By Taryn Phaneuf | May 13, 2016

ORANGE — Homeowners looking to force a state agency to pay for the flood damage done to their homes in March could have a claim, but arguing the case will likely be a challenge, one law professor said.

For three days in March, 18 inches of rain fell over the Toledo Bend Reservoir on the Sabine River, which divides Texas and Louisiana. During a record rainfall, the Sabine River Authorities of Texas and Louisiana opened the reservoir’s spillways, as it’s permitted to do to protect the integrity of the dam.

At one point, nine spillway gates were opened 22 feet, releasing more than 200,000 cubic feet of water per second rush downstream — more than twice the discharge rate of Niagara Falls.

With an additional 6 to 8 inches of rain over the lower Sabine River, the National Weather Service called it a record flood event, affecting hundreds of houses.

Now, many of those homeowners in Texas and Louisiana want the SRA to pay for the damage. They’ve signed on as plaintiffs in a lawsuit against the authorities, claiming the flooding constituted a governmental taking of private property — an action that demands compensation under both states’ constitutions.

According to news reports, approximately 450 people are included in the suit.

The SRA declined to comment for this story. Calls to attorneys representing the plaintiffs in the suit weren’t returned.

“At first glance, it may seem like a stretch,” Matthew Festa, a professor at South Texas College of Law in Houston, told the SE Texas Record.  “But there's actually some Supreme Court precedence for the argument that a temporary flooding can be a taking of private property.”

The Arkansas Game & Fish Commission brought a suit against the United States after the U.S. Army Corps of Engineers imposed a temporary flood regime from 1993 to 2000 around the Dave Donaldson Black River Wildlife Management Area. The action caused flooding, which restricted access to, and destroyed or degraded thousands of timber trees.

The commission argued that, under the takings clause of the Fifth Amendment, it should be able to recover the loss of the property. The Supreme Court heard the case in 2012 and concluded temporary flooding could be a taking and sent the case back to the federal circuit for further proceedings. It also determined that whether an action is a taking depends on several factors, including the length and severity of the interference and the intent behind the action, among others.

“The court held that a temporary flooding can be a taking but it didn’t really say when it would be a taking,” Festa, who focuses on property law, land use, and state and local government, said. “That’ll make it an interesting case, I think.”

With that in mind, he thinks it’s possible the homeowners will get through the first stage of stating a claim. But arguing it could be more difficult.

“I'm sure the authorities’ argument will be that they didn't have a choice,” Festa said. “It doesn't necessarily mean it's still not a taking, but it's a harder argument to make.”

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