In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L 

(Filed: October 28, 2022) 

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IN RE UPSTREAM ADDICKS AND 

BARKER (TEXAS) FLOODCONTROL RESERVOIRS 

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THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES

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Taking via government-induced flooding 

of private property; post-trial decision on 

just compensation for six bellwether 

plaintiffs; text of flowage easement to be 

filed in pertinent title records of affected 

properties

Daniel H. Charest and E. Lawrence Vincent, Burns Charest LLP, Dallas, Texas, Charles 

Irvine, Irvine & Conner PLLC, Houston, Texas, and Edwin Armistead Easterby, Williams Hart 

Boundas Easterby, P.C., Houston, Texas, Co-Lead Counsel for Upstream Plaintiffs. With them 

at trial were Vuk. S. Vujasinovic, VB Attorneys, PLLC, Houston Texas, Lawrence G. Dunbar, 

Dunbar Barder, PLLC, Houston, Texas, and Amanda Klevorn, Burns Charest LLP, Dallas, 

Texas. 

Kristine S. Tardiff, Trial Attorney, Environment & Natural Resources Division, United 

States Department of Justice, Concord, New Hampshire. With her at trial and on the briefs were 

Laura W. Duncan, Environment & Natural Resources Division, United States Department of 

Justice, Galveston, Texas, Frances B. Morris, Samuel R. Vice, and Frank Singer, Trial Attorneys, 

Environment & Natural Resources Division, United States Department of Justice, Washington, 

D.C. With them at trial was James Purcell, United States Army Corps of Engineers, Galveston,

Texas. With them at closing arguments was David Harrington, Trial Attorney, United States

Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge. 

At issue are the financial consequences of flooding of private property located “upstream 

of the federally designed, built, and maintained Addicks and Barker Dams” and “within the 

Addicks and Barker Reservoirs;” that occurred when Tropical Storm Harvey (“Harvey”) “doused 

Houston with an average of 33.7 inches of rain over a four-day period” in August 2017. In re 

Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219, 227 (2019). After 

Harvey, “hundreds of owners of ‘upstream’ properties,” including the bellwether plaintiffs here, 

brought suit against the United States, claiming that its operation of the Addicks and Barker 

Dams resulted in “the government-controlled inundation of their properties” by Harvey 

Corrected
2

floodwater and constituted an uncompensated taking. Id. at 227-28. The Harvey flooding cases 

were initially consolidated into a single Master Docket for plaintiffs both upstream and 

downstream of the Addicks and Barker Dams. The Master Docket was subsequently divided 

into separate sub-master dockets for upstream and downstream properties. Id. at 228. The 

upstream cases were further bifurcated into liability and damages phases, and discovery on 

liability proceeded with a focus on thirteen bellwether plaintiffs. Id. Following disposition of

motions, the case proceeded to a 10-day trial in May 2019 in Houston on the issue of liability. 

Id. 

Thereafter, “the court found the United States liable to thirteen bellwether property 

owners under the Fifth Amendment of the United States Constitution for the taking of a noncategorical, permanent flowage easement on their properties as a result of government-induced 

flooding during Tropical Storm Harvey, produced by the government’s construction, 

maintenance, and operation of the Addicks and Barker Dams.” In re Upstream Addicks & Barker, 

148 Fed. Cl. 274, 275 (2020) (citing In re Upstream Addicks & Barker, 146 Fed. Cl. 219). 

With that decision in hand, the cases moved to discovery on just compensation. Of the 

thirteen test property plaintiffs at issue in the liability trial, the properties of six test plaintiffs 

were chosen for the just compensation phase. In re Upstream Addicks & Barker, 148 Fed. Cl. at 

275. The covid pandemic delayed trial preparations, but the necessary work was nonetheless 

completed and trial was held in Houston, Texas from May 31 to June 10, 2022. Post-trial 

briefing was undertaken, and a closing hearing was held on September 29, 2022. This decision 

follows.

FACTS1

A. Tropical Storm Harvey, Flooding, and the Liability Trial

Factual circumstances were critical to the court’s liability determination. First, in 

response to a series of serious storms in the first half of the twentieth century, the United States 

Army Corps of Engineers (“the Corps”) designed and built the Addicks and Barker Dams. The 

dams’ purpose is to impound rainwater upstream to prevent flooding to downstream property in 

and around downtown Houston. See In re Upstream Addicks & Barker, 146 Fed. Cl. at 228-33. 

In constructing the dams, the Corps acquired land upstream of the dams to create reservoirs to 

hold impounded water but chose not to purchase enough property to accommodate the storage 

capacity of the dams’ design. Id. The reservoirs are ordinarily dry but impound water during 

and after rain events. After the Corps constructed the dams, it decided to install gates at the 

dams in the 1940s and 1960s to control the release of impounded water from the reservoirs. Id.

at 233-34; see also Tr. 1297:1-11 (Vail). Then, in the late 1970s the privately-held grazing 

pastures and rice fields on land upstream were replaced with housing developments. In re 

Upstream Addicks & Barker, 146 Fed. Cl. at 234. Subsequently, the Corps conducted a study of 

1 This recitation of facts constitutes the court’s principal findings of fact in accord with 

Rule 52(a) of the Rules of the Court of Federal Claims (“RCFC”). Other findings of fact and 

rulings on questions of mixed fact and law are set out in the analysis.
3

the Addicks and Barker dams and reservoirs, which disclosed “a dramatic increase to the 

maximum design spillway . . . and . . . a higher probable maximum precipitation value.” Id. at 

234-35. The Corps responded by strengthening and modifying the dams to reduce seepage and 

enhance stability, but it did not expand the government-owned reservoirs. Id. at 235-36. The 

Corps continued to conduct studies into the twenty-first century, recognizing “[t]he possibility of 

flooding lands in the reservoirs beyond the government-owned land,” id. at 234, but “the Corps 

decided to take no action” to mitigate that upstream risk. Id. at 236-37. 

When Hurricane Harvey arrived on August 25, 2017, and “stalled over the Houston 

metropolitan area for four more days,” the Corps operated the Addicks and Barker Dams 

according to the design criteria, impounding water in the upstream reservoirs. See In re 

Upstream Addicks & Barker, 146 Fed. Cl. at 240-41. The Corps’ official operating procedures for 

the dams provided that the dam gates be operated in a controlled manner to prevent flooding 

downstream, even when such operation would flood upstream private property beyond the 

government-owned land. Id. Accordingly, during Hurricane Harvey, “[t]he flood pools in the 

reservoirs crested at a record pool elevation of 101.6 feet in Barker and 109.1 feet in Addicks on 

August 30, 2017,” flooding private property. Id. at 241. 

This flooding damaged the houses and property of bellwether test plaintiffs Todd and 

Cristina Banker, Elizabeth Burnham, Scott Holland, Christina Micu, Catherine Popovici, and 

Kulwant Sidhu. The Bankers’ home—located at 4614 Kelliwood Manor Lane, Katy, Texas—

experienced 1.1 feet of flooding that remained in the home for four days. See In re Upstream 

Addicks & Barker, 146 Fed. Cl. at 241. Ms. Burnham’s home—located at 15626 Four Season 

Drive, Houston, Texas—experienced approximately four to five feet of flooding, which persisted 

at least seven days. Id. at 241-42. Mr. Holland’s home—located at 1923 Wingleaf Drive, 

Houston, Texas—experienced 1.5 feet of flooding that lasted three and a half days. Id. at 242. 

Ms. Micu’s home—located at 6411 Canyon Park Drive, Katy, Texas—had approximately two 

feet of flooding, which “was present in the home for about ten days.” Id. Ms. Popovici’s 

home—located at 19927 Parsons Green Court, Katy, Texas—experienced no flooding inside the 

residence, but water came “within a couple inches of entering” the home, damaged the garage,

Tr. 799:17-23 (Popovici), and was on the property “between four and six days.” See In re 

Upstream Addicks & Barker, 146 Fed. Cl. at 243.2

 Mr. Sidhu had two test properties at issue in

the liability and just compensation trials, both condominiums located at 16111 Aspenglenn 

Drive, Houston, Texas. Id. One unit was located on the ground level and experienced 2.4 feet of 

flooding for around four and one-half days, while an upstairs unit did not suffer any flooding. Id. 

Following the court’s liability opinion, the parties asked the court to clarify the date and 

physical scope of the government’s taking, which the court did on April 30, 2020. See In re 

Upstream Addicks & Barker, 148 Fed. Cl. at 275-78. That opinion specified that until Harvey,

impounded water at the Addicks and Barker Reservoirs had only slightly exceeded 

government-owned land and minimally flooded private property, so the government’s “physical 

invasion of plaintiffs’ properties began on August 28, 2017[,] and ‘crested at a record pool 

2 Citations to the trial transcript are cited as “Tr. _____ (Witness).” Citations to joint 

exhibits are shown as “JX___,” plaintiff’s exhibits are identified as “PX-JC___,” or 

“PX-JC___(name)” specific test property exhibits include plaintiff’s name and are marked as 

“name-JC,” and defendant’s exhibits are denoted as “DX___.”
4

elevation of 101.6 feet in Barker and 109.1 feet in Addicks on August 30, 2017.’” Id. at 276-77 

(quoting In re Upstream Addicks & Barker, 148 Fed. Cl. at 241). The court therefore determined 

that the government’s taking occurred on August 30, 2017. Id. at 277. It further concluded that 

because “no taking occurs until water enters the property,” the extent of the government’s

easement corresponded to the peak flooding on August 30, 2017, not the dams’ highest design 

pool level. Id. at 278. 

B. The Just Compensation Trial

After the court resolved a series of discovery and procedural disputes, see, e.g., In re 

Upstream Addicks & Barker, 152 Fed. Cl. 114 (2021) (addressing a discovery dispute), and 157 

Fed. Cl. 189 (2021) (denying class certification), the just-compensation trial took place in 

Houston, Texas, from May 31 through June 10, 2022. At issue were the flowage easement’s 

scope based on Corps policies and meteorological circumstances, the test properties’ values, 

plaintiffs’ personal property losses, an appropriate interest award, and whether the just 

compensation award should be reduced to reflect federal benefits plaintiffs received. 

1. Scope of the easement.

The purpose and design of the Addicks and Barker Dams make the court-ordered 

easement necessary. Colonel Timothy Vail, the commander and district engineer for the Corps’ 

Galveston district, testified that the dams’ purpose is to impound water upstream before it flows

downstream and floods downtown Houston. Tr. 1311:13-22 (Vail). Because the dams’ storage 

capacity exceeds government-owned land, operating the dams as planned under certain 

meteorological conditions entails a risk to upstream private property, human health and safety, 

and public infrastructure. Tr. 1317:16 to 1318:8 (Vail). As the dams currently exist, the 

government can account for this risk to upstream properties from peak reservoir pool elevations 

only by acquiring an interest in the properties. See PX-JC773 at 8.

(a) Corps’ policies regarding easements.

At trial, Paula Johnson-Muic and Timothy Nelson testified about the Corps’ policies

regarding easements, both in general and as applied to the court-ordered easement in this case. 

Ms. Johnson-Muic, the Corps’ highest civilian authority on real estate issues across the United 

States, focused on the Corps’ Real Estate Handbook and policies. See Tr. 136:10-13, (JohnsonMuic); JX1007. The Real Estate Handbook, published in 1985 and periodically updated 

thereafter, is a reference manual the agency uses when making real estate decisions, such as 

managing flowage easements. See Tr. 139:8-13 (Johnson-Muic). Mr. Nelson, the chief of the 

Corps’ Real Estate Division within the Galveston District, related means of enforcing 

government property rights to land, including the land subject to the court-ordered permanent 

flowage easement in this case. Tr. 310:9-18, 364:12-16 (Nelson). 

Under Corps’ policy, as confirmed by Ms. Johnson-Muic’s testimony, “[w]henever a 

plaintiff successfully prosecutes litigation which establishes that an interest in real property has 

been taken, the interest so taken should be confirmed in the form of a grant, wherever possible,” 

and such “instrument should be recorded in the public land records and permanently retained in 

the real estate files as evidence of the interest taken.” JX1007 at 5-71, ¶ 5-22; Tr. 143:8-24, 
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145:19-24, 147:24 to 148:6 (Johnson-Muic). By recording the instrument, the Corps notifies the 

public of the property interest acquired. Tr. 153:10-13 (Johnson-Muic). Nonetheless, she

testified that the Corps sometimes does not record an instrument to memorialize such

conveyances. Tr. 149:2-18, 157:3-13 (Johnson-Muic); but see Tr. 264:12-14 (Johnson-Muic) 

(“Q: The Corps policy calls for the recordation, correct? A: Yes.”); JX1007 at 5-74, ¶ 5-24(e) 

(outlining the Corps’ policy to record the judgment conveying a property interest in event that 

court does not issue a deed confirming the conveyance). The Corps retains the discretion to 

enforce its property rights. See Tr. 227:2-5, 232:13 to 233:1 (Johnson-Muic); but see PX-JC352 

at 3, ¶ 6 (Corps Memorandum of May 10, 2019) (“Encroachments and trespasses of government 

real property shall be identified and resolved in a timely manner.”).3

The easement here permits the Corps to store water during occasional flooding by the 

operation of the Addicks and Baker Dams and allows plaintiffs to continue lawful use of the 

property subject to the risk of occasional flooding. See In re Upstream Addicks & Barker, 148 

Fed. Cl. at 278. Accordingly, the Corps understands the flowage easement here to be a nonstandard or atypical easement because the fee owners of the burdened properties “retain the right 

to lawful use of their property” according to state and local laws, which includes human 

habitation and maintaining existing structures on the properties. Tr. 204:13-25, 296:7 to 297:9 

(Johnson-Muic).

The Corps’ understanding of “occasional flooding” as used to describe the easement here

encompasses anything less than permanently inundating the burdened property. Tr. 166:18 to 

167:7, 169:17-21 (Johnson-Muic). On this understanding, the court-ordered easement permits

the Corps to flood burdened properties whenever operation of the Addicks and Barker Dams so 

requires, i.e., when meteorological events threaten downstream properties and cause impounded 

waters to exceed the capacity of the government-owned property making up much of the 

reservoir. Tr. 174:9 to 175:2, 175:22 to 176:11, 184:11-25, 188:20 to 189:25 (Johnson-Muic).

The Corps may enforce its easement against any residual fee owner of burdened property 

who interferes with the government’s rights as the dominant estate holder. Tr. 164:23 to 165:3 

(Johnson-Muic). Specifically, Mr. Nelson testified that efforts to exclude floodwaters from 

upstream properties subject to the permanent flowage easement would be contrary to the Buffalo 

Bayou and Tributaries project’s purpose and would encroach on the government’s easement. See 

Tr. 361:14-25, 367:6 to 368:8 (Nelson). For example, the Corps could and would prevent a

burdened property’s owner from using fill or building a berm to reduce the risk of flooding. See 

Tr. 176:12-24 (assuming a standard easement), 194:18-21, 197:4-11, 200:24 to 201:7, 201:21 to 

202:13 (Johnson-Muic) (indicating attempts to circumvent the easements’ restrictions “may” 

3 Specifically, the Corps may protect its rights through litigation. Tr. 233:22 to 234:1, 

(Johnson-Muic); see also Tr. 305:11 to 306:25 (Johnson-Muic) (stating that litigation about the 

relationship between the Corps and the fee owner under an easement is “a real possibility”). The 

exercise of that discretion would turn on the Corps’ technical and legal analysis of the potential 

encroachment and whether it would “substantially interfere” with the government’s property 

rights under the easement. Tr. 279:14 to 280:8, 284:4-22, 290:2-17 (Johnson-Muic); see also 

Tr. 396:18 to 397:12 (Nelson) (describing Corps procedures governing engineering assessments 

of whether a potential encroachment impairs the project); JX1010 at 4, ¶ 1.6.3 (defining 

encroachment for Corps policy purposes).
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constitute encroachment); JX1010 at 3, ¶ 1.5 (“It is the intention of the Corps to protect project 

authorized purposes . . . by preventing new encroachments.”); JX1007 at 8-12, ¶ 8-24(b)

(explaining that using landfill to alter an easement’s contours “would be considered an 

encroachment”) (citing United States v. Fisher-Otis Co., Inc., 496 F.2d 1146 (10th Cir. 1974)); 

but see Tr. 212:13-25, 213:23 to 214:1, 215:6-17 (Johnson-Muic) (explaining that JX1007 at 8-

12, ¶ 8-24(b) predates the atypical easement in this case and could be interpreted to apply only to 

standard easements).

