Supreme Court Argument

Victory! On April 16th, the Supreme Court vacated the Fifth Circuit decision and ruled the Devillier family can sue Texas for flooding caused by the state.

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Texas Dam Turns Family Farm Into Lake. State Refuses to Pay
Interview with Richie DeVillier
Animation Showing the Flooding
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Richie DeVillier lives on the same patch of Texas land where his father was born. His cattle ranch outside of Houston has been in his family since his great-grandfather—“Skunk” DeVillier—homesteaded the land back in the 1920s. His house is on DeVillier Road. You get the picture: He has roots.

And, for all the time his family has worked this land, it hasn’t flooded. There has been rain—outside of Houston, there’s plenty of rain—but water flowed naturally south into the Gulf of Mexico.

That all changed a few years ago when the Texas Department of Transportation renovated IH-10, the highway that runs just south of Richie’s ranch. The state raised the highway, but it also installed a three-foot-high, watertight concrete barrier all along the middle of it—basically a dam. 

When Hurricane Harvey hit the area in 2017, the dam worked. Richie’s land—along with his neighbors’ land as far as the eye could see—spent days submerged in feet of water that could not get past the wall in the middle of the highway. Animals died. Trees died. The area was devastated.

Then, when Tropical Storm Imelda came a couple years later, the same thing happened again—the same flood, at the same level, held back by the same dam. The problem wasn’t the rain; there had always been rain in the area. The problem was that Texas’s dam was turning all the land north of the highway into a lake any time there was significant rainfall. 

And so Richie and his neighbors sued. Texas can, if it needs to, turn a ranch into a lake, but the Takings Clause of the Constitution says it cannot do so without paying for the land. 

But then Richie’s case took a strange turn. It was true, Texas admitted, that the Takings Clause requires the government to pay for land it takes (which includes land it makes unusable by, say, recurrent flooding). But Congress has never passed a statute commanding Texas to obey the Fifth Amendment—and, at least according to Texas, that means the state doesn’t have to.

Amazingly, the 5th U.S. Circuit Court of Appeals agreed. In the wake of the Civil War, Congress adopted a law that allows people to sue cities and individuals who violate their rights, but that law doesn’t say anything about lawsuits against states. And that means that, for Texas, paying just compensation is optional. That rule is both dangerous and wrong. True, Congress never passed a law commanding Texas to follow the Constitution, but the Constitution itself commands Texas to follow the Constitution. That is why Richie has teamed up with IJ to ask the United States Supreme Court to clarify that the Constitution isn’t just a good idea—it’s the law. And states have to follow it, even when they don’t want to.

“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.”

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Richie DeVillier runs a cattle ranch in Winnie, Texas, just north of IH-10 outside of Houston, on a piece of property that has been DeVillier land for a century. The area was first homesteaded by Richie’s great-grandfather, Olide Coulon DeVillier—called “Skunk,” for reasons no one seems quite sure of—and Richie looks forward to his own son taking over the ranch one day. 

The entire region is filled with DeVilliers. Richie’s cousin, Stevie, owns some more of the ancestral family land nearby. Richie’s house itself sits on DeVillier Road. And for the entire time the family has lived there, no one remembers the area ever flooding. It’s a wet place—the Houston area regularly gets tropical storms—but stormwater generally drained into the Gulf of Mexico, which is only a few miles south of Richie’s land.

That all started to change when the Texas Department of Transportation renovated IH-10. The state raised the elevation of the road, but it also installed a barrier along the middle of the highway—three solid feet of watertight concrete. The barrier was, for all intents and purposes, a dam just south of Richie’s property. 

After that came the floods.

The first flood was in 2017, when Hurricane Harvey hit the area and Texas’s new dam did its job. Water that used to flow into the Gulf found itself with nowhere to go, and so it stayed put. Richie’s land, along with that of all his neighbors, sat feet-deep in water for days. The results were devastating. Dozens of cows, calves, horses, and other animals died. Crops were destroyed. Richie’s cousin’s grove of perennial olive trees? Dead. 

