[00:00:00] Speaker 03:
This is 2021, 1131, 32, and too many cases to recite here.

[00:00:08] Speaker 03:
Virginia Milton and Arnold Milton versus the United States.

[00:00:13] Speaker 03:
And let me ask counsel preliminarily.

[00:00:17] Speaker 03:
Be mindful and alert to the likelihood that judges may ask a question when we're in open court.

[00:00:26] Speaker 03:
You can see when we're about to pounce on you, but you can't see us now.

[00:00:32] Speaker 03:
So rather than have two of us talking at once, please be alert to the sound of the judge asking the question.

[00:00:40] Speaker 03:
Please proceed, Mr. Post.

[00:00:43] Speaker 02:
Thank you, Your Honor.

[00:00:44] Speaker 02:
I appreciate it and may it please the court.

[00:00:47] Speaker 02:
The question presented in this case is not whether property owners downstream of the Attucks and Barker reservoirs have a property right to perfect flood control.

[00:00:57] Speaker 02:
It is whether those property owners held their property in fee simple, not subject to a flow achievement, 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.

[00:01:16] Speaker 02:
The Court of Federal Claims denied these claims based on the lack of a property interest in what it called perfect flood control.

[00:01:24] Speaker 02:
But to be clear, that ruling knocked down a straw man.

[00:01:27] Speaker 02:
The property owners have never alleged a property right to perfect flood control.

[00:01:32] Speaker 02:
They alleged fee simple title unencumbered by any flow achievement.

[00:01:37] Speaker 02:
And the court's ruling that Texas property owners have no protected property right under these circumstances

[00:01:43] Speaker 02:
cannot be reconciled with bedrock principles of Texas law.

[00:01:48] Speaker 03:
Mr. Post, is there any governing Texas precedent establishing a property interest in perfect flood control?

[00:02:00] Speaker 02:
Your Honor, I don't believe that any Texas precedent addresses that question.

[00:02:04] Speaker 02:
That's not the relevant property interest as recognized in Texas law.

[00:02:08] Speaker 02:
Texas law recognizes the right to hold property free of a flow adjudgment.

[00:02:14] Speaker 02:
The precedent established that proposition, I think, well.

[00:02:17] Speaker 02:
And there are four Texas Supreme Court cases in particular that I would call the Court's attention to to establish that proposition.

[00:02:25] Speaker 02:
The first is the Texas Supreme Court's decision in the City of Graham case in 1961 where the Supreme Court found a taking of a flow achievement over property upstream of a dam based on alterations in river flow.

[00:02:40] Speaker 02:
And the second is the GRAG decision in 2004 where the Supreme Court found a taking of a flow achievement over property downstream of a dam based on reservoir operations that created flood conditions.

[00:02:52] Speaker 02:
Taken together, those two cases establish that the Texas Supreme Court recognizes a property right in this context and the existence of that right does not turn on whether the property is upstream or downstream of a dam.

[00:03:07] Speaker 02:
And as the court knows, the appellants have filed a motion to take judicial notice of the judgments in City of Graham and in

[00:03:13] Speaker 02:
because those judgments established the precise nature of the Texas property right.

[00:03:18] Speaker 02:
They established that the government took a flow adjudgment granting it a right to flood, overflow, inundate, and submerge the property.

[00:03:26] Speaker 02:
And that's exactly the property right that's at issue in this litigation.

[00:03:30] Speaker 03:
In two cases... Yes, Your Honor.

[00:03:32] Speaker 03:
There's no basis for distinction in terms of the law between this case and the already decided upstream case.

[00:03:42] Speaker 02:
That is correct, Your Honor.

[00:03:43] Speaker 02:
With respect to the property right, there's no basis for a distinction.

[00:03:47] Speaker 02:
If Judge Smith's rationale were correct, that would be equally true as to the upstream case.

[00:03:53] Speaker 02:
And Judge Lutto, we believe, correctly differentiated between this property right question under state law and the federal takings question and recognized that under Texas state law, these property owners do have a protected property interest.

