Argument Preview

This week we are previewing two arguments scheduled for next week at the Federal Circuit. We are previewing these arguments because the underlying cases attracted amicus briefs. Today we highlight Milton v. United States, in which over 150 plaintiffs are appealing a decision of the Court of Federal Claims to grant summary judgement for the United States. These plaintiffs have asserted takings claims against the government based on properties being flooded by government action when the Addicks and Barker Reservoirs released water during Hurricane Harvey. An amicus brief was filed by 205 other plaintiffs with similar cases stayed at the Court of Federal Claims. This is our argument preview.

Four parties of plaintiffs-appellants filed separate but very similar opening and reply briefs. The main opening brief of the majority of plaintiffs-appellants first argues that, “[i]n holding that downstream landowners lack a cognizable property interest, the CFC decided a question of Texas law in a way no Texas court has ever done.” They contend this “ruling conflicts with both basic tenets of Texas property law and Texas cases in which flooded landowners won damages for the taking of a flowage easement.” Also, plaintiffs note, the finding of a lack of property interest “conflicts with the ruling in the upstream cases, where Judge Lettow held that the landowners have a cognizable property interest under Texas law.” Plaintiff-appellants argue the Federal Circuit “should hold that the Government took a flowage easement as a matter of law” and that “the Government effected a temporary taking of a flowage easement by physically flooding the affected properties.”

In its response brief, the United States makes three arguments. First, the United States argues “the CFC correctly ruled that Plaintiffs’ ownership of real property does not include an entitlement to perfect flood control in the wake of the unprecedented natural disaster.” This, the government argues, is because “Texas courts have long recognized that real property ownership is subject to the ‘ancient’ police power to control flooding” and the “conclusion that Plaintiffs do not have a right to perfect flood control in the wake of an Act of God is reinforced by federal statutes and decisional law.” Second, the United States claims, “[i]n the alternative, the CFC’s judgment may be affirmed on the ground that Plaintiffs cannot demonstrate that the Corps’ management of the Project during Hurricane Harvey was the but-for cause of flooding on their properties.” Third, the United States argues, “even if the Corps’ action can be seen to be a ’cause’ of downstream flooding . . . the CFC’s judgment still must be affirmed on the ground that the flooding was unintentional and transitory and thus in the nature of a tort rather than a taking for which compensation is owed under the Fifth Amendment.”

The main reply brief makes three arguments. First, the plaintiffs-appellants argue “[a] flowage easement is a cognizable property interest in state law, and [they] contend that flowage easements were taken by the Government.” Second, they argue, “[i]t is not necessary for this Court to decide any issue beyond the existence of a state-law property interest, but should the Court decide to reach the other issues, it should hold that the Government took a flowage easement as a matter of law” because “the flooding resulted from an official government policy memorialized in the Corps of Engineers’ Water Control Manual.” Moreover, they argue, “the Court should hold that the Government temporarily took a flowage easement when it intentionally flooded the downstream property owners.” Third, the plaintiff-appellants argue the case used by the government to support its arguments is incorrect because “the whole point of the causation analysis set forth in” that opinion “is to distinguish torts from takings in temporary flooding cases— giving effect to ‘the traditional trespass-versus-takings distinction.’”

As mentioned, an amicus brief was filed by 205 plaintiffs with cases pending before the Court of Federal Claims with similar takings claims. These plaintiffs worry “that their cases will be resolved–or at least significantly affected–by the resolution of this appeal–even though they have been stayed and have been prohibited by court order from preparing and presenting their cases.” They ask the Federal Circuit to place language in the opinion to not bar these plaintiffs “from presenting evidence and legal arguments, including evidence and legal arguments different from those presented by Appellants.” They also seek language making clear “that nothing in this Court’s decision should be construed to bind or influence the trial court’s decision in Amici Curiae’s cases.”

This case will be argued on Wednesday, January 12. We will report on developments.