Here's the latest in a case we've been following. We even visited the site with our class last year.
Today, the Virginia Supreme Court heard argument on the petition for appeal (streaming above from the webstream, or download the mp3 here) in what we call the oyster case because it involves the property rights of Nansemond River oystermen, whose oyster beds were polluted by sewage from the City of Suffolk.
Bottom line from today's argument: no decision yet. These arguments are short (10 minutes), only the petitioner is allowed to argue, and today's argument did not elicit any questions from the three-Justice panel. So we wait.
Some background, since this is a case at the intersection of property and takings law, and environmental protection. 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) and a. The court acknowledged that the oystermen's lease is property, but concluded that the city and sanitation district possess a superior right to pollute the river with sewage.
So now the oystermen are asking the Virginia Supreme Court for discretionary review. Virginia's inverse condemnation doctrine -- set out most recently in Livingston v. VDOT and AGCS Marine Ins. Co. v. Arlington County -- is also a big question
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 questions that could be answered if the court accepts review. Stay tuned.
