The Supreme Court of the U.S. (SCOTUS) on Jan. 16 heard arguments regarding whether Texas property owners affected by flooding caused by a highway expansion should seek compensation under the Takings Clause of the U.S. Constitution. The case involves ranchers, farmers and rural landowners.
Richard Devillier, a multi-generation ranch owner east of Houston, TX, and several dozen landowners claim under the Fifth Amendment of the U.S. Constitution, the government has the right to take property, but it must pay compensation.
Background
The landowners filed an inverse condemnation action—which entitles property owners to just compensation if their property is damaged by a public use—against the state of Texas after a Texas Department of Transportation (DOT) highway widening project caused widespread flooding.
During the reconstruction of Interstate Highway 10 in 2015, the DOT elevated the road and constructed a three-foot-high, impenetrable concrete median down its center, separating the eastbound lanes from the westbound ones. This design aimed to prevent flooding on the south side of the highway during heavy rains, redirecting water to flood the land north of the highway instead.
The median successfully held back water during Hurricane Harvey in 2017, creating a large temporary lake on the north side of the highway and preventing the normal water flow south into the Gulf of Mexico for several days.
In 2019, as Tropical Storm Imelda approached, landowner Steven DeVillier pleaded with DOT to dismantle sections of the median or allow him to remove parts using his backhoe, but Texas officials declined. The median proved effective again, causing extensive flooding in the area that persisted for days, highlighting the issue with the median rather than the storms themselves, according to court documents.
According to the Houston Chronicle, after Hurricane Harvey, Devillier’s house was flooded with 23 inches of water and he lost 60 head of cattle and 100 calves, along with machinery. His house was again flooded after Tropical Storm Imelda.
Lawsuits
The landowners filed inverse-condemnation suits under the Texas and U.S. constitutions in Texas state district court. After transferring the cases to federal court, Texas initiated a motion to dismiss, asserting that property owners were not permitted to sue directly under the Fifth Amendment.
According to Texas, the takings claims could only be pursued under a statutory provision 42 U.S.C. § 1983. Since the state is immune from suits under that statute, Texas maintained that it could not be sued for violating the Fifth Amendment.
A magistrate judge called Texas’ argument “pretzel logic” that would allow states to take private property and leave them with no constitutional remedy. The judge said this would “eviscerate hundreds of years of Constitutional law in one fell swoop.” The judge recommended denying Texas’ motion to dismiss, and the district court adopted the recommendation.
Texas appealed the decision to the 5th Circuit Court of Appeals. The court reversed the decision, writing, “Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state, we vacate the district court’s decision and remand for further proceedings.”
The circuit court denied a rehearing, and the landowners petitioned SCOTUS to review the lower court’s decision.
Argument
The landowners argued whether property owners can assert their rights to just compensation under the Takings Clause without relying on a statutory cause of action such as § 1983. They claim that SCOTUS answered the question in the case of First English Evangelical Church v. County of Los Angeles, which held suits for just compensation do not need “statutory recognition” because they are “founded upon the Constitution of the United States itself.”
The landowners continued that the court’s consistent reaffirmation of First English’s core principle underscores that the Constitution authorizes lawsuits for just compensation, a principle applicable across statutory and constitutional commands to pay money.
The court document cited history and text supporting the basis for compensation, arguing that the “right to prompt compensation is central to the Fifth and Fourteenth Amendment’s protections of individual rights. Texas has mustered no authority to the contrary.”
Hearing
According to the Texas Tribune, the principal argument during oral arguments was whether the case should be heard in state or federal court.
Aaron Lloyd Nielson from the Texas Attorney General’s Office contended that the Constitution doesn’t specify the procedure for governments to provide compensation, granting the state the authority to determine the claims process. Additionally, he argued that the petitioners neglected to utilize the channels established by the Texas Constitution to assert their claims.
Texas requested the case be heard at the federal level, and Nielson said the case aligns with SCOTUS’ “bread and butter” as it lines up with their scope of expertise.
However, the justices found the argument perplexing, with Justice Sonia Sotomayor calling the decision to move the case to a federal court a “bait-and-switch” argument.
“This seems to me like a totally made-up case because (the property owners) did exactly what they had to do under Texas law,” she said to Nielson.
Robert McNamara, an attorney with the legal nonprofit Institute of Justice, argued the filing of the lawsuit was according to Texas law and the state chose the venue to hear the case.
Texas “decided to move the case to federal court and then try to extinguish these people’s federal constitutional rights,” McNamara said.
According to the Texas Tribune, McNamara left the hearing optimistic and said that if SCOTUS supported the landowners, it would strengthen the case in the lower federal courts. However, if justices favored the state, the case will return to the state court. State attorneys are willing to receive an amended case addressing particular concerns without opposition.
“I think whatever happens with the court, we have already won this case,” McNamara said. — Charles Wallace, WLJ contributing editor
