The Supreme Court has agreed to hear the appeal of a Texas farmer who is suing his state’s transportation department for damaging his family’s farm.
The petition in Devillier v. Texas (court file 22-913) was granted on Sept. 29 in an unsigned order. No justices dissented. The court did not explain its decision. At least four of the nine justices have to vote to hear a case in order for it to move forward.
Richie Devillier sued the Texas Department of Transportation in 2020 after a concrete barrier was installed on a highway that caused serious flooding on his property.
Mr. DeVillier and his family have lived on their farm in Winnie, Texas, since his grandfather bought the land 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, according to the Institute for Justice, a public interest law firm that is representing him.
Now, whenever there is a heavy rainfall, Mr. DeVillier’s land becomes a lake.
“These floods have destroyed countless crops and killed several animals. When the DeVilliers sought to be paid for the destruction, the state refused. And when the family sued, the 5th U.S. Circuit Court of Appeals held that they couldn’t—because Congress has never passed a law allowing citizens to sue states for taking property, the Fifth Amendment’s guarantee of ‘just compensation’ was unenforceable,” the law firm said.
According to Mr. Devillier’s petition filed with the court on March 17, the case arises out of a series of inverse-condemnation cases filed in Texas state courts, all of which claimed the highway project caused widespread flooding. Inverse condemnation is when a government takes or damages property for public use without having gone through an eminent domain proceeding.
“The flooding was no accident: In an effort to make sure that the eastbound lanes of Interstate Highway 10 … would be available as an evacuation route in the event of a flood, the Texas Department of Transportation raised the highway’s elevation, added two additional lanes, and installed a nearly three-foot ‘impenetrable, solid concrete traffic barrier on the highway’s centerline.’”
The median barrier worked as it was supposed to, creating a low-head dam that barricaded rainfall on the north side: Water that would otherwise have moved south into the Gulf of Mexico stopped on Highway 10.
The project was successful in the sense that it made sure 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.
A group of landowners filed inverse-condemnation lawsuits arguing that the flooding of the land amounted to a taking under the Texas constitution and the Fifth Amendment to the U.S. Constitution. Texas had the cases transferred to federal court.
The cases were then consolidated into a single proceeding comprising nearly 80 distinct property-owner plaintiffs, according to the petition.
The federal district court sided with Mr. Devillier but the U.S. Court of Appeals for the 5th Circuit reversed.
The circuit court found that the Fifth Amendment’s Takings Clause “as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state.” The court vacated the district court’s decision and remanded that case to the district court for further proceedings.
Mr. Devillier’s attorney, Robert McNamara of the Institute for Justice, was pleased with the Supreme Court’s decision.
“If there is one basic principle in property law, it’s the Pottery Barn Rule: You break it, you buy it,” he said in a statement.
“The Fifth Circuit’s decision in this case amounts to ‘you pay if you feel like it.’ But the Constitution’s Takings Clause demands more.”
Mr. Richie was gratified that the nation’s highest court will hear his appeal.
“This isn’t just about our family farm, it’s about the state of Texas respecting the rights of its citizens,” he said.
“The Supreme Court’s decision to take our case signifies a crucial step towards holding Texas accountable for its actions.
“My family has worked this land for generations and we’ve never experienced the devastating flooding that has now become a terrifying norm. Texas’s refusal to pay for the damage it caused has been a gross violation of our rights.
“It’s not just about us, it’s about all property owners, and the fundamental principles of responsibility and fairness. We hope this case will set a precedent that governments cannot ignore the Constitution and must be held accountable for their actions.”
The Epoch Times sought comment from Lanora Pettit, Principal Deputy Solicitor General in the Office of the Texas Attorney General, but had received no response at the time of publication of this article.
Oral arguments in the case have not yet been scheduled.
