281 F.3d 552 (6th Cir. 2002), 00-5178, Arnett v. Myers

Docket Nº:00-5178
Citation:281 F.3d 552
Party Name:Gary Arnett, et al., Plaintiffs-Appellants, v. Gary T. Myers, Executive Director of the Tennessee Wildlife Resources Agency, et al., Defendants-Appellees.
Case Date:February 21, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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281 F.3d 552 (6th Cir. 2002)

Gary Arnett, et al., Plaintiffs-Appellants,


Gary T. Myers, Executive Director of the Tennessee Wildlife Resources Agency, et al., Defendants-Appellees.

No. 00-5178

United States Court of Appeals, Sixth Circuit

February 21, 2002

Argued: April 26, 2001

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 98-01263--James D. Todd, Chief District Judge.

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Before: SILER and MOORE, Circuit Judges; STAGG, District Judge.[x]

COUNSEL ARGUED: Lance E. Webb, Dyersburg, Tennessee, for Appellants. Elizabeth P. McCarter, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

ON BRIEF: Lance E. Webb, Dyersburg, Tennessee, for Appellants. Elizabeth P. McCarter, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.


STAGG, District Judge.

Plaintiffs-appellants Gary Arnett, Shelly Arnett, and John Paul Arnett, by next friend Gary Arnett, brought this action pursuant to 42 U.S.C. § 1983 against Gary Myers, Executive Director of the Tennessee Wildlife Resources Agency ("TWRA"), and the members of the Tennessee Wildlife Resources Commission ("TWRC") in their official capacities; against Harold Hurst, Gary Cook, Paul Brown, and Ronnie Capps, employees of the TWRA, in their individual capacities; and against Robert Baker, an employee of the Tennessee Department of Environment and Conservation ("TDEC") in his individual capacity. The plaintiffs-appellants sought declaratory and injunctive relief, contending that the removal of their duck blinds from Reelfoot Lake in Obion County, Tennessee by the defendant-appellee employees of the TWRA (1) denied them procedural due process, equal protection, and just compensation for a taking under the Fifth, and Fourteenth Amendments; (2) denied them of their right to conduct a commercial aquaculture business and deprived them of their property rights under the Fifth and Fourteenth Amendments; and (3) constituted retaliation for the exercise of Gary Arnett's First Amendment rights in criticizing the TWRA's management of Reelfoot Lake. In two separate opinions, the district court granted summary judgment to the defendants-appellees, holding that (1) the plaintiffs-appellants' claims under the Fifth and Fourteenth Amendments were not ripe for review because the plaintiffs-appellants did not pursue available administrative remedies prior to filing suit in federal court; alternatively, (2) the plaintiffs-appellants were unable to demonstrate a constitutionally protected interest in the duck blind structures; and (3) that the plaintiffs-appellants did not provide sufficient evidence of a causal connection between Gary Arnett's criticism of the TWRA's management of Reelfoot Lake and the removal and destruction of the duck blinds to maintain a First Amendment retaliation claim.

For the reasons set forth below, we REVERSE the district court's dismissal of the plaintiffs-appellants' First Amendment claims and its holdings that the plaintiffs-appellants' Fifth and Fourteenth Amendment claims are not ripe for review and that the plaintiffs-appellants had no constitutionally protected interest in duck blinds. Accordingly, we REMAND to the district court for further proceedings.


Reelfoot Lake was formed in 1810 by an earthquake and the flow of the Mississippi River. "The result of the earthquake was to lower the lands upon which the waters of the lake rest several feet below the surrounding lands. The submergence of the land [by the Mississippi River] carried down the forest timber growing upon it, and these timbers and their remains are still in the lake." State ex rel. Cates v. West Tennessee Land Co., 158 S.W. 746, 747 (Tenn. 1913). The State of Tennessee owns approximately 25,000 acres (15,000 acres of water) in and around the lake. The lake is known for its hunting, fishing, bird population, and as a major wintering area for migrating waterfowl and a winter home to eagles.

In 1913, the Tennessee Supreme Court held that Reelfoot Lake is a navigable stream in the "strict technical legal sense," meaning that private ownership of either its waters or the land underlying them is not permitted. Id. at 749. Because it is navigable in the technical sense, "the rights of the public attach to it, to its use, and to its fisheries, so that it is incapable of private ownership, and the state owns it in trust for all the people, and cannot alienate it away." Id. at 752. Nevertheless, the court held that those landowners whose titles include land derived from the 1788 Doherty grants1 from North Carolina prior to the formation of Reelfoot Lake, land now submerged by the lake, "would be entitled to its [their land's] use and Page 557

enjoyment as long as they can reasonably identify it and fix its boundaries." Id. Title and ownership over a Doherty grant "will carry with it the exclusive right of fishery in the waters over these grants." Id.

