A development in the "oyster takings" case that we've been following as it has worked its way up to the Virginia Supreme court: that court today issued this Order, in which it awarded an appeal by Nansemond River oystermen (and the City of Suffolk's cross-appeal) who claim that their property was taken when the City dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting). Along with our William and Mary Law class, we took a field trip to the site last year (video above).
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 the Virginia Constitution's taking or damaging clause (article I, § 11).
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). 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 the oystermen asked 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.
Now that the court has accepted the discretionary appeal, we shall see what this case brings.
Here are our prior posts on the case:
- We Join IJ's "Short Circuit" Podcast To Talk Virginia Oyster Takings, Colorado Wild Eminent Domain Abuse Cert Petition, And Berman International
- SCOVA Oral Argument: Does A City Have The Right To Pollute Chesapeake Bay?
- Videos: Oyster Takings On The Nansemond River
- City: We Have The Right To Pollute - Virginia Oystemen's Petition Asserting A Taking
Stay tuned, we'll post more when available.
Order Awarding Appeal, Johnson v. City of Suffolk, No, 191563 (Va. May 18, 2020)
