It took eight years, but Gail Litz finally got her day in court — three weeks, actually.
Along the way, she won a potentially important legal ruling for enforcing water quality in Maryland. But she fell short in her quest for damages from the state and an Eastern Shore town for their failure to fix pollution that she contended caused the loss of her family’s campground business and property.
“I got my day in court,” acknowledged Litz , who now lives in Orlando, FL. “But I don’t feel we were allowed to admit a lot of things [into evidence] that I thought explained better the process.”
Litz filed suit in 2010, claiming that Lake Bonnie, the prime attraction of her family’s campground in Caroline County, had been rendered unfit for swimming by sewage seeping into the water from failing septic systems in the nearby town of Goldsboro. She said she’d been forced to close the campground because of declining business and was on the verge of losing the property to foreclosure.
Septic systems in Goldsboro had been leaking for decades when the state Department of the Environment issued a consent order in 1996 requiring the town to fix the problem or face fines. Fourteen years later, when Litz filed suit, there was no remedy in sight, and no fines had been collected. Litz wanted an injunction to force a cleanup, and she wanted damages from Goldsboro and the state for costing her the campground business — and property — through inaction.
Litz’s lawyers went to the Maryland Court of Appeals twice to ask for her case to be heard. In 2016, the state’s highest court paved the way by ruling that a citizen could sue the state for damages when it fails to fulfill its legal duty to act — which her lawyers say should prompt officials to take environmental enforcement more seriously.
Litz then won a pretrial ruling that confirmed the state had a duty to enforce the 1996 consent order. And at the end of the three-week trial in March, a Caroline County Circuit Court jury found the state had breached that duty.
But Litz came away empty-handed; the jury also concluded that she and her lawyers had failed to prove the unaddressed septic pollution caused her to lose the campground.
Philip Hoon, one of Litz’s lawyers, called the outcome “bittersweet.”
“We won on the legal point, a very significant legal point, but it’s pyrrhic in that this lady lost her property,” Hoon said.
Litz’s lawyers argued that she lost the property through an “inverse condemnation” by the state and town for their failure to remedy the pollution.
Government agencies normally take private land for public purposes by filing a lawsuit to condemn it and offering the owners compensation. An inverse condemnation occurs when government takes land without filing a lawsuit for it — say, by adopting legislation or regulations that render the property worthless.
What made Litz’s case unusual, explained G. Macy Nelson, another of her lawyers, is that they argued government inaction, rather than a decision or action, could lead to a taking.
Long after Gail Litz is gone, Nelson said, “people are going to be suing the state of Maryland and using this case as a roadmap.”
At the time Litz filed suit, an MDE spokesperson said the agency had nearly 200 active consent orders, decrees or agreements, 55 of which called for cleaning up water pollution. Another MDE spokesperson had said that, because of limited staff and funding, the department prioritized its efforts to cases threatening public health. MDE spokesman Jay Apperson said there are 83 water-related consent agreements now; he declined to comment on the Lake Bonnie case.
Lawyers for MDE contended that it had no legal duty to act and that state regulators have the discretion to enforce consent orders or not. After courts rebuffed those arguments, the MDE lawyers challenged the evidence that Litz lost her property because of the septic pollution, arguing that the lake might be polluted instead by animal waste from nearby farms.
They and the town’s lawyers succeeded in getting the judge to exclude statements by a county health official and from a health department report stating that the town’s leaking septics were a source of the fecal bacteria in the lake. The defendants also persuaded the judge to prevent a Johns Hopkins University environmental engineering professor from testifying to the linkage.
The state lawyers further suggested Litz lost the property because of poor business decisions. She took out a loan against the campground, for instance, to make improvements to her home, but Litz contends the improvements were made to accommodate health challenges that made it hard for her to climb stairs.
Litz said it irked her that the state’s lawyers questioned why she hadn’t tested the water herself to verify it was polluted by septic waste.
“They tried to throw the blame on me,” she said. “I felt as though it was their responsibility, as the state environmental agency, to figure out what was going on.”
MDE Secretary Ben Grumbles had said last year that he’d like to settle the case, and Nelson said Litz’s lawyers tried in vain to reach an agreement.
Nelson expressed bitterness that the state had then gone to such lengths to oppose her claim for damage after letting the problem fester for so many years.
“You challenge their inaction, and the moment you challenge their inaction, they bring unlimited resources to beat back the challenge,” Nelson said. “[If] they would have spent 1 percent of the defense energy on addressing the environmental problem, there never would have been a problem.”
But Attorney General Brian Frosh said settling Litz’s case would have done nothing more than “put money in Mrs. Litz’s pocket,” something he called “a very ugly principle.”
Frosh disagreed with Nelson that the court ruling would make state regulators more accountable. Instead, he argued that the court’s ruling could actually be a disincentive for the MDE to use consent orders to enforce cleanups.
“If [MDE] is liable for the failure to enforce, maybe a less courageous secretary will be less likely to try to reach a consent order,” he said.
Nichole Nesbitt, one of Goldsboro’s lawyers, issued a statement saying town officials never disputed that residents were having trouble maintaining their septic systems because of poor soil conditions.
But the town’s lawyers argued that residents, not the town, were responsible for solutions. Efforts to fund a new wastewater treatment plant failed — until after the lawsuit was filed.
“The town and the state made extraordinary efforts to secure funding that would bring a public water and sewer system to the town,” Nesbitt said.
Three years ago, construction began on a new wastewater treatment plant in the neighboring town of Greensboro that will also process Goldsboro sewage. Homes began hooking up to the sewer line earlier this year.
Litz said she’s not sorry for bringing the case, and praised her lawyers, who represented her for free.
“I think people need to know what went on and how our state handles these things,” she said. “If a consent order is issued from the state, I think it has to be enforced. It shouldn’t be at MDE’s discretion.”
Despite the verdict, Litz may still get another day in court. On April 19, her lawyers filed a motion for a new trial, contending that Circuit Court Judge Sidney S. Campen, Jr., erred in rulings that limited their ability to gather and present evidence to support her claim. A ruling on that motion is pending.