Here's the latest in a case we've been following even before its inception (last semester, our William and Mary class visited the site and witnessed the oyster operation affected - see video above), Johnson v. City of Suffolk.
This morning, the Virginia Supreme Court heard oral arguments in the case, and we livestreamed it during our class. (We can't post the audio recording just yet; those are released on Fridays, so hold on just a bit longer if you missed the live event.)
This is what we call the "oyster takings" case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a "condemnation zone" (i.e., no oyster harvesting).
This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of jus publicum. The oystermen own a lease from the State of Virginia 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). Put another way, the oystermen's bundle of property rights do not include the "stick" of either a clean environment, or harvestable oysters. The trial 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 (as did the municipalities, which cross-appealed).
Today's arguments focused in part on the "stick" argument. What is the nature of the property right? Do the oystermen have a property right to useable, unpolluted oysters? Does the City have a duty to not put sewage into the river? Does it matter that the City lacks the power to condemn oysters by using its power of eminent domain. What is the effect of statutes which the Virginia General Assembly adopted after Darling, which limit the ability of municipalities to pollute? 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.
All these and more questions were asked-and-answered today.
The case was submitted, with no decision. We'll post the OA recording as soon as it is available. In the meantime, here are the briefs of the party and amicus:
Finally, 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.
Brief of Appellants, Johnson v. City of Suffolk, No. 191563 (June 11, 2020)
