We listened live last week, but the court has now made the recording available in Johnson v. City of Suffolk.

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).

Very interesting arguments that focused in large part on the “stick” question. 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.

Stay tuned.