Florida Fish and Wildlife Conservation Comm. v. William Daws, Jr. and Ouida Gershon

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-4839

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FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION,

Appellant,

v.

WILLIAM DAWS, JR., OUIDA

GERSHON, BILL I. HINES, REGINA

HINES, HERSHAL O. HOLT,

KAREN A. HOLT, ALAN E.

JOINER, MONICA L. JOINER,

MARY B. KING, SARA KING,

BETTY TOLBERT, RICKY W.

TOLBERT, and JERRY

VARNADORE,

Appellees.

_____________________________

On appeal from the Circuit Court for Leon County.

Karen Gievers, Judge.

April 10, 2018

ROWE, J.

The Florida Fish and Wildlife Conservation Commission

(FWC) appeals an order granting a temporary injunction requiring

the FWC to stop deer hunters and their dogs from trespassing onto

Appellees’ private property. The FWC also appeals the denial of

its motion for summary judgment. We reverse the order in its

entirety, dissolve the injunction, and remand for entry of final

summary judgment in favor of the FWC.

I. Background

The Blackwater Wildlife Management Area (Blackwater

WMA) is located in the Blackwater State Forest and is composed

of more than 200,000 acres of public land in Okaloosa and Santa

Rosa counties. Interspersed within the Blackwater WMA are a

number of private parcels of land, or inholdings, that abut or are

completely surrounded by public lands. 1 Over the years, the State

acquired more and more land within the Blackwater State Forest,

resulting in an increasing number of inholdings – including

properties owned or leased by Appellees. See § 375.041, Fla. Stat.

The FWC regulates hunting on public lands in Florida,

including the Blackwater WMA. The FWC determines the types

of hunting that will be permitted, authorizes specific areas for

hunting, schedules hunting seasons for different types of game,

and issues hunting licenses and permits. The hunting at issue in

this case, deer dog hunting, has been authorized in the Blackwater

WMA since at least the 1950’s. During the deer dog hunting

season, hunters use dogs trained to flush deer out of thickets in the

forest or dogs trained to follow deer trails through the forest.

While in pursuit of deer, the dogs and hunters occasionally leave

the public lands where the FWC has authorized hunting, and

trespass onto private property.

On multiple occasions, deer hunters and their dogs trespassed

onto Appellees’ private property; Appellees repeatedly complained

to the FWC about these trespasses. Appellees also reported a

number of criminal acts allegedly committed by the hunters

1 The patchwork-like composition of the Blackwater WMA is

the result of Florida’s land acquisition program whereby the State

purchases private property for conservation and recreational

purposes. Florida Fish & Wildlife Conservation Commission,

http://myfwc.com/media/4204289/BLACKWATER.pdf (last visited

Mar. 5, 2018).

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including trespass, threats to destroy Appellees’ property, threats

to Appellees’ personal safety, several arson fires, and graffiti

painted on Appellees’ property.

In response to Appellees’ complaints, the FWC took several

actions to curtail the trespasses onto Appellees’ property. 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.

Despite these efforts by the FWC, trespasses continued to occur.

Appellees argue that the FWC is responsible for the trespasses, as

it licenses and permits deer dog hunting in the Blackwater WMA

and regulates hunting by rule, and they assert that the FWC must

prevent further trespasses by hunters and their dogs onto

Appellees’ private property.

II. Procedural History

In 2016, Appellees filed a two-count complaint seeking to

prevent the FWC from issuing deer dog hunting licenses and

permits in the Blackwater WMA. They alleged that the FWC’s

decision to allow deer dog hunting on state-owned land directly led

to the trespasses on their privately-owned land by hunters and

their dogs. Appellees contended that these trespasses were so

serious that they rose to the level of an inverse condemnation

because Appellees were deprived of their right to exclude people

from their private property (“takings claim”). Appellees further

contended that the trespasses constituted a nuisance because the

trespasses deprived Appellees of their right to the quiet enjoyment

of their property. To support this contention, Appellees

complained that the trespassing dogs were disruptive and

potentially dangerous to livestock; it was unsafe for Appellees to

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go into their yards during deer dog season; fences did not stop the

trespasses; and the trespasses prevented Appellees from hunting

on their own property (“nuisance claims”). Appellees also sought

an injunction requiring the FWC to abate the nuisance of the

trespasses by hunters and their dogs onto their private property.

The FWC moved for summary judgment on the takings claims

and nuisance claims. The FWC argued that because Appellees

failed to plead the required elements of a takings claim, no

constitutional claims had been stated against the FWC and its

sovereign immunity had not been waived. The FWC argued that

the doctrines of separation of powers and sovereign immunity

barred the nuisance claims because the FWC owed no duty to

Appellees to prevent trespasses on their property and because the

FWC’s decision to authorize deer dog hunting in the Blackwater

WMA was a discretionary decision, not subject to challenge in the

courts. Finally, with regard to Appellees’ request for an injunction,

the FWC contended that the injunction was overbroad and

impossible to comply with.

The trial court conducted an evidentiary hearing on Appellees’

request for an injunction and the FWC’s motion for summary

judgment. The trial court denied the summary judgment motion,

rejecting the FWC’s sovereign immunity arguments as a matter of

law. With regard to Appellees’ request for an injunction, Appellees

conceded that the court could not order the FWC to stop issuing

deer dog hunting licenses and permits or to redraw the map of the

areas where deer dog hunting was authorized. However, Appellees

argued that the court could enter an injunction ordering the FWC

to stop further trespasses onto Appellees’ property by the hunters

and their dogs and that the FWC could take whatever steps it

deemed necessary to achieve that goal. The court entered the

injunction, ordering the FWC “to abate the nuisance of the deer

hunting dogs from trespassing onto the property of the plaintiffs,

and of the deer dogs and their hunters from interfering with the

plaintiffs’ right to the quiet enjoyment of their private property.”

