Case 1:07-cv-01189-JDT-sta Document 33 Filed 03/31/2008 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT

OF TENNESSEE AT JACKSON, TENNESSEE

NATALIE HORNBEAK-DENTON and )

ANN HORNBEAK, )
Plaintiffs, )
)
vs. ) Case No. 07-1189
)
GARY T. MYERS, TWRA EXECUTIVE )
DIRECTOR, individually and in his official )
capacity; JOHN C. GREGORY, TWRA CHIEF )
OF REAL ESTATE AND FORESTRY, )
individually and in his official capacity; )
and R. B. “BUDDY” BAIRD, MICHAEL )
CHASE, JOHNNY FORD COLEMAN, )
THOMAS H. EDWARDS, JAMES H. (JIM) )
FYKE, KEN GIVENS, MIKE HAYES, )
GARY K. KIMSEY, BOYCE C. MAGLI, )
MITCHELL S. PARKS, TODD A. SHELTON, )
HUGH T. “SKIP” SIMONTON, JR., and )
DANYA L. WELCH, COMMISSIONERS OF )
TWRC, in their official capacities, )
)
Defendants. )

FIRST AMENDED COMPLAINT

FOR INJUNCTIVE AND DECLARATORY RELIEF

Come now Plaintiffs and, for their First Amended Complaint in this cause, would

show the Court as follows:

I. JURISDICTION AND VENUE

1. The Court has jurisdiction pursuant to 42 U.S.C. §1343 over civil rights

claims arising out of violations of Plaintiffs’ federal civil rights guaranteed under the

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First and Fourteenth Amendments to the U.S. Constitution as provided by 42 U.S.C.

§1983. The Court has jurisdiction over Plaintiffs’ action against state officials under the

Ex parte Young doctrine in that they are acting in violation of federal law and that

Plaintiffs are seeking prospective injunctive and declaratory relief only as to ongoing

violations.

2. Venue is proper because Plaintiffs’ real property, which is the subject of

this action, is located in Obion County, Tennessee, and Plaintiff Natalie Hornbeak-

Denton resides in Obion County, Tennessee. Obion County lies within a 100-mile radius

of this Court.

II. NATURE OF THE CASE

3. Plaintiff Natalie Hornbeak-Denton avers she is a co-owner in fee simple of

certain undivided property abutting Reelfoot Lake with rights as a riparian property

owner. She sues for injunctive relief to restrain Defendants from interfering with her

rights to freedom of speech and her property rights as a riparian owner, in violation of the

First and Fourteenth Amendments to the U.S. Constitution. Plaintiff avers that

Defendants or their agents have been harassing and threatening her with legal action in

retaliation for her assertion of her property rights in violation of her First Amendment

right to free speech and Fourteenth Amendment right to due process. Plaintiff sues for

injunctive and declaratory relief for the deprivation of her civil rights under color of law,

as provided by 42 U.S.C. §1983.

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III. THE PARTIES

4. Plaintiff Natalie Hornbeak-Denton is a citizen and resident of Obion

County, Tennessee. Plaintiff Anne Hornbeak is a citizen and resident of St. Tammany

Parish, Louisiana, and she avers she is a co-owner in fee simple of certain undivided

property with Natalie Hornbeak-Denton, abutting Reelfoot Lake with rights as a riparian

property owner. At all times material to this cause, Plaintiffs are owners of record in fee

simple of certain property abutting Reelfoot Lake. Said ownership is also established by

their physical possession of said property by means of constructing and maintaining boat

docks which extend into Reelfoot Lake, contracting to sell portions of said lakeshore

property, as well as by granting licenses to other adjacent property owners to have access

to Reelfoot Lake through their lakeshore property.

