Case: 23-1363 Document: 72 Page: 1 Filed: 09/13/2024
`
`23-1363, 1365, 1366, 1412
`
`IN THE
`THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`EDGAR ^LAN,ETAL.,
`Plaintiffs
`
`CHRISTINA BANKER, TODD BANKER,
`Plaintiffs-Appellees
`
`RECEIVED
`,3 202i,
`
`UNITED STATES,
`Defendant-Appellant
`
`2023-1363
`
`Appeal from the United States Court of Federal Claims in No. l:17-cv-01409-CFL,
`l:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
`
`SANDRA ABDOU, ET AL.,
`Plaintiffs
`
`ELIZABETH BURNHAM,
`Plaintiff-Appellee
`
`UNITED STATES,
`Defendant-Appellant
`
`2023-1365
`
`Appeal from the United States Court of Federal Claims in No. l:17-cv-01786-CFL,
`l:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
`
`
`
`23-1363, 1365, 1366, 1412
`
`IN THE
`THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`EDGAR ^LAN,ETAL.,
`Plaintiffs
`
`CHRISTINA BANKER, TODD BANKER,
`Plaintiffs-Appellees
`
`RECEIVED
`,3 202i,
`
`UNITED STATES,
`Defendant-Appellant
`
`2023-1363
`
`Appeal from the United States Court of Federal Claims in No. l:17-cv-01409-CFL,
`l:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
`
`SANDRA ABDOU, ET AL.,
`Plaintiffs
`
`ELIZABETH BURNHAM,
`Plaintiff-Appellee
`
`UNITED STATES,
`Defendant-Appellant
`
`2023-1365
`
`Appeal from the United States Court of Federal Claims in No. l:17-cv-01786-CFL,
`l:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
`
`
`
`Case: 23-1363 Document: 72 Page: 2 Filed: 09/13/2024
`
`CHRlSTrNA MICU, AND ALL OTHERS SIMILARLY SITUATED, SCOTT
`HOLLAND, CATHERINE POPOVICI, KULWANT SIDHU,
`Plaintiffs-Cross-Appellants
`ELISIO SOARES, SANDRA GARZA RODRIGUEZ, ERICH SCHROEDER,
`MARINA AGEYEVA, GLENN PETERS, VIRGINIA HOLCOMB,
`Plaintiffs
`
`V.
`
`UNITED STATES,
`Defendant-Appellant
`
`2023-1366, 2023-1412
`
`Appeals from the United States Court of Federal Claims in No. 1:17-cv-01277-CFL,
`l:17-cv-09001-CFL, Senior Judge Charles F. Lettow.
`
`BRIEF OF AMICUS CURIAE IN OPPOSE OF BOTH PARTIES
`
`Zheng Llio
`
`pro se plaintiff of related case
`
`Civil Engineer
`
`Oversea licensed attorney
`
`(713) 739-8295
`
`coinverso@hotmail.com
`
`
`
`Case: 23-1363 Document: 72 Page: 3 Filed: 09/13/2024
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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES
`
`INTRODUCTION OF AMICUS CURIAE
`
`INTERESTS OF AMICUS CURIAE
`
`SUMMARY OF THE ARGUMENT
`
`ARGUMENT
`
`I.
`
`Land Acquisition
`
`A. Regarding Condemnation--The Federal Had No Power
`
`to Acquire Land of Upstream of B Reservoir in
`
`Condemnation
`
`B. Wrong Finding Based on False Statements-"Chose Not
`
`to Purchase Enough Property"
`
`1. Chose? No!
`
`2. Not enough? Further discovery needed
`
`II. The Change of Operation
`
`A. Reasons and Nature of the Change of Operation
`
`B. The Change of Operation Cannot Constitute the
`
`Permanent Taking
`
`III. 33 use 702c and Local Cooperation—701c
`
`IV. The Permanent Flowage Easement Ruling Was Unconstitutional,
`
`Illegal, and Violation of Multiple Administrative Regulations and
`
`iii
`
`1
`
`2
`
`5
`
`5
`
`5
`
`7
`
`10
`
`13
`
`5
`
`17
`
`
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`Case: 23-1363 Document: 72 Page: 4 Filed: 09/13/2024
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`Precedents
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`A. Unconstitutional--The Permanent Flowage Easement
`
`Ruling Violated Due Process Clause
`
`B. Illegal—The Permanent Flowage Easement Ruling
`
`Repealed Congressional Authorization
`
`C. Violation of Multiple Administrative Regulations
`
`D. Violation of Precedents
`
`V. This Bellwether Case Is Not Qualified for Class Certification
`
`CONCLUSION
`
`19
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`IV
`
`
`
`Case: 23-1363 Document: 72 Page: 5 Filed: 09/13/2024
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Ark. Game <Sc Fish Comm'n v. United States,
`568 U.S. 23 (2012)
`
`Berkovitz v. United States,
`486 U.S. 537(1988)
`
`Fort Bend County et al v. U.S. Army Corps of Engineers et al.
