Natalie Hornbeak-Denton v. Gary Myers , 361 F. App'x 684 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0031n.06
No. 08-6382
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATALIE HORNBEAK-DENTON and ) FILED
ANNE HORNBEAK, ) Jan 19, 2010
) LEONARD GREEN, Clerk
Plaintiffs-Appellants, )
)
v. )
)
GARY T. MYERS, TWRA Executive Director, ) ON APPEAL FROM THE
individually and in his official capacity; JOHN C. ) UNITED STATES DISTRICT
GREGORY, TWRA Chief of Real Estate and ) COURT FOR THE WESTERN
Forestry, individually and in his official capacity; ) DISTRICT OF TENNESSEE
R. B. “BUDDY” BAIRD; MICHAEL CHASE; )
JOHNNY FORD COLEMAN; THOMAS H. )
EDWARDS; JAMES H. (JIM) FYKE; KEN ) OPINION
GIVENS; MIKE HAYES; GARY K. KIMSEY; )
BOYCE C. MAGLI; MITCHELL S. PARKS; )
TODD A. SHELTON; HUGH T. “SKIP” )
SIMONTON, JR.; DAYNA L. WELCH, )
Commissioners of TWRC, in their official )
capacities, )
)
Defendants-Appellees. )
____________________________________ )
Before: O’CONNOR, Associate Justice (Retired);* MOORE and COOK, Circuit Judges.
SANDRA DAY O’CONNOR, Associate Justice (Ret.). This case involves a property
dispute over 6.4 acres on the shoreline of Reelfoot Lake. Natalie Hornbeak-Denton and Anne
Hornbeak (Appellants) claim ownership of the land and have taken various measures consistent with
that claim (such as excluding the public from the property and soliciting buyers for portions of it).
*
The Honorable Sandra Day O’Connor, Associate Justice (Retired) of the Supreme Court of the
United States, sitting by designation.
Tennessee also asserts ownership of this 6.4-acre parcel of land. Officers of the Tennessee Wildlife
Resources Commission and Tennessee Wildlife Resources Agency (TWRA1 ) informed Appellants
of Tennessee’s ownership claim. They also threatened to bring a lawsuit against Appellants if they
continued to exert control over the disputed territory. Appellants struck first and filed their own §
1983 suit against TWRA, arguing that their First and Fourteenth Amendment rights were violated
when TWRA officials threatened to file a lawsuit against them. Appellants argue that the threat
constituted a final determination of property rights without due process of law and amounted to
retaliation for exercising their First Amendment rights to criticize TWRA. The district court granted
TWRA’s motion to dismiss on the pleadings, and we affirm.
I.
“The beauty of Reelfoot Lake is a natural resource unparalleled in its region.” Bunch v.
Hodel, 793 F.2d 129, 130 (6th Cir. 1986). Despite its beauty, Reelfoot Lake has been the source
of considerable conflict (both human and natural) since its beginning. The lake was formed in the
aftermath of the devastating New Madrid earthquakes in 1811 and 1812. A century later, it was the
focus of national headlines when violence broke out. One night in 1908, a group known as the
“Night Riders of Reelfoot Lake” killed a prominent attorney and left another for dead as a lingering
dispute between public and private property interests came to a head. Night Riders Slay Lawyers,
N.Y. TIMES, Oct. 21, 1908, at 1. Another of the Night Riders’ intended targets that night was a man
by the name of Judge Harris. Rider Defies Death, WASH . POST , Dec. 25, 1908, at 1 (“[T]he riders
proposed to ‘get’ Judge Harris to whip him and cut off his head.”). One year before the violence
1
Various individuals acted on behalf of TWRA and the Tennessee Wildlife Resources Commission;
for ease of reference we refer to these actors simply as “TWRA” throughout this opinion. Likewise,
we refer to “Appellants” collectively without regard to whether any particular action was taken by
Natalie Hornbeak-Denton or Anne Hornbeak.
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broke out over ownership of Reelfoot Lake—and three years before meeting his own suspicious
demise at the bottom of the lake, Friends Say Harris Was Poisoned, N.Y. TIMES, June 13, 1910, at
1—Judge Harris sold tracts of this embattled land to P.D. Hornbeak, Appellants’ ancestor and
predecessor in interest. Now, a century and several generations later, the dispute over that land
resurfaces.
It is undisputed that Appellants own a significant amount of land on the perimeter of
Reelfoot Lake, which has been in their family since the 1907 land transfer between Harris and P.D.
Hornbeak. What is disputed is who owns a particular 6.4-acre strip of land directly abutting the
lake. TWRA claims that Tennessee purchased this “buffer strip” through condemnation proceedings
in 1930, and that this state-owned strip now sits between Appellants’ property and the lake.
Appellants disagree. The disagreement apparently never came to light until June, 2006, when
TWRA sent a letter to Appellants demanding that they purchase a “lake use permit” for a dock
Appellants maintained on the disputed land. It is unclear from the pleadings if Appellants had
previously paid this permit fee since they built the dock in 2000. In any event, they paid it in 2006
under a letter of protest, complaining that similarly situated owners were not required to pay the
permit fee.