[00:04:07] Speaker 02:
And so, I think that's a conflict that this court cannot tolerate when you have the same question decided arising out of the same event by two members of the Court of Federal Claims reaching... Council, this is... Yes, Your Honor.

[00:04:20] Speaker 04:
Unfortunately, I can't remember the names of the cases, but I do believe the other side and maybe the Claims Court as well cited to some example cases where courts have found

[00:04:34] Speaker 04:
that some kind of pre-existing limitation existed to an owner's property right such that the property right wasn't as expansive as it normally is as a default matter, but it was cabined by some pre-existing limitation.

[00:04:55] Speaker 04:
And I was hoping you could speak to that and explain why that's not true in this instance when people were purchasing homes

[00:05:04] Speaker 04:
downstream of a dam with floodgates.

[00:05:09] Speaker 02:
I'd be delighted to, Your Honor.

[00:05:10] Speaker 02:
That's actually a principal focus of the point that I wanted to make today because I think the government's characterization of those cases is inaccurate.

[00:05:19] Speaker 02:
Let me begin by pointing the Court to two recent Supreme Court decisions that I think recognize the basic property right and then turn to how those cases synthesize with the proposition you're asking about.

[00:05:32] Speaker 02:
In the Kerr decision in 2016, the Supreme Court recognized that a conscious decision to subject particular properties to inundation would give rise to a taking claim.

[00:05:42] Speaker 02:
The necessary predicate of that holding is that there's a protected property right against inundation.

[00:05:48] Speaker 02:
And just last year, in the Medina decision, which arose out of state court litigation involving Tropical Storm Harvey, so the same context,

[00:05:58] Speaker 02:
involving flooding of downstream properties.

[00:06:00] Speaker 02:
The Supreme Court said that a decision to flood downstream properties for a public purpose can be compensable as a physical taking.

[00:06:08] Speaker 02:
And so those cases established the property right as a general proposition.

[00:06:13] Speaker 02:
Now, with respect to the question that the Court has posed, how that reconciles with the idea of background principles.

[00:06:18] Speaker 02:
The briefs obviously clashed sharply over that issue, and I think I can synthesize these cases for the court today.

[00:06:24] Speaker 02:
Because the cases cited by the government about background principles and police power, when studied closely, all come down to a common denominator, which is the necessity defense.

[00:06:35] Speaker 02:
In a proper case,

[00:06:37] Speaker 02:
The privilege to invade property out of necessity is a background principle that may limit property rights.

[00:06:44] Speaker 02:
And the U.S.

[00:06:45] Speaker 02:
Supreme Court recognized that general proposition in the Lucas decision.

[00:06:49] Speaker 02:
And just last year in Cedar Point, Chief Justice Roberts alluded to that, pointing to necessity as a limitation on property rights.

[00:06:56] Speaker 02:
The problem is the government can't make a necessity argument here.

[00:07:00] Speaker 02:
Because as this court has held in Trinco Investment Company, the defense requires an imminent danger

[00:07:07] Speaker 02:
and an actual emergency that gives rise to an actual necessity.

[00:07:11] Speaker 02:
The government doesn't even assert that defense in this appeal because the facts don't support it.

[00:07:16] Speaker 02:
And in fact, in the upstream case, Judge Leto denied it on the merits.

[00:07:20] Speaker 02:
You can see that in the appendix at pages 56, 65 to 66.

[00:07:25] Speaker 02:
And our record is the same.

[00:07:26] Speaker 04:
Is it wrong to call Hurricane Harvey in 2017 an act of God?

[00:07:30] Speaker 02:
It is not wrong to call the hurricane an act of God.

[00:07:34] Speaker 02:
but there was therefore there was a major emergency situation on the ground and that's actually not correct your honor on our record because the hurricane did not flood these properties and i want to give the court a series of appendix citations that are critical on this point the downstream properties did not flood because of discharge from

[00:07:55] Speaker 02:
the hurricane and the rainfall.

[00:07:56] Speaker 02:
They flooded because the government opened the floodgates.

[00:08:01] Speaker 02:
And at page 2132 of the appendix, the Corps admits that its decision to open the floodgates was not an act of God.

