Little Rock hunter challenges power of Game and Fish to jail

A Pulaski County circuit judge is considering whether the Arkansas Game and Fish Commission can legally have hunters and fishers jailed for breaking its rules.

The issue was raised with Judge Barry Sims on Thursday by Little Rock hunter Gary Franklin Ingle, who is challenging the agency's authority on constitutional grounds.

Ingle's attorney told the judge that the 2010 amendment granting Arkansas citizens the right to hunt, fish and trap also creates restrictions on the commission's regulatory authority.

The judge did not say when he would make his decision in the case.

Ingle, 62, has been charged with night hunting, a Class 4 violation of commission regulations that allows for a jail sentence of up to six months.

The Game and Fish Commission prohibits all night hunting on water and land, with some seasonal exceptions for bobcats, raccoons, opossums, bullfrogs and alligators.

A Class 1 violation with a one-month jail term is the minimum infraction. A judge can send someone who commits the most serious offense, a Class 5 violation, to jail for a year.

Game and Fish Commission attorney Jim Goodhart told the judge that the commission's authority is well-established in the law and with the courts. Goodhart and co-counsel Jennifer McKendree have been sworn in as special prosecutors in the case.

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Arkansas voters gave the 102-year-old agency its regulatory authority, with attendant police power, in 1944 when they approved constitutional Amendment 35, Goodhart told the judge.

The amendment establishes the commission as Arkansas' sole regulator of hunting, fishing and wildlife, authority that previously had rested with the General Assembly.

State courts have continuously recognized the commission's authority over Arkansas wildlife, including the jailing of violators, Goodhart told the judge.

"Over the 102-year period ... there has been a continuous line of [court] cases that have upheld fines and jail time for individuals who violated the regulations of Game and Fish," he said.

But Ingle's attorney, Robbie Golden, said the courts have never considered the commission's authority in light of the Amendment 88 right to hunt and fish.

"It is no longer a privilege," he said. "It's an actual right."

The 2010 amendment puts the agency in the position of having to prove that there's no other way, other than imposing criminal sanctions, for it to accomplish its mission of protecting and preserving Arkansas wildlife, Golden said.

But commission regulations are established under a lower standard, he said. Its rules must be "reasonably" calculated to further its mission, he said.

Golden acknowledged that he could not dispute the commission's power to impose civil fines on rule-breakers.

The amendment specifically gives the Game and Fish Commission the authority to "fix penalties for violations."

"The question is, what does 'fix penalties' mean?" he said. "Can you give someone 25 years in prison for violating Game and Fish regulations?"

Currently there is no penalty greater than a year in jail for violations, he said.

But he noted that before a regulatory overhaul in June 2015, rule-breakers could be sentenced to up to six years in prison for Class 4 offenses.

To interpret the commission's regulatory power as the authority to have rule-breakers imprisoned is an unconstitutional violation of the separation of powers doctrine, Golden said.

Article 4 of the state constitution divides power among the three branches of government: executive, legislative and judicial.

The commission, with its rule-making power invested in seven governor-appointed members, is an executive agency that cannot also wield the lawmaking power of the Legislature, he said.

Metro on 02/03/2017

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