`No. 18-CV-01739, SDTX
`
`Fort Bend County et al v. U.S. Army Corps of Engineers et al,
`No. 21-20174, 5'''Cir.
`
`Ideker Farms, inc., et al v. USA,
`No. 14-183L, Doc 426, CFC
`
`Ideker Farms, inc., et al v. USA,
`No. 14-183L, Doc 691, CFC
`
`D«Page(s)
`
`22
`
`16
`
`22
`
`In re Katrina Canal Breaches Consolidated Litigation,
`No. 05-4182, SECTION "K" (2), Doc. ??, at 11, 12, 1/30/2008, EDLA 21
`
`Kelo et al. v. City of New London et al.,
`545 U. S.469 (2005)
`
`United States v. Gaubert,
`499 U.S. 325 (1991)
`
`U.S. V. 2,606.84 Acres ofLand, Tex,
`432F.2d 1292 (5"'Cir. 1970)
`
`23
`
`21,22
`
`
`
`Case: 23-1363 Document: 72 Page: 6 Filed: 09/13/2024
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`Constitutions
`
`US Constitution, Article I, II, III
`
`Fifth Amendment
`
`Statutes
`
`33U.S.C. §701c
`
`33 U.S.C. § 702c
`
`Public Laws
`
`1917 Flood Control Act
`
`Pub. L. 64-367
`
`1928 Flood Control Act
`
`Pub. L. 70-391
`
`1938 Flood Control Act
`
`Pub. L. 75-761
`
`1938 River and Harbor Act
`Pub. L. 70-685
`
`1939 Flood Control Act
`
`Pub. L. 76-396
`
`1954 Flood Control Act
`Pub. L. 83-780
`
`Executive Order
`
`Executive Order 12630
`
`Executive Order 13406
`
`vi
`
`21
`
`20
`
`17
`
`5^ 17-19
`
`18
`
`18
`
`6
`
`5^ 6
`
`6
`
`13-16, 18, 22
`
`16
`
`16
`
`
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`Case: 23-1363 Document: 72 Page: 7 Filed: 09/13/2024
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`Rules
`
`Federal Rules of Evidence, Rule 103(a)(2)
`
`RCFC 23(g)(1)(A), (B)
`
`RCFC 23(g)(2), (4)
`
`RCFC 83.1 (b)(6)(A)
`
`House Documents
`
`3
`
`23
`
`23
`
`Flouse Document No. 250, 83''' Cong., 2"^^ Sess
`
`14, 15
`
`House Document No. 456, 75''' Cong., 2"'' Sess
`
`Congress Hearing and Record
`
`Congress Record, 69 CONG. REC. 6640-6673 (1928)
`
`Congress Record, 75 CONG. REC. 7129 (1938)
`
`Hearings on Army-Interior Reservoir Land Acquisition Policy before a
`Subcommittee of the House Committee on Government Operations,
`85''' Cong., L' Sess
`
`11
`
`17
`
`6
`
`9
`
`Vll
`
`
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`Case: 23-1363 Document: 72 Page: 8 Filed: 09/13/2024
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`INTRODUCTION OF AMICUS CURIAE
`
`Amicus has worked as a civil engineer in Shanghai before coming to the
`
`United States. He worked for a state-owned municipal construction and operation
`
`company (its responsibilities and functions like the US Army Corps of Engineers),
`
`where he was primarily engaged in the construction and operation of large-scale
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`urban drainage, flood control and disaster reduction projects, as well as the
`
`construction of large-scale industrial and civil buildings. Amicus has rich experience
`
`in design, land acquisition, construction, budgeting and final accounting, and process
`
`management of government-invested projects. These experiences stem from personal
`
`involvement and practice. For instance, the extra-large diameter underground
`
`drainage pipes that Houston urgently needed and studied for decades without
`
`progress; amicus has already participated in such construction projects (large-scale
`
`underground tunnel) before coming to the United Stated. He used various
`
`construction methods (underground pipe jacking, underground shielding and slotted
`
`cast box culvert, etc.) in different projects (trunk pipe network, branch collection
`
`system, etc.), and all of which have all been completed.
