LITTLE ROCK — Because he can’t show any wrongdoing, Sheffield Nelson’s legal challenge to organizational changes at the Arkansas Game and Fish Commission should be thrown out of court, the agency contends in written arguments filed on Tuesday.
The restructuring of the commission’s operations, opposed by the millionaire former gubernatorial candidate, was conducted within the agency’s authority, attorneys for Game and Fish state in their arguments for the lawsuit’s dismissal.
The procedural changes, adopted in June, actually allow the agency “to more effectively manage and protect the wildlife resources of Arkansas,” the commission said in a news release, describing the organizational restructuring as creating a more open and transparent agency.
Nelson, the commission’s former chairman,denounced the restructuring as a power grab by a commission minority before suing the commission in Pulaski County Circuit Court in September, claiming the new procedures were implemented without the public disclosure required by the Administrative Procedures Act. Nelson claims the changes unfairly concentrate the agency’s policy-making power in a three-member minority.
He has since broadened his lawsuit, pending before Circuit Judge Jay Moody, to complain that the commission also does not recognize the state’s Freedom of Information Act, citing the agency’s recent discussions about imposing its own version of Arkansas’ open records law. Commissioners dropped the idea in the face of criticism from Gov. Mike Beebe, Attorney General Dustin McDaniel and the public.
Tuesday’s Game and Fish filing was the commission’s first response to the lawsuit, although the sides have sparred in previous filings over evidentiary issues. No hearings have been scheduled.
The organizational change, according to the lawsuit, reflects the commission’s practice of disregarding the procedures act.
But in Tuesday’s filings, commission attorneys question whether the procedures law or the Freedom of Information Act applies to the agency, citing an 11-year-old Arkansas attorney general opinion. That opinion suggested that those laws, since they are passed by the Legislature, could conflict with Game and Fish’s authority, derived from the Arkansas Constitution, to manage the state’s wildlife population independently of the General Assembly.
Speaking softly by cell phone from a deer stand, Nelson said Tuesday that, although the commission recently said it has no intention of circumventing those statutes, its reliance on the opinion of former Attorney General Mark Pryor makes it appear as though, “They’re still leaving a door open to it.”
The agency has also responded to Nelson’s lawsuit by arguing that as chairman from 2006-2007, Nelson, himself, disputed that the commission was subject to the procedures act and that he encouraged the agency to draft procedures that would replace the law.
The agency is also challenging Nelson’s claim that the restructuring dilutes the strength of the representation at the agency of some Arkansas residents.
The seven voting commissioners, who are appointed by the governor, each represent one of the state’s Congressional districts.
Nelson maintains that the new structure unfairly empowers a three-member committee to consider policy initiatives. If the committee does not endorse a policy, Nelson claims the commission can adopt it only by a two-thirds majority. By comparison, committee-endorsed policies only require a simple four-member majority for approval, Nelson claims.
The change means that residents in districts whose commissioners are excluded from the three-member committee don’t have equal representation as residents in district whose commissioners are members of the policy committee, Nelson argues.
But that’s not the way the system works, the commission contends in its Tuesday filing. Nonendorsed policy proposals require the approval of two-thirds of the commission to be brought before the full panel for consideration, but those proposals can be passed by the four-member majority, the agency contends.
An eighth nonvoting commissioner is the chairman of the University of Arkansas at Fayetteville’s’ biology department.
Information for this report was contributed by Bill Simmons of the Arkansas Democrat-Gazette.
Arkansas, Pages 11 on 11/24/2010