Acting as owner in trust of Reelfoot Lake, the State of Tennessee has regulated its use. In 1973, the Tennessee General Assembly designated Reelfoot Lake as a "Class I" scenic recreational area under the Natural Areas Preservation Act, Tenn. Code Ann. § 11-14-101. See 1973 Tenn. Pub. Acts 185. All land surrounding the waters of Reelfoot Lake was designated a state wildlife management area. See Tenn. Code Ann. § 70-5-107(d)(1). And, in 1984, the legislature named the TWRA and the TWRC as the primary agencies to administer activities at Reelfoot Lake. See 1984 Tenn. Pub. Acts 548 (codified at Tenn. Code Ann. § § 11-14-116; 70-1-302(d) and 70-1-305(11)). The legislature also has expressly directed and authorized the Commissioner of the TDEC to establish rules implementing the permitting system over any activities that may impair or obstruct the navigability of watercourses in Tennessee, including Reelfoot Lake. See 1992 Tenn. Pub. Acts 693 § 1 (codified at Tenn. Code Ann. § 69-1-117).

Gary Arnett, his wife Shelly Arnett, and their minor son John Paul Arnett (collectively, "the Arnetts") each claim ownership of a separate duck blind on Reelfoot Lake in Obion County, Tennessee. Gary Arnett alleges ownership of a duck blind located in the Cranetown area of Reelfoot Lake, having claimed it after it was abandoned by its previous owner, and repairing and refurbishing it in September of 1995. Shelly Arnett claims ownership of a duck blind in the Net Raft Timber area of Reelfoot Lake, having claimed and refurbished it in May of 1997. John Paul Arnett claims ownership of a duck blind in the Rushing Pond area of Reelfoot Lake, having received the blind as a gift from his father, Gary Arnett, who obtained title to it, in turn, by conveyance from one Wendell Morris in May of 1997. The Arnetts made or intended to make personal and professional use of the blinds, using them personally to observe and hunt migratory waterfowl, fish, and engage in other family recreational activities, while using them professionally as part of a family guide business for hunters and fishermen.

The Arnetts contend that each of the blinds continually existed in the same location on Reelfoot Lake from before July 1, 1986, until November of 1997. Between November 12 and November 14, 1997, TWRA agents removed a total of nine duck blinds from Reelfoot Lake, including the three blinds allegedly owned by the Arnetts, after determining that the blinds were unregistered, and therefore, unlawful. The TWRA is authorized to remove unregistered duck blinds from Reelfoot Lake under regulations promulgated by the TWRC that provide, in pertinent part:

[n]o blind may be constructed, or repaired, or any floating blinds moved onto the area that has not met the deadline for registering the blind and displaying the registration number, as prescribed. Unregistered and/or unnumbered blinds are subject to removal at the discretion of the area manager or a designee of the Tennessee Wildlife Resources Agency . . . .

Tenn. Comp. R. & Regs., ch. 1660-1-2-.02(3)(c)10. After the blinds were removed by the TWRA agents, the TWRA and the TDEC issued letters to the individuals claiming ownership of those blinds stating that those owners wishing to retrieve the structural materials of their blinds should call and make arrangements to pick them up. This was the first notice the Arnetts had of the action taken by the TWRA. The Page 558

Arnetts allege that of all the blinds removed, only theirs were destroyed.

In March of 1997, approximately eight months prior to the removal and destruction of the blinds to which they claim ownership, the Arnetts sent a letter to Harold Hurst requesting official recognition by the TWRA of the duck blinds in their names, but this request was denied. In the same letter, Gary Arnett asked for permission to engage in commercial aquaculture off of his lake front property. This request was also denied. Subsequently, the Arnetts sent joint applications to the TWRA and TDEC seeking permission to repair the duck blinds. In September, 1997, Robert Baker of the TDEC replied by letter to these requests stating that the Arnetts could repair the blinds without a navigation permit from the TDEC provided that the work conducted was only "in-kind repair, rehabilitation, or replacement" of an existing structure authorized under TDEC rules or that was constructed prior to July 1, 1986. After receiving this response, the Arnetts contend that they spent considerable time and money repairing the blinds throughout September and October of 1997.

In September of 1998, the Arnetts brought this lawsuit pursuant to 42 U.S.C. § 1983 in the Western District of Tennessee seeking injunctive and declaratory relief and attorney's fees. The relief sought by the Arnetts included: 1) a declaratory judgment that they owned the...

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