February 18, 2015 5 Comments
On February 2, 2015 three plaintiffs filed suit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks. You can read the plaintiffs’ complaint here.
The plaintiffs claim that dog hunters have caused free ranging hunting dogs to cross their land and the MDWFP has failed to take any action to prevent these dogs from intruding on the property of the plaintiffs. Plaintiffs also allege that the MDWFP has failed to implement a system of permitting and fines to reduce or eliminate the problems of which plaintiffs complain. The plaintiffs’ legal theories are based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.
Plaintiffs prayer for relief states
My Take: This case is a dog that won’t hunt. The plaintiffs will soon learn about something called the Mississippi Tort Claims Act that applies when you sue the State of Mississippi for money. Assuming they complied with the notice provisions, there are several other provisions which they will soon find problematic. For example:
§ 11-46-9. Exemption of governmental entity from liability on claims based on specified circumstances
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
(h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature.