Farmer Nightmare: Government Floods Family Twice, Kills Herd and Refuses to Pay Damages

We break, you pay?

In a repeat nightmare, the government twice flooded Richie Devillier's 900-acre farm and home under several feet of water, killed his cattle, ran his family through emotional hell—and insisted he foot the entire bill.

When a new highway flood wall trapped Devillier's land within a figurative bathtub and erased several generations’ worth of toil in 2017 and 2019, state officials washed their hands of the Texas farmer and refused to pay damages. In 2020, Devillier sued for compensation under the Fifth Amendment, but was told he had no legal grounds to seek compensation from the state. Undaunted, Devillier is petitioning the Supreme Court.

The case is a stunner. No one in the courts or bureaucracy calls Devillier a liar or contests the basic facts of his claims. Instead, the state, backed by the Fifth Circuit, says citizens cannot seek compensation under the Fifth Amendment unless specifically allowed to do so by Congress—in direct defiance of decades of Supreme Court precedent.

The clock is running: Devillier's operation will flood again when the next catastrophic deluge falls and his land will turn back into water world, directly attributable to the state's action. "The government is goliath," he says. "The government officials are untouchable, almost, but we’re about to touch them with the Bill of Rights."

"I want people to listen and learn about my story," he adds. "It's not about me because it doesn't matter what state you live in. They can come for your land next."

Bay of Hell

In 2017, weary to the bone after days spent in a surreal fight to keep the last scraps of his operation afloat, Richie Devillier walked through the foul debris of his sludge-filled farm home, and entered the master bedroom, only to encounter a site suited to fiction. Standing on his bed, a whitetail doe stared out a window at water to the horizon.

Triggered by rising water, the bizarre deer incident captures the catastrophic absurdity of Devillier's misfortune, but is sharply contrasted by recorded family history. Since 1920, the Devillier clan has farmed their high-ground land in southeast Texas’ Chambers County, outside Winnie, roughly 60 miles east of Houston. Across 100 years of rice cultivation and cattle production, there have been no floods on the Devillier property—until now.

Devillier, 59, is the fourth generation to work the land, growing bluestem hay and raising Hereford cattle sired by Brahman bulls. Alongside his wife, Wendy, Devillier also raises horses on a small scale, and his son, McCain, 22, will one day steer the family operation.

Dotted with isolated knobs, Devillier's 900 acres of pancake-flat ground rubs against I-10, an east-west federal highway connecting Houston and Beaumont. Beginning in the 1990s, the Texas Department of Transportation (TxDOT) updated I-10. The section adjacent to Devillier's property was completed in the early 2000s. The renovation raised I-10 18" and erected a 32"-high concrete barrier in the median, ensuring the eastbound lanes remained navigable during floods. Translated: TxDOT built a dam in the middle of the highway and Deviller's land is on the receptacle side.

(Citing ongoing litigation, TxDOT declined all Farm Journal questions related to the Devillier case.)

"When TxDOT got finished with the highway project, I didn't think the drainage would be sufficient when things got bad, but they were supposed to be experts," Devillier says. "Before their project, the freeway bridged over the bayous. Instead, they boxed in the bayous with square box culverts. I knew the barrier dam, combined with insufficient drainage, was not going to work."

"I grew up here and worked beside my grandfather, father, cousins, and family, and we’d been through monsoonal rains and weather events of every kind, but we’d never seen anything but normal drainage," Devillier continues. "There were no floods and no flood history."

"No TxDOT representative or government official ever came and warned me that when we got major water, my land and my neighbor's land would turn into a bay," he adds. "I wish they had."

Never to Return

On Aug. 25, 2017, Hurricane Harvey made landfall in Texas and its rains drowned a 20-mile stretch from Winnie to the Trinity River for 2 to 3 miles north of I-10. Devillier's farm, along with the property of his neighbors, was swallowed, courtesy of the I-10 concrete barrier dam.

"Hurricanes and terrible storms are part of life here," he describes, "but this flood was something different because the water had nowhere to go thanks to the highway barrier."

Devillier's farmland went under 3’-6’ of water and his house filled with approximately 23" of water, but more pressing than his own dire circumstance, Devillier rushed a half-mile to his octogenarian parent's home, rescuing Richard and Barbara from 3’ of water. Richard, born on the Devillier family farm, gathered a handful of mementos and exited the house and property for the final time of his life. He would never again set foot on the land of his legacy and birthplace.

Richard, along with Barbara, flew to Oregon to stay with a daughter and wait out the flood and rebuilding process. Worn and wiped out, Richard suffered a heart attack and died in Oregon, 2,000 miles distant from Winnie. Two years later, Barbara also passed away in Oregon.

Richard and Barbara returned to Chambers County—in an urn. "My dad's heart couldn't handle seeing our farm disappear," Devillier says. "And none of it had to happen."

The Sacrifice

Devillier floundered under total flood devastation. Overlooking his farm, the highway barrier dam was a line of demarcation—the edge of a vast wall of water. Days into the flood, standing at the concrete barrier on the dry, south side of I-10 and looking north, Devillier soaked in the reality of havoc stretching for miles.

"It was incomprehensible," he recalls. "I’d never seen or imagined anything like what was before me. We could drive down I-10 on lanes with no standing water, yet the concrete barrier had waves lapping over from water that covered my farm. You could stick your hand over the barrier into an ocean of water."

Devillier's family called a county judge, desperate for permission to pierce the highway dam and relieve the pressure off his acreage. "We begged him to let us knock down a portion of the barrier, but he wouldn't make the call. Nobody wanted liability. We also knew if we knocked a hole in the dam, every person downstream would sue us."