(b) Meteorological factors.

The plaintiffs’ primary expert on meteorological developments and the likelihood of 

flooding was Dr. Philip Bedient, an engineering professor at Rice University who researches 

hydrology, disaster management, and flood modeling and prediction systems. See PX-JC873 at 

4. Dr. Bedient estimated “the frequency or chance of occurrence of flood stages within Addicks 

and Barker Reservoirs between . . . [g]overnment-[o]wned [l]and . . . and the maximum pool 

level reached during the Harvey 2017 storm event, and then used that information to provide 

estimates of the frequency and duration of various pool levels at each of the . . . [t]est 

[p]roperties.” Id. at 2. Using stage level data provided by the Corps, Dr. Bedient estimated that

the maximum flood pool stage observed during Harvey “approximates between a 35-year and a 

100-year recurrence event, while the . . . pool stage [on government-owned land] approximates a 

10-20 year recurrence event.” PX-JC873 at 2-3; see also Tr. 1241:10-21, 1247:17 to 1248:1 

(Bedient). 

Mario Beddingfield, a hydraulic engineer for the Corps, testified that flooding beyond

government-owned land would occur more frequently than the government had previously 

thought. Tr. 903:1-7 (Beddingfield). Mr. Beddingfield spoke to stage frequency analyses, the 

preparation of which he oversaw when the Corps created a provisional 2019 Water Control 

Manual. Tr. 905:22 to 906:3 (Beddingfield). The pool elevation levels in the prior version of the 

Manual from 2012 were based on an approximately 30-year period of record back to the early 

1980s, a period in which the highest precipitation event was a 1992 storm that peaked at a level 

of 93.6 inches of water behind the Addicks and Barker Reservoirs. Tr. 908:2-6, 933:5 to 934:20 

(Beddingfield). Since that time, Mr. Beddingfield testified that changed conditions—i.e., a boom 

in urbanization and increasingly frequent and severe storms—have caused more water to 

accumulate at times in the Addicks and Barker Reservoirs. Tr. 942:6 to 951:20 (Beddingfield); 

see also Tr. 1303:10-18 (Colonel Timothy Vail) (confirming that the Corps has received 

information from the National Oceanic and Atmospheric Administration indicating increased 

“frequency and intensity of rainfall events”). The 2019 Manual does not account for these 

changed conditions. Tr. 952:3-19 (Beddingfield). According to Mr. Beddingfield, accounting 

for these developments leads to higher storm and runoff levels and an overall higher frequency 

curve than those presented in the 2019 Manual. Tr. 969:1 to 980:25 (Beddingfield); see also

JX1021A and JX1021B (demonstrative exhibits representing a higher frequency curve that 

includes the top ten storms, including Harvey). Mr. Beddingfield testified that this adjusted 

curve would “approximately” place the Harvey event between a 20- and 50-year event. Tr. 

987:5-11 (Beddingfield). Mr. Beddingfield also testified that each test property is within the 20-

to 50-year flood event frequency, except for Ms. Micu’s home which is within a 10-20-year 

flood event frequency. Tr. 990:2 to 992:21 (Beddingfield). 
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The government called Dr. John England, a lead civil engineer in the Corps’ Risk 

Management Center and expert in flood hydrology, to rebut Dr. Bedient’s analysis. See Tr. 

2490:3 to 2491:1 (England). Dr. England’s rebuttal consisted of two main criticisms. First, Dr. 

England opined that Dr. Bedient’s report did not follow industry best practices. Tr. 2531:18 to 

2534:16 (England). Second, Dr. England opined that Dr. Bedient used a small data set to 

produce an estimate of flood frequency. Tr. 2528:3 to 2532:24 (England). Dr. England also 

testified that Dr. Bedient’s report looked only at elevation data but ignored storage capacity data 

specific to the Addicks and Barker Reservoirs. Tr. 2518:18 to 2519:21 (England). In Dr. 

England’s opinion, these errors caused Dr. Bedient to reach a flood frequency estimate five times 

more frequent than his own estimate. Tr. 2529:16-19, 2533:25 to 2534:2 (England). 

Dr. Barry Keim, a professor at Louisiana State University specializing in precipitation 

frequency analysis, challenged Dr. Bedient’s conclusions concerning rainfall frequency. Tr. 

2577:13 to 2580:1 (Keim). Dr. Keim criticized Dr. Bedient’s data set and methods, opining that 

Dr. Bedient’s estimated frequency of a Harvey-like flood event over the Addicks and Barker 

reservoirs was too frequent to be the result of proper analysis. See Tr. 2610:9-19 (Keim). For 

example, Dr. Bedient’s analysis considered the total rainfall from several storm events, rather 

than only the rainfall from each of those storms that fell specifically on the reservoirs. Tr. 

2596:17 to 2601:18 (Keim). Moreover Dr. Bedient’s data set did not include storms before the 

1970s. Tr. 2606:18 to 2607:5 (Keim). A longer period of record, according to Dr. Keim, would 

produce more accurate results that are closer to the government estimates of the frequency of

Harvey-like flood events. Tr. 2607:8-19; 2612:5-15 (Keim). 

Mark Glaudemans, branch chief over the Water Resources Services Branch of the 

National Weather Service, likewise defended the government’s current precipitation frequency 

estimates. Tr. 2029:12 to 2031:9 (Glaudemans). Specifically, he testified that the National 

Oceanic and Atmospheric Administration (“NOAA”) estimates that the frequency of a 33-inch 

rainfall over the Addicks and Barker Reservoirs is 1-in-1000 years. Tr. 2045:3-10 

(Glaudemans).4

 NOAA’s estimate includes Harvey data as well as data from sources that, in 

some instances, date back 150 years and correlate records gathered from hundreds of recording 

stations over 120 years. Tr. 2031:6-9, 2035:22 to 2037:24 (Glaudemans); DX1339 at 15. 

Nonetheless, the data NOAA used were not adjusted to reflect the upward trend in rainfall

observed over the last two decades as distinct from the broader 150-year period. Tr. 2048:25 to 

2051:3 (Glaudemans). Mr. Glaudemans also acknowledged that at least two storm events within 

two years of each other have exceeded NOAA’s estimate for 1,000-year events, i.e., both

Hurricane Harvey in 2017 and Tropical Storm Imelda in 2019 produced over 40 inches of 

rainfall. Tr. 2060:11 to 2064:17 (Glaudemans). 

4 These estimates are contained in NOAA Atlas 14, which estimates the precipitation 

frequencies of various locations. Tr. 2035:6-21 (Glaudemans). 
8

2. Appraisal of test properties.

Real estate appraisers determine a subject property’s value by determining its best use 

and analyzing its characteristics and aspects of the relevant market. See PX-JC156 (Interagency 

Land Acquisition Conference, Uniform Appraisal Standards for Federal Land Acquisitions 

(“Yellow Book”) at 8, § 1.1 (2016). The Yellow Book outlines the standards for developing “an 

opinion of market value that can be used to determine just compensation under federal law.” Id.

at 3, § 0.1. Here both parties have adopted appraisal approaches outlined in the Yellow Book.

The Yellow Book requires appraisers to apply the before and after rule to determine just 

compensation. This approach measures the difference between the parcel’s before-taking value 

and its after-taking value. Yellow Book at 17, § 1.2.7.3.4. The Yellow Book identifies three 

approaches to valuing land: (1) the sales comparison approach, (2) the cost approach, and (3) the 

income approach. Id. at 26-35, §§ 1.5.2-1.5.4. 

The sales comparison approach is “normally the preferred method of valuation.” Yellow 

Book at 26, § 1.5.2. Appraisers applying this approach identify “sales of properties with the 

same highest and best use as the subject property that are as close in proximity” and as close to

the time of the taking as possible. Id. Each sale is then adjusted to account for differences 

between the comparable and subject properties. Id. Next, the resulting “sales data is [sic]

reconciled to a final opinion of market value.” Id. The sales comparison approach requires that 

comparable sales be between “willing and reasonably knowledgeable buyers and sellers.” Id. at 

95, § 4.2.1.3 (emphasis omitted). To qualify, buyers and sellers need not be “all-knowing.” Id.

Under the cost approach, the land’s market value, separate from the value of any 

improvements and typically determined according to the sales comparison approach, is added to 

the depreciated cost of reproducing or replacing improvements on the property. Yellow Book at 

33, § 1.5.3. Replacement costs are estimated based on current, local market labor and material

costs. Id. It is reduced to account for “depreciation from all causes.” Id. at 34, § 1.5.3.1.2. 

Finally, the income approach applies to income-generating properties. Yellow Book at 

35, § 1.5.4. For rental properties, the income approach calculates the market rent by analyzing 

comparable leases and deducting operating expenses to determine the net operating income. Id. 

at 35-36 §§ 1.5.4.1-1.5.4.3. 

Here, the parties disagree on both the before and after valuations. Regarding the beforetaking values, the parties’ primary disagreement concerns the selection of comparable properties 

and whether to make quantitative or qualitative adjustments to account for any differences from 

the subject properties. See Def.’s Post-Trial Mem. at 17-19, ECF No. 570. Their disagreements 

on the after-takings valuation are more fundamental. The parties debate whether the market is 

aware of the flowage easement, and, as a result, whether a direct sales comparison methodology 

can be applied at all. They also disagree on how to account for subsequent repairs and 

renovations and whether just compensation should be limited to the flooding actually caused by 

the Addicks and Barker Dams, as distinct from flooding that would have occurred if the dams 

were never built. See Pls.’ Post-Trial Resp. at 72-73, ECF No. 571.
9 

Plaintiffs’ valuations. 

Two experts estimated the before-taking and after-taking values of the test properties for 

the plaintiffs, and a third estimated the diminution percentage. 

Timothy Archibald and Matthew Deal estimated the test properties’ before-taking values 

using the sales comparison approach. Both determined that the Sidhu properties were best used 

as condominium projects and that the other properties were best used as single-family residences. 

See generally PX-JC877, 878, 880-884 (Archibald appraisals); PX-JC886-891 (Deal appraisals). 

For the Sidhu condominium units, Mr. Archibald and Mr. Deal each provided estimates under 

the income approach as well. See PX-JC883 at 25-28, PX-JC884 at 24-27 (Archibald); 

PX-JC890 at 42-43, PX-JC891 at 42-43 (Deal). 

The plaintiffs contend that the market is unaware of the flowage easement and, 

accordingly, that no direct comparison of sales can be used to determine the bellwether 

properties’ after-taking value. See Pls.’ Pre-Trial Mem. at 16, ECF No. 466. Plaintiffs stress the 

distinction between market awareness of a flood risk and market awareness of a flowage 

easement because an easement grants dominant estate rights, including the right to prevent 

mitigation efforts and the right to store water inside structures. See PX-JC1025 at 7 (identifying 

eleven significant differences between flowage easements and flood risks); see also Pls.’ PostTrial Br. at 14, n.49, ECF No. 568 (arguing that the easement “prohibit[s] the property owner 

from interfering with the government’s use of the easement”).

As evidence that the market is unaware of the flowage easement, plaintiffs rely on the 

lack of activity in the title insurance industry, the dearth of public-facing Flood Insurance Rate 

Maps (“FIRMs”) demarcating the Harvey flood pool, and property sellers’ general failure to 

disclose the existence of an unrecorded easement in state-required disclosure forms. 

Mr. Robert Philo, a real estate attorney who has worked in the title insurance industry for 

more than 40 years, Tr. 434:23 to 435:9 (Philo), testified that the title insurance industry is 

unaware of the court-ordered easement. Tr. 462:3-19 (Philo). He averred that if the industry 

were aware, there would be several observable responses. For instance, some buyers would opt 

out of sales after learning of the easement, Tr. 469:3-7 (Philo), and title insurance companies

would likely take exception to the easement—meaning they would not cover financial losses the 

easement inflicts, Tr. 470:23-471:5—causing lenders to stop issuing mortgages, increase interest 

rates, Tr. 481:22-482:19, or demand a higher down payment for encumbered properties. Tr. 

487:20 to 488:6. Mr. Philo testified that none of these downstream effects has occurred, so the 

title industry is unaware of the easement. See Tr. 462:15 to 463:4 (Philo). 

 Moreover, FEMA (Federal Emergency Management Agency) and Harris County 

officials, who collaborate on FIRMs that demarcate flood pools, see Tr. 740:18 to 742:10 

(Wanhanen), averred that the FIRM maps showing the Harvey flood pool had not been made 

public. See Tr. 726:6 to 727:11 (Wanhanen); Tr. 530:16-21 (Hahn). Corps employees indicated 

that “multiple sources” had asked the Corps to include reservoir inundation limits on publicfacing FIRMs. JX1078; see also Tr. 560:6-15 (T. Ward). These sources also reminded the 

Corps that FIRMs are “the main source residents use for flood risk information for their 

property.” PX-JC371. But FEMA’s public-facing maps nonetheless do not show the Harvey 

flood pool. Tr. 530:16-21 (Hahn). 
10

Additionally, one of plaintiffs’ appraisal experts, Dr. Randall Bell, testified that an 

unrecorded easement was disclosed on only three of 1,288 seller’s disclosure forms for

properties sold within the Harvey flood area between September 1, 2019 and October 31, 2021. 

See PX-JC1025 at 22-23; Tr. 2790:22 to 2793:13 (Bell). Nine sellers related the property was in 

a flood way, 68 that the property was in a reservoir, and 71 that the property was in a flood pool. 

See PX-JC1025 at 22-23; Tr. 2793:15 to 2796:14 (Bell). According to Dr. Bell, these seller’s 

disclosures are a place to go to determine market awareness “[i]f you had an authentic interest in 

understanding the level of market knowledge,” and these low reporting numbers indicate the 

market is largely unaware of the easement. Tr. 2797:1 to 2799:2 (Bell). 

Plaintiffs’ after-market appraisals also accounted for repair costs. Matison Construction 

Estimating and DeFacto Consulting Group provided estimates for plaintiffs. DeFacto estimated 

repair costs for the Banker, Burnham, Micu, and Sidhu unit 603 test properties. See generally

PX-JC1113 (Banker); PX-JC1114 (Burnham); PX-JC1115 (Micu); and PX-JC1116 (Sidhu 603). 

DeFacto’s estimate relied on the government experts’ scope of work, dimensional information,

and quantity of materials. Tr. 1782:2 to 1783:16 (Lozos); but see Tr. 2444:9-16 (McReynolds) 

(indicating these scopes of work were general, and plaintiffs’ experts had to fill in the details). 

These figures were accepted during the liability phase.

