1. “Whether the Court of Federal Claims erred by concluding that all downstream property owners whose properties were flooded by the Government as a result of an intentional government action in response to Tropical Storm Harvey lacked a property interest to support a takings claim under the Fifth Amendment.”
2. “Whether the Government took a flowage easement from the affected downstream property owners either (a) permanently and categorically through its Water Control Manual or (b) temporarily through its decision to flood properties downstream of the Addicks and Barker Reservoirs.”
1. “[T]he Court of Federal Claims erred in concluding that Appellants failed to assert a cognizable property interest.”
2. “[W]e leave it for the lower court to consider: (1) whether Appellants have shown that a temporary taking occurred under the test applicable to flooding cases, Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 39 (2012); (2) whether Appellants have established causation when considering ‘the impact of the entirety of government actions that address the relevant risk,’ St. Bernard Par. Gov’t v. United States, 887 F.3d 1354, 1364 (Fed. Cir. 2018), cert. denied 139 S. Ct. 796 (2019); and (3) whether the Government can invoke the necessity doctrine as a defense.”
