Chester Short and JLS Farm Partnership v. Dr. Sam Polles, In His Official Capacity as Executive Director of The Mississippi Department of Wildlife, Fisheries and Parks and The Mississippi Department of Wildlife, Fisheries and Parks

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00607-COA

CHESTER SHORT AND JLS FARM APPELLANTS
PARTNERSHIP

v.

DR. SAM POLLES, IN HIS OFFICIAL APPELLEES
CAPACITY AS EXECUTIVE DIRECTOR OF
THE MISSISSIPPI DEPARTMENT OF
WILDLIFE, FISHERIES AND PARKS AND THE
MISSISSIPPI DEPARTMENT OF WILDLIFE,
FISHERIES AND PARKS

DATE OF JUDGMENT: 04/26/2023
TRIAL JUDGE: HON. JESS H. DICKINSON
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: SAMUEL L. BEGLEY
PHILIP W. GAINES
ATTORNEYS FOR APPELLEES: ALAN M. PURDIE
T. HUNT COLE JR.
DOUGLAS DREW MALONE
SAMUEL PHILIP GOFF
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 04/08/2025
MOTION FOR REHEARING FILED:

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. A farmer received an animal control permit from an agency to rid his fields of deer

eating his soybean crops. The permit was later revoked due to high water conditions. The

farmer then sought and received a second permit, but the agency imposed a limitation that

he could kill “does only.”
¶2. The farmer chose not to use this second permit. Instead, he sued the agency. He

claimed the revocation of the first permit and the “does only” limitation in the second were

arbitrary and capricious. The trial court determined that the permit decisions were within the

agency’s power, so the agency was immune from liability. The farmer’s complaint was

dismissed with prejudice. After review, we affirm the trial court’s dismissal.

FACTS AND PROCEDURAL HISTORY

¶3. Chester Short is a soybean farmer in the Mississippi Delta. In 2017, Short leased three

adjacent tracts of land in Washington and Bolivar Counties for farming operations, as he had

done for the past 17 years.1 His farmland is located along the Mississippi River and borders

a levee, heavily wooded property, and two hunting clubs.2 The land between the River and

1
The trial judge described Short as “operating through JLS Farm Partnership,” which
is a farming company he used, and we draw no distinction.
2
Two deer hunting clubs, “27 Break” and “Black Bayou Hunting Club” were inside
the Mississippi River levee and owned property close to Short’s farming land. Short filed
two other separate unsuccessful lawsuits against the hunting clubs, which are interrelated
to the present appeal.
We addressed his first action in Short v. Break Land Co. LLC, No.
2022-CA-01180-COA, 2024 WL 4354694 (Miss. Ct. App. Oct. 1, 2024), reh’g denied
(Miss. Ct. App. Feb. 11, 2025), petition for cert. filed (Miss. Mar. 11, 2025), where Short
sued Break Land Company, raising claims related to the suspension or revocation of the
Shorts’ membership with the Break Hunting Club. Id. at *1 (¶2) This Court affirmed the
dismissal of the complaint, finding he failed to allege any actionable claims. Id. at *8 (¶31).
In the second appeal, JLS Farm P’ship v. ‘27 Break Hunting Club Inc., No.
2023-CA-00434-COA, 2025 WL 312500 (Miss. Ct. App. Jan. 28, 2025), mot. for reh’g filed
(Miss. Ct. App. Feb. 25, 2025), Short sued ‘27 Break Hunting Club for issues related to a
lease agreement between Short and the owners of the hunting land. Id. at *1 (¶1). This Court
affirmed the trial court’s grant of summary judgment in favor of ‘27 Break Hunting Club,
finding that the deposition excerpts, pleadings, and other documents failed to show a
genuine issue of material fact. Id. at *7 (¶32).

2
the levee is inhabited by a large population of deer.

¶4. In early April 2017, Short planted soybeans on each of his fields. As the crops started

to grow, deer came along and ate the emerging stems and leaves. This resulted in Short

replanting soybeans at the end of April and again in May 2017.

¶5. At the end of May, because of the pattern and severity of damage to his soybean

fields, Short filed an application with the Mississippi Department of Wildlife, Fisheries and

Parks requesting a permit to kill the deer eating his crops. MDWFP issued him a thirty-day

animal control permit on May 22, 2017, giving him the opportunity to kill an unlimited

quantity of deer in his fields.

¶6. Over the next couple of days, Colonel Steve Adcock, MDWFP’s chief enforcement

officer, received complaints from “people calling in about deer being shot” and “piled up all

along the road” by Short’s property. Colonel Adcock sent officers to inspect Short’s property

on May 29, 2017. The officers discovered numerous decomposing deer carcasses scattered

throughout the crop fields but did not see any deer piled up on the roadway.

