Supreme Court lets Texas landowners sue over highway flooding

WASHINGTON (CN) — The Supreme Court on Tuesday knocked down barriers that prevented Texas landowners from suing the state for building a highway barrier that flooded their property. 

The justices ruled unanimously in favor of Steven DeVillier and his fellow landowners, finding the Constitution of Texas and Fifth Amendment’s taking clause offer the plaintiffs a cause of action to seek compensation for damages.

The justices vacated the Fifth Circuit Court of Appeal’s ruling to block the suits and remanded the case to federal court in Texas.

Supreme Court Justice Clarence Thomas wrote the court’s opinion. The George H.W. Bush appointee noted that the case was before the court solely to determine the procedure by which a property owner can try to get compensation.

“Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts,” Thomas wrote.

“Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose. DeVillier argues that the takings clause is an exception.”

Texas renovated Interstate 10 to create an evacuation route during flooding. The state used a traffic barrier as a dam to divert flood water from the north. Instead of sitting on the highway, water was forced into neighboring properties. 

During Hurricane Harvey in 2017 and Tropical Storm Imelda in 2019, Texans living next to the highway faced massive floods on their land because of the traffic barrier. One of these landowners, DeVillier, asked the Department of Transportation to remove the roadblock. The state refused. 

DeVillier and over 120 other landowners sued the state and their lawsuits were consolidated in federal court. The landowners said Texas owed them compensation for the flooding caused by the state’s highway construction. 

The lower courts, however, found DeVillier and the other landowners couldn’t sue the state for a Fifth Amendment violation, siding with Texas as it argued the suit belonged in state court. 

DeVillier appealed to the originalists on the bench during arguments in January. He implored the justices to uphold the historic tradition of allowing property owners to sue for compensation when the state causes harm to their land. 

Citing the Supreme Court case First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, DeVillier said the just compensation requirement of the takings clause is self-executing — meaning a claim doesn't need to be connected to a specific, related law. 

He pointed to similar takings cases where property owners sought injunctions, such as easements or zoning regulations, that were not brought under the federal statute governing civil actions for deprivation of rights.

In DeVillier’s view, because those cases did not rely on that statue, they must have proceeded under the U.S. Constitution directly. 

Thomas admitted there was little Supreme Court precedent that said whether a plaintiff had a cause of action directly under the takings clause that could easily agree or reject DeVillier’s argument. 

“But, this case does not require us to resolve that question,” Thomas wrote. The only question was what avenue a plaintiff may pursue if they have no cause of action under the takings clause. 

“The premise that Texas left DeVillier with no cause of action to obtain the just compensation guaranteed by the takings clause does not hold,” he wrote, noting that during arguments, Texas said its inverse condemnation cause of action would provide the landowners a vehicle for their claims. 

Therefore, the case did not have the required circumstances to answer the question at issue.

In ordering the remand, Thomas said DeVillier and the landowners should be allowed to advance their claims under the takings clause through the cause of action under Texas law that the state cited. 

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