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Portersville Bay Oyster Company, LLC v. Blankenship

Supreme Court of Alabama

August 29, 2018

Portersville Bay Oyster Company, LLC, Troy Cornelius, and Rebecca Cornelius
v.
Christopher Blankenship, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources

          Appeal from Montgomery Circuit Court (CV-16-713)

          LYONS, SPECIAL CHIEF JUSTICE. [1]

         Portersville Bay Oyster Company, LLC ("the Oyster Company"), and its members, Troy Cornelius and his wife, Rebecca Cornelius, are the plaintiffs in a civil action against 4H Construction Corporation, Greystone Industries, LLC, and Christopher Blankenship, in his official capacity as Commissioner of the Alabama Department of Conservation and Natural Resources, that is pending in the Montgomery Circuit Court ("the trial court"). The Oyster Company and the Corneliuses (hereinafter collectively referred to as "the oyster farmers") appeal from the trial court's order dismissing Commissioner Blankenship as a defendant in this action. The trial court certified the dismissal as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. We reverse and remand.

         I. Factual Background and Procedural History

         The Oyster Company is an Alabama limited liability company authorized to grow, harvest, process, and sell oysters in Mobile County. The Corneliuses are its only members.

         Oysters can be farmed either from the bottom of the body of water or in elevated cages. A landowner on waterfront property has a statutory right to plant and to harvest oysters from the bottom in an area 600 yards from the shoreline in front of the property. § 9-12-22, Ala. Code 1975. Tensaw Land & Timber Company, Inc. ("Tensaw"), owns land fronting on Portersville Bay. Tensaw leased its statutory right to grow and to harvest oysters on the bottom in Portersville Bay to the Oyster Company. Tensaw executed two oyster-bottom leases on contiguous tracts to the Oyster Company, conveying oystering rights on the submerged land. The Alabama Department of Conservation and Natural Resources ("the Department") grants shellfish aquaculture easements on state-owned submerged lands for the purpose of cultivating and harvesting shellfish, including oysters. On November 20, 2014, the Department conveyed to the Corneliuses a shellfish aquaculture easement allowing them to raise oysters in cages above the area encompassed by one of the Tensaw leases. Subject to exceptions not here relevant, the riparian landowner does not have the right to harvest oysters in elevated cages within 600 yards from the shoreline in front of the waterfront property; the shellfish aquaculture easement enables the oyster farmers to grow oysters in elevated cages in the area of the easement. The oysters grown elsewhere on the Tensaw leases are grown on the bottom.

         While both of the Tensaw leases and the shellfish aquaculture easement were in effect, 4H Construction Corporation contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay ("the Marsh Island project").[2] Construction on the Marsh Island project began in approximately May 2016. It is undisputed that the Marsh Island project was for the public benefit. Sediment and silt removed and released during the construction of the Marsh Island project has been deposited, and is still being deposited, on oyster beds located in the easement and areas of the leases. According to the allegations of the complaint, the sediment and silt deposits have increased over time and are killing the oysters being farmed on those oyster beds.

         On September 19, 2016, the Oyster Company sued then commissioner of the Department, N. Gunter Guy, Jr., and 4H Construction in the Mobile Circuit Court, alleging negligence, wantonness, and nuisance against 4H Construction and two claims of inverse condemnation against Commissioner Guy relating to the easement. On October 28, 2016, Commissioner Guy filed a motion to dismiss the two counts against him on the basis that Mobile County was an improper venue for a case involving a State official and for failure to state a claim upon which relief could be granted. The Oyster Company and Commissioner Guy subsequently filed a joint motion to transfer the case to Montgomery County. The Mobile Circuit Court granted the motion to transfer but did not rule on the motion to dismiss.

         The Oyster Company then filed an amended complaint in the trial court restating the claims against Commissioner Guy; on December 12, 2016, Commissioner Guy again moved to dismiss the counts against him on the ground that they failed to state a claim upon which relief could be granted. The trial court entered an order on June 2, 2017, dismissing the first amended complaint as to Commissioner Guy. In the meantime, on March 8, 2017, the Oyster Company had filed a second amended complaint to add the Corneliuses, owners of the shellfish aquaculture easement, as plaintiffs. On June 8, 2017, the oyster farmers filed a motion to reconsider the June 2 judgment of dismissal. Then, on June 27, 2017, Commissioner Blankenship[3] filed a motion to dismiss the counts asserted against him in the second amended complaint for failure to state a claim upon which relief could be granted. The trial court entered a judgment on June 28, 2017, dismissing the counts against Commissioner Blankenship in the second amended complaint. On July 28, 2017, the oyster farmers filed a motion to reconsider the June 28 judgment of dismissal. Both motions to reconsider were denied on August 31, 2017.

         The oyster farmers explain their allegations in detail in their complaint. The following is taken from their second amended complaint:

"6. As part of the Department's duties for the preservation of lands, the Commissioner initiated the 'Marsh Island (Portersville Bay) Restoration Project' (hereinafter, the 'Marsh Island Project'), which involves the creation of a salt marsh along Marsh Island, a state-owned island in the Portersville Bay portion of the Mississippi Sound, Alabama. The project will restore approximately 50 acres of salt marsh through the placement of sediments and the creation of a permeable segmented breakwater to protect the Marsh Island shoreline. The restored marsh will compensate for salt-marsh habitat lost due to the Deepwater Horizon Oil Spill.
"7. The Department also manages and regulates Alabama's burgeoning shellfish industry. As part of this responsibility, the Lands Division of the Department grants shellfish aquaculture easements on state-owned submerged lands for the cultivation and harvesting of oysters, clams, or mussels and scallops.
"8. Plaintiffs are oyster farmers. [The oyster farmers] raise oysters in Portersville Bay, Mobile County, Alabama.
"9. Ala. Code 1975 § 9-12-22 provides that the beds and bottoms of various bodies of water, including bays, are the property of the State of Alabama, 'but the owners of land fronting on such waters where oysters may be grown shall have the right to plant and gather same in the waters in front of their land to the distance of 600 yards from the shore.'
"10. [Tensaw] is an owner of land fronting on the waters of Portersville Bay. Tensaw leased its § 9-12-22 right to plant and gather oysters to [the Oyster Company] via two oyster bottom leases covering contiguous tracts. The first lease, dated 19 June 2015, has a term of 8 July 2015 to 7 July 2018. ... The second lease, dated 29 July 2015, has a term of 1 August 2015 to 31 July 2020....
"11. [The Oyster Company] grows oysters on the bottom of Portersville Bay under the 29 July 2015 lease.
"12. On November 20, 2014, the Department conveyed to the Corneliuses a shellfish aquaculture easement for submerged land encompassed by the 19 June 2015 lease. ... The easement allows shellfish aquaculture activities on the submerged bottom and the overlying water column. In the area covered by the easement, [the oyster farmers] grow oysters on the bottom and in elevated cages. In the remainder of the area covered by the 19 June 2015 lease, oysters are grown on the bottom.
"13. 4H Construction contracted with the Department to construct a breakwater and marsh for coastal protection in Mobile Bay. This is the Marsh Island Project, State Project #2-L198. Among other things, 4H Construction operates heavy machinery to remove underwater sediment south of [the oyster farmers'] leases and easement.
"14. 4H Construction and the Department executed a contract for the Marsh Island Project in or about January 2016. As part of the contract for the construction of the breakwater and marsh, 4H Construction must follow certain requirements such as the prevention of sediment release, creating proper containment berms to prevent the movement of any sediment, and ...

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