Duck hunters win first test in Game, Fish suit

Duck-blind, decoy case can proceed

A group of northeast Arkansas duck hunters’ lawsuit to challenge Game and Fish Commission policies under a state constitutional amendment establishing a right to hunt has survived its first court test, paving the way for the case against the agency to proceed to trial.

“That’s pretty powerful stuff,” the hunters’ attorney, David Carruth, said Wednesday.

Pulaski County Circuit Judge Jay Moody has upheld the hunters’ lawsuit in a preliminary ruling that will allow them to invoke protections outlined by Amendment 88 at trial.

Amendment 88 establishes a right to “hunt, fish, trap and harvest” wildlife subject only to regulation that promotes wildlife conservation and management by Game and Fish under its establishing constitutional amendment.

The hunters are challenging the commission’s authority to end the use of duck-hunting blinds and restrict how decoys are used in “hunting holes” in three wildlife areas that span 63,320 acres in six counties.

The argument is that blinds and decoys represent traditional hunting practices that date back decades, making them protected under the 3-year-old voter-approved amendment.

The hunters believe that the commission should be able to enact regulations based only on biology, Carruth said.

The hunters sued after the agency began tearing down blinds in St. Francis Sunken Lands Wildlife Management Area and Big Lake Wildlife Management Area and also restricted decoy-distribution methods in the David Donaldson Black River area.

The lawsuit was filed in Pulaski County because the commission is headquartered in Little Rock.

The judge also found grounds in his June 17 ruling to support the group’s complaint that regulators had not given the proper public notice about changing its policies on blinds and decoys under the Administrative Procedures Act.

But the hunters lost some claims, too, with Moody rejecting an argument that would have allowed them to seek financial compensationfrom the commission. Sovereign immunity bars plaintiffs from seeking damages from state agencies in court in most circumstances, and Carruth’s argument that the agency’s destruction of the blinds amounted to a constitutionally prohibited taking of private property did not persuade the judge.

Moody also denied the hunters’ request that he stop the commission from acting on the new regulations until the issue is decided, ruling that members had not shown that they would be substantially damaged if the commission proceeded.

The hunters are seeking class-action status for the suit, saying a substantial number of Arkansas hunters could be affected by the new regulations.

Plaintiffs are Jimmy Adams, Gene Adams, William Amelung III, Bart Benson, Bobby Benson, Terry Brewer, Mike Campbell, J.C. Carter, Brent Farmer, William Flynn, Chris Gairhan, Voy Gillentine, Harry Gray, Jimmy Karnes, Terry Majors, Dan Pope, Jack Teague, Neal Vickers, Harold Vines, Don Young and Barry Wood.

Northwest Arkansas, Pages 7 on 06/27/2013

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