Attorneys representing some 120 landowners and five companies told the U.S. Supreme Court in mid-January that their clients should receive “just compensation,” arguing that a Texas highway project intentionally flooded their properties, causing substantial damage.

I-10 is a heavily traveled cross-country interstate highway that connects Jacksonville, Florida, with Los Angeles, California. On a stretch of I-10 east of Houston, in Chambers and Jefferson counties along the Gulf Coast, Texas highway officials several years ago allowed the roadway to be extended and widened from four to six lanes, with a 3-foot barrier erected between the eastbound and westbound lanes. The extension was to provide an evacuation route in cases of emergencies, such as hurricanes.

What was thought to be little more than an upgrade to the state’s transportation infrastructure system turned into quite something else after Hurricane Harvey in 2017 and Tropical Storm Imelda in 2019 flooded the area. The newly erected barrier between the eastbound and westbound lanes functioned as a dam, keeping the rising water north of the interstate, where it saturated the land. Prior to construction, water runoff went south into the Gulf of Mexico; after construction, it was redirected north, where it became stagnant. Damage to crops, buildings, and equipment ran into the tens of millions of dollars.

There is little doubt that the highway project inadvertently caused the flooding. At issue in the case before the Supreme Court is how affected property owners north of the interstate are to be compensated for their loss. Dozens of landowners filed lawsuits in state court against Texas, arguing that the use of their land for water runoff constitutes a “taking” under the state constitution and the U.S. Constitution’s Fifth Amendment, which says private property cannot be taken “for public use, without just compensation.”

The Battle Over “Just Compensation”

As reported by The Washington Times (Jan. 17), Texas consolidated the lawsuits into a single case in federal court, which ruled that the Takings Clause applies and rejected the state’s move to have the case dismissed.

But the Fifth U.S. Circuit Court of Appeals ruled that Texas cannot be sued in federal court for the takings, prompting the property owners to take their case to the U.S. Supreme Court.

“This case is about more than flooding in an area of Texas. This case is fundamentally about if states have to obey the Constitution even when they don’t want to,” Robert J. McNamara, the lawyer representing the landowners, told the Times. McNamara is deputy director for litigation at the Arlington, Va.-based Institute for Justice.

Texas argues that the petitioners should have brought a common law cause of action for federal takings claims in state court instead of seeking relief at the federal level. But during oral arguments before the Supreme Court on Jan. 16, Chief Justice John Roberts pointed out that it was Texas that moved the case from the state to the federal level in the first place. “Under what basis could [the petitioners] move against the state?” Roberts asked.

Significant Takings Precedent

The court is expected to hand down a ruling by late June. Its decision in Devillier v. Texas on whether the landowners qualify for “just compensation” under the Fifth Amendment will set a significant precedent for other takings cases to be litigated in the years to come.