Mendenhall River levee plaintiffs say they want compensation after judge blocks stop work order

A lawsuit originally aimed at stopping the construction of flood barriers along Mendenhall River has shifted its goals. The plaintiffs now say they want the city to pay them for building the levee on their land.  

The shift comes after a judge denied a motion to halt construction of the levee meant to protect hundreds of homes in Mendenhall Valley from annual glacial outburst flooding because doing so would be against the public interest. Another homeowner has also joined the case. 

Samuel Hatch lives next to the Mendenhall River on Meander Way. During the 2023 glacial outburst flood, he opened the hatch to his crawl space and saw water lapping just beneath the floorboards. The flood cracked his foundation.

“My foundation is shaped like a Pringle — so it’s high in one spot, kind of in the middle, and then down on all the corners,” he said. “So my house essentially folded around the corners where it settled.”

At that point, the city hadn’t proposed a flood mitigation plan yet, so he and his wife felt they had two options: try to move their family of five with Juneau’s tough housing market, or retrofit their home to defend against future floods. 

They chose the latter and paid thousands of dollars to lift their house about four feet above the ground on steel pilings and re-do the foundation. More than a year later, their home is still under construction with Tyvek wrap covering the outside and missing pieces of flooring. 

Last week, Hatch joined the lawsuit with another homeowner who’s suing the city for putting flood barriers on their land without compensating them.

Unlike the other homeowner in the case, Stephen Bower, Hatch is fine with hosting the barriers — though he’s frustrated that he can’t access half of his land by the river, now blocked by an eight-foot wall.

Hatch’s main issue comes down to fairness. Almost all of the 466 landowners in the flood-impacted area are expected to pay the same amount — up to about $6,300 — over 10 years, whether or not they are losing part of their property to the levee that will be there until the city comes up with a permanent flood protection solution. It could be a decade before that happens. 

“I get paying my share, but at the same time, the other people on the interior, they’ve lost nothing to this, and they’re paying the same as me,” Hatch said. “I just feel like fairness isn’t happening, so that’s why I joined the suit.”

He wants the city to pay for what he calls the “flood control easement” on his land.

That’s the new focus of the case.

After a judge denied a preliminary injunction on Monday that aimed to exclude Bower’s property from having flood barriers installed, the case has shifted from preventing the barriers from being built on his land to deciding how the cost will be divided up when it’s finished. 

Emily Wright, the city’s attorney, said the judge’s order was a sigh of relief for the city.

“The consequences of having a 140-foot hole in the barriers had the potential to be tremendous,” Wright said. 

Nate Rumsey, the city’s engineering deputy director, said that they would have found a way to build the barriers so that they could still protect nearby homes. When the motion to stop work was filed last week, the contractors building the levee skipped over Bower’s land to wait for the judge’s decision. Since then, barriers have gone up on Bower’s lawn.

In the order, the judge weighed the merits of the case, opening a window into how the court might rule on key questions. 

The first question is whether the Juneau Assembly followed the right process when it passed an ordinance creating a Local Improvement District, or LID. That ordinance approved the levee project and laid out a plan to spread 40% of the barrier construction among the landowners. Landowners had the opportunity to vote it down in February, but only a quarter formally objected. 

Scott Perkins, the attorney representing Bower and Hatch, said the Assembly was wrong to assume abstentions as ‘yes’ votes. But the judge wrote that the homeowners misinterpreted the law.

The city initiated the LID process, so specific rules apply for how it could have been voted down. Objecting landowners would have needed to represent half of the estimated cost to be borne by residents overall. Even then, the Assembly would have had the option to override their veto by a vote of eight members. That didn’t prove necessary and the judge wrote that the city’s actions were lawful, so the LID is expected to hold up in court.

That’s separate from the constitutional question at the core of this case. 

“So this case is now simply going to be about, did the city have the powers to put up the barriers and not pay for them, or are they going to have to pay for them under the Fifth Amendment?” Perkins said.

Both the U.S. Constitution and the Alaska Constitution forbid the government from taking private land for public use without paying the owners. 

It’s unclear which party will prevail on that question. Perkins said he’s confident the homeowners will. If the court agrees with him, Wright said the city’s strongest argument is that taking the land is necessary to protect the public. 

“When there’s an emergency we have to act,” she said. “Sometimes that means that the individual is put secondary to the greater good of the whole.”

There could be a special emergency exception. In an Alaska Supreme Court case from more than a decade ago, Brewer v. State, landowners sued the state because firefighters burned their land to help fight an approaching wildfire. The court ruled that the state is not required to pay if using private property is “necessary to prevent an impending or imminent public disaster from fire, flood, disease or riot.” 

Whether a flood likely to happen in a few months will be considered “imminent” enough will be a matter argued in court. 

There are also forthcoming facts that Wright said could change the case. 

On May 8, the city expects to release long-awaited flood inundation maps that will show whether the levee will work for floods up to 20 feet high, and if there will be unintended consequences upstream or downstream from the levee. 

Rumsey said the maps are still under final review. An initial review, he said, confirms the levee will work as intended. 

“We’re very confident that this is going to help protect the community from future [flood] events, and I’m excited to put my name on this project,” he said. 

A trial has been scheduled for September 15 to 17 before Judge Daniel Doty in Juneau.