Texas Landowners Case Argued at SCOTUS

LINCOLN, Neb. (DTN) -- Texas ranchers and other landowners demanding to be compensated by the state for flooding caused on thousands of acres as a result of construction on Interstate 10 in south Texas had their Fifth Amendment rights stripped away when their legal challenges moved to federal court, an attorney for the landowners argued before the Supreme Court on Tuesday.

Landowners have experienced extensive flooding first in 2017 and again in 2019, as a result of Hurricane Harvey and Tropical Storm Imelda. The state of Texas raised the interstate's elevation by more than a foot and installed solid concrete barriers separating east- and west-bound lanes -- creating a damming effect.

The Supreme Court was asked to consider whether a person whose property is taken without compensation can seek redress under the self-executing takings clause in the Constitution.

The case seeks to overturn a Fifth Circuit Court of Appeals opinion that stated, "the Fifth Amendment Taking Clause as applied to the states through the Fourteen Amendment does not provide a right of action for takings claims against a state."

Landowners led by Texas rancher Richie DeVillier had initially filed what is called an inverse-condemnation lawsuit against the state.

Such lawsuits are remedies for property owners when a government takes or damages property for public use without holding eminent domain proceedings. The state moved the Interstate 10 cases to federal court.

"What Texas has effectively accomplished here by making the unusual decision to remove is that it's eliminated the Fifth Amendment question from this case and given itself what it believes is a more favorable rule of Texas law," Institute of Justice attorney Bob McNamara argued before the Supreme Court on behalf of the landowners.

The court ruled in a previous similar case that the Fifth Amendment of the Constitution mandates compensation for property owners.

However, an attorney for the Biden administration on Tuesday told the court the Fifth Amendment doesn't provide for an actual method of determining compensation. That has been left up to the states.

Moving the case from state to federal court effectively did not give the Texas property owners a chance for compensation or a court injunction.

"The Fifth Amendment to the United States Constitution does not of its own force, create a cause of action against the government under the Fifth Amendment against the United States government for damages," said Edwin Kneedler, the deputy U.S. solicitor general.

"Numerous provisions of the Constitution make that clear, including the text of the just compensation clause itself. It says property shall not be taken, no person's property shall not be taken for public use without just compensation. The right is not to have the property taken without compensation. It's not a right to compensation."

McNamara told the court that remanding the case to a federal court still would prevent property owners from making a claim for damages.

"There will be no remand in this case," he said.

"The upshot of the panel opinion below is that this case will proceed without any federal takings claim in it."

Some justices said on Tuesday that they may consider remanding the case back to Texas courts for further proceedings as long as there is a clear avenue for property owners.

Aaron Nielson, solicitor general for the state of Texas, outlined for the court how the property owners could proceed in Texas courts.

A court could issue an injunction to force the state to stop allowing flooding along Interstate 10 or provide compensation for an illegal taking of land.

The state moved the claims of numerous property owners in the flood zone from state to federal court, Nielsen said, because state courts are not prepared to handle what would be hundreds of claims at one time.

Justice Sonia Sotomayor asked Nielsen whether property owners could return to the federal court and request just compensation under the Texas Constitution and the Fifth Amendment, citing a previous Texas Supreme Court ruling in City of Baytown v Schrock.

In that case, a landlord in Baytown, Texas, alleged the city's withholding of utility service to collect payment resulted in the loss of a tenant and the disrepair of his property.

The Texas Supreme Court held the landlord failed to establish an intentional taking of private property for public use.

"So, if they go back down and say to the district court this has been remanded to the district court, all we want is just compensation under the Texas Constitution and the Fifth Amendment under that case that you're mentioning, that's OK and you're not going to resist that?," Sotomayor said.

"We would not resist that, your honor," Nielsen responded.

Read more on DTN:

"SCOTUS to Hear Plight of Flooded Farms," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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