The neighbors knew what was wrong—the dam. And so they begged Texas to remove it, to add additional drainage, to do something. But Texas refused. One state engineer told Richie that they couldn’t remove the dam because they needed to keep the south side of IH-10 dry so emergency vehicles could pass during storms. And the dam did that, but it did so at the cost of making everything on the north side very wet for a very long time.

With the dam still standing, the floods kept happening, even without a hurricane. When Tropical Storm Imelda came through a couple years later, it caused the same flood, at exactly the same depth. The problem was not the strength of the storm. It was the dam that Texas refused to remove.  

The Constitution Requires The Government To Pay For What It Takes.

So Richie and his neighbors sued. The Fifth Amendment to the United States Constitution says that if the government takes private property for public use, it must pay “just compensation.” So Texas can, if it wants, decide that the public needs Richie’s ranch to instead be a lake. It just has to pay for the land it wants to flood.

Texas requested that the case be moved from state court to federal court, which it was allowed to do because Richie and his neighbors were invoking federal law. But once Texas got to federal court, it told the judge 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. And so, the argument went, if no law allows property owners to sue for just compensation, Texas can never be sued for just compensation. In short, Texas’s position was that states only have to follow the Constitution if they allow it.

The trial court rejected this argument entirely. That argument, the judge ruled, flew in the face of decades of Supreme Court precedent holding that the Fifth Amendment’s just-compensation requirement was mandatory and enforceable even without statutory recognition. Texas’s position would mean that states could flout the clear command of the Fifth Amendment with impunity. It was, the judge said, “pretzel logic.”

But Texas appealed to the 5th U.S. Circuit Court of Appeals—and the appellate court liked the pretzels a little more. It held that citizens may only enforce the Constitution if a statute authorizes them to enforce the Constitution—which meant Richie and his friends were out of luck. Texas might well be violating the U.S. Constitution, but there was nothing they could do about it.

States Have To Follow The Constitution Even When They Don’t Want To

The appellate court’s ruling is both wrong and dangerous. It is wrong because the commands of the Constitution are just that—commands. Just like Congress cannot repeal a constitutional amendment by passing a statute, it cannot repeal a constitutional amendment by refusing to pass a law. 

But it is also dangerous because if states only have to pay for property when they want to, they will frequently decide they’d rather not. One need look no further than one state over in Louisiana: There, the state constitution also requires compensation when property is taken as a matter of state law, but it also forbids courts from doing anything to enforce their judgments. So when a local port district used eminent domain to condemn the Violet Dock Port, a court awarded millions of dollars in just compensation that the government proceeded to simply not pay. In the absence of federal remedies, states will be free to decide for themselves how much (and whether) to pay for property they confiscate.

And the burdens of that policy will fall on the shoulders of the poor and the politically powerless. Politically powerful property owners who have the wealth and connections to stop their property from being taken in the first place will use that power. But those who are on the outs will lose out—and, with no federal courts to turn to, lose out permanently. Research shows that government takings of private property disproportionately affect poor people and racial minorities. The Constitution, of course, was meant to prevent political majorities from shifting the costs of public works wholly onto a small, politically unpopular group. But in the absence of a way to enforce the Constitution, nothing will be there to stop them.

Richie and his neighbors are not alone. In recent years, federal courts have made it harder and harder for citizens to hold government officials accountable when they violate the Constitution. The Fifth Circuit’s ruling suggests that this means no constitutional remedies can be enforced by courts—even the remedies specifically laid out in the Constitution itself. That rule is a death knell for constitutional accountability, and that is why the Supreme Court must reject it.

Litigation Team

The litigation team is Deputy Litigation Director Robert McNamara, IJ Attorneys Andrew Ward, Christie Mason Hebert, and Suranjan Sen, joined by Texas counsel Daniel Charest and Lawrence Vincent (of the firm Burns Charest LLP) and Charles Irvine of Irvine Connor PLLC.