Many of us who live on the coast have a love affair with the oyster, those salty, umami-laden morsels that regularly appear on our plates, whether raw, steamed, grilled, or fried. Some of us are also familiar with the watermen and aquaculture industry that bring us our oysters. In many states, oysters grow naturally in tidal rivers and bays, and the state government also leases portions of the river bottom to watermen to grow oysters. There is an inherent tension between our desire to harvest and eat oysters, and oysters\u2019 function as nature\u2019s water cleanser. Oysters filter water through their systems and retain pollutants.\u00a0 This is why they can also be dangerous to eat\u2014if not deadly\u2014when they filter harmful pollutants.<\/p>\n
I ran across a case from Alabama where the court discussed fecal coliform and the oyster industry. Fecal coliforms are bacteria which originate in the intestines of warm blooded animals. While the term \u201cfecal coliform\u201d may not be familiar to everyone, E. coli<\/em>, which I suspect most people have heard of, is a specific type of fecal coliform. When it rains, fecal coliform in the form of animal waste and the like makes its way naturally into bodies of water where the bacteria is subsequently filtered by oysters. An Alabama court has noted that fecal coliform bacteria are not harmful to oysters and that oysters actually \u201cthrive\u201d on the bacteria.\u00a0 However, the state health department monitors for fecal coliform bacteria and will close oysters to harvest when fecal coliform levels get too high, in the interest of protecting public health.<\/p>\n This got me to thinking, if an agency contributed to the elevation of fecal coliform levels in the water to such a degree that the state health department closed the oyster harvest, could this constitute a constitutional taking?\u00a0 If that agency has the power of eminent domain, could it be the target of an inverse condemnation lawsuit? \u00a0More than a century ago, the United States Supreme Court held that oyster leases are held subject to the risk of pollution, although that was before the passage of modern environmental regulations.<\/p>\n Do you think local and state agencies with condemning authority have something to worry about? Could this become a cottage industry for plaintiff\u2019s lawyers?\u00a0 Are you familiar with any such inverse condemnation claims? If you have thoughts or experience on the subject, we would love to hear from you<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" Many of us who live on the coast have a love affair with the oyster, those salty, umami-laden morsels that regularly appear on our plates, whether raw, steamed, grilled, or fried. Some of us are also familiar with the watermen and aquaculture industry that bring us our oysters. In many states, oysters grow naturally in […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":""},"categories":[1],"tags":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1301"}],"collection":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/comments?post=1301"}],"version-history":[{"count":3,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1301\/revisions"}],"predecessor-version":[{"id":1304,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1301\/revisions\/1304"}],"wp:attachment":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/media?parent=1301"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/categories?post=1301"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/tags?post=1301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}