Here's the amicus brief filed yesterday in a Virginia Supreme Court case we've been following.
This is a case at the intersection of property and takings law, and environmental protection. Several Nansemond River 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.
The brief argues that its all about deliberateness and foreseeability, and distinguishes between takings and torts:
Inverse condemnation law in Virginia recognizes a valid claim against state action that foreseeably results in the destruction or invasion of private property for a public use. See Livingston v. Virginia Department of Transportation, 726 S.E.2d 264, 271-72 (Va. 2012). Unlike for claims sounding in tortious negligence, high levels of care exercised by the government will not exempt it from the obligation to pay, as the Constitution of Virginia mandates compensation for damagings and takings of property. Va. Const. art. I, § 11 (1971) (emphasis added). So long as the interference with property rights constitutes a public use, the government is liable under the “implied contract” of Article I, § 11. See AGCS Marine Ins. Co. v. Arlington Cty., 800 S.E.2d 159, 163 (Va. 2017) (describing the constitutional promise of compensation for takings and damagings as an “implied contract”).
Br. at 3-4 (footnote omitted).
Stay tuned, we'll bring you more once filed.
Brief of Amicus Curiae Owners' Counsel of American and Pacific Legal Foundation in Support of Appellants, J...
