Arkansas Game and Fish Commission and Jeff Crow, as Director of the Arkansas Game and Fish Commission v. Greg Heslep and Keith Heslep
2019 Ark. 226
Ark.2019Background
- Greg and Keith Heslep own 260 acres in White County; their only vehicular access is an unpaved road that crosses Arkansas Game & Fish Commission (AGFC) property (part of Henry Gray Hurricane Lake WMA).
- AGFC installed a locked gate in 2015 and required a Land Use Permit Agreement (LUPA) for access; Hesleps allege the LUPA is unconscionable and that AGFC illegally blocked their longstanding access.
- Hesleps sued in Pulaski County seeking a declaration that the road is public or that a prescriptive easement exists, injunctive and declaratory relief (including that AGFC acted ultra vires and effected a taking), but they do not seek monetary damages.
- The circuit court dismissed AGFC’s director in his individual capacity, denied AGFC’s motion to dismiss on sovereign-immunity grounds, and granted a temporary injunction requiring AGFC to provide a key to the gate pending appeal — all without taking testimony or formal evidence and without stating reasons or requiring bond.
- AGFC appealed interlocutorily, arguing (1) sovereign immunity bars the suit and (2) the temporary injunction was improperly entered in violation of Rule 65.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the Hesleps’ suit for declaratory/injunctive relief | Hesleps: sovereign immunity does not bar suits seeking equitable relief to enjoin illegal, ultra vires, arbitrary, or bad-faith agency action | AGFC: Art. 5 § 20 bars suits against the State/agencies; injunction would control AGFC’s management and divest property rights | Court: Denied dismissal — pleadings (taken as true) sufficiently allege illegal/ultra vires action and prescriptive-easement theory so sovereign immunity exception may apply |
| Whether sovereign immunity bars injunctive relief that affects agency operations | Hesleps: they seek only to stop illegal blocking of access and accept AGFC’s regulatory authority; not seeking to control management | AGFC: injunction would improperly control agency conduct and interfere with WMA management | Court: Rejected AGFC’s broad argument; injunctive relief may be available to stop illegal conduct |
| Whether the complaint adequately pleads a prescriptive easement or public-road claim | Hesleps: long open use since ~1936 and maintenance supports prescriptive-easement or public-road status | AGFC: Eddings and sovereign-immunity precedents limit challenges to AGFC property; complaint insufficient to establish county-road status | Court: Treated factual allegations as sufficient at motion-to-dismiss stage to permit prescriptive-easement theory to proceed |
| Whether the temporary injunction and order to provide a gate key complied with Rule 65 | Hesleps: injunction was a temporary, remedial ‘‘band-aid’’ restoring status quo and AGFC waived procedural objections | AGFC: order lacked required findings/reasons, failed to require bond, and was entered without evidence or findings | Court: Reversed injunction — order failed to state reasons (Rule 65(d)) and failed to require security (Rule 65(c)); remanded for further proceedings |
Key Cases Cited
- Ark. Game & Fish Comm’n v. Eddings, 378 S.W.3d 694 (Ark. 2011) (sovereign-immunity principles applied to AGFC property disputes)
- Ark. State Med. Bd. v. Byers, 521 S.W.3d 459 (Ark. 2017) (scope of sovereign-immunity exceptions for illegal or arbitrary agency actions)
- Ark. Lottery Comm’n v. Alpha Mktg., 428 S.W.3d 415 (Ark. 2013) (standard of review for denial of motion to dismiss on sovereign-immunity grounds)
- Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Assocs., 57 S.W.3d 187 (Ark. 2001) (elements of prescriptive easement in Arkansas)
- Arkansas State Game & Fish Comm’n v. Eubank, 512 S.W.2d 540 (Ark. 1974) (agency may be enjoined against pending ultra vires action)
- Ark. Game & Fish Comm’n v. Lindsey, 771 S.W.2d 769 (Ark. 1989) (agency cannot use authority to deny constitutional rights)
- Board of Trustees of Univ. of Ark. v. Andrews, 535 S.W.3d 616 (Ark. 2018) (discussion of the State’s constitutional immunity from suit)