5 DeFacto then used the “published cost 

data for the area immediately after . . . Harvey” to determine material costs. Tr. 1782:2-9; see 

also Tr. 1786:3-16 (Lozos) (describing the Xactimate tool that gathers and publishes costs by zip 

code on a monthly basis). Matison followed a similar approach but arrived at somewhat 

different estimates.6

Aside from specific cost estimates for restoring the test properties, the Internal Revenue 

Service (IRS) published Revenue Procedure 2018-09 to help individuals calculate the financial 

loss Hurricane Harvey inflicted upon personal-use residential property. Rev. Proc. 2018-09, 

2018-02 IRB 290. When one’s property is damaged, a taxpayer can reduce his or her taxable 

income by the amount of damages. See 26 U.S.C. §§ 165(a), (h). IRS procedure 2018-09

provides tables taxpayers can use to calculate a safe harbor number by which they can reduce 

their taxable income. Rev. Proc. 2018-09, 2018-02 IRB 293. These tables allow a taxpayer to 

calculate their deduction without obtaining appraisals or contractor estimates of the property 

damage they suffered. Tr. 886:18 to 887:8 (Ward).7 

5 Plaintiffs called Mr. Timothy Lozos as an expert to testify regarding the cost of 

repairing the plaintiffs’ flooded real property structures. He calculated the costs of remediating 

the Banker structures to be $166,740.29, PX-JC1113 at 40, the Burnham structures to be 

$106,777.59, PX-JC1114 at 21, the Micu structures to be $121,908.83, PX-JC1115 at 32, and 

Sidhu unit 603 to be $49,101.09, PX-JC1116 at 19.

6 The plaintiffs’ did not call a witness to testify to the truth of the Matison expert reports, 

so they were excluded. Tr. 1708:21 to 1710:13. The court did, however, permit Mr. Deal to rely 

upon those estimates. Tr. 1710:8-13 (court).

7 Donald Ward, a lead appraiser with the IRS, was called by plaintiffs to testify regarding 

the development of the Cost Index Per Square Foot tables published in Revenue Procedure 2018-

09 and, more specifically, the data used to develop the values in the “Texas” columns in that 

procedure and a Memorandum captioned Hurricane Harvey & Irma Disaster Area—Casualty 
11

Mr. Sidhu provided evidence of the actual costs associated with repairing the 

condominium units following Harvey. See JX1172; Sidhu-JC83 at 964-967. Repairs and lost 

income amounted to $29,504.11 for the downstairs unit and $1,194.99 for the upstairs unit. 

JX1172.

In the after-taking analysis, both Mr. Archibald and Mr. Deal concluded that the best use 

of the Banker, Burnham, Micu, and Popovici properties, and the Sidhu upstairs condominium,

was residential. Tr. 1533:17 to 1534:5 (Deal); Tr. 1992:16 to 1993:15 (Archibald). Mr. 

Archibald also deemed the best use of the Sidhu downstairs condominium to be residential, Tr. 

1992:16 to 1993:15 (Archibald), while Mr. Deal deemed its best use to be speculative because 

the estimated repair costs exceeded his appraisal of its before-taking value, Tr. 1534:6-24 (Deal). 

As a result of positing that the market remains unaware of the easement, plaintiffs’ aftertaking appraisals were not based on a direct sales comparison. See, e.g., PX-JC877 at 30 

(Archibald) (indicating no comparable sales could be located because “the market has no notice 

of the government’s right to ‘occasionally’ inundate the properties”); PX-JC886 at 23 (Deal)

(“We performed an exhaustive search and were unable to confirm transactions of comparable 

single-family residential properties similarly encumbered.”); PX-JC897 at 105 (Bell) (“[T]here is 

a lack of general awareness regarding the flowage easement.”). 

Mr. Archibald instead referenced data and studies on how flooding and flowage 

easements affect property value. See, e.g., PX-JC881 at 33. Mr. Archibald consulted a chart 

devised by Donald Sherwood to determine the diminution in value attributable to the flowage 

easement itself. Id. at 33-34. He then considered the repair cost estimates submitted by DeFacto 

and Matison to assess the total diminution to property value in the after-taking, uncured 

condition. Id. at 35-36. He concluded that the government’s taking caused a diminution in the 

fair market value between 85-95% in the single-family home properties that experienced 

structural flooding—the Banker, Burnham, and Micu residences. Id.; see also Pls.’ Pre-Trial 

Mem. at 24. He concluded that the Sidhu downstairs unit’s entire value had been taken and 

applied a 99% diminution factor. PX-JC883 at 33. Even though the upstairs unit was not 

flooded, he applied a 51% diminution factor because the flowage easement burdened common 

areas of the condominium complex. PX-JC884 at 36. Because there was no structural flooding 

on Ms. Popovici’s property and only 55.9% of her property was subject to the flowage easement, 

Mr. Archibald applied a diminution factor of 51%. Pls.’ Pre-Trial Mem. at 24, PX-JC882 at 28-

34. 

For the Sidhu condominiums, Mr. Archibald also applied this diminution factor to his 

before-taking figures under the income approach. PX-JC884 at 36.

Loss Determination and a spreadsheet titled Hurricane Safe Harbor Calculations 09/2017.xlsx. 

See DX1990 at 2. Safe Harbor provisions allow taxpayers to calculate tax deductions using a 

standardized formula. Tr. 887:2-8 (Ward). This cost index table helps individuals calculate the 

Harvey-related losses that the taxpayer can deduct from his or her taxable income.
12

Mr. Archibald calculated Mr. Holland’s leasehold interest to be $3,300 by multiplying 

Mr. Holland’s leasehold advantage8 by six—the number of months remaining on his lease. Pls.’ 

Pre-Trial Mem. at 25. 

Mr. Deal also did not base his after-taking appraisals on a direct sales comparison. 

Instead, he first determined the maximum value remaining after the taking based on various 

market studies, a literature review, and research in reservoir databases. See, e.g., PX-JC888 at 

17; PX-JC889 at 17-18; PX-JC890 at 15-16. He then determined the immediate compensable 

damage to improvements on the test properties under a modified sales-comparison approach and 

a cost-comparison approach. Under the modified sales-comparison approach, Mr. Deal analyzed 

diminution in value suffered by comparable properties that were sold in an un-remediated state. 

See, e.g., PX-JC886 at 83-84 (Banker); PX-JC887 at 84-86 (Burnham); PX-JC888 at 79-82

(Micu); PX-JC889 at 77-79 (Popovici); PX-JC890 at 79-81 (Sidhu 603); PX-JC891 at 80-82

(Sidhu 604). In the cost-comparison approach Mr. Deal considered the construction cost 

estimates submitted by Matison Construction Estimating and DeFacto Consulting Group, and, as 

a third alternative, generated safe harbor numbers using Revenue Procedure 2018-09. See, e.g.

PX-JC886 at 85-86 (Banker); PX-JC887 at 86-88 (Burnham); PX-JC888 at 83-85 (Micu); PXJC889 at 79 (Popovici);

9 PX-JC890 at 81-83 (Sidhu 603).10

Mr. Deal then selected a figure within the cost range established by these measures and 

subtracted it from the maximum market value remaining after the taking to determine the 

diminution value. See, e.g., PX-JC886 at 86-87 (Banker); PX-JC887 at 87-88 (Burnham); PXJC888 at 84-85 (Micu); PX-JC889 at 79-80 (Popovici); PX-890 at 83 (Sidhu 603); PX-891 at 82 

(Sidhu 604). Mr. Deal testified that the Banker home diminished by 66%, PX-JC886 at 87, the 

Burnham property by 91%, PX-JC887 at 88, and the Micu home by 77%, PX-JC888 at 85. See 

also Pls.’ Pre-Trial Mem. at 23. Mr. Deal’s market research led him to conclude that the Corps’

easement diminished the Popovici property’s value by 17%. PX-JC889 at 80. Mr. Deal found 

diminutions in value of 94% and 17% for Sidhu units 603 and 604, respectively. PX-JC890 at 

83; PX-JC891 at 83. 

Dr. Randall Bell, a licensed real estate appraiser, computed a diminution percentage. Tr. 

1821:15 to 1822:18. Dr. Bell determined that “market resistance” to purchasing a property with 

8 Mr. Archibald used Mr. Holland’s leasehold advantage, $550, because he determined 

that Mr. Holland’s monthly rental payment, $1,200, was under-market, which Mr. Archibald 

determined to be $1,750. Tr. 1948:6 to 1949:14 (Archibald). 

9 For the Popovici structures Mr. Deal considered only the estimate submitted by 

Matison. 

10 Because the cost estimate for repairs to the Sidhu downstairs unit “far exceed[ed] the 

Maximum Remaining Market Value of the property,” Mr. Deal found the taking resulted in a 

complete economic loss of the improvements and determined the after-taking value by applying 

Mr. Sidhu’s and his sister-in-law’s 0.9% undivided interest appurtenant in 603 to the land’s value 

after the taking. See PX-JC890 at 81-83.


15

the Sidhu properties. DX1006 at 11623-37 (Sidhu Unit 603); DX1007 at 11708-22 (Sidhu Unit 

604). 

To ensure the comparisons were precise, Mr. Lucco then adjusted his valuation where 

appropriate to reflect differences in the comparable sales he selected or, alternatively, explained 

why no adjustment was necessary. See, e.g., DX1005 at 11555-57 (Popovici) (considering, for 

example, adjustments reflecting differences in the room count, area of above-grade, finished 

living space that was air-conditioned, car storage, exterior amenities, and construction quality).

Defendant contends that the market is aware of “the conditions of the easement” because 

it knew of the flooding caused by Harvey and “the easement is based on the extent of actual 

flooding behind the dams during the Harvey event.” See Def.’s Pre-Trial Mem. at 4-5, ECF No. 

507. The government relies on publicly available maps of the Harvey flood pool, seller’s 

disclosures, and social and news media coverage of the flooding. See id. at 19.

Mr. Lucco concluded the market was aware of the easement’s conditions after surveying 

various sources “such as media reports, USACE reports and meetings, public meetings, litigation 

outreach, online resources, flood-related closures, professional knowledge, [p]laintiffs’ 

[u]pstream takings claims, flood insurance, Multiple Listing Service (MLS) listings, and seller’s 

disclosures.” DX1001 at 11790-91, ¶ 66. 

While plaintiffs focused on whether sellers checked the box on the disclosure form 

indicating the existence of an unrecorded easement, the government focused on whether sellers 

disclosed prior structural or property flooding, flooding caused by the failure or breach of a 

reservoir, or flooding caused by natural events elsewhere on the form. See Tr. 2820:10 to 

2821:10 (Bell); see generally JX1127 (cataloguing local MLS listings). Indeed, many sellers of 

properties subject to the court’s easement did indicate the property had flooded during Harvey

without disclosing an unrecorded easement. See, e.g., DX1676 at 49000; PX-JC1201 at 2-3 

(disclosing previous structural and property flooding and that the unit flooded completely “from 

Addicks Reservoir overflow during Hurricane Harvey”); PX-JC1189 at 2-3 (disclosing flooding 

“due to hurricane Harvey aftermath” and “release [sic] of water from Barker Dam”). Defendant 

also produced MLS real estate listings containing information about flood history and risk. See, 

e.g., DX1021 at 12800 (E.g., “[t]his house was flooded during Hurricane Harvey.”); id. at 12804 

(“[H]ome did flood in Harvey due to reservoir and owner has mold remediation certificate.”). 

Moreover, public-facing maps of the Harvey flood pool were available on the Harris 

County Flood Control District website during and after Harvey. Tr. 556:22 to 557:14 (T. Ward). 

The maps illustrated which areas would be flooded depending on the water elevation in the 

Addicks and Barker Reservoirs. DX1356; DX1357; Tr. 632:11-24 (T. Ward). Maps depicting 

the flood pool were also published in the Texas Tribune less than two months after Harvey. See

DX1080 at row 1500; Neena Satija and Kiah Collier, Houston officials let developers build 

homes inside reservoirs. But no one warned buyers., The Texas Tribune (Oct. 12, 2017), 

https://apps.texastribune.org/harvey-reservoirs/. 

Defendant also accounted for repair costs necessary to restore the test properties. Mr. 

John McReynolds estimated the repair costs under the government’s estimated level of flooding 

that would have occurred even without the Addicks and Barker dams. He generated two sets of 
16

figures, one that accounted for upgrades and depreciation and one that did not. See DX1097 at 

12156-58.

In formulating his opinions, Mr. McReynolds first determined each property’s condition 

“immediately prior to the loss” and the reasonable repairs necessary to restore the property to 

that condition. Tr. 2415:13-22 (McReynolds). Mr. McReynolds entered this scope of work into

Xactimate to estimate the price of materials at the time the work would be performed. Tr. 

2416:16-25 (McReynolds). Finally, before writing his report, Mr. McReynolds applied his 

professional judgment to adjust the resulting estimate to match unique features of the properties 

in question and account for economies of scale impacting the work to be performed. Tr. 2418:3-

18 (McReynolds).

Defendant’s after-taking valuation was also based on the direct sales comparison 

approach. Mr. Lucco provided an after-taking valuation for each property in its damaged 

condition. For the properties that suffered structural flooding—Banker, Burnham, Micu, and 

Sidhu—Mr. Lucco also estimated the after-taking value according to their repaired condition.14 

He used the same search parameters to select comparable properties but focused on sales 

occurring after August 30, 2017. See DX1002 at 11215, 11250 (Banker), DX1003 at 11321, 

11375 (Burnham), DX1004 at 11443, 11487 (Micu), and DX1006 at 11623, 11649 (Sidhu 

603).15

Except for the downstairs Sidhu unit discussed infra, Mr. Lucco determined the aftertaking value for the properties in their damaged state by searching for comparable properties that 

had suffered similar flooding. See DX1002 at 11231 (Banker); DX1003 at 11345 (Burnham);

DX1004 at 11462 (Micu); DX1005 at 11571 (Popovici);

16 DX1007 at 11734 (Sidhu 604). Each 

14 Mr. Lucco did not calculate the after-taking repaired values of the Popovici and Sidhu 

upstairs properties because “there was no interior structural flooding of these properties requiring 

repairs.” Def.’s Pre-Trial Mem. at 22. The government contends that the after-taking value 

should be assessed based on the properties in their damaged condition if structural repairs are 

deemed non-consequential and should be assessed based on the repaired condition if repairs are 

deemed consequential damages, which it urges must not be included in a just compensation 

award. Def.’s Post-Trial Mem. at 26, n.40. 

15 For both Sidhu units, Mr. Lucco also conducted an income approach analysis to assess 

the after-taking value of the properties as renovated. DX1006 at 11664 (Sidhu 603), DX1007 at 

11749 (Sidhu 604). For the downstairs unit, the income approach yielded a range of $52,706-

58,667, DX1006 at 11665, and for the upstairs unit, $48,094-53,533. DX1007 at 11750. While 

Mr. Lucco took the income approach estimates into consideration, he gave most weight “to the 

[s]ales [c]omparison [a]pproach as it best represents the actions of buyers and sellers in the 

marketplace.” DX1006 at 11666, DX1007 at 11751. 

