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More than four years after Tropical Storm Imelda opened up the sky and released a torrent of rain on Southeast Texas, a unanimous decision of the U.S. Supreme Court has granted property owners north of Interstate 10 the right to sue Texas for causing excessive flooding via a concrete barrier built by the Texas Department of Transportation to keep the south side of the interstate open for evacuation traffic. As alleged by local rancher Richie Devillier and more than 120 other claimants against the state of Texas, the 3-foot concrete barrier erected by the state turned their properties into a large, government-mandated detention pond in 2019 – and owners should be compensated for the state’s use and abuse of private land, possessions and livestock.
You break, you buy
Devillier’s family settled down for ranching in Winnie by way of Beaumont after coming to Texas from Louisiana many moons ago, the latest generation of Devillier shared.
“The interstate system was not there initially,” Devillier said. Mostly nothing was in Winnie when the first Devillier’s arrived; initial settlers never experienced two “1,000-year storms” just two years apart. Then came Hurricane Harvey in 2017. “We’d never see any flooding like that before.” Harvey was the first time Devillier’s family experienced significant loss, he said, attributed to the 3-foot concrete barrier installed on Interstate 10 that resulted in storm water pooling to the Devillier’s side of the freeway. Roughly two feet of water tore through his property, ruining crops, killing animals, wreaking havoc on his personal belongings. The family persevered and took the loss on the chin, essentially – until it happened again in 2019.
“We lost dozens of cattle, several horses, a colt…,” Devillier said. Devillier and his family tried, in vain, to rescue livestock flooded in the field but, with everything including the fence gates underwater, the rescue attempt was futile. “That was a surreal thing to go through.” Devillier’s parents, elderly and in ill health, spent their last few months on this earth displaced from their home and in constant peril over the devastation they witnessed.
“That’s the kind of thing you can’t be compensated for,” Devillier added, as the loss “robbed them of the quality of life of their last few months.
“That was a terrible thing to witness.”
“There was no other option,” Devillier decided, but to sue Texas after the second incident.
Taking on the case without charge, the Institute for Justice (IJ) filed suit in 2020, arguing in state court that Texas wasn’t allowed to use private land as a detention pond without paying for the privilege. Texas, granted a request to move the case to federal court because Devillier and his neighbors were invoking federal law, then argued that the state wasn’t allowed to be sued at all.
“After the Civil War, Congress enacted the Civil Rights Act of 1871, which authorizes people to sue individuals and local governments like cities or counties when they violate the Constitution, but it doesn’t say anything about suits against states,” IJ staffer Andrew Wimer summed up of the state’s argument. “If no law allows property owners to sue for just compensation, Texas can never be sued for just compensation. In short, Texas’ position was that states only have to follow the Constitution if they allow it.”
The trial court rejected the state’s argument of not being subject to the Constitution of the United States, as it flew in the face of decades of Supreme Court precedent. Texas then appealed to the 5th U.S. Circuit Court of Appeals.
“Texas insisted that it could not be sued under the Fifth Amendment because federal civil-rights statutes only authorize suits against individuals or local governments – not the states,” Wimer again translated of Texas argument. “And, it won: The Fifth U.S. Circuit Court of Appeals held that the Devilliers could not sue Texas for failing to pay just compensation under the Fifth Amendment’s Takings Clause.”
IJ Deputy Litigation Director Robert McNamara refused to allow the 5th Circuit to have the final word and was granted U.S. Supreme Court review of the issue at heart. McNamara, analyzing the appeals decision, summed up the state’s stance as being that, since there is no statute saying Texas has to follow the Constitution, Texas is not subject to the Constitution.
“It’s frustrating to look out at a world full of injustices,” McNamara said, adding to the list that Texas is arguing that residents must ask, hat in hand, for the state to honor the American Constitution. “It’s gratifying when your job is to correct those.
“We adopted a Constitution so it’s not a request for justice; it’s a command for justice.”
Texas two-step
At the Supreme Court hearing in January, the state of Texas offered differing argument through Solicitor General Aaron Nielson.
“Governments must provide just compensation, but the Takings Clause says nothing about how they must do it, whether through commissions, private bills, or litigation,” Neilson argued, and again “rung-around-the-rosie” with stating that the claim did not belong in federal court although Texas is the party that asked for the case to be removed to federal court. Justice Sonia Sotomayor characterized the move as a “bait and switch.”
“This seems to me like a totally madeup case because they did exactly what they had to do under Texas law,” Sotomayor insisted to the Solicitor General, who said maybe he “misunderstood” the cause of action originally filed. “And, as I said, it's hard for me to quarrel with it because Texas does pay money,” Neilson conceded, then added, “But, conceptually, I don't know how you get there.”
Supreme Court justices determined that Texas needs to figure out how to get there, admonishing Neilson as to the “Catch-22” the state is trying to pull on its residents.
If Texas had won, McNamara said, there would be no litigation moving forward; Texas did not want the case to proceed in state court.
“Instead, the court … ruling makes clear that Texas can be sued under the Fifth Amendment and that the claims Texas wanted thrown out will instead go to trial in that same federal district court,” McNamara stated. “The party that gets what he wants is the party that won. What Texas did is called losing.”
Moving forward, Devillier’s case will start back nearer Square One. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with the Supreme Court opinion.
“This is the pinnacle of a long, hardfought battle, and we can’t stress enough what a blessing this is,” Devillier said, still looking at a long road ahead to finality. “Most of all, we want this issue solved – for our family, for our area.
“If it can happen to us, it can happen to anyone. Anyone is at risk. Where are our rights going from here?”