Back in April, we posted the Florida District Court of Appeal's opinion in a case where landowners sued the state fish and wildlife commission because "deer dog hunters and their dogs" who had hunting licenses trespassed on the plaintiffs' lands. The court, over a single judge dissent, affirmed the dismissal of the takings claims, because the physical invasions by the hunters and their dogs were not caused by the commission.
The property owners sought rehearing, and although the majority revisited and revised the opinion, it didn't change the outcome, which stayed the same. In Florida Fish and Wildlife Conservation Comm'n v. Daws, No. 1D16-4839 (Aug. 16, 2018), the court amended the majority opinion to clarify its takings analysis.
We won't go into a page-by-page redline (for a direct comparison of the two opinions, go here), but the opinion's biggest change was a section in which the majority addressed directly the dissent's argument that the issues were property raised on appeal. Go to pages 9 and 10 of the amended opinion if you want the details. But the majority also tweaked the portion of the opinion analyzing the takings claim to add this:
A taking may also occur when the government has denied “a landowner all use of his property” on a temporary basis. First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 318 (1987).
....
In order to constitute a taking, the government must deprive the property owner of substantially all use of his property. Tampa-Hillsborough Cty. Expressway Auth. v. A.G.W.S. Corp., 640 So. 2d 54, 58 (Fla. 1994) (“A taking occurs where regulation denies substantially all economically beneficial or productive use of land.”)
Slip op. at 10--11. Sounds good, and no objection here.
The majority also deleted the following:
Here, Appellees do not, and cannot, allege that the FWC has forced them to submit to a permanent physical occupation of their land. 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, 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. See Morton v. Gardner, 513 So. 2d 725, 729 (Fla. 3rd DCA 1987) (“In Florida, an action for inverse condemnation does not arise from a temporary ‘taking.’”).
April slip op. at 8.
Interesting, because as we saw it, this was the major rationale behind the majority's "no taking" conclusion, and one that stuck out as inviting further review by a higher court. The idea that some invasions are so minor or infrequent so as to "not rise to the level of a permanent, physical occupation" is one that remains a notoriously grey area. As we know, there's no de minimis exception to takings liability, and the fact that an invasion wasn't intended to be permanent also doesn't get an inverse defendant off the hook. Thus, what it looks like happened is that the property owners' motion for rehearing caught the majority's attention and resonated, and as a consequence, the majority armored up its opinion against a possible higher court challenge. One of the possible downsides of seeking rehearing is that the court does just that.
Did it do so successfully? We'll see.
Florida Fish and Wildlife Conservation Comm'n v. Daws, No. 1D16-4839 (Fla. Dist. Ct. App. Aug. 16, 2018)