`
`In addition, amicus had worked as a licensed attorney in China for ten years
`
`before he came to the United States, mainly dealing with various disputes related to
`
`civil works, such as contract performance, construction quality disputes, construction
`
`accidents and project cost settlement. Because of amicus moved to the United States,
`
`amicus had to give up the position as a legal counsel to the Judicial Identification
`
`
`
`Case: 23-1363 Document: 72 Page: 9 Filed: 09/13/2024
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`Center of the DOJ of China. As a licensed attorney of China, amicus still qualify to
`
`practice in the highest courts of China, and he also had appeared in multiple high
`
`courts of China many times to participate in proceeding before he came to the United
`
`States. Amicus' qualification is in compliance with the RCFC 83.1 (b)(6)(A),
`
`Foreign Attorneys.
`
`INTERESTS OF AMICUS CURIAE'
`
`First, as a pro se plaintiff of the Harvey case pending before the U.S. Court of
`
`Federal Claims (Here and after referred as "CFC"), Case No. l:17-cv-01868-CFL,
`
`l:17-cv-09001-CFL, and amicus' case might be directly affected by this Court's
`
`decision in the pending appeal: In re Upstream Addicks & Barker Reservoirs, No.
`
`1:17-cv-01277-CFL, 1:17-cv-09001-CFL, therefore, amicus directly shares interest
`
`in this case.
`
`Second, in response to the trimming of facts, false statements, and
`
`concealment of the truth that occurred in the trial, amicus has filed three motions
`
`respectively during the trial, which requested: 1. to deny class certification to the
`
`bellwether case, due to unclear facts and the inadequacy attorney qualification. In re
`
`Upstream Addicks & Barker Reservoirs, 1:17-cv-09001-CFL, ECF 412 (for the
`
`documents of In re Upstream Addicks & Barker Reservoirs, l:17-cv-09001-CFL
`
`ECF ***, here and after referred as "ECF ***", for example, here referred as "ECF
`
`No counsel for a party authored this brief in whole or in part. No person other than
`amicus curiae made a monetary contribution intended to fund the preparation or
`submission of this brief.
`
`
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`Case: 23-1363 Document: 72 Page: 10 Filed: 09/13/2024
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`412"); 2. to stay the bellwether case, and clarify the provision of Case Management
`
`Order (ECF 37) on the relationship between bellwether case and amicus' case, ECF
`
`593; and 3. to clear the false statements that occurred in the bellwether case trial and
`
`notify the court of appeal, in accordance with the Federal Rules of Evidence, Rule
`
`103(a)(2), ECF 919.
`
`For the above three motions, the trial court ordered respectively: 1. denied
`
`class certification, but did not make a decision on the adequacy of attorney, ECF 417;
`
`2. denied, for the reason of "In due course, the pro se plaintiffs will have their
`
`opportunity to press their individual claims, with their separate contentions. That
`
`time IS not now, while the judgments entered for the bellwether plaintiffs are on
`
`appeal", ECF 595; and 3. denied, for amicus isn't a party of the bellwether case\
`
`ECF 920.
`
`Honestly, amicus still does not understand the definition and Judgment effect
`
`of the Case Management Order on the bellwether cases. One hand, the trial court
`
`acknowledged that "[I]n all events, each plaintiff, whether pro se or not, will have an
`
`individual opportunity to be heard", ECF 108, at 2, on the other hand, the defendants
`
`repeatedly claimed that the bellwether cases would directly affect the non-bellwether
`
`The Case Management Order was heard and made later than amicus filed his
`lawsuit, and it was made only by little of plaintiffs' attorneys and the defendant.
`Amicus had no involvement, because amicus was still living in the "Harvey Shelter"
`at that time, and his life was extremely abnormal and hard like all Harvey victims.
`Based on this decision that amicus is not a party to the bellwether case and
`therefore it is appropriate for amicus to file an amicus brief relying on the interest.
`
`
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`Case: 23-1363 Document: 72 Page: 11 Filed: 09/13/2024
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`cases. Amicus was still confused about what the trial court will hear in the future,
`
`and whether only the total monetary amount of permanent flowage easement will be
`
`heard. Vagueness in rule-making means arbitrary interpretation in the future.
