In the Matter of:

Upstream Addicks and Barker (Texas) Flood-Control

Reservoirs

May 16, 2018

Condensed Transcript with Word Index

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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 1 APPEARANCES (CONT.):
2 2
3 IN RE UPSTREAM ADDICKS AND ) 3 IAN H. GERSHENGORN, ESQ.
4 BARKER (TEXAS) FLOOD-CONTROL ) Master Docket No. 4 Jenner & Block, LLP
5 RESERVOIRS. ) 17-9001 5 1099 New York Avenue, N.W.
6 -------------------------------) 6 Washington, D.C. 20001
7 7 (202) 639-6066
8 8 igershengorn@jenner.com
9 Courtroom 9D 9
10 Bob Casey United States Courthouse 10 VUK VUJASINOVIC, ESQ.
11 515 Rusk Street 11 VB Attorneys
12 Houston, Texas 12 6363 Woodway Drive, Suite 400
13 Wednesday, May 16, 2018 13 Houston, Texas 77057
14 10:00 a.m. 14 (713) 224-7800
15 15 vuk@vbattorneys.com
16 Oral Argument on Motion to Dismiss/ 16
17 Scheduling Conference 17 ON BEHALF OF THE DEFENDANT:
18 18 JACQUELINE C. BROWN, ESQ.
19 19 WILLIAM SHAPIRO, ESQ.
20 BEFORE: THE HONORABLE CHARLES F. LETTOW 20 U.S. Department of Justice
21 21 Environment & Natural Resource Division
22 22 601 D Street N.W., 3rd Floor
23 23 Washington, D.C. 20004
24 24 (202) 305-0481
25 Evelyn Carter, Digital Court Reporter 25 jacqueline.c.brown@usdoj.gov

2 4
1 APPEARANCES: 1 NILES HOOPER, ESQ.
2 2 U.S. Army Corps of Engineers
3 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS AND 3 Galveston District, Office of Counsel
4 BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS: 4 2000 Fort Point Road, Room 369
5 CHARLES W. IRVINE, ESQ. 5 Galveston, Texas 77550-1229
6 Irvine & Conner, LLC 6 409-766-3822
7 4709 Austin Street 7
8 Houston, Texas 77004 8 ALSO PRESENT:
9 (713) 533-1704 9 Dan Inglis
10 charles@irvineconner.com 10 Scott Purcell
11 11 Alex Petty
12 DANIEL H. CHAREST, ESQ. 12
13 LARRY VINCENT, ESQ. 13
14 Burns Charest, LLP 14
15 900 Jackson Street, Suite 500 15
16 Dallas, Texas 75202 16
17 (469) 444-5002 17
18 dcharest@burnscharest.com 18
19 19
20 EDWIN A. EASTERBY, ESQ. 20
21 Williams, Kherkher, Hart, Boundas, LLP 21
22 8441 Gulf Freeway, Suite 600 22
23 Houston, Texas 77017 23
24 (713) 230-2200 24
25 aeasterby@williamskherkher.com 25

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1 PROCEEDINGS 1 adjust the schedule in the case, and we understand the
2 - - - - - 2 Plaintiffs have some other things they want to address
3 (Proceeding called to order, 10:00 a.m.) 3 by way of scheduling. We would propose to take a short
4 THE COURT: Good morning. 4 break after the hearing on the motion to dismiss and
5 ALL COUNSEL: Good morning, Your Honor. 5 then take those matters.
6 THE COURT: The case before the Court this 6 Is that satisfactory, Ms. Brown?
7 morning is the -- or are, the cases, plural -- are the 7 MS. BROWN: Your Honor, I guess I would want to
8 Addicks and Barker Dam cases, Number 17-9001. 8 know what those matters are, and if you mean our motion
9 For the record, would counsel for the Plaintiffs 9 or just the matters that they want to raise?
10 or co-lead counsel for the Plaintiffs introduce 10 THE COURT: Yes. I do think it's your motion
11 themselves. 11 primarily, but the Plaintiffs will have other things to
12 MR. EASTERBY: Good morning, Your Honor. 12 add. We have, if the Court recalls correctly, responded
13 Armistead Easterby appointed as upstream co-lead counsel 13 to your request for an expedited consideration by asking
14 for discovery and trial. 14 or requesting the Plaintiffs to file their response by
15 MR. GERSHENGORN: Good morning, Your Honor. Ian 15 the 21st and for you to file your reply on the 24th, not
16 Gershengorn, appointed co-lead counsel for the 16 the 25th. What we hope to do is potentially -- and I
17 jurisdictional issues. 17 say potentially because we don't want to assume any
18 MR. VINCENT: Good morning, Your Honor, Larry 18 answers to the motion to dismiss -- address those on
19 Vincent. 19 Friday, the 25th.
20 THE COURT: I'm sorry? Can you speak -- 20 Yes?
21 MR. VINCENT: Larry Vincent, appointed co-lead 21 MR. GERSHENGORN: You asked if it was okay to
22 counsel for jurisdiction and pretrial. 22 proceed as you said, and we were absolutely in
23 MR. IRVINE: Your Honor, Charles Irvine appointed 23 agreement.
24 co-lead counsel for liability and discovery. 24 THE COURT: Who on the Plaintiffs' behalf will be
25 MR. VUJASINOVIC: Your Honor, Vuc Vujasinovic, 25 arguing the motion to dismiss? Mr. Gershengorn, is that

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1 appointed to ensure the interests of individual 1 you?
2 Plaintiffs are represented in jurisdiction. 2 MR. GERSHENGORN: Yes, Your Honor. Yes.
3 MR. CHAREST: Daniel Charest, Your Honor, for 3 THE COURT: Okay, thank you.
4 upstream Plaintiffs for the trial. 4 Ms. Brown, are you ready to proceed with the
5 THE COURT: Okay. 5 motion to dismiss?
6 Ms. Brown, would you introduce yourself, please, 6 MS. BROWN: Yes. Sorry, just for clarification
7 for the record as counsel for the Government and then 7 then, then after a break, we would address the other
8 introduce your colleagues as well. 8 issues that Plaintiffs want to raise, but we would wait
9 MS. BROWN: Yes. Good morning, Your Honor. 9 for briefing on our motion to amend?
10 Jacqueline Brown from the Department of Justice for the 10 THE COURT: Yes.
11 United States. I have with me Bill Shapiro from the 11 MS. BROWN: Great. Thank you, Your Honor. Then
12 Department of Justice, and from the Army Corps of 12 yes.
13 Engineers Headquarters, I have Dan Inglis, and from the 13 THE COURT: Recognizing that the Plaintiffs will
14 Galveston District of the U.S. Corps of Engineers, I 14 not have filed or do not have an obligation to file a
15 have Alex Petty -- 15 response to your motion until the 21st, I'm sure they
16 THE COURT: What was the last name, please? 16 still have thoughts on the subject.
17 MS. BROWN: Petty. 17 MS. BROWN: I think that's probably true. I
18 THE COURT: Thank you. 18 think we would prefer a response.
19 MS. BROWN: P-E-T-T-Y, Niles Cooper, and James 19 THE COURT: I understand that. We have asked for
20 Purcell. 20 and requested the response.
21 THE COURT: Welcome. 21 MS. BROWN: May it please the Court. We are here
22 MS. BROWN: Thank you. 22 on the United States' motion to dismiss Plaintiffs'
23 THE COURT: What the Court would propose to do is 23 claim of a taking after they alleged their properties
24 first hear the arguments on the Government's motion to 24 flooded during Hurricane Harvey.
25 dismiss. The Government has recently filed a motion to 25 THE COURT: You called it a hurricane rather than

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1 a tropical storm. Which was it? 1 THE COURT: I take it you mean the pleadings
2 MS. BROWN: I don't know the answer to that 2 rather than the motion. You're accepting the --
3 question. I think that it has been called both. I 3 MS. BROWN: As true the -- the facts in
4 don't know the distinction, frankly. 4 Plaintiffs' complaint, that's right.
5 THE COURT: Okay. We were just curious. 5 THE COURT: I thought you said motion, but in any
6 MS. BROWN: Okay. 6 event --
7 THE COURT: In Houston, it might have been one 7 MS. BROWN: I meant complaint.
8 thing, where in another place, it might have been 8 THE COURT: -- you're accepting as true the
9 another. 9 allegations in the master amended complaint.
10 MS. BROWN: Right. There -- I don't know the 10 MS. BROWN: Correct.
11 answer. 11 THE COURT: Okay.
12 Hurricane Harvey's estimated to be one of the 12 MS. BROWN: Yes, and that's a good distinction,
13 largest rainfall events in U.S. history, dumping one 13 that the first -- the master amended complaint for the
14 trillion gallons of water in the metropolitan area. It 14 class action Plaintiffs.
15 caused extreme flooding and damage to much of the 15 Addicks and Barker Dams were built in the 1940s
16 Houston area, and the city's residents and government 16 after collaboration between the Federal Government and
17 officials have been working since then to recover from 17 Harris County. The Corps acquired thousands of acres of
18 its effects. 18 land upstream in the 1940s and 1950s. Since then,
19 But make no mistake, a taking for flooding set in 19 Houston has grown tremendously. The upstream Plaintiffs
20 motion by a natural disaster is an unprecedented claim, 20 all bought land that was undeveloped when the dams were
21 particularly when there was so much water that more than 21 built.
22 100,000 properties flooded in this area in places both 22 Private persons then developed and created
23 upstream and downstream of the dams. Finding a taking 23 neighborhoods, turning uplands from grassland into
24 from flooding resulting from this 1000-year storm would 24 concrete. Plaintiffs claim they bought properties at an
25 require the Government to exercise perfect flood control 25 elevation below the highest elevation of the dams

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1 in the face of an isolated, infrequent event. 1 downstream, and because private persons developed and
2 Plaintiffs' claims fail on three separate 2 built houses on those properties, this created a duty
3 grounds. First, the sovereign is not liable where the 3 for the Government, over time, to buy so much land that
4 Government was acting to minimize inevitable losses to 4 no private uplands would flood, even during a tremendous
5 property and to protect public safety. Second, 5 hurricane, dumping record rainfall over the area.
6 Plaintiffs do not have a protected property interest in 6 Your Honor, those are the key facts that I think
7 preventing impoundment of water from preexisting dams on 7 are pertinent to our motion, so I am going to move to
8 lower ground. Third, the property damage that occurred 8 our first legal argument here, and that is --
9 only once in a 70-year history of the Addicks and Barker 9 THE COURT: Would you please -- if you're leaving
10 Dams does not meet the jurisdiction requirements of a 10 the facts for the moment --
11 taking, which requires both substantial and frequent 11 MS. BROWN: Yes.
12 flooding, not one isolated invasion. 12 THE COURT: -- and you've sketched them in broad
13 The Court should dismiss now because no more 13 terms, could you address the changes to the dams in
14 facts are needed to resolve these fundamental questions 14 19 -- in the 1980s, please?
15 about the nature of Plaintiffs' claims. Even if every 15 MS. BROWN: What those changes were?
16 element of their claim is proven, there is no taking 16 THE COURT: Yes, please.
17 given the nature of the government action, the limited 17 MS. BROWN: One of the primary changes was to --
18 scope of their property rights, and because flooding on 18 to strengthen the spillways, which are the side areas of
19 only one occasion during a record-breaking rainfall 19 the dam as -- you know, you have the front, that's the
20 alleges, if anything, a tort but not a taking. 20 main area of the embankment, and then you have the
21 So before I go into those three arguments, I want 21 sides, so it was to strengthen those to prevent dam
22 to briefly summarize the facts that are helpful to 22 failure and then to raise the elevation of the dam.
23 understand our motion that we have accepted as true for 23 THE COURT: When you say -- can you talk about
24 purposes of this motion or that Plaintiffs do not 24 the operation of the gates on the dams and the situation
25 dispute. Addicks and Barker Dams -- 25 where there is no rainfall, please?

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1 MS. BROWN: I'm not sure what you mean, "a 1 clear that not every government-induced flooding is a
2 situation where there is no rainfall." 2 taking. The Government's destruction or seizure of
3 THE COURT: It's the Court's understanding from 3 properties to protect public health or safety, or here,
4 the papers, although this is not very explicit -- and 4 to mitigate inevitable public harms, is not a
5 that's why I'm asking the question -- that there are 5 compensable taking. And by "inevitable," we mean
6 essentially gates in the dams that remain open such that 6 Plaintiffs do not allege an alternate course of action
7 Buffalo Bayou and so on flows naturally through the 7 available that would have resulted in little flooding
8 gates, except when there's a sufficient rainfall that 8 given the tremendous rainfall.
9 the gates are closed and the rainfall collects in the 9 Plaintiffs instead say the Government should have
10 impoundments behind the dams. 10 bought more land, which is a noncognizable claim based
11 Is that a correct or wrong understanding? 11 on government inaction, and the --
12 MS. BROWN: That is correct. In advance of a 12 THE COURT: If the Court has the pleadings and
13 rainfall event, the Corps closes the gates to impound 13 moving papers in mind correctly, then the last
14 water behind the dams. 14 operations manual for these dams was issued or the one
15 THE COURT: In advance of a planned event. 15 at the time of the flooding was issued in 2012. Is that
16 MS. BROWN: I don't know exactly what you mean by 16 correct?
17 a "planned event," but before a rainfall event, yes. 17 MS. BROWN: That's correct.
18 THE COURT: A planned -- an anticipated rainfall, 18 THE COURT: Okay.
19 let's put it that way. 19 MS. BROWN: The police power doctrine applies
20 MS. BROWN: Yes. 20 here where the Corps operated the dams to protect life,
21 THE COURT: All right. But ordinarily the gates 21 health, and property of the public as a whole, that
22 are open and the water in Buffalo Bayou and the 22 benefit being to prevent more destruction to Houston. A
23 tributaries just runs through. 23 core function of the Government is to protect the public
24 MS. BROWN: That is right. That is the current 24 from natural disasters, and such acts to minimize
25 structure of the dams. When originally constructed, 25 effects from nature's disasters are not a taking.

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1 there were no gates. 1 We rely here on Miller vs. Schoene, a case
2 THE COURT: Thank you. 2 finding no taking where the state decided to destroy
3 MS. BROWN: You're welcome. 3 private property to protect other private property.
4 And I think, Your Honor, I would say I'm not sure 4 Miller dictates that where private persons have
5 that any of those facts are pertinent to our motion to 5 incompatible interests in uses of their property, the
6 dismiss, but I'm happy to answer your questions. 6 state can protect that interest that matters most to the
7 THE COURT: Well, I just wanted to understand -- 7 public welfare without running afoul of the Fifth
8 I hadn't seen the dams or the gates or the spillways or 8 Amendment. Indeed, that's the hallmark of the police
9 that sort of thing, and I'm just trying to visually 9 power: a government act in the public interest when a
10 adapt myself to the circumstances without -- by 10 choice is unavoidable and public health and safety is at
11 descriptions. That's all. 11 risk.
12 MS. BROWN: Yes. And I would also say that these 12 Plaintiffs say that private decisions about where
13 are earthen embankments -- where one typically sees a 13 to grow trees and the misfortune of a disease makes this
14 levee is an earthen embankment, and a dam usually is a 14 case different from that in Miller, but it is no
15 concrete structure. These are earthen embankments 15 different here with private decisions to develop
16 themselves that hold the water. 16 upstream and the misfortune of a record-breaking
17 So moving on -- 17 rainfall.
18 THE COURT: Well, they are, I take it, except for 18 Now, moving on to our second argument here that
19 the gates and the spillways. The spillways could hardly 19 would also require dismissal of Plaintiffs' case,
20 be earthen. 20 Plaintiffs have failed to state a claim under Rule
21 MS. BROWN: No. That's what I was saying, where 21 12(b)(6), again because they lack a protected property
22 there was concrete and other additions made to those. 22 interest, the protected property interest that they
23 So our first legal argument is that Plaintiffs 23 claim here. Background principles show Plaintiffs have
24 have failed to state a claim under Rule 12(b)(6) with 24 not alleged the invasion of a protected property
25 respect to the exercise of the police power. It is 25 interest. A Fifth Amendment claim must rest on a

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1 protected interest; that is, one recognized by state, 1 discussed these background principles of -- principles
2 common, or background principles of nuisance or property 2 of law and acknowledged in argument that an easement
3 law. 3 existing -- arising from an existing law would be a
4 So here we ask not just if the Plaintiff owned 4 preexisting limitation upon the landowner's title. And
5 the property but whether they possessed, within the 5 then it described its categorical taking test to apply
6 bundle of sticks, the one allegedly taken by government 6 only to laws that are "newly legislated or decreed."
7 action. Plaintiffs claim that all they need to do is 7 And that's the same principle that we rely on here.
8 show ownership, but they must do more when the fee 8 THE COURT: So you are saying that every
9 interest was not taken, as is the case here. They must 9 Plaintiff -- and presumably almost all, virtually all of
10 show that the specific interest infringed upon -- 10 the Plaintiffs bought their land after the dams were
11 allegedly infringed upon is protected by background 11 built.
12 principles of law. 12 MS. BROWN: Yes.
13 Plaintiffs still own and occupy their properties. 13 THE COURT: And so they took the land with the
14 They allege a taking of an interest incident to 14 knowledge and expectation that there might be flooding.
15 ownership, an interest in keeping the property free from 15 MS. BROWN: We are not relying here on the
16 floodwaters, and so they must show they possess that 16 specific knowledge or expectation of the properties.
17 interest and their property rights were not already 17 What we are saying is that it is an inherent limitation
18 impaired upon acquisition because of the existing flood 18 on the property, the property interest that they are
19 control structures. 19 claiming here.
20 So the Willow River case that we cited recognizes 20 THE COURT: And why is it an inherent limitation?
21 that a taking can only be found of rights when backed by 21 MS. BROWN: Because as with Thomas vs. Bunch,
22 law and recognized in a manner such that courts can stop 22 there is a -- if there is a vested right for the
23 others from interfering with them or compensate the 23 landowner with an existing structure to keep, maintain,
24 owner for the invasion, and that is what is missing 24 and operate that structure, even if it diverts water
25 here. 25 onto private property.

