A group of more than 120 landowners who live along the Interstate 10 corridor in Chambers, Liberty and Jefferson counties will get to proceed with the lawsuit alleging they’re entitled to compensation for Texas’ repeated flooding of their properties.
The U.S. Supreme Court on Tuesday unanimously revived the lawsuit that the U.S. Fifth Court of Appeals had dismissed with a one-paragraph ruling. Justice Clarence Thomas, who had asked the court’s first question during oral arguments in January, authored the seven-page opinion.
“Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause,” he wrote. “We therefore vacate and remand so that [Richard] DeVillier’s claims may proceed under Texas’ state-law cause of action.”
Daniel Charest of Burns Charest, who is the lead trial attorney for the landowners, was confident about the outcome of the case when he was present for oral arguments in January and heard what he viewed as an important admission from Texas Solicitor General Aaron L. Nielson, who was arguing for the state.
“The Texas solicitor general said you can bring this claim under Texas law,” Charest said in an interview Tuesday. “I wrote down at that moment ‘We just won.’ That’s all we needed.”
That the court’s opinion was unanimous was not surprising to him, either, he said.
“I didn’t think there would be any dissent,” he said.
The solicitor general’s comments appear to have resonated with the court, as well.
“As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause,” Justice Thomas wrote. “And, although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the court that it would not oppose any attempt by DeVillier and the other petitioners to seek one.”
The landowners allege that when Texas installed a solid concrete barrier as part of a highway project that also elevated the I-10, they effectively installed a dam that holds flood water on their property during heavy rain events.
Texas has the right to take private property for public use, but the takings clause requires the state to compensate owners for the taking, even if the taking is temporary.
During oral arguments the court focused many of its questions on the history of the Fifth Amendment takings law — which states that the government cannot take private property for public use, like a highway project, without “just compensation”— and the unusual procedural history of this case in particular.
Justice Thomas asked Robert McNamara of the Institute for Justice, who argued for the landowners, how he could square the history of the law with the argument he’s making now.
“In your reply brief you say that the 19th century federal courts were faced with a bedrock property right and no way to enforce it directly,” Justice Thomas said. “Doesn’t that seem to be at odds — the fact that the courts there had to resort to extraconstitutional causes of action — isn’t that at odds with your argument now?”
McNamara said he didn’t believe so because the “primary problem” those courts were facing was jurisdiction, which he said is “conceptually distinct from the question of whether there’s a cause of action, whether there’s a right to a remedy.”
Tuesday’s ruling resolved a circuit split.
The Fifth and Ninth Circuits both held that claims for just compensation are only available if legislatively authorized. On the other side, many state supreme courts, citing the U.S. Supreme Court’s 1987 holding in First English Evangelical Lutheran Church v. County of Los Angeles, have held that they can hear takings clause cases without the need for legislative authorization.
After the landowners filed this lawsuit in state courts, Texas exercised its right to remove the cases to federal court, had them consolidated and moved to dismiss the takings claim.
The state argued that while the Fifth Amendment entitles property owners to just compensation, it doesn’t create an “implied cause of action” for a claim against the state. Therefore, Texas’ argument went, the landowners had to bring their takings claims under section 1983, which allows individuals to sue a “person” for depriving them of their rights.
U.S. Magistrate Judge Andrew M. Edison, in his July 2021 report and recommendation, said the suit should be allowed to move forward and took exception to Texas’ stance, writing that a state or a state agency can’t be sued for a constitutional violation under section 1983.
“As applied to this case, the net effect of requiring plaintiffs to bring their federal constitutional takings claim under § 1983 against the state would be to end the claim before it even began. This is exactly the approach the state champions,” he wrote. “It is a classic Catch-22: plaintiffs must bring their federal takings claim against the state under § 1983, but such claims are dead on arrival because plaintiffs cannot bring their federal constitutional claims against the state under § 1983. I find the state’s stance incredibly myopic.”
Under Texas’ argument, he wrote, the state can take property from a private citizen without paying just compensation and leave the citizen without a remedy.
“This thinking eviscerates hundreds of years of Constitutional law in one fell swoop, and flies in the face of commonsense,” he wrote. “It is pretzel logic.”
U.S. District Judge Jeffrey Brown seemingly agreed and adopted the recommendation that the landowners be allowed to proceed with their takings claims in an August 2021 order.
Texas then took its fight to the Fifth Circuit. Judges Patrick E. Higginbotham, Leslie H. Southwick and Stephen A. Higginson heard oral arguments on Nov. 8, 2022, and issued a three-sentence ruling vacating the district court’s ruling on Nov. 23, 2022.
Both sides requested the court rehear the case en banc.
That request was denied on March 23, with only Judges Jerry E. Smith, Jennifer Walker Elrod, Kurt D. Engelhardt, Andrew S. Oldham and Cory T. Wilson voting in favor of rehearing and 11 voting against.
Judges Higginbotham and Higginson, who sat on the original panel, both authored concurrences in the denial of rehearing en banc.
Judge Higginbotham wrote that there is no cause of action in federal court for takings claims against a state.
“The pathway for enforcement in takings by the state is rather through the state courts to the Supreme Court,” he wrote. “On that passage, the Supreme Court of Texas applies both federal and state law. Its decisions on state law control, and Texas state law provides the procedures for fulfilling the State’s obligations under the Takings Clause for takings by the state.”
The same congress that authored section 1983 could have provided the pathway urged by the landowners, Judge Higginbotham wrote, “but it is telling that it has not.”
“This move is above our paygrade,” he concluded.
Judge Oldham authored a dissent, joined by the four other judges who voted in favor of rehearing en banc, taking aim at Texas’ argument and at his colleagues.
“The panel decision renders federal takings claims non-cognizable in state or federal court,” he began. “This breaks with centuries of precedent. And the panel did it in a one-paragraph decision with one sentence of analysis. The panel’s sources for this remarkable holding? A Bivens case and a 1992 Ninth Circuit decision. No matter what one thinks about the merits of this question, it plainly requires more explanation than that.”
Usually the court issues one-paragraph holdings for cases on its summary calendar, Judge Oldham wrote, and not for “pathbreaking constitutional rulings” that upend centuries of case law.
“The case is now over, barring Supreme Court intervention. And not just for these plaintiffs,” he wrote. “The panel decision is an insuperable obstacle to any plaintiff asserting any federal takings claim against any State in federal or state court. If this case is not enbancworthy, then it’s unclear how any case ever will be.”
Supreme Court intervention came on Sept. 29, when the high court granted the landowners’ petition for writ of certiorari.
The case number is 22-913.