Texas flooded our farmland and refused to pay; only SCOTUS can help my family now

Evacuees had a clear path out of Houston when Hurricane Harvey slammed the Gulf Coast in summer 2017 — the Texas Department of Transportation made sure of that. But the agency left behind a mess for the U.S. Supreme Court to clean up more than six years later.

My family and neighbors from Winnie, Texas, a tiny community outside Houston, will pay close attention to oral arguments on Jan. 16, when the justices consider my case, DeVillier v. Texas. Concerned citizens everywhere should join us. The case will test the government’s ability to take property for public use without providing just compensation — a horrifying prospect for anyone invested in a home or business.

The trouble started for my family on the first night of the storm. My parents, both octogenarians who expected to finish their lives on land my family has farmed for four generations, found their home filling with water. They fled to my house, which stands nearby on higher ground. But soon my floors were submerged as well.

By the next morning, the view from my porch looked like an ocean. Choppy waves stretched in all directions for miles. Neighbors had to carry my parents to safety on an airboat. I stayed behind with my teen-aged son, hoping to rescue as many animals as possible.

What we saw during the next few days was hard to witness. The calves drowned first. They were simply too short to keep their heads above water. Grown cows lasted longer. But with nothing to eat and water halfway up their rib cages, they eventually collapsed and drowned as well.

As we navigated our boat around the carcasses, we found one calf stuck in the flotsam, covered in fire ants but still alive. My son grabbed the terrified animal by its ears and held its snout in the air while we led it to safety. Dozens of other cows died, along with seven horses and a colt.

Property damage was also extensive. Hay bales floated away, grass rotted, tractors rusted and buildings had to be gutted. We had just paid off the mortgage on our home, but suddenly we had nothing — and no flood insurance to cover our losses.

We had no need for flood insurance, as our land is not in a flood plain and had never flooded — not once — in all the decades we had farmed it. Nature can be unpredictable, but what changed in Winnie was not the weather.

Following previous storms, the Texas Department of Transportation had made a deliberate decision to elevate Interstate 10 past our property and erect a watertight concrete barrier along the median, effectively creating a dam to keep the south lanes open during heavy rainfall.

Farmers and ranchers north of the interstate, where I live, paid a price. But when we met with state officials, they refused to fix their drainage system or pay for the damage they had caused. “We are not responsible for acts of nature,” they told us.

I agree, but this was not an act of nature. The government is responsible for its engineering decisions. The Constitution spells out the rules in the Fifth Amendment, which guarantees “just compensation” when the government takes land for a public purpose.

This can happen in one of two ways. The government can take property through eminent domain, transferring the title from one party to another, or it can use its regulatory power to lower property values without taking ownership. This sometimes occurs when local officials change zoning laws or authorize infrastructure projects with spillover effects.

A dam that redirects floodwater onto nearby land, destroying its worth, would be a clear example of the latter. Yet Texas insists the Fifth Amendment does not apply in the Lone Star State because Congress has never passed a statute explicitly saying so.

The 5th U.S. Circuit Court of Appeals upheld this logic in November 2022, leaving the Supreme Court as my family’s last hope.

We are proud to continue fighting with representation from the Institute for Justice, a public interest law firm that supports property rights. Many of us will travel to Washington, D.C., when the case is heard, but not my parents. They moved to Oregon after the storm, like refugees, and finished their lives in a trailer home, far from the land they loved.

Out of everything else I witnessed, seeing my parents deflated in their final months was the hardest of all. They deserved better. So do all property owners. If the government can take land without paying for it, the result is tyranny.

Richie DeVillier is the lead defendant in DeVillier v. Texas and a fourth-generation landowner in Winnie, Texas.