16 Because the Popovici property suffered site but not structural flooding except for the 

garage, Mr. Lucco looked for comparable sales for property that had “site flooding . . . as 

opposed to structure flooding.” Tr. 2287:20 to 2288:3 (Lucco). Mr. Lucco testified, however, 

that he based this information on GIS mapping and aerial imagery and not on information from 

the listing agents for those comparable property sales. Tr. 2308:5 to 2310:8 (Lucco). 
17

of these comparable properties for the Banker, Burnham, and Micu properties had also suffered 

structural flooding, and Mr. Lucco applied a seven dollar per square foot downward adjustment 

to the first floor living spaces to reflect the fact that comparable “sales of damaged properties 

reflect[ed] some work completed after flood waters receded, e.g., removal of wet materials, such 

as sheet rock, insulation, flooring.” See, e.g., DX1002 at 11235 (Banker); DX1003 at 11351 

(Burnham), and DX1004 at 11467 (Micu). For the Sidhu upstairs unit, Mr. Lucco made a 

deduction to account for a special assessment that condominium owners had to pay to cover 

damage to the common areas. Tr. 2290:16-23 (Lucco).17 In appraising the Popovici property, 

Mr. Lucco considered “a small amount of repairs associated with the garage.” Tr. 2285:15 to 

2287:5 (Lucco).

Regarding the Sidhu downstairs unit’s after-taking damaged value, in his view there were 

insufficient sales of comparable condominium units. DX1006 at 11669 (Sidhu 603). 

Accordingly, Mr. Lucco appraised the unit’s value by deducting the estimated renovation costs

from the after-taking renovated value. Id. at 11670. He estimated the property’s renovation 

costs to be $40,000 by multiplying the costs Mr. Sidhu submitted by a factor between 1.5 and 2 

times the repair costs to reflect the risk an investor would associate with a renovation project. 

Id.; see also Tr. 2292:21 to 2294:10 (Lucco) (describing how he calculated the after-renovated 

value). 

The below table summarizes Mr. Lucco’s appraisal conclusions:

Before 

Value

Diminution 

From 

AfterDamage 

Scenario

AfterTaking 

Damaged 

Value

Diminution 

From 

AfterRepaired 

Scenario

AfterTaking 

Repaired 

Value

Banker $510,000 48% $265,000 13% $445,000

Burnham $175,000 60% $70,000 none $185,000

Micu $260,000 40% $155,000 6% $245,000

Popovici $605,000 1% $600,000 n/a n/a

17 Plaintiffs also claim a $1,079.98 assessment for the special assessment the homeowners 

association (HOA) charged Mr. Sidhu for the downstairs unit, JX1172, but Mr. Sidhu testified 

that he received a $1,200 reimbursement from the HOA that was related to the special 

assessment. Sidhu-JC62; Tr. 1736:1-5 (Sidhu).
18

Sidhu 

Upstairs

$50,000 2% $48,900 n/a n/a

Sidhu 

Downstairs

$50,000 52% $23,900 none $63,900

3. Personal property and fixtures valuation.

Plaintiffs also request compensation for personal property damaged when the government 

took the permanent flowage easement. In general, plaintiffs calculate this amount by multiplying 

each item’s replacement cost by a depreciation rate that accounts for how age affects the item’s

value over time. See PX-JC867 at 3. Plaintiffs each catalogued their personal property,

18 and 

their expert, Mr. Lozos, calculated and applied a depreciation rate. See id. at 2-4; Tr. 1773:20 to 

1774:2 (Lozos). Mr. Lozos arrived at the depreciation value by referring to four different 

depreciation guides, including as his primary reference the Joint Military Industry Depreciation 

Guide. PX-JC867 at 4-7; 1774:11-19 (Lozos). He determined the actual cash value of the 

Banker personal property to be $90,592.34, Burnham to be $21,088.63, Micu to be $43,984.85, 

Popovici to be $7,193.41, and Holland to be $79,087.52.19 PX-JC867 at 6; see generally id.

App. II (itemizing personal property values and applying depreciation to determine award 

amount). Mr. Sidhu provides receipts for replacement appliances in the downstairs unit totaling 

$1,900.40. Sidhu-JC52; Sidhu-JC89.

Aside from arguing that plaintiffs’ personal property losses are non-compensable 

consequential damages, the government contests plaintiffs’ personal property valuation on 

various grounds. In general, the government argues that plaintiffs have failed to meet their 

burden of establishing losses and corresponding values for all the personal property claimed. 

Def.’s Post-Trial Mem. at 79. In particular, the government challenges plaintiffs’ inclusion of 

various costs as personal property costs; plaintiffs’ assertion that certain property was damaged 

by Harvey; and plaintiffs’ valuation of expensive items. After adjusting for these costs, 

defendant contends the Bankers suffered $16,527.41 in personal property losses; Holland, 

$37,957.52; Micu, $42,184.85; and Popovici and Sidhu no compensable losses. See id. at 90. 

The government offers no adjustment to Ms. Burnham’s total claimed personal property loss of 

$21,088.63. See id.

The parties contest whether landscaping constitutes personal property separate from real 

property. The Bankers claim $8,500 in yard landscaping and sod. PX-JC867 App. II at Banker 

18 Tr. 91:17-18 (Burnham) (“All of these items right here were owned by me.”); Tr. 

115:14-20 (Micu) (indicating all the personal property lost was shared with her husband).

19 Elsewhere plaintiffs claim Mr. Holland suffered $91,837.52 in personal property loss, 

adding $12,750 for damage to his vehicles, Ms. Popovici $8,283.69, and Mr. Sidhu $4,195.31. 

See Pls.’ Post-Trial Br. at 40.
19

1.20 Ms. Popovici likewise provides two invoices, bearing 2020 dates, for landscaping services

totaling $11,559.74. JX1170; JX1171. 

The parties further disagree on whether the plaintiffs have proven that personal items 

were damaged by the taking, including above-flood-level property and the Popovicis’ car, and 

whether Ms. Micu had an obligation to redeem rather than dispose of up to $1,800 in mutilated 

currency. Specifically, the Bankers claim $162.50 for a microwave located above the flood 

level, as well as a refrigerator valued at $285 that the Bankers did not have before Harvey. PXJC867 App. II at Banker 1-2; Tr. 775:15 to 776:14 (Banker). 

Ms. Popovici submits evidence that repairs to her garage door frame cost $806.11, 

JX1165, and repairs to the garage door’s torque, part of the mechanism that opens the garage 

door, for $595.38, JX1167; Popovici Resp. to Req. for Admis. No. 14, ECF No. 534-36 Tab 40

at 5. Ms. Popovici further claims $2,390.97 for cleaning services performed on her home’s 

heating, ventilation, and air conditioning system in November 2018. JX1168; see also 2019

Liability Trial Tr. 822:2-23 (Popovici) (testifying that the units themselves were not damaged by 

flooding).21 In addition, Ms. Popovici seeks to recover $1,239.11 in repair costs associated with 

flushing brake fluid and replacing the starter in her Toyota Sequoia. JX1169; Tr. 824:25 to 

825:18 (Popovici) (excluding from her claim $25.50 incurred for a state inspection). She 

testified that these repairs were made necessary because her husband drove the car off the 

property through flooded streets during Harvey. Tr. 824:13-24 (Popovici).

Ms. Micu’s claims for damaged currency involve $1,000 in cash and a piggybank 

containing an unknown amount of additional money, which Mr. Lozos depreciated to $800. See 

PX-JC867 App. II at Micu 7, 9. In addition to lost cash, Ms. Micu also claims losses for “piles” 

of personal property that Ms. Micu disposed of without confirming whether the items were 

damaged during Harvey or salvageable. Tr. 112:17 to 113:12 (Micu). 

The parties also contest whether plaintiffs have established the depreciated value of 

certain high-value items, namely antiques, heirlooms, and specialty items claimed by Mr. 

Holland and cars owned by the Bankers. Mr. Lozos testified that antiques “need more 

documentation than just what’s claimed” but did not receive any supporting documentation for 

plaintiffs’ antique claims. Tr. 1798:5-18 (Lozos). As a result, Mr. Lozos was unable to form an 

opinion on the antique status or depreciation applicable to plaintiffs’ antiques. Tr. 1799:9-21 

(Lozos); PX-JC867 at 5 (“[T]he determination of what is or isn’t ‘antique’ is beyond the scope of 

this assignment.”). 

Mr. Holland claims damage to antiques, such as a dining hutch that he valued at $3,000, a

dining room table and chairs valued at $5,000, a sterling silver set valued at $500, and a sewing 

machine valued at $1,500. PX-JC867 App. II at Holland 4, 6-7, 11. He also claims to have lost 

various specialty items including a Kiss Guitar signed by Paul Stanley valued at $1,000, a World 

Wrestling Entertainment championship belt valued at $450, and an original 1970’s Star Wars 

20 The page numbering in PX-JC867 Appendix II starts over for each plaintiff. 

“Banker 1” refers to the first page in the section of Appendix II devoted to the Bankers’ personal 

property claims. 

21 “2019 Tr.” refers to the transcript of the 2019 liability trial in this case.
20

collection valued at $15,000. Id. He further claims $1,430 in items described as “Hobby” and 

“Art, Hobbies & Collectibles,” and “Collections.” Holland-JC28 at 155-56. 

Mr. Holland seeks another $11,950 for a 2016 Kia Soul and $800 in repairs to his 1999 

Ford F-150. Holland-JC28 Resp. to Written Dep. 59. These figures reflects the cars’ ages and 

mileage. Id. Mr. Archibald determined the Kia Soul’s retrospective value by speaking with an 

automobile broker, who in turn gathered price information from a dealership. Tr. 2003:12 to 

2004:10 (Archibald). For his truck, Mr. Holland claims $300 for necessary supplies and $500 

for ten hours of his own labor. Holland-JC28 Resp. to Written Dep. 59.

Mr. Lozos likewise did not apply a depreciation adjustment to the amounts the Bankers’ 

claimed for each of their two cars, which were the cars’ purchase prices. PX-JC867, App. II at 

Banker 1. The Bankers seek $38,117.43 for a Cadillac acquired in 2012 and $27,000.00 for a 

Murano acquired in 2010. Id. 

4. Displacement costs.

The government’s taking of a permanent flowage easement also displaced plaintiffs 

Banker, Burnham, Micu, and Holland from their homes. These plaintiffs lost the ability to 

occupy their homes and incurred costs associated with securing alternate housing. As part of 

their real property appraisals, Mr. Deal and Mr. Archibald estimated the test properties’ monthly 

rental value. Both experts determined the test properties’ monthly rental rate by comparing each 

to comparable rental transactions. Plaintiffs Burnham and Micu also provided lease agreements 

to establish the alternative housing costs they incurred. 

After flooding caused the Bankers to evacuate their home, they lived with Mr. Banker’s 

parents until they could safely return in the “last week of April or first of May.” Tr. 763:2-10 (T. 

Banker). Mr. Deal estimated the monthly rental value of the Bankers’ home to be $3,000, and 

Mr. Archibald estimated it to be $3,300. Pls.’ Post-Trial Br. at 38.

Ms. Burnham evacuated her home on August 25, 2017 and never lived there again. Tr. 

46:25 to 47:6 (Burnham). Ms. Burnham stayed with her now mother-in-law and in a hotel paid 

for by FEMA until she leased a new apartment on October 28, 2017. Burnham-JC38 at 133. 

She paid $161.29 to rent the unit for the remaining days in October, then $1,266.5022 per month 

thereafter. Id. at 140. Ms. Burnham determined that she did not have the money to repair her 

home, so she sold it for $80,000 on February 5, 2018. See Burnham-JC94; Tr. 59:19-23 

(Burnham). She moved out of the apartment she was renting and into her new home on April 14, 

2018. See Tr. 58:25 to 59:2, 63:4-12 (Burnham). Mr. Deal estimated the monthly rental value of 

Ms. Burnham’s property subject to the easement to be $1,500, and Mr. Archibald estimated it to 

be $1,700. Pls.’ Post-Trial Br. at 38.

During Harvey, Ms. Micu sought refuge in a hotel in Dallas. Tr. 102:16-20 (Micu). 

When she returned to her home one to two weeks after Harvey, she realized she and her family 

could not move back in until the property was repaired. Tr. 102:21 to 103:15 (Micu). Ms. Micu 

relocated to a rental apartment from September 6, 2017 to August 31, 2018, when she and her 

22 This figure represents $1,250 per month in rent plus $15.00 in pet rent and a $1.50 

monthly pest fee. 
21

family returned to their home. Tr. 106:16 to 107:6, 123:5-8 (Micu). She paid $2,332.50 for the 

remainder of September 2017 and $2,799 for each month thereafter. Micu-JC19 at 4950. Mr. 

Deal estimated the monthly rental value of Ms. Micu’s home to be $1,875 and Mr. Archibald 

estimated it to be $1,900. Pls.’ Post-Trial Br. at 38.

Mr. Sidhu seeks to recover costs associated with re-leasing the condominium units and 

lost rent after Harvey displaced his tenants. For the upstairs unit, 604, Mr. Sidhu claims $127 in 

lost rent because Harvey displaced the tenant for a few days. JX1172. 

Mr. Sidhu’s claims for the downstairs unit, 603, are higher. Due to flooding caused by 

Harvey and subsequent renovations, the downstairs unit was unoccupied between September 1, 

2017 and July 27, 2018. See Sidhu-JC62. He accordingly accounted for $7,183 (eleven months 

at $653 per month) in lost rent when calculating his damages. From this lost rent, Mr. Sidhu 

subtracts an HOA reimbursement of $1,200 and $129 for an “other adjustment.” Id. To this 

ultimate net rental loss of $5,854, Mr. Sidhu adds $313.43 he paid in electric utilities that 

accrued while the unit was vacant, JX1172; Tr. 1738:11-21 (Sidhu), and $200 in fees he paid an 

agent to show the apartment to obtain a new tenant, Tr. 1739:3-7 (Sidhu). Finally, Mr. Sidhu 

claims $3,001.53 in travel, hotel, and food costs, $1,774.30 of which he incurred in traveling 

from his home in California to testify at the liability trial and the remaining $1,227.23 in 

traveling to Houston to oversee repairs to the unit. Tr. 1739:19 to 1740:22 (Sidhu). 

5. Plaintiffs’ FEMA benefits.

The federal government administers relief programs that help those affected by federally 

declared disasters. FEMA pays hotels to house individuals who are displaced, see Tr. 2694:12-

21 (Glasschroeder), and issues direct payments to individuals for home repairs, critical needs

(i.e., life-sustaining items including food, first aid, and hygiene items),

23 and personal property 

assistance for repairs or replacement. See, e.g., DX1288; DX1977. FEMA assistance is 

available when the President declares that a major disaster has occurred and federal assistance is 

needed to supplement efforts by state and local governments. See 42 U.S.C. § 5122. Individuals 

within the disaster zone are eligible if they are a U.S. citizen, noncitizen national, or a qualified 

alien, they register within the application period, and FEMA verifies their request for disasterrelated damages. Tr. 2704:12 to 2705:19 (Glasschroeder). FEMA requires those within a 

special flood hazard area, as designated by FEMA, to obtain and maintain flood insurance on 

their property. See Tr. 2693:18 to 2694:7 (Glasschroeder). FEMA pays for the first three years 

of flood insurance. Id.

President Trump issued a disaster declaration (No. 4332) for the State of Texas on 

August 25, 2017. Plaintiffs Burnham, Micu, Banker, and Holland each received FEMA benefits. 

Ms. Burnham and her then fiancé received $27,957.65 in direct payments comprised of $4,618 in 

rental assistance, $19,060.06 for home repairs, and $4,279.59 for personal property repair and 

replacement. DX1288. FEMA also paid $7,897.50 directly to a hotel to provide Ms. Burnham

transitional shelter. Id. Ms. Micu and her husband received $30,656.46 in direct payments: $500 

for critical needs, $12,366 in rental assistance, $17,540.47 for home repairs, and $249.99 for a 

dehumidifier. DX1980. FEMA also directly paid a hotel $155.60 to shelter Ms. Micu. Id. The 

23 FEMA, Individual Assistance Program and Policy Guide 148 (January 19, 2019). 
22

Bankers received $23,992.89 in direct FEMA payments: $21,256.89 for home repairs and $2,666 

for two months of rental assistance. DX1287. Mr. Holland received $9,959.67 in direct 

payments: $500 for critical needs, $3,546 in rental assistance, and $5,913.67 to repair or replace 

personal property. DX1977. FEMA also paid $4,887.09 directly to a hotel to house Mr. 

