Arkansas State Game and Fish Commission v. Eubank
| Decision Date | 08 July 1974 |
| Docket Number | No. 74--40,74--40 |
| Parties | ARKANSAS STATE GAME AND FISH COMMISSION, Appellant, v. Jim EUBANK and F. E. Johnson, Appellees. |
| Court | Arkansas Supreme Court |
William H. Donham, Little Rock, for appellant.
Wayne Jewell and James E. Stein, El Dorado, for appellees.
Appellees are resident landowners on Lake Calion. They secured an injunction preventing a proposed partial fish kill by appellant on 100 acres of the 600 acre lake which is owned by the appellant and open to public fishing. Appellees alleged that the procedure constituted a health hazard and subjected them and the public to irreparable damages. Appellant contends that the proposed fish kill is within its powers and the injuction against the appellant, a state agency, is a suit against the state prohibited by the Ark.Const. Art. 5, § 20 (1874).
Ark.Const. Amend. 35 § 8 (1974) authorizes the Game and Fish Commission to expend funds for fish management and conservation. The same provision extends the power of eminent domain to the Commission to be exercised in the same manner as is exercised by the State Highway Commission. Accord, Ark.Stat.Ann. § 47--108 (Repl.1964). Both Commissions are bound by and subservient to the requirements of our eminent domain provision, Ark.Const. Art. 2, § 22 (1874), which provides:
. . . private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.
See Farris v. Ark. State Game and Fish Comm., 228 Ark. 776, 310 S.W.2d 231 (1958); and Shellnut v. Ark. State Game and Fish Comm., 222 Ark. 25, 258 S.W.2d 570 (1953).
First we observe that appellant is incorrect in its assertion that it cannot be the subject of a suit in our courts. A state agency may be enjoined in a suit in equity if it can be shown the pending action of the agency is ultra vires or without the authority of the agency. Shellnut, supra. The agency can also be enjoined if it is about to act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner. Gray v. Ouachita Creek Watershed Dist., 234 Ark. 181, 351 S.W.2d 142 (1961); and State Hwy. Comm. v. Saline County, 205 Ark. 860, 171 S.W.2d 60 (1943).
In the case at bar the commission had scheduled a fish kill by the use of rotenone which is an accepted technique for fish management. It is non-toxic to humans and does not harm the flesh of the fish. In fact they are edible and some are harvested by the public. It causes the capillaries of the gills in the fish to constrict and kills the fish by suffocation. Appellees do not dispute the use of rotenone as an accepted method. They testified, however, that in their opinion a fish kill was not needed and if so...
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