A few months later, in October, 2006, Appellants sent letters to adjacent property owners
claiming ownership of the disputed land and offering to sell portions of it. TWRA received notice
of the solicitation letters and sent a letter explaining to Appellants that they were claiming property
beyond their lots; as proof, TWRA attached a copy of a 1930 court order purporting to condemn the
disputed land in Tennessee’s favor. The letter explained that a TWRA official “would be glad to
sit down with [Appellants] at [their] convenience and go over the agency’s documentation and
would be very interested in reviewing [Appellants’] survey and any other documentation.” The
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letter also made clear that, “[i]n the meantime, it is the agency’s position that the buffer property is
state owned property” and that if Appellants were to “proceed with any action which affects state
property, the agency [was] prepared to proceed with any necessary legal actions in order to protect
it.” The letter requested that Appellants “notify any person to whom [they had] sent a form letter
claiming the state’s buffer property that [they did] not own the property.” In a follow-up phone call,
a TWRA official told Appellants that “the State had plenty of lawyers and would sue [them] for
fraud if [they] attempted to sell this land.”
Appellants then sent TWRA a letter on November 14, 2006, disputing the validity of the
alleged condemnation on the grounds that their family was never paid following the condemnation
proceeding. In May, 2007, Appellants posted signs on the disputed land, reading: “Private Property:
Hunting, fishing, trapping or trespassing for any purpose is strictly forbidden; violators will be
prosecuted.” TWRA sent yet another letter in June, 2007, claiming to have uncovered proof of
payment for the 1930 condemnation and attaching a certified copy of the receipt proving the
disputed land was purchased by Tennessee. TWRA again demanded that Appellants cease their
claims to the disputed property and refrain from posting signs or attempting to sell the land. The
letter concluded:
If, after reviewing the enclosed documentation, you feel that you still have a claim
to this State land and you are going to proceed with your attempt to sell, lease, or
deny public access to property owned by the State, please send the name and address
of your attorney to me. The State plans to proceed with any legal action deemed
appropriate for the situation directly with your legal representative.
At that point, letters gave way to litigation.
Appellants filed a § 1983 suit against various TWRA officials. They alleged abridgments
of “specific property rights without due process” in violation of the Fourteenth Amendment, and
they argued that TWRA’s threats to sue constituted government retaliation for Appellants’ earlier
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criticisms of TWRA’s permit system, in violation of their First Amendment rights. The district
court granted TWRA’s motion to dismiss. It held that the Fourteenth Amendment due process claim
was unripe because the letters were not a final decision purporting to divest Appellants of property
rights, but merely notified Appellants that legal proceedings would be necessary if no accord could
be reached. It also rejected the First Amendment argument on the basis that TWRA did not take any
adverse action against them sufficient to sustain a retaliation claim. Appellants now dispute these
two rulings on appeal.
Shortly after the notice of appeal was filed in this case, Tennessee filed a state-court action
to settle the property dispute; it is currently pending in the Chancery Court for Obion County.
Appellants moved to hold this appeal in abeyance pending the resolution of that action, but we
declined to do so without comment. See Clerk’s Order of March 17, 2009. We do not reconsider
staying the appeal because Appellants’ constitutional claims do not depend upon who ultimately
owns the disputed property.
II.
Assuming all of Appellants’ allegations are true, as we must in this posture, they have
alleged nothing more than a run-of-the-mill property dispute where both sides assert conflicting
claims to a single parcel of land. They do not allege any bad faith on the part of TWRA in asserting
its claims. Appellants do not have a cognizable Fourteenth Amendment due process claim because
they have not been deprived of anything. U.S. CONST . amend. XIV, § 1 (“nor shall any State
deprive any person of life, liberty, or property, without due process of law”). They do not have a
valid First Amendment retaliation claim because no adverse action was taken against them. See
Thaddeus-X v. Blatter, 175 F.3d 378, 386–87 (6th Cir. 1999) (en banc) (to establish First
Amendment retaliation claim, plaintiff must show “that the plaintiff engaged in conduct protected
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by the Constitution or by statute, the defendant took an adverse action against the plaintiff, and this
adverse action was taken (at least in part) because of the protected conduct”). What they do have
is a disputed claim to property; that they did not see fit to avail themselves of state-court processes
to resolve this dispute does not somehow turn it into a constitutional case. The parties dispute the
exact type of state-court proceeding available to Appellants, but we have no reason to consider those
arguments where Appellants’ complaint did not allege the absence of adequate state-court processes
to resolve this land dispute had they chosen to avail themselves of those remedies.
We first address Appellants’ Fourteenth Amendment due process claim. The district court
interpreted Appellants’ claim as the equivalent of a claim for an uncompensated taking of land.
Dist. Ct. Order at 10 (Oct. 17, 2008) (“[T]he [Appellants’] allegations, though couched in terms of
procedural due process, are practically indistinguishable from a claim for governmental taking of
property without just compensation.”). So understood, any takings claim in this case is unripe
because Appellants have never sought just compensation for any deprivation of property. See U.S.