Holland. Id.

Dan Leistra-Jones, the government’s expert in economic and financial analysis, testified 

regarding “whether the plaintiffs received payments or benefits from the United States that relate 

directly to the losses they are claiming in this matter.” Tr. 2718:25 to 2719:5 (Leistra-Jones). 

Mr. Leistra-Jones classified home repair assistance and miscellaneous assistance awards as 

offsets to plaintiffs’ home repair costs; personal property assistance and critical needs assistance 

awards as offsets to plaintiffs’ personal property losses; and rental assistance payments as offsets 

to their claimed displacement expenses. Tr. 2728:11-21 (Leistra-Jones).

C. Post-trial Procedures

At the conclusion of the just compensation trial, the court established a schedule for posttrial briefing and closing arguments, and the parties filed their post-trial briefs accordingly. The 

parties presented closing arguments on September 29, 2022 in Washington, D.C. 

STANDARDS FOR DECISION

The Takings Clause of the Fifth Amendment provides that “private property [shall not] 

be taken for public use, without just compensation.” U.S. Const. amend. V. A just 

compensation award must be “‘just’ both to an owner whose property is taken and to the public 

that must pay the bill[.]” United States v. Commodities Trading Corp., 339 U.S. 121, 123 

(1950). The proper measure of just compensation enforces this balance: the property owner “is 

entitled to be put in as good a position pecuniarily as if his property had not been taken. He must 

be made whole but is not entitled to more.” Olson v. United States, 292 U.S. 246, 255 (1934). 

This measure “derives as much content from the basic equitable principles of fairness as it does 

from technical concepts of property law.” United States v. Fuller, 409 U.S. 488, 490 (1973) 

(citations omitted). Just compensation is an “objective standard that disregards subjective 

values” ascribed by the owner. United States v. 50 Acres of Land, 469 U.S. 24, 35 (1984). The

just compensation award includes interest that accrues from the date of the government’s 

acquisition until the date of compensation. See Tech. Coll. of the Low Country v. United States, 

147 Fed. Cl. 364, 367 (2020).

Just compensation is determined according to a before-and-after approach that gauges

“the difference in the market value of the property taken before and after the taking.” Potts v. 

United States, 130 Ct. Cl. 88, 91 (1954). In cases involving a partial taking, just compensation 

“may [also] include the diminished value to the remaining portion of land.” Ideker Farms, Inc. 

v. United States, 151 Fed. Cl. 560, 607 (2020). The plaintiff must show the quantum of damages 

claimed “to a reasonable approximation.” Arkansas Game & Fish Comm'n v. United States, 736 

F.3d 1364, 1379 (Fed. Cir. 2013). Put differently, although damages must be shown “to a 

reasonable certainty,” the plaintiff “need not prove the precise amount of damages.” Id. 

Additionally, plaintiffs’ damage calculation can be approximate if the defendant’s “wrong...

preclude[s] exact ascertainment of the amount of damages,” but this approximation still must be 
23

more than speculative. Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 698 (5th Cir., 

1975). A court “‘confronted with conflicting evidence and relatively extreme valuations’ from 

the plaintiff and the Government” may form a just compensation award independent from the 

parties’ formulations. Gadsden Indus. Park, LLC v. United States, 956 F.3d 1362, 1372 (Fed. 

Cir. 2020), cert. denied, 141 S. Ct. 2795 (2021) (quoting Otay Mesa Prop., L.P. v. United States, 

779 F.3d 1315, 1326 (Fed. Cir. 2015)).

“[N]ot all losses suffered by the [property] owner are compensable under the Fifth 

Amendment.” United States ex rel. Tennessee Valley Auth. v. Powelson, 319 U.S. 266, 281 

(1943). Specifically, no compensation is due for damage or destruction that is the “unintended 

incident of the taking of land.” Mitchell v. United States, 267 U.S. 341, 345 (1925). Whether 

the loss is compensable turns on whether the loss is an “incidental or indirect consequence[] of a 

taking of other property” or a “direct product[] of the actual invasion or taking of the property 

involved.” R.J. Widen Co. v. United States, 174 Ct. Cl. 1020, 1028 (1966). Accordingly, so long 

as the owner is deprived of a piece of property’s use “not by a negligent act, but as the natural 

consequence of the deliberate, intended exercise of an asserted power,” it makes “no difference” 

whether the property is personal or real property. Causby v. United States, 109 Ct. Cl. 768, 772 

(1948). So too if a business or its assets are taken as a natural consequence of government 

action. See Kimball Laundry Co. v. United States, 338 U.S. 1, 14-15 (1949) (holding just 

compensation includes a business’s “demonstrable loss of going-concern value,” the value 

contributed by non-physical assets like management or client development skills); Todd v. 

United States, 155 Ct. Cl. 87, 98 (1961) (awarding plaintiffs the depreciated value of fishing 

equipment used in a fishing business conducted on property taken by the government).

Notably, a plaintiff injured by a taking is not entitled to double recovery. See Innovair 

Aviation, Ltd. v. United States, 83 Fed. Cl. 498, 502 (2008) (adopting one approach to valuing an 

asset because the other would “give Plaintiff a double award”); Adams v. United States, 230 Ct. 

Cl. 628, 631-32 (1982) (considering compensation the state government paid for easements on 

the same land that the federal government took “to avoid double recovery by plaintiffs”). “As 

the finding of any such offset results in the reduction of a just compensation award, the 

government bears the burden of proving the applicability of any alleged offsetting benefit and its 

amount.” In re Upstream Addicks & Barker, 159 Fed. Cl. 512, 526 (2022). The government 

fails to carry this burden, for instance, if it provides only “a listing of the public benefits that 

flow from nearly all flood control projects.” See City of Van Buren v. United States, 697 F.2d 

1058, 1062 (Fed. Cir. 1983). The government must establish that the benefit arose “directly and 

proximately to the remaining land as a result of the public work on the part taken, due to the 

particular relation of the land in question to the public work.” Hendler v. United States, 175 F.3d 

1374, 1380 (Fed. Cir. 1999).

ANALYSIS

The court has held that the government’s taking encompassed both “a permanent flowage 

easement” and “plaintiffs’ personal property, fixtures, and improvements damaged or destroyed 

by [flooding attributable to Harvey].” In re Upstream Addicks & Barker, 148 Fed. Cl. at 278. 

Accordingly, the court’s just compensation award accounts for three categories of loss caused by 

the government’s easement: (1) diminution in real property value including damage to attendant 

structures, (2) damage or destruction of personal property, and (3) dislocation costs. The first 
24

two categories constitute just compensation for the taking itself, the last for dislocation that was 

the direct and natural result of the government’s physical taking. 

In the foregoing analysis, the court first determines the extent to which the government’s 

easement diminished the value of plaintiffs’ real property. This valuation is a factor of the 

easement’s scope, the likelihood of future flooding under the easement, and the cost of repairing 

damage to structures taken by the government. Next, the court calculates the just compensation 

award for the government’s taking of plaintiffs’ personal property. The court identifies and 

applies deductions reflecting plaintiffs’ failure to prove certain items’ value and that items were 

taken. Then, the court concludes that housing and dislocation costs that plaintiffs incurred while 

the properties were uninhabitable are compensable because they were the direct and natural 

result of the government’s takings. To prevent duplicative recovery, the court then reduces the 

above awards to account for compensation plaintiffs have already received from FEMA to repair 

their homes, replace personal property, and obtain substitute housing until their homes were 

repaired. Finally, the court determines the interest necessary to make plaintiffs whole for the 

delay between payment and the government’s taking. 

A. Just Compensation

1. Real property.

The government has a “categorical duty to compensate the former owner” for property it 

physically takes. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 

302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951)). The 

flowage easement taken here constitutes a physical, permanent partial taking. See United States 

v. Cress, 243 U.S. 316, 328-29 (1917). Accordingly, the government must pay just 

compensation for the property interest it has taken and the “depreciation which results to the 

remainder in its use and value.” United States v. Grizzard, 219 U.S. 180, 185 (1911). While the 

Yellow Book binds only the government’s appraiser,

24 the parties agree that the Yellow Book’s 

before and after approach to valuation is proper. Under the before and after approach, the just 

compensation award is the difference between the property’s market value without the easement

and the property’s market value with the easement plus any diminution to the remainder 

property’s value. Yellow Book at 37, § 1.7.1. 

Market value is the amount for which the property would have sold on the effective date 

from a “willing and reasonably knowledgeable seller to a willing and reasonably knowledgeable 

buyer.” Yellow Book at 95, § 4.2.1 (emphasis omitted). A reasonably knowledgeable buyer or 

seller is not “all-knowing,” but rather has the knowledge possessed by the “typical” willing 

buyer or seller. Fla. Rock Indus., Inc. v. United States, 18 F.3d 1560, 1566 (Fed. Cir. 1994). 

Regarding easements specifically, market participants can be reasonably informed for the 

purposes of a direct sales comparison appraisal even if the easement’s exact language has not 

been recorded. See Vaizburd v. United States, 384 F.3d 1278, 1283-85 & n.5 (Fed. Cir. 2004)

24 “The Yellow Book applies only to appraisers hired by the federal government for 

condemnation purposes; it is not mandatory with respect to appraisers not hired by the 

government.” Hardy v. United States, 141 Fed. Cl. 1, 32 (2018). 
25

(upholding an appraisal notwithstanding the absence of easement language due to the court 

finding an easement and determining just compensation simultaneously).

While the parties agree that the before and after approach is proper, they disagree on how 

to resolve two issues that arise when applying the approach to determine the test properties’ 

after-taking value. First, the parties debate the scope of their rights under the easement, which 

bears on how extensively the easement diminishes property value. Second, they contest whether 

the market is aware that the easement exists, which determines whether a direct comparison of 

actual post-Harvey sales in the flood pool accurately captures the properties’ after-taking value. 

These disagreements explain the parties’ divergent after-taking valuations.

Concerning the easement’s scope, the court’s prior rulings specify that the easement 

“leave[s] plaintiffs a fee simple interest in their properties which allows them to continue their 

lawful use subject to the risk of occasional flooding caused by the operation of the Addicks and 

Barker Dams.” In re Upstream Addicks & Barker, 148 Fed. Cl. at 278. This leaves at issue only 

the parties’ rights and obligations “in the event of potential future floods.” See id. 

Plaintiffs’ primary contention is that the government and property owners’ rights are

uncertain because the easement has not been “reduced to express language and recorded.” Pls.’ 

Pre-Trial Mem. at 7. Plaintiffs argue that Texas law will determine the parties’ rights under the 

easement, and that under Texas law the government has an “unrestricted right” to use the 

easement and “prohibit[] the property owner from interfering with the government’s use of the 

easement.” Id. at 4-5. Plaintiffs further contend that the Corps will enforce its policies to the 

maximum extent permissible, and that the Corps’ promises to the contrary are inapposite. Id. at 

7; Closing Arg. Tr. 123:8 to 124:3. In plaintiffs’ view, the government must compensate 

plaintiffs for the expansive rights it obtained via this partial taking. Pls.’ Pre-Trial Mem. at 5.

The government responds that the easement’s scope will be determined by the court’s 

orders, not Texas law. Def.’s Post-Trial Mem. at 43-45. Based on the court’s previous rulings, 

the government argues there is no uncertainty in the easement’s scope. Plaintiffs and their 

successors “retain all development rights and can continue to make all lawful use of these 

properties,” and plaintiffs have not identified state laws that would restrict plaintiffs’ use of their 

properties. Id. at 45. The government maintains that just compensation for the easement should

therefore reflect these allowances for the property owners and not the expansive view of the 

government’s rights that plaintiffs advance. Id at 43-45.

25 

Next, regarding market awareness of the easement, plaintiffs claim that “without a 

written, recorded, final easement, no comparable [after-taking] sales exist or could be found,” so 

post-Harvey sales in the flood pool do not provide reliable evidence of the test properties’ aftertaking value. Pls.’ Pre-Trial Mem. at 16. As evidence of the lack of market awareness the 

25 To resolve and define the easement, the court asked the parties to brief the text of the 

easement, and the parties have done so. See, e.g., Upstream Pls.’ Br. on Easement Language, 

ECF No. 577; Def’s Submission of Proposed Easement Language, ECF No. 578; Upstream Pls.’ 

Resp., ECF No. 579; Def.’s Reply, ECF No. 580. The court has taken the parties’ proposals into 

account, along with the trial testimony in the case, in crafting the text of the comment, which text 

is set out in the Appendix, infra.
26

plaintiffs point to the absence of public-facing FEMA flood insurance rate maps, see Tr. 726:6 to 

727:11 (Wanhanen), the lack of any response from the title insurance industry, see Tr. 462:15 to 

463:4 (Philo), and recent sellers’ general failure to disclose the existence of an unrecorded 

easement, see PX-JC1025 at 22-23. Therefore, in plaintiffs’ view, literature reviews, case 

studies, sales data for properties outside the flood pool, and other indirect information provide 

the only reliable basis for calculating the properties’ after-taking value. See Pls.’ Pre-Trial Mem. 

at 18-19. Plaintiffs also claim the government’s after-taking comparable sales analysis is invalid

because the market was ignorant of the easement, so none of those sales transferred the same 

property interest as the subject properties: fee simple ownership subject to the court-ordered 

flowage easement. Id. at 15-17. 

The government counters that the market is aware of the flood risk, and this awareness 

supports its direct sales-comparison analysis. Def.’s Post-Trial Mem. at 33-40. According to the 

government, “market participants’ awareness of the conditions that the [c]ourt found to 

constitute a taking was enough to use actual sales to determine market value even though there is 

no recorded easement.” Id. at 31-32. Put differently, to know the extent of Harvey flooding is to 

know of the easement. The market’s awareness of the flood risk comes from individuals’ 

“personal, direct experience” with upstream flooding during Harvey, local and national news and 

social media coverage, public meetings and outreach, and school and road closures. Id. at 33, 36. 

The government criticizes plaintiffs for defining market awareness too narrowly and 

ignoring relevant evidence of market awareness. Specifically, it argues that plaintiffs put form 

over substance by distinguishing knowledge of the easement from knowledge of the flood risk. 

See Def.’s Post-Trial Mem. at 42. Additionally, the government claims that plaintiffs’ focus on 

the lack of a recorded easement and sellers’ general failure to check the disclosure form box for 

unrecorded easements is too narrow. It contends that, in addition to the aforementioned sources 

beyond disclosure forms, other fields on the disclosure forms where sellers disclosed flooding 

due to Harvey and the Addicks and Barker Reservoirs, adequately informed the market of the 

easement’s conditions. Id. at 34-37, 60-61. 

The court’s just compensation award for plaintiffs’ real property is informed by the 

atypical nature of the easement and the fact that the market knows of the flood risk even if the 

precise terms of the easement have not been identified until now. See Appendix, infra. The 

court’s past rulings are explicit that this flowage easement is an atypical one. Unlike standard

flowage easements that generally prohibit human habitation and structures, see JX1007 at 8-12 to 

8-14, plaintiffs are allowed “to continue their lawful use subject to the risk of occasional flooding 

caused by the operation of the Addicks and Barker Dams.” In re Upstream Addicks & Barker, 

148 Fed. Cl. at 278. Importantly, because this taking involves “a permanent right to inundate the 

property with impounded flood waters,” it has a greater impact on property value than a 

temporary taking would. See In re Addicks & Barker, 146 Fed. Cl. at 250. This permanence 

also means that plaintiffs cannot recover from the government for any damage caused by future 

flooding up to the elevation of the government’s easement. See id. at 253.