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1 Federal and state laws indicate Plaintiffs do not
2 possess the claimed stick in their bundle because they
3 bought land in the watershed of an existing government
4 dam --
5 THE COURT: You cite a provision in the Texas
6 Water Code, as the Court understands it, that deals with
7 diversions of water. Is that correct?
8 MS. BROWN: That's right.
9 THE COURT: And you say that limits the property
10 interest that the Plaintiffs have in their homes.
11 MS. BROWN: There are a few things, Your Honor.
12 There is the Texas statute, and then there are other
13 Texas authorities that deal with the -- when land is
14 acquired, and so the first one actually that I was going
15 to talk about is Thomas vs. Bunch. In that case,
16 there's a landowner with an existing levee that
17 redirects water onto other private land, and what the
18 Court found is that that landowner had a vested right to
19 maintain that levee as a property right and owes no
20 damages for flooding, particularly when that owner does
21 not increase the volume of the runoff on the property.
22 And so that's what we say when there's an existing
23 structure in place and the Plaintiff acquires their land
24 subsequent to that.
25 And I would say here that the Court in Lucas also
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1 THE COURT: Let's talk about the -- well, I take
2 it that reaches over into the Texas water statute that
3 deals with diversion.
4 MS. BROWN: Right.
5 THE COURT: It's 11 -- am I --
6 MS. BROWN: Yeah, it's 11 --
7 THE COURT: -- 11.086?
8 MS. BROWN: 11.086(c) is specifically the one
9 that we rely on, but, yes, it's all the same.
10 THE COURT: Is it that that produces this result
11 or this case precedent, in your view?
12 MS. BROWN: I would say both. I think that both
13 inform the limited nature of the property interest that
14 Plaintiffs claim here.
15 THE COURT: So you're saying there really doesn't
16 have to be a notice to the Plaintiffs or any expectation
17 on their part that they purchased their property subject
18 to what amounts to a flowage easement. It just arises
19 because of the construction of the dams.
20 MS. BROWN: Well, I'm not saying that there is
21 necessarily a flowage easement or -- I think that their
22 expectations is a different question than what we are
23 raising here. What we are raising here is a preexisting
24 limitation with respect to the property interest, and
25 it's not an argument with respect to Plaintiffs'

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1 expectations here. 1 circumstances there were reasonably different even
2 THE COURT: But it arises from the construction 2 though the Supreme Court set out some new guides for
3 of the dams; otherwise, it wouldn't arise. 3 handling these types of cases.
4 MS. BROWN: That is correct, right. So this is 4 MS. BROWN: They were -- the facts in the case
5 when they acquired their property, you know, you get a 5 are different, but what I'm specifically referring to
6 bundle of sticks, as the Court has analogized in 6 there is the amicus brief that was filed by several law
7 numerous cases, and what we're saying is that when you 7 professors saying that under Arkansas law, the
8 have a preexisting dam, that that bundle, that stick in 8 landowners in Arkansas Game & Fish should not have
9 the bundle, it means that your property's protection 9 had -- did not have a property right in the -- of the
10 from the diversion of floodwaters is not there, and that 10 same nature that we're saying here. They did not have a
11 arises both from case law, now the Texas case law, as 11 property right with respect to the flooding that they
12 well as the statute that we cited that specifically 12 claimed.
13 exempts government flood control structures from 13 THE COURT: That's -- the Court remembers that
14 liability with respect to diversions of surface water. 14 amicus brief, but that amicus brief really dealt with
15 THE COURT: So you -- I am trying to recall your 15 downstream releases, if you will.
16 exact words. The protection from diversion of water is 16 MS. BROWN: Yes.
17 not there. Is that what you said? 17 THE COURT: Is that correct?
18 MS. BROWN: From these preexisting structures, 18 MS. BROWN: Yes.
19 correct. 19 THE COURT: And specifically related to Arkansas
20 And to analogize, Plaintiffs could no more seek 20 law. It really didn't deal with an upstream situation
21 compensation if they voluntarily purchased land 21 at all.
22 riverward, meaning between a levee and the river, and 22 MS. BROWN: No, it didn't. I am not saying that
23 then complained that the levee increased water levels on 23 the same arguments that those persons made, that the
24 their property, because that's what levees do. 24 professors made with respect to Arkansas law, are the
25 And so we already talked about the Texas Water 25 same here. I am saying that the same concept applies,

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1 Code provision, but I would also note here that each of 1 that the Court still must consider whether a property
2 the three cases that Plaintiffs rely on, the three Texas 2 right exists and that it is correct to look at state law
3 state cases, are inapposite. They concern either a 3 for that and to look at principles and to see whether
4 hypothetical reservoir that permanently holds water, and 4 such a right has been recognized.
5 as Your Honor noted, these dams do not permanently hold 5 THE COURT: Well, this reaches over to the
6 water; or those cases concern lands acquired and used 6 operations manual. That really was an issue also in the
7 long before the objectionable activity began. 7 Arkansas Game & Fish case, and there were deviations on
8 And Plaintiffs have no legal basis to say that 8 an annual basis from the operations manual. We haven't
9 property rights are relevant only to reasonable 9 really talked about the 2012 operations manual in the
10 investment-backed expectations. Whether a protected 10 context of these cases.
11 property right exists is a preliminary question that 11 MS. BROWN: No. What we rely on here for the
12 must precede any weighing of other factors for 12 purposes of our motion is Plaintiffs' complaint that
13 liability. And the Supreme Court, in Arkansas Game & 13 does not allege any type of variance from the manual is
14 Fish, only refused to consider property rights questions 14 the cause of their flooding.
15 because that question had not been raised in the lower 15 THE COURT: Well, the manual -- the Court has an
16 courts below. It did not say this is subsumed within 16 incomplete or maybe it's more accurate to say an
17 the consideration of reasonable investment-backed 17 inchoate knowledge of what the manual actually does, but
18 expectations. 18 it appears that it -- just from briefing and the
19 THE COURT: Now, that was a downstream case, 19 complaint, that the manual deals with some sets of
20 right? 20 circumstances that might arise with the dams but not
21 MS. BROWN: Yes. 21 others. Is that correct?
22 THE COURT: According to Mr. Shapiro. I recall 22 MS. BROWN: Some circumstances but not others?
23 that case very well. 23 THE COURT: Yes.
24 MS. BROWN: Yes. 24 MS. BROWN: Do you mean the volume of water?
25 THE COURT: But in any event, the set of 25 THE COURT: Well, that's one of the things.

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1 MS. BROWN: I guess -- right. The pertinent, as
2 I understand it, provision here relates to the rate of
3 rise, meaning how fast is the water behind the dam
4 rising, and when a certain rate of rise is reached, that
5 would trigger downstream releases.
6 THE COURT: Well, that's partially what's -- what
7 might be at issue. Anyway, let's go forward.
8 MS. BROWN: I'm not sure exactly what Your Honor
9 is referring to.
10 THE COURT: No, I'm not, but we will hear more on
11 the subject.
12 MS. BROWN: Okay.
13 All right, so we already covered state law, and
14 I -- so I just want to touch quickly on why federal law
15 also does not support Plaintiffs' position. So
16 Plaintiffs rely here on Dickinson and other cases where
17 there was a permanent -- a permanent reservoir behind a
18 dam, and they claimed that mere ownership of property
19 was enough in that circumstance.
20 But in Dickinson and other cases, again, the dam
21 permanently impounded water on a river and set in motion
22 permanent changes to the water table, impacting areas
23 beyond government land. Addicks and Barker do not
24 permanently impound water, and so the same type of
25 stabilization doctrine considerations should not apply
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1 expectation or it was foreseen that the reservoir
2 itself, the creation of the reservoir, would, through
3 percolation or other raising of the water table, affect
4 the surrounding lands. That was the Dickinson case,
5 right?
6 MS. BROWN: Yes. And so do you mean an
7 anticipation on behalf of the Government?
8 THE COURT: Well, foreseeability on the part of
9 the -- of everyone involved.
10 MS. BROWN: I know that the Court found a taking.
11 I do not recall specifically what the Court commented
12 with respect to foreseeability in that instance.
13 THE COURT: Okay.
14 MS. BROWN: I would say -- so Plaintiffs rely on
15 that case for the principle that a subsequent purchaser
16 of land is not -- a subsequent purchaser of land can't
17 state a claim, right, because that was the case in
18 Dickinson, and so what I'm saying there that the
19 distinction is is that the creation of the dam there set
20 in motion a chain -- a chain of events that is not the
21 case here.
22 THE COURT: No, this case is different, modestly,
23 on its facts, but you do agree that the construction of
24 the dams in the 1940s and I guess -- well, let's leave
25 it at that, the forties, and the modification of them in

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1 here. 1 the eighties, set in motion the chain of events that led
2 THE COURT: So you're saying there really is a 2 to the flooding in this -- in these cases.
3 difference between the Supreme Court precedents on 3 MS. BROWN: Ah, no, I think that is a causation
4 reservoirs behind dams and this situation where there is 4 question that is not at play in our motion to dismiss.
5 no reservoir in the ordinary set of circumstances; the 5 THE COURT: So you do not concede that.
6 water just flows through the gate. That's one of the 6 MS. BROWN: No.
7 reasons I asked the initial questions. 7 THE COURT: Why don't you? That is what
8 MS. BROWN: Yes. Yes, that is definitely true, 8 happened, right?
9 because, again, those reservoirs that permanently 9 MS. BROWN: What happened is the dams impounded
10 impound water change the character of the land and the 10 water from a hurricane. I think your question is
11 water table behind them, whereas here, that is not -- 11 whether the flooding would have taken place without the
12 THE COURT: It can, but it doesn't necessarily do 12 dams.
13 that. Is that correct? You're saying Dickinson dealt 13 THE COURT: Yeah.
14 with a situation where it did change the character of 14 MS. BROWN: No.
15 the land. 15 THE COURT: Well, I take it everybody concedes
16 MS. BROWN: Yes. 16 that it would not have taken place in the way it did
17 THE COURT: Was that an anticipated event in 17 without the dams.
18 Dickinson or did it make a difference whether or not it 18 MS. BROWN: In the way it did, yes. Where
19 was anticipated? 19 exactly the water is, yes, but as to specific properties
20 MS. BROWN: It was anticipated that the water -- 20 and where they are and whether flooding would have taken
21 that the river would -- that there would be the creation 21 place, that is not a question that we concede.
22 of a permanent reservoir behind the land -- I'm sorry, 22 THE COURT: That's true. I remember in the
23 behind the dam. 23 status conference we had maybe several months ago, there
24 THE COURT: That's not my question. My question 24 was a question raised regarding some upstream
25 was whether or not there was an anticipation or an 25 properties -- arguably upstream properties that were the

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1 tributaries and were not necessarily affected by 1 with any of the arguments that we are making here. What
2 impounded water, and we had a discourse about that, 2 we are saying is even if --
3 whether they really belonged in the upstream set or 3 THE COURT: That's what I was trying to sort out.
4 subdocket. Do you remember that discussion? 4 MS. BROWN: Right.
5 MS. BROWN: Yes. 5 THE COURT: So maybe the last five minutes we can
6 THE COURT: Does that -- how does that relate to 6 take as a given.
7 the argument you're making? 7 MS. BROWN: Yes, right. So even if everything
8 MS. BROWN: I think the argument is the same with 8 that they have alleged is proven, we're saying that
9 respect to both those Plaintiffs far out, who were not 9 still does not arise to a taking because of the police
10 allegedly only affected by the pool rising, as well as 10 power, the property rights, and then the next argument
11 those who are. 11 that I am going to get to with respect to the frequency.
12 THE COURT: Then I'll go back to my question, 12 THE COURT: All right. That's helpful. Thank
13 which really was, given the fact that the dams impound 13 you.
14 water in rainfall events, would the properties that are 14 MS. BROWN: You're welcome.
15 involved in the upstream cases, putting aside the 15 And so I'm now moving to the final reason that
16 tributary properties that we just talked about, have 16 the Court should dismiss Plaintiffs' claims, and that is
17 been affected absent the construction of the dams? 17 both an argument under Rule 12(b)(1) and 12(b)(6). And
18 MS. BROWN: I think the answer is the same in 18 so here --
19 that we don't know that yet, and that's a causation 19 THE COURT: Oh, by the way, I'm sorry to
20 question, because there are things other than 20 interrupt.
21 tributaries, such as just backup from capacity that a 21 MS. BROWN: Yes.
22 storm sewer, for example, can't handle, that caused -- 22 THE COURT: Before we get to 12(b)(1) and
23 that could cause flooding, aside from the backup of 23 12(b)(6), could we deal with the Stockton case? We
24 the -- backup of water held by the dams. 24 dealt with Dickinson fairly extensively. Stockton, we
25 THE COURT: Maybe it's my memory which is faulty, 25 ought to at least address.

30 32
1 but I don't remember any discussion about storm sewers 1 MS. BROWN: Yes. And so Stockton, the -- the
2 in the pleadings, in the master amended complaint or the 2 distinction between Stockton and the circumstances here
3 answer. 3 is that in Stockton you had an issue -- an erosion claim
4 MS. BROWN: I think that's right. 4 as well, a permanent erosion claim that had changed,
5 THE COURT: So you are introducing a new element 5 again, the character of the land such that where --
6 of sorts. 6 THE COURT: It changed the -- if the Court has it
7 MS. BROWN: Right. I am not saying that any of 7 correctly, it -- the facts in Stockton, as reported in
8 this is pertinent to our motion to dismiss. I'm just 8 the Court's opinion, the erosion occurred on government
9 trying to answer your question to the best of my 9 land. The Government had a strip of land along the side
10 ability. 10 of the lake, is that correct, and it was that land that
11 THE COURT: I understand. We're having a 11 was being eroded before you got to the Plaintiffs' land.
12 discourse. 12 MS. BROWN: My understanding is that the
13 MS. BROWN: Right, right. So I think that those 13 Plaintiffs' land eroded, so what --
14 are -- those are causation questions that, again, we are 14 THE COURT: It did, but then the question is when
15 accepting as true, all of the allegations in Plaintiffs' 15 the Plaintiffs' land eroded.
16 complaint, which includes causation for the purposes of 16 MS. BROWN: My -- my -- what I recall from that
17 this motion. We are -- we are -- for the purposes of 17 case is that the Plaintiff used to have a -- what they
18 this motion, we are agreeing that the flooding would not 18 described as a gently sloping land that goes down to the
19 have happened but for the dams. 19 water.
20 THE COURT: You do agree? 20 THE COURT: Right.
21 MS. BROWN: For the purposes of this motion, 21 MS. BROWN: And as a result of the erosion, then
22 right, as required under 12(b)(6). 22 they had sort of a cliff where it fell off and that
23 THE COURT: That is actually helpful. Thank you 23 there was the danger -- the danger of damage to the
24 very much. 24 structures that were on the property.
25 MS. BROWN: Yes. Yes, so that is not at issue 25 THE COURT: That's true, but then the question

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1 came -- well, wind and wave action of the lake
2 definitely affected the strip of land or strips of --
3 well, of land bordering the lake, and -- but the
4 Government owned -- well, you can call it a protective
5 strip or whatever it was, it was government land before
6 you got to the Plaintiffs' land, right?
7 MS. BROWN: Right. But I think there's a
8 distinction there because there is a permanent claim as
9 opposed to just a temporary occupation by floodwaters,
10 which is what you have here. And in addition,
11 Stockton -- in Stockton, portions of the land had
12 flooded at least twice, and that was described in the
13 Court's opinion.
14 THE COURT: Well, I don't know about flooded.
15 That's a little -- isn't that a little strong, because
16 the Court had said something about the land -- the water
17 creeping up the slope in the grassed areas and maybe
18 even some of the trees but without effect. I'm just
19 drawing from memory the Court's opinion.
20 MS. BROWN: Right.
21 THE COURT: I can visualize -- I have a quirky
22 memory. I can actually see it on the page, but in any
23 event --
24 MS. BROWN: I can if I highlight it.
25 But I think, Your Honor, I think the important
34
1 take-away from that case, though, is that it does not
2 stand for the principle that a one-time temporary
3 occupation of floodwaters, particularly as is the case
4 here, during an extreme hurricane, can be a taking. I
5 think that the -- that Stockton does not stand for that
6 principle.
7 So whether the occupation alleged is a tort or a
8 taking is a threshold question that the Court can
9 adjudicate on a motion to dismiss. So the
10 jurisdictional statute exempts from the CFC cases
11 "sounding in tort." That plain language suggests that
12 allegations that raise if anything a tort should not be
13 heard, but even if not jurisdictional, Plaintiffs can't
14 state a claim under 12(b)(6). So, again, here we're
15 accepting as true Plaintiffs' allegations. They haven't
16 shown that the government actions constitute a taking
17 because they have not alleged a frequent invasion of any
18 interest.
19 So in Ridge Line, a Federal Circuit case, the
20 Court set out a two-step analysis for which the
21 Plaintiff had the burden of proof, and the first
22 question under that is whether treatment undertakings
23 law is appropriate, and there are two subparts to that
24 first factor of the test.
25 The first is whether the invasion is either
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1 intended or the direct natural or probable result of
2 government action. We have accepted that as true for
3 purposes of this motion. And then the second question
4 is whether the interference is both substantial and
5 frequent enough to constitute a taking, and as you know,
6 Plaintiffs have alleged one flood that was caused by the
7 United States, and as Ridge Line described, an isolated
8 invasion does not make a taking. One occupation in 70
9 years during a 1000-year hurricane is the definition of
10 an isolated invasion.
11 THE COURT: Do you think that part of Ridge Line
12 survived Arkansas Game & Fish?
13 MS. BROWN: Yes. And so what Arkansas Game & --
14 what happened in Arkansas Game & Fish, as Your Honor
15 knows, is a repeated deviation over six years, and the
16 Court in Arkansas Game & Fish cited Ridge Line, and in
17 addition to citing Ridge Line, it cited Portsmouth
18 Harbor and the Eyherabide cases for the principle that
19 one isolated invasion does not make a taking.
20 So there is no authority either in Arkansas Game
21 & Fish, or subsequent to Ridge Line, stating that the
22 principle that it espoused, that flooding has to be both
23 substantial and frequent, has been overturned.
24 THE COURT: Let's talk about the Tax Day storm of
25 2016. The Plaintiffs say that storm led to some water
36
1 extending beyond the government-owned part of the
2 impoundment. Is that correct?
3 MS. BROWN: Yes. As I understand it, it did not
4 cause any damage to their properties.
5 THE COURT: Right.
6 MS. BROWN: Any of the few properties I think
7 that did have water on the grass but not the structure.
8 THE COURT: Or streets or something like that.
9 MS. BROWN: Or streets, right.
10 THE COURT: Right?
11 MS. BROWN: There was water in the streets.
12 THE COURT: And that was the year before.
13 MS. BROWN: Yes.
14 THE COURT: Well, it was a year and a couple
15 months before, but in any event...
16 MS. BROWN: Yes, but I think that we have to look
17 to the specific Plaintiffs at issue here and whether
18 there was a substantial -- whether there has been a
19 substantial and frequent occupation of their properties,
20 and that has not been alleged in the complaint. So that
21 is what we rely on in saying that they have not
22 satisfied the requirement of Ridge Line.
23 And I would just note again, to return to your
24 Arkansas Game & Fish question, that what the Supreme
25 Court did there is reject a categorical bar to temporary
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37 39
1 flooding claims, but at some point there is a continuum 1 MS. BROWN: Right. I -- I know that there's a
2 of takings with a permanent physical occupation at one 2 NOAA report on it. I know that it calls it a tropical
3 end and this type of isolated, infrequent, temporary 3 storm. It might also call it a hurricane, but, again,
4 flood from a hurricane at the other. 4 I'm just not sure.
5 THE COURT: Well, let's talk a little bit about 5 THE COURT: What do the Houstonians call it?
6 how you establish the facts that differentiate one from 6 MR. GERSHENGORN: A tropical storm, Your Honor.
7 another. Ordinarily, as a trial court, you hear 7 THE COURT: What?
8 evidence and find facts, right? 8 MR. GERSHENGORN: A tropical storm, Your Honor.
9 MS. BROWN: Yes. 9 THE COURT: Okay. Well, we'll hear it.
10 THE COURT: How can we decide this -- the 10 MS. BROWN: I will defer to Mr. Gershengorn on
11 question you're raising, that is, the tort/takings 11 that point, and he better know the difference.
12 distinction, on the pleadings that we have in front of 12 No, but I think that that is not necessary to --
13 us right now? 13 no, not the hurricane/tropical storm question. I think,
14 MS. BROWN: Well, Your Honor, what we have 14 again, the question of foreseeability, I think that that
15 here -- there has not been an allegation of multiple 15 is not a question --
16 substantial floods. I think, again, even if everything 16 THE COURT: We might have a little bit of relief
17 they proved was true, even if the Corps caused their 17 in such a serious case as this, and if that's it, that's
18 flooding or if the Addicks and Barker Dams caused their 18 it.
19 flooding during 2017 and they meet all of the other 19 MS. BROWN: Yes, yes.
20 elements, all of the other factors with respect to a 20 But I think that even the foreseeability
21 temporary taking under Arkansas Game & Fish, you still 21 question, Your Honor, I don't think that you need to
22 have that fundamental threshold question of whether the 22 reach that, and, again, we have accepted as true
23 invasion itself constitutes a taking, and we think that 23 Plaintiffs' allegations with respect to that element for
24 that answer is no when it's an isolated event such as a 24 the purposes of this motion because there are two
25 thousand-year hurricane. 25 discrete factors that the Ridge Line test says that must