"The TxDOT engineers straight out said, ‘If we don't have the barrier, then we can't get our emergency vehicles back and forth.’ It was plainly evident: Myself and my neighbors were the sacrifice," Devillier adds.

Water covered Devillier's farmland over a week, either ruining his equipment and possessions or carrying them to parts unknown. One thousand hay bales bobbed in the wake, alongside the carcasses of bloated cows and horses floating across the property. His cattle, the centerpiece of the operation, fared the worst, congregating atop tiny knobs in relative shallows. Motoring in a Jon boat, Devillier and McCain tried in vain to save stranded livestock.

"There were cattle hung up in barns and calves with their heads just above water, covered in fire ants. There were cattle standing in our garage and around the house. There were cows congregating on berms, and lost calves, and cows off by themselves. It was ghastly to watch them suffer."

The cattle were living dead—shellshocked on their hooves. "Grabbing a cow in 4’ water from a 16’ aluminum boat powered by a 40-horsepower outboard and towing it to safety doesn't work," Devillier describes. "The cow is an anchor."

Devillier watched his herd die. "After days in water, the cows slip their hair. They bloat and their skin sloughs off. It's heartbreaking and sickening to watch. It's a feeling of helplessness to see your cattle in such a state and to know the value of your real estate—what you’ve worked your entire life for—is crumbling."

After four days, the water around Devillier's house (built on the property's highest elevation) began receding. He entered his home to find a doe in the master bedroom. "The deer had pushed a door screen out, walked in, and found a high spot on the bed. We coaxed her out and she splayed across the floor, saw daylight coming through the door, and took off. It was just one more surreal detail in a scene I can't adequately describe."

The "scene" across Devillier's home and farm was apocalyptic, his acres littered with dead cattle, lumber, personal effects, and flotsam of every stripe. For days, loading carcasses and trash with a tractor onto a gooseneck trailer, he steadily hauled everything 10 miles away and deposited the goods at the county dump—a lifetime of personal memories and rotting flesh into the same hole.

Bit by bit, step by step, despite no flood insurance, Devillier regained his bearings, rebuilding his home and agriculture operation—without a dime from the state.

Two years later—it happened again. Wash. Rinse. Repeat.

Lump It or Leave It

Roughly 24 months after enduring the worst losses of his life, Devillier's land again flooded at a catastrophic level courtesy of the highway barrier—his farm submerged and his house filled with 23" of water.

Tropical Storm Imelda put Devillier's land under water for roughly seven days in September 2019. For the second time, his operation was devastated.

"Once again, this was no natural flood," he emphasizes. "The government made me their retention pond."

No apologies, explanation, or compensation from the state. Lump it or leave it.

"Words can never express the strain on my wife and family," Devillier says. "The first flood was numbing and took me out mentally, but the second flood spurred me to clarity. I knew my task. I had to solve this for my family and neighbors. We’ve been terribly wronged. After Harvey, the state said we experienced a once-in-a-thousand-years-flood. No sir. They never get to say that again. It's going to happen over and over. Why? They built a dam."

"I couldn't sue the state for being incompetent, but they’re not allowed to take my property without paying. So says the Fifth Amendment."

Backed by local legal representation, Devillier and his neighbors sued for damages in Texas court, supported by state and federal law. However, Texas state attorneys threw a curveball and removed the case to federal court, where the 5th Circuit Court of Appeals tossed out the case, claiming Congress has passed no laws allowing private citizens to sue states for takings of property.

Despite the Fifth Amendment's guarantee of "just compensation" embedded in the Constitution and decades of Supreme Court precedent affirming that guarantee, the federal court erased Devillier's claim.

Enter the Institute for Justice (IJ), a national public-interest law firm and legal advocacy group. In 2023, IJ petitioned the Supreme Court to hear Devillier's case.

"Insanity," says IJ attorney Robert McNamara. "You know it's a crazy ruling when a court says state governments can build what they want and do to their citizens what was done to Richie Devillier. This is part of a growing refusal by courts to enforce the Constitution at all. The whole point of federal court is to protect your federal rights, but incredibly, they are often the place where the government runs to get those rights extinguished."

Taking of private property without just compensation is an increasing concern in the U.S., McNamara insists. "Most of these cases don't make national news, but if the state doesn't feel like paying—it doesn't, and often there is no accountability. That's why Richie Devillier's case is so important to every American. It's a chance for the Supreme Court to step in and say, ‘No. Just compensation means just compensation.’ It's not hard to understand or complicated: Pay people for what you take."

Steadfast

Deviller is forced to reckon with time. Whether tomorrow, next year, or the following decade, floodwaters again will rise to the highway barrier's lip and swallow his land.

"That's what a dam with woefully inadequate drainage does," he says.

The Supreme Court will reconvene in fall 2023: Devillier's petition is on the docket, awaiting consideration.

"The public is shocked when they find out what the state was willing to do to its citizens and then pretend they are not responsible," McNamara says. "What the state has put the Devillier family through is horrifying and their experience runs counter to the freedoms that define America."

"Rest assured," McNamara concludes, "if it floods again in 2023, the government will be certain the only thing Richie Devillier is entitled to is a pat on the head and no compensation."

Devillier is steadfast.

"We’ve been so blessed by the help of family, friends, and strangers, and we’ve got extreme confidence in our local attorneys and the Institute for Justice," he emphasizes. "A lot of people in our area gave up, sold out, and left, but I won't. 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. I won't walk away and I’ll fight for every American."

"They did this to me and they will come for you eventually," Devillier adds. "If we can't sue for the wrongs done by the state to our personal property, what is the point of having a Fifth Amendment or constitutional rights?"

For more from Chris Bennett ([email protected] 662-592-1106) see:

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