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Luke Ellis and Justin Hodge (Program Co-Chair), Marrs Ellis & Hodge LLP, are both faculty at the upcoming Houston, Texas Eminent Domain: CLE International Conference on Thursday, May 10, 2018 and Friday, May 11, 2018. Luke will be speaking on Thursday at 10:00 am on Texas Eminent Domain Legislative Reform Efforts and Justin will be speaking as part of a panel on Friday at 10:15 am on the Legal Impacts of Hurricane Harvey. The full conference schedule can be found here. We hope you can join us at the conference.
The Houston Chronicle quotes Justin Hodge, Johns Marrs Ellis & Hodge, LLP partner, this morning over the federal inverse condemnation lawsuits filed because of the United States Army Corps of Engineers’ decision to release dam waters from Barker and Addicks dam and resulting in flooding of thousands of Houston homes and properties. The articles states, “It’s the largest flood event resulting from a direct decision of a government arguably in our lifetime” said Justin Hodge, who teaches eminent domain at University of Houston Law Center and is representing clients in two of the federal cases. You can read the full articles below.
Here is a live stream of last night’s Q&A with Mark Lanier, The Lanier Law Firm, and Justin Hodge, Johns, Marrs, Ellis, Hodge & LLP, on Houston Post-Flood Inverse Condemnation.
We are honored to team up with Mark Lanier, The Lanier Law Firm, to host a Q&A on Houston Post-Flood Inverse Condemnation. The purpose of the meeting is to bring healing to our community and answer questions concerning the flooding. More information is below.
Neighborhood Q&A on Sunday, September 10, at 5:00pm.
Memorial Drive United Methodist Church
Inside Wesley Hall
12955 Memorial Drive
Houston, Texas, 77079
Hurricane Harvey brought as much as 30 inches of rain to some areas of Southeast Texas. On Monday, August 28th, the U.S. Army Corp of Engineers began releasing water from the Barker and Addicks reservoirs in Houston. With reports showing water levels rising more than six inches per hour, officials worried the added pressure could cause both dams to fail, leading to catastrophic flooding in downtown Houston.
While the water release prevented the dams from being breached, it caused severe flooding in several neighborhoods that otherwise may not have been affected. Homeowners in the area are now left with a lot of questions and some very serious concerns.
Attorneys Mark Lanier of The Lanier Law Firm, and Justin Hodge of Johns Marrs Ellis & Hodge, LLP will be available to answer these questions at a neighborhood Q&A session at 5:00 pm on Sunday, September 10. This gathering is meant to provide important information to local residents, as well as clear up a lot of the misinformation that’s been circulating in the community. Please join us at:
Memorial Drive United Methodist Church
Inside Wesley Hall
12955 Memorial Drive
Houston, Texas 77079
Mark Lanier was named the 2016 Trial Lawyer of the Year by The National Trial Lawyers, and in 2017 was inducted in to the National Trial Lawyers’ Trial Lawyer Hall of Fame.
In addition to national recognition, Mark has earned multiple accolades from his legal peers in Texas. In a statewide attorney survey published in Texas Monthly magazine, he has earned selection to the annual Texas Super Lawyers list since it debuted in 2003, including being named one of the Top 10 Attorneys in Texas.
Justin Hodge focuses much of his practice on eminent domain. An area in which he was recognized as a “Rising Star” from 2008-2010, in 2013, and 2017, by both Super Lawyers Magazine and Texas Monthly Magazine.
He represents landowners in condemnation proceedings, not the governmental authorities or private companies taking property. Mr. Hodge has won cases for landowners at every level: administrative hearings, jury trials, and appeals in state and federal courts.
Justin was recently quoted in the Houston Chronicle on this very issue:
“Justin Hodge, a [lawyer that focuses] 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.”
“‘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 knowledgeable in this area of the law.’”
The following is a list of neighborhoods that may have been affected by the flooding caused by the opening of the dams. Please keep in mind that this list may not be complete.
- Briar Forest
- Frostwood Elementary
- Piney Point
- Rummell Creek
- West Houston/Outside Beltway/Energy Cooridor
What is inverse condemnation?
