by Max Brantley
The Game and Fish Commission — lawyered up and PR-agencied up — has distributed a news release on its court pleading saying Sheffield Nelson's lawsuit against the Commission should be dismissed for failing to state a cause of action. Nelson has cited no damage and made no showing that the agency isn't invested by the Constitution with sole power over its administration.
This, of course, can't help but raise the issue that raised such a ruckus recently. If the Commission indeed has sole authority for running its affairs, doesn't it follow that it could indeed exempt itself from the Freedom of Information Act? Nelson may not have grounds, but he still has posed some decent questions on the extent to which the agency is bound by other state laws.
GAME AND FISH NEWS RELEASE
The Arkansas Game and Fish Commission filed an answer today that notes former Commission Chairman Sheffield Nelson has not established sufficient grounds to pursue a lawsuit against the agency. The filing notes Nelson has not established personal harm or injury in his complaint.
Based on lack of facts from Nelson, the Commission is asking Pulaski County Circuit Court Judge James M. Moody Jr. to dismiss the complaint. Today’s filing is a response to a suit filed by Nelson against the Commission in September.
The Commission’s response asked for dismissal of the suit “for failure to state facts upon which relief can be granted and because (Nelson) failed to plead a case or controversy.” Moreover, the response notes the complaint should be dismissed “for failure to state facts upon which relief can be granted because (Nelson) requests nothing more than an advisory opinion” related to his case.
Nelson filed suit in September and amended his complaint for a second time earlier this month. He claims the Commission has violated Arkansas law related to the Arkansas Administrative Procedure Act and the Arkansas Freedom of Information Act.
In today’s filing, the Commission noted it has not altered either the Administrative Procedure Act or the Freedom of Information Act. In June 2010, the Commission enhanced its governance policy and adopted new procedures that allow the Commission to more effectively manage and protect the wildlife resources of Arkansas. The committee procedures are more open and transparent and have improved operations at the Commission.
Section 1 of Amendment 35 grants the Commission full and complete authority for the “control, management, restoration, conservation and regulation” of the birds, fish, game and wildlife resources for the state of Arkansas. Amendment 35 gives the Commission the authority for the administration of laws related to those duties.
“The AGFC states that, in the 66 years since its enactment, the Arkansas Supreme Court, in a long line of judicial decisions, has confirmed that this language in Amendment 35 provides the AGFC with full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife in the state,” the Commission said in its filing today.
Last week, the Commission released historical documents that show Nelson was involved in efforts to develop new administrative procedures when he served at the agency. Nelson served on the Commission from 2000-2007 and was chairman from 2006-2007. During his tenure, Nelson encouraged the Commission’s legal staff to prepare agency procedures that would replace the APA.
In the Nelson lawsuit, the Commission is represented by Quattlebaum, Grooms, Tull & Burrow of Little Rock.