5. Defendant Gary T. Myers is the duly appointed Executive Director of the

Tennessee Wildlife Resources Agency (TWRA). Upon information and belief, Plaintiff

avers the Defendant resides in Davidson County. Defendant Dir. Myers is responsible

for the day-to-day operation of the agency, including supervision of activities related to

its regulation of the recreational and commercial uses of Reelfoot Lake natural area as

provided by T.C.A. §70-1-302(3)(D) and T.C.A. §11-14-101. Defendant Dir. Myers has

exclusive supervisory control of the TWRA as provided by T.C.A. §70-1-304. He is the

direct supervisor of Defendant John C. Gregory as described hereinbelow. At all times

material to this cause, Defendant Dir. Myers has been acting under color of law. He is

being sued both in his individual capacity and in his official capacity.

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6. Defendant John C. Gregory is Chief of Real Estate and Forestry for the

TWRA. Upon information and belief, Plaintiff avers that this Defendant is a resident of

Davidson County, Tennessee. Defendant Gregory is responsible for the day-to-day

operations of the TWRA in regulating the recreational and commercial use of Reelfoot

Lake natural area in Obion County, Tennessee. At all times material to this cause,

Defendant Gregory has been acting under color of law. He is being sued both in his

individual capacity and in his official capacity.

7. Defendants R. B. “Buddy” Baird, Michael Chase, Johnny Ford Coleman,

Thomas H. Edwards, James H. (Jim) Fyke, Ken Givens, Mike Hayes, Gary K. Kimsey,

Boyce C. Magli, Mitchell S. Parks, Todd A. Shelton, Hugh T. “Skip” Simonton, Jr., and

Danya L. Welch are duly appointed Commissioners of the Tennessee Wildlife Resource

Commission (TWRC) as provided by T.C.A. §70-1-201 responsible for promulgating

and adopting rules and regulations for this agency as well as establishing policies for

administration of the Reelfoot Lake natural area in accordance with T.C.A. §70-1-206.

Defendant Com. Hayes is the Commissioner representing Obion County before the

TWRC. At all times material to this cause, Defendants were acting under color of law.

They are being sued in their official capacities only.

IV. THE FACTS

8. Plaintiffs’ property is located along Lake Drive, just south of the City of

Samburg, in Obion County, Tennessee. Their family has owned and possessed this land

since 1907. It is also located on a July 10th, 1788 land–grant issued to Colonel George

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Doherty under North Carolina Land Grant #35. This property has been surveyed. The

corners of Plaintiffs’ property are marked under a certified survey per their warranty deed

from their grandfather’s deed “P.D. Hornbeak” in the Obion County Register’s Office in

Union City, Tennessee. Plaintiffs’ warranty deed was recorded in 1907, and its boundary

line on the west side and along the southeastern shoreline of Reelfoot Lake goes to the

1907 “Ordinary low water mark of Reelfoot Lake.” Plaintiffs and Plaintiffs’ ancestors

have paid Obion County property taxes every year since 1907. There are no county tax

maps on record at the Obion County Tax Assessor’s Office which show State ownership

or any tax-exempt status of Plaintiff’s shoreline property.

9. Plaintiffs’ property adjoins and underlies a portion of the southeastern side

of Reelfoot Lake in Obion County, Tennessee. Their property line extends about 171 +/-

feet (10 poles) out into the lake on the southwest boundary line, and 35 +/- feet (2 poles)

into the lake on the northwest boundary. Plaintiffs allege that the Reelfoot Lake

Reservoir has an artificial ordinary normal pool level of 282.2 feet mean sea level (msl)

which covers approximately 6+/- acres of their property. This is due to the raising of the

water level when the State of Tennessee built Reelfoot Lake Reservoir and the Reelfoot

Lake Levee Road system in 1919/1920.

10. The State of Tennessee owns approximately 25,000 acres in and around

Reelfoot Lake in Tennessee, and is a riparian owner.

11. In 1913, the Tennessee Supreme Court held that, although Reelfoot Lake is

a navigable stream, meaning that private ownership of either its waters or the land

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underlying them is not permitted, those landowners whose titles include land derived

from 1788 Doherty grants from North Carolina prior to the formation of Reelfoot Lake,

land now submerged by the lake, would be entitled to their land’s use and enjoyment so

long as they can reasonably identify it and fix its boundaries. Title and ownership over a

Doherty grant carries with it the exclusive right of fishing in the waters over these grants.