[00:08:09] Speaker 02:
And here is what is really critical for understanding the necessity point.

[00:08:15] Speaker 03:
That's a question of causation, which wasn't decided below, and we can't decide here, right?

[00:08:22] Speaker 02:
Well, Your Honor, I think that the causation issue was not decided below, and it's not necessary to reach here.

[00:08:27] Speaker 02:
But the question whether the floodgates were in an emergency situation is a factual question that relates to this alleged background limitation.

[00:08:38] Speaker 02:
And factually, it is incorrect.

[00:08:41] Speaker 02:
And I point the Court to the Court's own official statements.

[00:08:44] Speaker 02:
You can see at page 4151 of the appendix and page 631 of the appendix,

[00:08:50] Speaker 02:
the Corps' official statements during this operation when it was ordering the induced surcharges, where the Corps said the structures continue to perform as they were designed to do.

[00:09:01] Speaker 02:
And critically, at page 2136 of the appendix, you will see the Corps' own assessment after the fact in which the Corps reached the conclusion that the project was performing as expected with no significant problems during Tropical Storm Harvey.

[00:09:17] Speaker 02:
The facts are, and the Corps admits it,

[00:09:20] Speaker 00:
Is the question of whether there was an actual necessity part of the analysis of whether a taking occurred and not whether plaintiffs have a property interest?

[00:09:29] Speaker 00:
I just want to make sure I understand exactly where that fits into the analysis in your view.

[00:09:34] Speaker 02:
Your Honor, in my view, it is best understood as part of the taking analysis as a defense to the act of a taking.

[00:09:42] Speaker 02:
But there is authority for the proposition to the extent there was a viable necessity defense that would give rise to a privilege.

[00:09:49] Speaker 02:
that would be a limitation on the property right.

[00:09:53] Speaker 02:
But the point here is that the government doesn't have the record to establish that necessity defense, so it doesn't have a limitation on the right.

[00:10:01] Speaker 02:
And the last two appendix references I would give to the court are at pages 21, 33,

[00:10:07] Speaker 02:
and 1421, where the Corps representatives admitted there was no threat of immediate dam failure, this was not an emergency.

[00:10:16] Speaker 02:
That is why the government is not arguing the necessity defense here.

[00:10:20] Speaker 02:
But without the ability to argue necessity, there is no limiting background principle of Texas law that limits the property right.

[00:10:27] Speaker 02:
And the final point I'd make,

[00:10:29] Speaker 00:
is that... Councilor, if we were to decide to remand this case, what would you say would be kind of the scope of proceedings that would need to happen below, in your view?

[00:10:40] Speaker 02:
Your Honor, in my view, the Court should decide as a matter of law the existence of a protected property interest.

[00:10:46] Speaker 02:
We certainly have addressed in the briefing the elements of the takings claim, but we believe upon reflection that the most prudent course would be to decide the property rights question and then remand the other questions

[00:10:59] Speaker 02:
for full development.

[00:11:00] Speaker 02:
And there really are three reasons, if I may explain to Your Honor, why that would be my view.

[00:11:05] Speaker 02:
The first is that the court obviously does not have a reasoned decision from the lower court on those takings elements.

[00:11:11] Speaker 02:
And we think precise recognition of the property rights could guide the court.

[00:11:15] Speaker 02:
The second is that the upstream case covers many of these same issues.

[00:11:19] Speaker 02:
There's a liability judgment at upstream.

[00:11:21] Speaker 02:
And the damage trial is set for March 21.

[00:11:24] Speaker 02:
So it might be better to let those records be fully developed.

[00:11:27] Speaker 02:
And the third, and I think an important prudential point, is that this court has before it, in the Idicker Farms Appeal, the causation question that is,

[00:11:37] Speaker 02:
tertiary to our case, but it's principal to Idicker Farms.

[00:11:41] Speaker 02:
And in that case, former Solicitor General Donald Verrilli is clashing directly with the government over the correct causation analysis, where you have a situation like this, where prior acts have reset the causation baseline.