The FWC appealed, and the trial court’s order was

automatically stayed, preventing the injunction from going into

effect. See Fla. R. App. P. 9.310(b)(2). Appellees moved to vacate

the automatic stay of the injunction in an effort to prevent

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trespasses by hunters and their dogs onto Appellees’ property

during the 2017-2018 hunting season. During the hearing on the

motion to vacate the automatic stay, Appellees testified to

trespasses on their property during the 2016 hunting season –

testimony identical in character to that offered during the hearing

on the original injunction. The trial court entered an order

vacating the automatic stay, and while acknowledging that “it

would be overreaching for the Court to direct the FWC not to

physically release the licenses and permits for the upcoming

hunting season,” the court nonetheless concluded that the “FWC

is on notice its actions in issuing licenses and permits constitute a

nuisance and contribute to the interference with the plaintiffs’

right to the quiet enjoyment of their private property, and there is

no other way to protect those constitutional rights at this juncture

than to vacate the stay.” This Court reinstated the automatic stay

by order issued October 6, 2017.

III. Analysis

We agree with the FWC that the order on appeal should be

reversed for three reasons. First, the FWC was entitled to

summary judgment on Appellees’ takings claims on sovereign

immunity grounds because Appellees did not plead the required

elements to allege valid constitutional claims. Second, the FWC

was entitled to summary judgment on the nuisance claims on

sovereign immunity grounds because the FWC owed no duty to

Appellees and because the authorization of deer dog hunting in the

Blackwater WMA is a discretionary function of the FWC. Third,

the trial court erred in entering the injunction because the

injunction violated the separation of powers and was overly broad.

A. Sovereign Immunity

Sovereign immunity “protects the state from burdensome

interference from the performance of its governmental functions

and preserves its control over state funds, property and

instrumentalities.” Davis v. State, Dep't of Corr., 460 So. 2d 452,

461 (Fla. 1st DCA 1984) (citation omitted). “In Florida, sovereign

immunity is the rule rather than the exception.” Pan-Am Tobacco

Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). There are two

general exceptions to this doctrine. First, sovereign immunity will

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not bar a claim against the State based on violations of the state

or federal constitution. Dep’t of Revenue v. Kuhnlein, 646 So. 2d

717, 721 (Fla. 1994) (“Sovereign immunity does not exempt the

State from a challenge based on violation of the federal or state

constitutions, because any other rule self-evidently would make

constitutional law subservient to the State's will.”). Second, the

State is not immune from suit where it has waived its immunity

pursuant to law. Art. X, § 3, Fla. Const. (allowing “[p]rovision[s]

[to] be made by general law for bringing suit against the state as

to all liabilities now existing or hereafter originating”).

Pursuant to its enactment of section 768.28, Florida Statutes,

the Legislature has explicitly waived the State’s immunity from

suit for liability in tort for damages. But this statutory waiver is

strictly limited to circumstances where the State owes the plaintiff

an underlying common law or statutory duty of care and where the

challenged government actions are not discretionary and inherent

in the act of governing. Jordan v. Nienhuis, 203 So. 3d 974, 976

(Fla. 5th DCA 2016). With this framework in mind, we consider

whether the doctrine of sovereign immunity precludes Appellees’

constitutional takings claims and their tort-based nuisance claims.

1. Constitutional Claims – Takings

Appellees claim that their property was unlawfully taken by

the FWC in violation of article X, section 6 of the Florida

Constitution when the FWC issued deer dog hunting licenses and

failed to prevent trespassing hunters and dogs from entering

Appellees’ property. The FWC argues that sovereign immunity

bars Appellees’ takings claims because the allegations in the

complaint were legally insufficient.

When the trial court rejected the FWC’s sovereign immunity

arguments and denied summary judgment as a matter of law, it

never addressed the legal sufficiency of Appellees’ takings claims.

Instead, the court summarily rejected the FWC’s sovereign

immunity arguments, concluding that the FWC “is not immune

from constitutionally based takings claims.” The trial court

reached this conclusion in reliance on Crowley Museum & Nature

Center, Inc. v. Southwest Florida Water Management District, 993

So. 2d 605 (Fla. 2d DCA 2008). The Second District in that case

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restated the unremarkable proposition that the doctrine of

sovereign immunity does not bar a constitutional claim against the

government – a point the government in that case conceded on

appeal. Id. at 608. Instead, the government argued that the

plaintiff’s complaint did not set forth a facially sufficient inverse

condemnation claim. Id. But the Second District declined to

address the government’s argument because the facial sufficiency

of the inverse condemnation claim was not raised in the trial court.

Id. Thus, the Second District in Crowley did not reach the

question posed to the trial court in this case: whether sovereign

immunity bars a suit asserting an inverse condemnation claim

against the State when the plaintiff fails to set forth a legally

sufficient constitutional claim.

The dissent argues that this Court may not consider the legal

sufficiency of Appellees’ takings claims because the FWC framed

the issue on appeal as a challenge to the court’s sovereign

immunity ruling, without reference to the legal sufficiency of the

takings claims. We disagree with the dissent for two reasons.

First, implicit in the trial court’s sovereign immunity ruling is the

court’s determination that the constitutional claims were legally

sufficient. See Cutler v. City of Jacksonville Beach, 489 So. 2d 126,

128 (Fla. 1st DCA 1986) (observing that a claim must be legally

sufficient to circumvent the application of the sovereign immunity

doctrine). Only if Appellees pleaded the required elements of their

takings claims could the trial court have ruled as a matter of law

that sovereign immunity did not bar the claims against the FWC.

Id. Second, and more importantly, the trial court’s determination

that sovereign immunity did not bar Appellees’ takings claims

against the FWC resolved a pure question of law. Thus, our review

is de novo. Plancher v. UCF Athletics Ass'n, 175 So. 3d 724, 725 n.3

(Fla. 2015). And this Court is not bound by the trial court’s view

or its legal conclusions. Leamer v. White, 156 So. 2d 567, 571 (Fla.

1st DCA 2015).

To state a legally sufficient claim for takings, Appellees were

required to allege that (1) the FWC required them to submit to a

permanent physical occupation of their land or (2) the FWC

enacted a regulation or imposed a condition that completely

deprived them of all economically beneficial use of their land. See

Teitelbaum v. S. Fla. Water Mgmt. Dist., 176 So. 3d 998, 1003 (Fla.

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3d DCA 2015); Certain Interested Underwriters At Lloyd's London

Subscribing to Certificate No. TPCLDP217477 v. City of St.

Petersburg, 864 So. 2d 1145, 1148 (Fla. 2d DCA 2003). Here,

Appellees failed to allege either form of takings in their complaint.