`
`Third, as this court knows that amicus is a foreigner and lived in the upstream
`
`of Barker Reservoir, Harvey happened in his third year in the United States; at that
`
`time, he had no friends here and was badly in English, and he was at a loss in the
`
`face of this sudden disaster. It was his neighbors who selflessly helped him, removed
`
`the damage to his house, and removed the huge amount of garbage. At that moment,
`
`amicus felt the great humanity of the American people. None of these neighbors sued
`
`the government, for they believed that the government would pay them compensation
`
`after the bellwether case win. They never imagined that the judgment of bellwether
`
`case would give them a permanent flowage easement, that their bedroom and dining
`
`room would become part of a federal reservoir. Apart from this brief, amicus has no
`
`other way to thank these neighbors.
`
`Fourth, as a great nation, its greatness can only continue as long as its
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`civilization based on property rights exists. The ruling of permanent flowage
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`easement shook this foundation. More specifically, the essence of the permanent
`
`flowage easement judgment is that the administration deprives private property
`
`without the legislature authorization, for the benefit to specific parties.
`
`Fifth, during the trial, some co-leader counsels and the defendant jointly
`
`concealed the truth, the Corps' witness made a series of false statements, and all of
`
`
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`Case: 23-1363 Document: 72 Page: 12 Filed: 09/13/2024
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`those packaged the Harvey upstream floods caused together by the government and
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`Harris County Flood Control District (Here and after referred as "HCFCD")as an
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`"Impracticability'*" situation to achieve the purpose of permanent taking plaintiffs'
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`properties, which in fact violated the interest of amicus and all victims upstream of
`
`the Barker reservoir.
`
`The above five points constitute the interests of amicus in this appeal case.
`
`SUMMARY OF THE ARGUMENT
`
`In the Harvey case, the primary issues are two: land acquisition and change of
`
`operation, which other issues originated from, such as the application of 33 USC
`
`702c and the consequence of local cooperation being refused. After objectively and
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`comprehensively identifying these disputed issues, it will be found that the ruling of
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`permanent flowage easement was unconstitutional, illegal, and violation of multiple
`
`administrative regulations and precedents. In addition, clarifying the above issues can
`
`also help in making decision to the class certification in this case.
`
`I.
`
`Land Acquisition
`
`ARGUMENT
`
`A. Regarding Condemnation-The Federal Had No Power to Acquire
`
`Land of Upstream of B Reservoir in Condemnation.
`
`Land acquisitions involve some of the most difficult problems connected with
`
`The concept of the term "Impracticability" here is similar to the concept of "rebus
`sic stantibus" in the Civil legal system and "tf
`in Chinese legal system.
`
`
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`Case: 23-1363 Document: 72 Page: 13 Filed: 09/13/2024
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`the administration of the municipal works construction. The 1938 River and Harbor
`
`Act (Here and after referred as "1938 R&HA") authorized the Buffalo Bayou and
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`Tributaries Project (Here and after referred as "BBT"), and provides that local
`
`interests shall, as a part of local cooperation, provide without cost to the United
`
`States all lands, easements, and rights-of-way. The Addicks and Barker (Here and
`
`after referred as "A, B") Dams were two features of the BBT in the 1938 R&HA
`
`authorization, and part of the B Dam & Reservoir extended into Fort Bend County
`
`more than 2500 acres. As far as land acquisition, this is difficult to complete, because
`
`the local, Harris County, has no power of land condemnation in the Fort Bend
`
`County and could only purchase private land, unless the Fort Bend County
`
`Commissioner Court made resolution to agree. It's a federal and state constitutional
`
`matter. Although the subsequent the 1939 Flood Control Act (Here and after referred
`
`as "FCA") made amendments to the acquisition of reservoir land that would apply
`
`the 1938 FCA, however, the 1938 FCA was only provided that the United States
`
`would bore the cost of land acquisition and nothing else about federal condemnation.
`
`In passing the 1938 FCA, Representative Snell stated: "I was very much surprised
`
`when I read this bill to find that the committee at the present time intends to pay back
`
`to the local communities 70 percent of the cost of these rights-of-way or easements."^
`
`Moreover, the 1938 FCA also provided that "no reimbursement shall be made for
`
`any indirect or speculative damages". Pub. L No. 75-761, ch. 795, 52 Stat. 802. This
`
`^ Citing 75 CONG. REC. 7129 (1938) (statement of Rep. Snell).