[00:11:54] Speaker 02:
We think it might be better to let Idicker Farms develop that issue before it's decided in our case.

[00:11:58] Speaker 04:
This is Judge Chen.

[00:11:59] Speaker 04:
Are those plaintiffs in the same footing as the plaintiffs here, downstream?

[00:12:04] Speaker 02:
The Idicker Farms case?

[00:12:06] Speaker 02:
Yes.

[00:12:07] Speaker 02:
Your honor, those plaintiffs have a judgment.

[00:12:09] Speaker 02:
They have proceeded to final judgment, and they are defending a judgment.

[00:12:16] Speaker 04:
And what's the status of the appeal?

[00:12:19] Speaker 02:
The appeal is, in the briefing stage, the principal briefs have been filed.

[00:12:23] Speaker 02:
That is case number 2021-1849 and 1875, your honor.

[00:12:32] Speaker 02:
OK.

[00:12:34] Speaker 02:
And if the court has no further questions, I'll reserve the remainder of my time.

[00:12:38] Speaker 03:
We will do that, Mr. Post.

[00:12:41] Speaker 03:
Mr. Toth for the government.

[00:12:46] Speaker 01:
Thank you, your honor.

[00:12:47] Speaker 01:
May it please the court.

[00:12:49] Speaker 01:
Hurricane Harvey was the largest rainstorm recorded in the nation's history, a natural disaster that resulted in billions of dollars in property damage and dozens of lives lost.

[00:12:59] Speaker 01:
The storm was undeniably a tragedy, but it was not a Fifth Amendment taking by the government.

[00:13:05] Speaker 01:
Plaintiffs make the extraordinary claim that the Fifth Amendment requires compensating them for flooding that occurred on their properties downstream of the Buffalo Bayou and Tributaries project.

[00:13:15] Speaker 01:
Two dams and reservoirs operated in this highly flood-prone region by the Army Corps of Engineers solely for the purpose of flood control and according to a long-standing water control manual.

[00:13:26] Speaker 01:
The Court of Federal Claims dismissed plaintiffs' claims and for the numerous reasons outlined in our brief that dismissal was correct,

[00:13:32] Speaker 01:
I'd like to focus on two main points this morning.

[00:13:35] Speaker 04:
This is Judge Chen.

[00:13:36] Speaker 04:
I was just curious.

[00:13:38] Speaker 04:
Is there any case law that has defined property interest of a landowner as a right to perfect flood control in the face of an act of God?

[00:13:56] Speaker 01:
No.

[00:13:57] Speaker 01:
And that's our first contention that there

[00:14:01] Speaker 01:
is not a case that recognizes a plaintiff as the right.

[00:14:05] Speaker 04:
I guess another way of asking it is, I'm not aware of any case that's posed the property right interest question in that manner.

[00:14:13] Speaker 01:
I think that's a fair observation.

[00:14:16] Speaker 01:
I think our point is that there is a baseline that the court needs to recognize in terms of what happened prior to the government's discretionary decision to build this project in the first instance.

[00:14:31] Speaker 01:
which is that there was natural flooding.

[00:14:34] Speaker 01:
And that background principle of a baseline can be viewed through a lot of different legal lenses in deciding these issues.

[00:14:42] Speaker 01:
In the St.

[00:14:42] Speaker 01:
Bernard Parish case, causation viewed the entirety of the government action is depending on the baseline, a comparison to the baseline of what would have happened before the government acted to build either of the projects that were issued in that case.

[00:14:57] Speaker 01:
And that was dispositive.

[00:14:59] Speaker 01:
And the same is true here, both for causation and for the property interest.

[00:15:09] Speaker 04:
Okay, but is there a case out there that has defined the property interest of a landowner in a water flooding case in a way that confines it to some kind of

[00:15:29] Speaker 04:
pre-existing limitation, which is what the claims court appeared to be doing here?

[00:15:35] Speaker 04:
Or as opposed to just straight up was a flow, flow adjudgment taken by the government?