¶7. The officers instructed Short to fill out a follow-up report, which was then submitted

to Colonel Adcock. In the report, Short recounted observing about 175 deer in his fields on

the first night and about 200 deer again the second night. He further reported killing 10 deer

the first night and another 10 or 11 deer the second night.

¶8. Colonel Adcock became alarmed when he read the report and learned of the unusually

large number of deer observed on Short’s land. He became concerned that “[e]ither the

3
permit holder greatly exaggerated what he was seeing, or we had something else causing that

many deer to be in that field.” Based on his suspicions, Colonel Adcock obtained the exact

location of Short’s farmland, “pulled the GPS coordinates and pulled it up on the map[.]” He

learned “it was right across the levee from the Mississippi River.” Then using the longitude

and latitude coordinates of the property, he researched the gauges along the River and found

that the Greenville, Mississippi gauge was closest in proximity to Short’s farm. Colonel

Adcock reviewed the data from the Greenville gauge and discovered that the River level was

above flood stage at that time and had been for over two weeks. He concluded that the area

near Short’s farmland was experiencing a “major flood event and that basically is what

pushed those deer out.”

¶9. After making this discovery, Colonel Adcock found it necessary to enforce a high-

water statute that made it unlawful to kill animals forced out of their natural habitat by high

water conditions. Consequently, he had Short’s animal control permit revoked on May 30,

2017. That same day, MDWFP officers informed Short that he was not allowed to shoot any

more deer, though the officer did not give him a reason for this order. Short did not hear

anything further from the agency about his animal control permit.

¶10. On June 16, 2017, Short filed a complaint against MDWFP requesting a temporary

restraining order on the agency’s revocation of his animal control permit. His complaint also

sought a preliminary and permanent injunction. The chancery court granted a temporary

restraining order that same day, temporarily restraining and enjoining MDWFP from

4
suspending or terminating Short’s permit. The injunction was set for a hearing two weeks

later. At the hearing, counsel informed the chancellor that the parties had reached a

temporary resolution of the matter.3

¶11. Under their agreement, Short would be allowed to re-apply for an animal control

permit.4 But Short would be required to fill out separate applications for each of the three

leased tracts of land, instead of just one all-encompassing application like he previously filled

out for the first permit. He was also told he had to get the applications signed by the owners

of each leased tract of land to show he had their permission.

¶12. Short succeeded in getting the owners of two of the tracts to sign off on his

application. However, the owner of the third tract refused to sign in agreement after receiving

numerous complaints from nearby hunting club members concerned about Short’s actions

when he had the first permit. Short submitted both of the signed applications. In turn,

MDWFP issued him two animal control permits, but this second set of permits contained two

restrictions: “permit for 2 weeks” and “does only.”5

3
As of June 2017, Short’s complaint for an injunction remained pending in the Hinds
County Chancery Court. But in September 2017, MDWFP and Dr. Polles moved to transfer
venue to the circuit court or dismiss.
4
Therefore, the chancery court did not have an opportunity to rule on the merits of
Short’s request for a preliminary and permanent injunction.
5
Notably, the permit also contains the same form language as the first round that
states, “This permit will be issued for one (1) month[.]” But below that statement, there is
a “Restrictions” section that was filled out by the department to include the time limit and
does only notation.

5
¶13. Although Short was granted these two animal control permits, he chose not to use

them and did not report killing any more deer in his fields. According to Short, the second

set of permits was useless since he could not rid his fields of bucks too. He also believed the

permit limitations put him at risk for criminal consequences because it was difficult to

distinguish does and bucks at night.

¶14. Frustrated by the application requirements and permit limitations, Short took legal

action against MDWFP and its executive director, Dr. Sam Polles.

¶15. In December 2017, Short filed his second amended complaint in the Hinds County

Chancery Court. He asserted eight claims for relief in the lower court. Counts I and II were

due process claims alleging violations of his right to protect his property by revocation and

limitation of permits; counts III and IV requested declaratory judgments for a wildlife statute

used to revoke his permit and for permit application procedures; and count V was a tort claim

seeking compensatory damages for MDWFP’s actions related to animal control permits.6 The

Department then filed a motion to dismiss or to transfer the second amended complaint to

circuit court.

¶16. Seven months later, the chancery court entered an order transferring the case to the

Hinds County Circuit Court, First Judicial District. The case was assigned to a circuit judge

over three-and-a-half years later in January 2022, and a bench trial was finally held in

6
Counts VI, VII, and VIII asserted in Short’s second amended complaint are claims
related to private actors, which are not relevant for the purposes of this appeal.