The first category of takings, a permanent physical occupation

of private property, occurs when “[t]he government physically

occupies property [and] permanently deprives the owner of his

‘bundle’ of private property rights, including the right to possess

and dispose, as well as the right to prevent the government from

using the occupied area.” Fla. Game & Fresh Water Fish Comm’n

v. Flotilla, 636 So. 2d 761, 764 (Fla. 2d DCA 1994). In Flotilla, the

Commission established two preservation zones, consisting of

forty-eight acres, to protect bald eagles’ nests in a 173-acre plot of

land that was being developed as a residential subdivision. Id. at

763. The Second District rejected the plaintiffs’ claim that the

establishment of the preservation zones constituted a taking of

their property because the plaintiffs were denied the opportunity

to exploit a property interest they previously believed was

available for development. The court determined the allegations

were insufficient to establish a taking because the plaintiffs

retained the desired use of the majority of their land. Id. at 765.

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.’”).

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

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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. Further,

Appellees do not allege that they were deprived of all economically

beneficial use of their property, particularly when the deer dog

hunting season is limited to forty-four days and the trespasses

were fleeting and sporadic. Because Appellees failed to plead the

required elements to state legally sufficient takings claims against

the FWC, the trial court should have granted the FWC’s motion

for summary judgment on sovereign immunity grounds.

2. Tort Claims – Nuisance

Turning to Appellees’ nuisance claims, the FWC argued below

and on appeal that sovereign immunity barred the claims. The

trial court, again relying on Crowley, rejected the FWC’s sovereign

immunity argument. And, again, the trial court’s reliance on

Crowley was misplaced. The Second District in that case did not

consider whether sovereign immunity barred the plaintiff’s

nuisance claims against the government, because the plaintiff did

not challenge the trial court’s dismissal of the nuisance claims.

993 So. 2d at 607-08. Thus, Crowley offers no insight in

determining whether sovereign immunity bars a claim of nuisance

against the state and its subdivisions.

Here, the FWC’s sovereign immunity defense to Appellees’

nuisance claims emanates from section 768.28(1), Florida

Statutes, and the doctrine of separation of powers. Section

768.28(1) provides a broad waiver of sovereign immunity to the

state and its subdivisions for tort liability “under circumstances in

which the state or agency or subdivision, if a private person, would

be liable to the claimant, in accordance with the general laws of

the state.” But even where the State owes a duty of care to a

claimant, “constitutional separation-of-powers considerations

require that certain discretionary or planning level governmental

functions remain immune from tort liability.” Mosby v. Harrell,

909 So. 2d 323, 326 (Fla. 1st DCA 2005). Thus, our analysis of

whether sovereign immunity bars Appellees’ nuisance claims

against the FWC proceeds in two steps. First, we must determine

whether there is an underlying common law or statutory duty of

care to Appellees with respect to the FWC’s actions to authorize

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deer dog hunting in the Blackwater WMA. Trianon Park Condo.

Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985).

Second, we must consider whether the FWC’s actions are

discretionary or operational in nature. Id.

With regard to the first step, we conclude the FWC owes no

duty to Appellees to stop third parties acting in violation of the

FWC’s rules and state law from trespassing onto Appellees’ private

property even though the FWC’s rules authorize deer dog hunting

on public lands adjacent to private property owned by Appellees.

The FWC’s rules require deer dog hunters to obtain licenses and

permits, limit the season during which deer dog hunting occurs,

define the public lands on which deer dog hunting may occur, and

require the use of remote tracking and behavior correction devices

on each dog. On those occasions where hunters or their dogs

strayed from the public lands where they were authorized to hunt

and trespassed onto Appellees’ private property, they did so in

violation of the FWC’s rules and regulations, as well as state laws

prohibiting trespass, criminal mischief, and the like. Because

“there is no common law duty to prevent the misconduct of third

persons,” the FWC is not liable to Appellees for the failure of the

hunters to abide by the FWC’s rules and state law prohibiting

trespass onto private property. Id.

Nor did the FWC owe a statutory or common-law duty to

Appellees to monitor compliance by hunters with the FWC’s deer

dog hunting rules and regulations, particularly when the hunters

had strayed beyond the public lands on which the FWC had

authorized hunting. See Brown v. Dep’t of Health & Rehab. Servs.,

690 So. 2d 641 (Fla. 1st DCA 1997) (holding that HRS had no

common-law duty to the parents of children who were sexually

abused at a day-care facility to monitor compliance with the

permit’s condition that a known sexual abuser would not visit the

day-care facility). We also note that some of the nuisances alleged

in the complaint include criminal acts such as threats to destroy

Appellees’ property, threats to Appellees’ safety, the setting of

several arson fires, and the painting of graffiti on Appellees’

property. It is absurd to suggest that the FWC is responsible for

the criminal acts of third parties or that the deer dog hunting

regulations invited such actions by the hunters. Because the FWC

owed no duty to Appellees to prevent trespasses onto their

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property by the hunters or their dogs, the FWC was entitled to

sovereign immunity.

But even if the FWC did owe a duty of care to Appellees to

prevent the trespasses by third parties onto their private property,

sovereign immunity would bar Appellees’ nuisance claims because

the FWC’s actions to authorize hunting on public lands are purely

discretionary functions of the FWC. Mosby, 909 So. 2d at 327. A

discretionary function is one that involves “an exercise of executive

or legislative power such that a court’s intervention by way of tort

law would inappropriately entangle the court in fundamental

questions of policy and planning.” Id. at 328. By contrast, an

operational function is one that is not central or necessary to policy

or planning, but instead relates to how those polices or plans will

be implemented. Id. Certain discretionary functions are inherent

in the act of governing and are immune from suit. City of Freeport

v. Beach Cmty. Bank, 108 So. 3d 684, 687 (Fla. 1st DCA 2013);

Trianon Park, 468 So. 2d at 918. These types of discretionary

decisions may not be second guessed by the judiciary. City of Ocala

v. Graham, 864 So. 2d 473, 476 (Fla. 5th DCA 2004) (holding that

certain discretionary functions are inherent in the act of governing

and are immune from suit).

