State Supreme Court hears oyster case
By Jimmy LaRoue, Suffolk News-Herald – 11/4/2020
The Virginia Supreme Court has heard the appeal in a lawsuit filed by local oystermen against the city of Suffolk and the Hampton Roads Sanitation District.
The court heard arguments from their respective attorneys Nov. 4, with a decision in the case holding the potential for far-reaching, precedent-setting implications as it merges environmental caselaw and caselaw about inverse condemnation — the taking of private property for a public purpose without justly compensating its owner.
C. Robert Johnson III, Lisa Lawson Johnson, Thomas Hazelwood, Johnson and Sons Seafood and Hazelwood Oyster Farms filed the original lawsuit in November 2018 when they sued the city and the sanitation district.
The local oystermen alleged that the city allowed untreated stormwater and sewage to be released into the Nansemond River, and by the sanitation district doing the same periodically with untreated sewage, the government took their property in a way that caused the river to become so polluted that they are not able to harvest oysters from the grounds in which they hold leases.
Following a September 2019 hearing in Suffolk Circuit Court, the lawsuit was dismissed, but the oystermen appealed, stating that the trial court was in error, basing its ruling on federal caselaw interpreting the U.S. Constitution, rather than the state constitution, on which the oystermen’s claims are based. Also, the appeal states the trial court erred in relying on obsolete 1919 caselaw, which predates many of the current environmental laws and regulations.
In the state Supreme Court, Steve Emmert, an attorney representing the oystermen, said the case was one of physical invasion, not a regulatory taking case.
“The argument that the district makes in its brief that we have to show, as a practical matter, a deprivation of all economic use, simply doesn’t apply,” Emmert said. “This is a physical invasion, so one invasion equals one taking.”