Federal Circuit finds that downstream plaintiffs can state a takings case in the downstream Hurricane Harvey flooding cases:
Milton v. United States, 36 F.4th 1154 (Fed. Cir. 2022)
This is based on finding a property interest in a flowage easement through the plaintiff’s property. By calling this a property interest, the Court eliminates the 702 defense from the FTCA and maybe the discretionary function defense of the FTCA, depending on whether the Court of Federal Claims finds that this meets the test of Arkansas Game and Fish for a temporary taking.
In re Downstream Addicks, 147 Fed. Cl. 566 (2020), rev’d and remanded sub nom. Milton v. United States, No. 2021-1131, 2022 WL 1788793 (Fed. Cir. June 2, 2022)
In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019)