On January 12, 2022, the United States Court of Appeals for the Federal Circuit heard Milton v. United States (The Tropical Storm Harvey Downstream Flooding Cases). 

Russell S. Post for the landowners/appellants framed the question as “not whether property owners have a right to perfect flood control, it is whether those property owners held their property in fee simple, not subject to a flowage easement. And assuming so, whether they must bear the cost of the government’s decision to inundate downstream properties as a precautionary measure, not as an emergency action during Tropical Storm Harvey.” Moreover, Mr. Post asserted that the dam was performing properly and that there was no threat of failure when the gates were opened. He urged the Federal Circuit to decide the “property rights question and then remand the other questions for full development.”

Brian C. Toth for the government argued that there is a baseline that the court needs to recognize in terms of the flooding prior to the government’s discretionary decision to build the dam in the first instance. Further, that background principle of a baseline can be used in a lot of different lenses, such as causation and for the property interest. The government also argued that the Federal Circuit should affirm the lower court’s decision based on causation, citing Saint Bernard Parish v. United States, 887 F.3d 1354 (Fed. Cir. 2018). However, the Court recognized that in Saint Bernard Parish, there was no government actor consciously raising flood gates and inundating property. 

Excellent job to Mr. Post in his defense of Texas property owners in their fight seeking just compensation for the government’s taking!

Here is s a link to listen to the oral argument. https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/