Arnett v. Myers, 281 F.3d 552, 557-58 (6th Cir. 2002).

11A. In the late summer of 1999, Plaintiff Natalie Hornbeak Denton converted

an existing structure into a fisherman and hunter’s lodge on her lakeshore property with a

pier that extends approximately sixty (60) feet into Reelfoot Lake. During the site work,

Mr. Paul Brown, who was the TWRA local manager at that time, came to Plaintiff and

told her that she could not dig out a boat sloop on state-owned land. Plaintiff told Mr.

Brown that she did own the land in question and showed Mr. Brown a copy of her low

watermark survey. Mr. Brown agreed that Plaintiff did own the land shown in the survey

and withdrew his objection. The lodge, known today as Acorn Point Lodge, has been an

ongoing commercial enterprise since 1999 with no interference by the State regarding the

lodge or the pier extending into the lake over Plaintiffs’ riparian property, nor the boat

slip and dock constructed in 2000.

12. On June 28, 2006, Plaintiff Natalie Hornbeak-Denton received a letter from

the Real Estate and Forestry Division of TWRA demanding that she purchase a “lake use

permit” for Plaintiffs’ own shoreline property at Reelfoot Lake under their recorded deed.

This letter did not claim that the State owned Plaintiffs’ lakeshore property.

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13. Plaintiff Natalie Hornbeak-Denton protested by letter dated July 26, 2006,

to Defendant Gregory that not all landowners along the shoreline were required to

purchase such permits even though some have built piers, docks, and boathouses onto

Reelfoot Lake from her property. She sent a copy of this letter to Defendant

Commissioner Mike Hayes. She submitted payment for the lake use permit under

protest.

14. On October 6, 2006, Plaintiff Natalie Hornbeak Denton sent letters to

property owners in the RG and MH Hornbeak Reelfoot Lake subdivision whose

properties abutted Plaintiffs’ lakeshore property, confirming Plaintiffs’ ownership of said

lakeshore property. In September and October, 2006, Plaintiff Natalie Hornbeak-Denton

attempted to sell portions of their lakeshore property to Robert Caldwell and wife, John

Snead and wife, Joe Neighbors and wife and Steve Tittle and wife and others who own

lots in the 1946 R.G. and M.H. Hornbeak Reelfoot Lake subdivision.

15. On October 31, 2006, Defendant Gregory sent a letter to Plaintiff Natalie

Hornbeak Denton not only describing the State’s authority to charge a permit fee to any

riparian owner of lakeshore property on Reelfoot Lake, but also claiming that the State of

Tennessee owned such lakeshore property and that if she were to “proceed with any

action which affects state property, the agency (Tennessee Wildlife Resources Agency) is

prepared to proceed with any necessary legal actions in order to protect it.” Finally,

Defendant Gregory demanded that Plaintiff Natalie Hornbeak Denton notify the aforesaid

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property owners in the Hornbeak Reelfoot Lake subdivision that she did not own the

lakeshore property in question.

15A. On November 8, 2006, Plaintiff Natalie Hornbeak Denton had a phone

conversation with Defendant John Gregory regarding the certified letter that Defendant

Gregory had sent her warning her not to sell any of the property she claimed as a riparian

owner because the State owned this land. Defendant Gregory told Plaintiff that the State

had plenty of lawyers and would sue Plaintiff for fraud if she attempted to sell this land.

Plaintiff told Mr. Gregory to go ahead and sue her because her family had owned the land

for years.

16. On November 14, 2006, Plaintiff Natalie Hornbeak-Denton sent Defendant

Gregory a letter disputing the validity of the alleged condemnation on grounds that her

family was never paid for the lakeshore property in question; that no State of Tennessee

-18,000 acre Reelfoot Lake State Natural Area or Tennessee Wildlife Resources Agency

(TWRA) Wildlife Management Area boundary line markers were ever set out on said

property; that none of the warranty deed or wills under which Plaintiff claims title

references the State having purchased a buffer zone tract from her family; and that

Plaintiff and her family have been paying property taxes on the subject property since

1907.

