On April 16, 2024, the Supreme Court of the United States (“SCOTUS”) released its opinion in DeVillier v. Texas, 601 U.S. –(2024), a lawsuit concerning the Takings Clause of the Fifth Amendment to the United States (“U.S.”) Constitution and how it affects rural landowners. This case has a long procedural history, starting in 2020 when it was originally filed in state court. The case then made its way through state and federal courts before ending up at SCOTUS. The outcome of the case affects agricultural and non-agricultural landowners and how they can sue to receive money when the State damages their property.
Background
Sometime before 2017, the Texas Department of Transportation erected an impenetrable, solid traffic barrier along interstate I-10 to facilitate the use of the interstate through the Houston area as an evacuation route when there is flooding. The ground level drainage slots that are customary on traffic barriers are not present on this barrier. Therefore, rainwater that would typically flow through the drainage slots was stopped on the north side of the barrier, flooding the rural properties on the north side of the interstate. In August 2017, Hurricane Harvey and in September 2019, Tropical Storm Imelda both brought several feet of rain to Chambers County, Texas, where the plaintiffs in DeViller v. Texas own property on the north side of the traffic barrier. This flooding prompted the property owners to file a lawsuit against the State of Texas.
Procedural History
In 2020, several landowners filed DeVillier v. State, 20DCV0300 (Tex. Dist. Ct. May 27, 2020) in state district court, alleging that Texas failed to provide compensation to the plaintiffs after their properties flooded due to the construction of a barrier on interstate I-10. The lawsuit claimed that by failing to provide compensation, Texas violated the Takings Clause under both the Texas Constitution and the U.S. Constitution. The State of Texas removed the case to federal district court based on federal question jurisdiction. Cases originally filed in state court can be removed to federal court for two primary reasons – diversity jurisdiction and federal question jurisdiction. This case was removed to federal court under federal question jurisdiction, which occurs when the claims arise under federal law. Specifically, the plaintiffs claimed that Texas violated the Takings Clause of the U.S. Constitution. For more information on the jurisdiction of courts, click here.
Lawsuit Claims
After being removed to federal court, the plaintiffs in DeVillier v. State, 3:20-cv-00223 (S.D. Tex. Feb. 22, 2021) once again claimed that Texas violated the Takings Clause under both the Texas and U.S. Constitutions. Under the Fifth Amendment to the U.S. Constitution, private property may not be taken for public use, without just compensation. States are also prohibited from taking private property for public use without providing just compensation through the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. To establish a claim under the Takings Clause of the U.S. Constitution, the plaintiffs must show (1) that they have a protectable property interest in the property that they allege the government took; and (2) “the effects the plaintiff experienced [were] the predictable result of governmental action which was sufficiently substantial to justify a takings remedy.” Pl.’s Compl. 19:56, May 27, 2020, No. 20DCV0300. The plaintiffs allege that both conditions have been met.
The plaintiffs also claim that Texas violated the Takings Clause of the Texas Constitution. Under article one, section seventeen of the Texas Constitution, “no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for: the ownership, use, and enjoyment of the property, notwithstanding incidental use, by the state, a political subdivision of the State , or the public at large; or an entity granted the power of eminent domain under law; or the elimination of urban blight on a particular parcel of property.” To establish a claim under the Takings Clause of the Texas Constitution, the plaintiffs must show that (1) there was an intentional act by a government entity; (2) the act resulted in the taking, damaging, or destroying of the owner’s property; and (3) the act was for a public use. The plaintiffs allege that all three conditions have been met.
District Court
Once in the federal district court, the defendants filed a motion to dismiss both the state and federal Takings Clause claims. The defendants filed this motion for multiple reasons, which the District Court ultimately denied. First, the defendants claimed that the plaintiff’s federal Takings Clause claim must be brought under Section 1983 of the United States Code on Civil Rights (“Section 1983”) instead of under the Fifth Amendment to the U.S. Constitution because the Fifth Amendment does not provide a direct cause of action. Section 1983 provides a remedy against every person that deprives someone of a right guaranteed by the U.S. Constitution. This section does not grant additional constitutional rights, but it does provide a cause of action for someone that has been deprived of a constitutional right. However, under Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), a state is not a person under Section 1983. Therefore, if the court required the plaintiffs to bring their claim against Texas under Section 1983, the claim would be dead. The district court disagreed with the defendant’s claim and held that the Fifth Amendment does provide a cause of action and that the plaintiffs can bring the claim under the Fifth Amendment to the U.S. Constitution.