`
`
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`Case: 23-1363 Document: 72 Page: 14 Filed: 09/13/2024
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`makes it Impossible for the federal to buy private land in Fort Bend County at high
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`prices. This is why B Reservoir must be designed as the detention work-operation of
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`inflow accompanied by outflow, like a "funnel", rather than retain-the trial court
`
`found "to impound water upstream before it flows downstream and floods downtown
`
`Houston", see Opinion and Order, ECF 581, at 4,
`
`It is extremely inappropriate for the trial court to use the unfair, non-open, and
`
`unclear Case Management Order (ECF 37) to forcibly consolidate cases based on
`
`different facts into a master complaint
`
`B. Wrong Finding Based on False Statements-"Chose Not to Purchase
`
`Enough Property".
`
`In its Opinion and Order for compensation, ECF 581, the trial court found that
`
`"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, at 2. To examine the
`
`causes of flooding upstream and downstream of the AB Dams during Harvey, the
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`following disciplines are needed: civil, hydraulic, soil-mechanics, hydrological,
`
`meteorological, geological, law, construction superintendents, and other professional
`
`subject, etc. As a civil engineer amicus has been involved in appraisals of similar
`
`engineering events and has experiences in the above disciplines; amicus believed and
`
`proved that the above findings based on a series of false statements, and obviously
`
`wrong.
`
`
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`Case: 23-1363 Document: 72 Page: 15 Filed: 09/13/2024
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`1. Chose? No!
`
`First step, the plaintiffs' expert (A professor of Rice University) asserted in his
`
`expert report without any basis that "The 1935 storm, with its average rainfall
`
`amount of about 15 inches in 72 hours, was used to estimate the flood pool level
`
`(similar to the Standard Project Flood (SPF))",
`
`Expert Report of Bedient, ECF
`
`174-4, at pdf 9. Second step, the Corps witness Thomas testified at trial that
`
`"standard project flood is also used by the Corps of Engineers as the basis for real
`
`estate acquisition". See Tr. 97:19-23 (Thomas). Third step, the Corps witness
`
`Johnson-Muic testified on Corps land acquisition policy of its reservoir project
`
`during the trial that "Well, prior to 1953, we did not have written policy. At least we
`
`couldn't find any written policy at the time this project was done". See Tr. 832:15-17
`
`(Johnson-Muic). Therefore, the land acquisition conduct seemed qualify as a perfect
`
`discretionary function-"chose". First, this conduct has involved an element of
`
`judgment or choice. Second, there was no written policy at that time.
`
`Those are all false statements. Engineering matters do not need to debate,
`
`speak in terms of data and historical documents. The first one, against the plaintiffs'
`
`expert, "The original standard project floods were computed in 1940... the original
`
`Standard Project Flood was calculated incorporating features that were never actually
`
`constructed. In the original design of... Barker Reservoir... the total inflow volume
`
`was estimated to be 164,000 acre-feet", see Addicks and Barker Water Control
`
`
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`Case: 23-1363 Document: 72 Page: 16 Filed: 09/13/2024
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`Manual (Here and after referred as "WCM"), JX 110\ at 8-2, 8-3, combined with
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`"the 1935 storm added 50%, the total inflow is 164,000 acre-feet",
`
`Definite
`
`Project Report Bases of Design for Buffalo Bayou, TX, JX 006, Table XII, at 47. The
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`second one, against the Corps witness Thomas, "The taking line for the reservoir area
`
`shall be determined from a study of probable flood frequencies and elevations above
`
`spillway crest and a consideration of corresponding backwater curves", rather than
`
`the SPF. See Hearings on Army-Interior Reservoir Land Acquisition Policy before a
`
`Subcommittee of the House Committee on Government Operations^ 85'^ Cong, P'
`
`sess., 453 (1957). The third one, against the Corps witness Johnson-Muic,
`
`Circular Letter, Acquisition of lands, easements and rights-of-
`way for flood-control reservoirs
`The following policies relating to the acquisition of lands,
`easements, and rights-of-way for flood-control dams and reservoirs are
`announced for the information and guidance of district and division
`engineers",
`id., at 452, 453, and
`
`I want to point out, sir, I have been consulting recently with the
`Real Estate Division on policies and they feel this is the basic fore
`runner of the 1953 revised policy",
`id., at 158.
`
`^ The exhibit of the JX ** series comes from the Joint Exhibit List, ECF 210.
`This hearing record was including in 2606.84 Acres of Land in Tarrant County,
`Texas v. U.S, 403 U.S. 912, 922 (1971), Footnote 1.
