Harris v. Missouri Dept. of Conservation

• Decision Date: 17 January 1995
• Docket Number: No. WD,WD
• Parties: Brown HARRIS, II, Trustee for the Christopher Harris Trust, Appellant, v. The MISSOURI DEPARTMENT OF CONSERVATION, Defendant. 48200.
• Court: Missouri Court of Appeals

Page 66

895 S.W.2d 66

Brown HARRIS, II, Trustee for the Christopher Harris Trust, Appellant, v. The MISSOURI DEPARTMENT OF CONSERVATION, Defendant.

No. WD 48200.

Missouri Court of Appeals Western District.

Jan. 17, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1995.

Application to Transfer Denied

April 25, 1995.

Michael T. White, Timothy J. Sear, Mark F. Brady, Kansas City, for appellant.

Stephen J. Briggs, Creath S. Thorne, Morton, Reed & Counts, St. Joseph, for respondent.

Before ULRICH P.J., and LOWENSTEIN and HANNA, JJ.

LOWENSTEIN, Judge.

This is an appeal from the circuit court's denying damages in an inverse condemnation action. A trustee for the Christopher Harris Trust (Trust), brought this suit when the defendant, The Missouri Department of Conservation (Department), prohibited commercial fishing on a lake located on Trust's property. At the heart of the case is the effect of enforcement of a regulation which prohibits commercial fishing on what is denominated as a waterway of the state. ¹ As will be discussed infra, "commercial fishing" of a state waterway is generally prohibited by Missouri's conservation laws. Appellant-Trust, sought a declaration that King Lake, being solely on Trust's property, was not a "water of the state," and it could have the fish from that lake commercially harvested. The trial court held against the Trust, disagreeing with the Trust's theory that the effect of the enforcement of the Department's regulation was a taking and entitled Trust to damages. ²

Many of the facts here were set out in the opinion following the earlier grant, by a different judge, of a motion dismissing the petition. In Harris v. Missouri Department of Conservation, 755 S.W.2d 726 (Mo.App.1988), this court reversed and remanded, ordering a trial to determine whether Department's actions showed some valid governmental purpose or interest. Id. at 731. This appeal follows the trial.

The property in question is King Lake, a lake of 230 acres in size, located primarily within DeKalb County, with its basin extending into Gentry County. King Lake was created in 1969 by the damming of Lost Creek, a small stream flowing through Gentry and DeKalb Counties. The lake is a conservation lake designed to control soil erosion. Lost Creek originates about two miles above, and flows into King Lake. The creek continues below King Lake, being fed by overflow from a spillway at the dam between the creek and the lake, and eventually reaches the Grand which flows into the Missouri River. The actual basin of King Lake at normal pool extends into Gentry County. At maximum flood pool, King Lake grows to 448 acres and will encroach on the property of many other landowners. Lost Creek and nearby Willow Creek are intermittent streams which sustain fish populations. Prior to and during the time Trust owned King Lake, fish did move from Lost Creek to King Lake and then back to Lost Creek. King Lake, Inc. developed the lake in 1969. Trust purchased it in early 1980 for $621,000.

When Trust purchased King Lake, the trustee contemplated various economic uses for the property, including a possible golf course, housing development, and electric generation. Although no formal plats or development plans were made, Trust acknowledges having several discussions with various developers about possible development of the land. Trust also used King Lake as a source of irrigation for the surrounding crop land. Before Trust purchased King Lake, there was no commercial fishing of King Lake. During the first year of ownership of King Lake, Trust did not commercially fish or develop plans to commercially fish the lake. This was the case for the first several years of Trust's ownership of King Lake. It was not until May or June of 1983, when Trust had a conversation with commercial fisherman, Jackie Shields, that arrangements were made to commercially fish the lake.

Also, in May or June of 1983, Department reported to Trust that there could be no commercial fishing of King Lake. Department mailed Trust a copy of the Wildlife Code containing the "waters of the state" definition. Nevertheless, Trust continued commercially fishing King Lake. A routine investigation of King Lake by Department revealed that commercial fishing was indeed taking place, and commercial fisherman Jackie Shields admitted to the fishing. Shields was fined $300.00 for commercially fishing King Lake.

In 1984, Trust requested Department purchase King Lake from it. Department did purchase the lake at a price of $750,000. Department did not stock the lake prior to its purchase in 1984. There is, and was, habitat for fish both above and below King Lake in Lost Creek.