Plaintiffs’ expansive conception of an easement’s scope overlooks the fact that the

government’s rights under this atypical flowage easement are narrower and more qualified than 

they would be under a standard flowage easement. Plaintiffs identify rights that a standard 

flowage easement imparts to the dominant estate. But the extent to which the easement 
27

diminishes plaintiffs’ property value largely turns on the atypical scope of the government’s 

rights and how frequently these rights are likely to be invoked, namely how frequently 

meteorological conditions would cause flooding above government-owned land under the Corps’ 

operating procedures. 

In short, this easement’s effect on property value is tied to the frequency and extent of 

flooding, i.e., how frequently the government will resort to the easement. See In re Upstream 

Addicks & Barker, 159 Fed. Cl. at 522. Plaintiffs contend that the easement has a greater impact 

on property value than flooding because it gives the government the right to flood homes at any 

time for any reason,26 and the pool behind the dams is deliberately engineered to flood and could 

cause flooding that is not limited to natural disasters. PX-JC1025 at 7. The court-ordered 

easement, however, does not confer the right to flood homes “at any time for any reason,” id.,

but only the right to flood “by the operation of the Addicks and Barker Dams,” i.e., when 

meteorological conditions and the Corps’ purpose for the dams so require. In re Upstream 

Addicks & Barker, 148 Fed. Cl. at 278. Admittedly, the Corps’ operating procedures do little to 

limit the frequency of flooding because “the 2012 Water Control Manual, which the Corps 

followed during Harvey, instructs the Corps to operate the dams in a manner consistent with their 

original purpose: to protect downstream property by impounding water in upstream reservoirs.” 

In re Upstream Addicks & Barker, 146 Fed. Cl. at 259. The probability that the meteorological 

conditions necessary for the reservoir pools to exceed government-owned land will occur, 

however, provides a more meaningful limitation on how frequently the government will use its 

easement. 

Neither the parties nor the court can predict for certain how frequently the government 

will use its easement, but the evidence suggests that the frequency of a Harvey-level flooding 

event will be somewhere between the parties’ estimates. Plaintiffs’ experts testified that flooding 

above government land is between a 10- and 20-year recurrence event and flooding to the 

Harvey pool level is between a 35- and 100-year recurrence event. PX-JC873 at 2-3; see also Tr. 

987:5-11 (Beddingfield) (agreeing Harvey is approximately a 20- to 50-year recurrence event). 

But these estimates fail to account for storage capacity information about the reservoirs, Tr. 

2518:18 to 2519:21 (England), and posit recurrence of rain that fell on the reservoirs during the 

observed storms, Tr. 2596:17 to 2597:20 (Keim). In comparison, defendant’s expert 

characterizes Harvey as a 1000-year recurrence event. See Tr. 2045:3-10 (Glaudemans). But 

recent trends suggest that storms and hurricanes on par with Harvey are becoming increasingly 

frequent, and the government fails adequately to account for this increase. See Tr. 2062:16-19 

(Glaudemans) (testifying that two greater-than-thousand-year events occurred within two years); 

JX1013 at II01926565 (stating the need to reduce flood risks within the Buffalo Bayou and 

surrounding areas is driven in part by the “increased frequency of large-scale flooding events”). 

In short, the government understates the frequency of a Harvey-level storm. Similarly large 

storms will likely occur in the future, but it remains uncertain when or how frequently. 

Notwithstanding this uncertainty, the evidence does show that the government will use its 

easement only in the event of a natural disaster. That the President actually declared Harvey and 

Imelda to be major disasters supports this conclusion.

26 Plaintiffs list separately the right to store water inside a house, see PX-JC1025 at 7, but 

this right is encompassed by the right to flood homes at any time circumstances warrant. 
28

Plaintiffs further contend that the easement grants the Corps the rights to prevent new 

construction and to control the plaintiffs’ flood mitigation efforts. PX-JC1025 at 7. But these 

rights are more qualified and narrower than plaintiffs suggest. For one, the court-ordered 

easement preserves the property owners’ rights to continue all lawful uses. In re Upstream 

Addicks & Barker, 148 Fed. Cl. at 278. The Corps understands this to mean property owners can 

inhabit and maintain existing structures on the property. See Tr. 296:7 to 297:9 (Johnson-Muic). 

Moreover, apart from storms, the Corps officials testified that the easement would only be 

enforced if the owners’ actions reduced the storage capacity of the land in question. See Tr. 

164:23 to 165:3 (Johnson-Muic); JX1010 at 3, ¶ 1.5; JX1007 at 8-12, ¶ 8-24. The Corps further 

suggested that the easement’s atypical nature might require it to tolerate even some property

modifications that would reduce the reservoirs’ storage capacity. See Tr. 211:22 to 214:10 

(Johnson-Muic). 

Plaintiffs also include certain dominant estate rights that they have not shown the Corps 

will exercise. These rights include the Corps’ freedom to post signs and enter plaintiffs’ 

property. PX-JC1025 at 7. Plaintiffs presented no evidence that the Corps would post signs or 

that, if the Corps did, posting signs would impact property value. See Tr. 2840:21 to 2841:13

(Bell). Plaintiffs also have not presented evidence on the likelihood that, absent storms, the 

Corps would access properties, how frequently, or how this access would affect property values. 

See Tr. 2839:23 to 2840:18 (Bell). Accordingly, the easement’s scope is narrower than plaintiffs 

contend, and narrower than the scope plaintiffs’ experts used in appraising the test properties’ 

after-taking value. The after-taking value must reflect only those rights that the government 

actually acquired and only to the extent those rights affect the value of plaintiffs’ property.

Turning to market awareness, the typical buyer and seller in the market are reasonably 

aware of the flood risk but not the easement. Knowledge of a flood risk is not the same as 

knowledge of an easement. While an easement can impress its full effect on property’s value

without being recorded, a market participant who is reasonably knowledgeable of a flood risk 

will likely behave differently than one who is reasonably knowledgeable of an easement. 

Indeed, the title industry treats easements and flood risks differently. For instance, a title 

insurance company would likely except from its policy any financial loss attributable to an 

easement, which in turn would cause the loan provider either to increase either the mortgage rate, 

the down payment or both, or deny the loan altogether. Tr. 482:1-19, 487:20 to 488:6 (Philo). 

This would price some buyers out of the market unless the owner lowered the sale price. See Tr. 

469:3-7 (Philo). Because title insurance companies will issue policies to properties within 100-

and 500-year floodplains and lenders will issue mortgages for such properties, an easement’s 

existence negatively affects value independent from and in addition to the property’s flood risk. 

See Tr. 501:12-22 (Philo). 

The market is unaware of the easement but has begun to experience some of the effects 

on property value that will occur once the market learns of the easement. To date, no easement 

has been recorded, title insurers have continued to issue policies for properties sold in the Harvey 

flood pool, see Tr. 462:15 to 463:4 (Philo), and less than one-half percent of people who sold 

homes within the Harvey flood pool after Harvey disclosed the existence of an unrecorded 

easement. PX-JC1025 at 22-23. Although the court has previously indicated that its own prior 

rulings “are sufficient to inform the scope of the easement” even absent the recording of “exact 

easement language,” In re Upstream Addicks & Barker, 159 Fed. Cl. at 524, there is evidence 
29

that price trends for flood-pool properties did not specifically change after the court’s liability 

ruling, see DX1001 at 11896-11900.

27 Taken together this evidence shows the market remains

unaware of the easement’s terms. 

Nevertheless, the market’s knowledge of the test properties’ flood risk indicates that postHarvey sales data informs to some extent the test-properties’ after-taking value. Social and news 

media covered and continues to cover Harvey-related flooding and more general flood risks in 

the Houston area. See generally DX1001 at 11790-11878 (cataloguing the effect recent weather 

events and Harvey specifically had on the market’s awareness of flood risk). Moreover, 

although property owners often use FIRMs to gauge flood risk and none shows the Harvey flood 

pool, other sources have provided public-facing maps of the Harvey flood pool, including the 

Harris County Flood Control District’s website and the Texas Tribune. See Tr. 556:22 to 557:14 

(T. Ward); DX 1080 at row 1500; Neena Satija and Kiah Collier, Houston officials let developers 

build homes inside reservoirs. But no one warned buyers., The Texas Tribune (Oct. 12, 2017), 

https://apps.texastribune.org/harvey-reservoirs/. Market participants could also access even 

more site-specific information. Beside the box for disclosing an unrecorded easement, sellers

used various fields on disclosure forms to notify buyers of the flood risk associated with 

particular properties. For instance, sellers disclosed previous structural and site flooding and 

even specifically mentioned Harvey and the Addicks and Barker Reservoirs. See DX1676 at 

49000; PX-JC1201 at 2-3; PX-JC1189 at 2-3. Similar information was displayed on MLS real 

estate listings. See, e.g., DX1021 at 12800, 12804. 

The court’s real property just compensation award reflects the properties’ value in their 

damaged state, subject to the easement. See In re Upstream Addicks & Barker, 148 Fed. Cl. at 

278. The court’s award takes into consideration the facts that the government’s easement is 

atypical and “a similarly large storm, producing comparable rainfall, remains likely to occur 

again.” See In re Upstream Addicks & Barker, 146 Fed. Cl. at 251-52. The court rejects the

government’s valuation for the properties in their after-taking repaired state because just 

compensation is measured “at time of the taking.” United States v. 564.54 Acres of Land, 441 

U.S. 506, 511 (1979). Accordingly, the government cannot credit repairs that plaintiffs made 

after the government damaged their property by impounding Category 3 black water on 

plaintiffs’ land and in their homes. In re Upstream Addicks & Barker, 146 Fed. Cl. at 252 

(2019). The awards account for repairs only to the Banker, Burnham, Micu and Sidhu 603 

homes and the Popovici’s garage, and for only those costs the plaintiffs incurred to restore their 

property to their pre-taking state. The numbers exclude costs associated with upgrades, 

remodeling, or other improvements going beyond the repairs that the government’s taking

necessitated.

28 

27 The government contends this is evidence that knowledge of the easement “had no 

negative effect on prices.” Def.’s Post-Trial Mem. at 28. But this lack of a market response 

could just as well indicate the court’s liability ruling did not alert the market of the easement.

28 The award for the government’s taking of plaintiffs’ real property and improvements is 

reduced by 50% for plaintiffs Burnham, Micu, Popovici, and Sidhu to reflect these plaintiffs’ 

proportional ownership interest. Tr. 41:12-18 (Burnham); Tr. 101:18 to 102:7 (Micu); Tr. 

789:11-20 (Popovici); Tr. 1713:11-22 (Sidhu).
30

The award for structurally flooded properties reflects both the fact that the easement 

grants the government the permanent right to impound water within the homes on the properties, 

and the structural damage the government caused by taking the easement. The government 

flooded Ms. Burnham’s home with four to five feet of water for at least seven days. In re 

Upstream Addicks & Barker, 146 Fed. Cl. at 242. The damage was so extensive that Ms. 

Burnham had to sell a home that she described as her forever home which she had renovated and 

decorated with her own original artwork. See Tr. 43:12-44:19 (Burnham). The Bankers’ 

property was flooded with roughly one foot of water for four days. In re Upstream Addicks & 

Barker, 146 Fed. Cl. at 241. The flooding distributed mucky sludge throughout the first floor of 

their home, requiring a eight-month-long restoration. Tr. 762:14 to 763:25 (Banker); Pls.’ PostTrial Br. at 38. Ms. Micu’s property was flooded with approximately two feet of water for ten 

days. In re Upstream Addicks & Barker, 146 Fed. Cl. at 242-43. The home had to be mucked 

out and remediated to eliminate mold growth and portions of the home’s walls and foundation 

had to be restored, a process that took roughly one year. Tr. 121:10-11 (Micu). 

Damage to Mr. Sidhu’s downstairs unit was even more extensive. The flooding required

Mr. Sidhu to gut and renovate his property over the course of nearly one year. In re Upstream 

Addicks & Barker, 146 Fed. Cl. at 243. Plaintiffs’ experts opined that the cost of repairing the 

unit far exceeded its market value, PX-JC890 at 83, and that “all value of the unit ha[d] been 

taken,” PX-JC883 at 33. The government’s expert estimated the flooding and necessary repairs 

diminished the property’s value by $40,000. DX1006 at 11670.

The government did not flood homes on the Popovici and Sidhu 604 properties and the 

Popovici’s garage suffered only limited damage, so the just compensation award for them is 

lower. Tr. 1730:7-9 (Sidhu) (testifying that the upstairs unit did not need repairs because it was 

not flooded); Tr. 791:19-21, 799:17-23 (Popovici) (describing damage to the wooden garage 

door). 

Mr. Holland’s real property interest generates different issues from the fee simple

plaintiffs. The government argues that his favorable leasehold is a non-compensable 

consequential loss because Mr. Holland’s interest is a contract right, and the government has not 

appropriated his contract right. Def.’s Post-Trial Mem. at 77. This argument fails. Leaseholds 

are compensable property interests under the Fifth Amendment. United States v. Petty Motor 

Co., 327 U.S. 372, 378 (1946). The government executes a taking by interfering with a contract 

right in a way that affects an underlying property right. See Palmyra Pac. Seafoods, L.L.C. v. 

United States, 561 F.3d 1361, 1369 (Fed. Cir. 2009). For this reason, although residential leases 

involve contractual rights, “[i]t has long been established that the holder of an unexpired 

leasehold interest in land is entitled, under the Fifth Amendment, to just compensation for the 

value of that interest.” Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295, 303 (1976). 

Just compensation for a leasehold interest is the value of the government’s use and 

occupancy for the remainder of the lease as determined either by the amount specified in the 

lease or the fair rental value plus the value of the tenant’s renewal right. Alamo Land & Cattle 

Co., 424 U.S. at 304. Mr. Holland had a leasehold interest in the property that would have 

extended for six months after Harvey. But Mr. Holland’s landlord indicated he did not intend to 

restore the property, and because Mr. Holland could not afford to both restore the property and 

pay his rent, the landlord terminated the lease. See Holland-JC28 Resp. to Written Dep. 48-50. 
31

By flooding the property such that Mr. Holland could not safely return, the government 

effectively terminated Mr. Holland’s leasehold. Because he paid for no repairs to his leased 

property, he is entitled to compensation only for his leasehold advantage. Id.

Based on these considerations, plaintiffs are entitled to just compensation for their real 

property in the following amounts:

Plaintiff(s) Gross Just Compensation Award29

Mr. and Ms. Banker $200,279.34

Ms. Burnham $57,237.81

Mr. Holland $3,300

Ms. Micu $64,988.90

Ms. Popovici $1,401.49

Mr. Sidhu, for unit 603 $25,000

Mr. Sidhu, for unit 604 $534.00

2. Personal property.

Plaintiffs are entitled to compensation for “personal property, fixtures, and improvements 

damaged or destroyed by the flood” that attended the government’s taking of the flowage 

easement. In re Upstream Addicks & Barker, 148 Fed. Cl. at 278. This prior ruling comports 

with precedent that establishes plaintiffs whose personal property the government appropriates 

are entitled to just compensation. Horne v. Dep't of Agric., 576 U.S. 350, 359-361 (2015). The 

plaintiffs nonetheless must take reasonable steps to mitigate damages. See Heydt v. United 

States, 38 Fed. Cl. 286, 310 (1997).

