A case between 77 unhappy landowners and the state of Texas got a hearing at the U.S. Supreme Court this month.
In Devillier v. Texas, the Texas Department of Transportation built a concrete retaining wall on Interstate 10 east of Houston to protect the road from flooding during heavy rainfall. As a result, private land adjacent to the highway flooded during several hurricanes and downpours. The 77 affected landowners sued, claiming the flooding caused by the state’s highway construction plan constituted a “taking” under the Fifth Amendment, which requires states to compensate owners of land appropriated for state use. Texas moved to remove the case from state court to federal court, and argued the Fifth Amendment does not confer a private right of action for landowners to sue the state for compensation. The district court ruled in favor of the landowners, but the 5th Circuit Court of Appeals found for Texas. The landowners appealed to the Supreme Court.
The landowners argued that that Fifth Amendment’s takings clause is self-executing, meaning no legislative permission is necessary to sue for just compensation. Private rights of action can be implied by the courts, and the plaintiffs claimed Supreme Court precedent in First English Evangelical Lutheran Church v. LA County supports this argument. In First English, the church filed suit alleging that a Los Angeles ordinance that prohibited reconstruction on land owned by the church was a taking. The California courts held that no remedy was available for regulatory takings, but the Supreme Court reversed that decision, holding the ordinance did affect a taking and the Fifth Amendment required just compensation for the church’s land.
Texas asserted that Congress has not provided a federal cause of action for Fifth Amendment takings. Without a private right of action, only the federal government can file a lawsuit under a given statute. Because of this, the petitioners’ claims were barred. In addition, Texas has not waived sovereign immunity in takings cases, shielding the state from liability in this case. Seventeen states, led by Minnesota, filed an amicus brief in support of Texas. The states supported the lack of private right of action arguments, going further to argue that recognizing an implied cause of action under the Fifth Amendment would undermine state sovereignty. They also argued that a private right of action is unnecessary because states already have well-established and robust compensation remedies for takings claims.
At oral argument, the justices seemed sympathetic to the petitioner’s arguments. Justice Sonia Sotomayor called Texas’s argument “a totally made-up case” as well as a “bait and switch,” referring to the state’s choice to remove the case to federal court and move to dismiss for lack of jurisdiction. Several justices questioned what remedies would be available to a property owner if a “rogue state” elected not to pay compensation in takings cases, should the court accept Texas’s argument.
Meanwhile, Justices Samuel Alito and Ketanji Brown Jackson seemed hesitant to accept the assertion that the Fifth Amendment is self-executing and asked clarifying questions during plaintiffs’ argument.
The court will decide the case later this term.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Affairs Division.