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Arkansas Game and Fish Commission v. Heslep

Supreme Court of Arkansas

June 20, 2019

ARKANSAS GAME AND FISH COMMISSION and Jeff Crow, as Director of the Arkansas Game and Fish Commission, Appellants
Greg HESLEP and Keith Heslep, Appellees

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         James F. Goodhart, Little Rock and John P. Marks, Arkansas Game and Fish Commission, for appellants.

         McMullan & Brown, Little Rock, by: Marian M. McMullan and Amy Clemmons Brown, for appellees.


         ROBIN F. WYNNE, Associate Justice

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          The Arkansas Game & Fish Commission (AGFC) and Jeff Crow, as director of AGFC (collectively referred to as "AGFC"),[1] appeal from an order of the Pulaski County Circuit Court denying their motion to dismiss appellees’ complaint. AGFC raises the following points on appeal: (1) Does the sovereign immunity of the State and its agencies under article 5, section 20 of the Arkansas Constitution bar the Hesleps’ civil action against AGFC and Director Crow in his official capacity? and (2) Did the circuit court err when it, without hearing evidence, stating reasons in its order, or requiring security, granted the Hesleps a temporary injunction and required AGFC to provide them with a key to the locked gate across the road on AGFC property pending appeal?[2] In this interlocutory appeal, this court has jurisdiction under Arkansas Rule of Appellate Procedure-Civ. 2(a)(10) (an order denying a motion to dismiss based on the defense of sovereign immunity or the immunity of a government official is an appealable order) and 2(a)(6) (an interlocutory order by which an injunction is granted is an appealable order). We affirm the denial of the motion to dismiss on sovereign-immunity grounds, reverse the grant of the temporary injunction, and remand for further proceedings consistent with this opinion.

         Appellees Greg Heslep and Keith Heslep own 260 acres in White County, which they use primarily for hunting. A major portion of the property adjoins the White River. The Hesleps’ only access to their property is an unpaved road that crosses AGFC property. In 2015, AGFC installed a locked gate over the road after someone had done work on the road and allegedly damaged plants and trees. After that, AGFC allowed use of the road only if the person signed its Land Use Permit Agreement (LUPA). The Hesleps allege that the LUPA is unconscionable and against public policy in that it includes a precondition waiver of constitutional rights, including the right of notice, cause, and hearing in the event of a dispute.[3]

         In November 2017,[4] the Hesleps filed a complaint in the Pulaski County Circuit Court alleging that AGFC had blocked their only access to their property— a road that had been used by surrounding landowners and their lessees, as well as the general public, since approximately 1936. The road commences from the end of Highway 36 in Georgetown and traverses north across AGFC’s land.[5] According to the Hesleps, they purchased their property in 2004 in reliance on the road and its status as a county or public road, and AGFC, which obtained title to its property in the 1950s, continued to allow public use

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of the road until 2015. The Hesleps further state in their complaint that, prior to 2015, they had maintained the road, adding gravel as needed, without objection or contribution by AGFC.

          In their complaint, the Hesleps seek a determination by the circuit court of the legal status of the road and seek enforcement through injunctive relief. The Hesleps allege that the road is a county or public road; alternatively, they allege that the long-time open use of the road has ripened into a prescriptive easement that preceded AGFC’s interest in the land. The Hesleps further allege that AGFC’s actions are ultra vires under amendment 35 to the Arkansas Constitution; that AGFC’s demand for its LUPA violates its powers under amendment 35; and that AGFC’s actions in depriving the Hesleps the use of their property constitutes a violation of the Fifth Amendment. The Hesleps state that sovereign immunity does not bar their complaint because they seek injunctive and equitable relief for actions that are illegal, ultra vires, and done in bad faith, arbitrarily, and capriciously. In their prayer for relief, the Hesleps asked the circuit court to:

a. Find the Road at issue is a public road and has been a public road binding upon all servient estates, particularly AGFC’s, since at least the 1930s;
b. Issue a permanent injunction against AGFC from hindering and interfering with Plaintiffs’ use of the Road for access;
c. Allow Plaintiffs or others who rely on this access to perform maintenance and repair without damaging AGFC lands;
d. Declare AGFC’s actions in this case of blocking access and making unreasonable demands to Plaintiffs as violating its authority under Amendment 35;
e. Declare the Land Use Permit Agreement unnecessary and outside the scope of AGFC’s powers in Amendment 35 because it contains provisions that are unnecessary, ...

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