Another Government Flooding Takings Case!

On April 16, 2024, the U.S. Supreme Court ruled that property owners could pursue their inverse condemnation claims against the State of Texas under the federal Takings Clause through the existing Texas state law.

Many people understand the government has the power to take our land for public good as long as it pays just compensation. Sometimes, the government forgets to ask for that land in advance and takes the property anyway. These are called “inverse condemnation” or “Takings” cases. In such a case, the landowner must initiate proceedings to force the government to pay for the land taken.

More than 120 landowners filed suit against Texas after the state flooded their properties when it built a flood evacuation route along I-10 between Houston and Beaumont. The project included a barrier which acted as a dam, keeping the south side of the highway open for evacuations, and in the meantime flooding the landowners’ property to the north, causing significant damage. The landowners filed suit under the Taking Clause found in the Fifth Amendment to the U.S. Constitution as well as the Texas Constitution. (This is the same approach we took in our recent flooding/taking case, Houins v. Ind. DNR).

Barrier keeps left/south side of highway open; floods right/north side of highway

The State of Texas argued that a plaintiff could not sue a state directly under the federal Takings Clause. The trial court rejected the state’s argument, but the Fifth Circuit Court of Appeals reversed, setting up the Supreme Court show down. The question was not over the substantive right to compensation for a taking, but rather what procedural vehicle a property owner must use to vindicate that right. Could the landowners proceed against Texas directly under the Fifth Amendment?

Usually federal constitutional rights are not offensive causes of action; they are more regularly asserted as defenses (think about a possible defense to unlawful search and seizures (4th Am), defense to claims of libel or limits on speech (1st Am), etc.). The Supreme Court recognized that “a property owner acquires an irrevocable right to just compensation immediately upon a taking”—in other words, the taking occurs when the flooding happens, not some point later in time. The Court also agreed the Takings Clause was “self-executing” when it came to compensation for landowners.

But, the Court explained the plaintiffs did not need to proceed against Texas directly under the Fifth Amendment. This was not a situation where the only possible recovery for landowners would be based on a direct federal constitutional claim. Instead, the plaintiffs could use the state law inverse condemnation cause of action as a vehicle for takings claims based on both the state constitution and the federal Fifth Amendment. States have an obligation to enforce the Constitution according to their regular procedural tools. The Court concluded the landowners should be allowed to pursue their claims for just compensation under the federal Takings Clause through the Texas state law.