`https://books.google.com/books?id=TmkvAAAAMAAJ&pg=PA448&dq=Army-
`Interior+Reservoir+Land+Acquisition+Policy&hI=zh-
`CN&newbks= 1 &ne wbks_redir=0&sa=X& ved=2ahUKE wiE0MH99amHAxUNxskD
`HYAXA V gQ6AF6B AgCEAI#v=onepage&q=Army-
`Interior%20Reservoir%20Land%20Acquisition%20Policy&f=false (Last checked
`7/15/2024).
`
`
`
`Case: 23-1363 Document: 72 Page: 17 Filed: 09/13/2024
`
`"If the employee violates the mandatory regulation, there will be no shelter
`
`from liability, because there is no room for choice, and the action will be contrary to
`
`policy." United States v. Gaubert, 499 U.S. 325 (1991). "Thus, the discretionary
`
`function exception will not apply when a federal statute, regulation, or policy
`
`specifically prescribes a course of action for an employee to follow. In this event,
`
`the employee has no rightful option but to adhere to the directive." Berkovitz v.
`
`United States, 486 U.S. 537 (1988). Therefore, there is no "chose" existed here.
`
`2. Not enough? Further discovery needed.
`
`Did the Corps not purchase enough land when building the AB Dam in the
`
`1940s? Continue to reveal engineering matters in the engineering approach without
`
`eloquence.
`
`To clarify land acquisition matters more specifically, that is, how much land
`
`should be acquired in the 1940s according to the design and policy? How much land
`
`has been actually acquired? Was the cause of the upstream flooding during Harvey
`
`the amount of land acquisition? A unit hydrographic diagram^ has to be introduced
`
`here, which was also in line with the approach of Brandeis Briefing.
`
`8
`
`Plate 1 was included in JX 007, Plate II. The diagram amicus cited here comes
`from the version of Rice Institute Library.
`
` •
`
`«
`
`10
`
`
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`Case: 23-1363 Document: 72 Page: 18 Filed: 09/13/2024
`
`LCCCMO
`
`o<h/Trxo«
`
`n M IJO t*4 .»• IM 114 M »• /M JIJ J)M 440 M. «o*
`
`•<**4 raou »tM»t or tmn
`
`' BARKCR RESERVOIR INFUQW - OUTrLQW
`(TORM CCNTCRtO ABOVE RCSERVOm
`
`Plate 1.
`
`Plate 1 is the original design in the Corps' 1940 Definite Project Report, and it
`
`was drawn in accordance with the Congressional authorization~the House Document
`
`No. 456^ 15^^ Cong., 2"'' Sess., which the designed maximum rainfall of 31.4
`
`inches/3 days, the designed operation of inflow accompany with outflow at that
`
`maximum rainfall, and the maximum flowage line under the designed operation. It
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`showed that the maximum water storage was 135,800 Ac-Ft, which is equivalent to a
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`pool elevation of 99.14 feet and a pool area of 13,885 acres, under the condition of
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`upstream watershed controlled by the B Reservoir was an area of 152 square miles.
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`According to its policy, the Corps should have acquired land to the maximum
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`flowage line that was 13,885 acres or acquired to the land elevation of 99.14 feet, 88
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`NAVD'^. The B Reservoir actually acquired land 12,060 acres, less than 13,885
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`In the Appendix 9 of the Corps of Engineers' Dam Safety Modification Report,
`Authorizing Legislation, DX 254, pdf 3-70.
`The conversion relationship of floodwater storage, pool area and pool elevation is
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`
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`Case: 23-1363 Document: 72 Page: 19 Filed: 09/13/2024
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`acres.
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`During Harvey, the rainfall was 34 inches/4 days, and the upstream watershed
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`area controlled by the B Reservoir was reduced from 152 to 130 square miles. See
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`1940 Buffalo Bayou Definite Project Report, JX 005, item 52, p 25, and 20 J 2 WCM,
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`p xiv or pdf 15. Considering the increase in outflow corresponding to the long rainfall
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`period (15,000 Ac-Ft/day) and the reduction in watershed area (inflow 17%
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`reduction), even counted the rainfall increased by 10% (31.4 inches increased to 34
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`inches), the floodwater stored would be far less than 135,800 Ac-Ft if the operation
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`in Plate 1 was adopted, and there will be no "/w re Upstream Barker Reservoirs^^
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`anymore. It was not the B Dam but the B gates that flooded amicus and all upstream
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`of the B Reservoir victims during Harvey, due to the operation of 2012 WCM.
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`Obviously, the 2012 WCM was not in accordance with the original design authorized
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`by Congress.
