Texas plaintiffs firms have begun filing lawsuits on behalf ofclients who live in Houston neighborhoods that flooded when theArmy Corps ofEngineers authorized controlled water releases from tworeservoirs in the wake of Hurricane Harvey.

The suits allege that the intentional flooding was an unlawfulgovernment taking of property.

4,000 homes flooded

An estimated 4,000 Houston homes flooded after the controlledrelease of water from the Addicks and Barker reservoirs in theearly morning hours of Aug. 28, after the Houston area had alreadybeen pelted by Harvey rain for two days. In suits filed over thelast few days, including a number of class actions, the plaintiffsseek compensation for the unlawful taking of their property inviolation of the Fifth Amendment to the U.S. Constitution.

Related: Harvey's record rainfall leads to flooded property,human suffering [photos]

“It’s totally property damage. It’s totally a takings case underthe Fifth Amendment,” said George Fleming, whose Houston firm,Fleming, Nolen & Jez, filed a class action complaint againstthe federal government and the Corps of Engineers on Sept. 12 inthe U.S. Court of Federal Claims.

Richard Laminack, a partner at Laminack, Pirtle & Martinesin Houston, whose firm filed a class action complaint on Sept. 5 inU.S. Court of Federal Claims, is confident the flooded-out propertyowners have a strong case.

Intentional act

“The case law is there solidly behind us. The precedent is there.The Supreme Court has already ruled that even temporary flooding isa taking. The Army Corps of Engineers will freely admit this was anintentional act,” Laminack said, noting that damages include thecost of repairing the property and the diminution of value.

In the suit that Laminack’s firm filed along with three otherHouston firms, the named plaintiffs allege the Corps of Engineers“deliberately and intentionally released an unprecedented amount ofwater” into Buffalo Bayou, a river that flowsfrom west Houston to downtown and then into the Houston ShipChannel.

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“These businesses and residences suffered substantial floodingthat would not have occurred but for the intentional and deliberatedecision to unprecedented controlled release rates of water intoBuffalo Bayou,” the plaintiffs allege in Y and J Properties v.United States, filed on Sept. 5 in Federal Claims Court.

On behalf of the Corps of Engineers, the U.S. Department ofJustice declined to comment on the litigation.

Insurance coverage litigation

Other types of litigation will likely result from Harvey, such astenants suing landlords, and property owners suing insurancecompanies over coverage. But the involuntary takings suits are ahot area and a potentially lucrative opportunity for Texasplaintiffs firms.

Laminack acknowledged the competition in the market to sign upclients with property that flooded, but he noted that his clientsare limited to those with property that flooded after the reservoirreleases began on the morning of Aug. 28.

Related: Harvey's destruction: Unprecedented floodingreplaces high winds [slideshow]

“It’s only properties that flooded because of the release orwouldn’t have flooded as bad but for the release,” he said. “I’mworried there may be lawyers out there gathering up cases of allstripes thinking this will be another Hurricane Ike situation.”

Thousands of coverage lawsuits were filed by property ownersagainst insurance companies after Ike ravaged Southeast Texas in2008.

Water from Addicks Reservoir flows into neighborhoods asfloodwaters from Tropical Storm Harvey rise Tuesday, Aug. 29, 2017,in Houston. (AP Photo/David J. Phillip)

Class action filed on Sept. 5

Laminack said the Harvey class action that his firm filed on Sept.5 may be the first in Federal Claims Court. Court records show thatat least two other similar class action complaints were filedagainst the federal government or the Corps of Engineers on thesame day. Since then, other cases, including Fleming Nolen’s classaction, have been filed in the Washington, D.C.-based court.

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Buzbee said he sent a demand letter to the Corps of Engineers,and also hired a lobbyist to “raise some awareness” in Washington,D.C., about what happened to Houston neighborhoods in the wake ofthe reservoir releases. Buzbee said he would like the government toestablish a fund to compensate the property owners for theirlosses.

“Failing all that, of course, I’m going to file a lawsuit. I’mgoing to file suits individually,” he said, adding that the crux ofthe case is proving what the Corps of Engineers intended whenchoosing to release water from the reservoirs during the hurricane,and if officials knew that homes would be flooded if it did so.

Buzbee said inverse condemnation claims, made when thegovernment takes private property without compensation, are “verystrong” in this case, even though such cases are typically tough toprove. “If an inverse condemnation case still exists in federalcommon law, this is certainly it,” he said.

Property had never previously flooded

Buzbee said he has about 250 clients so far, and in all cases,their property had never previously flooded, and they did not floodduring Harvey until the Corps of Engineers opened the gates of thereservoirs.

“These folks went to sleep, woke up with no power and [with]water in their homes,” he said. “This is a pretty strong case.”

With a different strategy, Potts Law Firm of Houston filed aclass action petition in state district court in Harris Countyagainst the Harris County Flood Control District and the city ofHouston, alleging a taking under §17 of Article 1 of the TexasConstitution. Houston City Attorney Ron Lewis did not immediatelyrespond to a request for comment. Melissa Spinks, managing attorneyof litigation for the Harris County Attorney’s Office, said, “Wedeny all the allegations in the lawsuit.”

Few carried flood insurance

Buzbee said his clients aren’t suggesting the government acted withmal intent, but instead maintain the government knowingly releasedwater that would flood their neighborhoods “for the greatergood.”

Related: Is your home in a flood zone?

Fleming had a similar take, noting that the plaintiffs in hisclass action aren’t claiming the Corps of Engineers did anythingwrong. “They properly decided to flood a number of homes to savethe masses, and the question on the table is who should pay forsaving the masses. Should it be the relatively few homeowners?Under our Constitution, the law says it should be the governmentthat pays,” he said.

Buzbee said winning a lawsuit or settlement from the governmentmay be essential for many of the property owners, because fewcarried flood insurance since they did not live in a flood-pronearea.

“For many of these people, this is their only shot,” hesaid.

Senior reporter Brenda Sapino Jeffreys covers the businessof law in Texas and is a staff reporter for ALM Media. Contact herat [email protected]. On Twitter:@BrendaSJeffreys.