6
October 2022. Subsequently, on the trial judge’s instructions, the parties each submitted their

proposed findings of fact and conclusions of law.

¶17. In April 2023, the trial court entered an order with its findings of fact and conclusions

of law and a separate order of its final judgment. The trial judge determined that each of

Short’s claims arose from and were related to permits from MDWFP that were within the

agency’s discretion to issue and revoke. Accordingly, the agency was found immune from

liability for Short’s tort claims under the permitting exemption and discretionary-function

exemptions. Therefore, the trial court ruled in favor of MDWFP and Dr. Polles and dismissed

Short’s complaint with prejudice.

¶18. Aggrieved, Short appeals the trial court’s order of dismissal.

STANDARD OF REVIEW

¶19. “Cases brought under the tort claims act are subject to a bench trial, with the judge

sitting as both the finder of fact and law.” Phillips v. City of Oxford, 368 So. 3d 317, 323

(¶21) (Miss. 2023) (citing Miss. Code Ann. § 11-46-13(1) (Rev. 2019)). The trial judge’s

“determination that a governmental entity is immune under the MTCA is de novo.” Towns

v. Panola Cnty. Bd. of Supervisors, 357 So. 3d 1062, 1070 (¶18) (Miss. Ct. App. 2022)

(quoting Smith ex rel. Smith v. Leake Cnty. Sch. Dist., 195 So. 3d 771, 774 (¶8) (Miss.

2016)). But the court’s factual findings will not be disturbed “following a bench trial unless

the findings ‘are manifestly wrong, clearly erroneous, or an erroneous legal standard was

applied.’” Id. at 1070 (¶17) (quoting Miss. Dep’t of Wildlife, Fisheries & Parks v. Webb, 248

7
So. 3d 772, 776 (¶4) (Miss. 2018)).

DISCUSSION

¶20. On appeal, Short claims the trial court erred (a) by finding that the revocation of his

first permit was required by the high-water statute and was not arbitrary and capricious; (b)

by finding Colonel Adcock’s “does only” restriction was not arbitrary and capricious; (c) by

applying the discretionary-function immunity exemption to his claims; and (d) by not finding

a violation of his rights to due process and to protect his property based on the revocation and

restriction of his animal control permits.

¶21. While Short asserts a myriad of arguments on appeal, they all focus on the permitting

process and center around MDWFP’s revocation and limitation of his animal control permits.

Short’s primary argument insists the Department should not have withdrawn his original

permit based on the water level of the Mississippi River, nor should it have limited his

second permit to “does only,” rendering the permit “useless.” Ultimately, Short’s claims are

dependent on whether MDWFP’s actions were arbitrary and capricious.

¶22. “[A]rbitrary and capricious” has been defined as the “characterization of a decision

or action taken by an administrative agency or inferior court meaning willful and

unreasonable action without consideration or in disregard of facts or law or without

determining principle.’” Lowe v. Lowndes Cnty. Bldg. Inspection Dep’t, 760 So. 2d 711, 713

(¶10) (Miss. 2000) (quoting Arbitrary and capricious, Black’s Law Dictionary 105 (6th ed.

1990)). A decision that “is supported by substantial evidence cannot be arbitrary and

8
capricious.” Titan Tire of Natchez Inc. v. Miss. Comm’n on Env’t Quality, 891 So. 2d 195,

201 (¶19) (Miss. 2004) (internal quotation marks omitted).

¶23. As for the practical application, “[a]n administrative act is arbitrary and capricious if

the agency ‘entirely failed to consider an important aspect of the problem, or offered an

explanation for its decision that runs counter to the evidence before the agency or is so

implausible that it could not be ascribed to a difference in view or the product of any agency

expertise.’” City of Tupelo v. McMillin, 192 So. 3d 948, 954-55 (¶20) (Miss. 2016) (quoting

Lowe, 760 So. 2d at 714 (¶12)). Furthermore, an act may be deemed “per se arbitrary and

capricious” where the conduct is based on “the failure of an agency to abide by its rules[.]”

Id. (quoting Lowe, 760 So. 2d at 714 (¶12)).

I. Revoking the first permit due to high water conditions was not
arbitrary and capricious.

¶24. Short claims the Department’s actions were arbitrary and capricious because Colonel

Adcock revoked his original permit based on the “irrelevant factor” of “the high water

provision found in Section 49-7-77[.]” In particular, Short alleges the statute establishing

animal control permits7 is a “mandatory directive” to issue permits to farmers and “is not

subject to the high-water provision.”