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`11. The Change of Operation
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`In its Opinion and Order on liability, the trial court held that "The government,
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`through its construction, maintenance, and operation of the Addicks and Barker
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`Dams in the past, present, and future, has taken a permanent flowage easement on
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`plaintiffs' properties." ECF 260, at 3. According to its original design, however, the
`
`shown on 2012 WCM, page 17-02-14,
`https://www.swg.usace.army.mil/Portals/26/docs/water%20control%20manual/2012
`%20water%20control%20manual.pdf (last checked 7/15/2024); also see 2012
`Addicks and Barker Water Control Manual, JX 110.
`
`12
`
`
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`Case: 23-1363 Document: 72 Page: 20 Filed: 09/13/2024
`
`AB Reservoirs should be "has for its principal features: ... e. Twin Reservoirs ... of
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`such magnitude as to limit the run-off produced by the maximum probable storm
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`(design storm of 31.4 inches) to a maximum total regulated discharge of about
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`15,000 cubic per second", see Buffalo Bayou Definite Project Report, JX 005, at 12,
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`13, and "The maximum storage produced by the design storm in Barker Reservoir,
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`with five conduits open..."/V/., at 25, Obviously, the change of operation is the cause
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`of the flooding upstream of B Reservoir, and the Corps changed its operation due to
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`that "surcharge releases from the Addicks and Barker Reservoirs now have no place
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`to go except down Buffalo Bayou or in the reservoirs themselves". See Opinion and
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`Order, ECF 260, at 6. Further, "The purpose and design of the Addicks and Barker
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`Dams make the court-ordered easement necessary." See Opinion and Order, ECF
`
`581, at 4, Therefore, it is necessary to analyze whether the flooding of the upstream
`
`of AB Reservoirs was caused by the AB Dams construction, or caused by the change
`
`of operation, or caused by the combination of both; and the causation chain.
`
`A. Reasons and Nature of the Change of Operation.
`
`According to the trial court finding that the reason of the change of operation
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`was "Due to development in the Houston area and opposition concerned with
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`aesthetic effects, the original plans for the south discharge canal were shelved and the
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`canal was not constructed." See Opinion and Order, ECF 260, at 9. This finding was
`
`also wrong and contradicts the authorization of 1954 PGA—the concealed
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`authorization. The south discharge canal was not shelved, but abandoned by the
`
`13
`
`
`
`Case: 23-1363 Document: 72 Page: 21 Filed: 09/13/2024
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`authorization of 1954 FCA, and replaced by the Buffalo Bayou Rectification Plan.
`
`Pub. L. No. 83-780, 68 Stat. 1256, 1258 (citations omitted). The detailed
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`authorization was published in House Document No. 250*\ 83'^ Cong., 2"^* sess. The
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`Buffalo Bayou Rectification Plan, however, was delayed indefinitely because
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`HCFCD—the local cooperator, withdrew its cooperation commitment and refused to
`
`provide the necessary rights-of-way. See U.S. Army Corps of Engineers, Civil Works
`
`Justification data. Congressional Submission, Fiscal Year 1994, 8. South-Western
`
`•
`
`Division, p9-10 . And, a former president was also involved in the movement to
`
` 12
`
`force HCFCD to withdraw its cooperation. See YouTube video, Terry Hershey—
`
`Texas Women in Conservation Luncheon'^. It's a bad past, a group of extreme egoists
`
`with political power turned the Houston of 2017 into a Flood City, "During Harvey,
`
`the Corps operated the AB Dams according to the 2012 WCM. The gates on all five
`
`conduits were closed for Addicks and Barker at the beginning of the storm, as called
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`for by the Manual." See Opinion and Order, ECF 260, at 18.
`
`Therefore, the causation-chain that the construction of B Dam caused the
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`flooding upstream of B reservoir was broken due to the intervention of a third party—
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`HCFCD's withdrawal of cooperation, and the construction of B Dam is not a direct,
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`natural, or probable result of the flooding upstream of B Reservoir. Rather, the causal
`
`" In the Appendix 9 of the Corps of Engineers' Dam Safety Modification Report,
`Authorizing Legislation, DX 254, pdf 80-132.
`https://usace.contentdm.oclc.org/digital/collection/pl6021coll6/id/2034/rec/34
`(Last checked 7/15/2024).
`https://youtu.be/Q2uvrJMtT_Q (Last checked 7/15/2024).
`
`13
`
`14
`
`
`
`Case: 23-1363 Document: 72 Page: 22 Filed: 09/13/2024
`
`chain that the 2012 WCM caused the flooding upstream of B reservoir was as strong
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`as iron.
