2020 Environmental Real Estate Issues

Fort Bend County sued the US Army Corps of Engineers (USACE) under the Administrative Procedure Act (APA), claiming USACE failed to comply with its regulatory obligations to protect upstream landowners from flooding in the Buffalo Bayou watershed in and near Houston, Texas.

Dismissal and Reversal
The district (trial level) court in Houston dismissed the suit, stating the County’s claims were for a “taking” of property, for which exclusive jurisdiction belongs in the US Court of Claims in Washington, D.C. The district court also stated the County failed to allege any APA claims recognized under federal law against USACE.

The 5th Circuit reversed, holding that the County properly alleged claims under the APA, for which the district court has jurisdiction. The 5th Circuit also concluded the County alleged claims that could be addressed under the APA.

Not a “Takings” Case
The 5th Circuit held that part of the relief the County requested, that USACE must be ordered to acquire land, does not state a “takings” claim.
USACE argued that no regulations identify a discrete, mandatory duty for USACE to do what the County requests. The 5th Circuit held the district court has jurisdiction to determine if that is or is not correct.

Federal Law May Provide Relief
USACE argued the County’s pleadings did not show a basis for relief under federal law. For example, the County complained of USACE’s failure to follow rules that have since been changed. The 5th Circuit held that allegations based on older regulations are not necessarily precluded by changes unless the district court reviews the changes to determine if they are substantive.

While the 5th Circuit concluded federal law did not require USACE to revise the watershed’s Water Control Manual based on recent flooding events, USACE may have had a duty to acquire additional land for flood control use and the district court has jurisdiction to consider that claim.

To see the 5th Circuit’s opinion https://www.ca5.uscourts.gov/opinions/pub/21/21-20174-CV0.pdf

½-Off Ethics CLE February 23
I will be one of four lawyers presenting “Litigation Privilege, Attorney Immunity and Ethics” on February 23, 2023, noon-1:30 PM Central. If you are interested in a 50% discount on the registration fee for this Strafford webinar, contact me at jsmith@craincaton.com