¶25. Our Legislature has expressed that “[h]unting, trapping and fishing are vital parts of

the heritage of the State of Mississippi.” Miss. Code Ann. § 49-7-1.1 (Rev. 2012). As such,

7
Miss. Code Ann. § 49-1-39 (Rev. 2012).

9
“[i]t is, and shall be, the public policy of this state to promote hunting, trapping and fishing

and other outdoor recreational opportunities and to preserve these activities for all

generations to come.” Id.

¶26. Based on these principles, the Legislature created the Mississippi Department of

Wildlife, Fisheries and Parks. Miss. Code Ann. § 49-4-1 (Rev. 2012). The Legislature

invested MDWFP with the “powers and duties . . . [t]o conserve, manage, develop and

protect the wildlife of the State of Mississippi.” Miss. Code Ann. § 49-4-8(a) (Rev. 2012).

The Legislature granted the agency the authority to “regulate hunting, trapping and fishing

activities in the State of Mississippi.” Id. § 49-7-1.1.

¶27. The way MDWFP regulates these activities is through permits and licenses. Our

Legislature instructed that MDWFP “shall have the power and authority to issue all licenses

and permits under the jurisdiction of the department.” Miss. Code Ann. § 49-4-4(6) (Supp.

2024) (emphasis added). This includes “powers . . . [to] [p]rescribe the form and type . . . .”

Miss. Code Ann. § 49-4-39(2)(a) (Supp. 2023).

¶28. Pursuant to section 49-1-39, the statute governing animal control permits, the

MDWFP “may issue permits to kill any species of animals . . . which may become injurious

to agricultural or other interests in any particular community.”8

8
The trial court’s order and both parties’ appellate briefs also reference section
49-7-31(4), titled “Open season on deer,” which provides that MDWFP “may provide a
special permit for the harvesting of deer when they are depredating and destroying crops.
The department shall supervise the harvesting and provide for the salvaging of the meat of
the animals.” Miss. Code Ann. § 49-7-31(4) (Supp. 2025) (emphasis added). Because the

10
¶29. Looking at the language of the statute, the Legislature explicitly used the word “may”

when giving MDWFP authority to issue animal control permits. “[A] basic tenet of statutory

construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Wallace v. State, 360

So. 3d 231, 237 (¶22) (Miss. 2023) (quoting Khurana v. Miss. Dep’t of Revenue, 85 So. 3d

851, 854 (¶9) (Miss. 2012)). Therefore, this statute is clearly discretionary—meaning

MDWFP has discretion to decide whether to issue an animal control permit.9

¶30. Our Legislature has also enacted a statute specifically to protect “[g]ame or fur-

bearing animals . . . during periods of high water[.]” Miss. Code Ann. § 49-7-77 (Rev. 2012).

The language of the high-water statute in section 49-7-77 commands that “it shall be

season was not open at the time Short’s permitting qualms occurred and because Short has
not asserted any claim based on harvesting the deer in his fields, this statute does not apply
for the purposes of this appeal.
Nonetheless, section 49-7-31(4) goes on to state that MDWFP “may authorize the
department to assist any farmer in this state, who sustains crop damage by wildlife, in
eradication of the problem wildlife.” To the extent each party relies on this portion of the
statute, we note the general intent of the statute is to grant MDWFP discretion to assist
farmers when their crops are being destroyed by deer.
9
Additionally, the statute provides that these types of animal control permits can be
issued if the animals are “injurious to agricultural or other interests in any particular
community[.]” Miss. Code Ann. § 49-1-39. When interpreting statutes, “[w]e do not ‘decide
what a statute should provide, but . . . determine what it does provide.’” Legislature of State
v. Shipman, 170 So. 3d 1211, 1215 (¶14) (Miss. 2015) (quoting Palermo v. LifeLink Found.
Inc., 152 So. 3d 1099, 1105 (¶13) (Miss. 2014)). We will “adopt that interpretation which
will meet the true meaning of the Legislature.” Id. (quoting Scaggs v. GPCH–GP Inc., 931
So. 2d 1274, 1276 (¶10) (Miss. 2006)). Based on the “or other interests” catch-all, the statute
does not just protect farming, but it also safeguards “other interests” that the animal may be
injuring. Contrary to Short’s belief, section 49-1-39 is not strictly an agricultural statute.
Furthermore, there is nothing written in the statute that requires or imposes a duty on
MDWFP to issue these kinds of permits to farmers.

11
unlawful to hunt, trap, take, frighten, or kill game or fur-bearing animals forced out of their

natural habitat by high water . . . until they have been permitted to return to such habitat by

recession of such water[.]” Id. (emphasis added).

