to the dam or the gates, that would not be a taking — that would be negligence.

"But if the government intentionally floods someone's property there would be real merit," he said.

Individuals can't sue the government for an accident. But if the flooding was intentional and knowing, a person can file a claim. He said historically class actions have occurred in condemnation lawsuits but they're very difficult to pull off.

"A lot of folks may be directly damaged by the dam releases but an investigation has to be made into each person's claim," he said. "I would caution property owners ... not to try to jump in and file something without doing an appropriate investigation."

He added, "I'd caution them to hire a lawyer that's knowledgable in this area of the law."

Hodge said in the press conferences in the wake of Hurricane Harvey the Army Corps of Engineers was straightforward about the fact that they knew homes were going to flood from the releases from the reservoirs. He saw statements on the Corps website indicating federal officials had knowledge that flooding would happen.

The government could make such a decision if it was acting in the public interest, he said.

"It's a public use decision," Hodge said. "They decided to use your property for public use. They decided the general public needs to use your property."

He said the "takings" law stems from the Fifth Amendment, which says that private property cannot be taken without just compensation. The Texas Constitution guarantees the same right.

State and federal law would similarly protect people with homes or businesses upstream of the reservoirs, Hodge said.

Lining up to sue

Banes' lawsuit in federal claims court includes the areas of Dairy Ashford to Interstate 610, Rummels Creek and Piney Point to Interstate 10 and to Briar Forest and the Beltway.

A second federal claims lawsuit Tuesday was filed on behalf of a couple on Vanderpool who say they suffered deliberate and substantial property damage at their townhome after it was inundated from the reservoir release.

Two of the lawyers who filed the suit, Avram Blair and Jeff Meyer, have gotten so much interest from potential clients they're planning to take out a newspaper ad and rent a hotel conference room to meet with them.

"We're getting inundated," he said.

Meyer said he believes the property owners have a strong case.

"The government doesn't do anything wrong when it decides that putting in a new highway is needed for public use," he said. "Similarly when the Army Corps of Engineers decides it needs to release water from these two reservoirs in the public interest it still needs to compensate the downstream landowner in the same way it would it if was laying a highway down."

Derrick Potts, one of the attorneys in the state lawsuit, represents one commercial property and three homeowners along Buffalo Bayou east of the Barker Reservoir. Potts said the city and county share joint control and responsibility for the release of the water.

"They've known about the potential for many years and they've done nothing about it," he said, "and now the citizens are paying the price."

Gabrielle Banks covers federal courts for the Houston Chronicle. Follow her on Twitter or send tips to gabrielle.banks@chron.com