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`B. The Change of Operation Cannot Constitute the Permanent Taking.
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`First, the change of operation violated the authorization of 1954 FCA. The
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`1954 FCA stipulated that—
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`"It is hereby declared to be the policy of the Congress that the
`following provisions shall be observed:
`No project or any modification not authorized, of a project for
`flood control or rivers and harbors, shall be authorized by the Congress
`unless a report for such project or modification has been previously
`submitted by the Chief of Engineers, United States Army, in conformity
`with existing law."
`See Pub. L No. 83-780, 68 Stat. 1256.
`
`The operation of the AB Dams was stipulated by House Document No. 250,
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`83'^'' Cong., 2"^ sess., that—
`
`42. ...Table 9 shows the standard project flood discharges at
`selected points on Buffalo... for the channel rectification plan;
`
`TABLE 9.—Standard project flood channel rectification plan ... at
`the confluence point of Buffalo Bayou and Rummel Creek-
`downstream of Barker reservoir 5 miles, the SPF discharge is 16500 cfs.
`See DX 254, at pdf 105.
`
`The change of operation substantially modified the BBT project authorization
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`authorized by Congress, and the effectiveness of the 2012 WCM is pending.
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`The 1954 FCA was concealed at the trial, and this was intentional, because the
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`1954 FCA authorization was cited in the every AB Dams modification documents
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`after 1954, such as 2012 WCM, See Opinion and Order, ECF 260, at 15, 16, 1977
`
`15
`
`
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`Case: 23-1363 Document: 72 Page: 23 Filed: 09/13/2024
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`Hydrology Investigation, id., at 11, 1984 Embankment Strengthening & Dam
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`Modifications, id., at 11. This is a five-week-old, unrefrigerated dead fish.
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`Second, the 1954 FCA stipulated on the local cooperation that—
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`"SEC 201. ...Provided, That the authorization for any flood-
`control project herein adopted requiring local cooperation shall expire
`five years from the date on which local interests are notified in writing
`by the Department of the Army of the requirements of local cooperation,
`unless said interests shall within said time furnish assurances
`satisfactory to the Secretary of the Army that the required cooperation
`will be furnished."
`See Pub. L. No. 83-780, 68 Stat. 1256.
`
`The local cooperator withdrew its cooperation commitment, which would void
`
`the BBT authorization, and therefore the effectiveness of the 2012 WCM is pending.
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`This is that dead fish.
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`Third, there is another related case in the Federal District Court, Fort Bend
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`County et al v. U.S. Army Corps of Engineers et al, 18-cv-01739, SDTX, the plaintiffs.
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`Fort Bend County et al, sued for a permanent injunction and declaratory judgment to
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`the 2012 WCM, dismissal with prejudice. And relived subsequently in the S"" Circuit,
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`Reverse and Remand for further proceedings. No. 21-20174, 5'^' Cir. That case will
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`determine the effectiveness of the 2012 WCM. At least, the 2012 WCM and its rule-
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`making violated Executive Order 12630 of "Governmental Actions and Interference
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`with Constitutionally Protected Property Rights", and Executive Order 13406 of
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`"Protecting the Property Rights of the American People".
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`The Corps and Harris County all look forward to the permanent flowage
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`16
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`
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`Case: 23-1363 Document: 72 Page: 24 Filed: 09/13/2024
`
`easement ruling taking effect, which will waive Harris County of the burden of
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`cooperating on tens billions of dollars in rights-of-way, and the Corps will obscure
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`the true cause of the flooding both downstream and upstream during Harvey-
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`tampering with congressional authorization, reckless construction of outlet works,
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`inadequate rehabilitation. This also is that fish.
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`IIL 33 use 702c and Local Cooperation—701c
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`Congress included the provision of federal immunity and local cooperation in
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`passing the 1928 FCA, and these two provisions were later codified in the United
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`States Code, 33 USC 702c and 701c'''. The immunity and local cooperation
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`provisions reflect Congress' reluctance to take any steps to commit the federal
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`government to flood control in the early twentieth century, with flood control seen as
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`a state and local concern, until a series of devastating floods in the 1920s persuaded
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`Congress to get involved with federal expertise and resources for flood control on the
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`condition that federal liability be limited. 33 USC 702c is not a bad law but the
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`responsible parties absent, and 33 USC 701c is also necessary. To apply the 702c and
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`701c correctly, simply reading the text of law provisions and precedents is not
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`enough. It is necessary to understand the situation faced by the legislators
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