SALO et al v. USA

Filing 49

Order of Dismissal. The Clerk is directed to enter judgment. Signed by Senior Judge Loren A. Smith. (ah) Service on parties made.

In the United States Court of Federal Claims
No. 17-1194
Filed: April 8, 2021

SALO, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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ORDER DISMISSING CASE
On September 5, 2017, plaintiffs filed a complaint in this case. Plaintiffs’ Original Class
Action Complaint, ECF No. 1 [hereinafter Compl.]. 1 In that Complaint, plaintiffs allege a Fifth
Amendment taking of real and personal property without just compensation by the United States
as a result of the release of water from the Addicks and Barker Reservoirs. See generally id.
Subsequently, this case was consolidated and stayed pursuant to Case Management Order
Numbers Three and Five, issued in the Downstream Sub-Master Docket. See Case Management
Order No. 3, Case No. 17–9002, ECF No. 2; Case Management Order No. 5, Case No. 17–9002,
ECF No. 27.
On February 18, 2020, the Court issued its Opinion and Order in the Downstream SubMaster Docket, granting defendant’s Motion to Dismiss and Cross-Motion for Summary
Judgment and denying plaintiffs’ Motion for Summary Judgment. Opinion and Order, Case No.
17–9002, ECF No. 203. In that Opinion and Order, the Court found that neither the State of
Texas nor federal law recognize a property interest in perfect flood control in the wake of an Act
of God and that an Act of God cannot trigger Fifth Amendment takings liability. See generally
id. On March 13, 2020, the Court issued an Order to Show Cause, directing that “any plaintiff
with a currently-stayed case that believes it has a claim that was not resolved by the Court’s
February 18, 2020 Opinion and Order shall SHOW CAUSE as to why its case should not be
dismissed.” Scheduling Order and Order to Show Cause, Case No. 17–9002, ECF No. 208.
Plaintiffs responded to that Order on September 17, 2020, and defendant filed its Reply on
October 8, 2020. See generally Plaintiffs’ Response to Order to Show Cause, ECF No. 45
[hereinafter Resp.]; Defendant United States’ Refiling of its Response to Plaintiffs’ Response to
Show Cause Order, ECF No. 46 [hereinafter Reply].

On September 21, 2017, plaintiffs filed an amended complaint. Plaintiffs’ First Amended
Class Action Complaint, ECF No 9.
1

In their Response to the Court’s Order to Show Cause, plaintiffs argue the following: (1)
the Court cannot enter judgment against them without a hearing, (2) their property rights are
legally distinguishable from prior plaintiffs, and (3) they can prove that increased flooding was
caused by defendant’s design, construction, and operation of the Addicks and Barker Reservoirs.
See id. at 3, 9, and 16. In reply, defendant argues that the Court’s “Show Cause Order
process . . . provided the due process that these plaintiffs now claim is absent” and, moreover,
that plaintiffs have “failed to explain how their case is distinguishable from those already
adjudicated in the Liability Opinion.” Reply at 8.
After careful review of the record, the Court finds that nothing in the plaintiffs’ Response
satisfies the Court’s requirement to enumerate “how [their] claim is different from the previously
adjudicated claims, and why the February 18, 2020 Opinion and Order left that claim
unresolved.” Scheduling Order and Order to Show Cause at 2, Case No. 17–9002, ECF No. 208.
With the opportunity to respond, plaintiffs reiterate that a taking occurred through the United
States’ actions, which “directly and foreseeably caus[ed] and exacerbate[ed] the flooding of
[p]laintiffs’ homes and businesses.” Resp. at 10. While plaintiffs purport to present different
facts and theories, plaintiffs’ allegations are no different than those already dismissed by this
Court’s Opinion and Order, which was decided based on the law, not based on the facts.
Consequently, the Court finds that plaintiffs’ Response does not provide the Court a sufficient
basis as to “how their case is legally distinguishable from those already adjudicated ,” and
therefore fails to show why the legal analysis in the Court’s February 18, 2020 Opinion and
Order should apply differently to plaintiffs’ specific cause of action. Scheduling Order and
Order to Show Cause at 2, Case No. 17–9002, ECF No. 208.
Here, as in the rest of the Sub-Master Docket, “[t]hough the Court is sympathetic to the
losses plaintiffs suffered as a result of Hurricane Harvey, the Court cannot find the government
liable or find it responsible for imperfect flood control of waters created by an Act of God.”
Opinion and Order at 19, Case No. 17–9002, ECF No. 203. Accordingly, plaintiff’s case is
hereby DISMISSED. The Clerk of Court is directed to enter judgment consistent with the
above.
IT IS SO ORDERED.
s/

Loren A. Smith

Loren A. Smith,
Senior Judge

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