|
 JONESBORO
- A federal court judge has found that waterfowl regulatory codes passed
by the Arkansas Game and Fish Commission are not preempted by the
federal Migratory Bird Treaty Act (MBTA). In November 2004, a mallard
duck breeder and two game preserve owners were cited by the AGFC for
violation of various regulations and permit conditions that require
keeping captive ducks in enclosed areas, prohibit releasing the birds
without obtaining permission, and other conditions.
The three men sued the AGFC in December, claiming that the federal act
provided for exclusive regulation of their duck breeding and shooting
activities, and that the more restrictive requirements enforced by AGFC
were illegal.
U.S. District Court Judge Leon Holmes recently ruled in favor of the
AGFC and against the three duck operators - W.H. Noe, owner of Ducks &
Ducks Inc.,
based in Lake City; Tommy Taggart, operator of Mallard Magic in Augusta;
and Brian Herndon of Lee County-based Big Creek Hunting.
The
court found that nothing in the MBTA prohibits states from further
regulating migratory birds, or requiring permits for possession, sale
and release of captive-reared mallard ducks.
Noe
had been notified by the commission in September and again in October
2004 that he was operating in violation of permit requirements. After he
refused to correct the violations more than a month later, Noe’s
commercial breeding permits were revoked by the commission. Taggart also
received notification last fall that his operations were in violation of
codes dealing with the release of captive mallards into the wild without
commission approval.
 In
addition, Taggart was notified that he was violating permit conditions
that require exterior boundaries of a game bird shooting resort to be
clearly defined and posted with proper signage and require birds to be
enclosed in buildings or covered pens prior to the day of hunting. The
commission revoked his permits on Nov. 19, 2004.
An administrative hearing officer, retired State Supreme Court Justice
Jack Holt Jr., upheld the commission's permit revocation decision for
Taggart in a March 18, 2005 ruling.
Herndon was also cited for violating the regulation that prohibits the
releasing of mallards into the wild without commission approval.
Following a trial held last October in District Court in Marianna,
Herndon was found guilty of illegally releasing 2,000 captive mallards.
However, Herndon’s conviction was overturned by Lee County Circuit Judge
Harvey J. Yates, who ruled that the MBTA prohibited the AGFC from
enforcing additional state regulations of waterfowl. The AGFC has
appealed that dismissal to the Arkansas Supreme Court and that case is
currently pending. |
