Another invasion-by-sewage claim, another opportunity for bad punning.

What do you do when a municipality’s wastewater system malfunctions and “strew[s] [your] yard with condoms, toilet paper, raw sewage, and feminine hygiene products and force[s] [you] to endure ‘horrendous odors.'””

According to the U.S. Court of Appeals for the Fifth Circuit in Stringer v. Town of Jonesboro, No.20-30192 (Jan. 18, 2020), you don’t “seek help from the Town and its Mayor,” you sue for inverse condemnation. Don’t wait, go to court now.

All this started back in 2013, and continued until 2019, when Stringer sued in federal court for a taking (42 U.S.C. § 1983), and a citizen suit for violations of the Clean Water Act. The District Court dismissed the takings claim for being raised after the one-year statute of limitations, and the CWA claim because the Louisiana Department of Health had commenced enforcement of the state’s Sanitary Code, which precluded a citizen CWA suit. 

The Fifth Circuit affirmed dismissal of the takings claim, raised as a section 1983 claim and subject to that statute’s limitations period (in Louisiana, the P.I. SOL is one year). The owner was aware of the sewage discharges beginning in November 2011, but didn’t sue until 2019, more than 8 years later. The Fifth Circuit rejected the owner’s claim that the applicable SOL is 3 years, but really didn’t get into a deep analysis because, well, even if it is 3 years, the suit wasn’t filed until 5 years later.

The court also rejected the argument that the claim didn’t accrue in 2011, but was tolled because the defendants misrepresented that they would help her. and that “she was ‘lulled … into a false sense of security’ by the Town’s claims it was taking steps to fix the problem.” Slip op. at 12. No, the court concluded, “[o]ur precedent teaches that a cause of action accrues when the plaintiff learns the facts giving rise to her injury. In a takings claim, the injury consists in being denied enjoyment of one’s property (usually through physical invasion) without just compensation. This injury arises as soon as the invasion giving rise to the deprivation occurs.” Slip op. at 12 (citation and footnote omitted).   

“Thus,” the court held, “Stringer’s takings claim accrued when she first became aware of the sewage backups on her property. Slip op. at 13. “The Town’s promised fix does not change the fact that Stringer knew about the problem since November 2011, which started limitations ticking. Notably, Stringer does not claim the Town concealed the source of the backups from her, but only that it failed to follow through on fixing the problem.” Id.

Finally, the court rejected the argument that a promise to remediate delayed accrual of the SOL:

That proposition does not apply here. When each backup occurred, Stringer had no doubt she had lost the use of her property. She immediately suffered the noxious effects (the “horrendous odor,” her inability to cook food, wash dishes, and so on) that made her home temporarily uninhabitable. The Town’s promises to fix the problem did nothing to forestall the harm Stringer had already experienced. Thus, the “delayed accrual” doctrine from Mildenberger and similar cases has no application to Stringer’s claimed injuries.

Slip op. at 14 (footnote omitted).

We have a couple of thoughts:

  • The latter argument seems like a version of the “continuing violation” doctrine. Each day the invasion continues is a new wrong, and the SOL restarts anew. Yeah, maybe the compensation/damages owed only can reach back one year, but a municipality continually invading your property with human waste (see slip op. at 2 where the court notes that the town invaded the property with sewage “beginning in 2013 and continuing into 2019”) doesn’t become constitutional simply because the government does it for a long time. Does it matter that the remedy sought is compensation and not an injunction? 
  • We find it very difficult to pull out a consistent thread in SOL cases, except “don’t wait too long,” or “you should sue early and often.” We have reached this conclusion because it seems that there’s no way to accurately predict what a court will do, and the longer you wait, the more risk you take. That seems fairly obvious, but often, the lawyer isn’t consulted until it is too late (another teaching of this case: don’t trust government officials when they tell you that they will fix the problem), and when the lawyer is presented with these type of situations post hoc and asked to structure an argument, sometimes the best answer is that “you should have sued years ago,” as unsatisfying as that response is.   

The owner was not completely SOL, however. The court reversed the dismissal of the CWA claim, concluding that the state’s enforcement of the Sanitary Code did not qualify as “diligent prosecution,” and thus the owner’s CWA claim could go forward.

Stringer v. Town of Jonesboro, No. 20-30192 (5th Cir. Jan. 18, 2021)