Pursuant to its constitutional authority, a core function of the

FWC is to determine where, when, and what types of hunting are

permitted on public land, including deer dog hunting in the

Blackwater WMA. “[H]unting, fishing, and the taking of game are

a valued part of the cultural heritage of Florida” and “the citizens

of Florida have a right to hunt, fish, and take game, subject to the

regulations and restrictions prescribed by general law and by s. 9,

Art. IV of the State Constitution.” § 379.104, Fla. Stat. To secure

these rights, Florida’s citizens established the FWC in their

Constitution, vesting the FWC with exclusive legislative authority

to regulate hunting. Art. IV, § 9, Fla. Const. The rules of the FWC

have the force of a legislative act, and the Legislature is prohibited

from adopting statutes that conflict with those rules. Wakulla

Commercial Fisherman Ass’n, Inc. v. Fla. Fish & Wildlife

Conservation Comm’n, 951 So. 2d 8, 9 (Fla. 1st DCA 2007) (quoting

Airboat Ass’n of Fla., Inc. v. Fla. Game & Fresh Water Fish

Comm’n, 498 So. 2d 629, 631 (Fla. 3d DCA 1986)). The supreme

court has explicitly stated that the enactment of, or failure to

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enact, laws or regulations, or the issuance of, or refusal to issue,

licenses, permits, variances, or directives are actions inherent in

the act of governing. Trianon Park, 468 So. 2d at 919. Because

the FWC’s regulation of deer dog hunting involves actions inherent

in the act of governing, those actions constitute discretionary acts

and the doctrine of sovereign immunity bars Appellees’ nuisance

claims against the FWC. Thus, the trial court erred when it denied

the FWC’s motion for summary judgment.

B. Injunction

Finally, the trial court’s injunction violates the separation of

powers doctrine, and the injunction is overly broad. Florida has a

vigorous separation of powers doctrine. Citizens for Strong Sch.,

Inc. v. Fla. State Bd. of Educ., 232 So. 3d 1163, 1170 (Fla. 1st DCA

2017) (acknowledging that the Florida Constitution requires a

strict separation of powers between the branches of government).

The judiciary violates the doctrine of separation of powers if it

directs an administrative agency to perform its duties in a

particular manner. Fla. Dep’t of Children & Families v. J.B., 154

So. 3d 479, 481 (Fla. 3d DCA 2015) (holding that the judicial

branch is prohibited from interfering with the discretionary

functions of an executive agency). Moreover, a court may not direct

an agency to perform its duties in a manner that is not feasible.

Id. Here, the trial court’s injunction effectively prohibits the FWC

from exercising its authority to issue licenses and permits for deer

dog hunting and requires the FWC to perform its duties in a way

that is not feasible.

The injunction directs the FWC to “abate the nuisance of the

deer hunting dogs from trespassing onto the property of the

plaintiffs, and of the deer dogs and their hunters from interfering

with the plaintiffs’ right to the quiet enjoyment of their private

property.” The language of the injunction reflects an intent to

preclude the FWC from issuing any deer dog hunting permits. And

any doubt that this was the intended import of the injunction was

removed when the trial court issued its order dissolving this

Court’s automatic stay of the 2016 order. Although the trial court

acknowledged that “it would be inappropriate and overreaching for

the Court to direct the FWC not to physically release the licenses

and permits for the upcoming hunting season,” in the very next

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paragraph of its order, the trial court determined that the issuance

of licenses and permits for deer dog hunting “constitute[s] a

nuisance and contribute[s] to the interference with the plaintiffs’

right to the quiet enjoyment of their private property, and there is

no other way to protect those constitutional rights at this juncture

than to vacate the stay.” Because the injunction requires the FWC

to abate the nuisance, and the order vacating the stay clarifies that

the very issuance of permits and licenses for deer dog hunting

constitutes a nuisance, it is crystal clear that the injunction

prohibits the FWC from issuing permits and licenses for deer dog

hunting in the Blackwater WMA. 2 Thus, the injunction leaves the

FWC with no discretion or flexibility whatsoever to exercise its

constitutional authority to regulate hunting and constitutes a

judicial encroachment into the legislative authority of the FWC.

The injunction is also overly broad. An injunction may not be

so broad as to leave parties against whom an injunction is entered

in doubt as to what they are permitted to do. See Angelino v. Santa

Barbara Enters., LLC, 2 So. 3d 1100, 1104 (Fla. 3d DCA 2009).

Here, the injunction is impossible for the FWC to comply with

because it holds the FWC accountable for the actions of third

parties over which the FWC has no control. Even if the FWC

rescinded its rules and regulations authorizing deer dog hunting

in the Blackwater WMA, and allowed no deer dog hunting

whatsoever, the injunction as worded requires the FWC to abate

the nuisance caused by trespasses by unlicensed deer dog hunters

and their dogs onto Appellees’ property. And, were the injunction

permitted to take effect, the FWC and its Commissioners could be

subject to contempt proceedings resulting in fines or incarceration.

See Dep’t of Children & Families v. R.H., 819 So. 2d 858, 861-62

(Fla. 5th DCA 2002).

IV. Conclusion

2 This conclusion is supported by the following statement

made by the trial court during a hearing addressing Appellees’

motion to vacate the automatic stay: “I don’t have an evidentiary

basis as to how many licenses for the upcoming season have been

issued. I’m quite frankly very disappointed to learn that any have

been.”

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The FWC was entitled to summary judgment because

Appellees’ takings claims and nuisance claims were barred by the

doctrine of sovereign immunity. The injunction entered by the

trial court was overbroad and violated the separation of powers.

Accordingly, we REVERSE the order denying the FWC’s motion for

summary judgment, DISSOLVE the injunction, and REMAND for

entry of summary judgment in favor of the FWC.

B.L. THOMAS, C.J., concurs; LEWIS, J., dissents with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

LEWIS, J., dissenting.

I respectfully dissent and would affirm the trial court in all

respects. In doing so, I am mindful of the conflicting interests that

exist in this case. However, for the following reasons, my view of

the law when applied to the facts leads me to conclude that

sovereign immunity does not apply to Appellees’ takings and

nuisance claims against Appellant and that the temporary

injunction was properly entered.

