Attorneys respond after state’s highest court rules against watermen on contaminated oysterbeds

Suffolk

SUFFOLK, Va. (WAVY) — The Supreme Court of Virginia has ruled against a Suffolk waterman who claimed the Hampton Roads Sanitation District and the City of Suffolk dumped raw sewage into the Nansemond River and damaged his oyster beds.  

The court ruled oysterman Robert Johnson is not entitled to compensation because his oyster leases do not have the same property rights as other property. 

It’s clear, the Nansemond River has health issues: The Virginia Department of Health website shows large swaths of condemned and conditionally condemned shellfish areas due to bacterial pollution — like Johnson’s. 

Now, the state Supreme Court has ruled since Johnson leases the state-owned river bottom, he can’t now come back and sue for damages from circumstances, including closures.  

Johnson’s attorney is eminent domain expert Joe Waldo.

“The bottom line, it is a sad day for Virginia because the Supreme Court has said HRSD and Suffolk can continue to pollute our waterways in Virginia,” he said.

The court found oystermen like Johnson “assume the risk the waters surrounding the leased grounds will be insufficiently pure.” 

Waldo weighed in.

“They are saying the oysters are no longer protected when they are damaged by raw sewage,” he said. 

The court went further: Suffolk and HRSD can do anything to Johnson’s oyster grounds except steal or destroy the oysters.

“It’s as if HRSD and Suffolk took raw sewage and put it in the oyster. It is the same effect. That is why the oystermen filed the complaint,” Waldo said. 

Attorney David Arnold represents the City of Suffolk.

“The City is pleased that the courts agreed with its position and affirmed longstanding legal precedent, based not on any ‘right to pollute,’ but instead on a careful analysis of the property rights involved,” Arnold said. 

That means Suffolk and HRSD owe oystermen nothing, and they should expect nothing. 

Johnson disagrees.

“The Code of Virginia says all these leases confer all the rights of private property,” Johnson said. 

“This is the Supreme Court logic, which we claim is wrong, and that is wrong because the oystermen’s oysters are defined as property under Virginia law,” Waldo added.

HRSD’s attorney, Chris Pomeroy, emailed us.

“While our client appreciates the Supreme Court’s ruling in its favor, I know that HRSD’s dedicated team will keep working tirelessly for clean water throughout Hampton Roads,” Pomeroy said. 

Johnson has no faith that will happen.

“I haven’t seen it in 40 years, and I don’t have another 40 years left, so I don’t expect to see it.” 

Waldo puts it this way: “History tells us even the Supreme Court doesn’t always get it right. This is one of those cases that history is going to say ‘The Supreme Court didn’t get it right.’” 

Waldo believes the only way to make what he thinks is wrong, right, is to do it through legislation in the General Assembly. 


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