This is a story about a rather unassuming 32-inch high concrete retaining wall in southeast Texas.
The wall is the creation of the Texas Department of Transportation. As part of updating I-10, an east-west federal highway between Houston and Beaumont, TxDOT had an idea. An awful idea.
A wonderful, AWFUL idea.
Those Texas grinchy geniuses wanted to ensure emergency vehicles could drive on I-10 should the countryside flood. And so they raised the height of I-10 by 18 inches and built a 32-inch high concrete barrier smack dab down the middle of the road so that eastbound lanes remained navigable should disaster strike.
Where I come from we call that a dam.
And of course Mother Nature put the dam to the test. Hello Hurricane Harvey. The Category 4 hurricane made landfall on Aug. 25, 2017, deluging a 20-mile stretch from Winnie to the Trinity River. On the eastbound side of the I-10 concrete barrier, vehicles went zippity-do-da hither and yon.
On the west side of the barrier … a lake emerged running as far as three miles north of I-10. In short, the concrete barrier worked exactly as TxDOT intended and designed.
Except … located in that Hurricane Harvey manmade floodplain were houses and farms. Doh! Which begs the question: What in blue blazes was Texas thinking?
Among those people whose houses were flooded is Richie Devillier. His home and 900-acre farm were destroyed by floods thanks to the I-10 dam. Devillier was digging his way out of that mess when, in a “can’t-believe-it’s-happening-again moment,” Tropical Storm Imelda’s September 2019 arrival flooded Devillier’s farm a second time. Crops destroyed. Dead cattle. Twenty-three inches of water.
Reasonably, Devillier asked the state of Texas for financial relief. And how much did Devillier receive? Not. One. Red. Cent. Bupkis. It’s your farm. You pay for it.
Tired of the run-around from Texas bureaucrats, Devillier sued in state court under the Fifth Amendment to the Constitution, claiming Texas’ barrier was designed to serve as a retaining wall to store storm water on his private property without consent or compensation.
Make no mistake about it. Devillier had a case that Texas was very likely to lose … at least as long as the case remained in state court. But just days after Devillier filed his lawsuit, the state of Texas submitted their own petition asking the case be moved from state to federal courts.
Excuse me while we get a little deep into the weeds here regarding the Fifth Amendment. A number of appellate courts have ruled that the Fifth Amendment is “self-executing.” That’s to say a property owner can sue a state directly for taking of property in violation of the Fifth Amendment. No controlling law is required.
By moving the case from state to federal court, Texas is attempting to change the rules. In federal court, takings lawsuits are controlled by 42 U.S.C. 1983:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
Texas is attempting to game the system. Texas argued it is not “a person.” Thus Devillier can’t bring a claim under Section 1983. It’s a classic catch-22.
United States magistrate Judge Andrew M. Edison was tasked with making recommendations to the federal district court and saw through the Texas fairy dust:
“This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense. It is pretzel logic. There is not, as the State suggests, some sort of ‘state exception’ that excludes state governments from the reach of the Fifth Amendment’s Takings Clause. The complete opposite is true.”
The federal district court by and large adopted Edison’s thinking and denied Texas’s motion, ruling private property shall not be taken for public use without just compensation.
But then Texas appealed and the Fifth Circuit reversed the lower court, ruling Texas indeed wasn’t a person and, thus, there was no federal cause of action to sue for takings. In other words, inverse condemnation claims cannot proceed directly under the Fifth Amendment in the absence of a Section 1983 course of action.
Now the whole mess has ended up in the lap of the U.S. Supreme Court, which has agreed to take up the case.
The case has huge implications. Hands up for those in favor of having their property taken without just compensation. Someone? Anyone? I think not.
The Fifth Circuit has it wrong, wrong, wrong. The Fifth Amendment does indeed create a direct cause of action. The right to “just compensation” is right there in the takings clause. The high court need not do more than summarily reverse the Fifth Circuit and uphold the district court.
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