FACTUAL AND PROCEDURAL HISTORY

In their Amended Complaint, each Appellee alleged both a

takings claim and a nuisance claim against Appellant. Appellees

also moved for the entry of a temporary injunction, requesting that

the trial court enjoin Appellant from issuing any permits for deer

dog hunting in a certain portion of the Blackwater WMA and

enjoin any deer dog hunting from occurring in that same portion

during the pendency of the suit. Appellant moved for summary

judgment, arguing in part, “The plaintiffs have filed a nuisance

count . . . and a takings count . . . . The Plaintiffs[’] claims are

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barred by the doctrine of separation of powers, sovereign immunity

and prior decisions of this court.”

During the hearing on the motions for injunctive relief and

summary judgment, several Appellees testified. One Appellee

described deer dog hunting as being “extremely disruptive” and

“potentially extremely dangerous” to his livestock, and he testified

that he has to put his own dogs in kennels when he hears the

hunting dogs approach his property, and it can take anywhere

from forty-five minutes to an “hour plus” for Appellant’s “guys” to

arrive if he catches the hunting dogs. The hunters are not pleased

if the dogs are in Appellee’s possession, and they try to intimidate

“you into releasing their dog back to them.” There had been

instances on Appellee’s property during which his horses, because

of the frenzy that ensues when the hunting dogs arrive, ran into

fences and gates, tripped on tree stumps, and slipped on their side.

When asked about harassment, Appellee testified that the Santa

Rosa County Building Inspector threatened not to pass his

building inspections, and a dog hunter threatened to burn his

house down. His mailbox had been shot, and graffiti had been

painted on the road in front of his house. Four arson fires had been

set around his property between March 2014 and December 2014.

He detailed his efforts to remedy the issue, including attending

meetings, proposing rule changes, and meeting with one of

Appellant’s directors in October 2013.

Other Appellees testified about threats made to them in the

past by various hunters, about the danger they felt in going into

their yards during deer dog hunting season, about how the fences

they constructed did not stop the dogs from trespassing and

causing damage upon their property, about dog fights that

occurred between their own dogs and the hunting dogs, and about

their repeated efforts to have Appellant remedy the situation. One

Appellee testified that deer dog hunting interfered with the

enjoyment of his property because he was not able to still hunt

when “about 15 dogs will come running through [his] food plot.”

Another Appellee testified that the hunters had blocked “our roads

and you have to wait for them to move,” they threw all types of

trash on her driveway, and although she had horses on her

property at one time, she now keeps them at a friend’s home

because of how spooked they would become from the shooting and

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lights shining on them. Although a “correction device

requirement” for the hunting dogs took effect on July 1, 2016,

evidence presented below in support of Appellees’ motion to vacate

the automatic stay showed that dog trespasses continued on

Appellees’ property during the 2016-2017 hunting season. One of

Appellant’s employees testified that the potential for trespasses

still existed, that the rule did not contain any training certification

requirement for hunters, that hunters might not train their dogs

properly using the collars, and that the rule did not mandate that

collars automatically trigger themselves if the dogs crossed over

certain GPS positions.

In the Order on Evidentiary Hearing and Hearing on

Summary Judgment Motion, the trial court found that the credible

testimony clearly and convincingly established that deer dog

hunting days invade and interfere with Appellees’ quiet enjoyment

of their property, that the responsible hunter rule is not

particularly helpful to private property owners who are no longer

young and able-bodied, as catching a deer-chasing dog is not an

easy task, and that many of the private property owners are

effectively denied the use and enjoyment of their property during

the 12.1% of the year when Appellant allows deer dog hunting in

the Blackwater WMA. After detailing the testimony of Appellees,

the trial court found that the case “should not be viewed as

weighing competing interests of the private property owners

against the desires of the FWC-authorized public hunters” and

that the “rights of the private property owners to the enjoyment of

their private land are not conditioned upon, nor subject to, those

who want to hunt adjacent public lands.” The court further found

that the rights of private property owners cannot and should not

be interfered with by state government and those authorized to

participate in deer dog hunting. The trial court explained that

Appellees “are no longer asking the Court to change the FWC rules

or regulations, nor to micromanage the deer hunting program that

is part of FWC’s wild game management responsibility.” Instead,

according to the trial court, Appellees were requesting a ruling

that the flood of hunters and their dogs trespassing on their

property constituted a nuisance and a taking of their property.

On the issue of sovereign immunity, the trial court

determined that Appellant was not immune from liability for

16

constitutionally-based takings claims or from nuisance claims.

The trial court set forth:

Whether, and the extent to which, FWC’s actions

constitute a taking will be decided based on the evidence

submitted at the jury trial of this case, as will the amount

of any resulting damages. For now, it is clear that the

trespasses onto the plaintiffs’ property and the

interference with the plaintiffs’ property rights is a direct

result of the FWC’s continued allowance of the deer dog

hunting in an area known to contain private property,

and does constitute a nuisance. The plaintiffs are

entitled to entry of an injunction requiring FWC to abate

the nuisance during the pendency of these proceedings.

The trial court ordered Appellant “to abate the nuisance of the deer

hunting dogs from trespassing onto the property of the plaintiffs,

and of the deer dogs and their hunters from interfering with the

plaintiffs’ right to the quiet enjoyment of their private property.”

ANALYSIS

Summary Judgment

Unlike the majority, I agree with the trial court that the

doctrine of sovereign immunity does not apply to this case. With

respect to Appellees’ inverse condemnation claims, the majority

reverses based upon its determination that Appellees failed to

state legally sufficient takings claims. While the majority is

correct that Appellant made such an argument in its summary

judgment motion, that argument came after the argument that

“[t]he plaintiffs have filed a nuisance count . . . and a takings count

. . . . The Plaintiffs[’] claims are barred by the doctrine of

separation of powers, sovereign immunity and prior decisions of

this court.” On appeal, Appellant represents that it argued below

that it was entitled to summary judgment “based on the doctrines

of separation of powers and sovereign immunity.” As

acknowledged by the majority, the trial court did not rule as to

whether the takings claims were legally sufficient but instead

directly addressed the applicability of the separation of powers

doctrine and sovereign immunity. More importantly for purposes

of what issues are presently before this Court, Appellant, in its

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Initial Brief, frames the issues on appeal by stating that it is

appealing the entry of the temporary injunction and “the denial of

[its] motion for summary judgment to the extent that the summary

judgment determined as a matter of law that [it] is not entitled to

sovereign immunity.” In its Reply Brief, Appellant acknowledges

that “courts in Florida have established that sovereign immunity

does not bar all inverse condemnation claims and common law

nuisance claims” against state agencies, commissions, and other

government entities and sets forth, “FWC believes and is arguing

that sovereign immunity bars Appellees from recovering under

these theories under the facts” of this case. Notwithstanding the

foregoing, Appellees, pursuant to the majority opinion, will be

prevented from pursuing their inverse condemnation claims

against Appellant on a basis not expressly ruled upon by the trial

court and not argued by the parties on appeal. Such a disposition,

in my opinion, is wholly inappropriate. See Doe v. Baptist Primary

Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (noting that an

appellant who presents no argument as to why a trial court’s ruling

is incorrect on an issue has abandoned the issue and that it is not

the function of an appellate court to re-brief an appeal); Anheuser-

Busch Cos. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)

(“[W]e are not at liberty to address issues that were not raised by

the parties.”).