17. On May 4, 2007, Plaintiff Natalie Hornbeak-Denton posted private

property signs along that portion of her land bordering Reelfoot Lake.

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18. On or about May 30, 2007, Plaintiff recorded one-year real property

licenses captioned “P.D. Hornbeak Farm – Real Property License 2007” beginning on

May 30, 2007, and ending on May 28, 2008, and sent notices to all owners of adjoining

lots in the RG and M.H. Hornbeak Reelfoot Lake subdivision.

19. On June 1, 2007, Defendant Gregory sent a letter to Plaintiff demanding

that she “cease [her] claim to the State buffer strip and refrain from posting signs,

erecting fences, interfering with access or conducting any further activity that excludes

use by the general public on the property.” In this letter, Defendant Gregory concluded

by stating if Plaintiff is going “to proceed with [her] attempt to sell, lease, or deny access

to property owned by the State,” … “the State plans to proceed with any legal action

deemed appropriate for the situation. …” A copy of this letter was sent to Defendant

Commissioner Mike Hayes.

20. On August 20, 2007, Plaintiff Natalie Hornbeak-Denton posted additional

signs on her shoreline property which state “POSTED; Private Property; Hunting,

fishing, trapping or trespassing for any purpose is strictly forbidden; violators will be

prosecuted.” The signs clearly state Natalie Hornbeak-Denton’s name and address as

property owner.

21. Plaintiffs aver that the Defendants’ threats of legal action against Natalie

Hornbeak-Denton is in retaliation for her questioning the legality of the TWRA Permit

System and her payment of a permit fee under protest. Plaintiffs have been and still are

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intimidated by such threats so as to refrain from further attempts to sell portions of their

lakeshore property.

V. CAUSES OF ACTION

A. First Amendment

22. Freedom to criticize public officials and expose their wrongdoing is a

fundamental First Amendment right and is at the center of the constitutionally protected

area of free discussion.

23. Plaintiff Natalie Hornbeak-Denton’s criticism of TWRA Permit system

relating to its management of Reelfoot Lake falls within the scope of First Amendment

protection and the timing of the subsequent events constitute circumstantial evidence that

Defendants’ threat to take legal action if she continues to challenge the legitimacy of

TWRA jurisdiction over Plaintiffs’ lakeshore property is in retaliation for Plaintiff

Natalie Hornbeak-Denton’s exercising her First Amendment right to criticize public

officials and public policy relating to Reelfoot Lake.

24. Plaintiff Natalie Hornbeak-Denton’s protected First Amendment conduct

was therefore a motivating factor behind Defendants’ threats to bring legal action against

her.

25. Defendants’ adverse actions, i.e., sending Plaintiff official letters

threatening to sue Plaintiff Natalie Hornbeak-Denton (see ¶¶ 15 and 15A, supra),

constitutes a deprivation under color of law of Plaintiff’s rights to Free Speech

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guaranteed under the First and Fourteenth Amendment to the U.S. Constitution and

support Plaintiff’s claim for Injunctive and Declaratory Relief under 42 U.S.C. §1983.

B. Fourteenth Amendment

26. Plaintiff Natalie Hornbeak-Denton avers Defendants have violated her

Fourteenth Amendment due process rights by abridging her rights as a riparian property

owner without appropriate process. [Hamilton v. Myers, 281 F.3d 520 (6th Cir. 2002)]

27. Riparian rights are valid property rights incident to her ownership of land

submerged by Reelfoot Lake lying over and above grants of land issued by the State of

North Carolina, as determined by the Tennessee Supreme Court in State ex rel. Cates v.

West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 752 (1913), cited in Hamilton

v. Myers, 281 F.3d 520, 527-28 (6th Cir. 2002).

28. Such riparian property interests are created and defined by State law and

can be reasonably identifiable.

