Panel advises Game & Fish rule oversight

Agency says constitution denies legislators that clout

The Arkansas Legislative Council’s Executive Subcommittee is recommending a new requirement that the Arkansas Game and Fish Commission seek the council’s review and approval of proposed commission rules.

The proposal is stronger than what was offered in May. At that time, the Legislative Council changed its rules to require its Game and Fish/ State Police Subcommittee to consider proposed rules of the Game and Fish Commission for discussion, said Marty Garrity, director of the Bureau of Legislative Research.

But commission officials have declined to file their proposed rules with the bureau for the subcommittee’s discussion, saying they see the council’s rule as an infringement on the commission’s independence as granted under Amendment 35 to the Arkansas Constitution. Instead, the commission has filed its approved rules with the bureau.

Senate President Pro Tempore Jonathan Dismang, R- Searcy, noted that another part of the Arkansas Constitution — Amendment 92 — allows the Legislature to require lawmakers’ approval of state agencies’ rules before they go into effect.

A council co- chairman, Rep. David Branscum, R- Marshall, said Tuesday

that most state legislators don’t want to oversee the Game and Fish Commission’s rules, but they want an opportunity for the council’s Game and Fish/ State Police Subcommittee to discuss the agency’s proposed rules.

Branscum said he wouldn’t be surprised to see the Game and Fish Commission eventually file a lawsuit challenging the constitutionality of the council’s latest proposed rule change, if it is adopted. The council will consider the Executive Subcommittee’s recommendation at an Oct. 20 meeting, Garrity said.

“If the arrogance, perceived or real, of [ the Game and Fish Commission] does not change, it is the time for the courts to decide,” Sen. Terry Rice, R- Waldron, said Tuesday.

Branscum said an option instead of a lawsuit would be for the commission to do what was envisioned under the council’s current operating rules: file its proposed rules with the bureau for discussion by the council’s Game and Fish Subcommittee.

Asked about the commission’s stance on the legislative proposal for review and approval, commission spokesman Keith Stephens said Tuesday in a written statement:

“Our commission is meeting on Thursday in Malvern. I’m sure that topic will be discussed at the meeting. The commission highly values the positive and productive working relationship that exists between the Legislature and Arkansas Game and Fish Commission.”

Last month, Sample and Branscum wrote a letter to Game and Fish General Counsel James Goodhart that said, “It is our understanding that your agency submits a rule to our office at the same time that the final rule is filed with the secretary of state’s office.

“However, in an effort to promote efficiency and to adequately allow sufficient time to place a rule on the [ Game and Fish/ State Police] Subcommittee’s agenda, the Arkansas Legislative Council respectfully requests that your agency submit its rules to our office at the beginning of the public comment period for each rule,” Sample and Branscum wrote in their letter dated Aug. 17 to Goodhart.

Goodhart responded in letter dated Sept. 8 to Sample and Branscum that both state law and council rules appropriately exempt from review any rule that the Game and Fish Commission promulgates under Amendment 35.

Amendment 35 vests the Game and Fish Commission with “the control, management, restoration, conservation and regulation of the wildlife resources of the state, including … all property now owned, or used for said purposes and … the administration of the laws now and/ or here pertaining thereto.”

This exception recognizes that Amendment 35 grants the commission “exclusive power and authority” to promulgate rules and regulations needed to protect and conserve the wildlife resources of the state, according to Goodhart’s letter.

“Accordingly, as the commission is obliged to strictly adhere to both the letter and spirit of Amendment 35, as written and construed by judicial decisions, the commission respectfully must decline to submit its proposed rules promulgated pursuant to Amendment 35 for routine placement on the subcommittee’s agenda for legislative review,” Goodhart wrote in his letter.

During a meeting Monday of the Legislative Council’s Executive Subcommittee, Dismang said the council “is not trying to ask [ for] having the review process or an approval process of Game and Fish rules.”

“What they are wanting to do is be involved in the public comment period as much as anything by being aware of what rules are being proposed so they can be discussed,” he said.

Goodhart told lawmakers that the commission submits all of its final rules and regulations to the bureau and its proposed rules to the secretary of state.

“These proposals are put out in several places … [ and] anytime you want the staff here at [ the Bureau of Legislative Research] to put any those proposals for your discussion, you can do that, and you can access them like all citizens can do for public comment,” he said.

Goodhart said he believes that Branscum and Sample’s written request for the commission to submit its proposed rules for discussion by the Game and Fish/ State Police Subcommittee “is in fact crossing over a line that has been [ in] place for years. We are now 72 years since Amendment 35 was enacted in 1945.”

Amendment 92 to the Arkansas Constitution, approved by voters in 2014, allows the Legislature to require approval of state agency rules, but that doesn’t necessarily encompass constitutionally independent agencies such as the Game and Fish Commission, Goodhart said.

Dismang said he sponsored Amendment 92 and that it was intended to cover all state agencies, including the Game and Fish Commission, the Arkansas Department of Transportation, colleges and universities, and the Legislature has limited that authority.

The Game and Fish Commission doesn’t report to the governor, although he appoints members of the commission as vacancies are created.

Gov. Asa Hutchinson also has raised questions about legislative oversight over executive branch decisions.

Previous skirmishes over state contracts between the Hutchinson administration and some lawmakers include a scrapped contract that the Department of Human Services sought with an Indianabased firm to run seven youth lockups, and the Arkansas Scholarship Lottery’s approved advertising contract with Arkansas firm CJRW.

In August, the administration decided to move forward with a proposed DHS technology contract even though a majority of senators on the Legislative Council voted twice against favorably reviewing the proposal.