Written by: Zachary Atkins
Oysters have long played a vital role in America’s coastal ecosystems and economy.[1] These remarkable creatures help purify the water and sustain the livelihoods of many Americans through aquaculture.[2] Modern oyster farming is an intensive process that requires significant investment as farmers must prepare estuary bottoms with rocks to create reefs, seed them with immature oysters, and wait two to three years before harvesting.[3]
First, in Campo v. United States, a significant legal battle unfolded in Louisiana due to the state’s ownership and leasing of saltwater bottomlands to oyster farmers.[4] The conflict arose when the U.S. Army Corps of Engineers opened a spillway for 123 days in 2019 to protect New Orleans from flooding.[5] This action released 10 trillion gallons of fresh water over oyster beds, decimating the oyster population.[6] The oyster farmers took legal action, filing a claim in Federal Claims Court for an uncompensated taking under the Fifth Amendment.[7]
The government attempted to dismiss the case with two main arguments. First, they claimed oyster farmers, as mere lessees, had no protected property interests in their oysters.[8] Second, they likened oysters to wild fish and game, suggesting they weren’t private property until harvested.[9] The court rejected both arguments, offering a surprising observation about oyster mobility: unlike foxes, rats, and fish, oysters lack “legs, feet, fins, and flippers.”[10] Instead, the court viewed oysters as crops, comparable to the decision in Horne v. United States Department of Agriculture.[11] In this case, the court addressed whether the government’s requirement for raisin growers to surrender part of their crop without compensation violated the Fifth Amendment’s Takings Clause.[12] The court held that this was a physical taking because it deprived the owners of their property rights to “possess, use, and dispose of” the raisins.[13]
The Campo court acknowledged that property interests can arise from unwritten common law and established practices, concluding that oysters meet all private property criteria: they could be possessed, used, and sold with profits benefiting the growers.[14]
Notably, the court invoked Lockean principles, referring to the philosophical foundation of the Fifth Amendment Takings Clause.[15] The court recognized that the oyster farmers’ labor, through their “backbreaking” efforts in cultivating these creatures created quintessential property rights.[16] However, a contrasting decision emerged from the Virginia Supreme Court in Johnson v. City of Suffolk.[17] In this case, oyster farmers sued the city for damages caused by pollution from a sewage treatment facility.[18] Despite support from the Pacific Legal Foundation, the court ruled against the farmers, finding they had only “limited” property rights under state law which were the right to occupy leased lands and the right to harvest oysters.[19]
The Virginia court’s reasoning seemed to split hairs: while pollution made the oyster beds worthless, it didn’t technically interfere with the farmers’ right to possess the leased lands.[20] Additionally, while the pollution made the oysters unusable, the city did not physically remove them.[21] The court cited a case from 1919, Darling v. City of Newport News, to support its position that oystermen don’t have “the right to grow oysters in conditions free of pollution.”[22]
These contrasting decisions highlight the complex intersection of property rights, environmental protection, and local and federal accountability in American law. While Campo v. United States recognized the substantial investment and effort of oyster farmers in creating valuable property, the court in Johnson took a more restrictive view of property rights, potentially leaving farmers vulnerable to environmental damage beyond their control.
As coastal waters face increasing environmental pressures, these legal precedents will likely shape the future of aquaculture and the rights of those who make their living from the sea.
[1] David McCullough, The Pioneers: The Heroic Story of the Settlers Who Brought the American Ideal West. 36. (2020).
[2] Our Story —, Billion Oyster Project, https://billionoysterproject.org/our-story (last visited Dec. 31, 2024).
[3] Rachel Eber, Monday Night Oysters, Bow Seat Ocean Awareness Programs, https://bowseat.org/gallery/monday-night-oysters/ (last visited Dec. 31, 2024).
[4] Campo v. United States, 157 Fed. Cl. 584 (Fed. Cl. 2021)
[5] James S. Burling , On Oysters, Property, John Locke, and the Court of Federal Claims: Campo . United States, The Federalist Society, https://fedsoc.org/commentary/fedsoc-blog/on-oysters-property-john-locke-and-the-court-of-federal-claims-campo-v-united-states (last visited Dec. 31, 2024).
[6] Campo v. United States, 157 Fed. Cl. 584 (Fed. Cl. 2021)
[7] Id.
[8] Campo v. United States, 157 Fed. Cl. 584 (Fed. Cl. 2021)
[9] Id. at 611.
[10] Id.
[11] Id. at 612.
[12] Horne v. Department of Agriculture, 576 U.S. 351 (2015).
[13] Id. at 361-362.
[14] Campo at 593.
[15] James S. Burling , On Oysters, Property, John Locke, and the Court of Federal Claims: Campo . United States, The Federalist Society, https://fedsoc.org/commentary/fedsoc-blog/on-oysters-property-john-locke-and-the-court-of-federal-claims-campo-v-united-states (last visited Dec. 31, 2024).
[16] Id.
[17] Johnson v. City of Suffolk, 851 S.E.2d 478 (Va. 2020).
[18] Id. at 481.
[19] Id. at 484.
[20] Whitney Pipkin, Editorial, Watermen Lose VA Lawsuit over Polluted Oyster Grounds, Bay J., Mar. 21, 2021.
[21] Id. at 483.
[22] Darling v. City of Newport News, 249 U.S. 540 (1919)