SCOTUS to Hear Plight of Flooded Farms

LINCOLN, Neb. (DTN) -- The nightmare begins like this.

Massive rainfall builds up on many miles of land along Interstate 10 in southeast Texas from Hurricane Harvey.

It's August 2017.

In a panic, Richie DeVillier splashes his way out the front door of his home on his 900-acre cattle and rice farm in Winnie, Texas, hops in his truck and drives a mile up the road where he finds his octogenarian parents, Richard and Barbara, standing in 3 feet of water inside their home. They quickly gather up a few things and head out the door to higher ground.

"The last time that I saw them in their house was walking through, wading through waist-deep water," Richie said.

"Last time he (Richard) ever set foot on the place he was born and raised. Never got to come home. So that's devastating. It really bothers us because it robbed them of the last years of their life."

His parents moved in with family in Oregon -- it was thought to be only temporary while Richie considered the possibilities for rebuilding.

Tropical storm Imelda delivered more than 40 inches of rain and yet another flood in September 2019.

Richard died of a heart attack in 2020 and his wife passed away two years later.

Richie DeVillier said flooding was never an issue for his father and grandfather during the many years they worked the land.

The old Interstate 10 -- prior to reconstruction -- allowed water to flow underneath and drain off in times of heavy rain.

That all changed in 2000.

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.

Texas made the changes to the stretch of interstate to always keep at least one lane of traffic open if flooding occurred -- billed as an enhancement of public safety.

Before the construction, DeVillier said there were two asphalt lanes with a ditch in the center and water would move under the interstate.

The construction, contends DeVillier and many other property owners in the region, essentially created a dam on the interstate's north side. The concrete barrier does not include slots at the base that would allow water to flow across the road.

DeVillier and the other landowners sued the state of Texas.

To this day, however, landowners have not been compensated for what they argue was taking their properties by the state government.

SUPREME COURT TO HEAR FARMERS

Six years after the first devastating flood, the Supreme Court this week agreed to hear the case of which DeVillier is the lead plaintiff.

DeVillier said things have changed since his grandfather bought the land and built a house about 60 miles from Houston.

"There was no interstate -- nothing," he said. "It was just part of the prairie."

If the Supreme Court case is successful for landowners, it would return to lower courts where DeVillier said he believes a judge would side with him and others and eventually award compensation.

The Supreme Court is asked to consider whether a person whose property is taken without compensation can seek redress under the self-executing takings clause in the Constitution, even if a state legislature has not provided them with a cause of action.

The landowners led by DeVillier 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.

According to a writ of certiorari filed with the Supreme Court on behalf of DeVillier and other landowners, two U.S. Court of Appeals in the Fifth and Ninth circuits issued rulings that conflict with previous Supreme Court rulings on the takings clause.

The writ said the courts' "holding that the just-compensation right is protected only as a matter of legislative discretion and that federal takings claims can therefore be brought only pursuant to 42 U.S.C. 1983 -- which, as to state defendants, means they cannot be brought at all.

That section of federal law gives individuals the right to sue state government employees and others for civil rights violations.

"This split of authority -- essentially one between courts that follow this court's taking jurisprudence and courts that ignore it -- warrants this (Supreme) Court's intervention," the landowners' attorneys from the Institute for Justice said in the writ.

"Among other things, the division of authority matters because it invites the sort of gamesmanship illustrated by this case. Had this case been litigated in Texas state court (where it was filed), Texas courts would have recognized a federal takings claim without requiring the plaintiffs to invoke Section 1983. But by removing the federal claim to federal court, Texas has changed the substantive law governing the case and extinguished the claim."

RANCH RECOVERY

Since the floods, DeVillier said he has recovered and rejuvenated some of the pastures that were submerged in water but his farm no longer produces rice.

DeVillier and other landowners lost numerous head of cattle and other livestock, among other damages yet to be fully determined or litigated.

"We had no flood insurance when Harvey hit," he said.

"That's what was so devastating. Not many people in our area did because we're not in a flood zone. I'm the fourth generation on this land and all around us here my immediate family and my extended family around the area never had any issues."

DeVillier said he had just paid off his mortgage right before Harvey hit.

Following the storm, he received a U.S. Small Business Administration loan to somehow keep the farm going. The SBA required him to get flood insurance at a cost of just $500 a year.

"We would have spent the money had we had any idea that it would have been necessary," DeVillier said.

"It's ironic that we're going to the Supreme Court over having the state put feet of water on our land two different times when we're actually feet of rainfall in deficit this year."

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

Follow him on X, formerly known as Twitter, @DTNeeley

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