Growing up out West, discussed a bit in my post about The Magnificent Seven and the Freedom to Choose, I remember going with my granddad and my dad when they hunted. Like many families, we had a special nickname for granddad; we grandkids knew him as “Pompa,” from a name my oldest cousin, as a toddler, gave him.
When I was a kid, the first day of hunting season was a state or school holiday, if I remember right. I was too little to carry a rifle, so I got up early, put on orange, froze my fingers and toes off, and had to be quiet and sit still. Pompa would get his limit every year, which meant lots of venison and home-made jerky. I remember the year my dad got a cow elk—lots of elk steak and elk burger for months!
This summer, the First District Court of Appeal decided a case involving, as the title suggests, dogs, hunting, and inverse condemnation. Add in a pickup truck and you’ve got a country and western song.
In Florida Fish and Wildlife Conservation Commission v. Daws, et al., the plaintiffs owned private land completely surrounded by the Blackwater Wildlife Management Area (“WMA”) located in Okaloosa County and Santa Rosa County. Hunting on Florida public lands, including in the WMA, is regulated by the Florida Fish and Wildlife Conservation Commission (“FWC”). The plaintiffs complained that deer hunters and their hunting dogs trespassed onto the plaintiffs’ private property lying in the WMA. While the FWC took steps to prevent trespassing—shortening the length of the deer dog hunting season, limiting the area in which deer dog hunting was permitted inside the WMA, and installing fencing to between the public lands and the plaintiffs’ private property—the trespassing continued. Plaintiffs filed sued against the FWC based on a theory of inverse condemnation and a theory of nuisance.
The trial court entered an injunction in favor of the plaintiffs and denied FWC’s motion for summary judgment. On appeal, and ultimately on motion for re-hearing, the First DCA held the legal test for inverse condemnation obligated the plaintiffs to allege “FWC required them to submit to a temporary or permanent physical occupation of their land or…enacted a regulation or imposed a condition that completely deprived them of all economically beneficial use of their land.” The First DCA held that the “alleged physical occupation—i.e., sporadic trespasses by deer dog hunters and their dogs during the forty-four days of the year when deer dog hunting is authorized—is transitory.”
The First DCA focused on the plaintiffs’ ability to pursue “the third-party wrongdoers” (in other words, the hunters), saying the FWC had not deprived plaintiffs of the right to pursue criminal or civil remedies against the trespassers. In deciding that sovereign immunity also barred the nuisance claim, the First DCA noted the FWC owes no common law duty to prevent the misconduct of third persons.
What should you, a property owner, take away from this decision?
First, don’t get surrounded by public lands. Second, and more seriously, recognize that it will be difficult to make a claim successfully against the government for inverse condemnation where the underlying facts involve a third party. As mentioned in the dissent, in contrast, temporary takings in the nature of physical deprivation, such as “government-induced flood invasions” may amount to a taking.
Takings cases can be complicated. Let us know if we can help.