38 40
1 THE COURT: Let's take the question of intent 1 be met as a threshold requirement for a taking claim.
2 versus foreseeability. Does that make a difference in 2 THE COURT: But you do concede that in Arkansas
3 context? 3 Game & Fish, the reason the Supreme Court took the case
4 MS. BROWN: Ah, I don't think that that matters 4 and decided it adversely to the decision by the Federal
5 to the second element of the Ridge Line test, which is 5 Circuit is the frequency of the invasion by water,
6 substantial and frequent. I think that that is a 6 correct?
7 question that the Court would need to consider in order 7 MS. BROWN: I'm sorry. Are you referring to the
8 to find the United States liable. 8 Supreme Court or the Federal Circuit?
9 THE COURT: I'm asking because there are 9 THE COURT: The Supreme Court.
10 allegedly studies of the Corps that indicate that in 10 MS. BROWN: The Supreme Court, as I understand
11 certain circumstances, foreseeable circumstances, the 11 it, just said there is no exclusion -- there is no
12 private properties would flood, right? 12 categorical exemption for temporary flooding cases.
13 MS. BROWN: Yes. That is the allegation, yes. 13 THE COURT: Reversing the Federal Circuit, which
14 THE COURT: And that, you're saying, doesn't make 14 said there was, because you had to have --
15 any difference. 15 MS. BROWN: Yes.
16 MS. BROWN: I think that one can always imagine a 16 THE COURT: Right.
17 big enough hurricane that is going to flood -- 17 MS. BROWN: Right. So I take that to not be
18 THE COURT: That's one of the reasons I asked you 18 speaking directly to the question -- the Supreme Court
19 about a hurricane and a tropical storm. It doesn't 19 to not be speaking directly to the question of whether
20 really make any difference, because the amount of water 20 the -- whether the flooding must be substantial and
21 came down that came down, right? 21 frequent. So, again, when they're citing Ridge Line
22 MS. BROWN: Right, right, and -- 22 with approval, then that -- then that binding precedent
23 THE COURT: I just -- if we're writing an 23 is still in place.
24 opinion -- and we will -- I'd like to know what to call 24 THE COURT: Well, it really didn't cite Ridge
25 it. That's all. 25 Line for approval on that very point.

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1 MS. BROWN: That's correct.
2 THE COURT: It cited it for other purposes.
3 MS. BROWN: That's correct.
4 THE COURT: Okay.
5 MS. BROWN: For the purposes of the frequency, it
6 cited Portsmouth Harbor and the other Eyherabide case,
7 which neither of them are flooding cases.
8 THE COURT: Right. Well, it cited a variety of
9 precedents, Dickinson, Crest -- well, anyway.
10 MS. BROWN: Yes. And so now, before I conclude,
11 Your Honor, I want to touch briefly on why several
12 allegations with Plaintiffs' complaint should also be
13 dismissed now. And so the first of those is the claims
14 about government nonaction. Plaintiffs' complaint is
15 rife with allegations that at the time of construction
16 and during the 1970s and beyond, the Corps should have
17 acquired additional land and did not. Those allegations
18 sound squarely in tort and are not compensable under a
19 takings theory, and so they should be dismissed now.
20 And then next, moving on to Plaintiffs' claims
21 for lost business profits, Plaintiffs' claims seeking
22 compensation for lost business profits and rental income
23 are consequential and should be dismissed. Plaintiffs
24 do not address the many cases establishing that
25 consequential damages, such as lost profits, are
42
1 noncompensable, and the only case they cite, Kimball
2 Laundry, does stand for exactly that, as lost profits
3 were not awarded for the temporary seizure of a laundry
4 business.
5 Moving on to my conclusion here, Your Honor,
6 Plaintiffs cannot state a claim for a taking where
7 flooding has not been both substantial and frequent.
8 They cannot show a taking arose where the United States
9 acted within its sovereign authority to minimize
10 inevitable harms, nor can they prove a taking when
11 Plaintiffs bought land in areas with already heightened
12 flood risk because of permanent flood control
13 structures.
14 That Plaintiffs cannot state a claim for a taking
15 does not mean the United States is unsympathetic to them
16 and the more than 100,000 Houston residents who
17 experienced flooding. Congress and executive agencies
18 have brought about billions of dollars of hurricane
19 relief following the hurricane, and that relief is the
20 appropriate way for relief in the aftermath of this
21 tremendous and unprecedented storm.
22 Thank you.
23 THE COURT: Thank you, Ms. Brown.
24 Mr. Gershengorn?
25 MR. GERSHENGORN: Good morning, Your Honor.
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1 Thank you, and may it please the Court.
2 Particularly on a motion to dismiss, this is a
3 straightforward case. The Government built and operated
4 dams which worked just as the Government intended during
5 Tropical Storm Harvey. They captured billions of
6 gallons of water headed for downtown Houston, and they
7 stored that water on Plaintiffs' property. That, in
8 turn, caused massive destruction, dislocation, and
9 disruption for the Plaintiffs. That is a classic case
10 of imposing costs on the few to benefit the many, and
11 that is a clear physical taking of Plaintiffs' property
12 that requires compensation.
13 I'd like to highlight four facts that -- in the
14 complaint that demonstrate both that the flooding here
15 was the predictable result of the government action and
16 that it was sufficiently substantial and severe to
17 constitute a taking. First, the flooding was the direct
18 and natural result of the dams; indeed, it was the very
19 point of their construction and operation. The flooded
20 properties were all within the maximum design pool of
21 the dam. This was not unanticipated. And, indeed, the
22 dams worked exactly as intended to capture and store the
23 water headed for Houston on Plaintiffs' land.
24 Not only that, as Your Honor suggested, the
25 Government was well aware that Plaintiffs' land would
44
1 flood in a large storm. It had acknowledged that, and,
2 again, it was in the maximum design pool. The damage
3 was not only predictable, it was actually predicted.
4 Second, the flooding was caused by the
5 Government. These Plaintiffs are upstream from the
6 dams, and the flooding would not have occurred but for
7 the construction and operation of the dams. There was a
8 back-and-forth between Your Honor and Ms. Brown. I
9 think we got to that place. Regardless of what the
10 Government ultimately thinks, the allegations in the
11 complaint are clear that these upstream Plaintiffs,
12 behind the dam, would not have flooded in Harvey but for
13 the construction of the dam.
14 Third, the flooding Plaintiffs experienced was
15 severe and devastating. The Government impounded
16 billions of gallons of water on Plaintiffs' property,
17 destroying residential homes and businesses, displacing
18 families, and causing a lifetime of possessions to be
19 lost forever.
20 And fourth, the flooding will inevitably recur.
21 The dams remain in place, and storms large enough to
22 flood Plaintiffs' homes are not uncommon in the Houston
23 area. This was not a one-time occurrence, guaranteed
24 never to be seen again. Future and further flooding is
25 inevitable.
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1 Against that backdrop, the Government took
2 Plaintiffs' property, and Plaintiffs are entitled to
3 compensation, and that's true under at least two
4 theories, both of which are in the complaint. First,
5 under Crest, the -- that the Government -- that
6 establishes a -- the Government has established a
7 permanent liability to intermittent but inevitably
8 recurring flooding. That is this case.
9 Second, under Arkansas Game, Your Honor's opinion
10 and then the Supreme Court's ultimate affirmance, that
11 those facts establish a physical appropriation of such
12 severity that there's a temporary taking under Arkansas
13 Game. Of course, for this morning, our main point is
14 far more modest, and it goes to the point Your Honor
15 stated at the very end. It's -- our point is really
16 merely that this Court should take the same approach it
17 took in Arkansas Game and that your colleagues have
18 taken in Katrina and Ideker Farms, and that is to build
19 a full record through discovery and, if necessary, at
20 trial so that this Court and the Federal Circuit have
21 before it the full record so that they can decide
22 Plaintiffs' claims.
23 So the Government has come and said to the Court,
24 well, despite that it seems to us a pretty clear and
25 simple story, there's a series of exceptions, magic
46
1 rules that somehow insulate them from liability.
2 There's an exception for one-time floods. There's an
3 exception for flood control projects. There's an
4 exception when the Government perceives an emergency.
5 And there's an exception for landowners who bought after
6 the dams were built.
7 None of those magic bright lines, magic bullets
8 insulate the Government from liability for a taking, and
9 I guess what I would like to do, if it's okay with Your
10 Honor, is take those arguments in turn, because those
11 are what the Government raised.
12 So, first, the Government suggests that there's
13 an exception for landowners after -- who purchased the
14 land after the dams were in place, but the rule is very
15 simple, and it's the same in state law and in federal
16 law. The owner of the property at the time the takings
17 claim accrues gets to bring the takings claim, and that
18 disposes of that argument. That was the law that's set
19 forth in Cooper and in Dickinson and in Palazzolo.
20 So let me start with Cooper, because I think it's
21 the clearest one. That's the Federal Circuit case --
22 Your Honor is well aware of it -- but the facts are
23 these: In 1979, there was an obstruction in the water.
24 In 1982, three years after that, when the flooding had
25 started, Plaintiff got possession of the land. In 1984,
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1 the damages stabilized and Plaintiff sued. The Federal
2 Circuit considered the question, whether the fact that
3 the Plaintiff had gotten the land in 1982, three years
4 after the flooding started and after the obstruction
5 happened, precluded his claim, and the Court said no,
6 and the reason for that is because the claim accrued
7 when the damages stabilized in 1984 and he could bring
8 the claim.
9 The exact same thing is true in Dickinson, which
10 Your Honor has mentioned several times this morning,
11 right? Dickinson was a case in which the Plaintiff got
12 the land after the flooding had started, after the dam
13 was in place, and the Court said, nonetheless, that
14 Plaintiff can bring the claim because the damages in
15 that case hadn't stabilized. The claim hadn't accrued.
16 Palazzolo is exactly the same. Remember in
17 Palazzolo, which was the wetland regulation case from
18 the Supreme Court, the state court had said exactly what
19 the Government said here. The regulation was in place
20 when the Plaintiffs bought the land. What the Supreme
21 Court said was, no, that's not how it works here, that
22 you -- the -- the fact that the regulation was in place
23 before Plaintiffs bought the land is not an insulation
24 from liability. And, of course, it has to be that way,
25 because otherwise the Government gets the land for free.
48
1 THE COURT: Well, in -- the Supreme Court -- or
2 the majority opinion per the Supreme Court in Palazzolo
3 is something that expresses the thought in pithy,
4 Lockean terms, to put it mildly.
5 MR. GERSHENGORN: Yes, a stick in the Lockean
6 bundle. That's a great line by Justice Kennedy.
7 THE COURT: Yes, exactly.
8 MR. GERSHENGORN: But the point, Your Honor, is
9 that, of course, it has to be that way, because
10 otherwise the Government gets the land for free. They
11 build the dam, and our Plaintiffs can't sue at that
12 point, right, and they can't -- the landowners can't sue
13 because there has been no flooding. And the Court has
14 made clear in Stueve Bros. from the Federal Circuit and
15 in Sponenbarger from the Supreme Court, that mere
16 apprehension of flooding is not compensable, and,
17 indeed, if those Plaintiffs had sued the moment the dam
18 was -- the landowners had sued the moment the dam was
19 built, the Government would have said, "There is no
20 claim, it hasn't accrued yet." And that would have been
21 correct.
22 THE COURT: There was no damage at all.
23 MR. GERSHENGORN: There is no damage at all,
24 exactly, and so they couldn't bring the claim. And so
25 the result of the Government's argument is that no one
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49
1 pays for land that the Government has taken, and that
2 just can't be the case.
3 There also is -- I just want to say, this is
4 somewhat outside the complaint, but I hope this -- this
5 notion that -- you know, that the Plaintiffs are somehow
6 coming in to the Hoover Dam and buying a house at the
7 foot of it and then sort of taking their chances, I hope
8 Your Honor gets to see the properties at some point, as
9 I have gotten a chance to do. What you're talking about
10 is a relatively -- what we in the D.C. area would think
11 of as a relatively modest bump in the road, is the dam,
12 and that Plaintiffs' homes are often miles away from
13 them, and they are residences. There are golf courses.
14 There are schools. There are Starbucks. This is not a
15 situation in which the Plaintiffs are coming in and just
16 saying, "Well, there's this big dam there. Eh, no
17 biggie, let's move on."
18 And so it does seem to me that the case law and
19 the rule and common sense and reality all sort of fit
20 together here rather nicely.
21 THE COURT: Well, let's come back to a couple of
22 factual questions that I asked Ms. Brown.
23 MR. GERSHENGORN: Sure.
24 THE COURT: As the Court understands it, one of
25 the reasons the -- I guess the land -- the area in which
51
1 the way the manual suggested they should be. So, you
2 know, there was nothing unusual.
3 THE COURT: Just to confirm, it is the 2012 --
4 MR. GERSHENGORN: The 2012 manual.
5 THE COURT: -- that was in effect at the time?
6 MR. GERSHENGORN: That's my understanding as
7 well, Your Honor.
8 THE COURT: Just out of curiosity, has it been
9 modified since?
10 MR. GERSHENGORN: I don't know the answer to
11 that, not that I'm aware of. I'm getting -- from the
12 people who really know the facts that are beyond the
13 complaint, I'm getting a shaking of the head no, and
14 that's my understanding.
15 My -- you know, to go to that point, Your Honor,
16 again, we're now outside the complaint, but my
17 understanding is that the Government folks who looked at
18 this, at least their documents suggest, that it worked
19 as it was intended. There was nothing to modify because
20 it did what it was supposed to do. It impounded water,
21 captured the water headed downtown, and stored it within
22 the maximum design pool behind the dam. This is not --
23 and this goes to something the Court said in Stockton.
24 This was not something the engineers didn't think about
25 or didn't anticipate, and that's one of the things that

50 52
1 the impoundment might occur is ordinarily dry is that 1 makes this so clear, made it so clear in Stockton,
2 there are gates in the dam, and the gates are ordinarily 2 before the Court of Claims, and makes it clear here, is
3 open so that the flow from Buffalo Bayou just goes 3 this is within the maximum design pool. This was not a
4 through the gate unimpeded. Is that correct? 4 stunner.
5 MR. GERSHENGORN: That's my understanding as 5 THE COURT: May I ask a -- may I interject
6 well, Your Honor, and then what happens is -- 6 another question?
7 THE COURT: I'm sorry to ask all these 7 MR. GERSHENGORN: Please.
8 questions -- 8 THE COURT: I asked Ms. Brown about the
9 MR. GERSHENGORN: No, no. 9 construction in the 1940s, and I am just going to use
10 THE COURT: -- but I just haven't seen it. 10 that generically --
11 MR. GERSHENGORN: And I do think, Your Honor -- 11 MR. GERSHENGORN: Yeah.
12 again, I urge the Court to do so. I think this is one 12 THE COURT: -- and then the modification in the
13 of those where a picture is worth a thousand words. 13 1980s, and what do you say the modification did in the
14 THE COURT: Well, I do for the factual -- 14 1980s and why did it occur? It's in the master amended
15 MR. GERSHENGORN: Yes. No, I don't think you 15 complaint.
16 need it for the motion to dismiss, but -- 16 MR. GERSHENGORN: Yes, and we stand by those
17 THE COURT: No, we can't do that. 17 allegations. My understanding is what Ms. Brown said is
18 MR. GERSHENGORN: -- essentially since our 18 what we think as well, that it strengthened the top,
19 allegations are the things that control, even if Your 19 that it changed some of the spillways, it put concrete
20 Honor sees something different, which I don't think you 20 on the top --
21 will. 21 THE COURT: Strengthened the top, it increased
22 So the answer is yes, and, indeed, just to be 22 the --
23 clear, you know, the gates -- the gates coming down and 23 MR. GERSHENGORN: Increased the height.
24 working, that is what -- as Your Honor suggested, that's 24 THE COURT: -- the elevation.
25 what the manual required, and things were operated in 25 MR. GERSHENGORN: Right. There was a new