¶31. To reiterate, “the Legislature’s statutory use of the term ‘shall’ connotes a mandatory

requirement.” Wallace, 360 So. 3d at 237 (¶22) (quoting Tallahatchie Gen. Hosp. v. Howe,

49 So. 3d 86, 92 (¶17) (Miss. 2010)). The high-water statute specifically uses the term

“shall,” making it clear that this statute is a mandatory legislative directive. By virtue of this

mandate, MDWFP cannot allow the killing of game animals during high water conditions.

¶32. Therefore, the Department was required to ensure that Short complied with this statute

and did not unlawfully kill any deer while the water was high and when the deer were forced

to migrate onto his property. This conclusion is further bolstered by a joint reading of the

statutes.

¶33. Short contends that the animal control permit statute “is not subject to the high-water

provision,” so the high-water statute was irrelevant.10 He specifically insists that the terms

of section 49-1-39 “do[] not contain an express ‘high water’ exception for issuing or

rescinding such a permit[.]” According to Short, as a result, the permit statute “imposes a

duty” on MDWFP to issue a “permit to any farmer who can show” the “deer are injurious to

his agricultural operations, without regard to high water levels on the Mississippi River.”

¶34. “When the Legislature enacts multiple statutes in pari materia—that is, upon the same

10
See Miss. Code Ann. § 49-1-39; Id. § 49-7-77.

12
subject—this Court generally will read the statutes together to interpret them harmoniously.”

Brown v. State, 102 So. 3d 1087, 1092 (¶23) (Miss. 2012). “[S]tatutes dealing with the same

subject matter should be construed to give harmony to each.” Wallace, 360 So. 3d at 236

(¶19). Where “several different sections of a Code deal with the same subject-matter, these

sections are to be so interpreted . . . that they shall each be made to fit into the general and

dominant policy of the particular system of which they are a part.” Id. at 237 (¶19) (quoting

Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900, 901 (1931)).

¶35. Both the animal-control statute (section 49-1-39) and the high-water statute (section

49-7-77) deal with the subject matter of wildlife and regulations for killing animals. They

are also both enforced under the purview of MDWFP. Accordingly, precedent instructs these

statutes to be construed as in pari materia and interpreted together.

¶36. In doing so, we find that animal control permits are subject to the safeguards of the

high-water statute. The high-water statute clearly and unambiguously makes it wholly

unlawful to kill any deer that have been forced out of their usual territory by a high-water

event. Miss. Code Ann. § 49-7-77. The shooting of deer—for any and all reasons—is only

allowed to resume once the high water recedes and when the deer are able to return to their

usual territory. Accordingly, animal control permits are restrained during high water

conditions because the high-water statute prohibits all killings, without regard to the reason.11

11
Furthermore, section 49-7-77 does not expressly limit its application to just
“recreational” hunting, as Short insists.

13
¶37. Once Colonel Adcock learned of the existing high water conditions, he took steps to

enforce the clear statutory directives of section 49-7-77. More specifically, he revoked

Short’s first animal control permit to prevent Short from unlawfully killing any deer while

the water was high and to ensure compliance with the statute. In a previous case, our

Supreme Court “determined that the Mississippi Commission on Environmental Quality

acted arbitrarily and capriciously by failing to follow clear statutory directives[.]” Lowe, 760

So. 2d at 713 (¶12) (emphasis added) (citing Miss. Dep’t of Env’t Quality v. Weems, 653 So.

2d 266 (Miss.1995)). In contrast to Lowe, Colonel Adcock acted in accordance with clear

statutory directives.

¶38. As a result, MDWFP’s revocation of Short’s original animal control permit was not

arbitrary and capricious. Indeed, Colonel Adcock was required to take a high-water event or

conditions into consideration when evaluating the appropriateness of Short’s animal control

permit.

¶39. In the alternative, Short claims the revocation of his permit was arbitrary and

capricious due to a lack of evidence supporting MDWFP’s decision. He alleges the

evidentiary record shows “there was no occurrence of ‘high water’ on the Mississippi River

on May 30, 2017[,]” when his permit was rescinded. Short also asserts there was no evidence

supporting the Department’s “mistaken determination” that deer were forced onto his fields

by high river levels.

¶40. At trial, Colonel Adcock testified that he retrieved reports from the Mississippi River

14
gauge nearest to Short’s property for May 2017. He explained that he used mapping software

and looked up data from the River gauge nearest to Short’s property, which was the gauge

in Greenville. He testified that he reviewed the reports and found the level of the River was

well over flood stage on May 29, 2017, and during the two previous weeks too. Colonel

Adcock explained that this indicated the River that was in close proximity to Short’s farm

was experiencing a high-water event.

