He Fought the Law… and Won

“These 900 acres are my life, the same ground worked for generations by my family in good
faith that if we obeyed the law, our government would treat us accordingly.”
– Ritchie Devillier

                We live in a nation where the right of the individual to own property is enshrined and protected in our most basic, primary, and foundational law – the United States Constitution.  The drafters of that document believed that certain rights were properly guaranteed to the people and that without those rights society as a whole would suffer.  When individuals feel as though they have ownership in things they behave differently toward them.  They take greater responsibility and care of them.  They have an eye for the future and consider how their actions today might affect future generations.  They are less likely to selfishly take for themselves in the present and to instead create greater value for the next generation or owner.  As a society, we want to encourage this as it is the greatest and most reliable driver of progress.  It is in our best interest to encourage individuals to take a barren and unproductive tract of land and through years of toil, risk, and cost make that land productive.  The framers of the Constitution, as well as generations of landowners since, felt that the best way to encourage this outcome was to safeguard an individual’s right to own that thing, idea, or tract of land that they had created and made better.

But no right is inviolable or inviolate and the government, on behalf of society, must have the ability to infringe on an individual’s rights when it is the sole or best way to protect or advance society at large.  The ability of the government to take private property under Eminent Domain as created by the “Takings Clause” of the Fifth Amendment of the Constitution is a necessary mechanism allowing for the orderly development of society.  No landowner wants a pipeline or an electric transmission line to cross their property.  Nor do landowners want to see their land used for a port expansion or as the entrance ramp to a bridge.  But society needs the pipelines to get their products to hubs and refineries, transmission lines to bring electricity to every home, business, and traffic light, we need to grow our ports to allow commerce to keep pace with the rest of the world, and no one wants to spend hours waiting in traffic to cross a bridge to get to work. Sometimes the wants of the individual matter less than the needs of society – even in a nation founded and predicated on their unalienable rights.

When the government acts it must do so according to the terms, strictures, and precedents set forth by applicable laws and usually in a manner calculated to do the least harm to those whose rights are being infringed or eliminated.  In the case of an eminent domain taking the Constitution dictates that “…nor shall private property be taken for public use, without just compensation.”  Two hundred years of precedent have, for the most part, limited the taking to something that will benefit the public (as opposed to creating a solely private benefit) and has sought to define what just compensation means.  In general, just compensation is defined as “the market value of the property at the time of the taking.”  United States v. 50 Acres of Land, 469 U.S. 24 (1985).  The Court has allowed modification to this approach when “market value has been too difficult to find, or when its application would result in manifest injustice to the owner or public.”  United States v. Commodities Trading Corp. 339 U.S. 121, 123 (1950).  While the Takings Clause applies only to the federal government, the Fourteenth Amendment states that no, “State shall deprive any person of life, liberty, or property, without due process of law.”  This has the effect of applying the Fifth Amendment’s Takings Clause provisions to the states.

Enter the subject matter of this blog, Ritchie Devillier’s 900 acres of land along Interstate 10 approximately sixty miles east of Houston in Winnie, Texas.  The Devillier family owned and worked land outside of Winnie since 1920.  Four generations of the family grew rice and raised cattle on the land and the fifth generation is learning the business now.  Over the family’s century of ownership, the land had never flooded regardless of the severity of the storms passing through.  Beginning in the 1990’s the Texas Department of Transportation (TxDOT) sought to raise the height of Interstate 10 to keep it navigable during storms.  Over a twenty-year period, the road deck was raised eighteen inches over its original level and a continuous and somewhat impermeable center divider separating the lanes was raised thirty-two inches. This had the effect of creating a dam designed to protect the eastbound lanes of the highway in even the strongest storms.  TxDOT’s stated intention was to safeguard the ability of emergency vehicles to use the highway even through the strongest storms.  This is, admittedly, a logical and reasonable goal on the part of a government actor. 

In protecting the community at large these changes had an adverse effect on several landowners on what became the receptacle side of the newly created dam.  Tracts of land that had never flooded before would effectively become a temporary holding lake during and after strong storms.  This first occurred during 2017’s Hurricane Harvey.   Devillier’s land flooded for the first time with the cropland and pastureland covered by three to six feet of water and the house and barns flooded by two feet of water.  The water stayed for just over a week and destroyed machinery and equipment, ruined the year’s entire crop of hay, and drowned most of the family’s cattle.  This was a generational operation and Mr. Devillier’s octogenarian parents still lived on the tract as well.  They had to be rescued from a flooded house on the property and eventually were displaced to Oregon as the younger generations stayed to repair the damage.  They would never see their land again, each passing away while in Oregon.  At great expense and with great effort, the family was eventually able to restore the land, buildings, and facilities to operational condition.

In September of 2019, Tropical Storm Imelda caused flooding such that the Devillier’s operations and property were again entirely devastated.

Following this subsequent flooding Richard Devilliers and one-hundred-twenty neighboring landowners filed suit against the State of Texas in state court claiming that the state’s actions had in effect been a taking against their property.  The State of Texas removed the case to federal court claiming that there were important federal questions.  The State argued that the landowners had not properly brought their claim under the correct statute.  The State claimed that the Fifth Amendment does not allow an individual to bring a claim against a state and that the claim should have been brought under 42 U.S.C. § 1983 which allows a federal claim to be brought against a person who deprived another of a federal right.  Texas further contended that as the Supreme Court has ruled that as a state is not a “person” under the provisions of § 1983 Devillier’s claims could not proceed. Essentially, the State of Texas was claiming that absent a specific state statute allowing a state to be sued for an unjust taking by an individual, no cause of action could exist.

The federal district court disagreed and held that prior Supreme Court precedent implied that individuals could bring a direct claim under the Fifth Amendment.  Texas disagreed with this holding and appealed to the Fifth Circuit Court of Appeals.  The appeals court in turn disagreed with the district court below and held that Devilliers was not able to directly bring such a claim against the state.  Devilliers appealed to the Supreme Court of the United States and on April 16, 2024, that Court sided with Devilliers and vacated the lower appeals court ruling. Devillier v. Texas, 601 U.S. 285 (2024).

The Supreme Court had originally granted review of the case to decide whether, “a person whose property is taken without compensation may seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.”  That question assumed that the landowner had no separate means to achieve their right to just compensation under the Takings Clause.  Here the Court found that Texas law provides an inverse condemnation clause that would allow aggrieved property owners an avenue to seek just compensation under both the Texas State Constitution and the federal Takings Clause.  The decision was unanimous, and the case was remanded back to the lower court for consideration along this new line.

At no point did the State of Texas or TxDOT deny that their actions caused the damage to Devillier’s property, they only refused to acknowledge his right to sue for just compensation.  This would have left Devilliers and his neighbors with no way to be made whole again.  By any interpretation, this would have been an unconscionable result. 

There are many instances in which the justifiable needs of the many (the public) will outweigh the needs of the few (here, the affected landowners), but the most basic and foundational tenants of American law demand that the public make those affected whole again.  That the State of Texas and TxDOT thought that they could create a scenario wherein the affected properties and associated operations would be completely devastated on a regular basis yet owe no compensation to the innocent landowners is stunning to say the least.  Ritchie Devilliers and his neighbors were left with no option but to sue to defend their livelihoods, their property, and their rights.  While the actions of the State of Texas and TxDOT were questionable at best and unconscionable at worst, the foundational tenants of this nation’s laws afforded them the protection they needed.  The power of the state is awesome and able to control or destroy everything in its way.  Thankfully, from the outset, this nation understood that its citizens had certain rights and developed a body of laws and jurisprudence to protect them.