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1 assessment of the maximum design pool at that time.
2 So, anyway, that's their first exception, is the
3 after-acquired land. You can't come to --
4 THE COURT: If we can just go back to the
5 allegations in the complaint --
6 MR. GERSHENGORN: Yes, yes.
7 THE COURT: -- I take it that the increase in the
8 elevation was because of anticipation by the Corps that
9 the increase in elevation was needed. This is apart
10 from the improvements to the spillways and the
11 strengthening and so on.
12 MR. GERSHENGORN: Yes. My understanding is the
13 Government had a new sort of maximal probable
14 precipitation, and so that they changed the maximum --
15 essentially the maximum design pool to increase that,
16 so...
17 So the second exception, so we've talked about
18 the after-acquired land sort of coming to the dam. The
19 second one that the Government invokes is the emergency
20 exception. So the emergency exception -- again, just to
21 be clear, I am not going to address the merits -- but
22 that to us is an affirmative defense, and it's not
23 appropriate on a motion to dismiss, and so we don't
24 think it's actually even something that the Court should
25 consider, but in any event, it is completely meritless.
55
1 gates. There was a manual in place, and they followed
2 it, and it "worked." Unfortunately, what happened is it
3 worked by taking water and storing -- capturing that
4 water and storing it on our clients' land, and so that
5 is --
6 THE COURT: Well, let me just carry this a step
7 further, if I may, if you will allow me -- maybe you
8 won't, but we'll find out -- but in any event, you're
9 not addressing or -- I'm sorry, it's not addressing.
10 You're not alleging any wrongdoing on the part of
11 the Corps in terms of the operation at the event, let's
12 call it a tropical storm. Is that correct?
13 MR. GERSHENGORN: That is correct, Your Honor.
14 That is correct. For the takings that we are bringing,
15 it is lawful, proper government action. It's just that
16 the Government has to pay for it, because they have
17 imposed the costs on the few to benefit the many.
18 So just to then -- so I think Your Honor has it
19 exactly right with respect to how to view the emergency,
20 but I would like to take a second, if I could, on the
21 doctrine, the doctrinal side, why I think the Government
22 is just wrong as a matter of law on the emergency
23 exceptions.
24 The Court's cases -- the Court's cases fall into
25 two buckets on this, on the emergency exception. One is

54 56
1 THE COURT: I'm having a little trouble seeing 1 the sort of nuisance/blight/illegal activity, you know,
2 why that applies in this particular case just because it 2 there's a fugitive in your home, there's some other
3 appears from both your presentation and briefing and the 3 nuisance. That, of course, is not this case. Nobody's
4 master amended complaint and Ms. Brown's that the Corps 4 alleging that our Plaintiffs -- our residences were a
5 did what it was -- as you say, what it was supposed to 5 nuisance, a blight, or otherwise illegal. So that
6 do under the manual. 6 category is out.
7 MR. GERSHENGORN: So we agree completely, Your 7 The second thing that the Government then cites
8 Honor. So we have a legal answer to the emergency and a 8 are these sort of fire cases, where the -- you know, the
9 sort of factual, fact answer, and let me address the 9 Government, like Bowditch, is allowed to burn some
10 fact one first because Your Honor has said it. We think 10 properties to save others. Those are inapposite for at
11 the emergency doctrine has no applicability here because 11 least two reasons. First, those are not cases where the
12 there was no emergency. There was a manual in place. 12 Government's created the problem. We're not aware of
13 It told you exactly what to do with every kind of flood, 13 any case -- and certainly the Government hasn't cited
14 and the Government followed the manual. We are not 14 one -- where the Government intentionally set the fire
15 alleging deviations from the manual. We are not 15 and then claimed the right to burn land to create a
16 alleging sort of unusual circumstances. What we are 16 firewall.
17 saying is they followed the manual to the letter. This 17 Of course, they --
18 is what was intended. This is what was forecast. This 18 THE COURT: The Court has had some of those
19 is what it was supposed to do, and that's exactly why 19 cases. They generally deal with fire breaks in the west
20 government officials afterwards said the dams functioned 20 or something like that and it gets out of control,
21 as intended. 21 but --
22 And so this is not a situation in which there was 22 MR. GERSHENGORN: Yes.
23 some emergency when the Government didn't anticipate and 23 THE COURT: -- it just -- there really since an
24 what are we to do and we're making split-second 24 analogy to this case, it appears, at all.
25 judgments about do we open the gates, do we not open the 25 MR. GERSHENGORN: I don't think so, Your Honor,

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1 and the Trinco case, I think, is a good example, and not
2 only -- because that's one of those fire cases from the
3 Court, from the Federal Circuit, and I think it
4 illustrates sort of the second point that I was going to
5 make, which is so not only are these situations where
6 the Government didn't itself start the fire, but the
7 house is otherwise in harm's way, and so one of the
8 things that -- in Trinco that was alleged, and one of
9 the reasons the Federal Circuit sent the case back to
10 the Court of Federal Claims, is because Trinco alleged
11 that his property would not have burned from that fire
12 absent the government action.
13 What these cases are about, Your Honor, is
14 there's an -- an emergency that would otherwise affect
15 the Plaintiff, and the Government steps in and burns the
16 house, as in Bowditch. The fire was advancing on the
17 house. There is no doctrine and no case that I'm aware
18 of that says because there's a fire coming, you can take
19 somebody who's not at risk from the fire, break into
20 their house, steal their -- take their fire
21 extinguishers, and then use them without paying for
22 them. That is not the law.
23 The case that makes that point clearest, I think,
24 is the Supreme Court's YMCA case, which is cited by the
25 Government and in our briefs as well, and so if I could
58
1 just take a second on that case. So that's a situation
2 in which there are rioters, and the Government takes
3 over a building and to save that building from the
4 rioters, and then the building owner, the YMCA owner,
5 says I want compensation for that.
6 So what the Court says is you can't get
7 compensation for that because the Government took over
8 your home in order to protect you from the rioters.
9 It's very much like the fire break. But what --
10 critically, what the Court also says is that this would
11 be a different case, and it might well be a taking, if
12 they had taken over your YMCA to stop rioting elsewhere.
13 They can't take over your building to have a
14 headquarters to help others, even though that's a great
15 benefit to the country or to the people. That is a
16 taking. What's not the taking is a situation in which
17 you are otherwise in harm's way and the Government sort
18 of preempts by burning your house.
19 THE COURT: You're saying in the latter
20 circumstances, the takeover of the YMCA is the takeover
21 of a building for public use, it might be a valid public
22 use, but it still falls under the takings clause of the
23 Fifth Amendment.
24 MR. GERSHENGORN: Exactly, Your Honor, and that
25 is this case, all right? This is a situation -- and,
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1 again, taking the allegations of the complaint as true,
2 as we must, is that these Plaintiffs would not have
3 flooded absent the dam. The point of the dam then was
4 not to save our upstream Plaintiffs from harm they
5 otherwise would have -- would have suffered, but
6 instead, to cause them harm precisely for the public
7 good that Your Honor has identified. It's to -- to save
8 downtown Houston. That is a perfectly legitimate use of
9 government flood control but is one the Government has
10 to pay for. It is not one they can take for free under
11 the emergency exception or any other exception that
12 we're aware of. So those are the first two bright-line
13 rules, after-acquired land and emergency.
14 The third one that the Government has sometimes
15 raised is -- I think I heard it this morning as well --
16 is that there is some sort of flood control exception,
17 that --
18 THE COURT: Well, that's a Texas law --
19 MR. GERSHENGORN: -- so on that, Your Honor --
20 THE COURT: -- putting aside the Flood Control
21 Act --
22 MR. GERSHENGORN: Right. And I think on that,
23 you know, the Supreme Court -- the Supreme -- so there's
24 a Texas component and a federal component, and the
25 Supreme Court in Arkansas Game addressed sort of this
60
1 very argument, and if I could, just give me one sec,
2 Your Honor, because what the Supreme Court said was --
3 and the Government made this argument in Arkansas Game,
4 because, of course, Arkansas Game, as Your Honor well
5 knows better than any of us, was a flood control case --
6 THE COURT: Well, Mr. Shapiro probably knows just
7 as well.
8 MR. GERSHENGORN: Well, I'm sure better than I
9 anyways, is that it was a flood control case, and the
10 Government argued in the Supreme Court that if there was
11 a taking there, it would wipe out flood control project,
12 and the Supreme Court said, if I could just read it, it
13 said, "Reversing the decision below, the Government
14 worries, risks disruption of public works dedicated to
15 flood control. While we recognize the importance of the
16 public interest the Government advances in this case, we
17 don't see them as categorically different from the
18 interests at stake in myriad other takings cases." And,
19 of course, that has to be correct.
20 Every case -- and Your Honor suggested this in
21 your public good comment -- every case that involves a
22 taking is for the public use --
23 THE COURT: If I can stop you for a second.
24 MR. GERSHENGORN: Yes, please.
25 THE COURT: If I recall correctly, the Supreme
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1 Court cited the Causby case in that context.
2 MR. GERSHENGORN: I think that's right, Your
3 Honor.
4 THE COURT: But anyway, go ahead.
5 MR. GERSHENGORN: Actually, you are exactly
6 right, Your Honor. It is on -- yes, they cite the
7 Causby case, 328 at 275.
8 So -- and it has to be that way, right? I mean,
9 yes, flood control is critically important, but so are
10 building power plants, so are building railroads, so are
11 building capitol buildings or building hospitals. The
12 whole point of the takings clause is it has to be a
13 public use. The underlying use is always important.
14 And so that can't be enough to justify a flood -- a
15 flood control exception.
16 So as Your Honor suggested, there also is a
17 suggestion that somehow it's different in Texas law, and
18 I hope Your Honor won't be surprised to learn that
19 that's not the case, and the two cases we would cite are
20 Kerr and Brazos River Authority, both of which are from
21 the Supreme Court of Texas, where they could not have
22 made this clearer.
23 So in Brazos, if I could again just read the
24 quote to Your Honor, it says, "The record establishes
25 the fact that this installation or portions thereof will
62
1 be repeatedly inundated by the backwaters of the Brazos
2 and Salt Creek. A taking under the constitutional
3 provision is involved, and under our constitution, the
4 authority is liable to pay just compensation."
5 The same is true in Kerr. So in Kerr, it said --
6 and they were distinguishing the facts in Kerr but then
7 making it like our case --
8 THE COURT: If I recall correctly, in Kerr, the
9 Texas Supreme Court affirmed the finding of no taking.
10 Is that correct?
11 MR. GERSHENGORN: That is correct, Your Honor,
12 but they precisely distinguished our case, and if I
13 could, it says, "This is not a case" -- the one where
14 they found no taking -- "is not a case where the
15 Government made a conscious decision to subject
16 particular properties to inundation so that other
17 properties would be spared, as happens when the
18 Government builds a flood control dam, knowing that
19 certain properties will be flooded by the resulting
20 reservoir. In such cases, of course, the Government
21 must compensate the owners who lose their land to the
22 reservoir."
23 So the idea that Texas has some -- some sort of
24 quite unusual rule of property law that says the
25 Government can flood your land if it's for flood control
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1 is just not the case. The basis of those claims is that
2 constitutes a taking under the Texas constitution, and
3 more important, the underlying point is that there's a
4 property interest, because in order to have a taking
5 under the Texas constitution, there has to be a property
6 interest, and so what those cases establish, in our
7 view, is a property right exactly of the kind that our
8 clients are asserting here.
9 So there is no special Texas law -- in fact, it
10 would be quite unusual if there were a Texas law ruling
11 that the Government can build a dam for flood control
12 and subject upstream properties to flooding without
13 compensation. It just is not the case.
14 THE COURT: Well, let me ask a question about
15 this Texas Water Control statute -- I say water control,
16 and I'm probably mis-saying it, but if I recall
17 correctly, it's 11.086.
18 MR. GERSHENGORN: 11.086.
19 THE COURT: To me, that stands for or here
20 apparently addresses what I think of in my growing up in
21 a rural area diffuse sheetflow.
22 MR. GERSHENGORN: That's exactly right, Your
23 Honor.
24 THE COURT: Is that right?
25 MR. GERSHENGORN: That's exactly right. It
64
1 just -- it addresses diffuse sheetflows or water
2 untouched by the hands of man and falling from the sky.
3 THE COURT: Not water that's already in a
4 waterway.
5 MR. GERSHENGORN: That's exactly right, Your
6 Honor. So that's exactly right, and the second point we
7 would make along similar lines, a related point, Your
8 Honor, is that to us it's just a red herring, right?
9 The question is not whether there's a cause of action
10 under Texas law for certain -- for certain invasions or
11 not of water. The question is -- indeed, as the
12 Government suggested this morning -- the question is
13 whether there's a property right, and to that question,
14 it seems to us that Brazos and Kerr speak directly.
15 So the question is not could you bring a nuisance
16 claim or is there some statutory water right? The
17 question is, do you have a property right not to be
18 flooded by the Government when it builds a dam? And the
19 answer to that is yes, you do. Brazos says it, Kerr
20 says it, and, quite frankly, I think every -- every
21 other state -- and we have not done an exhaustive
22 survey, but I would be surprised if there were states
23 that said that the Government can build a dam and flood
24 people upstream from the dam and not have to pay for it,
25 that there's no property right in that. In any event,
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1 under Texas law, it's clear, and so we think that that
2 is sufficient for today.
3 The final sort of bright-line rule that the
4 Government has adopted is the -- is the one-time
5 flood -- the one-time flood, and, you know, the short
6 answer to that is there is no one-bite rule in -- one
7 free bite rule in the federal flooding context. The
8 Government does not get to say, oh, for one time, I am
9 going to take 50 billion gallons of water and store it
10 on your land, and you can't do anything about it. And
11 that's true as a matter of doctrine, it's true as a
12 matter of case law, and it's true as a matter of common
13 sense.
14 So starting with doctrine, you know, Cress
15 says -- so even setting aside Arkansas Game, I mean,
16 Cress says there's a taking when it's a permanent
17 liability to inevitably recurring but intermittent
18 flooding. That is this case, and we think certainly
19 under the allegations in the complaint, that is this
20 case. The key to understanding that, I think, is in
21 part that although it is a one-time flood in the sense
22 that it is the first time for many of the Plaintiffs, it
23 is not a one-time flood in the sense that it could never
24 happen again, and this goes to one of the points I made
25 in the opening.
66
1 It is inevitable that the flooding will recur.
2 The structure is in place, and it will -- and bylaws of
3 physics and natural rainfalls, the flooding will occur
4 again. And so this seems to us to fall right within
5 Crest, but even if Your Honor didn't think that -- and
6 we have alleged both a temporary and a permanent taking
7 in the complaints, and at this stage all we're asking is
8 that you allow both claims to go forward to discovery --
9 is that this certainly is substantial and frequent
10 enough to be a taking under the Arkansas Game analysis.
11 It is the complete devastation of residential
12 homes. When you look at the flooding and it's people's
13 houses, it's up to your waist in water, the idea that
14 that isn't substantial enough, substantial and frequent
15 enough to constitute a flooding is just hard to stomach.
16 The cases line up with that. You know,
17 Quebedeaux is one, Your Honor. Obviously, you are not
18 bound by Quebedeaux, because it's a colleague of yours,
19 but Quebedeaux says that when you have a permanent
20 structure that causes flooding and the Government
21 asserts a right to have to flood again, then that is
22 the -- a situation in which a one-time flood can -- can
23 be actionable, and that is exactly this case.
24 This is not a one-time flood where the Government
25 said, "Oops, we're sorry, we're tearing down the dam,
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1 this will never happen again." Maybe that's a different
2 case. I might make an argument it's still a temporary
3 flooding, but that's a different case. Here, the
4 permanent structure still remains. The flooding is
5 inevitable. It is going to happen. Storms of the
6 size -- big enough to flood, doesn't have to be a
7 Harvey-sized to flood -- a Harvey-sized storm, but
8 storms big enough to flood Plaintiffs' land to exceed
9 the government-owned land are certain to recur. The
10 flooding is inevitable, and so it should be actionable.
11 Your Honor asked about Stockton. I think
12 Stockton makes exactly the same point. What Stockton
13 says is a one-time flood can constitute an actionable
14 taking certainly when it's within the engineer's maximum
15 design pool. There aren't a lot of cases on it,
16 Stockton says, because it's not the usual case where the
17 engineers say, oh, yes, here's where we expect the
18 design pool to go, but we're not going to bother to get
19 the land. We're not going to purchase the land behind
20 it. So the cases don't come up that often where the
21 engineers think there is going to be flooding and the
22 Government doesn't take the land, but -- or doesn't take
23 an easement in the land, but -- but that's -- that is --
24 Stockton saw that as still a clear taking, and we think
25 that's exactly right.
68
1 The reason why we think that makes sense, Your
2 Honor, and why -- and how I think it makes sense to
3 think about that is that frequency is not a -- sort of
4 an end in itself. The question is was the -- was it
5 foreseeable and was it -- was the damage foreseeable,
6 intended, and was it severe? And I think frequency goes
7 to those questions, right? Sometimes frequency can show
8 intent to foreseeability. If it happens over and over,
9 of course, it's foreseeable. It can also go to
10 severity, particularly in an agricultural setting, maybe
11 a one-time flood isn't that big a deal, very different
12 in a residential setting, but, again, frequency can go
13 to severity.
14 THE COURT: Well, that's why I asked Ms. Brown
15 about intent and foreseeability and whether that made a
16 difference to her analysis. She said no.
17 MR. GERSHENGORN: So I think yes, Your Honor. It
18 seems to me crystal clear that when the -- when the
19 flooding is intended and -- is intended, foreseeable
20 and, indeed, predicted, then that has to be part of the
21 analysis, that the Government -- the Government can't
22 say, "I am intentionally doing it. I am putting this
23 water on your land and reserve the right to do it again,
24 but I get one free pass. Until I do it the second time,
25 you don't get a claim." That just can't be right.
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69 71
1 THE COURT: Well, in that context, the Court 1 one-time floods, particularly where it's intended,
2 asked Ms. Brown about the -- think about it, it's not 2 predicted, foreseen, severe, happens to people who would
3 the Tax Day flood exactly but the Tax Day event the 3 not otherwise have been flooded, where a one-time flood
4 prior year -- 4 immunity for the Government just doesn't make any sense.
5 MR. GERSHENGORN: Yes, Your Honor. 5 So, Your Honor, I guess the last thing I just
6 THE COURT: -- is that correct? 6 wanted to touch on very briefly -- I mean, I -- the
7 MR. GERSHENGORN: Yes. 7 Government hasn't raised it today. There was a question
8 THE COURT: And I take it that the streets and 8 in their brief about statute of limitations. I take it
9 lawns in the area had water on them. 9 from the fact that they haven't raised it here that they
10 MR. GERSHENGORN: That's my understanding, Your 10 may not be pursuing that as strongly, but in any event,
11 Honor, right, that this -- 11 I just want to make clear that Stueve Bros. --
12 THE COURT: But there was no damage to property 12 THE COURT: Let's not assume that that's
13 itself. 13 abandoned. I don't think it is, to be honest with you.
14 MR. GERSHENGORN: Not to the structures 14 MR. GERSHENGORN: I'm sorry, Your Honor?
15 themselves. I think that's right, Your Honor, but I 15 THE COURT: I don't think it's abandoned.
16 think it just illustrates -- 16 MR. GERSHENGORN: Okay, so I would just like to
17 THE COURT: Does that make a difference? 17 briefly address that under Stueve Bros., the -- it seems
18 MR. GERSHENGORN: So I think it does in this 18 to us the case law is crystal clear that there is no --
19 sense, Your Honor. I think it illustrates the larger 19 the statute of limitations does not start running until
20 point on frequency, which is that this, again, is not a 20 the claim accrues, and that happens when there is
21 situation in which this is a one-time event that's not 21 flooding. Apprehension of flooding is not enough.
22 likely to occur. As the Tax Day flood shows, and as we 22 Stueve Bros., which is binding, of course, on this
23 would be prepared to show, you know, as discovery and 23 Court, controls that.
24 stuff continues, the storms of this magnitude, although 24 And then very briefly on the jurisdictional
25 Harvey was certainly an extraordinary storm, but storms 25 question, you know, it is our sense that on the