[00:15:43] Speaker 01:
So I'm not aware of a case that's precisely been decided in those terms, either for or against our position.

[00:15:50] Speaker 01:
That's why I think the claims court looked to the general principles

[00:15:55] Speaker 01:
of under state law of recognizing that the police power is a background principle of any property interest.

[00:16:03] Speaker 01:
But no, to directly answer your question, there is not a case that decided that in the context of the specific facts we're talking about here.

[00:16:10] Speaker 04:
I heard the other side say that the government is not claiming a necessity defense and that, and so that,

[00:16:25] Speaker 04:
out of necessity that because of necessity, that is a hard limit on the property right interests here of the plaintiffs.

[00:16:36] Speaker 01:
They're correct.

[00:16:39] Speaker 01:
We're not arguing that on appeal because there is a dispute of material fact about that defense, but we did reserve it by asserting it on page 723 of the appendix in our answer.

[00:16:50] Speaker 01:
And if the case were to be remanded, we would certainly raise it as a defense

[00:16:54] Speaker 01:
to be litigated at trial, but we can't ask for judgment in our favor on the records here at this summary judgment stage on that issue.

[00:17:03] Speaker 00:
However... Can I also ask you about the scope of a remand?

[00:17:06] Speaker 00:
So, if we were to remand it, and you just alluded to that possibility, what would you say would be, need to be done at the Queens Court, in your view?

[00:17:16] Speaker 01:
Well, certainly, if you decided the case only on the narrow ground of whether there was a protected property interest

[00:17:24] Speaker 01:
All the remaining issues that the parties have raised in the appellate brief here would have to be decided.

[00:17:30] Speaker 01:
That could occur potentially through another round of summary judgment briefing or it could occur potentially through trial proceedings.

[00:17:39] Speaker 01:
The issue of causation is really at the forefront of our defense and we believe that the records here provides an alternative basis for affirming the CSC's decision on the basis of causation.

[00:17:51] Speaker 01:
Much like the St.

[00:17:54] Speaker 01:
Bernard Parish dispute, the parties here disagree over the correct legal standard applicable for causation, but even under a formulation that's very generous to plaintiffs, the record here supports the government's contention that in the absence of the project, and indeed, even assuming the presence of the project, in the absence of the Corps closing the gates on a Friday afternoon to detain Stormwater

[00:18:21] Speaker 01:
that fell exclusively from the storm, the plaintiffs would have been flooded to a greater degree.

[00:18:28] Speaker 01:
They cannot demonstrate that the Corps of Engineers, rather than the storm, was the cause of the flooding on their property.

[00:18:36] Speaker 00:
So in your view, you don't believe causation would need to be tried if we were to remand?

[00:18:41] Speaker 00:
Is that what you're contending?

[00:18:42] Speaker 00:
I just want to make sure I understand what you're saying.

[00:18:45] Speaker 01:
Correct.

[00:18:45] Speaker 01:
We believe that it could be decided in our favor on summary judgment.

[00:18:50] Speaker 01:
could also be decided by this court as an alternative ground for appeal.

[00:18:55] Speaker 01:
But yes, certainly we believe that under the correct legal standard, we win on causation and that there's not a dispute of fact.

[00:19:03] Speaker 04:
This is Judge Chen.

[00:19:04] Speaker 04:
Is there a potentially key distinction between the facts here and the facts at St.

[00:19:09] Speaker 04:
Bernard Parish in that here we had a dam operator make the conscious choice to raise the floodgates?

[00:19:18] Speaker 04:
which then caused a whole bunch of water in the reservoirs to flow downstream as opposed to St.

[00:19:26] Speaker 04:
Bernard Parish where there was no government actor doing that.

[00:19:32] Speaker 04:
They were just these levees that had been built and the levees were designed to help avoid flooding but there wasn't any government action like the one I just described here.

[00:19:45] Speaker 04:
Is that fair to say?

[00:19:47] Speaker 01:
That's the distinction that my friend on the other side would like to make, but I would urge, my view is that, and the government's view is that that is too narrow of a picture of the government's action at issue here.

[00:20:00] Speaker 04:
I understand that.