Turning to the merits of the issue that is actually before us,

the trial court properly relied upon Crowley Museum & Nature

Center, Inc. v. Southwest Florida Water Management District, 993

So. 2d 605 (Fla. 2d DCA 2008), for the proposition that sovereign

immunity does not bar such claims. There, as the majority notes,

the appellee conceded on appeal that the immunity statute at issue

could not be constitutionally applied to preclude the inverse

condemnation claim brought by the appellant. Id. at 608.

However, what the majority fails to mention is the Second

District’s statement, “We conclude that the court erred in

determining that the District enjoys sovereign immunity from a

claim for inverse condemnation.” Id. at 610; see also Hansen v.

City of Deland, 32 So. 3d 654, 655 (Fla. 5th DCA 2010) (“A property

owner can file an inverse condemnation claim to recover the value

of property that has been de facto taken by a government entity.”);

Drake v. Walton Cty., 6 So. 3d 717, 720 (Fla. 1st DCA 2009) (“We

have previously held that a county takes private property when it

18

directs a concentrated flow of water from one property onto

another, permanently depriving the owner of all beneficial

enjoyment of their property.”); Schick v. Fla. Dep’t of Agric., 504

So. 2d 1318, 1318 (Fla. 1st DCA 1987) (“[A] cause of action for

inverse condemnation will lie against a government agency, which

by its conduct or activities, has taken private property without a

formal exercise of the power of eminent domain.”). Based upon

such, Appellant is not immune under the doctrine of sovereign

immunity from Appellees’ inverse condemnation claims, and

reversal of the summary judgment order as to those claims is

improper.

With respect to Appellees’ nuisance claims, while the majority

concludes that Appellant is not liable to Appellees for hunters’

misconduct, the situation at issue in this case is far different from

the facts of Brown v. Department of Health and Rehabilitative

Services, 690 So. 2d 641 (Fla. 1st DCA 1997), a case cited by the

majority. There, this Court held that the agency had no common

law duty to parents of children who were sexually abused at a

daycare facility to monitor compliance with the permit’s condition

that a known sexual abuser would not visit the facility and noted

that the complaints did not allege “the existence of any premises

or location either owned, operated, or maintained by HRS.” Id. at

644. Here, in contrast, Appellant authorized hunting on the public

land at issue. As the supreme court has explained, “[O]nce a

governmental entity builds or takes control of property or an

improvement, it has the same common law duty as a private

person to properly maintain and operate the property.” Trianon

Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 921 (Fla.

1985). Therefore, Appellees’ contention that Appellant, once it

made its decision to allow hunting in the Blackwater WMA,

undertook the same duty to properly maintain and operate the

property as a private person would is well-taken. See Dep’t of

Transp. v. Burnette, 384 So. 2d 916, 922 (Fla. 1st DCA 1980)

(“Every remedy which would be available against an individual for

such a repeated trespass or continuing nuisance . . . is now

available against the State.”).

Not only do I disagree with the majority that Appellant owes

no duty to Appellees, but I also disagree with the majority’s

conclusion that Appellant’s actions at issue are discretionary in

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nature and, thus, immune from suit under sovereign immunity. In

Trianon Park Condominium Ass’n, the supreme court discussed

sovereign immunity, explaining that “certain discretionary

functions of government are inherent in the act of governing and

are immune from suit.” 468 So. 2d at 918. In determining whether

an act is discretionary, a court should evaluate the case under the

following test:

(1) Does the challenged act, omission, or decision

necessarily involve a basic governmental policy, program,

or objective? (2) Is the questioned act, omission, or

decision essential to the realization or accomplishment of

that policy, program, or objective as opposed to one which

would not change the course or direction of the policy,

program, or objective? (3) Does the act, omission, or

decision require the exercise of basic policy evaluation,

judgment, and expertise on the part of the governmental

agency involved? (4) Does the governmental agency

involved possess the requisite constitutional, statutory,

or lawful authority and duty to do or make the challenged

act, omission, or decision?

Id. If all of the questions can be answered in the affirmative, then

the governmental conduct is discretionary and non-tortious. Id. If

one or more questions are answered in the negative, then further

inquiry is necessary depending on the facts and circumstances

involved. Id. at 918-19. The test is intended to assist in

distinguishing between discretionary planning “or judgment

phase” and the operational phase of government. Id. at 919.

The Second District in Rumbough v. City of Tampa, 403 So.

2d 1139, 1142 (Fla. 2d DCA 1981), explained that section 768.28

waives sovereign immunity in nuisance actions. It went on to

conclude, however, that the appellants could not recover against

the City of Tampa for its decision to expand a landfill because the

operation of the landfill was “nothing more than an

implementation of the decision which was made at the planning

level” and the City was exercising a discretionary function. Id.

Were this a case where Appellant had decided to increase or

expand deer dog hunting, Rumbough would support an argument

that that decision was governmental in nature or discretionary

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and immune from challenge. However, the issue in this case is not

the expansion of deer dog hunting. The issue concerns the

management of deer dog hunting in the Blackwater WMA or, in

other words, the implementation of Appellant’s policy to allow

hunting therein. As the supreme court has explained, an act is

operational if it “‘is one not necessary to or inherent in policy or

planning, that merely reflects a secondary decision as to how those

policies or plans will be implemented,’” whereas discretionary acts

involve “‘an exercise of executive or legislative power such that, for

the court to intervene by way of tort law, it inappropriately would

entangle itself in fundamental questions of policy and planning.’”