70 72
1 of magnitude enough to flood beyond the government-owned 1 jurisdictional issues, Moden controls, and that all we
2 land, within the maximum design pool, are not uncommon 2 need to do to survive 12(b)(1) is to show a nonfrivolous
3 in this area, and the Tax Day flood shows that. 3 allegation of a taking, but this case is really a
4 As Your Honor said, it didn't quite reach up to 4 12(b)(6) case.
5 people's houses, but it did flood the streets, and that 5 At the 12(b)(6) stage, you take the allegations
6 was just a year ago, a year before Harvey. And then 6 in the complaint, as I've tried to walk through for Your
7 Harvey, of course, did massive damage, but storms of 7 Honor, I think the allegations in the complaint make
8 similar size have happened over the years and missed 8 crystal clear that the intentional, foreseeable,
9 Houston by, you know, 30, 40 miles in a particular 9 actually foreseen, massive destruction of residences,
10 direction. 10 while the Government reserves the right to do it again
11 And so those kinds of floods -- that's why to me 11 for a permanent structure, for people who would not have
12 the frequency just doesn't answer the question or 12 been flooded except for that structure, states both a
13 doesn't make sense as a bright-line rule in the context 13 permanent claim and a temporary taking claim.
14 of a situation in which there's a permanent structure 14 THE COURT: You realize that Moden has been
15 that remains in place and the flooding remains 15 argued -- well, let me start again. I misstated that.
16 inevitable. Again, this -- at the motion to dismiss 16 If you look at a case called Jan's Helicopter --
17 stage, it seems to me crystal clear and easy. What the 17 MR. GERSHENGORN: Yes, Your Honor.
18 Supreme -- the Government reads Arkansas Game very, very 18 THE COURT: -- you understand that the chief
19 narrowly, and I guess I read it slightly more broadly, 19 judge of the Federal Circuit dissented on the reach of
20 which is that the Supreme Court has suggested that these 20 Moden.
21 kinds of bright-line rules just don't have a place in 21 MR. GERSHENGORN: But, Your Honor, as I
22 takings law, that there is no absolute immunity for a 22 understand it --
23 single flood. 23 THE COURT: I understand, it might not make any
24 For sure, there will be situations of one-time 24 difference --
25 floods where there isn't a taking, but there are other 25 MR. GERSHENGORN: So -- but actually, I think,

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1 Your Honor, if -- that Jan's Helicopter actually goes 1 understood it to be that distinct between a permanent
2 the other way. In other words, one of the things 2 and a temporary.
3 they -- 3 THE COURT: Well, they -- the master amended
4 THE COURT: I know. 4 complaint does make both allegations.
5 MR. GERSHENGORN: -- the chief was dissenting was 5 MS. BROWN: Yes.
6 that Jan's Helicopter said we don't even have to reach 6 THE COURT: And he was using those two cases as a
7 Moden. It's enough for you just to say "taking." We're 7 point to make the juxtaposition, if you will. You don't
8 not asking the Court, even though I do think Jan's 8 have to accept that.
9 Helicopter is the law, we're not asking the Court to go 9 MS. BROWN: Understood.
10 that far. We're just saying take Moden as it is, but in 10 THE COURT: I understand.
11 any event, Your Honor, the question that I think the 11 MS. BROWN: And I think we have already addressed
12 Government has -- that -- the grounds we're proceeding 12 Arkansas Game & Fish. Again, this situation is
13 on today are the allegations in the complaint, for the 13 distinct. There were six floods over a period of time
14 reasons I've suggested, and those kinds of allegations 14 in that case.
15 clearly state a taking, and we would ask the Court to 15 And then moving on to the question about when
16 deny the motion to dismiss. 16 Plaintiffs acquired their land and claim accrual, we
17 THE COURT: Thank you. 17 have not raised a claim accrual here, and, again, all
18 MR. GERSHENGORN: Thank you, Your Honor. 18 the cases that Plaintiffs rely on, the Cooper case, the
19 THE COURT: Ms. Brown, a reply? 19 Dickinson case, are stabilization cases, where you have
20 MS. BROWN: I will try to be brief, Your Honor. 20 a continuous process that is changing things and is
21 I want to address first some of the facts that 21 changing the amount of property that is going to be
22 Mr. Gershengorn raised at the beginning, and none of 22 inundated. That is not the case here.
23 those -- many of those go to foreseeability, causation, 23 The same with Palazzolo, and the Court
24 which, again, we are not contesting for purposes of this 24 specifically limited its holding to the circumstance of
25 motion. 25 a land use regulation claim, where the claim does not

74
1 And so I want to move next to his argument that
2 flooding would inevitably occur and that at some time in
3 the future, some future storm might flood the
4 Plaintiffs' property, and what he relied on there was
5 the Crest case, about an intermittent but inevitably
6 recurring. What I want to note here is that the
7 intermittent and inevitably recurring flooding had
8 already taken place in Crest. It wasn't a statement
9 about we think that at times in the future these
10 properties may flood on an unknown basis -- on an
11 unknown frequency, and that's the case that Plaintiffs
12 have advanced here. Again, the intermittent flooding
13 had actually occurred, and so the Court had facts to
14 rely on there about when it was likely to occur in the
15 future. That's not the case here, where we just have
16 one flood that has actually occurred.
17 THE COURT: Well, if the Court understood
18 Mr. Gershengorn's argument to distinguish between Crest,
19 or a permanent taking, the inevitably recurring, since
20 they haven't changed the manual or the impoundment or
21 that sort of thing, and we relied for a temporary taking
22 on Arkansas Game & Fish. That's the distinction the
23 Court understood Mr. Gershengorn was making.
24 Is that correct? Did you understand that?
25 MS. BROWN: I'm not sure that I necessarily
76
1 accrue until one sees how the land use regulation is
2 actually enforced. And that was the difference there,
3 is that even though people are owning the same thing, we
4 have to wait and see how the regulator applies that,
5 applies the regulation, and that's not the case here.
6 Plaintiffs are saying because the dams are
7 constructed, are physical structures, they will
8 inevitably flood.
9 THE COURT: That's a little different than your
10 briefing on this subject, because if I recall correctly,
11 you treated Palazzolo as a regulatory takings case and
12 distinguishable on that ground, but you say now that
13 really you have to lay that against Dickinson and its
14 progeny.
15 MS. BROWN: Well, I think there are two things
16 that make Palazzolo distinguishable. I think the fact
17 that it is a regulatory case for this purpose
18 specifically is distinguishable, because property rights
19 are different according to when one buys land, and
20 that's the principle that we're relying on from Texas
21 law, where if one is a subsequent purchaser, they do not
22 have the right to prevent occupations from an existing
23 structure, and that's not sort of -- that temporal
24 element doesn't come into play with respect to the
25 regulatory taking cases, but it does because that's

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1 an -- because that's an element of property law. 1 that that case says that you can't use a building in one
2 THE COURT: Let me think about that for a moment. 2 place to save property elsewhere, but that's exactly the
3 I'm not exactly sure that my statement is 3 circumstance at issue in the Miller case. In the Miller
4 correct. I had a takings case called Lost Tree. Are 4 case, the cedar trees were not themselves in any danger.
5 you familiar with Lost Tree? 5 The cedar rust does not kill cedar trees. It only
6 MS. BROWN: Yes, Your Honor. 6 affected the apple trees, but what the Court said is
7 THE COURT: I know you are. 7 that we will destroy, nevertheless, the cedar trees that
8 MS. BROWN: Yes. 8 are not themselves in danger, and the police power did
9 THE COURT: And you and I have addressed that 9 apply in that circumstance.
10 case before, and the temporal element was fairly 10 And then the final point here is that he said
11 strongly at issue in that case. 11 that we've made a general flood control exception,
12 MS. BROWN: The temporal element -- 12 saying -- I'm sorry, that we have made a general flood
13 THE COURT: In a regulatory takings context. 13 control exception, which we have not, and what we have
14 MS. BROWN: Right. That had to be with the -- 14 specifically said is that when you look to state and
15 THE COURT: Well, we understand that. 15 federal law, they are not recognizing the type of
16 MS. BROWN: Right. 16 property right here where one is buying land that is
17 THE COURT: We understand each other. 17 already in the shadow of an existing reservoir. And so
18 MS. BROWN: Right. I think, again, the question 18 some of those cases, for example, the Brazos River case,
19 here, though -- and I think it comes up all the times in 19 the property was a preexisting structure when a new dam
20 riparian cases, right -- 20 was created that -- I can't remember if it impounded
21 THE COURT: On which cases? 21 water or reduced water, but it was a new structure that
22 MS. BROWN: Riparian cases? 22 was created.
23 THE COURT: Oh, sure, yes. 23 And then, again, in the Kerr case, that was dicta
24 MS. BROWN: Where a landowner acquires land and 24 from the Court when the issue at the case was whether
25 they have a right to a certain amount of water because 25 the Government's failure to implement certain -- certain

78
1 they got there first, and that element does not have the
2 same analogy in regulatory taking cases, but it does in
3 this type of case.
4 THE COURT: Okay.
5 MS. BROWN: And next I am going to move on to
6 Mr. Gershengorn's argument with respect to the police
7 powers, and he says there is no emergency because there
8 was a value and a plan, but that is the case -- that is
9 the same as the case in Bowditch. In Bowditch, there
10 was a statute that said if there is a fire, we need to
11 have three people come to a residence, and we can decide
12 whether we are going to burn this house down.
13 So the existence of a plan or a regulation that
14 sets out this is what we are going to do if there is an
15 emergency situation doesn't mean that the police power
16 doctrine does not apply.
17 Next I am going to move on to his point with
18 respect to some of the fire cases, again under the
19 police power doctrine, and what he said is that the fire
20 cases are distinguishable because the Government didn't
21 start the fire, but, again, the Government didn't start
22 the hurricane or cause the rainfall here. That was the
23 hurricane.
24 And he relied for another point with respect to
25 the police power on the YMCA case, and what he says is
80
1 flood control plans was actionable.
2 And, again, the fact that there are cases that
3 are finding a taking when there is flooding does not
4 mean that there is always a property right for all
5 flooding cases. We think that there is not an interest
6 here in the specific aspect of property that Plaintiffs
7 have alleged the United States took.
8 And then my last point here is with respect to
9 foreseeability, which Plaintiffs say is relevant to the
10 Ridge Line test because the dams were built and flooding
11 may occur in the future, and I would just again say that
12 we have not contested that for purposes of this motion,
13 but I want to be clear that the question is whether the
14 invasion is foreseeable at the time of the government
15 action. The Plaintiffs say that the action is the
16 design and construction of the dams, so the question is
17 whether this type of occupation was foreseen in that
18 time, and that is not a given, and -- but I do not think
19 that that is necessary for disposition of our motion,
20 and we would ask the Court to grant our motion to
21 dismiss.
22 THE COURT: All right. Thank you very much.
23 MS. BROWN: Thank you.
24 THE COURT: Actually, may the Court comment to
25 both of you? This case was very well briefed, and the

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1 Court appreciates that. I must say the Court is not
2 familiar with Texas water law, and we have struggled a
3 little bit to get ourselves to the point where we know
4 it a little better, and we are still working on that.
5 And so obviously we are going to reserve a decision. We
6 will write, and it will take us a little bit of time to
7 do that.
8 We have had the benefit and we will have the
9 benefit of our court reporter, Evelyn Carter, and she
10 has agreed to provide a one-day transcript, and we will
11 wish her well in that effort.
12 What the Court would propose is that we take a
13 ten-minute recess at this point and then reconvene to
14 talk about the Government's recently filed motion and
15 the Plaintiffs' preliminary response and any points the
16 Plaintiffs care to make about those particular -- the
17 matters addressed by that motion and future scheduling.
18 Let me just say, before we do that, the current
19 discovery schedule is too short. The Court acknowledges
20 that. And so inevitably the Court will extend the
21 discovery period. Right now, it ends on, if the Court
22 recalls correctly, June 13th, if my memory serves, and
23 that's much too short, by months, given the fact that
24 the jurisdictional issues are going to dovetail over
25 into the liability issues, and we really have to address
83
1 And I take it what you have in mind if the
2 case goes forward is something that basically
3 contemplates a potential trial on jurisdiction and
4 liability in the fall of 2019. Is that correct?
5 MS. BROWN: Yes. I would say if that is what
6 is consistent with the Appendix A of the CFC Rules
7 requiring all the pretrial filings. As you know, we
8 didn't set a specific trial date because we think it's
9 important here to figure out -- if our motion is denied
10 and we go to discovery, that we have the post-discovery
11 meeting to determine whether a trial is necessary and
12 what issues are disputed.
13 THE COURT: The Court brought along Appendix
14 A, but I don't see any reason not to follow Appendix A,
15 if we get to that point.
16 MS. BROWN: Right. So I think assuming that
17 that comes out to a trial in the fall, I have not done
18 the math, but then, yes, that's correct.
19 THE COURT: Let's talk a little bit about
20 summary judgment. Do you think summary judgment is
21 appropriate in this case in any respect?
22 MS. BROWN: I think that there are certainly
23 questions that could be limited, depending on the expert
24 opinions.
25 THE COURT: I'm tempted to ask what kinds of

82 84
1 jurisdiction and liability together. 1 topics are they, but I'm going to exercise the better
2 And so part of the question is going to be if -- 2 part of valor and not do that. You've covered a variety
3 and the Court doesn't presume anything -- if the motion 3 of topics in your motion that bear on that subject
4 to dismiss is denied, then -- or granted only in part or 4 potentially. One of the difficulties the Court is
5 something like that -- then we will move to discovery, 5 having is that the motion to dismiss addresses a set of
6 but what we ought to do is talk about what happens if 6 those topics as well.
7 the motion is denied or not granted in full and work out 7 MS. BROWN: All right. So I think, Your
8 a schedule from that. 8 Honor, should our motion be denied, we would want to
9 Does that help on what we hope to try to do after 9 raise some of those same issues on summary judgment --
10 the short recess? 10 THE COURT: That's the impression I got.
11 MR. GERSHENGORN: Yes, Your Honor. 11 MS. BROWN: -- and include findings of fact.
12 MR. EASTERBY: Yes, Your Honor. 12 Not that I think that factual findings are necessary to
13 MS. BROWN: Yes, Your Honor. 13 resolution of our motion, obviously. But I think that's
14 THE COURT: Okay, thank you. We are in recess 14 just what we would do.
15 for ten minutes. 15 THE COURT: Ordinarily, the Court really
16 (Court in recess.) 16 doesn't want two bites at an apple. You know, usually I
17 LAW CLERK: The United States Court of Federal 17 listen and try to understand what the parties are up to
18 Claims is back in session. 18 once, and once we cross that bridge, you know, we've
19 THE COURT: Please be seated. 19 crossed it. Every once in a while something happens
20 We're dealing with a contingent situation. If 20 where you can't do that just once. You have to
21 the case goes forward, then what? I take it that's the 21 reconsider something or look at it in a different way,
22 point. 22 and the Court understands that. But it's just in this
23 Ms. Brown, you have some points you raised or 23 kind of takings arena, summary judgment just doesn't
24 you have some further questions you raised in your 24 look like a very viable procedural mechanism to approach
25 motion to amend the existing schedule, right? 25 the case, that's all.

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1 MS. BROWN: I think, Your Honor, then what we 1 THE COURT: All right. Let me hear from Mr.
2 would want to do then, I think, is have a date -- then 2 Charest.
3 keep the existing dates through the post-discovery 3 MS. BROWN: Thank you.
4 conference and then, at that time, determine whether 4 MR. CHAREST: Thank you, Your Honor. May it
5 setting a schedule for summary judgment is appropriate, 5 please the Court.
6 based on what are the disputed issues and whether either 6 We heard the Court say just a few minutes ago
7 party thinks they can be resolved by motion. 7 before the recess that trial -- that the discovery
8 THE COURT: If the case had to be tried 8 period is too short by months and I think we agree with
9 without any summary judgment, but just action on your 9 that. The current setting that we're proposing -- and
10 motion to dismiss, assuming the motion is denied -- the 10 we have sent it to the Government -- would end discovery
11 whole discussion has premised on that -- and the Court's 11 in September and fix a trial date in February. That's
12 not willing, by the way, to make that assumption -- how 12 our rendition.
13 long do you think a trial would take given the 13 THE COURT: In February?
14 preparation you've had already? 14 MR. CHAREST: February of 2017 [sic], yes,
15 MS. BROWN: And this would be just a trial on 15 sir. And the reasons for that are twofold -- maybe more
16 the upstream? 16 than that, but the two that I can think of at the moment
17 THE COURT: Yes, oh, yes. 17 are, number one, the general signposts of trial and
18 MS. BROWN: Okay. And, Your Honor -- 18 discovery track but precede the downstream case, and I
19 THE COURT: To me, the issues are different. 19 think our case is a simpler one and probably -- I
20 They just are. Now, I know they're not to you 20 understand that they are set for trial already. But I
21 necessarily, there's some overlap. But, to me, the 21 think our case should come first because it's the
22 issues really are different. 22 simpler case and should be heard first.
23 MS. BROWN: Right. We think that the 23 But, number two --
24 testimony is, by and large, the same and that the 24 THE COURT: Now, the other case, the
25 distinctions are legal questions that wouldn’t sort of 25 downstream case, is set for trial in -- is it April?