[00:20:03] Speaker 04:
You want to look at the larger question of just going back in time to building the dam and reservoir in the first place.

[00:20:10] Speaker 04:
But what I'm trying to say is maybe there's just this added

[00:20:14] Speaker 04:
little twist in this case that doesn't quite make it on all fours with St.

[00:20:18] Speaker 04:
Bernard Parish.

[00:20:21] Speaker 01:
There's certainly the added twist of the government operating a flood control project to protect plaintiff's properties and then having to open the gates

[00:20:31] Speaker 01:
and that being alleged to be the cause of the flooding, I think you don't even need to reach back to the construction of the project.

[00:20:37] Speaker 01:
You just need to reach back several days to the Friday of the storm when the dam was not holding back any water whatsoever.

[00:20:46] Speaker 01:
The reservoirs were completely dry.

[00:20:49] Speaker 01:
They filled up by Friday afternoon, and the Corps then made the conscious, intentional decision to close the gates in accordance with its operating manual.

[00:20:57] Speaker 01:
So I think that the intent there was to operate the project

[00:21:01] Speaker 01:
over the course of the storm in accordance with the manual.

[00:21:04] Speaker 01:
And that manual serves the project's objective of using the space in the reservoir to the maximum extent practicable to protect downstream properties and other properties.

[00:21:16] Speaker 01:
But principally, you know, the city of Houston and the Houston Ship Channel, that's enuring the planet's benefit.

[00:21:23] Speaker 01:
It was only on that Sunday evening, a couple days later, when the Corps began releasing water, again, in accordance with its manual.

[00:21:31] Speaker 01:
So the intent that we're talking about, I think it cannot be sliced so thinly to examine only that Sunday evening event without also looking at just a couple days prior.

[00:21:43] Speaker 01:
The point of all of this is that it was the core's operation of the project during the entire storm that is at issue and that should be looked at.

[00:21:58] Speaker 03:
Anything further, Council?

[00:22:03] Speaker 01:
I'm not sure where I'm at on my time, Your Honor.

[00:22:06] Speaker 03:
I think you're at about nine minutes and so you probably have about six minutes more and you'll hear the signal when your time has expired.

[00:22:14] Speaker 01:
Very good, yes.

[00:22:15] Speaker 01:
So to address the first argument that my friend was making about the protected property rights, you know, I think that is a reinforced

[00:22:27] Speaker 01:
by not just state law, but also the Federal Flood Control Act, as well as background principles of government police power.

[00:22:35] Speaker 01:
The property interest has to be construed in light of the decision by Congress in the late 1920s to embark upon a program of flood control and eventually extend it throughout the nation in the 1930s.

[00:22:50] Speaker 01:
When it did so,

[00:22:51] Speaker 04:
Is federal law relevant when it comes to defining what a property interest is?

[00:22:57] Speaker 04:
I thought that was governed by state law.

[00:23:01] Speaker 01:
It's principally governed by state law, but I think here where you have the core acting in exercise of the police powers conferred upon it by Congress in exercise of its commerce clause power, that legitimately can be a lens through which you view the property interest here.

[00:23:20] Speaker 01:
Particularly, the Flood Control Act conferred broad immunity on the government.

[00:23:25] Speaker 01:
In other contexts, the immunity provision 702C is not directly applicable here, but it was integral to Congress's decision in the first instance to embark upon this program of charging the Army Corps of Engineers with flood control across the nation.

[00:23:43] Speaker 01:
And that's what they said.

[00:23:45] Speaker 00:
Can you address California versus the United States in terms of the Flood Control Act?

[00:23:49] Speaker 00:
You were just getting into that point in your argument here.

[00:23:53] Speaker 01:
Yes.

[00:23:53] Speaker 01:
So our point is that California holds that it was in the context of a contract dispute that the Flood Control Act 702C does not take away the Tucker Act jurisdiction.

[00:24:06] Speaker 01:
And we are not arguing as an issue of jurisdiction

[00:24:10] Speaker 01:
Tucker Act doesn't extend to 50 minute claims, or that somehow through 702C, Congress has taken away jurisdiction over these claims.

