In which we join the Pendulum Land Podcast (again, thank you hosts!) to talk about the Virginia Supreme Court's recent opinion in Johnson v. City of Suffolk, the case we label the "oyster takings" case in which Hampton Roads oystermen claimed 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).
Short story: the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest. Or at least not a property interest worthy of constitutional protection. Thus, no takings claim when Suffolk and the Sanitation District dumped sewage into the river and pretty plainly interfered with some kind of right the plaintiffs owned in the lease. Just not enough of a right to require compensation.
Our thoughts on the court's decision here (tl;dr: the property expectations of the oystermen in the lease should not be decided as a matter of law, but by the jury as a factual matter: "And there's the problem: to us, these are questions that juries should be reviewing as factual matters, not policy questions by judges (or Justices). The takings inquiry, we've been repeatedly told, is a factual inquiry that looks at the character of the government action (physical invasion or not), and the extent of the interference with "distinct" (i.e., subjective) investment-backed expectations. But like the Virginia court here, many courts routinely treat these as questions of law, to be decided on the predicate "property or not" question.").
In addition to legal insights, the crew offers its tips on Virginia oysters and places to obtain and consume them (when they are not polluted, of course).