86 88
1 take up time in a trial anyway. But to answer your 1 MR. CHAREST: April, as I understand it.
2 question, if the case were to be tried, how long do I 2 April of ‘18 -- ‘19, yes, sir.
3 think it would take? I'll be honest, that's not a 3 THE COURT: Okay.
4 question that we have contemplated internally, so I 4 MR. CHAREST: And, number two, you know, it's
5 would really be guessing. I'd say three to four weeks. 5 been nine months since the storm. We have clients that
6 THE COURT: Hmm. All right. Well, that's a 6 are still out of their homes. We get calls almost daily
7 question I've discussed with Chief Judge Rosenthal. I'm 7 with people that are getting foreclosed on. You know,
8 a little surprised at your answer, but in any event. 8 this has to happen. I can't -- I'm not a big believer
9 Okay. So let me ask a question. You think 9 in sort of pouring my heart out to the Court, but this
10 you're using the same experts for the upstream and the 10 is an important thing and time is of the essence for
11 downstream cases? 11 these people. And the notion that we don't go to trial
12 MS. BROWN: Yes. Maybe not exclusively, but 12 or we wait until six months from now to sit here and
13 yes. 13 talk about a trial date, you know, it's unsettling to
14 THE COURT: That's a surprise to the Court 14 the clients, I can promise you that. And our ambition
15 because it seems the issues really are different. But 15 is to try and get this case done as fast and as well as
16 it is what it is. The Court tries very hard not to tell 16 possible.
17 counsel anything about what to do. You know, I just 17 And as we're the Plaintiffs and we have the
18 won't do that because I've been in your shoes enough 18 burden and, you know, we're the ones that are
19 that I really didn't appreciate it when a Court tried to 19 undertaking the effort, if the Government thinks it's
20 do that to me. 20 not enough time to do your job, well, it's our job to do
21 Okay, all right. Anything else that the Court 21 our job, you know. And we think we can get there.
22 ought to know before I hear from -- is it Mr. Charest 22 So fundamental to my ambition from having the
23 who's going to address this? 23 status conference here was to try and get dates for
24 MS. BROWN: No, I think our position is pretty 24 trial, a date for close of discovery. Let us sit back
25 well laid out in our motion. 25 and work within -- we've always offered them -- we'll

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1 move any date internally except for dates of decisions 1 MR. CHAREST: -- and but even just again I’m
2 is how I called it. So the summary judgment hearing was 2 trying to hear which way the wind is blowing, I think
3 the date that we had set before on the current schedule. 3 I've had a few answers already. There's been talk of a
4 I said we won't move that one; we'll move anything else. 4 joint trial or separate trials. We want to do, I think,
5 And the answer has always been, well, we want more than 5 a separate trial. It sounds like the Court views them
6 you're going to give us, so we just won't agree to 6 as separate issues, downstream and upstream, since --
7 anything. 7 THE COURT: Well, I've had a downstream case,
8 So, again, I think if the Court gives us trial 8 which is Arkansas Game & Fish, but this is just
9 and discovery periods, we can work with the Government 9 different.
10 and find the intervals that match both within the rules 10 MR. CHAREST: I completely agree, Your Honor.
11 and within our own schedules to make that work, Your 11 There’s different -- I'm with you on the notion of
12 Honor. 12 overlapping experts, but that's their job. I'm not
13 THE COURT: All right. You mentioned summary 13 going to tell them how to do their job.
14 judgment. Could you offer your views on summary 14 THE COURT: Well, that's one question I had.
15 judgment in a case like this. 15 But I’ve talked with Chief Judge Braden about this and,
16 MR. CHAREST: Our ambition was, and probably 16 you know, I think both of us know that this case is
17 still remains, to try and prove some of our case through 17 somewhat different, but the idea of both of us presiding
18 summary judgment. But I hear the Court and I’m not -- I 18 is just a nonstarter.
19 can tell which way the wind is blowing. I think at a 19 MR. CHAREST: That's our view as well, Your
20 minimum -- 20 Honor. I mean, not that you all couldn't figure out a
21 THE COURT: Well, I did have a case in the 21 way to make it work. But we think they should be
22 District of Massachusetts, which is very far from 22 separate cases. And so I’m hearing the Court --
23 Houston, before a District Judge back in my litigating 23 THE COURT: Okay. Well, there might be an
24 days and he said I just don't grant summary judgment, 24 overlap in testimony, but I don't even think collateral
25 and that was the end of that. 25 estoppel would apply or anything like that.

90 92
1 MR. CHAREST: That's pretty much my experience 1 MR. CHAREST: Well, witnesses testify to the
2 in Texas with the -- 2 same thing in different trials all the time.
3 THE COURT: The Court is not that categorical, 3 THE COURT: Yeah, exactly.
4 even in a case like this, but... 4 MR. CHAREST: And then another issue that was
5 MR. CHAREST: There are certainly -- look, 5 sort of bouncing around in our -- and I think the
6 there are certainly things in this case, I think, that 6 parties are in agreement, but we want to make sure that
7 the overwhelming weight of the evidence is in our favor, 7 all the parties and the Court are in agreement, is that
8 no question. But if you're talking about a scintilla, a 8 the facts that we're dealing with or the process that
9 fact issue, I understand what you're saying. I think 9 we're doing now is as to liability only and not sort of
10 the Court's point is why go through that process if 10 the full trial on the merits and the damages, I guess is
11 we're just going to go to trial almost inevitably 11 --
12 anyway. And so from that perspective, if it means 12 THE COURT: No. Let's just talk about that
13 having a trial sooner, I would be willing to jump that 13 for a minute. I'm glad you raised that because the
14 step. That's a deal I would take, you know, seven days 14 Court was going to comment that we had this discussion
15 out of seven. 15 some time ago when we were sorting through test
16 So that was -- you know, the schedule is one 16 properties and bellwethers and the effect of bellwethers
17 overarching issue, and I think we are in agreement with 17 on other properties. The Court hoped that we would have
18 the Court that it's too short by months, but not by 18 a trial on the 14 test properties and deal with
19 years, you know, not by several, several months, the 19 essentially jurisdiction, which is intermingled with
20 current discovery process. 20 liability, and leave aside the other -- all the other
21 The other issues I wanted -- I was hoping to 21 properties, the hundreds of other properties, and leave
22 raise with the Court -- 22 aside, as well, the questions of damage or just
23 THE COURT: Yes, please. 23 compensation.
24 MR. CHAREST: -- related to the process -- 24 MR. CHAREST: And that's --
25 THE COURT: Yes. 25 THE COURT: I mean, I haven't --

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1 MR. CHAREST: -- been the parties' 1 essentially serve potentially as bellwethers for at
2 understanding. 2 least some of the other hundreds of properties.
3 THE COURT: -- asked Ms. Brown that, but I 3 MR. CHAREST: And that leads me to my next
4 will. Go ahead, Mr. Charest. 4 point, Your Honor, which was I had -- and I expressed it
5 MR. CHAREST: I'm sorry, yes, sir. To date, 5 on one of our prior conference call hearings -- had an
6 that has been -- as I understand, both the parties’ 6 ambition to try and get a class certified in addition --
7 understanding is that while we understand the Government 7 concurrent, frankly, with the summary judgment briefing.
8 says you have to show severity, for example, and some 8 Now, it sounds like the Court is not inclined to want to
9 things in order -- as elements of your claim, our view 9 do much summary judgment briefing, but I still think the
10 is we're not needing to do every nit and jot on the 10 class --
11 quantum of the taking, and that's the point. 11 THE COURT: Well, I would hope you had better
12 THE COURT: No, you aren't -- I would hope you 12 things to do with your time, but, again, I'm not going
13 wouldn't spend any time on that aspect of the case 13 to tell you what to do.
14 actually, if we get to that point. 14 MR. CHAREST: Understood. But I think -- I
15 MR. CHAREST: Okay. And so that -- 15 want to be clear, my ambition remains to try and get a
16 THE COURT: Because that’s quite -- you know, 16 class certified because I think that's the only way -- I
17 that can get to be very detailed. 17 personally think that's the only way we can get a result
18 MR. CHAREST: Yes, sir, quite, very much so. 18 for everybody involved. I think there's no other
19 THE COURT: Even respecting the 14 test 19 process that's really viable. So that's -- if the --
20 properties. 20 I'm just telling you that's my plan and if the Court
21 MR. CHAREST: Correct. 21 wants to tell me otherwise, I'm happy to hear it.
22 THE COURT: And I remember one of the test 22 THE COURT: No, I appreciate it.
23 properties dealt with I think improvements to a 23 MR. CHAREST: And then --
24 facility, is that correct? Do I remember that 24 THE COURT: I don't envy you your job either.
25 correctly? 25 MR. CHAREST: I'm sorry?

94 96
1 MR. CHAREST: I'm trying to think how -- 1 THE COURT: I don't envy you your job either.
2 THE COURT: An airport or -- 2 MR. CHAREST: Well, I like my job, so it's
3 MR. CHAREST: Well, there certainly is an 3 okay.
4 airport involved. One of the test properties is an 4 THE COURT: In this particular sets of cases I
5 airport. 5 don’t, that's all.
6 THE COURT: Right. 6 MR. CHAREST: Fair enough.
7 MR. CHAREST: One of them is an HOA; one of 7 THE COURT: You've got a lot to handle.
8 them is a multi-unit land board. So maybe those are -- 8 MR. CHAREST: Yes, sir. Well, I've got a
9 THE COURT: I thought we just picked out a -- 9 great team and we have a great team altogether. So
10 well, anyway. 10 we're in good shape there.
11 MR. CHAREST: Yeah, we did the parcel. Yes, 11 The other issues that I think we wanted to
12 sir, we did as requested, yes, sir. 12 raise collectively and it sort of dovetails with what
13 THE COURT: Right. 13 Ms. Brown talked about with sort of identifying issues
14 MR. CHAREST: So that was the other issue 14 for the trial. Like if we had a jury charge, what would
15 which it sounds like, as I understand it -- we can ask 15 it look like, you know? I think that's more -- maybe
16 Ms. Brown -- but I think we're in agreement on it and it 16 that's a matter of collaboration between us and then
17 sounds like the Court's endorsed that concept of 17 presenting to the Court rather than asking the Court for
18 liability only for this process. 18 input.
19 Another issue that -- 19 But that's -- I think, in my mind, what I was
20 THE COURT: Well, if we get to that point, we 20 hoping to achieve through this process was
21 do have the tort takings distinction. So there's a 21 understanding, A, what is our process to get to the end;
22 jurisdictional aspect of that that we have to deal with 22 B, what are we trying to prove; and then C, how -- you
23 as well, but only respecting the test properties. And 23 know, what is the time to get to the end of it. Those
24 the Court is satisfied that the parties each nominated 24 are the three concepts. So that -- the issues for trial
25 test properties so that we would get an array that would 25 I think maybe it's best left for us to discuss. But I'm

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1 happy to hear if the Court had sort of like -- I really
2 want to know this question or this question, I would
3 love to hear that as well.
4 And then the last point I wanted to raise was
5 I think -- and I think our side believes that with a
6 case of this complexity and this much weight behind it
7 that regular status conferences would be a good idea
8 where we would all -- we can come to D.C. and we can --
9 you know, we don't have to put the Court out of trouble,
10 but, you know, it just makes sense to make sure that
11 we're all on pace for what we need to do. And the more
12 we're in the same room together, the more the case
13 advances I think because everyone needs to get their act
14 together before they stand in front of the Court, you
15 know, and that's just helpful. So that's a -- I'm not
16 sure if it's a motion necessarily, but a proposal that I
17 think for case management purposes I think would be
18 useful.
19 THE COURT: Well, let's just comment on that.
20 I think the Court can come to Houston on occasion as
21 well. Obviously, it was prudent to come to Houston for
22 this hearing and this status conference, but we can do
23 both.
24 MR. CHAREST: The point is --
25 THE COURT: And we can do some telephonically.
98
1 MR. CHAREST: We are -- absolutely. Although,
2 I mean, telephonic hearings are great, but I'd prefer
3 being in the same room personally. I think it achieves
4 more of an interaction, from my perspective.
5 And then I was just going to give you an
6 update on the work that we've done so far if the Court
7 is interested. We've obviously selected the test cases.
8 The Plaintiffs have produced all of the documents. The
9 Plaintiffs have responded to all the written discovery
10 that's been propounded and is due. The Plaintiffs have
11 achieved inspections of all their properties, of all 14
12 properties. I think that’s right, right? All 14?
13 We've issued discovery requests to the DOJ,
14 some of which has been responded to. It includes doc
15 requests, the “rogs,” the RFAs, and we've provided
16 deposition dates for all of our Plaintiffs, at least
17 most of our Plaintiffs.
18 So I just wanted to let you know that we are
19 -- we have been moving forward and I just wanted --
20 because I hear the drumbeat behind the Government's
21 motion for more time is how much time it's taking and I
22 want the Court to be clear that we are working very hard
23 and have achieved a great deal I think so far in the
24 time given, and that's...
25 THE COURT: Well, let me just comment. Chief
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1 Judge Rosenthal and I had a discussion about time of
2 trial and arrangements for trial. It just seemed
3 prudent to have that discussion with her because this is
4 such an imposition on the court here. And I must say I
5 did that without having -- well, I could see from the
6 Government's motion the Government had in mind, at the
7 earliest, a trial sometime in the fall of 2019. That
8 wasn't hard to figure out, but I hadn't heard from you
9 as to when you had in mind for a trial.
10 She and I worked out the fact that there was a
11 block of time that would be -- I was going to say
12 convenient -- I'm not sure convenient is the word --
13 that would be --
14 MR. CHAREST: Less inconvenient.
15 THE COURT: Acceptable -- let's put it that
16 way -- for us to impose on the Southern District of
17 Texas to have a trial for a couple of weeks at the end
18 of February. And, I'm sorry, I didn't really have your
19 schedule in mind. Trial on February 19th through March
20 1st. That's nine trial days. She said Houston is not
21 bad at that time of the year. You folks would know
22 that. I've been in a variety of places including -- you
23 know, in and around, but do I know exactly what happens
24 climatologically at a given point? No.
25 MR. CHAREST: We might find out through this
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1 case.
2 THE COURT: What's that?
3 MR. CHAREST: We might find out through
4 this case what the climate brings. But, anyway, those
5 dates -- I can speak for myself, those dates are great
6 and it’s --
7 THE COURT: Well, it turns out the 19th is a
8 Tuesday because the 18th is President's Day in 2019.
9 But I would just say she could -- she thinks the
10 Southern District and this courthouse could accommodate
11 that trial schedule. And if we backed up from that
12 trial schedule, then the question arises -- and I did a
13 little -- a really rough calculation.
14 We could have the pretrial on the 12th, which
15 is also a Tuesday, of February, and then just following
16 Appendix A, the meeting of counsel would be December
17 11th. Plaintiffs' memorandum and the set of filings,
18 lists and so on and so forth, would be Christmas Day.
19 You'd have to figure out -- we'd have to figure out
20 something else. I'm sure you don't want this hanging
21 over your heads on Christmas; you’d want it before.
22 But in any event, the Government's memorandum
23 would be January 22nd. I think those are all Tuesdays,
24 just to avoid Monday holidays, except for Christmas.
25 But that's just roughing out based on the discussion
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1 with Chief Judge Rosenthal and without having heard what
2 you’ve got in mind. Now, obviously, that schedule is
3 something that ought to be addressed in response to the
4 Government's motion and -- let me just tell you what
5 we've got in mind.
6 We don't want to hold you up, which is why we
7 responded promptly to the request for expedited
8 consideration and why we set the dates of the 21st for
9 Plaintiffs to actually respond. Ordinarily, I wouldn't
10 give you as much as I have on the discussion with Chief
11 Judge Rosenthal, but I just thought we're in a posture
12 where I ought to basically, but -- in order to allow
13 planning. But if you do that, then I think we could
14 issue a scheduling order contingent on what happens with
15 the motion to dismiss on Friday the 25th, and that's
16 relatively important to us because the following Monday,
17 the 28th, is Memorial Day and I have a trial in Iowa, an
18 out-of-town trial that starts immediately thereafter.
19 MR. CHAREST: Fair enough, sir. We will
20 obviously comply with the times you set out.
21 THE COURT: It just is what it is. You know,
22 we'll try to do the best we can to issue a very prompt
23 decision on the motion to dismiss. And I must say this
24 hearing has been actually very helpful. I think the
25 Court had expressed its appreciation earlier for the
102
1 briefing and I must say you've done a good job on the
2 hearing as well and the Court really does appreciate it.
3 But let me -- Mr. Charest, before you react to
4 the Court's suggestion, let me hear from Ms. Brown and
5 then I'll hear from you again, if that’s all right. You
6 can confer with your colleagues.
7 MR. CHAREST: Yes, sir. Thank you.
8 THE COURT: We’ll allow time for that.
9 And, Ms. Brown, if you want a minute or so to
10 confer with your colleagues, that's entirely
11 appropriate.
12 MS. BROWN: I think we're -- Your Honor, do
13 you want me to address that last point first --
14 THE COURT: You can address any you want.
15 MS. BROWN: Okay. Well, then I'm going to
16 start, I guess, at the beginning. And I think here the
17 -- I think that it is impractical to schedule the
18 upstream trial in advance of the downstream. What I
19 heard Mr. Charest say is that the upstream case is
20 simpler and should be heard first.
21 THE COURT: Well, I don't know about that,
22 but --
23 MS. BROWN: I definitely do not know about
24 that and would disagree and think that there are more
25 issues at play in the upstream that we think will take
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1 more time to develop. And so the schedule that
2 Plaintiffs have proposed to us, which Your Honor does
3 not have, but it is very similar with a proposed trial
4 date beginning February 11th and it -- having a trial
5 that early would have discovery concluding around
6 September.
7 THE COURT: Oh, I don't think so.
8 MS. BROWN: Well, right, that's what I was
9 going to say, is that it unacceptably condenses
10 pretrial --
11 THE COURT: We can't do that. Hmm. Chief
12 Judge Rosenthal and I tried to work out something that
13 was acceptable to the court here, given the fact that we
14 would probably take resources that -- or just a
15 courtroom and so on. But I was looking at, in my
16 calculations, the meeting of counsel on December 11th
17 and you could actually have some aspects of discovery,
18 especially expert discovery, that wouldn't be complete
19 until fairly shortly before that date.
20 MS. BROWN: Right. I, again, think that those
21 are problematic given the scope of expert issues that we
22 contemplate here. And I think also that nine trial days
23 would not be enough. And I think that, Your Honor,
24 that --
25 THE COURT: I’m sorry, say that again.
104
1 MS. BROWN: Nine trial days -- I think you
2 said the period from February 19th through March 1st, I
3 think that nine would not be enough.
4 And I would say that the United States also
5 has to contend here with a downstream trial. And having
6 two trials, the second -- one beginning in February and
7 the second beginning in April is a tremendous burden on
8 counsel, our experts, the fact witnesses, who are the
9 same. And I think that it is --
10 THE COURT: That's what puzzles me. I really
11 don't understand why they're the same.
12 MS. BROWN: Well, I'm not going to get into
13 internally how we decided to hire our experts, but I
14 would say that it is extremely prejudicial to us to have
15 a schedule that condensed, keeping in mind all the fact
16 discovery that we have to take in both of these two
17 cases.
18 And then to address just a couple of the other
19 points, you talked about damages and -- separating
20 liability and damages. I think the question here is
21 that the parties have a different understanding of what
22 is at play with respect to liability. So that would be
23 one of the issues that we think needs to be clarified
24 after discovery as to what issues we are going to put on
25 testimony because, as Mr. Charest said, we do think that
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1 economic impacts is one of the factors that is relevant
2 to liability, for example.
3 THE COURT: Well, it is, but on the other
4 hand, severity really doesn't seem to be an issue.
5 Individual damages most certainly is, but -- if we get
6 to that point, hearing testimony on that subject. I
7 take it people are still not in their homes.
8 MS. BROWN: Right. I think we would disagree
9 that severity is not an issue. I think with respect to
10 class certification, we think that time should be built
11 into the schedule for briefing on that if Plaintiffs do
12 intend to file a motion for class certification.
13 THE COURT: We have a problem respecting
14 timing on that. When we addressed test properties, we
15 really didn't cross the class action bridge at all. In
16 fact, we deferred any aspect of class certification and
17 we applied bellwether concepts. Let's just put it this
18 way: The Court is treating these cases as if they were
19 essentially akin to a multi-district litigation and
20 applying multi-district litigation concepts.
21 And ordinarily in a multi-district litigation,
22 you would not -- even though you might have a -- might
23 or might not have a class action, you really wouldn't
24 necessarily have to address the class before you
25 addressed, for example, liability on selected claims, if
107
1 of the problem is defining classes -- the class and
2 subclass, and we had that discussion early on back in
3 the hearing aspect of today's proceedings respecting
4 these properties that were adjacent to tributaries --
5 MS. BROWN: Right.
6 THE COURT: -- are not part of the impoundment
7 at all, right?
8 MS. BROWN: Right.
9 THE COURT: You know, we just don't need to go
10 there, I don't think.
11 MS. BROWN: And then the only thing I would
12 add to the fact that we think that this case requires
13 more time than would be afforded with a February trial
14 in a time consistent with the schedule we’ve proposed, I
15 think Mr. Charest said the Plaintiffs have responded to
16 all written discovery requests, and I would agree that
17 both parties have been working very diligently and all,
18 but they have not responded fully. And there are
19 discovery challenges with respect to fact discovery, in
20 addition to the expert discovery that we laid out in our
21 motion. But they've served significant and substantial
22 fact discovery requests. We expect them to take fact
23 depositions and all of these things to take time that
24 the schedule that they've proposed does not allot.
25 THE COURT: Just please give me a minute if