Inverse condemnation is very similar to eminent domain in that both involve the government using your property for its own purposes, such as installing power lines or laying railroad tracks. But while eminent domain involves the government contacting you ahead of time, explaining why it needed your property, and how much you would be compensated for it, inverse condemnation works backwards. In these cases, your property is used with no prior warning, and you are left to request compensation after the fact.
Inverse condemnation vs. flood insurance
Inverse condemnation matters can involve a wide variety of issues. Because Hurricane Harvey and the release of the Addicks and Barker dams involve the flooding of nearby property, many are asking if they need flood insurance in order to bring an inverse condemnation claim. The answer is no. Whether or not an individual has flood insurance doesn’t matter. If you believe you have an inverse condemnation claim, don’t let a lack of insurance prevent you from pursuing it.
What can I do?
Above all else, your primary concern should be the safety and wellbeing of your family. The floodwaters are still receding, and it’s easy to feel overwhelmed. Remember that those filing an inverse condemnation claim have two years from the time the accident happened to do so.
Class action lawsuit in Washington, D.C. says Army Corps of Engineers flooded after Harvey passed
A ‘taking’ claim
“Justin Hodge, a [lawyer who focuses] in eminent domain at Johns Marrs Ellis & Hodge LLP, said such cases boil down to knowledge and intent — whether the government know[s] 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.”
The destruction left in the wake of Hurricane Harvey will take Texas years to recover from. Members of Johns Marrs Ellis & Hodge LLP, along with many of our friends and families, have been directly impacted by the storm’s effects. Our thoughts and prayers continue to go out to all those affected and also to the first responders and volunteers assisting with the recovery efforts.
As gray skies return to summer blue, our lawyers keep getting the following questions: did Houston’s system of reservoirs and dams designed to protect against flooding actually make it worse for some people, and do some property owners have a takings claim against the government for releasing water into their neighborhoods?
The Addicks and Barker Reservoirs on Houston’s west side were designed to store and gently release accumulated water into Buffalo Bayou to help prevent catastrophic flooding to downstream neighborhoods, Houston’s downtown, and the Houston ship channel. But during Hurricane Harvey, as both reservoirs reached their capacities, the Army Corps of Engineers intentionally decided to open the flood gates, intentionally flooding homes and businesses downstream from the dams in the Buffalo Bayou watershed in order to prevent destruction in other areas.
Col. Lars Zetterstrom, the Corps’ Galveston district commander, explained the purposes of the Corps’ intentional release of water: “If we don’t begin releasing now, the volume of uncontrolled water around the dams will be higher and have a greater impact on the surrounding communities.” This was done in an attempt to keep the waters from overtopping the earthen-levee system, which would risk a complete failure of the dam. The tragic, unenviable choice was to flood some to protect other people and other property. The results of that choice were predictable: flooded homes and cars, lives upended, dreams destroyed. For many, everything changed in an instant.
The question remains: Do the property owners directly affected deserve to be compensated for bearing the burden of the larger community? According to the U.S. Supreme Court in a flooding case, the Constitution’s Fifth Amendment is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Arkansas Fish & Game Commission v. United States, 568 U.S. 23, 31 (2012).
We at Johns Marrs Ellis & Hodge LLP will continue to investigate the flooding from the dam releases and will work to serve our friends, families, and neighbors and to protect the rights of those impacted by these tragic events in Texas and throughout the country. If you or a family member were impacted by the flooding caused by the release of water from the dam, then we would ask that you complete the survey at the below link so that we can further investigate the potential takings claims.
Complete the survey here. (Sample survey below).
Who can cut down the tree in your backyard? Recently, this question has caused much controversy. One might intuitively reason that any vegetation located on a piece of land is the property of the landowner, and therefore, is subject to change or removal at their discretion. However, certain laws suggest otherwise. Nearly 50 municipalities in Texas have ordinances prohibiting land owners from removing trees on their private property without the city’s permission. Even when the requests are approved, landowners are often assessed a fee which the cities justify on the grounds that the trees are a “public good,” and so their removal comes at a cost.
