“If you break it, you buy it” is a simple rule that anyone who has shopped at a Pottery Barn probably already knows. It means that if you cause damage to someone else’s property, you are responsible for paying for that damage. And yet, the state of Texas argues that this basic tenet does not apply to state governments when they take private property for public use. Unfortunately, in direct defiance of decades of Supreme Court precedent, the 5th U.S. Circuit Court of Appeals agreed, and now the Institute for Justice (IJ) is helping a fourth-generation family farm appeal their case to the U.S. Supreme Court.
“There is not an asterisk next to the Fifth Amendment that says the government doesn’t have to pay just compensation if it doesn’t want to,” said Institute for Justice Senior Attorney Robert McNamara. “The Supreme Court has repeatedly affirmed Americans’ right to just compensation is an inherent part of the Constitution. It cannot be ignored or circumvented by the government or the courts.”
Petition for Certiorari
Richie DeVillier is a farmer who has lived on his family’s land in Winnie, Texas, for generations. For as long as anyone can remember, the DeVilliers’ land has never flooded—that is, until the early 2000s, when the Texas Department of Transportation (TxDOT) renovated a nearby highway. In an effort to make sure the eastbound lanes of the highway would be available as an evacuation route in the event of a major flood, TxDOT raised the highway’s elevation and built an impermeable concrete barrier down the median.
Now, whenever a major storm hits, the DeVillier family farm and many of the surrounding properties are inundated. The effects have been devastating. When Hurricane Harvey hit the Houston area, countless acres of crops were ruined. For days their farmland resembled a lake. Innumerable cows and horses died—drowned, or just killed by the cumulative effects of standing chest-deep in water for days on end. The damage was enormous. Two years later, while the DeVillier family was still recovering, Tropical Storm Imelda hit the area, and once again their land flooded. When they complained, the state did next to nothing and refused to pay for the damage caused by its public works project.
“My family has farmed this land for generations, and we’ve never seen anything like this flooding before,” said Richie. “It destroyed our crops, killed our animals, and caused untold damage to our property. I don’t know if we’ll ever be able to farm this land again without worrying that we’ll lose everything in an instant. When we talked to the state, they basically said ‘tough luck.’ That’s not right. We shouldn’t have to pay the price for a public works project that benefits the entire community. We’re not asking that they get rid of the wall. The only thing we’re asking for is the right that is guaranteed to us by the Constitution—the right to be compensated for the damage done to our property.”
Their only option was to take the state to court, which they did in 2020. Texas courts allow property owners to file lawsuits for takings of their property, but Texas’ lawyers asked to have the case moved to federal court. Once they were there, they asked the federal judge to throw the case out because Congress has never passed a law allowing people to sue states for taking their property. That’s true—federal civil-rights laws only allow lawsuits against people, not against states—but courts across the country have held that, when it comes to takings, people do not need a law giving them a remedy. Instead, the Constitution, which guarantees “just compensation” for takings, guarantees the remedy. Shockingly, though, the Fifth Circuit sided with Texas, holding that property owners whose land is taken by the state don’t have any federal remedy at all. The DeVilliers’ claim did not exist at all.
That ruling is wrong, and it conflicts with rulings of both the Supreme Court and other courts nationwide. That is why the Institute for Justice has filed a petition for certiorari asking the Supreme Court to take up the DeVillier family’s case and affirm that states cannot ignore the Constitution.
“Federal courts are supposed to be places where citizens go to have their constitutional rights vindicated,” said IJ Litigation Fellow Trace Mitchell. “This ruling turns them into places where the government can run to hide when they have violated people’s rights.”
“This case is about holding the government accountable and ensuring that the Constitution’s protections for property owners are respected,” said Scott Bullock, chief counsel and president of the Institute for Justice. “The Institute for Justice will continue to fight for the property rights of all Americans, and we believe that this case will be a critical turning point in that ongoing struggle.”