The Supreme Court heard on Jan. 16 the appeal of a Texas farmer suing his state’s transportation department for damaging his family’s farm.
The case, Devillier v. Texas, arises out of a series of inverse-condemnation cases filed in Texas state courts, all of which claimed a highway project caused widespread flooding. Inverse condemnation is when a government takes or damages property for public use without going through an eminent domain proceeding.
Richie Devillier and his family have lived on their farm in Winnie, Texas since his grandfather purchased the property in the 1930s. And for most of that history, the land never flooded. Then, in the early 2000s, the Texas Department of Transportation renovated nearby Interstate 10, increased its height, added two lanes, and installed a concrete barrier in the median.
The median barrier created a low-head dam that kept rainfall on the north side. Water that would otherwise have moved south into the Gulf of Mexico stopped on Highway 10.
The project ensured that part of the road remained navigable even in flood conditions, but it led to flooding of the south side of the highway in times of heavy rainfall, which damaged local properties.
Now, whenever there is heavy rainfall, Mr. Devillier’s land is turned into a lake. Crops and farm animals have been destroyed.
Texas had the lawsuits brought by land owners, including Mr. Devillier’s, transferred to federal court. The cases were then consolidated into a single proceeding comprising nearly 80 property-owner plaintiffs.
They sought compensation, and the state refused.
The U.S. Circuit Court of Appeals for the 5th Circuit held that the state could not be held liable because Congress has never passed a law allowing citizens to sue states for taking property. In other words, the U.S. Constitution’s Fifth Amendment guarantee of “just compensation” was not enforceable.
The Fifth Amendment states: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Mr. Devillier’s attorney, Robert McNamara of the Institute for Justice, said the question presented in the case “is resolved by the text of the Fifth Amendment, which, unlike any other provision of the Constitution, imposes on the government … an explicit duty to pay money.”
The Supreme Court held in First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987) that “the just compensation remedy is mandatory and that the Fifth Amendment itself furnishes a basis on which a court can award just compensation in an inverse condemnation case,” the lawyer said.
“And this right of property owners to sue in inverse condemnation to obtain just compensation for an alleged taking is at the heart of modern American takings law,” he said.
“To reject that cause of action now is to upend the way lower courts, both state and federal, understand the Takings Clause to work and also to abandon this court’s consistent explanations of that clause not just in First English but in more recent cases like Knick v. Township of Scott.”
There is no reason to make a “drastic change,” Mr. McNamara said.
“This court has already recognized that money-mandating legal obligations logically come along with the right to file a lawsuit to enforce those obligations.”
Justices’ Remarks
Justice Neil Gorsuch said the Fifth Amendment “envisioned some remedial mechanism would be available. And the common law [of] trespass … might have been it, or conversion might have been it. It … doesn’t necessarily mean that there is itself an independent cause of action under the Fifth Amendment.”Texas Solicitor General Aaron Nielson said the state respected property rights.
“The court will be hard-pressed to find any government more committed to property than Texas. The Texas constitution is more protective than the federal Constitution, and Texas courts under a Texas cause of action adjudicate takings claims under both constitutions,” he said.
All the landowners had to do “was use Texas’s cause of action. Instead, [the landowners] insist they can bring a cause of action directly under the federal [Constitution’s] Takings Clause itself. This argument is wrong for many reasons,” Mr. Nielson said.
Several justices seemed to believe landowners should be able to obtain relief for the losses they suffered.
The court heard that Texas told the property owners they should file lawsuits in state court, but after they did so, the cases were consolidated in federal court. Then Texas argued the case, now in federal court, could not move forward.
“Well, isn’t that a … Catch-22?” Chief Justice John Roberts told Mr. Nielson.
“There’s certainly a federal substantive right to relief … [but] a substantive right does not, therefore, mean that there is a cause of action,” Mr. Nielson said.
Justice Elena Kagan asked Mr. Nielson if he agreed with Mr. McNamara “that if a state takes a person’s property and doesn’t give compensation, that state is violating the Constitution every day? It’s an ongoing violation. Do you agree with that?”
Mr. Nielson replied, saying, “I certainly agree that’s a violation of the Constitution.”
Justice Kagan said if the state has taken property, “Aren’t courts supposed to do something about that?”
Justice Sonia Sotomayor suggested Texas had treated the landowners unfairly.
“This seems to me like a totally made-up case because they did exactly what they had to do under Texas law,” she said.
“It’s almost a bait and switch that you wanted to get to federal court to basically have a class action, and you couldn’t do it in state court.”
Mr. Nielson said, “There’s no bait and switch here—I want to be clear on that, no bait and switch.”
The Supreme Court is expected to rule on the case by June.