Pinellas Park v. Brown, 604 So. 2d 1222, 1226 (Fla. 1992) (holding

that, in the absence of a serious emergency, the method by which

law enforcement engages in hot pursuit constitutes an operational

function that is not immune from liability if it is accomplished in

a manner contrary to reason and public safety (citation omitted)

(emphasis in original)). While Appellant is correct that its decision

to allow deer dog hunting in the Blackwater WMA and to issue

permits to hunters is a discretionary decision to which sovereign

immunity would apply, this case deals with Appellant’s

implementation of its policies and plans regarding deer dog

hunting in the Blackwater WMA. Moreover, the trial court did not

inappropriately entangle itself in fundamental questions of policy

and planning in this case.

In an out-of-state case involving deer dog hunting and private

parties, the appellant was the owner of a plantation consisting of

approximately 841 acres, and the appellee owned large tracts of

land surrounding the appellant’s land to the east, south, and west.

FOC Lawshe Ltd. P’ship, FOC v. Int’l Paper Co., 574 S.E.2d 228,

230 (S.C. Ct. App. 2002). The appellant invested time and money

to improve its land to be used for hunting and to stock the property

with wildlife. Id. The appellee primarily utilized its land for

growing timber and also leased its property to several hunt clubs

to use for hunting deer. Id. During hunting season, the hunt clubs

commonly hunted deer on the same two days that the appellant

hunted deer and quail on its land. Id. The hunt clubs that leased

the land from the appellee utilized dogs while they were hunting,

whereas the appellant’s hunters were “still” hunters and did not

use dogs. Id. The dogs released by the hunt clubs frequently

crossed over onto the appellant’s property and disrupted the

21

hunting by the appellant’s members and guests. Id. The dogs had

also raided quail pens on the appellant’s property. Id. The

appellant brought suit against the appellee, seeking a temporary

restraining order and damages, basing its claim on a theory of

nuisance arising from the disruption caused by trespassing dogs.

Id. The trial court found that the appellant failed to establish the

requirements necessary for issuing a temporary restraining order

and denied the motion. Id. The appellee argued on appeal that it

could not be liable for a nuisance arising from its tenants’ use of

the land. Id. at 231. The appellate court explained that the

appropriate analysis was whether the appellee had complete

control over the land and whether the alleged nuisance necessarily

resulted from the ordinary use of the land by the appellee’s tenants

or for “the purpose for which [the lands] were let.” Id. at 232. The

appellate court determined that the appellant alleged sufficient

facts to state a cause of action against the appellee. Id.

Although Appellant is correct that it is not the one allegedly

trespassing on Appellees’ property, the evidence established that

the dogs of some hunters, whom Appellant permits to hunt on

state-owned property, are trespassing on Appellees’ land. If

Appellant were a private party who owned the Blackwater WMA

and trespassing dogs were running from that property onto

Appellees’ property, FOC Lawshe Ltd. Partnership, FOC would

support a nuisance claim.

With respect to governmental entities allowing certain

activities on state lands that create a nuisance, Mark v. State ex

rel. Department of Fish and Wildlife, 84 P.3d 155 (Or. Ct. App.

2004), is instructive. In that case, the Oregon Department of Fish

and Wildlife (“Department”) and the Division of State Lands

appealed from a judgment issuing a permanent injunction in a

nuisance action. Id. at 155. It was noted that the Division of State

Lands owned and the Department leased and managed property,

including a public beach adjacent to the plaintiffs’ property. Id.

The trial court determined that the intrusive presence and

behavior of nude sunbathers using the public beach and the

Department’s failure to regulate or otherwise exercise control over

certain aspects of that use constituted a private nuisance and

issued a permanent injunction requiring the Department to abate

the nuisance. Id. The Oregon appellate court explained that the

22

gravamen of the plaintiffs’ private nuisance claim was that the

defendants, who owned and controlled the adjacent land, failed to

adequately control the conduct of their invitees. Id. at 161. The

appellate court further explained that the act of those invitees

created a nuisance on the plaintiffs’ land. Id. The court noted that

the defendants challenged the scope and content of the permanent

injunction and contended that the mandatory provisions offended

principles of separation of powers in that the provisions

impermissibly impinged on the prerogatives of the Department.

Id. at 165. The appellate court rejected that argument, finding

instead that the terms of the injunction afforded the Department

considerable flexibility in choosing the means by which the

mandated ends were to be accomplished. Id.; see also Maday’s

Wholesale Greenhouses, Inc. v. Indigo Grp., Inc., 692 So. 2d 207,

209 (Fla. 5th DCA 1997) (noting that the appellant argued that the

manner in which Port Orange was using its own property

constituted an unlawful diversion of surface water and

represented a continuing trespass and nuisance, agreeing with the

appellant that a governmental property owner does not enjoy

sovereign immunity against a claim that the government’s use of

its own property results in an improper diversion of surface water

onto private property, and holding that a cause of action could exist

against Port Orange for injunctive relief or abating a private

nuisance and related damages).

Just as the court determined in Mark that the Department’s

failure to regulate or exercise control over certain aspects of the

use that it allowed on state property constituted a nuisance,

Appellees should be permitted to pursue their claims that

Appellant’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. That

responsibility is operational in nature. Given such, the trial court

did not err in denying summary judgment on the sovereign

immunity issue.

Temporary Injunction

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Turning to the temporary injunction, a trial court must

determine whether a petition for such demonstrates a prima facie,

clear legal right to the relief requested. SunTrust Banks, Inc. v.

Cauthon & McGuigan, PLC, 78 So. 3d 709, 711 (Fla. 1st DCA

2012). To establish a prima facie case for a temporary injunction,

a petitioner must show four factors: (1) the likelihood of

irreparable harm; (2) the unavailability of an adequate remedy at

law; (3) a substantial likelihood of success on the merits; and (4)

that a temporary injunction would serve the public interest. Id.

The petitioner has the burden of providing competent, substantial

evidence that satisfies each of these elements. Id. An appellate

court’s review of a ruling on a temporary injunction is hybrid in

nature in that legal conclusions are reviewed de novo while factual

findings are reviewed under the abuse of discretion standard. Id.

