LITTLE ROCK (AGFC) – The Arkansas Game and Fish Commission won two important legal battles last week.
The Arkansas Court of Appeals upheld the conviction of Wendell "Dutch" Noe of Lake City March 2. Noe violated AGFC regulations on captive-raised ducks. The following day, the Arkansas Supreme Court upheld the dismissal of a lawsuit by James Dockery of Little Rock that aimed to prevent the AGFC from using funds it receives from natural gas leases.
Noe previously had been in business raising, shipping and releasing mallards in Arkansas and other states, and had refused to comply with state regulations and conditions contained in a Wildlife Breeder/Dealer Permit. Those regulations and permit conditions require keeping captive ducks in enclosed areas and prohibit releasing the birds into the wild except under limited circumstances. Noe sued the AGFC in federal courts between December 2004 and 2006, claiming that the federal Migratory Bird Treaty Act provided for exclusive regulation of duck breeding and shooting activities, and that the more restrictive requirements enforced by the AGFC were illegal.
The federal courts ruled against Noe and upheld the AGFC's regulatory authority. Noe was later prosecuted in state court in 2007 for continuing his mallard activities contrary to the state requirements. Noe was convicted in district court in St. Francis County and fined, but then appealed to St. Francis County Circuit Court. Following a new trial in March 2010, Noe was convicted once again and fined $2,500. Last week, the Arkansas Court of Appeals rejected Noe's arguments that U.S. treaties entered into with other countries for protecting migratory birds "preempt" the AGFC regulations and affirmed Noe's criminal conviction.
Dockery filed his lawsuit in Pulaski County Circuit Court in 2009 alleging that by entering into natural gas leases on certain wildlife management areas, the AGFC had violated Amendment 35 to the Arkansas Constitution, which charges the AGFC with the duty to manage, conserve and restore the state's wildlife resources. Dockery asked that the gas lease revenue received by AGFC be transferred from the AGFC's Game Protection Fund to the State Treasury's general fund.
The Supreme Court ruled March 3 that the AGFC had acted within its legal authority under Amendment 35 to the Arkansas Constitution when it entered into mineral leases with natural gas operators, and that the gas lease revenue received by the AGFC cannot legally be diverted from the AGFC Game Protection Fund to the state's general fund. It also ruled that the agency had properly followed mineral leasing statutes that had been enacted by the Legislature.
The Supreme Court also said that any potential diversion of the agency's gas revenue would be tantamount to a diversion of license revenue, in violation of mandatory U.S. Fish and Wildlife Service regulations.
In the 6-0 ruling, with Justice Karen Baker not participating, the high court rejected all five points on which Dockery had based his appeal. A final argument, seeking injunctive relief, was therefore moot.
AGFC Director Loren Hitchcock welcomed the ruling.
"We are very pleased with the Supreme Court's decision," Hitchcock said. "It affirmed that the AGFC had acted within its legal authority under Amendment 35 when we entered into the mineral leases with the natural gas exploration companies. We have granted a portion of these funds to the Arkansas Department of Environmental Quality to hire additional inspectors in the Fayetteville Shale area."