[00:24:20] Speaker 01:
What I'm trying to emphasize is the context within which the Army Corps of Engineers was originally charged with its statutory mission of protecting properties against flooding and attempting to control flooding.

[00:24:34] Speaker 01:
And if you examine the legislative history of that provision as explained in the James decision by the Supreme Court,

[00:24:41] Speaker 01:
you'll find that Congress understood well that it was conferring broad immunity for property damages owing to the operation of a flood control project.

[00:24:53] Speaker 01:
And it would not have done so if it also didn't have an understanding, and this is borne out by the legislative history, that any sorts of tort claims that might be immunized by the statute could not be repled as takings claims.

[00:25:12] Speaker 01:
And in particular, I would point the court to Judge Easterbrook's decision from the Seventh Circuit that's cited in Arkansas Game and Fish decision.

[00:25:21] Speaker 01:
It's the in Ray Chicago Railway Company case where the Seventh Circuit made that clear that the limitations on tort liability that Congress had enacted were not merely pleading obstacles to be overcome by repackaging a claim in terms of taking law.

[00:25:43] Speaker 04:
Could you speak to how police power can be in the property interest context applied to redefine that property interest downwards?

[00:25:56] Speaker 04:
It's so-called police power doctrine is a very vague kind of a club and seems very case specific.

[00:26:07] Speaker 04:
I don't know how it applies in the context here.

[00:26:14] Speaker 04:
There's a dispute of fact about necessity here.

[00:26:17] Speaker 04:
So putting that to the side, what's left of your police power argument in the property interest context?

[00:26:30] Speaker 01:
Well, it's certainly our argument is that the police power forms a background principle of when in the bundle of six that plaintiff's property right makes up and that any property rights can have.

[00:26:43] Speaker 01:
I mean, they certainly have a,

[00:26:44] Speaker 01:
a few simple interests.

[00:26:46] Speaker 01:
It's just whether that bundle of sticks includes the right to be protected against flooding in all circumstances by the federal government.

[00:26:54] Speaker 01:
And the federal government here, it's not just that the plaintiffs want their property protected according to the way the Corps has decided to protect it under its manual.

[00:27:07] Speaker 01:
It's that they want the Corps to operate the project differently upon pain of compensation.

[00:27:13] Speaker 01:
So the Corps has, in that sense, exercised already its judgment and its authority given to it by Congress to protect against flooding.

[00:27:23] Speaker 01:
And we think that makes up a background principle that you have to understand in determining whether they have a stick in their bundle of sticks that makes up their property right to demand such a level of protection.

[00:27:37] Speaker 04:
I guess what I'm trying to figure out is all of that best understood as,

[00:27:42] Speaker 04:
part of the step two analysis in the takings and trying to figure out whether the government is responsible for causing and taking a flow adjustment here.

[00:27:58] Speaker 01:
I take your honor's point and I understand my time to be up, but I'll attempt to address your question.

[00:28:06] Speaker 01:
Thank you.

[00:28:09] Speaker 01:
The case, you know, the court has different options in how to resolve this case.

[00:28:15] Speaker 01:
I take Your Honor's point about the property interests and that the principles we are discussing might be better conceived in terms of taking liability.

[00:28:27] Speaker 01:
But I don't think that prevents the court from ruling in the government's favor on any of the alternative grounds that we've laid out in our brief or that I've already discussed.

[00:28:38] Speaker 03:
Thank you, Counsel.

[00:28:39] Speaker 03:
Mr. Post has some rebuttal time.

[00:28:46] Speaker 02:
Thank you, Your Honor.

[00:28:47] Speaker 02:
I'd like to address three subjects in my rebuttal time, the existence of the property right, the argument about background principles and police power, and the question of causation.

[00:28:57] Speaker 02:
First, I think it's telling that in response to Judge Chen's question, the government concedes no Texas case has ever framed the property right as a perfect flood control right, and there's really no answer to the Texas Supreme Court decisions that recognize the core property right at issue.