The government argues that plaintiffs’ personal property losses are non-compensable 

results of the taking, that such losses overlap with their real property claims, and that plaintiffs 

have failed to establish the value of their personal property and that Harvey caused loss or 

damage to various items. See Def.’s Post-Trial Mem. at 77-90. The government first argues that 

“[p]laintiffs’ claims relating to personal property are consequential damages, which are not 

compensable under the Fifth Amendment.” Id. at 78. More specifically, it asserts that these 

losses are non-compensable because in taking the flowage easement the government neither 

“appropriate[d] [p]laintiffs’ personal property for public use . . . nor . . . intend[ed] to damage 

any personal property.” Id. This argument ignores the court’s ruling that plaintiffs’ personal 

property was not merely damaged by the government’s taking of plaintiffs’ real property. 

Rather, the personal property itself was taken by the government. Just as when it takes real 

29 These amounts for award do not account for offsets discussed infra, section B. 
32

property, the government must pay just compensation when it takes personal property. Horne, 

576 U.S. at 359-61.

The government’s argument also falters because, even had the court held the government 

only took real property, the personal property losses would nonetheless be compensable because 

they were directly and naturally caused by the government’s real property taking. To be specific, 

whether a loss caused by a taking is compensable hinges not on whether it is a consequence of 

the government’s taking but on whether it is an “incidental or indirect consequence[] of a 

taking.” R.J. Widen Co., 174 Ct. Cl. at 1028. Accordingly, a loss that is the “direct product[] of 

the actual invasion or taking of the property involved” is compensable. Id. This distinction, 

further defined by cases surveyed below, also explains that the plaintiffs’ personal property 

losses are compensable even if the government did not intend to cause such damage and did not

acquire the personal property for public use.

A loss is incidental and non-compensable when its connection to the taking is too 

attenuated. For example, an injury that results from the government’s taking of another’s 

property is not compensable under the Fifth Amendment. Air Pegasus of DC, Inc. v. United 

States, 424 F.3d 1206 (Fed. Cir. 2005); United States ex rel. Tennessee Valley Authority v. 

Powelson, 319 U.S. 266 (1943). In Air Pegasus, a plaintiff heliport business sought to recover 

its leasehold interest for a building when the government prohibited the operation of helicopters 

in the area where the heliport was located. 424 F.3d at 1209-10. The Federal Circuit noted that 

“Air Pegasus does not actually own or operate any helicopters,” and that the injury was noncompensable because it resulted not from the government taking Air Pegasus’s property but was 

“the more attenuated result of the government’s purported taking of other people’s property.” Id.

at 1215. Similarly, the plaintiff in Tennessee Valley Authority argued the value of land the 

government had taken should reflect the land’s potential future use for a hydroelectric project.

319 U.S. at 274. But the plaintiff had not yet built the project and could not do so without 

combining the land in question with other tracts it had not yet acquired through eminent domain. 

Id. at 284. The Court held the plaintiff was not entitled to “compensation for the loss of a 

business opportunity based on the unexercised privilege to use the power of eminent domain,” 

id., because the opportunity was “too remote and speculative.” Id. at 275-76 (quoting McGovern 

v. New York, 229 U.S. 363, 372 (1913)). 

Similarly, the government need not compensate a party for a reduction in profit caused by 

factors outside the governments’ control. Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577 

(Fed. Cir. 1990). The government temporarily took land that Yuba had agreed to lease to a third 

party in exchange for rent and a percentage of mineral royalties. Id. at 1578-81. The trial court 

awarded Yuba its minimum rent and royalty payments but declined, however, to award royalty 

losses that occurred because gold had a lower value after the temporary taking. Id. The Federal 

Circuit affirmed because “any attempt to determine how much gold would have been extracted 

during the taking period, and what its net sales price would have been, would involve the very 

kind of conjectural and speculative analysis the courts consistently reject as a basis for 

determining just compensation under the Fifth Amendment.” Id. at 1582-83. 

Property losses, including personal property losses, are compensable when they are 

directly caused by the government’s taking. In Causby v. United States, the court held the 

government had taken an easement over plaintiffs’ property by flying airplanes 83 feet above the 
33

land. 109 Ct. Cl. at 769-70. At the time of the taking the Causby plaintiffs had used the land to 

raise chickens. 104 Ct. Cl. 342, 349 (1945), rev'd, 328 U.S. 256 (1946).30 By using its 

easement, the government caused “as many as 6 to 10 chickens a day [to be] killed by flying into 

the walls from fright caused by the planes.” Id. The Claims Court ultimately awarded plaintiffs 

just compensation for the lost personal property. 109 Ct. Cl. at 772. It reasoned that there was 

“no difference in the destruction of personal property and real property” if the owner is deprived 

of its use “not by a negligent act, but as the natural consequence of the deliberate, intended 

exercise of an asserted power.” Id. Similarly in Todd v. United States, the court ordered the 

government to compensate plaintiffs for both real and personal property losses. 155 Ct. Cl. 87. 

In Todd the government took plaintiffs’ fishing rights under their state fishing licenses. Id. at 91. 

In addition to the value of the fishing licenses, the court held that plaintiffs were entitled to 

compensation for nets and poles rendered useless by the taking. Id. at 91, 98. 

Here, unlike in Yuba Natural Resources, the personal property damage plaintiffs claim 

they suffered is neither speculative nor conjectural. This case does not include the sale of a 

commodity subject to rapid fluctuations in value. Instead, plaintiffs’ loss was directly caused by 

factors within the government’s control, namely the operation of the Addicks and Barker Dams. 

See In re Upstream Addicks & Barker, 146 Fed. Cl. at 254 (“The damage to plaintiffs' properties 

was the direct result of the government's construction, modification, and operation of the 

Addicks and Barker Dams.”). Plaintiffs’ claims are also not attenuated as those were in 

Powelson and Air Pegasus because at the time of the taking plaintiffs actually owned the 

personal property for which they seek compensation. Moreover, the damage to this personal 

property was a direct result of the government’s taking the easement, like the losses suffered by 

plaintiffs in Todd and Causby. The flowage easement gives the government the right to impound 

water on plaintiffs’ property, and the personal property was damaged when the government did 

just that. The Corps was “well aware that storms capable of overflowing government-owned 

land were likely to occur.” In re Upstream Addicks & Barker, 146 Fed. Cl. at 260. It also knew 

that the at-risk land contained residences. See id. at 256 (describing Corps surveys of properties 

“in the reservoirs located beyond government land”). Accordingly, plaintiffs are entitled to the 

personal property lost when the government flooded their properties on August 30, 2017. 

Also at issue is whether plaintiffs’ have met their burden of proof in establishing the 

value of personal property and that it was damaged or destroyed as a direct result of the taking.

The government specifically contests the value plaintiffs ascribe to particular items and whether 

certain personal property damage was caused by Harvey. Def.’s Post-Trial Mem. at 78-80, 82-

90. 

The property owner “must show actual damages ‘with reasonable certainty,’ which 

requires ‘more than a guess, but less than absolute exactness.’” Otay Mesa Prop., L.P., 779 F.3d 

at 1323 (quoting Precision Pine & Timber Inc. v. United States, 596 F.3d 817, 833 (Fed. Cir.

2010)). And, “all costs claimed must have supporting documentation.” Chevron U.S.A., Inc. v. 

United States, 116 Fed. Cl. 202, 227 (2014); Tyger Const. Co. v. United States, 31 Fed. Cl. 177, 

30 Upon appeal, the Supreme Court affirmed the Claims Court’s holding that there had 

been a taking and remanded for the Claims Court to determine the “precise nature of the 

easement taken.” Causby, 109 Ct. Cl. at 769. The description of the property damage is 

included in the Claims Court’s first opinion: Causby, 104 Ct. Cl. 342
34

260 (1994) (“Because [plaintiff] presented no documentary evidence, proof of damages is 

insufficient with respect to this claim.”). Absent documentary support, even a claim for damages 

that is supported by testimony from a plaintiff’s expert may fail for lack of proof. See 

Transtechnology Corp., Space Ordnance Sys. Div. v. United States, 22 Cl. Ct. 349, 384 (1990). 

Similarly, a plaintiff fails to carry its burden if its damages claims are so vague that the court 

“cannot ascertain whether they are viable.” Bowman Constr. Co. v. United States, 154 Fed. Cl. 

127, 142 (2021). 

Mr. Holland claims substantial dollar values for antiques and specialty items but provides

no documentation to establish the items’ status or value as antiques or collectables. Instead, Mr. 

Holland provides only general descriptions such as “Dining hutch – antique” and “Dining room 

table and chairs – antique” to support his claimed losses. See PX-JC867 App. II at Holland 7. 

His valuation of collectors’ items also rests on sparse evidence. For instance, he requests 

compensation for “an [o]riginal 1970’s Star Wars Collection” and a “WWE championship belt.” 

Id. at 7, 11. Still other listed entries provide categorical descriptions without describing what 

particular items comprise the loss, namely his claim for $1,430 in lost “Art Hobbies & 

Collectibles.” Holland-JC28 at 155-56. These descriptions are too vague for the court to 

determine their accuracy. Additionally, plaintiffs’ expert on personal property valuations

admitted that he did not verify Mr. Holland’s claims for antiques and collectibles even though 

such items typically must have their value confirmed with supporting documentation. PX-JC867 

at 5. In short, Mr. Holland has provided inadequate evidence of the value of the antique dining 

hutch, sterling silver set, and table and chairs as well as his signed Kiss Guitar, WWE 

championship belt, Star Wars action figures, and general losses to art hobbies and collectibles. 

Mr. Holland’s valuation of these items exceeds the value of non-antique or non-collectible items 

of the same kind to the point that the items’ value requires independent documentation. His just 

compensation award is reduced by $13,940 to reflect this inadequacy. Aside from the above 

items, Mr. Holland has provided sufficient proof to support the loss of $63,957.52 in personal 

property. Thus, Mr. Holland is awarded $77,897.52 for his loss of personal property.

The Bankers similarly provide insufficient evidence of their cars’ value at the time of the 

taking and that certain personalty and fixtures were damaged by Harvey. The Bankers identified 

the amount they initially paid for the cars but did not provide evidence—such as vehicle repair 

histories, their mileage, or the extent to which they were damaged—to establish the value of the 

cars at the time of the taking. See Tr. 772:11-14 (Banker). The Bankers claim will also be 

reduced by $285 attributable to a beverage refrigerator that they acquired after Harvey and

$162.50 for a microwave that they admitted “was probably not damaged” because it was above 

the flood line. PX-JC867 App. II at Banker 1-2; Tr. 775:173 to 776:4 (Banker). The Bankers 

also mischaracterize the cost of yard landscaping, sod, and refinishing their front door as 

personal property losses. PX-JC867 App. II at Banker 1. Plaintiffs have failed to establish that 

these costs are distinct from the amounts they claim for repairs to their real property. 

Compensation for these losses is addressed by the court’s award for repairs to the Bankers’ real 

property. Accordingly, the Bankers’ award is reduced by $74,064.93 to account for their failure 

of proof with respect to damage to their two vehicles, microwave, refrigerator, and landscaping 

and door repair costs. The Bankers have submitted sufficient evidence to support their claim for 

$16,527.41 in personal property losses. See generally Banker-JC6 (invoice listing appliances); 

PX-JC867 App. II at Banker 1-2 (personal property inventory); PX-JX1128; Tr. 771:5 to 773:11 

(Banker) (describing personal property losses). 
35

Ms. Popovici likewise claimed amounts for landscaping services and personalty and 

fixtures that allegedly were damaged by the government’s taking. JX1170-71. Ms. Popovici 

failed to prove that landscape-related damages were proximately caused by the government’s 

taking. The landscaping invoices are dated September 29 and October 2, 2020, more than two 

years after the government’s taking. Id. Similar deficiencies undermine Ms. Popovici’s claim 

for service and repair costs associated with her car and home HVAC system. The HVAC system 

was cleaned over a year after the government’s taking once Ms. Popovici noticed “vents in the 

ceiling that were dirty.” Tr. 796:24 to 797:12 (Popovici). The flood water did not enter the 

Popovici residence, Tr. 814:4-8 (Popovici), and the HVAC units themselves were not damaged 

by flooding, 2019 Tr. 1252:2-7 (Popovici). Ms. Popovici fails to show that these repairs were 

necessitated by the government’s taking rather than routine servicing. Next, Ms. Popovici 

testified that her vehicle was damaged not when the government flooded her property, but when 

her husband drove the car off the flooded property. Tr. 824:13-24 (Popovici). Accordingly, Ms. 

Popovici has failed to establish that she suffered any personal property damage because of the 

government’s easement. The $1,401.49 Ms. Popovici claims in repairs to her garage is included 

in her just compensation award for real property. JX1165; JX1167.

Ms. Micu’s claims for mutilated currency and the depreciated value of a piggy bank 

containing damaged currency falter as well. Ms. Micu was obligated to mitigate her damages. 

The Bureau of Engraving and Printing allows people to redeem mutilated currency for up to its 

face value. 31 C.F.R. § 100.5(a). Because Ms. Micu provides no evidence that she sought to 

mitigate these losses, her personal property award is reduced by $1,800. Ms. Micu is entitled to 

recover $42,184.85 for the government’s taking of her personal property. See generally MicuJC246 (personal property inventory); Micu-JC55 (photographs of damaged personal property); 

Micu-JC143 (photographs); Micu-JC192 (photographs).

Ms. Burnham carried her burden of proof for establishing her personal property damages 

claim for $21,088.63. Ms. Burnham submitted numerous images depicting damage to personal 

property that supports the losses she claimed in her personal property inventory. See generally

Burnham-JC92 (photographs); Burnham-JC96 (inventory).

Mr. Sidhu also seeks compensation for personal property, namely a range, range hood, 

refrigerator, and dishwasher to replace damaged appliances in the downstairs unit. Sidhu-JC52;

Sidhu-JC89. These costs are not included in the court’s just compensation award for damage to 

Mr. Sidhu’s downstairs unit, so Mr. Sidhu is entitled to $1,900.40 for these losses.

3. Displacement.

Plaintiffs also claim damages for their temporary displacement from their properties. 

Plaintiffs base their claim for dislocation on their properties’ fair rental value. See Pls.’ PostTrial Br. at 37-38. The government argues that the plaintiffs are not entitled to any just 

compensation for the temporary displacement caused by the government’s taking. See Def.’s 

Post-Trial Br. at 91. It contends that the just compensation for the taking of real property 

includes just compensation for temporary displacement because the after-taking valuation 

measures the value of the properties in their “unrepaired, flood damaged condition,” and a 

reasonable buyer and seller would factor into the purchase price the time it takes to restore the 

property to a livable condition. Id.
36

The court agrees that using the monthly rental value of the properties would duplicate the 

court’s real property just compensation award. See Yellow Book at 172, § 4.6.5.2. That award 

compensates plaintiffs for the cost of restoring the home to a livable condition including the cost 

of materials. The plaintiffs are nonetheless entitled to just compensation for the dislocation costs 

they incurred as a direct result of the government’s taking. 

A just compensation award may take into consideration displacement costs imposed on 

the plaintiff as a direct and natural result of the taking. Cf. United States v. Gen. Motors Corp., 

323 U.S. 373, 383 (1945); see also Nat’l Lab'y & Supply Co. v. United States, 275 F. 218, 220-

21 (E.D. Pa. 1921) (indicating just compensation can include either the cost and expense of 

equipping the location taken by the government or the cost and expense of equipping the 

plaintiff’s substitute location but not both and awarding the plaintiff the latter). For instance, in 

General Motors the Supreme Court explained that a plaintiff may be entitled to just 

compensation for “the reasonable cost of moving out the property stored and preparing the space 

for occupancy,” including the cost of storing goods or returning them to the leased premises. 