¶41. MDWFP entered a chart into evidence at trial titled, “Historic Data For Mississippi

River @ Greenville, MS,” which contains a list of the river level measurements spanning

from April 1, 2017, through July 31, 2017. A notation at the top of the “Historic Data” chart

specifies the flood stage for this particular gauge is “48 ft.” On May 30, 2017, the date that

Short’s first permit was revoked, the river was measured at 51.89 feet, which was over three

feet above flood stage. This evaluation alone is evidence that the permit revocation was not

an arbitrary and capricious decision.

¶42. Short also raises the additional argument on appeal that MDWFP incorrectly used the

Greenville gauge and should have used the Helena, Arkansas gauge instead. He bases this

argument on a 2016 report from the Department that specified certain areas were to use

certain gauges. However, Colonel Adcock testified at trial that the 2016 report was “a special

public notice” from “the [20]16 deer hunting season,” which was only drafted “to conduct

rolling opening and closure” of hunting season. “The purpose for it was we were trying to

give everybody as much opportunity as they could during hunting season, but also to abide

15
by 49-7-77 which states you cannot hunt any game animal that is affected by flood, high

water or fire.” Accordingly, we find Short’s argument regarding the use of the Helena gauge

instead of the Greenville gauge is without merit.

¶43. Colonel Adcock further testified that the discovery of the flooded River led him to

conclude that the large number of deer on Short’s property were forced out of their natural

habitat due to the high water. Based on this conclusion, the prohibitive terms of section 49-7-

77 were invoked. Colonel Adcock recounted that he understood that statute to speak directly

to a required revocation of Short’s permit to halt the unlawful shooting of deer given the high

water conditions.

¶44. Based on a review of the record, substantial evidence supported the agency’s

conclusion that a high-water event was occurring on the river near Short’s farm. Accordingly,

we find that MDWFP’s decision to revoke Short’s original permit was not arbitrary and

capricious because the high water conditions made it unlawful for Short to kill any deer at

that time.

II. Limiting the second permit to “does only” for safety reasons was
not arbitrary and capricious.

¶45. Secondly, Short claims MDWFP’s implementation of a “does only” limitation in his

second set of animal control permits was arbitrary and capricious. He alleges he was the only

applicant to receive this restriction and that there was no legitimate basis for limiting the deer

he could shoot to “does only.” Instead, Short insists the limitation was motivated by political

pressure—specifically, that it “is solely the product of a suggestion from a member of an

16
adjacent hunting club to the Wildlife Commissioner.” Short further argues he had difficulty

distinguishing between bucks and does at night, so the limitation made him susceptible to

criminal consequences.12

¶46. At trial, Colonel Adcock explained that safety concerns and precautions were

MDWFP’s basis for adding a “does only” restriction to the animal control permits. He stated,

“This was something simply that was done as a safety issue to make people take an extra

moment before they get out there and just start shooting and pulling the trigger.” He also

recounted that “some of these areas are close to towns. Some of them had people that lived

next to that field,” and the does only restriction “gives us an opportunity for that shooter to

take an extra second before he pulls a trigger on that animal to make sure of his target and

what’s beyond it.”

¶47. Furthermore, Colonel Adcock’s trial testimony dispelled Short’s claims that he was

the first and only person to receive a permit with this “does only” restriction. He informed

the trial court, “[W]e’ve had no complaints from any farmers about the does only process.

And we’re talking about 300 plus permits per year.” In support of his testimony, MDWFP

submitted copies of animal control permits issued to two other people in June 2017 that

included a “does only” restriction—one of them was issued before Short’s second permit,

12
The trial court’s order stated, “The Commission’s revocation of Short’s first permit,
and the ‘does only’ restriction on his second permit were motivated, in part, by ‘political
pressure’ that was generated by the reports and complaints from members of the 27 Break
Hunting Club and the Black Bayou Hunting Club. But, the court also finds that the political
pressure was not the Commission’s primary motivation for its decisions.”

17
and one was issued at the same time as Short’s second permit.

¶48. Colonel Adcock also testified that all animal control permits issued since June 2017

have included that same “does only” restriction. But he elaborated, “I would like to clarify

that there is one instance where we did not put a does only restriction on that. . . . That’s on

airports, federal airports and city airports.” He continued, “[A] Cessna doesn’t care whether

it’s got antlers or not. That’s a safety issue. . . . [T]hey kill anything, any animal whatsoever

on that runway.”