After the purchase of King Lake by Department, Trust filed suit against Department in 1986, claiming inverse condemnation. The thrust of the suit is that Department's arbitrary rulings forced Trust to lose money and not meet its payments on the deed of trust for the land; thus, forcing Trust to sell (albeit at a profit), which amounted to a forced taking without proper compensation. Harris v. Department, 755 S.W.2d at 727. Because of the court's ruling on the question of whether King Lake is a "water of the state," the question of the ability of a former landowner to sell land to the state at a profit is not further addressed.

Points on Appeal

Trust presents a total of five points on appeal. They are as follows: 1) King Lake was totally enclosed in single ownership by Trust; thus, Department had no right to prohibit commercial fishing of the lake; 2) Department had no power to promulgate a regulation involving waters "subject to the movement of fishes," because such a regulation is unconstitutionally vague and there was no evidence of movement of fishes in King Lake; 3) Department's ban against commercial fishing serves no legitimate public interest; 4) The ban constituted a Fifth Amendment "taking," because it denies Trust all commercial use of King Lake property; and 5) As a result of the "taking," Trust is entitled to monetary damages from Department.

Standard of Review

Trust challenges the findings of the trial court made in the course of rendering its judgment. Therefore, review will be under the abuse of discretion standard. The trial court's judgment may only be reversed if "there is no substantial evidence to support it, if the decision is against the weight of the evidence, or if the judgment erroneously declares or misapplies the law." Swall v. Custom Automotive Services, Inc., 831 S.W.2d 237, 239 (Mo.App.1992) citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).

Property Enclosure/Single Ownership

Trust's first point on appeal states that because King Lake was totally enclosed in single ownership, Department had no right to prohibit commercial fishing in the lake. Trust claims this is because a totally enclosed lake can't be "waters of the state." ³

As stated in Harris v. Department, 755 S.W.2d at 729, the definition of "waters of the state" excludes certain waters which are entirely confined and located completely upon land owned or leased by a single person. Such is not the case here. The record supports the trial court's finding that King Lake was not entirely confined to one area of ownership. The lake boundaries extend into a neighboring county, and at full flood pool, King Lake extends onto several parcels of land owned by others in Gentry County. Therefore, King Lake falls squarely subject to the Department's rules and regulations concerning "waters of the state," bodies of water, thus falling under the jurisdiction of Department. In addition, even if Trust were able to prove single ownership or total enclosure of King Lake, the lake would still be a "water of the state" under 3 C.S.R. 10-11.805(39) because it is subject to the movement of fishes, as discussed in the next point.

The point is denied.

Constitutionality of Regulation

Under this point, Trust attacks the regulation in question, supra n. 3, over the language at the end which designates as a water of the state any "waters ... which are subject to movement of fishes to and from waters of the state." This language would make King Lake a water of the state, even if it were on land under single ownership. Even though the court has already affirmed the trial court's ruling on the single ownership issue, the Trust's second point will be examined.

1) The first argument is the "movement of fishes" language went beyond the rule-making authority of Department, since the legislature has already defined "waters of the state" in § 644.016(15), R.S.Mo. Cum.Supp.1993. (This statute, part of the Clean Water Law dealing with water pollution under Chapter 644, does not add anything to the definition about movement of fishes.)

Under § 252.030, supra, Department is granted rule-making authority over fish under the Wildlife Code. That a different statutory definition is described in the Water Pollution chapter does not limit Department's regulation making authority. Missouri Hospital Association v. Missouri Department of Conservation Affairs, Regulation and Licensing, 731 S.W.2d 262, 264 (Mo.App.1987).

2) Even if there was authority to promulgate the rule, Trust alleges the rule is still unconstitutionally vague.

Trust points to Dallen v. Kansas City, 822 S.W.2d 429, 435 (Mo.App.1991) as holding persons of common intelligence would not be able to look at King Lake and realize that it is a "water of the state."

In Reid v. Ross, 46 S.W.2d 567 (Mo.1932), the Supreme Court of Missouri adjudicated the constitutionality of what was the precursor to the current "water of the state" regulation. In Reid, the landowner owned a large lake which was connected to the Missouri River by only a thin drainage ditch. The lake and the river were only connected 12 days per year but when they were connected, fish could pass between the two. The Supreme Court determined the "waters of the state" regulation was clear and not...