As the majority explains, Appellant argues that the

temporary injunction is overly broad, is impossible to comply with,

and effectively orders it to change its rules and regulations without

expressly stating so. It also contends that the judiciary violates

the separation of powers doctrine if it orders an administrative

agency to perform its duty in a certain way. In support of this

contention, Appellant cites Crowley Museum & Nature Center, Inc.

That case, as previously cited, flowed from the appellee’s issuance

of permits allowing certain farming operations to engage in flood

irrigation, which involved pumping groundwater from the

underground aquifer and flooding the fields up to the root zones of

the plants. 993 So. 2d at 607. The excess flood irrigation water

flowed off certain farms into a swamp, and when the swamp basin

filled, water then flowed downstream onto the appellant’s land. Id.

When the appellee could not provide a specific time period for

correcting the flooding problem, which was causing trees to die, the

appellant initiated suit against the upstream farming operations.

Id. The appellant raised claims for trespass and private nuisance

against the appellee, as well as claims for inverse condemnation

and negligence. Id. The trial court granted the appellee’s motion

to dismiss the claims on sovereign immunity grounds and found

that injunctive relief would impermissibly require it under the

separation of powers doctrine to direct the appellee as to how to

remedy the flooding problem on the appellant’s property. Id. On

appeal, the appellant argued that the trial court erred in

dismissing the complaint, but it did not challenge the court’s ruling

24

as it pertained to the claims for private nuisance, trespass, or

negligence. Id. Instead, the appellant argued that the trial court

erred in determining that section 373.443, Florida Statutes, which

addresses immunity from liability pertaining to storm water

management systems, provided for sovereign immunity from its

inverse condemnation claim because such a constitutional claim

could not be barred by a legislative grant of immunity. Id. at 608.

The Second District affirmed the trial court’s order dismissing the

damages claims against the appellee “with the exception of the

claim for inverse condemnation.” Id. As to injunctive relief, the

Second District determined that the trial court was correct that

the separation of powers doctrine precluded it from entering an

injunction that required an administrative agency to perform its

duties in a particular way but that “a court may enter an

injunction that gives an administrative agency the flexibility to

choose the means by which to fulfill its duties.” Id. at 609. While

the Second District was concerned with the feasibility of the

appellant’s requests as to injunctive relief, it explained, “[T]he

relief requested on the face of the [appellant’s] complaint does not

require the District to manage the lands in Flatford Swamp in a

particular way but gives the District the flexibility to choose the

means by which to manage its lands in Flatford Swamp.” Id. The

Second District concluded that the trial court erred in dismissing

the claim for injunctive relief and in determining that the appellee

enjoyed sovereign immunity from a claim for inverse

condemnation. Id.

In granting the temporary injunction in this case, the trial

court set forth, “FWC is hereby required to abate the nuisance of

the deer hunting dogs from trespassing onto the property of the

plaintiffs, and of the deer dogs and their hunters from interfering

with the plaintiffs’ right to the quiet enjoyment of their private

property.” As in Crowley Museum & Nature Center, Inc., where

the injunction provided the appellee flexibility to choose the means

by which to manage its land, Appellant was given the flexibility to

choose the means by which it would abate trespassing dogs on

Appellees’ property. Appellant fails to explain how it is impossible

to comply with the injunction.

Appellant cites Angelino v. Santa Barbara Enterprises, LLC,

2 So. 3d 1100 (Fla. 3d DCA 2009), for the proposition that an

25

injunction must be specifically tailored to each case, may not be

overly broad, and may not leave one against whom an injunction

is entered in doubt as to what is supposed to be done. Appellant

also cites City of Oviedo v. Alafaya Utilities, Inc., 704 So. 2d 206

(Fla. 5th DCA 1998), for the proposition that there are

circumstances in which an injunction may be entered by a trial

court if an injunction does not unduly infringe on a city’s

regulatory powers. In City of Oviedo, the Fifth District affirmed a

temporary injunction enjoining the appellant from withholding

approval of planned sewer improvements by the appellee on the

ground that the appellee refused to sign a franchise agreement

proffered by the appellant. Id. at 207. The Fifth District noted

that the preliminary injunction enjoined the appellant “‘from

withholding development on the grounds that Alafaya has not

entered into a franchise agreement with the City’” and set forth

that “[b]ecause Oviedo is still free to adopt reasonable rules and

regulations pertaining to the use of its rights of way . . ., the

injunction entered does not unduly hamper Oviedo’s regulatory

powers.” Id. at 208 (emphasis in original).

Any argument that Appellant is in doubt as to what the trial

court directed is meritless. The injunction is clear that Appellant

is to abate the nuisance of deer hunting dogs on Appellees’

property. As stated, the trial court left it up to Appellant to decide

how that directive is to be accomplished and how the alleged

nuisance in the Blackwater WMA is to be abated. Like the

situation in City of Oviedo, the injunction in this case does not

unduly hamper Appellant’s authority in the Blackwater WMA.

In support of its decision, the majority refers to the trial

court’s order vacating the automatic stay that was entered while

this appeal was pending and the court’s language characterizing

the issuance of licenses and permits as a nuisance. Unlike the

majority, I do not read the order on appeal to prohibit the issuance

of licenses and permits. As Appellant’s counsel noted below about

the language in the order vacating the stay, “[T]hat was something

that wasn’t included in the terms of the injunction orders that were

entered a year ago,” and the order vacating the stay “contained

some new language that actually went a little bit further” than the

order on appeal. In fact, we granted Appellant’s motion to

reinstate the automatic stay because the language used in the

26

order vacating the stay improperly expanded the scope of the

temporary injunction to include the issuance of licenses and

permits. Thus, an affirmance of the order on appeal would in no

way prohibit Appellant from issuing hunting permits. Instead,

Appellant would be free to choose how to keep hunting dogs from

trespassing onto Appellees’ property. As such, entry of the

injunction was appropriate.

CONCLUSION

In conclusion, because the trial court did not err in denying

the motion for summary judgment and in entering the temporary

injunction, I would affirm.

_____________________________

Rebekah A. Davis of Dunlap and Shipman, P.A., Tallahassee, for

Appellant.

David A. Theriaque, S. Brent Spain, and Terrell K. Arline of

Theriaque & Spain, Tallahassee, for Appellees.

27