ARK] 165 ARKANSAS GAME & FISH COMMISSION v. Brian HERNDON CR 05-356 207 S W3d 554 Supreme Court of Arkansas Opimon delivered April 28, 2005 APPEAL & ERROR — APPEALS BY STATE — LIMITED — Appeals by the State are authorized in only the narrowest of circumstances: 2 APPEAL & ERROR — PETITION FOR WRIT OF CERTIORARI — BRIEFING ORDERED — Petitioner, an Arkansas state agency, petitioned for a writ of certiorari seeking review of the circuit court's ruhng on the issue of whether Arkansas Game & Fish Commission Code 1505 was preempted by federal law and sought an injunction against respondent, the supreme court ordered the parties to bnef the following issues: (1) does the supreme court have subject-matter jurisdiction to review the circuit court's order dismissing the case on grounds of federal preemption ? , and, (2) assuming, arguendo, that the court does have subject-matter jurisdiction, has the Arkansas Game and Fish Commission Code 15 05 been preempted by the Migratory Bird Treaty Act and related federal regulations? Petition for Writ of Certiorari; bnefing ordered. LaW Offices qf lames F. Swindoll, by _fames F. Swindon, for appellant. No response. ER CURIAM Petitioner, the Arkansas Game and Fish p Commission ("Commission"), seeks review of the circuit court's dismissal of a case charging the respondent, Brian Herndon, with a violation of Arkansas Game and Fish Commission regulations and seeking an injunction against him This case arose when Mr, Herndon, the owner of Big Creek Hunting Club in Lee County, released approximately two thousand free-ranging mallard ducks for the purpose of attracting and holding wild migratory waterfowl for the benefit of hunters. The release, which occurred prior to and during the 2004-05 state waterfowl-hunting season, \Vac conducted without permission
ARKANSAS GAME & FISH COMM'N 11ERNDON 166 Cite as 362 Ark 165 (2005) [362 from the Commission: Subsequently, the State of Arkansas sought to impose a fine of $1,000 and court costs of $150 against Mr Herndom Further, the State requested an injunction ordering Mr Herndon to recapture and dispose of the mallards_ According to the State, Mr. Herdon's conduct was prohibited by Arkansas Game and Fish Commission Code 15:05, which makes it unlawful (with certain exceptions, inapplicable here) "to release into the wild any native or non-native species of wildlife without prior approval of the Commission:" The Lee County District Court found Mr. Herndon guilty of violating Code 15_05 and fined him $500, plus court costs The court did not issue an injunction, believing it lacked the authority to do so: Mr. Herndon appealed his conviction to the Lee County Circuit Court, which concluded that the regulation allegedly violated by Mr. Herdon was preempted by the United States Congress by its passage of the Migratory Bird Treaty Act and regulations of the Department of the InteficA . Accordingly, the circuit court dismissed the case against Mr. Herndon. [1, 2] The Commission now comes before this court and petitions for a Writ of Certiorari, seeking review of the circuit court's ruling on the issue of whether Code 15:05 is preempted by federal law. It is well settled that appeals by the State are authorized in only the narrowest of circumstances: State r, Bickerstaff, 320 Ark: 641, 899 S.W.2d 68 (1995): Arkansas Rule of Criminal Procedure 36.10(b), which provides for the filing of appeals by the State, refers specifically to appeal following a "misdemeanor or felony prosecution," but makes no mention of appeal following a prosecution for violation of an agency regulation. In Bickerstaff supra, we dismissed a State appeal based on an alleged violation of a Commission regulation against fishing without a license, holding that there was no basis for the State to prosecute the appeal under Rule 36 10 and, thus, we had no jurisdiction: Further, the question of whether federal law has preempted Arkansas Game and Fish Commission Code 15 f_15 is being raised for the first time_ We, therefore, order the parties to brief the following issues L Does this court have subject-matter junsdicnon CO review the circuit court's order dismissing the case on grounds of federal preemptior0
ARK] 167 2 Assuming, arguendo , that this court does have subject-matter junsdiction, has the Arkansas Game and Fish Commission Code 15 05 been preempted by the Migratory Bird Treaty Act and related federal regulations? The clerk of this court shall establish a briefing schedule.
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