A divided appeals court Tuesday overturned a ruling that would have forced state game officials to rein in “deer dog” hunting that some Northwest Florida residents argue has infringed on their property and created a nuisance.
The ruling by a panel of the 1st District Court of Appeal came after a long-running legal battle involving the Florida Fish and Wildlife Conservation Commission and people who own property adjoining the state Blackwater Wildlife Management Area.
“Deer dog” hunting, as the name implies, involves hunters using dogs to flush out deer and has long been allowed in the Blackwater Wildlife Management Area. But the legal battle stems from hunters and dogs trespassing on adjoining private land, with property owners alleging they have been threatened by hunters and have been subject to other problems such as graffiti and arson.
Property owners filed a lawsuit in 2016, seeking to prevent deer-dog hunting in the wildlife-management area. The lawsuit included what is known as a “takings claim” — essentially arguing that the deer-dog problems were so serious that they were depriving the owners from enjoying their property, according to Tuesday’s ruling. Also, the lawsuit sought an injunction to require the Fish and Wildlife Conservation Commission to “abate” the nuisance on the private property.
Leon County Circuit Judge Karen Gievers denied a request by the commission for summary judgment that would have scuttled the case and issued an injunction requiring the commission to abate the problem. The commission took the dispute to the 1st District Court of Appeal, where a majority of the three-judge panel Tuesday rejected the injunction and sent the case back for entry of summary judgment in favor of the commission.
In part, the majority opinion said a successful takings claim would require property owners to show that the commission required them to submit to a permanent occupation of their land or that a commission regulation imposed a condition that “deprived them of all economically beneficial use of their land.”
“Here, appellees (the property owners) do not, and cannot, allege that the FWC (the commission) has forced them to submit to a permanent physical occupation of their land,” said the majority opinion, written by appeals-court Judge Lori Rowe and joined by Chief Judge Brad Thomas. “The alleged physical occupation — i.e., sporadic trespasses by deer dog hunters and their dogs during the 44 days of the year when deer dog hunting is authorized — is transitory, not permanent. And the handful of trespasses that have occurred on each of appellees’ individual properties do not rise to the level of a permanent, physical occupation of appellees’ property.”
The opinion added: “Neither do the appellees allege that the FWC has deprived them of all economically beneficial use of their property. Rather, appellees allege that they were deprived of their right to exclude people from their property during deer dog hunting season. But this allegation ignores the fact that appellees are free to exclude the deer dog hunters and dogs from their property by pursuing criminal or civil remedies against the trespassing hunters and owners of the deer dogs. The FWC has not deprived appellees of any right to pursue the third-party wrongdoers.”
Rowe also wrote that sovereign immunity — a legal concept that helps shield government agencies from lawsuits — blocked nuisance-related claims in the lawsuit.
But Judge Joseph Lewis Jr. wrote a 13-page dissent arguing that Gievers’ ruling should be upheld.
In part, Lewis wrote that “appellees should be permitted to pursue their claims that appellant’s (the commission’s) alleged failure to regulate or exercise control over deer dog hunters and their dogs has created a nuisance. While, as stated, appellant’s decision to allow deer dog hunting in the Blackwater WMA is a discretionary or planning-level decision, appellant offers no legitimate reason why it should not then be responsible for ensuring that hunters and their dogs are not creating a nuisance for adjacent property owners.”
The wildlife-management area is in Okaloosa and Santa Rosa counties. The ruling said private property is interspersed in the wildlife-management area, which it described as a “patchwork-like composition” that stems from how the state buys land for conservation and recreational purposes