106 108
1 you will. In that case, that's what we're doing, I 1 you will --
2 think, respecting test properties. So we're just -- 2 MS. BROWN: Yes.
3 we're taking a bite, but we're taking a discrete bite, 3 THE COURT: -- to think about something.
4 if you will, at these cases. 4 (Pause in the proceedings.)
5 MS. BROWN: Right -- 5 THE COURT: To what extent is the discovery
6 THE COURT: So we're dealing with a universe 6 focusing on properties or owners that are not involved
7 of 14 test properties. We're dealing with jurisdiction 7 with the test properties?
8 and liability respecting those 14 properties and those 8 MS. BROWN: We certainly have not served any
9 14 properties were selected by counsel for the parties 9 discovery pertaining to nontest properties. I don't
10 on the grounds that they would provide in a way 10 know if that answers Your Honor's question fully.
11 bellwethers for at least a number of other properties 11 THE COURT: Well, that's helpful. Thank you.
12 that are involved in the cases. That's my 12 MS. BROWN: You're welcome.
13 understanding. 13 THE COURT: All right.
14 MS. BROWN: I think we have been treating them 14 MS. BROWN: That's everything I had unless
15 as separate, up to this point -- my only point is that 15 Your Honor has any questions.
16 if class -- if Plaintiffs are going to file a motion for 16 THE COURT: All right, thank you.
17 class certification, that we think it needs to be built 17 MS. BROWN: Thank you.
18 into the schedule so, for example, our response to a 18 THE COURT: Let me hear from Mr. Charest.
19 summary judgment brief isn’t due the same day. 19 MR. CHAREST: Well, I'm not sure what the
20 THE COURT: You do agree that Plaintiffs don't 20 pending question is, if any, but I can just respond I
21 need to do that given the kind of multi-district 21 guess to what we just heard there. First off, I
22 arrangement we're working under. 22 neglected to tell the Court that our estimation was 40
23 MS. BROWN: No, nor do we think that class 23 hours for trial. So it actually fits pretty well with
24 certification is appropriate. 24 your nine days, I think, the window that you had.
25 THE COURT: Well, that's right, because part 25 The reality is that the Government's playbook

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1 here, respectfully, has been to try and just drag out
2 the process and slow it down. I mean, they have reasons
3 -- they have reasons, that's fine. But the
4 counterbalancing reason is the fact that tens of
5 thousands of people have been massively impacted here
6 and deserve an answer, you know. It's no joke. It's
7 not hyperbole to say that we get calls from clients --
8 and I'm sure the other lawyers that have individual
9 clients have calls all the time -- about foreclosure,
10 what do I do about this, what about my taxes, how do I
11 value my property, what do I -- you know, and these
12 unopened -- these unanswered questions, which this case
13 will answer at least some of which -- some of them. And
14 they deserve answers, you know.
15 And I don't like to press the Court on things
16 like the schedule, but this is an important fact that we
17 have to push this case forward as fast as we can. And
18 if it makes our job harder, we're willing to do the
19 work, and I think we all have to. We owe it to these
20 people, I think.
21 In terms of the Court's articulation of this
22 being -- the Plaintiffs being bellwethers as opposed to
23 class reps, again, I can see which way the wind's
24 blowing. I think the fact is it's our prerogative to
25 file or not file for class certification if we think
111
1 I ended up with six subclasses. And it's possible,
2 depending on what happens respecting the experts and the
3 hydrologic and topographic issues in this case, that you
4 might have something like that. Do I know that? No.
5 But just recognize that I've had that experience in a
6 prior quite large case.
7 And let's talk a little bit about the number
8 of test properties. You recall our discussions about
9 Ideker Farms?
10 MR. CHAREST: Yes, sir.
11 THE COURT: And the fact that they had a
12 terrifically long trial, but the reason they had a
13 terrifically long trial and a resulting opinion that ran
14 something like 250 pages was the fact they had all these
15 test properties. And the parties were quite cooperative
16 in limiting the test properties to 14 in this case.
17 That, to the Court, is a manageable size. We can get
18 our arms around 14. And it helps case management out.
19 So those are kind of the drivers, if you will, for I
20 think what's happening.
21 MR. CHAREST: Understood. The class will be
22 what it will be ultimately. I mean, it's hard for me to
23 project. My -- again, it's an ambition and we'll see
24 what their expert reports say and what ours say and what
25 the Court says ultimately. But as I understand the

110 112
1 it's appropriate and the Court can say it's not 1 facts, the water that was on people's property at the
2 appropriate and that just is emotion. That just 2 height of the pool was just pooled water. It wasn't
3 happens, you know. 3 both. And so -- but we'll deal with that, I think, that
4 But the sense I'm getting -- and I'll be very 4 factual finding about what the class looks like exactly
5 clear -- we would do a trial date in February and lose 5 at the appropriate time.
6 our ability to try and knock things out through summary 6 We're not there now so we're not -- I mean,
7 judgment. That's -- we are happy to do that if that 7 the notion is a bit premature to try and, you know,
8 means -- if that allows more time for discovery and just 8 project what the class will look like. I think I know,
9 jump right into the trial process after discovery and 9 but, you know, we have to get there.
10 not do our -- what we had planned to do with summary 10 THE COURT: Ms. Brown, could you join Mr.
11 judgment. It's more important for us to have a trial 11 Charest?
12 date because, again, the conclusion of this is so 12 MR. SHAPIRO: Can we have a minute, Your
13 important for the people that we represent. 13 Honor?
14 And, you know, our -- this trial will -- it's 14 THE COURT: Yes, certainly.
15 half the case for 14 people, you know. That's really 15 (Pause in the proceedings.)
16 what we're talking about here. It will be a massive 16 THE COURT: Ms. Brown, do you understand what
17 achievement, but there's so much more work to be done 17 the Court was talking about in terms of class
18 after that that we all have to keep the whole picture in 18 certification and the problems with class certification
19 mind, I think. 19 and subclasses on a very large body of potential
20 THE COURT: Well, let me make a couple of 20 claimants and then also the emphasis that we had before
21 comments, one about class matters and another about the 21 on limiting the number of test properties and
22 size of the case. Respecting the class, I've had 22 essentially trying to push this case forward under a
23 experience with -- experiences with fairly large 23 multi-district litigation principle so we could address
24 classes, hundreds and hundreds of people involved who 24 basic issues in a reasonably expeditious way?
25 are making claims, but -- in the one I'm thinking about, 25 MS. BROWN: I think so in that I think that if

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1 the Court were inclined to certify some type of class -- 1 you couldn't work out with Mr. Charest and his
2 THE COURT: I'm not. 2 colleagues.
3 MS. BROWN: -- we would spend a lot of time 3 Now, I do think that when we address some of
4 trying to figure out subclasses and how those would be 4 the issues on the motion to dismiss, we will deal with
5 divided based on a myriad of factors on which we would 5 some of the issues that you ordinarily would have put in
6 likely disagree. 6 -- or put before the Court in a motion for summary
7 THE COURT: I'm afraid of exactly that. I 7 judgment or motions for summary judgment. So it's
8 really am. But in any event, we aren't there. 8 helpful actually to have the motion to dismiss out there
9 Mr. Charest? 9 and, you know, who knows. We haven't reached a
10 MR. CHAREST: Well, respectfully, Your Honor, 10 conclusion yet one way or the other. But on the other
11 I've never met a defendant that agreed that there was a 11 hand, whatever we do we will write down and we will try
12 class. I mean, that's our job, right? I mean, I 12 to issue a decision promptly.
13 understand that defendants always say you can't certify 13 But if we deny the motion for -- to dismiss, I
14 a class. I mean, every single one of them, except for 14 honestly think it will obviate, to some extent anyway,
15 when it comes to settlement, in which case they think 15 the need for motions for summary judgment. But you
16 classes are fantastic. 16 understand the Court's reaction to, in this type of
17 THE COURT: Right. That's why we talked about 17 case, a motion for summary judgment. We've been there
18 bellwethers. We're -- and you selected bellwethers. I 18 before on a more limited scale.
19 say you, both of you or your group, your party selected 19 MR. CHAREST: I think I understand where
20 bellwethers. So that's where we are and we'll leave it 20 you're coming from, yes, sir.
21 at that for now. 21 THE COURT: Okay.
22 MR. CHAREST: Understood. Yes, sir. 22 MS. BROWN: Yes, Your Honor, if I could just
23 THE COURT: And recognizing that things could 23 make one more point.
24 change. 24 THE COURT: Certainly.
25 Ms. Brown, what I'm going to ask is that 25 MS. BROWN: We think that -- I understand from

114 116
1 Plaintiffs come forward with a proposed schedule that 1 Corps counsel that's located in Galveston that there is
2 contemplates a trial from -- that begins on February 2 a federal courthouse in Galveston that -- I don't know
3 19th. We'll not put an end date to it, but you 3 anything about the availability of that courtroom, but
4 understand the discussion the Court had with Chief Judge 4 instead of letting the courtroom drive some of the
5 Rosenthal. 5 scheduling that's causing concerns, we think that other
6 MR. CHAREST: Yes, sir. 6 courtrooms could and should be an option here.
7 THE COURT: And a pretrial on February 12th. 7 THE COURT: Well, I even had a discussion
8 And then you come up with a schedule, Mr. Charest, you 8 with Chief Judge Rosenthal about Corpus Christi, but
9 and your colleagues, that accommodates those base days, 9 this -- part of the problem is this case is centered on
10 if you would, please. And you can adjust through 10 Houston.
11 discussions with Ms. Brown or otherwise, dates for 11 MS. BROWN: All right.
12 the meeting of counsel, Plaintiffs' memorandum and 12 THE COURT: And she is -- I must say, she is
13 lists and Defendant's memorandum and lists, but that 13 very sensitive to that. She really is.
14 contemplates discovery extending to at least early 14 MR. CHAREST: I think everyone here is, Your
15 mid-December when the meeting of counsel probably would 15 Honor.
16 occur under Appendix A. And that will probably be 16 THE COURT: What? Pardon?
17 expert discovery. 17 MR. CHAREST: I think everyone here is, Your
18 You need to end discovery before the meeting 18 Honor.
19 of counsel, but not very much before because the Court's 19 THE COURT: Well, I gathered. So the Court
20 sensitive to the needs to not only prepare the case 20 listens.
21 adequately but to move the case along. 21 MR. CHAREST: Thank you, Your Honor.
22 MR. CHAREST: Understood. Yes, sir. 22 MS. BROWN: Thank you, Your Honor. We'll
23 THE COURT: All right. Ms. Brown, and if you 23 address other points about needing more time in any
24 would take that into account, please, and also in your 24 reply brief.
25 reply on the 24th, come forward with any disagreements 25 THE COURT: All right.

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1 MS. BROWN: Thank you. 1 THE COURT: All right, thank you. Shall we
2 THE COURT: Thank you very much. Now, the 2 adjourn?
3 court reporter has kindly talked with the Court enough 3 COUNSEL: Yes, Your Honor.
4 that we're going to get a transcript of this aspect of 4 THE COURT: We shall.
5 today's proceedings, but on a five-day schedule, not a 5 (Whereupon, at 12:31 p.m., the hearing was
6 one-day schedule. I’m sorry. We have to take 6 adjourned.)
7 everybody's concerns into account. 7
8 MR. CHAREST: You were overruled. 8
9 THE COURT: What's that? 9
10 MR. CHAREST: You were overruled by the court 10
11 reporter, Your Honor. 11
12 THE COURT: No, I just -- I wouldn't want to 12
13 -- never mind. The court reporter has a few things to 13
14 do, so we've taken that into account. 14
15 Anything else we can -- well, I'm sure there 15
16 are a lot of things we can usually do -- oh, oh, there 16
17 is one other thing. Mr. Charest, the Court takes into 17
18 account your suggestion that there be regular status 18
19 conferences as we plug through preparations. 19
20 Ms. Brown, what is your reaction to that 20
21 suggestion? 21
22 MS. BROWN: May I have a moment, Your Honor? 22
23 THE COURT: Yes. 23
24 (Pause in the proceedings.) 24
25 MS. BROWN: Your Honor, we think that -- we've 25

118 120
1 continued to work with Plaintiffs. I think if Your 1 CERTIFICATE OF TRANSCRIBER
2 Honor thinks that that's appropriate, we don't have an 2
3 objection. 3 I, Susanne Bergling, court-approved
4 THE COURT: I do, and it's actually helpful to 4 transcriber, certify that the foregoing is a correct
5 have a proceeding in which the Court and counsel are 5 transcript from the official electronic sound recording
6 present physically, and I would suggest that Plaintiffs 6 of the proceedings in the above-titled matter.
7 talk with you, Ms. Brown, and your colleagues and build 7
8 in to your response to the Government's motion a 8
9 tentative schedule for those kinds of interactions in 9
10 status conferences. And we can have some of them in 10 DATE: 5/17/2018 s/Susanne Bergling
11 Washington and some of them in Houston. And we 11 SUSANNE BERGLING, RMR-CRR
12 understand the need to have some in Houston and some in 12
13 Washington. 13
14 The Government's counsel are -- well, I 14
15 understand Mr. Shapiro is not in Washington, but Ms. 15
16 Brown is. We can have some -- and the Court certainly 16
17 is in Washington and we can have some in Houston. We 17
18 will do that. And if you would build that into your 18
19 schedule, that would be helpful. 19
20 MR. CHAREST: All right. 20
21 THE COURT: Is there anything else we can do 21
22 today besides that? I think we've got a roadmap, but 22
23 we'll see. 23
24 Ms. Brown? 24
25 MS. BROWN: No, Your Honor. 25

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[121]

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18:14 21:5 22:6 advance 13:12,15 36:20 57:8,10 66:6 90:12 94:10 100:4 argument 1:16 12:8
41:17 75:16 102:18 80:7 115:14 14:23 16:18 19:2
acquires 18:23 advanced 74:12 allegedly 17:6,11 anyways 60:9 20:25 29:7,8 31:10
77:24 advances 60:16 29:10 38:10 apart 53:9 31:17 46:18 48:25
acquisition 17:18 97:13 alleges 10:20 apparently 63:20 60:1,3 67:2 74:1
acres 11:17 advancing 57:16 alleging 54:15,16 APPEARANCES 74:18 78:6
act 16:9 59:21 97:13 adversely 40:4 55:10 56:4 2:1 3:1 arguments 6:24
acted 42:9 aeasterby@willia... allot 107:24 appears 24:18 54:3 10:21 23:23 31:1
acting 10:4 2:25 allow 55:7 66:8 56:24 46:10
action 10:17 11:14 affect 27:3 57:14 101:12 102:8 Appendix 83:6,13 arises 20:18 21:2,11
15:6 17:7 33:1 affirmance 45:10 allowed 56:9 83:14 100:16 100:12
35:2 43:15 55:15 affirmative 53:22 allows 110:8 114:16 arising 19:3
57:12 64:9 80:15 affirmed 62:9 alternate 15:6 apple 79:6 84:16 Arkansas 22:13

For The Record, Inc.

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[122]

23:7,8,19,24 24:7 B better 39:11 60:5,8 briefly 10:22 41:11 86:24 87:3 93:3
35:12,13,14,16,20 B 96:22 81:4 84:1 95:11 71:6,17,24 94:16 96:13 102:4
36:24 37:21 40:2 back 29:12 49:21 beyond 25:23 36:1 briefs 57:25 102:9,12,15,23
45:9,12,17 59:25 53:4 57:9 82:18 41:16 51:12 70:1 bright 46:7 103:8,20 104:1,12
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aspects 103:17 began 22:7 47:23 26:8,16,20 27:6,10 bullets 46:7
asserting 63:8 beginning 73:22 bouncing 92:5 27:14 28:3,6,9,14 bump 49:11
asserts 66:21 102:16 103:4 bound 66:18 28:18 29:5,8,18 Bunch 18:15 19:21
assessment 53:1 104:6,7 Boundas 2:21 30:4,7,13,21,25 bundle 17:6 18:2
assume 7:17 71:12 begins 114:2 Bowditch 56:9 31:4,7,14,21 32:1 21:6,8,9 48:6
assuming 83:16 behalf 2:3 3:17 7:24 57:16 78:9,9 32:12,16,21 33:7 burden 34:21 88:18
85:10 27:7 Braden 91:15 33:20,24 35:13 104:7
assumption 85:12 believer 88:8 Brazos 61:20,23 36:3,6,9,11,13,16 burn 56:9,15 78:12
Attorneys 3:11 believes 97:5 62:1 64:14,19 37:9,14 38:4,13,16 burned 57:11
Austin 2:7 bellwether 105:17 79:18 38:22 39:1,10,19 burning 58:18
authorities 18:13 bellwethers 92:16 break 7:4 8:7 57:19 40:7,10,15,17 41:1 burns 2:14 57:15
authority 35:20 92:16 95:1 106:11 58:9 41:3,5,10 42:23 business 41:21,22
42:9 61:20 62:4 109:22 113:18,18 breaks 56:19 44:8 49:22 52:8,17 42:4
availability 116:3 113:20 bridge 84:18 105:15 68:14 69:2 73:19 businesses 44:17
available 15:7 belonged 29:3 brief 23:6,14,14 73:20 74:25 75:5,9 buy 12:3
Avenue 3:5 benefit 15:22 43:10 71:8 73:20 106:19 75:11 76:15 77:6,8 buying 49:6 79:16
avoid 100:24 55:17 58:15 81:8,9 116:24 77:12,14,16,18,22 buys 76:19
awarded 42:3 Bergling 120:3,10 briefed 80:25 77:24 78:5 80:23 bylaws 66:2
aware 43:25 46:22 120:11 briefing 8:9 24:18 82:13,23 83:5,16
51:11 56:12 57:17 54:3 76:10 95:7,9 83:22 84:7,11 85:1 C
best 30:9 96:25
59:12 101:22 102:1 105:11 85:15,18,23 86:12 C 3:18 5:1 96:22

For The Record, Inc.

