Today’s case is one of what we call “regionally classic” cases that we come across from time to time. You know, cases that just fit into all your preconceived notions about a place. Beach cases from Hawaii. Gator law opinions from Southern states. Vermont = snow law, California, land and wineries. Here’s another one of those from our Southern courts — Florida’s District Court of Appeals, to be precise — that we think fits the bill.
In Florida Fish and Wildlife Conservation Comm’n v. Daws, No. 1D16-4839 (Apr. 10, 2018), the First District Court of Appeals held that owners whose properties were physically invaded by “deer dog hunters and their dogs during the forty-four days of the year when deer dog hunting is authorized” by the Commission, have not suffered a taking because these invasions were only temporary, and “do not rise to the level of permanent, physical occupation of [their] property.” Slip op. at 8.
Now before you get all up in arms about the differences (if any) between temporary and permanent physical invasions (see this case, for example), the court didn’t base its conclusion only on that distinction, but concluded that it wasn’t a taking was because the deer dog hunters (and their dogs) were not authorized by the Commission to enter private property while hunting. Indeed, were trespassing. Thus, the owners
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.
Slip op. at 8-9. In short, any invasions (temporary or otherwise) were not caused by the Commission, even though it had issued the deer dog hunters licenses to deer dog hunt, and after complaints by many of the landowners, the Commission had taken steps to try and stop the trespassing:
The FWC limited the length of the deer dog hunting season to forty-four days per year, restricted the geographic area in which deer dog hunting was authorized within the Blackwater WMA, and installed fencing to separate the public lands from Appellees’ private property. The FWC also adopted a responsible hunter rule, which authorized game wardens to respond to calls from private property owners when trespassing deer dog hunters or their dogs enter private property. And most recently, in 2016, the FWC required as a condition of issuing licenses and permits for deer dog hunting, that hunters equip their dogs with corrective collars that allow the hunters to control the movements of their dogs by shocking remotely any dog that trespasses onto private property.
Slip op. at 3. (We’re guessing the dogs did not appreciate that last condition.)
Apparently none of those measures worked (read the dissenting opinion for more details of the burdens these invasions put on the property owners), and the trespasses continued.
Bad dog(s) for sure, but not takings.
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*Our spelling comes to us by way of our very first admin assistant back when we were just starting off in the law business. Cathy, originally hailing from Texas (we shall omit her last name in the interest of privacy) called her spouse “The Dawg” for reasons that we need not recount here. When we questioned her about it, she insisted it be spelled that way. “No, not ‘dog,’ but D – A – W – G,” she repeatedly corrected us. “It’s a Southern thing,” she said. We don’t know if that’s true (or even appropriate, these days). But her spelling stuck with us all these years. (Cathy, if you are reading this, we haven’t forgotten.)