TX – A federal lawsuit accusing state officials of knowingly constructing a concrete median barrier on Interstate 10 that caused the flooding of homes in the Winnie area can proceed, with a district judge denying the state’s claims of immunity.
U.S. District Judge Jeffrey Brown signed an order last week affirming a magistrate judge’s opinion denying the state’s motion to dismiss the complaint. Families in the Winnie area sued the state in May 2020 over a 32-inch high median on I-10 that they say “effectively created a dam,” blocking rainfall from draining south and instead causing it to build up and flood their northside properties after Hurricane Harvey and Tropical Storm Imelda.
In August, the state filed a motion to dismiss the lawsuit on grounds that it has sovereign immunity on any Fifth Amendment claims, which guards against private property being taken for public use without compensation. U.S. Magistrate Judge Andrew Edison ruled that attorneys for the Winnie-area families showed that the state’s use of their property was “more than incidental,” and that the state has no immunity from liability.
“Not only have Plaintiffs alleged that the State knew or was substantially certain that the concrete barrier would cause flooding on the northside of IH-10…but they have also pointed to specific ways in which discovery might help them to prove those allegations at trial,” Edison wrote.
Richie DeVillier, one of the plaintiffs in the lawsuit, who has twice watched the concrete median barrier hold back water like a dam while flooding his property, was pleased with the magistrate’s ruling. The lawsuit now moves toward the discovery phase, he said, with a trial date possible in 2022.
“It is a big deal, it’s a great step for us,” DeVillier said.
The state attorney general’s office did not immediately respond to a request for comment.
Attorneys originally filed the suit in Chambers County court on behalf of 46 people — many from the DeVillier family, who have been ranchers in the area for generations. The lawsuit was transferred to federal court in June.
The state knew that building that 32-inch-high median would flood the homes north of it, the attorneys allege. But building it allowed officials to keep the other side of the roadway open for evacuations, according to the lawsuit.
The median was constructed when the Texas Department of Transportation raised the elevation of I-10, widening it from four to six lanes, and installing the concrete barrier on the highway’s center line.
The barrier effectively created a dam protecting the south side of the freeway from flooding by barricading all rainfall on the north side. Rainfall that would otherwise have run over the top of the roadway and continue downstream toward the Gulf of Mexico instead stopped at the barrier and caused backwater flooding onto the Devilliers’ properties on the north side of the barrier.
In August, the state transportation department announced it would put in a new barrier with openings at the bottom to allow for drainage. Officials meanwhile installed temporary barriers to be removed “should there be a need.”
But DeVillier worries that work is proceeding too slowly. The start of hurricane season is months away and he believes it’s a matter of time before another storm inundates his land.
“Every day it gets a little bit closer to the next storm, whether it’s this year or next year,” he said.
