Delancy v. State

151 S.W.3d 301, 356 Ark. 259, 2004 Ark. LEXIS 127
CourtSupreme Court of Arkansas
DecidedFebruary 26, 2004
DocketCR 03-615
StatusPublished
Cited by17 cases

This text of 151 S.W.3d 301 (Delancy v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delancy v. State, 151 S.W.3d 301, 356 Ark. 259, 2004 Ark. LEXIS 127 (Ark. 2004).

Opinion

Annabelle Clinton Imber, Justice.

The Chicot County Circuit Court issued a permanent injunction that required Appellant Stanley K. Delancy to remove a herd of elk under his control from the State of Arkansas or slaughter and dispose of them by December 31, 2002. On appeal, Mr. Delancy contends that there is insufficient evidence to support the injunction, and that the circuit court’s order constituted a taking that requires just compensation under Article 2, § 22 of the Arkansas Constitution. We find no error and affirm.

In July 2001, the Southeast Arkansas Levee District granted Mr. Delancy a permit to construct a game fence and two cattle gaps 1 on approximately 725 acres in Chicot County. At least one of the cattle gaps was located on the Mainline Mississippi River Levee. Although Mr. Delancy wanted to install gates at the cattle gap crossing on the levee, the permit issued by the Southeast Arkansas Levee District specifically provided that “no gates will be installed at cattle gap crossings.” Also in July 2001, Mr. Delancy submitted applications to the Arkansas Game and Fish Commission (AGFC) requesting a Wildlife Translocation Permit and Wildlife Commercial Breeder/Dealer Permit pursuant to AGFC Code § 15.01 et seq. (2004). Mr. Delancy was preparing to move a herd of elk he owned from property located in Louisiana to the enclosure he was constructing in Chicot County.

On August 10, 2001, Mr. Delancy met with wildlife officers from the AGFC who performed a preliminary inspection of the enclosure. The officers observed that the Mississippi River Levee had been “gated off’ to form the enclosure. They expressed concern about unrestricted public access and advised Mr. Delancy that the gates would have to be closed and locked. In fact, at that point the gates had not been approved by the levee district. The wildlife officers also notified Mr. Delancy that he could not bring any elk into his facility until he received all the proper permits from the AGFC. On August 17, 2001, one of the officers returned to Mr. Delaney’s enclosure while on routine patrol and discovered that the gates across the levee were unlocked and there were elk inside the enclosure. Mr. Delaney’s application to the AGFC had not yet been approved, and the elk had neither been properly-traced for disease, nor had they been inspected and vaccinated. In addition, the elk did not comply with AGFC’s disease certification requirements.

Ultimately, the Southeast Arkansas Levee District denied Mr. Delaney’s request to keep the gates on the levee road and had them removed. Shortly thereafter, on October 31, 2001, the AGFC denied Mr. Delaney’s application for a Wildlife Translocation Permit and Wildlife Commercial Breeder/Dealer Permit. The, AGFC advised him that he had ten days to remove the elk from the Arkansas enclosure. The elk were not removed, and on December 4, 2001, the Arkansas Livestock & Poultry Commission issued a quarantine order. The AGFC also issued citations for alleged violations of three AGFC Code provisions. Thereafter, the State of Arkansas filed a criminal information against Mr. Delancy charging him with possession of prohibited wildlife in violation of A.G.F.C. Code § 15.01, commercially breeding or distributing elk without a permit in violation of A.G.F.C. Code § 15.12, and transporting elk into Arkansas without a permit in violation of A.G.F.C. Code § 15.17. In conjunction with the information, the State sought an injunction to compel Mr. Delancy to remove the elk from the State of Arkansas, or, in the alternative, to authorize the State to remove and dispose of the elk.

During the bench trial on September 12, 2002, Mr. Delancy testified that he purchased the elk at various times from a seller in Louisiana. He admitted that he did not have the proper paper work on each elk and that one of the pregnant elk had escaped his enclosure. On November 1, 2002, the court entered an order finding Mr. Delancy guilty on all three counts, but deferred sentencing until December 3, 2002. The court also ruled that the State was entitled to a permanent injunction and ordered Mr. Delancy to remove forthwith from Arkansas all elk under his control, which matter would also be reviewed on December 3.

At that subsequent hearing, the court set the total fine for Mr. Delaney’s criminal violations at $3,000, or $1,000 per violation, and concluded that while Mr. Delancy had ample time to make suitable arrangements to remove the elk from the State, he had not done so. The court allowed Mr. Delancy until December 31, 2002, to have the elk transported to another state or slaughtered. If Mr. Delancy either failed to remove the elk or have them destroyed by December 31, the State would be authorized to enter the land where the elk were maintained and seize or slaughter the elk, with all costs of disposal and testing assessed against Mr. Delancy. The court’s written order was filed on December 20, 2002.

On December 23, 2002, Mr. Delancy filed a timely notice of appeal. On that same day, he filed a petition in this .court requesting a stay of the proceedings in the trial court. We denied the petition on December 27, 2003. The parties now stipulate that Mr. Delancy did indeed comply with the injunction and had the elk slaughtered on or before December 31, 2002. On appeal, Mr. Delancy does not challenge the criminal convictions, but instead raises two points of error. First, he asserts that the trial court erred in granting the injunction. Second, he suggests that the trial court erred in not awarding payment of just compensation under Article 2, § 22 of the Arkansas Constitution.

As a threshold matter, the State contends that Mr. Delaney’s argument with respect to the injunction is moot. As a general rule, the appellate courts of this state will not review issues that are moot. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which we will' not do. Id. Generally, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. This court has recognized two exceptions to the mootness doctrine. Id. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.

In this case, the circuit court initially granted an injunction on November 1, 2002, that required Mr. Delancy to remove the elk from the State of Arkansas and enjoined him from future importation of wildlife into Arkansas unless he obtained the appropriate permits from the Arkansas Game and Fish Commission. On December 3, 2002, after finding that Mr. Delancy had failed to remove the elk, the circuit court amplified its injunction to require Mr. Delancy to either remove the elk or have the elk slaughtered by December 31, 2002; otherwise, state officials would be authorized to seize and slaughter the elk at his expense. Mr. Delancy filed a petition in this court on December 23, 2003, seeking a stay of the proceedings in the circuit court. We denied that petition on December 27, 2003. The parties agree that on or before December 31, 2002, Mr. Delancy had the elk slaughtered.

Compliance with the circuit court’s injunction is a foregone conclusion.

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Bluebook (online)
151 S.W.3d 301, 356 Ark. 259, 2004 Ark. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delancy-v-state-ark-2004.