The Government Flooded Their Farms But Won’t Foot The Bill

Richie Devillier’s family has farmed the same plot of land in East Texas for generations. For nearly a century, hurricanes and tropical storms came and went but they never faced a major flood. Yet twice in recent years, they have lost crops, cattle, and horses. Why their property went from farm to occasional lake isn’t much of a mystery.

In the early 2000s, the Texas Department of Transportation renovated Interstate 10 to ensure that its eastbound lanes could stay open as a hurricane evacuation route for nearby Houston. The highway was raised and an impermeable concrete barrier was built in the median. It worked, but it put the Devillier farm and others north of the highway under feet of water.

The state of Texas wasn’t interested in paying for the damage, so Richie and his neighbors had no choice but to sue in state court. Their lawsuit claimed that Texas owed them both as a matter of state law and the U.S. Constitution’s Fifth Amendment.

The “takings clause” of the Fifth Amendment simply says, “nor shall private property be taken for public use, without just compensation.” The farmland north of Interstate 10 is effectively a big retention pond. It will likely flood whenever there is a major storm.

Richie, like many farmers, was counting on selling his property to fund his retirement. He told a local news station, “My 401(k) is our property. That by far is going to be our biggest loss.”

But Texas found “one weird trick” to make the lawsuit disappear. Because the property owners said Texas had to compensate them because of both state and federal law, attorneys for the state had the lawsuit moved to federal court. The 5th U.S. Circuit Court of Appeals, in a short ruling that lacked much explanation, threw out the case because Congress never passed legislation to explicitly allow people to sue states for takings.

The property owners are now stuck in a retention pond without a paddle unless the U.S. Supreme Court agrees to hear their case. The Institute for Justice has taken up their case and is asking the court to recognize the Pottery Barn rule: “If you break it, you buy it.”

The 5th Circuit’s ruling not only ignores the plain language of the Constitution; it also contrasts with other appellate courts. A case with identical facts in most states across the country would get consideration.

Even within Texas, property owners could fight for compensation if a local government is responsible for the taking rather than the state government. The Institute for Justice successfully argued that the city of McKinney, a suburb of Dallas, needed to compensate Vicki Baker for the damage done to her home in a SWAT raid.

In pursuit of a kidnapper who barged into the home, police blew apart Vicki’s garage door, knocked down her fence with an armored vehicle, and lobbed tear-gas grenades through the windows. Her insurance company (like most insurers) declined to cover damage done by the government. The city also refused to pay. Vicki sued in federal court, overcame procedural hurdles, and a jury awarded her nearly $60,000 last year.

Vicki didn’t argue that the police should not have done what they felt was necessary to apprehend the suspect without risking lives. And the Devilliers’ case doesn’t hinge on whether the highway project was a good idea. The question in both cases is whether individual property owners have to bear the burden of actions the government takes to protect the general public.

The takings clause is an old principle that has roots in Magna Carta. At the heart of it is the idea that your property isn’t really yours if the government can wreck it to serve its own purposes and walk away. The Supreme Court needs to sort out the mess created by the appeals court. By ruling for the Devilliers and their neighbors, the Court would not be saying that they have to be paid, just that they should get a full hearing of their case.

Richie says, “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.”