By law, public agencies must pay when they damage private property. But Melisa and Michael Robinson received nothing after the local sewer board damaged their mobile home park in Okay, Oklahoma.
Leaving messes for others to clean up saves money. So, public agencies use various tricks to dodge the Fifth Amendment, which requires “just compensation” when the government takes private property for public use. These schemes are often elaborate, premeditated, and opaque.
Far too often, courts play along. Yet some abuses are too outrageous to ignore. The 5th U.S. Circuit Court of Appeals lost patience, for example, after a Louisiana parish took and damaged land, then ignored a court order to pay just compensation.
“This is really ludicrous,” one judge said during oral arguments in 2020.
Now, officials in Okay are using the same ludicrous playbook. They have been strung along the Robinsons for years, surprising them with new hurdles at each stage of litigation. After the couple finally prevailed at the Oklahoma Supreme Court, they returned to the trial court and were awarded $90,000 in compensation.
Instead of cash, they received an IOU. The sewer board is obligated to pay and has plenty of revenue. But using clever accounting, it transfers everything it collects from utility customers to the town, leaving nothing on the books to settle its debt. The board claims with a straight face that it is broke.
The Robinsons are stuck with no end in sight. Already, 16 years have passed since public workers rolled onto their property in 2009 and started digging without an easement or legal authorization. Poor grading caused toilets and showers to back up, and poor planning resulted in a severed power line, which caused appliances to blow out. The Robinsons had to fix the shoddy work on their own.
Now they just want their money. Left without options, they headed to federal court in 2024 to force payment. My public interest law firm, the Institute for Justice, represents them. Their case highlights just one way public agencies can take and damage property without paying.
The oldest trick is to deny that a taking occurred in the first place. Eminent domain is obvious. This occurs when the government takes title to land and evicts the owner. Other takings are less clear. The government might damage a property or impose regulations that limit what can happen on the property. Courts recognize all three scenarios as takings, depending on the details.
If the government loses this battle, the next trick is a regulatory maze. Public agencies can force property owners to complete a long and confusing administrative process before seeking judicial review.
Landowner Anthony Palazzolo battled for 40 years after regulators stopped him from developing his Rhode Island property. He was over 80 by the time he reached the Supreme Court. Even then, the state argued that his claim was unripe because he had not exhausted all possible permit applications.
Property owners can literally die of old age before reaching the finish line. After the Texas Department of Transportation caused flooding on Richie DeVillier’s ranch near Houston, he sent his elderly parents to stay with relatives in Oregon as he battled the state for just compensation. The parents never returned home as his father died of a heart attack in 2020, and his mother died two years later.
“It really bothers us, because it robbed them of the last years of their life,” DeVillier says.
His case shows yet another trick the government can use to avoid its financial obligations. Texas argued that DeVillier and other landowners could not sue for just compensation because Congress never passed a statute giving them permission to bring a takings claim.
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DeVillier disagreed and went to court directly on the Fifth Amendment. The Supreme Court sided with him in 2024, keeping his case alive. But the ruling leaves the underlying question unresolved, creating wiggle room for public agencies in the future.
The Robinsons outlasted the stall tactics in Oklahoma. But all they got was a paper victory. These games must end. Restaurant customers break the law when they dine and dash. The government does something similar when it damages private property and leaves without paying. Public agencies must do better.
Daryl James is a writer at the Institute for Justice in Arlington, Va.