[00:29:13] Speaker 02:
That's sufficient to decide our case.

[00:29:16] Speaker 02:
Second, the argument about background principles.

[00:29:19] Speaker 02:
This is the necessity issue because, as I pointed out in the opening argument, the background principles that could be material to the existence of a property right as recognized by the U.S.

[00:29:29] Speaker 02:
Supreme Court

[00:29:30] Speaker 02:
are the privileges to invade property for nuisance or necessity.

[00:29:35] Speaker 02:
The government honorably concedes that's not an issue in this appeal because the record will not permit it and there's no other background principle.

[00:29:42] Speaker 02:
Now Judge Chen, you asked for a case that speaks to this issue in particular and you asked about the relationship between these principles and police power.

[00:29:50] Speaker 02:
I would call your attention in particular to the City of Teague versus

[00:29:56] Speaker 02:
pardon me, the City of Austin versus Teague decision, a 1978 decision by Justice Jack Pope, who was really a legendary jurist in Texas.

[00:30:04] Speaker 02:
He looked at the history of the relationship between eminent domain power and the police power in Texas jurisprudence, and he explained that going back to the City of Grand decision in 1961,

[00:30:16] Speaker 02:
the Texas Supreme Court had rejected semantic line-drawing efforts to distinguish between eminent domain power and police power.

[00:30:24] Speaker 02:
And since City of Graham, Justice Pope wrote, this court has in three decisions rejected the dichotomy, holding that one's property may not be taken without compensation, even in the exercise of the police power.

[00:30:38] Speaker 02:
And two years later in the Steele v. City of Houston case, Justice Pope returned to that same proposition and said the court had, quote, moved beyond the earlier notion that the government's duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers.

[00:30:56] Speaker 02:
So that distinction that the government stands on is no longer recognized in Texas taking law.

[00:31:02] Speaker 02:
With respect to the government's argument about the Flood Control Act, I really can't do better than the retort that Justice Scalia gave when the government made this argument at Arkansas game.

[00:31:12] Speaker 02:
He said Congress can't overrule the takings clause.

[00:31:15] Speaker 02:
If this is a taking under federal law, the Flood Control Act is not a defense.

[00:31:19] Speaker 02:
Finally, the third topic on causation.

[00:31:22] Speaker 02:
I want to affirm Judge Chen's question about a key distinction between this case and St.

[00:31:27] Speaker 02:
Bernard Parish being a conscious decision to inundate downstream properties.

[00:31:32] Speaker 02:
It is not simply a distinction we draw.

[00:31:35] Speaker 02:
It is the distinction the government drew in St.

[00:31:37] Speaker 02:
Bernard Parish.

[00:31:38] Speaker 02:
It is the correct distinction because otherwise the government would be able to flood any number of downstream properties across the United States.

[00:31:46] Speaker 02:
that were developed in reliance on government flood control projects.

[00:31:50] Speaker 04:
But the court's St.

[00:31:52] Speaker 04:
Bernard opinion didn't hinge its view on that question, right?

[00:31:59] Speaker 04:
It didn't make a distinction between conscious decision versus non-conscious decision.

[00:32:04] Speaker 02:
The court was not called on to make that distinction.

[00:32:07] Speaker 02:
It acknowledged that the government was not pressing that point.

[00:32:10] Speaker 02:
The government had drawn that distinction itself.

[00:32:12] Speaker 02:
And so the court in St.

[00:32:13] Speaker 02:
Bernard Parish was dealing only with the case of a claim of a taking arising out of the entire operation

[00:32:21] Speaker 02:
of a flood control project that's a different claim materially than a claim about operation of a flood control project and a deliberate decision to inundate downstream properties.

[00:32:31] Speaker 02:
And I think the government was correct to draw that distinction in St.

[00:32:34] Speaker 02:
Bernard Parish and it should not be allowed to walk away from it now.

[00:32:38] Speaker 03:
Thank you, Council.

[00:32:40] Speaker 03:
Thanks to both Councils for an excellent argument.

[00:32:43] Speaker 03:
The case is submitted.