Texas landowners say state highway floods their property, asks Supreme Court for compensation

The Supreme Court heard Tuesday from Texas landowners who say a state highway extension intentionally floods their property, damaging buildings, crops and equipment.

What’s worse, they say, is that the state hasn’t compensated them for the “taking” of their land.

“The just compensation remedy is mandatory,” said Robert J. McNamara, the lawyer representing the land owners. “This right of property owners … is at the heart of modern American takings law.”

Dozens of landowners filed lawsuits in state court against Texas. They argued that the use of their land for water runoff constitutes a “taking” under the state constitution and the U.S. Constitution’s Fifth Amendment, which says private property can’t be “taken for public use, without just compensation.”

Texas consolidated the lawsuits into a single case in federal court, which ruled that the Takings Clause applies and rejected the state’s move to dismiss the suits.

However, the 5th U.S. Circuit Court of Appeals ruled that Texas can’t be sued in federal court for the takings, prompting the property owners to take their case to the high court.

“This case is about more than flooding in one area of Texas. This case is fundamentally about if states have to obey the Constitution even when they don’t want to,” Mr. McNamara, deputy director of litigation for the Institute of Justices, told The Washington Times.

Before Texas extended the highway, water ran into the Gulf of Mexico, he said. After its construction, water ran onto the owners’ lands and became stagnant.

The damage impacted “many hundreds of properties,” the lawyer told The Times. “It is an enormous stretch of land that is engulfed.”

The state says the highway was built to provide an evacuation route in cases of emergencies, like hurricanes.

In Tuesday’s arguments, Texas Solicitor General Aaron L. Nielson told the justices that the land owners could have brought a cause of action in state court and that there are still “live claims” under Texas common law.

“We have a cause of action for federal takings claims, petitioners just refuse to use it,” Mr. Nielson said, adding that the Texas Supreme Court hears claims under the state and federal constitutions.

The high court will decide if the 14th Amendment allows for Fifth Amendment takings cases to be brought against a state.

The justices were split during oral arguments, with Justices Amy Coney Barrett and Neil M. Gorsuch pushing back against the land owners.

Justice Barrett said they had a “mountain” of historical evidence to overcome, while Justice Gorsuch suggested the land owners could have brought other common law claims, such as trespassing.

“It’s really a state common law cause of action,” he said.

But Chief Justice John G. Roberts Jr. seemed skeptical of Texas’ position since the state moved the case into federal court and then moved to dismiss the claim. The state contends it took the case to federal court due to the large number of plaintiffs and that the parties could still sue municipalities in state court.

“Under what basis could they proceed against the state?” Chief Justice Roberts asked.

“They couldn’t,” Mr. Nielson said, noting that they could sue localities.

“Isn’t that a Catch-22?” the chief justice said.

Justice Elena Kagan said the fact that the state hasn’t compensated the land owners at all seems to suggest that a federal right is being violated.

“It’s an ongoing violation of the Constitution,” Justice Kaga said. “Aren’t courts supposed to do something about that?”

“It’s a right to compensation and the state, by taking the land and not compensating, is violating that right every day,” Justice Kagan said. “The state is violating the right to be paid.”

The lawsuit was brought by 120 individuals and five corporations after land in Chambers and Jefferson counties — east of Houston and along the Gulf Coast — flooded during Hurricane Harvey in 2017 and again during Tropical Storm Imelda in 2019.

Highway 10 was expanded from four lanes to six lanes and a 3-foot concrete barrier was erected between the eastbound and westbound lanes. In storms, it acts as a dam that floods property north of the freeway, according to court filings and photographs.

Texas argues that Congress must create a federal cause of action for a taking under the U.S. Constitution for a state to be sued.

The federal government has sided with Texas, arguing that a claim for money must be decided under the state Constitution, state law or common law.

The case is Devillier v. Texas. A decision is expected by the end of June.