¶49. Lastly, in response to Short’s argument that it’s difficult to distinguish a doe from a

buck at night, Colonel Adcock testified, “the argument you can’t tell a difference in a doe

and a buck in May and June is absolutely crazy. . . . I shot deer on many farms for years when

I first came on as an officer because we were the ones that did it. I didn’t have any trouble

with it.”

¶50. After reviewing the record, we cannot find that MDWFP “offered an explanation for

its decision that runs counter to the evidence before the agency or is so implausible that it

could not be ascribed to a difference in view or the product of any agency expertise.” City

of Tupelo, 192 So. 3d at 955 (¶20) (quoting Lowe, 760 So. 2d at 714 (¶12)). There is

substantial evidence supporting MDWFP’s decision to implement the “does only” restriction

out of safety concerns. Consequently, we find the “does only” limitation in Short’s second-

issued permits was not arbitrary and capricious.

III. MDWFP and its officers were immune from liability for their
permitting decisions.

18
¶51. On appeal, Short alleges MDWFP is not immune from liability for his claims because

Colonel Adcock’s decisions to revoke and restrict his permits were arbitrary and capricious

and because the discretionary-function immunity exemption is not applicable to MDWFP’s

actions.

¶52. The Mississippi Tort Claims Act “provides the exclusive civil remedy against a

governmental entity or its employee for acts or omissions which give rise to a suit.” Towns,

357 So. 3d at 1070 (¶20) (quoting Horton ex rel. Est. of Erves v. City of Vicksburg, 268 So.

3d 504, 508 (¶13) (Miss. 2018)). But the MTCA also “provides immunity to governmental

entities in specified circumstances,” enumerated in section 11-46-9(1) (Rev. 2019). Dunston

v. Miss. Dep’t of Marine Res., 892 So. 2d 837, 841 (¶12) (Miss. Ct. App. 2005). “If any one

of these exceptions apply, ‘the government is completely immune from any claim arising

from the act or omission complained of.’” Simpson County v. McElroy, 82 So. 3d 621, 624

(¶12) (Miss. Ct. App. 2011) (quoting Willing v. Est. of Benz, 958 So. 2d 1240, 1255 (¶40)

(Miss. Ct. App. 2007)).13

¶53. Section 11-46-9(1)(h) contains a “permit” exception which applies to actions

“[a]rising out of the issuance . . . or revocation of . . . any . . . permit . . . or similar

authorization where the governmental entity or its employee is authorized by law to

determine whether or not such authorization should be issued . . . or revoked unless such [is]

13
See also Willing, 958 So. 2d at 1255 (¶35) (“where any of the immunities
enumerated in section 11-46-9(1) apply, the government is completely immune from any
claims arising from the act or omission complained of”).

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arbitrary and capricious [in] nature[.]” Miss. Code Ann. § 11-46-9(1)(h) (Rev. 2019).

¶54. Each of Short’s claims is rooted in the animal control permits he applied for and

received from MDWFP. Pursuant to section 49-4-4(6) cited earlier, Colonel Adcock was

acting within the course and scope of his employment for the agency and was authorized by

law to determine whether permits should be issued or revoked and the form and type. As we

previously determined, Colonel Adcock did not act in an arbitrary and capricious manner

when he revoked Short’s first permit and placed restrictions on the second set of permits.

Therefore, the Department is immune from liability under the permit exception.

¶55. Short also argues, in the alternative, that MDWFP is not immune from liability under

another subsection establishing a discretionary function exemption. However, because one

of the other immunity exceptions applies, we do not reach the issue of the applicability of the

discretionary function exception. See McElroy, 82 So. 3d at 624 (¶12).

IV. Short’s due process rights were not violated.

¶56. Lastly, Short claims that his “constitutional due process right to protect his property”

was violated by MDWFP’s permitting process. Short acknowledges that “[t]here is no

Mississippi case directly on point” and, instead, directs us to a variety of cases from other

states to argue his thesis that “[b]y seeking to kill deer on his agricultural land, Mr. Short was

exercising his legal and constitutional right to protect his property so that he could grow,

harvest and sell his soybeans.”

¶57. MDWFP asserts a variety of procedural bars in response, including that since “Short

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himself is no longer personally subject to those depredation permits” his claim is moot,

especially now because the temporary high-water event has subsided. In the alternative,

MDWFP argues that “the Legislature properly recognized and sought to balance the

legitimate economic interests of farmers and others from crop depredation, while protecting

deer and other wildlife in the extreme events of high water or fire.”