323 U.S. at 383. In that case the Court stated such costs could be considered along with the 

market rental value of the temporary occupancy taken but “not as independent items of damage.” 

Id. 

Accordingly, the court takes into consideration dislocation costs including the costs of 

securing substitute housing actually and necessarily incurred by plaintiffs here in determining the 

just compensation award. These displacements extended from the time the homes were rendered 

uninhabitable until the homes were repaired and safe to occupy once again. Ms. Burnham and 

Ms. Micu both established the length of time they were displaced from their homes and had to 

secure alternative housing. Ms. Burnham paid $7,043 in rent for alternative housing,

31 and Ms. 

Micu paid $33,122.32 See Burnham-JC38 at 140; Micu-JC19 at 4950. These awards are reduced 

by half to reflect each plaintiff’s co-tenancy.

Mr. Sidhu also suffered costs when the government used its easement and displaced his 

tenants. Specifically, Mr. Sidhu claims $5,854 in lost income and $313.43 in utility payments he 

made while unit 603 was vacant. See JX1172. He further claims $127 in lost rent for Unit 604 

to reflect the discount he provided the tenant because they were displaced during Harvey. Id.; 

Tr. 1737:15-24 (Sidhu). Structural flooding caused by the government’s easement rendered Unit 

603 uninhabitable between September 1, 2017 and July 27, 2018. Sidhu-JC62. The government 

contends these losses are non-compensable as “normal business expenses incurred anytime a unit 

is vacant.” Def.’s Post-Trial Br. at 75. But this argument ignores that Unit 603 was vacant 

because the government used its flowage easement and flooded the property. Lost profit and 

damage caused to business assets are compensable if they are the direct and natural consequence 

of the government’s taking. See Kimball Laundry Co., 338 U.S. at 16-19 (holding the 

government “must pay compensation” for a laundry business’s trade routes and suggesting “the

record of its past earnings” and expenditures building up the routes provide evidence of their 

value); see also Causby, 109 Ct. Cl. at 772 (awarding just compensation for destroyed business 

31 This reflects $161.29 for the month of October, $6,332.5 for November-March, and 

$548.82 prorated for April 1-13, 2018.

32 This reflects $2,332.50 for September 2017, and $2,799 per month from October 2017-

August 2018. 
37

assets). These figures are reduced by half to reflect Mr. Sidhu’s proportional ownership of the 

property.

Mr. Sidhu also claimed $3,001.53 for costs, prorated for unit 603, incurred in traveling 

from his home in California to Texas to oversee the repair of his properties and testify during the 

liability trial. Tr. 1739:19 to 1740:22 (Sidhu). These expenses are incidental and therefore noncompensable. In Georgia-Pacific Corp. v. United States, the plaintiff also requested additional 

management costs, including travel costs, made necessary by the taking. 226 Ct. Cl. 95, 151-53

(1980). Unlike business assets that are taken, such costs represent how the taking may frustrate 

business operations, and “business frustrations and readjustments have been held 

noncompensable.” Id. at 153. Impounding floodwaters directly displaced Mr. Sidhu’s tenants, 

but travel costs he incurred because he lives in a different state and elected to travel to oversee 

the unit’s renovation have too attenuated a connection with the government’s taking.

B. Offsets

The government seeks to offset just compensation awards by the amount of money 

plaintiffs have already received in the form of direct payments from FEMA.33 The rule against 

awarding a plaintiff duplicate recovery is attributable to just compensation’s guiding principle 

that the property owner “must be made whole but is not entitled to more.” Olson, 292 U.S. at

255; Recovery, Black's Law Dictionary (11th ed. 2019); see also Innovair Aviation, Ltd., 83 Fed. 

Cl. at 502; Pettro v. United States, 47 Fed. Cl. 136, 151 (2000) (refusing to grant plaintiff lost 

profits for an asset that plaintiff retained, to prevent double recovery); Adams v. United States, 

230 Ct. Cl. 628, 631-32 (1982) (considering compensation the state of Utah paid for easements 

on the same land that the federal government took to “avoid double recovery by plaintiffs”). 

Plaintiffs contend that FEMA payments must not be offset. They rely on cases applying 

the relative-benefits doctrine. See Ideker Farms Inc. v. United States, 146 Fed. Cl. 413, 415 

(2020). Under this doctrine, the court may offset only “direct and special benefits “which arise 

directly due to the particular relation of the land in question to the public work and proximately 

to the remaining land as a result of the public work on the part taken.” Hendler, 175 F.3d at

1380. Plaintiffs contend that FEMA payments do not qualify because they do not arise directly 

and proximately from the taking. Pls.’ Post-Trial Resp. at 31. Instead, the FEMA payments 

apply to “anyone who suffered from a declared disaster regardless of any connection to any 

taking or benefit . . . to the remainder property.” Id. at 33 (emphasis omitted). 

The facts of this case do not fall neatly within the relative-benefit doctrine. Where that 

doctrine applies, the taking itself causes some benefit to the remainder property.

34 The relative33 FEMA cannot claw back the funds it has disbursed because it can only do so within 

three years of awarding the funds, and each plaintiff who was granted FEMA relief was awarded 

relief more than three years ago. Tr. 2701:5-10 (Glasschroeder). 

34 See, e.g., Hendler, 175 F.3d at 1383 (affirming the lower court’s holding that the 

government’s taking of an easement to sink wells for the purpose of monitoring water migration 

conferred special benefits in the form of groundwater testing and remediation associated with 

installing the wells); Laughlin v. United States, 22 Cl. Ct. 85, 114 (1990) (applying the relative–

benefits doctrine in holding that any increase in groundwater levels was offset by the special 
38

benefit doctrine is a specific application of the general principle guiding the proper measure of

just compensation: the person whose property is taken “must be made whole but is not entitled to 

more.” Olson, 292 U.S. at 255. Failing to deduct FEMA payments would constitute duplicate 

recovery. The government reimbursed for some losses of property once by issuing FEMA relief 

and should not be compelled to pay again for the damage to the property by the same flood 

pursuant to the court’s just compensation award. That the government made funds available to

some others whose homes were flooded during Harvey but not because of a government taking is 

inapposite. Cf. United States v. River Rouge Improvement Co., 269 U.S. 411, 415-16 (1926)

(discussing authority establishing that a benefit can be special even if adjacent lands are 

“similarly benefited” by the government action). The government issued payments through 

FEMA to compensate plaintiffs for the very same property losses and damages that they seek to 

recover here. In sum, the government has established that the cash payments from FEMA were 

related to the same flood damage that the plaintiffs seek to recover. Def.’s Pre-Trial Mem. at 37. 

FEMA relief was provided as a direct result of the government’s taking an easement on

plaintiffs’ land. Indeed, the plaintiffs were only eligible because FEMA verified their claims for 

Harvey-related damages. See Tr. 2705:10-19 (Glasschroeder). 

Offsets also are relevant to plaintiffs’ costs for displacement, property loss, and repairs to 

structures flooded by Harvey. Plaintiffs Burnham, Micu, Banker, and Holland each received 

direct payments from FEMA, and if these amounts are not offset from the just compensation 

award these plaintiffs would receive an award greater than the loss they sustained. The Bankers 

received $21,256.89 in home repair assistance and $2,666 in direct rental assistance payments. 

DX1287. Ms. Burnham received $4,618 in direct rental assistance payments, $19,060.06 in 

home repair assistance, and $4,279.59 in personal property assistance. DX1288. Mr. Holland 

received $6,413.67 in critical needs assistance and personal property assistance and $3,546 in 

direct rental assistance payments. DX1977. Ms. Micu and her husband received $17,540.47 in 

home repair assistance, $12,366 in direct rental assistance payments, and $500 in critical needs 

assistance. DX1980. Accordingly, the Bankers’ total award will be reduced by $21,256.89, Ms. 

Burnham’s by $16,118.62,

35 Ms. Micu’s by $15,203.24,36 and Mr. Holland’s by $6,413.67. 

These offset amounts exclude money paid directly to hotels that housed the plaintiffs.

benefit the government’s flood control system provided by making the property in question 

suitable for farming). 

35 Ms. Burnham’s offset is reduced by $2,309, 50% of the total direct payments for rental 

assistance, because her fiancé is a co-applicant for FEMA relief and co-signed the lease 

agreement for the property she moved into after selling her home. DX1288; Burnham-JC38. It 

is further reduced by $9,530.03, 50% of the total direct payments for real property repairs, 

because Ms. Burnham had only a 50% interest in the property and any increase in the sale value 

attributable to these repairs would be split with her mother. JX121. No reduction for personal 

property is made because Ms. Burnham indicates all the personal property in the home was hers. 

Tr. 91:17-18 (Burnham). 

36 Ms. Micu’s offset is reduced by 50% because Ms. Micu’s husband was listed as a coapplicant on the FEMA award. DX1980. Direct assistance in the form of a dehumidifier, valued 

at $249.99, is also not deducted because it does not offset a loss Ms. Micu claimed. 
39

Banker Burnham Holland Micu Popovici Sidhu

Gross just 

compensation

award 

$216,806.75 $81,847.94 $81,197.52 $102,642.33 $1,401.49 $29,631.42

FEMA 

offsets

$21,256.89 $16,118.62 $6,413.67 $15,203.24 $0 $0

Net just 

compensation

$195,549.86 $65,729.32 $74,783.85 $87,439.09 $1,401.49 $29,631.42

C. Interest

To make the landowner whole, the government may be required to pay interest for the 

delay between the date of the taking and the date of compensation. Tech. Coll. of the Low 

Country, 147 Fed. Cl. at 367. The court has held the taking occurred on August 30, 2017, and

the parties disagree only on the appropriate rate and how frequently that interest should be 

compounded. Plaintiffs request an interest award of 3.62%, compounded quarterly, based on 

Moody’s Aaa Corporate Bond Index. Pls.’ Post-Trial Br. at 39-40. Defendants argue the rate 

awarded should be that set by the Declarations of Takings Act, compounded annually. Def.’s 

Post-Trial Mem. at 100. 

Under the Prudent Investor Rule, the appropriate interest rate is based on “how ‘a 

reasonably prudent person’ would have invested the funds to ‘produce a reasonable return while 

maintaining safety of principal.’” Tulare Lake Basin Water Storage Dist. v. United States, 61 

Fed. Cl. 624, 627 (2004) (quoting United States v. 429.59 Acres of Land, 612 F.2d 459, 464-65 

(9th Cir.1980)). The Moody’s Aaa Corporate Bond Index rate has been held to satisfy the 

prudent investor rule without over-compensating the plaintiff. Jackson v. United States, 155 

Fed. Cl. 689, 720 (2021), appeal dismissed, No. 2022-1276, 2022 WL 2163785 (Fed. Cir. Jan. 

25, 2022); Tech. Coll. of the Low Country, 147 Fed. Cl. at 368-70; Hardy v. United States, 138 

Fed. Cl. 344, 356 (2018); Sears v. United States, 124 Fed. Cl. 730, 733-37 (2016). It adequately 

protects plaintiffs’ principle against loss and provides a reasonable return for the liquidity risk 

borne by plaintiffs without over-compensating them. PX-JC872 at 8-9. The prudent investor 

rule also requires interest to be compounded. Tech. Coll. of the Low Country, 147 Fed. Cl. at

370. 

Because it is the rate a reasonably prudent investor would seek, the court concludes that

an interest rate of 3.62%, reflecting the Moody’s Aaa Corporate Bond Index, compounded semiannually, comports with the prudent-investor rule in this case. 

CONCLUSION

For the reasons stated, the plaintiffs are entitled to just compensation for the permanent 

flowage easement the government took through its construction, maintenance, and operation of 

the Addicks and Barker Dams. This award compensates plaintiffs for the taking of plaintiffs’ 

real property as well as the taking of their personal property, fixtures, and improvements as a 

result of the flowage easement. Thus, the government is liable to plaintiffs in the following 
40

amounts, plus interest at the rate of 3.62% compounded semi-annually from August 30, 2017 

until the date of payment:

To Mr. and Ms. Banker $195,549.86

To Ms. Burnham $65,729.32

To Mr. Holland $74,783.85

To Ms. Micu $87,439.09

To Ms. Popovici $1,401.49

To Mr. Sidhu $29,631.42

Pursuant to Rule 54(b), there being no just reason for delay, the Clerk is directed to enter final 

judgment for the test plaintiffs as specified.

Costs are deferred.

Additionally, the court delineates and defines the flowage easement taken by the 

government as set out in the Addendum to this opinion. The government is directed to file the 

flowage easement in the title records of the private properties affected by the flooding that 

occurred at the end of August 2017.

It is so ORDERED.

s/ Charles F. Lettow 

Charles F. Lettow

Senior Judge
ADDENDUM
1

In the United States Court of Federal Claims

Sub-Master Docket No. 17-9001L

(Dated: October 28, 2022)

**********************************

IN RE UPSTREAM ADDICKS AND 

BARKER (TEXAS) FLOODCONTROL RESERVOIRS 

**********************************

THIS DOCUMENT APPLIES TO:

ALL UPSTREAM CASES

**********************************

)

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Flowage Easement

Pursuant to the court’s opinions and orders in the above-captioned case, which are 

incorporated by reference, IT IS ORDERED that the United States, through its construction, 

maintenance, and operation of the Addicks and Barker Dams, has taken a permanent flowage 

easement on the properties identified in Exhibit A.37 This taking occurred on August 30, 2017. 

This flowage easement grants the government the right to flood the properties identified 

in Exhibit A if meteorological conditions and the authorized operation and maintenance of the 

Addicks and Barker Dams so require. The easement’s geographic limits are derived from the 

Harvey flood pool elevations as of August 30, 2017: 101.6 feet (NAVD 1988, 2001 adjustment) 

behind Barker Reservoir and 109.1 feet (NAVD 1988, 2001 adjustment) behind Addicks 

Reservoir. Future flooding is not expected to occur regularly or frequently but is instead subject 

to particular meteorological conditions under which the operation of the dams may result in 

temporary flood pools that extend beyond government-owned land. 

The owners of the properties subject to this flowage easement retain a fee simple interest 

in their properties. The fee simple owners and their successors in interest (the “owners”) retain

(1) the right to continue their lawful residential uses of the properties; (2) all development rights, 

including the rights to build new, and maintain existing, structures, fixtures, and improvements;

and (3) the right to make any other lawful use of their properties. Provided, however, that absent 

prior approval from any authority governing the operation or maintenance of the dams, the 

owners may not exercise these rights in a way that interferes with the government’s easement by 

37 The relevant prior opinions and orders are In re Upstream Addicks & Barker (Texas) 

Flood-Control Reservoirs, 146 Fed. Cl. 219, 250 (2019); In re Upstream Addicks & Barker 

(Texas) Flood-Control Reservoirs, 148 Fed. Cl. 274, 278 (2020); Order of June 11, 2021, ECF 

No. 381. 
2

reducing the water storage capacity of the property, or portion of the property, that is subject to 

the easement. 

This order does not alter any otherwise applicable local, state, or federal laws that may 

affect or restrict the present or future use of the properties.

Following the entry of a final, non-appealable judgment requiring the payment of just 

compensation for this flowage easement, this order shall be recorded by the United States in the 

Fort Bend County and Harris County land records for the properties identified in Exhibit A.