Columns » Max Brantley

Fishy lawmaking

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Last week, the legislature decided not to press a fight that could have further upended a balance of power in Arkansas already tilted too far in favor of the legislative branch.

After threatening to require the Arkansas Game and Fish Commission to submit to legislative approval of agency rules, the legislature backed off and accepted filing of agency regulations with the legislature.

Veteran Arkansas Democrat-Gazette outdoor writer Bryan Hendricks explained what this particular fight was really about. It seems that Game and Fish wanted to put some restrictions on where live bait can be gathered and transported. This was to prevent invasive trash fish — carp, particularly — from migrating into waters where they could do damage to other fish populations, particularly the largemouth bass.

Problem: The people who wanted to move bait around were people paid to guide fishermen in search of striped bass, which were introduced into some major Arkansas lakes years ago. The striped bass guides complained to legislators.

Fifteen legislators — the usual GOP suspects (think bullying Mary Bentley of Perryville) — raised heck in a letter that was more about the business of a handful of guides than about preserving Arkansas's ecosystems. Eventually, 35 legislators seemed willing to trash Amendment 35, which granted constitutional independence to Game and Fish in 1945, in a fight over fish bait.

The striper guides stirred up the more powerful largemouth bass lobby. So came the compromise on oversight of fishing rules. Game and Fish will continue to live uneasily as an independent agency.

I say uneasily because this legislature is hell-bent on power building. It was behind a 2014 constitutional amendment — unwisely approved by voters — that strengthened legislative control over executive agency decisions. Governor Hutchinson doesn't like it much, understandably. That amendment also left an open question of whether it, by implication, overrode Game and Fish independence as well as the independence of the Department of Transportation and Department of Higher Education. The latter two divisions of government also are given independence in separate constitutional amendments.

Someday, the issue needs to be decided in court. I'd hope it would result in continued independence for those areas of government.

Understand that oversight of all these agencies is still political. Game and Fish, transportation and colleges all are controlled by governor-appointed boards (rich white male hunters nearly always in the case of Game and Fish.) But we don't need the legislature setting duck season or trout limits nor having specific authority over highway spending. And higher education? People who can't competently handle fish bait?

I'd like to see independence strongly affirmed. A good Arkansas Supreme Court decision — if there ever is such a thing — might agree that it's a violation of Amendment 33 for the legislature to dictate to the colleges on campus safety policies. In other words, the legislature might have gone too far when it said colleges must — despite unanimous opposition from college governing boards — allow concealed weapons on campus. In Georgia, a lawsuit has been filed contesting just such a law imposed on the University of Georgia in the face of similar state constitutional protection.

The Georgia case will have no legal application here. But perhaps it could encourage somebody to take on the Arkansas legislature.

The power-hungry legislature isn't done. It has put an amendment on the ballot next year that would give the legislature control of court rules, too. This would be another big step toward one-branch governance in Arkansas. Imagine what a bunch that can be swayed by 30 fishing guides protecting their shad supply might do for, say, 30 corporate defense lawyers.

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