Here's one we've been waiting to drop. In San Jacinto River Authority v. Medina, Nos. 19-0400, 19-0402 (Apr. 16, 2021), the Texas Supreme Court held that "statutory takings" under the Texas Government Code include both physical invasion takings as well as regulatory takings.
This case stems from flooding allegedly caused in part by the San Jacinto River Authority's release of water in response to Hurricane Harvey. The property owners whose land was flooded sued, asserting takings and inverse claims under both the Texas Constitution, and the "Private Real Property Rights Preservation Act." The Authority sought dismissal of the statutory claim arguing that it covers only regulatory takings, not physical takings like the takings here.
In case you are not familiar with the statute, it is a waiver of governmental immunity for lawsuits "to determine whether the government action of a political subdivision results in a taking under this chapter. Tex. Gov't Code § 2007.004(a). "Taking" is defined as actions that are defined as takings under the Texas or U.S. Constitutions, and actions that result in a diminution of value of at least 25%. The remedy under the statute are the ones not usually available in takings cases: invalidation or rescission of the government action that results in a taking.
The Authority had a tough argument because the statute includes on a list of actions that are takings, "an action that imposes a physical invasion." But the Authority tried anyway, arguing that each action on the list refers to regulatory action by a local government, not as in this case, the Authority opening up the floodgates. The list, it argued, includes only those physical invasions that result from regulatory actions. Get it?
No deal, held the Supreme Court's majority:
The chapter provides that private property owners may bring suit to determine whether governmental action results in a “taking under this chapter.” Id. § 2007.021(a). “Taking” is defined broadly to include governmental actions that satisfy the takings standard under the federal or state constitution or that reduce the market value of the affected property by at least 25 percent. Id. § 2007.002(5). A compensable taking under the state or federal constitution can be physical or regulatory. Gragg, 151 S.W.3d at 554. And we have held under somewhat similar circumstances that a political subdivision’s decision to flood downstream properties for a public purpose can be compensable as a physical taking under the Texas Constitution. Id. at 554–55 (citing TEX. CONST. art. I, § 17). Chapter 2007 thus authorizes a statutory takings suit for governmental actions that constitute takings under the state or federal constitution (either physical or regulatory) or that cause a reduction of at least 25 percent in market value.The River Authority does not deny the breadth of these provisions, nor does it deny that “physical invasion” may refer to a physical taking. Rather, it argues that a physical invasion can also be the consequence of a regulatory taking and that we should construe the language here to reference only that type of taking because that construction better fits the statutory scheme and its remedies. For example, Subchapter C of the statute envisions an orderly process through which a political subdivision proposes a covered governmental action that may result in a taking, prepares a written takings impact assessment of that action, and provides a 30-day public notice of its intentions. TEX. GOV’T CODE §§ 2007.042 (public notice), .043 (takings impact assessment). If the governmental action is found to be a taking under the chapter, the “property owner is only entitled to, and the governmental entity is only liable for, invalidation of the governmental action.” Id. § 2007.023. The chapter does not obligate the governmental entity to pay damages. Instead, the River Authority submits that this statutory scheme establishes a new procedure for preventing excessive regulatory takings before they occur, allowing for a single remedy: a judgment rescinding the challenged action. Id. § 2007.024(a). It submits that these requirements cannot be satisfied during a tropical storm and that the chapter’s remedy is of no benefit to the property owners, in any event, because they seek only damages caused by the flooding.
Slip op. at 10-11.
One Justice dissented, arguing that the statute's remedies (invalidation or rescission of the government action) didn't make any sense in this case because the flooding was already done and in a sense irreversible, and "[c]ontrary to these well-established limitations on the judicial power, the Court’s decision authorizes a statutory takings claim under Chapter 2007 of the Government Code even though a favorable judgment on that claim would do nothing to redress the plaintiffs’ alleged injury." Dissent at 3. No redress, no standing.
The majority rejected that line of reasoning, concluding that even though the court can't order the Authority to rescind its opening of the floodgates, the court could still determine whether there was a taking, and "invalidate" the Authority's actions, award attorneys' fees, and importantly determine the money damages the owners suffered, even if they cannot recover those damages under the statute. See slip op. at 12.
Want to find out more about what motivated the majority? Check out these resources:
San Jacinto River Authority v. Medina, Nos. 19-0400, 19-0402 (Tex. Apr. 16, 2021)
