Supreme Court looks for highway out of flooding fight  

WASHINGTON (CN) — A fight over a Texas highway barrier divided the Supreme Court on Tuesday as the justices probed a lawsuit from landowners whose property the roadblock flooded. 

Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett were critical of originalist arguments claiming property owners could sue the state for compensation. Thomas said the landowners’ arguments were at odds with how 19th-century courts handled property rights. 

Gorsuch seemed to think the framers would have thought there was a remedy available to the landowners, but not the one they proposed. Barrett questioned how the founders would have envisioned this kind of lawsuit if they created the Fifth Amendment — which the landowners argue supports their suit — years before giving federal courts jurisdiction over those questions. 

“If the 14th Amendment incorporated the Fifth Amendment as it was, there’s a mountain of historical evidence that you've got to contend with,” Barrett said. 

Some of the justices, however, were uninterested in participating in Tuesday’s historical analysis. 

“Suppose that I'm not such an originalist, and I don't really care about that,” Justice Elena Kagan said. 

Kagan said the case was less about Texas blocking the landowners’ suit and more about Texas preventing the owners from using their property. 

“It's not even clear that the word remedy is appropriate here,” the Obama appointee said. “It's a right to compensation, and the state by taking the land and not compensating is violating that right every day. It's not that the state is failing to provide a remedy. The state is violating the right to be paid.”

The landowners brought the lawsuit at the center of Tuesday’s arguments after Texas renovated Interstate 10 to create an evacuation route during flooding. The Department of Transportation built a traffic barrier across the highway, to work as a dam against floodwaters from the north. While this solution kept water from the eastbound lanes, it didn’t prevent flooding as much as it diverted water away from the highway. 

Property owners in the area felt the effects of that diversion during Hurricane Harvey in 2017. Since the barrier prevented water from flowing south into the Gulf of Mexico, water collected on the north side of the highway and created a lake. 

Two years later, the same thing happened after Tropical Storm Imelda. Steven DeVillier, who led the lawsuit at issue in this case, asked authorities to remove sections of the barrier to prevent flooding. Still, they refused and the entire area flooded again. 

At the Supreme Court, the landowners told the justices that the Fifth Amendment should allow them to sue the state for compensation. 

“The question presented in this 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,” Robert McNamara, of the Institute for Justice representing Deviller, said. 

Although the justices were critical of the historical argument presented by McNamara, there was some consensus that the landowners should have some path to relief. Chief Justice John Roberts seemed to think the landowners were left in an impossible situation. 

Texas said the landowners should bring their lawsuit in state court — not federal court — but as soon as they brought the state court cases, they were consolidated in federal court, where Texas is arguing the case cannot proceed. 

“Isn’t that a Catch-22,” Roberts said. 

Justice Sonia Sotomayor described the scenario as a bait and switch.

“This seems to me like a totally made up case because they did exactly what they had to do under Texas law,” the Obama appointee 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.” 

Texas assured the justices that it had high respect for the rights of property owners. Instead, the state argued that the case wasn’t about rights but how the lawsuit came about. 

“The court will be hard pressed to find any government more committed to property than Texas,” Aaron Nielson, Texas solicitor general, said. “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. This appeal thus isn't about substantive rights.” 

The high court will issue a ruling by this summer. 

Follow @KelseyReichmann

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