Municipalities argue that these ordinances are a means of limiting tree removal, and claim that the trees confer a public benefit. They suggest that since municipalities regulate numerous other aspects of private property, such as through zoning ordinances and health and safety codes, protecting trees is a logical extension of the same. It is unclear at this point whether the legislature or the courts will see fit to provide guidance on the tricky question of how much regulation is too much.
A compelling case could be made that these ordinances impose an uncompensated “regulatory taking” on landowners. A regulatory taking occurs when government regulations substantially interfere with or disturb a property owner’s use and enjoyment of their property rights. If proven, the government is then required to provide just compensation. Often, these types of regulations reduce a property’s value or potential uses. However, not all types of government regulation of property rise to the level of a taking.
The Adorers of the Blood of Christ (“Adorers”), an order of Catholic nuns, built an open-air chapel in hopes of blocking construction of the Atlantic Sunrise project, a natural gas pipeline expansion in Pennsylvania. The chapel was dedicated on July 9, 2017 and sits directly in the pipeline’s proposed path. Court papers filed by the Adorers with the Federal Energy Regulatory Commission (“FERC”) assert that a decision by FERC to force the Adorers to accommodate the pipeline is “antithetical to [their] deeply held religious beliefs and convictions.” Lawyers for the Adorers assert that the nuns’ religious convictions “compel the Adorers to exercise their religious beliefs by, inter alia, caring for and protecting the land they own as well as actively educating and engaging on issues relating to the environment.”
The chapel could halt or delay the Atlantic Sunrise project to be constructed by Williams Partners (“Williams”), an Oklahoma-based energy company. Williams seeks to lay 183 miles of pipeline across Pennsylvania, which would expand the Transco pipeline system that currently transports natural gas from Texas to New York. According to a company statement, the $3 billion expansion of the existing Transco natural gas pipeline would “create a crucial connection between Pennsylvania and consuming markets all along the East Coast.” This dispute between the Adorers and Williams revolves around the 1993 Federal Religious Freedom Restoration Act, which states that “governments should not substantially burden religious exercise without compelling justification.” Earlier this year, FERC cleared the way for the pipeline’s construction, including the condemnation of property in its path. The result of any legal challenge by the Adorers may affect the nature of the intersection between condemnation law and the laws of religious freedom. It remains to be seen whether these particular circumstances could support a legal outcome favoring the Adorers.
The Longhorn pipeline, a crude oil pipeline operated by Magellan Midstream Partners (“Magellan”), ruptured approximately 4 miles southwest of Bastrop, Texas on July 13, 2017. The pipeline transports crude oil from Crane, Texas to Houston, Texas, a distance of roughly 500 miles. A contractor was performing maintenance on the pipeline, which was operating when it ruptured. As a result, an estimated 1,200 barrels (50,400 gallons) of crude oil spilled into the surrounding area.
Residents within a 1-mile radius of the rupture were asked to evacuate while residents within a 2-mile radius were given the option to either evacuate or take shelter in their homes. FM 520, the nearby thoroughfare, was shut down in both directions.
When it ruptured, the Longhorn pipeline was running at or near its full capacity. The Longhorn pipeline is a large capacity pipeline capable of transporting upwards of 200,000 barrels of crude oil per day. A prolonged shutdown could potentially mean that suppliers would have to look elsewhere to get their crude oil transported to the Gulf Coast.
This is not the first spill involving a Magellan operated pipeline. In January, a pipeline transporting diesel fuel spilled roughly 45,000 gallons of diesel in Northern Iowa.
A significant portion of property takings in Texas are the result of oil and gas pipeline projects. Incidents such as this serve as a reminder that even after condemnation proceedings have concluded, pipelines can still carry risks and create health and safety concerns. Due to the hazardous nature of the products pipelines transport, the potential for accidents poses an enduring threat to crops, livestock, water supplies, and property values. Landowners would do well to keep these considerations in mind when approached by oil and gas companies seeking to obtain an easement across their land.
Written by Graham Taylor