Just filed: this Petition for Appeal in a case which our William and Mary Law class has a special interest in.
The above photo was taken a couple of weeks ago, when we paid a visit to the property owner/plaintiffs, the owners of a long-standing oyster business operating out of the City of Suffolk, Virginia. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City's dumping of wastewater in the river -- and prohibiting the harvesting of oysters during those times -- was a taking under both the U.S. Constitution, and Virginia's taking or damaging clause.
The trial court sustained the City's demurrer, accepting the City's argument that it has the right to pollute the river, based in part on the U.S. Supreme Court's decision in Darling v. City of Newport News, 249 U.S. 540 (1919). So now the oystermen have sought discretionary review in the Virginia Supreme Court.
Will this case be resolved by a century-old precedent that recognizes a local government's ability to pollute a public river with sewage? Have our notions of private property evolved since then? Will Virginia's greater recognition of property rights make a difference?
All good questions. So stay tuned. We shall follow this one closely, as we already have been doing.
Petition for Appeal, Johnson v. City of Suffolk, No. ___ (Va. Nov. 22, 2019)