29. Plaintiffs are not seeking to divert sovereign ownership of Reelfoot Lake

from the State; nor seeking exclusive use and occupancy of the lake; nor do they seek to

invalidate the regulatory authority of the Tennessee agencies in the case.

29A. However, in the alternative, if the TWRA does assert a claim to Plaintiffs’

riparian property rights, not only are Plaintiffs’ riparian property rights recognized by the

Tennessee Supreme Court, but Plaintiffs’ shoreline property rights are also established by

adverse possession to such State’s claims by virtue of the fact that they have successfully

asserted adverse reliance under color of title since at least 1999, more than the seven (7)

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years required by T.C.A. §28-2-105, and by virtue of the fact that their low watermark

deed to the subject property has been recorded in the Register’s Office of Obion County

for more than thirty (30) years as also required by T.C.A. §28-2-105. Given these facts,

the State of Tennessee is estopped from claiming the Plaintiffs’ land and riparian rights

by virtue of the operation of TCA §28-3-106.

30. Plaintiffs assert their riparian property rights to land submerged under

Reelfoot Lake when the lake is above its natural low water mark of 1907. Plaintiffs assert

and allege that the submerged land is part and parcel of Plaintiff’s land created and

defined by boundary lines of the North Carolina land grant # 35, issued to Colonel

George Doherty on July 10th, 1788, and that such property interest has been abridged by

the State, by and through the conduct of Defendants, without appropriate process.

31. Defendants have threatened to take legal action against Plaintiffs for

asserting their rights as riparian landowners. The threat of legal action has deterred

Plaintiffs from selling their riparian and lakeshore property interests to third parties.

32. Such conduct amounts to an abridgement of Plaintiffs’ specific property

rights without due process, the requirements of notice and a full evidentiary hearing and

opportunity challenge the illegality of the State’s contention.

33. Therefore, Plaintiffs are entitled to declaratory and injunctive relief to

protect and preserve their valid property interests from abridgement by Defendants

without due process violation of the Fourteenth Amendment to the U.S. Constitution as

provided by 42 U.S.C. §1983.

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PRAYER FOR RELIEF

WHEREFORE, Premises Considered, Plaintiffs pray for:

1. A declaratory judgment that Defendants’ actions violate Plaintiff Natalie

Hornbeak-Denton’s First Amendment rights to criticize TWRA policy and procedure as

it relates to her rights as a riparian landowner [Arnett v. Myers, 281 F.3d 552 (6th Cir.

2002)], and violation of Plaintiffs’ Natalie Hornbeak-Denton and Ann Hornbeak

Fourteenth Amendment rights not to have their riparian and lakeshore property rights

abridged without due process. [Hamilton v. Myers, 281 F.3d 520 (6th Cir. 2002)]

2. A preliminary and permanent injunction against Defendants to prohibit

them from threatening to take and taking legal action against Natalie Hornbeak-Denton in

retaliation for her expression of her First Amendment rights to criticize public officials

and public policy.

3. An award of reasonable attorneys fees and litigation expenses as provided

under 42 U.S.C. §1988.

4. A jury to be empaneled to determine whether Plaintiff Natalie Hornbeak-

Denton’s exercise of her First Amendment rights was a motivating factor in Defendants’

decision to threaten Plaintiff with legal action.

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5. Such other general relief as may be necessary and proper, including the

costs of this cause.

Respectfully Submitted,

__s/ Joe W. McCaleb_____________

Joe W. McCaleb (BPR# 3505)
315 West Main Street
Hendersonville, TN 37075
(615)-862-7245

__s/ Joseph Howell Johnston________

Joseph Howell Johnston (BPR# 4706)
P.O. Box 120874
Nashville, TN 37212
(615) 383-2119

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that on this _31st day of _March_, 2008, I have filed an electronic copy
of the foregoing _Document , as allowed by this Court’s Order (Doc 32) and in
accordance with the Local Rules of the Western District, Tennessee. Notice of this filing
will be sent by operation of the Court’s electronic filing system to all parties indicated on
the electronic filing receipt or their respective Counsel of record.

s/ Joe W. McCaleb

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