CONST . amend V (“[N]or shall private property be taken for public use, without just compensation”)
(emphasis added); Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172, 186 (1985) (“Because respondent has not yet . . . utilized the procedures Tennessee
provides for obtaining just compensation, respondent's claim is not ripe.”).
But Appellants vehemently reject this interpretation of their claim. “The State has not taken
their property,” they argue, but “has threatened them with legal action if they do not cease claiming
the property.” Appellant Br. at 26. In this attempt to avoid a finding of unripeness, Appellants
create a more fundamental problem with their due process claim: it appears they have not been
deprived of anything at all. The Fourteenth Amendment only bars deprivations “of life, liberty, or
property, without due process of law,” it does not create a freestanding right to process absent such
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a deprivation. U.S. CONST . amend. XIV, § 1. In attempting to articulate an injury unrelated to a
taking of property, Appellants rely primarily on Nasierowski Bros. Inv. Co. v. City of Sterling
Heights, 949 F.2d 890 (6th Cir. 1991). In Nasierowski this court noted that “infirm process is an
injury in itself,” and “a procedural due process claim is instantly cognizable in federal court without
requiring a final decision . . . from the responsible municipal agency.” Id. at 894. But even an
immediately cognizable procedural infirmity must result “in the instantaneous infliction of a
concrete injury” before there is a claim, id. at 895 n.6, and we can discern no such injury here.
More fundamentally, and setting ripeness aside, Appellants did not state a procedural due
process claim because their undisputed allegations amount to nothing more than TWRA making a
threat of process. TWRA asserted its property rights, indicated a willingness to review any
documentation Appellants had in support of their conflicting claim, and ultimately stated its
willingness to defend its rights through proper legal channels if the parties could not settle their
dispute. Appellants essentially assert TWRA committed a due process violation by making a threat
of legal process. Appellants argue that TWRA’s unequivocal assertion of property rights constituted
a “final decision” without due process; but a mere assertion is not a final decision, even when stated
in unequivocal terms. Government actors, like all people, are free to assert any good-faith legal
claims they might have. The government does not deprive somebody of due process when making
such assertions, especially where the assertions are accompanied by specific references to further
legal proceedings to settle any dispute.
The consequence of Appellants’ approach, as they acknowledged at oral argument, is that
a state can never assert a right or threaten to institute court proceedings to defend its legitimate
interests, but must actually institute court proceedings as a first recourse. The result is as untenable
as the argument. We have never endorsed Appellants’ view that a state actor’s first option must
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always be to litigate its property claims, and we refuse to do so now. To the extent Appellants
survive a ripeness challenge by disavowing a takings claim we discern no independent due process
violation from the face of Appellants’ complaint.
We now turn to Appellants’ First Amendment retaliation claim. This claim is also based on
TWRA’s threats to sue Appellants if they did not cease their attempts to sell the land in question.
Appellants allege these threats were made in retaliation for their earlier criticisms of TWRA’s
methods for allocating lake use permits. Three elements are required to sustain a First Amendment
retaliation claim:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by the plaintiff's
protected conduct.
Thaddeus-X, 175 F.3d at 394.
Appellants satisfy the first requirement, as their criticisms of TWRA’s permit system is
protected speech under the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254,
276 (1964) (holding restraints “upon criticism of government and public officials . . . inconsistent
with the First Amendment”). And we can assume for the purposes of this appeal that, if an adverse
action was taken against Appellants, it was motivated at least in part by this constitutionally
protected criticism. See Ctr. for Bio-Ethical Reform v. City of Springboro, 477 F.3d 807, 823 (6th
Cir. 2007) (“[C]laims involving proof of a defendant’s intent seldom lend themselves to summary
disposition.”) (internal quotation marks omitted). Therefore, the sole question is whether TWRA’s
threats were sufficiently “adverse” to give rise to a retaliation claim. They were not.
The only adverse actions Appellants alleged were TWRA’s threats of legal process to defend
its good-faith claims to the disputed property. Appellants stress that on one occasion, there was a
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verbal threat not to simply settle the property dispute, but to sue Appellants “for fraud if [they]
attempted to sell this land.” We have stated that “[m]ere threats . . . are generally not sufficient to
satisfy the adverse action requirement.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir.
2004). This is not a hard and fast rule, as there are no doubt stand-alone threats that would deter a
person of ordinary firmness from exercising their protected rights. We do not apply the adverse
action inquiry mechanically, as “each step of the analysis is flexible enough to take into account the
various contexts in which retaliation claims might be made.” Thaddeus-X, 175 F.3d at 395. But in
the context of this case, where the alleged threats were made by repeated offers and attempts to
resolve the underlying property dispute, we have little doubt that they would not deter a person of
ordinary firmness from criticizing TWRA’s permit process. We adhere to the general rule that bare
threats are insufficient to constitute adverse actions, and uphold the district court’s dismissal of
Appellants’ First Amendment retaliation claim.
III.
We AFFIRM the district court’s judgment.
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