{"id":1319,"date":"2019-03-13T20:43:09","date_gmt":"2019-03-13T20:43:09","guid":{"rendered":"https:\/\/rightofway.law\/?p=1319"},"modified":"2019-03-13T20:43:09","modified_gmt":"2019-03-13T20:43:09","slug":"can-oyster-leases-be-a-shield-to-dredging-projects","status":"publish","type":"post","link":"https:\/\/rightofway.law\/can-oyster-leases-be-a-shield-to-dredging-projects\/","title":{"rendered":"Can Oyster Leases be a Shield to Dredging Projects?"},"content":{"rendered":"

Last December, we raised the question of whether condemnation of oyster leases as a result of the elevation of fecal coliform could result in a constitutional taking<\/a>.\u00a0 Oyster leases have been a hot topic of discussion lately, particularly here in the Commonwealth of Virginia.\u00a0 Clearly they are at the epicenter of competing property rights and remain the subject of much debate.<\/p>\n

In February, The Virginian-Pilot published an article<\/a> which identified an emerging tactic of some Virginia Beach residents to interfere with planned dredging activities by the City of Virginia Beach.\u00a0 As the argument goes, people were allegedly leasing unproductive oyster grounds in the path of dredging projects.\u00a0 The projected result was to either halt the project or extract significant profits from the City in order to continue.<\/p>\n

Our colleague, Jeff Wilson<\/a>, recently published an article in Waterfront Law<\/a> \u00a0where he extended the analysis by discussing the competing interests between oyster farmers who have valid leaseholds in productive oyster grounds and waterfront property owners.\u00a0 In the same article, Wilson also contemplated tying rights to those oyster grounds to productivity, as the North Carolina legislature has done.\u00a0 Essentially, there are acres upon acres of unproductive shellfish grounds in Virginia waters that are being used – – either intentionally or not – – to affect public interest projects, as well as the rights of riparian property owners.<\/p>\n

A 2018 Virginia Court of Appeals decision addressed the competing interests of oyster leaseholders with a municipality\u2019s need to keep waterways open through dredging.\u00a0 In that case, the City of Virginia Beach appealed the Virginia Marine Resources Commission\u2019s (\u201cVMRC\u201d) issuance of an oyster lease to a waterfront property owner located adjacent to the oyster ground.\u00a0 The results of that decision were not favorable to the City. City of Va. Beach v. Va. Marine Res. Comm’n<\/em>, 2018 Va. App. LEXIS 231, 2018 WL 3977505 (Va. App. August 21, 2018).<\/span><\/span><\/span><\/p>\n

The Virginia Court of Appeals made several rulings of particular interest.\u00a0 First, it noted that the VMRC had no discretion to issue an oyster lease if the applicant met all criteria. In other words, it did not assign any public interest exception to the application process; if the applicant met all criteria, then the VMRC \u201cshall\u201d issue the lease.\u00a0 The upshot of this ruling is that the VMRC cannot even consider whether issuance of an oyster lease will interfere with a public dredging project.<\/p>\n

The Court also unequivocally stated that a City may not condemn oyster beds if they are leased to third parties.\u00a0 Period.\u00a0 This suggests that the City does not have the power of eminent domain over leased oyster beds.\u00a0 Accordingly, even if a city is willing to pay for the rights to those property leases, they simply do not possess the power to acquire those rights involuntarily.\u00a0 If a city does not have the right to condemn and if that city dredges anyway, does that mean that it cannot be subject to an inverse condemnation action?<\/p>\n

Finally, the Court was clear that the City\u2019s right to control navigable waterways is not superior to oyster leases.\u00a0 By this ruling, the Court implies that the control of navigable waterways is limited to the Commonwealth of Virginia and Congress.\u00a0 The net effect of this is the City may not dredge waterways in an area subject to an active oyster lease. \u00a0<\/em><\/p>\n

Not surprisingly, the Virginia legislature passed a new law in the 2019 session which addresses the competing interests of municipalities and their desire to dredge and citizens who hold valid oyster bed leases.\u00a0 Delegate Chris Stolle introduced House Bill 2047 which passed and was codified to Virginia Code \u00a7 28.2-618.\u00a0 In that legislation<\/a>, the Commonwealth affirms its guarantee of rights to use and occupy the grounds of a valid lease, but creates a path forward for active dredging projects.\u00a0 The bill divided leases between those which are active and productive and those which are not, and afforded different procedures in each case.<\/p>\n

Though the new law does not mention condemnation or eminent domain, it appears to establish a condemnation \u2013 or quasi condemnation\u2014action by municipalities over oyster leases.\u00a0 Like actual eminent domain proceedings, this law requires negotiation, encourages compromise and voluntary resolution, and establishes the need to pay compensation for acquisition or disturbance of these property rights.\u00a0 (Of note, this law addresses dredging only and, in our opinion, does not create any new right for oyster beds affected by fecal coliform.)<\/p>\n

If the leaseholder does not accept the City\u2019s offer to disturb the leasehold, then the parties are to proceed to mediation.\u00a0 If mediation is unsuccessful, \u201ca court of competent jurisdiction\u201d is left to determine \u201cfair compensation to the lessee\u201d.\u00a0 Interestingly, the legislature used the term \u201cfair compensation\u201d rather than the constitutionally defined term of \u201cjust compensation\u201d in this new law.<\/p>\n

It will be interesting to see whether this legislation promotes harmony and resolution between competing interests, or whether it spurs a new cottage industry of litigation.\u00a0 Stay tuned for future updates here or from our colleagues at Waterfront Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Last December, we raised the question of whether condemnation of oyster leases as a result of the elevation of fecal coliform could result in a constitutional taking.\u00a0 Oyster leases have been a hot topic of discussion lately, particularly here in the Commonwealth of Virginia.\u00a0 Clearly they are at the epicenter of competing property rights and […]<\/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":[28,27],"tags":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1319"}],"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=1319"}],"version-history":[{"count":1,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1319\/revisions"}],"predecessor-version":[{"id":1344,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/posts\/1319\/revisions\/1344"}],"wp:attachment":[{"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/media?parent=1319"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/categories?post=1319"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rightofway.law\/wp-json\/wp\/v2\/tags?post=1319"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}