Supreme Court Grapples With Landmark Texas Land Feud

The Supreme Court grappled with a landmark case on Tuesday that could determine whether landowners have a legal right to sue states for compensation for property damage under the Taking Clauses of the Fifth Amendment to the U.S. Constitution.

Texas rice farmer Richard DeVillier and more than 70 other landowners living alongside Interstate-10 say that recent state-backed expansion works on the freeway have caused devastating flooding on their properties in the past few years.

Residents and property owners affected, led by DeVillier, sued the state of Texas in 2020 for the damages suffered, asking for compensation. They claim that the flooding on their homes and farms equates to the government taking their property as legislated under the Fifth Amendment, which gives it the right to take private property but requires it to pay compensation in return.

The state of Texas, on the other hand, claims that it does not need to pay because it has no intention of actually taking the property. It also argues that the Takings Clause isn't self-executing, and only Congress can extend a federal right to sue a state for taking private property.

The land feud reached the Supreme Court on Tuesday, with justices listening to arguments on whether DeVillier should receive federal relief, and whether the case should be heard by a federal court or a state court.

DeVillier's original complaint was made in a state court, and that is where it is still sitting, but the state remanded the case to a federal court, saying this kind of issue was the Supreme Court's "bread and butter," as in the words of Texas Solicitor General Aaron Lloyd Nielson.

In a rather confusing way, the state also said that federal courts were not the right place to discuss DeVillier's lawsuit because Texas has its own process for landowners to seek compensation for property taken by the state government.

On Tuesday, Supreme Court Chief Justice John Roberts described the dilemma as "a Catch-22."

"[Y]ou say they have to proceed in state court. They can't proceed in federal court. And as soon as they do, you remove it to federal court[...]where you say they can't proceed?" said Roberts.

"This seems to be a totally made-up case, because [the plaintiffs] did exactly what they had to do under Texas law," Justice Sonia Sotomayor said.

What the Supreme Court now has to decide is whether a state can be sued for violating the Fifth Amendment. The ruling has extremely high stakes, as it could potentially have a dramatic impact on expanding—or restricting—the rights of landowners in the entire country.

"States across the country have recognized that they have an enforceable obligation to pay for the property they take. And what Texas has asked the Supreme Court to do in this case is to say that's not true," Robert McNamara, the lead Institute for Justice attorney representing DeVillier told Newsweek.

"It's to say that instead, states are free to take property, and they have discretion to decide how or even whether they pay for it. If Texas prevails, it creates a serious threat to property rights nationwide."

During Tuesday's oral arguments, Justice Neil Gorsuch pointed out that while the
Fifth Amendment "envisioned some remedial mechanism would be available," that
doesn't "necessarily mean there's a federal cause of action" for DeVillier's request for compensation.

Justice Elena Kagan appeared to lean towards landowners, challenging Nielson's defense of the state of Texas. "[I]f a state takes a person's property and doesn't give compensation, that state is violating the Constitution every day—it's an ongoing violation," Kagan told Nielson on Tuesday.

"So aren't courts supposed to do something about that?" she asked.

Roberts also challenged Nielson, questioning him on Texas' interpretation of Supreme Court precedent.

"What we said in [Knick v. Township of Scott, Pennsylvania] is that the Constitution of its own force furnishes the basis for a court to award money damages," Roberts said, referring to a 2019 case that reversed long-standing precedent requiring takings claims to be first raised in state court before being brought to federal court.

Justice Samuel Alito said that if people's ability to sue a state for just compensation was left entirely on Congress's discretionary choice to create lower federal courts and give them jurisdiction to entertain such claims, "that sounds like a very weak right."

Newsweek contacted the Texas solicitor general for comment by email on Wednesday.

"Texas' argument basically boils down to when it comes to government takings, you should just trust us," McNamara told Newsweek.

"But the whole point of having a constitution is that we don't trust the government. And so we want enforceable rules of the road that will stop them from abusing their power," he added.

"Right now, those rules are in place in states nationwide. Texas' argument threatens to take them away and leave state governments in charge of deciding whether they want to pay for the land they take. And if history is any guide, they're not going to want to pretty often."

Texas I-10 is the longest continuous untolled freeway in North America operated by a single authority, the Texas Department of Transportation. The Texas segment of the I-10 runs for just under 880 miles from Anthony, at the border with New Mexico, through El Paso and Houston to the border with Louisiana, in Orange County.

DeVillier, who owns a rice farm north of Houston, which has been in his family since the 1920s, said that his property never flooded before the expansion work was done on the I-10 a few years ago. It first flooded during Hurricane Harvey in 2017 and then again during Tropical Storm Imelda in 2019. Since then, the farm has flooded every time that Texas has experienced severe rainfall.

Update, 1/17/24 11:30 a.m. ET: This article was updated to include a comment from Robert McNamara of the Institute for Justice.

Correction 1/17/24 12:33 a.m. ET: This article was updated to make clear that Aaron Lloyd Nielson is the Texas solicitor general, not the attorney general as originally stated.