The Court of Federal Claims has held the United States responsible for a regulatory taking because it created reservoirs and dams that it knew, or should have known, would overflow onto neighboring property and did nothing to stop that from happening. In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 2019 WL 6873696 (Fed. Cl. 2019).
The case is significant because the government is not normally liable for failing to act. But as with any private tort, an omission can be a tortious act if someone has a duty to act or acts to create a situation that is inherently dangerous. In this case, plaintiff property owners claimed that the project design was defective because the Army Corps of Engineers knew that flooding was possible and that the surrounding government-owned land was insufficient to contain those waters so that neighboring property would likely be flooded in a major storm.
The court found that the government's decisions about its project meant that it had effectively constituted a "physical, permanent, non-categorical taking for a flowage easement" Id. at *20. The court cited Arkansas Game & Fish, 568 U.S. 23 (2012) and Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872), United States v. Cress, 243 U.S. 316 (1917), and United States v. Dickinson, 331 U.S. 745 (1947). While the taking in Arkansas Game & Fish was temporary in nature, the court found this taking was permanent since it amounted to an easement that would subject the land to continual invasions by water in the future whenever a major storm occurred.
In addition, the court found that these contemplated harms were intended by the United States because "the dams protected downstream properties…while concurrently causing upstream properties to suffer from severe flooding." Id. at *25. This situation was the result of "intended or foreseeable" conduct on the part of the United States. Id. at *26. The flooding was the foreseeable consequence of the government's actions in designing and modifying the flood control measures. "[T]he Corps knew from the outset that the land it purchased was inadequate to hold the amount of water that would be contained in the reservoirs should the embankment-design storm occur. It knew then that if such a storm transpired, the water produced would exceed government-owned land and flood private property." Id. at *30.
The court also found that the flooding interfered with reasonable, investment-backed expectations because the flooding from Hurricane Harvey "was different in kind from that which had occurred naturally and from what [the land owners] had reason to anticipate…" Id. at 31.