Texas Takings Case Accepted by US Supreme Court

by: Joseph Grather
3 Oct 2023

Big congratulations to our colleagues at the Institute for Justice for persuading the High Court to hear another takings case. On Friday, the Court granted the petition for certiorari on the following question presented:

“In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment’s Takings Clause was “self-executing” and that “[s]tatutory recognition was not necessary” for claims for just compensation because they “are grounded in the Constitution itself[.]” 482 U.S. 304, 315 (1987). Since First English, several state courts of last resort have held that the self-executing nature of the Takings Clause requires them to entertain claims directly under the Clause without the need for statutory authorization. Two federal Circuits, the Fifth and the Ninth, disagree and have held that claims for just compensation are only available if they are legislatively authorized. The question presented is:  May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?”

Apparently the Fifth Circuit denied the property owner’s claim on the basis that there was no statutory authorization.

I would recommend checking out the Institute’s website and video for the background facts of the case here.  In short, Richie DeVillier’s family has owned and farmed their property for almost 100 years with agricultural and livestock uses.  The farm consists of approximately 900 hundred acres of land.  Before the Texas highway department “improved” adjacent State Highway 10 “in the early 2000s… raising its height, adding two lanes, and installing a concrete barrier in the median,” the property never flooded. “Now, every time the area receives heavy rainfall, Richie’s land turns into a lake.”  Crops destroyed and livestock drowned (basically from exhaustion after standing in water for days).  Hard to imagine such a case was not envisioned when the Framers crafted the  Constitution’s Fifth Amendment, or why the “Supreme Law of the Land” would not apply in Texas.

We will be watching this one closely.