¶58. Our State Constitution guarantees, “No person shall be deprived of life, liberty, or

property except by due process of law.” Miss. Const. art. 3, § 14. While Short grounds his

argument on this section, our Constitution also guarantees “[t]he people have the right to

hunt, fish and harvest wildlife, including by the use of traditional methods, subject only to

laws and regulations that promote wildlife conservation and management and that preserve

the future of hunting and fishing, as the Legislature may prescribe by general law.” Miss.

Const. art. 3, § 12A (emphasis added) (as amended on Dec. 2, 2014, after approval by general

vote).

¶59. So, at the outset, we see that our constitutional right to hunt and fish is subject to a

sensible restriction—that it is not unlimited but, instead, balanced against the needs of

conservation for those of future generations. Intimately tied to the immediate and present day

act of hunting or fishing is that we are attempting to “preserve the future of hunting and

fishing” so that it is not only this generation that is allowed to do so. This goal is why the

authorizing statute points out that “[h]unting, trapping and fishing are vital parts of the

heritage of the State of Mississippi,” and the Legislature’s goal is “to protect and preserve

21
these activities.” Miss. Code Ann. § 49-7-1.1 (emphasis added). As that law points out, the

Legislature hopes that through sensible regulation it can “preserve these activities for all

generations to come.” Id.

¶60. We must also point out that while our citizens possess inalienable rights, these rights

are not without limitations. For instance, while we have the right to seek remedies for harm

done to us in our “lands, goods, person, or reputation” under Article 3, section 24, “[t]he

Mississippi Constitution does not create an unlimited right of access to the courts.” In re Est.

of Staten, 391 So. 3d 236, 242 (¶19) (Miss. Ct. App. 2024). This limitation is why unjustified

lawsuits may be ejected or why statutes of limitation can curtail access after a number of

years—because “[n]o one, rich or poor, is entitled to abuse the judicial process.” Id.

¶61. For similar reasons, we have pointed out that even the Confrontation Clause can be

restrained under certain circumstances—since “a defendant’s right to cross-examination is

not unlimited, and the Confrontation Clause guarantees only an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” Kirby v. State, 379 So. 3d 915, 927 (¶31) (Miss. Ct. App.

2024); see also Gibbs v. State, 141 So. 3d 1, 3 (¶9) (Miss. Ct. App. 2013) (holding that the

right to counsel is critical, but “that right is not unlimited” and could be waived).

¶62. Relatedly, the Mississippi Supreme Court has held that “[t]here is no fundamental

right to sue the government for damages,” as Short has done in this case. Wells ex rel. Wells

v. Panola Cnty. Bd. of Educ., 645 So. 2d 883, 896 (Miss. 1994). Instead, that process is

22
tightly regimented by the MTCA. Wells determined that “[a]s with the federal government,

the State must waive sovereign immunity in order to be sued,” and “[w]hen the State does

waive sovereign immunity, it may attach any conditions to its consent, such as a provision

excluding trial by jury.” Id. at 898. In cases like this one, the right to sue is grounded upon

showing that MDWFP acted outside its authority or in a manner that was arbitrary and

capricious.

¶63. We have thoroughly pointed out above why the Legislature has granted MDWFP the

control over permits to kill or hunt deer and why those actions were not arbitrary and

capricious in this case. To this, we will add the following: Short simply did not use the

permits that he sought. The first permit, which was unlimited, he used to kill about 20

deer—despite reporting that he saw “175 deer the first night and 193 deer the second night,”

as the trial court found. When issued a second set of permits, albeit with the “does only”

limitation, Short shot zero deer, just as he did when he obtained injunctive relief that

temporarily reinstated his first permit.

¶64. With limitations and without, Short did not act to preserve his crops by killing deer.

Regardless of his asserted reasons, he sat on his rights under the permits. We have addressed

why MDWFP did not act outside its authority in revoking the first permit or in placing the

limitation in the second. Accordingly, we find this issue without merit.

CONCLUSION

¶65. At the core, Short wants the unlimited authority to kill deer on his property as he sees

23
fit, when and how he wants. Yet statute after statute make expressly clear that an individual

does not have such authority. Instead, MDWFP ultimately had the discretion to decide

whether to grant Short an animal control permit to kill deer that were destroying his soybean

crops and whether to subsequently revoke Short’s permit. After review, we find that

MDWFP’s permitting decisions were not arbitrary and capricious, and the permit exemption

to immunity applied to Short’s claims. Accordingly, we affirm the trial court’s order

dismissing the claims.

¶66. AFFIRMED.

CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER,
WEDDLE AND ST. PÉ, JJ., CONCUR. BARNES, C.J., AND WILSON, P.J.,
CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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