The defendants also claimed that the plaintiffs did not properly plead a federal Takings Clause claim. To establish a claim under the Takings Clause of the U.S. Constitution, the plaintiffs must show (1) that they have a protectable property interest in the property that they allege the government took; and (2) “the effects the plaintiff experienced [were] the predictable result of governmental action which was sufficiently substantial to justify a takings remedy.” Pl.’s Compl. 19:56, May 27, 2020, No. 20DCV0300. The court held that plaintiffs did sufficiently argue that they have a compensable property interest to survive the motion to dismiss. Texas argued that it was exercising its police power to control and mitigate flooding which exempts it from liability under the Takings Clause. The court held that “it is entirely inappropriate to throw out the entire case on the State’s mere assertion that its efforts to control and mitigate against flooding constitute legitimate uses of its police power.” Lastly, the defendants raised claims that the lawsuit was barred because of sovereign immunity and the statute of limitations, which the court disagreed with. For these reasons, the District Court denied the motion to dismiss the federal Takings Clause violation claim.
Texas also asked the court to dismiss the state Takings Clause claim for multiple reasons. First, the defendants claimed that “[the plaintiffs] cannot point to such evidence that the Texas Department of Transportation knew the concrete barrier would create a dam-effect and flood property.” Next, Texas argued that “[the plaintiffs failed to plead (and cannot plead) how the State made conscious decisions to release water onto their properties.” Lastly, Texas argued that plaintiffs lack the pleadings to show the State’s knowledge and decision-making showed it knew plaintiff’s property would flood.” The court held that the plaintiffs plausibly stated a state takings clause violation. For this reason, the District Court also denied the motion to dismiss the state Takings Clause violation claim.
Fifth Circuit Court of Appeals
The defendants filed an appeal asking the United States Court of Appeals for the Fifth Circuit to determine if the Takings Clause of the Fifth Amendment of the U.S. Constitution provides a cause of action for takings claim against states that would allow the case to proceed in federal court. In other words, the defendants asked the Fifth Circuit to determine if the plaintiffs can bring their claim under the U.S. Constitution. The Fifth Circuit determined that the Fifth Amendment does not provide a cause of action that would allow the case to proceed in federal court, vacated the district court’s decision, and sent the case back to the district court.
Supreme Court
On March 17, 2023, the plaintiffs petitioned SCOTUS for a writ of certiorari to determine if the Fifth Amendment to the U.S. Constitution provides a direct cause of action for them to sue Texas for just compensation. SCOTUS granted the petition for writ of certiorari and heard oral arguments on January 16, 2024. Three months later, SCOTUS released its unanimous opinion in the case, authored by Justice Clarence Thomas.
The petitioners argued that the Takings Clause of the Fifth Amendment to the U.S. Constitution is the exception to the general rule that constitutional rights do not typically create a direct cause of action. The petitioners relied on several cases where the Takings Clause claim did not rely on Section 1983 to provide the cause of action. Therefore, the petitioners assert that those cases proceeded from a direct cause of action in the Fifth Amendment. The Court disagreed and held that “the mere fact that the Takings Clause provided the substantive rule of decision for the equitable claims in those cases does not establish that it creates a cause of action for damages.” The Court determined that the question presented asked them to consider what the remedy would be if the petitioners had no cause of action under the Takings Clause. The Court disagreed that the petitioners had no cause of action because Texas provided a cause of action under the Texas Constitution. Lastly, the Court held that if property owners have other methods to receive just compensation, then constitutional issues do not arise. SCOTUS vacated the Fifth Circuit’s ruling and remanded the case to a lower court. While the court did not directly answer the question presented to them, it did make clear that the rural landowners in this case have a cause of action under Texas state law.
Conclusion
The case will now go back to a lower court for the court to decide the merits of the case. Although it is unknown at this time if the court will determine if Texas has to pay the rural landowners for the flooding on their land, the outcome of this case will have implications for all Texas landowners, in agriculture and beyond.
To read the Supreme Court’s opinion, click here.
Conference Opportunities:
- To learn more about government access to land, Robert Frommer, Senior Attorney at the Institute for Justice, and Joshua Windham, Attorney and Elfie Gallun Fellow in Freedom and the Constitution at the Institute for Justice will present “Fourth Amendment and Agriculture: Warrantless Access to Ag & Private Rural Lands” at NALC’s Eleventh Annual Mid-South & Environmental Law Conference – June 6-7, in-person and livestream available
- To learn more about trespass to land in the western U.S., Ryan Semerad, Owner of Fuller & Semerad, LLC, and Karen-Budd-Falen, Senior Partner at Budd-Falen Law Office, LLC will present “Streambeds, Game Trails, & Corner Crossings: Public Access & Private Property” at NALC’s Second Annual Western Agricultural & Environmental Law Conference – June 13-14, in-person and livestream available