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calculation 100:13 110:15,22 111:3,6 120:1 114:4 116:8 105:15,16,23,24

calculations 103:16 111:16,18 112:22 certification 105:10 choice 16:10 106:16,17,23
call 33:4 38:24 39:3 113:15 114:20,21 105:12,16 106:17 Christi 116:8 107:1 109:23,25
39:5 55:12 95:5 115:17 116:9 106:24 109:25 Christmas 100:18 110:21,22 111:21
called 5:3 8:25 9:3 cases 5:7,8 21:7 22:2 112:18,18 100:21,24 112:4,8,17,18
72:16 77:4 89:2 22:3,6 23:3 24:10 certified 95:6,16 Circuit 34:19 40:5,8 113:1,12,14
calls 39:2 88:6 109:7 25:16,20 28:2 certify 113:1,13 40:13 45:20 46:21 classes 107:1 110:24
109:9 29:15 34:10 35:18 120:4 47:2 48:14 57:3,9 113:16
capacity 29:21 40:12 41:7,24 CFC 34:10 83:6 72:19 classic 43:9
capitol 61:11 55:24,24 56:8,11 chain 27:20,20 28:1 circumstance 25:19 clause 58:22 61:12
capture 43:22 56:19 57:2,13 challenges 107:19 75:24 79:3,9 clear 15:1 43:11
captured 43:5 51:21 60:18 61:19 62:20 chance 49:9 circumstances 44:11 45:24 48:14
capturing 55:3 63:6 66:16 67:15 chances 49:7 14:10 23:1 24:20 50:23 52:1,1,2
care 81:16 67:20 75:6,18,19 change 26:10,14 24:22 26:5 32:2 53:21 65:1 67:24
carry 55:6 76:25 77:20,21,22 113:24 38:11,11 54:16 68:18 70:17 71:11
Carter 1:25 81:9 78:2,18,20 79:18 changed 32:4,6 58:20 71:18 72:8 80:13
case 5:6 7:1 16:1,14 80:2,5 86:11 91:22 52:19 53:14 74:20 cite 18:5 40:24 42:1 95:15 98:22 110:5
16:19 17:9,20 96:4 98:7 104:17 changes 12:13,15,17 61:6,19 clearer 61:22
18:15 20:11 21:11 105:18 106:4,12 25:22 cited 17:20 21:12 clearest 46:21 57:23
21:11 22:19,23 Casey 1:10 changing 75:20,21 35:16,17 41:2,6,8 clearly 73:15
23:4 24:7 27:4,15 categorical 19:5 character 26:10,14 56:13 57:24 61:1 CLERK 82:17
27:17,21,22 31:23 36:25 40:12 90:3 32:5 cites 56:7 clients 63:8 88:5,14
32:17 34:1,3,19 categorically 60:17 Charest 2:12,14 6:3 citing 35:17 40:21 109:7,9
39:17 40:3 41:6 category 56:6 6:3 86:22 87:2,4 city's 9:16 clients' 55:4
42:1 43:3,9 45:8 causation 28:3 87:14 88:1,4 89:16 claim 8:23 9:20 cliff 32:22
46:21 47:11,15,17 29:19 30:14,16 90:1,5,24 91:1,10 10:16 11:24 14:24 climate 100:4
49:2,18 54:2 56:3 73:23 91:19 92:1,4,24 15:10 16:20,23,25 climatologically
56:13,24 57:1,9,17 Causby 61:1,7 93:1,4,5,15,18,21 17:7 20:14 27:17 99:24
57:23,24 58:1,11 cause 24:14 29:23 94:1,3,7,11,14 32:3,4 33:8 34:14 close 88:24
58:25 60:5,9,16,20 36:4 59:6 64:9 95:3,14,23,25 96:2 40:1 42:6,14 46:17 closed 13:9
60:21 61:1,7,19 78:22 96:6,8 97:24 98:1 46:17 47:5,6,8,14 closes 13:13
62:7,12,13,14 63:1 caused 9:15 29:22 99:14,25 100:3 47:15 48:20,24 co-lead 5:10,13,16
63:13 65:12,18,20 35:6 37:17,18 43:8 101:19 102:3,7,19 64:16 68:25 71:20 5:21,24
66:23 67:2,3,16 44:4 104:25 107:15 72:13,13 75:16,17 Code 18:6 22:1
71:18 72:3,4,16 causes 66:20 108:18,19 111:10 75:25,25 93:9 collaboration 11:16
74:5,11,15 75:14 causing 44:18 116:5 111:21 112:11 claimants 112:20 96:16
75:18,19,22 76:5 cedar 79:4,5,5,7 113:9,10,22 114:6 claimed 18:2 23:12 collateral 91:24
76:11,17 77:4,10 centered 116:9 114:8,22 115:1,19 25:18 56:15 colleague 66:18
77:11 78:3,8,9,25 certain 25:4 38:11 116:14,17,21 claiming 19:19 colleagues 6:8 45:17
79:1,3,4,18,23,24 62:19 64:10,10 117:8,10,17 claims 1:1 10:2,15 102:6,10 114:9
80:25 82:21 83:2 67:9 77:25 79:25 118:20 31:16 37:1 41:13 115:2 118:7
83:21 84:25 85:8 79:25 charge 96:14 41:20,21 45:22 collectively 96:12
86:2 87:18,19,21 certainly 56:13 Charles 1:20 2:5 52:2 57:10 63:1 collects 13:9
87:22,24,25 88:15 65:18 66:9 67:14 5:23 66:8 82:18 105:25 come 45:23 49:21
89:15,17,21 90:4,6 69:25 83:22 90:5,6 charles@irvineco... 110:25 53:3 67:20 76:24
91:7,16 93:13 97:6 94:3 105:5 108:8 2:10 clarification 8:6 78:11 87:21 97:8
97:12,17 100:1,4 112:14 115:24 chief 72:18 73:5 clarified 104:23 97:20,21 114:1,8
102:19 106:1 118:16 86:7 91:15 98:25 class 11:14 95:6,10 114:25
107:12 109:12,17 CERTIFICATE 101:1,10 103:11 95:16 105:10,12 comes 77:19 83:17

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/16/2018

[124]

113:15 110:12 115:10 context 24:10 38:3 114:19 116:1 49:21,24,24 50:7
coming 49:6,15 concrete 11:24 61:1 65:7 69:1 118:5,14 119:3 50:10,12,14,17
50:23 53:18 57:18 14:15,22 52:19 70:13 77:13 counterbalancing 51:3,5,8,23 52:2,5
115:20 concurrent 95:7 contingent 82:20 109:4 52:8,12,21,24 53:4
comment 60:21 condensed 104:15 101:14 country 58:15 53:7,24 54:1 55:6
80:24 92:14 97:19 condenses 103:9 continued 118:1 County 11:17 56:18,18,23 57:3
98:25 confer 102:6,10 continues 69:24 couple 36:14 49:21 57:10 58:6,10,19
commented 27:11 conference 1:17 continuous 75:20 99:17 104:18 59:18,20,23,25
comments 110:21 28:23 85:4 88:23 continuum 37:1 110:20 60:2,6,10,12,23,25
common 17:2 49:19 95:5 97:22 control 9:25 17:19 course 15:6 45:13 61:1,4,21 62:8,9
65:12 conferences 97:7 21:13 42:12 46:3 47:24 48:9 56:3,17 63:14,19,24 64:3
compensable 15:5 117:19 118:10 50:19 56:20 59:9 60:4,19 62:20 68:9 68:14 69:1,1,6,8
41:18 48:16 confirm 51:3 59:16,20 60:5,9,11 70:7 71:22 69:12,17 70:20
compensate 17:23 Congress 42:17 60:15 61:9,15 courses 49:13 71:12,15,23 72:14
62:21 Conner 2:6 62:18,25 63:11,15 court 1:1,25 5:4,6,6 72:18,23 73:4,8,9
compensation 21:21 conscious 62:15 63:15 79:11,13 5:20 6:5,16,18,21 73:15,17,19 74:13
41:22 43:12 45:3 consequential 41:23 80:1 6:23,23 7:10,12,24 74:17,17,23 75:3,6
58:5,7 62:4 63:13 41:25 controls 71:23 72:1 8:3,10,13,19,21,25 75:10,23 76:9 77:2
92:23 consider 22:14 24:1 convenient 99:12,12 9:5,7 10:13 11:1,5 77:7,9,13,15,17,21
complained 21:23 38:7 53:25 Cooper 6:19 46:19 11:8,11 12:9,12,16 77:23 78:4 79:6,24
complaint 11:4,7,9 consideration 7:13 46:20 75:18 12:23 13:3,15,18 80:20,22,24,24
11:13 24:12,19 22:17 101:8 cooperative 111:15 13:21 14:2,7,18 81:1,1,9,12,19,20
30:2,16 36:20 considerations core 15:23 15:12,12,18 18:5,6 81:21 82:3,14,16
41:12,14 43:14 25:25 Corps 4:2 6:12,14 18:9,18,25 19:8,13 82:17,19 83:13,13
44:11 45:4 49:4 considered 47:2 11:17 13:13 15:20 19:20 20:1,5,7,10 83:19,25 84:4,10
51:13,16 52:15 consistent 83:6 37:17 38:10 41:16 20:15 21:2,6,15 84:15,15,22 85:8
53:5 54:4 59:1 107:14 53:8 54:4 55:11 22:13,19,22,25 85:17,19 86:6,14
65:19 72:6,7 73:13 constitute 34:16 116:1 23:2,13,13,17,19 86:14,16,19,21
75:4 35:5 43:17 66:15 Corpus 116:8 24:1,5,15,15,23,25 87:1,5,6,13,24
complaints 66:7 67:13 correct 11:10 13:11 25:6,10 26:2,3,12 88:3,9 89:8,13,18
complete 66:11 constitutes 37:23 13:12 15:16,17 26:17,24 27:8,10 89:21 90:3,3,18,22
103:18 63:2 18:7 21:4,19 23:17 27:11,13,22 28:5,7 90:23,25 91:5,7,14
completely 53:25 constitution 62:3 24:2,21 26:13 28:13,15,22 29:6 91:22,23 92:3,7,12
54:7 91:10 63:2,5 32:10 36:2 40:6 29:12,25 30:5,11 92:14,17,25 93:3
complexity 97:6 constitutional 62:2 41:1,3 48:21 50:4 30:20,23 31:3,5,12 93:12,16,19,22
comply 101:20 constructed 13:25 55:12,13,14 60:19 31:16,19,22 32:6,6 94:2,6,9,13,20,24
component 59:24,24 76:7 62:10,11 69:6 32:14,20,25 33:14 95:8,11,20,22,24
concede 28:5,21 construction 20:19 74:24 77:4 83:4,18 33:16,21 34:8,20 96:1,4,7,17,17
40:2 21:2 27:23 29:17 93:21,24 120:4 35:11,16,24 36:5,8 97:1,9,14,19,20,25
concedes 28:15 41:15 43:19 44:7 correctly 7:12 15:13 36:10,12,14,25 98:6,22,25 99:4,15
concept 23:25 94:17 44:13 52:9 80:16 32:7 60:25 62:8 37:5,7,10 38:1,7,9 100:2,7 101:21,25
concepts 96:24 CONT 3:1 63:17 76:10 81:22 38:14,18,23 39:5,7 102:2,8,14,21
105:17,20 contemplate 103:22 93:25 39:9,16 40:2,3,8,9 103:7,11,13,25
concern 22:3,6 contemplated 86:4 costs 43:10 55:17 40:9,10,13,16,18 104:10 105:3,13
concerns 116:5 contemplates 83:3 counsel 4:3 5:5,9,10 40:24 41:2,4,8 105:18 106:6,20
117:7 114:2,14 5:13,16,22,24 6:7 42:23 43:1 45:16 106:25 107:6,9,25
conclude 41:10 contend 104:5 86:17 100:16 45:20,23 47:5,13 108:3,5,11,13,16
concluding 103:5 contested 80:12 103:16 104:8 47:18,18,21 48:1,1 108:18,22 109:15
conclusion 42:5 contesting 73:24 106:9 114:12,15 48:2,7,13,15,22 110:1,20 111:11

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111:17,25 112:10 daily 88:6 99:20 103:22 described 19:5 direction 70:10
112:14,16,17 Dallas 2:16 104:1 108:24 32:18 33:12 35:7 directly 40:18,19
113:1,2,7,17,23 dam 5:8 12:19,21,22 114:9 descriptions 14:11 64:14
114:4,7,23 115:6 14:14 18:4 21:8 dcharest@burnsc... deserve 109:6,14 disagree 102:24
115:21,24 116:7 25:3,18,20 26:23 2:18 design 43:20 44:2 105:8 113:6
116:12,16,19,19 27:19 43:21 44:12 deal 18:13 23:20 51:22 52:3 53:1,15 disagreements
116:25 117:2,3,3,9 44:13 47:12 48:11 31:23 56:19 68:11 67:15,18 70:2 114:25
117:10,12,13,17 48:17,18 49:6,11 90:14 92:18 94:22 80:16 disaster 9:20
117:23 118:4,5,16 49:16 50:2 51:22 98:23 112:3 115:4 despite 45:24 disasters 15:24,25
118:21 119:1,4 53:18 59:3,3 62:18 dealing 82:20 92:8 destroy 16:2 79:7 discourse 29:2
Court's 13:3 32:8 63:11 64:18,23,24 106:6,7 destroying 44:17 30:12
33:13,19 45:10 66:25 79:19 deals 18:6 20:3 destruction 15:2,22 discovery 5:14,24
55:24,24 57:24 damage 9:15 10:8 24:19 43:8 72:9 45:19 66:8 69:23
85:11 90:10 94:17 32:23 36:4 44:2 dealt 23:14 26:13 detailed 93:17 81:19,21 82:5
102:4 109:21 48:22,23 68:5 31:24 93:23 determine 83:11 83:10 87:7,10,18
114:19 115:16 69:12 70:7 92:22 December 100:16 85:4 88:24 89:9 90:20
court-approved damages 18:20 103:16 devastating 44:15 98:9,13 103:5,17
120:3 41:25 47:1,7,14 decide 37:10 45:21 devastation 66:11 103:18 104:16,24
courthouse 1:10 92:10 104:19,20 78:11 develop 16:15 103:1 107:16,19,19,20
100:10 116:2 105:5 decided 16:2 40:4 developed 11:22 107:22 108:5,9
courtroom 1:9 dams 9:23 10:7,10 104:13 12:1 110:8,9 114:14,17
103:15 116:3,4 10:25 11:15,20,25 decision 40:4 60:13 deviation 35:15 114:18
courtrooms 116:6 12:13,24 13:6,10 62:15 81:5 101:23 deviations 24:7 discrete 39:25 106:3
courts 17:22 22:16 13:14,25 14:8 115:12 54:15 discuss 96:25
covered 25:13 84:2 15:14,20 19:10 decisions 16:12,15 Dickinson 25:16,20 discussed 19:1 86:7
create 56:15 20:19 21:3 22:5 89:1 26:13,18 27:4,18 discussion 29:4 30:1
created 11:22 12:2 24:20 26:4 27:24 decreed 19:6 31:24 41:9 46:19 85:11 92:14 99:1,3
56:12 79:20,22 28:9,12,17 29:13 dedicated 60:14 47:9,11 75:19 100:25 101:10
creation 26:21 27:2 29:17,24 30:19 defendant 3:17 76:13 107:2 114:4 116:7
27:19 37:18 43:4,18,22 113:11 dicta 79:23 discussions 111:8
Creek 62:2 44:6,7,21 46:6,14 Defendant's 114:13 dictates 16:4 114:11
creeping 33:17 54:20 76:6 80:10 defendants 113:13 difference 26:3,18 disease 16:13
Cress 65:14,16 80:16 defense 53:22 38:2,15,20 39:11 dislocation 43:8
Crest 41:9 45:5 66:5 Dan 4:9 6:13 defer 39:10 68:16 69:17 72:24 dismiss 6:25 7:4,18
74:5,8,18 danger 32:23,23 deferred 105:16 76:2 7:25 8:5,22 10:13
critically 58:10 61:9 79:4,8 defining 107:1 different 16:14,15 14:6 28:4 30:8
cross 84:18 105:15 Daniel 2:12 6:3 definitely 26:8 33:2 20:22 23:1,5 27:22 31:16 34:9 43:2
crossed 84:19 date 83:8 85:2 87:11 102:23 50:20 58:11 60:17 50:16 53:23 70:16
crystal 68:18 70:17 88:13,24 89:1,3 definition 35:9 61:17 67:1,3 68:11 73:16 80:21 82:4
71:18 72:8 93:5 103:4,19 demonstrate 43:14 76:9,19 84:21 84:5 85:10 101:15
curiosity 51:8 110:5,12 114:3 denied 82:4,7 83:9 85:19,22 86:15 101:23 115:4,8,13
curious 9:5 120:10 84:8 85:10 91:9,11,17 92:2 Dismiss/ 1:16
current 13:24 81:18 dates 85:3 88:23 deny 73:16 115:13 104:21 dismissal 16:19
87:9 89:3 90:20 89:1 98:16 100:5,5 Department 3:20 differentiate 37:6 dismissed 41:13,19
101:8 114:11 6:10,12 difficulties 84:4 41:23
D day 35:24 69:3,3,22 depending 83:23 diffuse 63:21 64:1 displacing 44:17
D 3:22 5:1 70:3 100:8,18 111:2 Digital 1:25 disposes 46:18
D.C 3:6,23 49:10 101:17 106:19 deposition 98:16 diligently 107:17 disposition 80:19
97:8 days 89:24 90:14 depositions 107:23 direct 35:1 43:17 dispute 10:25

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/16/2018

[126]

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For The Record, Inc.

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/16/2018

[130]

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For The Record, Inc.

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For The Record, Inc.

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[134]

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For The Record, Inc.

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/16/2018

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[137]

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