NOE v. STATE No. CA CR 10-755.
381 S.W.3d 915 (2011)
2011 Ark. App. 155
Wendell NOE, Appellant v. STATE of Arkansas, Appellee.
Court of Appeals of Arkansas.
March 2, 2011.
Melissa Bristow Richardson and Kelley Webb , Jonesboro, for appellant.
Dustin McDaniel , Atty. Gen., Rachel M. Hurst , Asst. Atty. Gen., Little Rock, for appellee.
LARRY D. VAUGHT, Chief Judge.
Wendell Noe was convicted by the St. Francis County Circuit Court of violating Arkansas Game and Fish Commission (AGFC) Codes 11.03, 15.05, and 15.12 and fined $2500. On appeal, Noe argues that his convictions must be reversed because the AGFC Codes are preempted by and in conflict with four migratory-bird treaties entered into by the United States of America and that his actions were in full compliance with federal law. We disagree and affirm the convictions.
In 1984, Noe opened Ducks & Ducks, Inc., which raised and sold mallard ducks. Noe sold these captive-reared mallard ducks to hunting clubs, game preserves, retriever trials, and kennel clubs throughout the United States and Canada. On July 9, 2007, Noe was cited by AGFC Wildlife Officers with violations of AGFC Codes 11.03 (prohibiting the aiding, accompanying, or abetting of another in the illegal taking, attempting to take, possessing, buying, or selling of protected wildlife), 15.05 (prohibiting the release into the wild any native or non-native species of wildlife without prior approval of the AGFC), and 15.12 (requiring a Wildlife Breeder/Dealer Permit for those persons who rear, breed, propagate, produce, or distribute any game birds).
On October 15, 2007, the St. Francis County District Court found Noe guilty of violating Codes 11.03, 15.12, and 15.05 (which was merged into the violation of Code 15.12) and fined him $3000. Noe appealed his convictions to the St. Francis County Circuit Court. At trial, Noe admitted that he did not possess a valid Wildlife Breeder/Dealer Permit from the AGFC and that he released and/or sold captive-reared mallard ducks to both residents and non-residents of Arkansas throughout 2007. However, he argued that four treaties the United States entered into with Great Britain, Japan, Mexico, and Russia for the protection of migratory birds were federal law that preempted and conflicted with the AGFC Codes; therefore, he did not have to comply with them.
The trial court disagreed, and on March 9, 2010, it convicted Noe of violating Codes 11.03, 15.05, and 15.12, fining him $2500. In finding him guilty, the trial court stated that the migratory-bird treaties did not preempt the applicable AGFC Codes. Noe filed a timely appeal of these convictions.
The issue of preemption is a question of law, and we review questions of law de novo on appeal. Selmon v. Metropolitan
In August 1916, the United States and Great Britain entered into a migratory-bird treaty. Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702 (U.S.-Great Britain Convention). The United States subsequently entered into three similar treaties with Mexico,
In 1918, Congress enacted the Migratory Bird Treaty Act (MBTA), codified at 16 U.S.C. §§ 703-712, to give effect to the terms of the U.S.-Great Britain Convention.
Noe, 373 F.Supp.2d at 943 (citing 16 U.S.C. § 708).
In December 2004, Noe and two of his customers filed a federal declaratory-judgment action, alleging that certain AGFC Codes were preempted by the MBTA and 50 C.F.R. § 21.13.
In his appeal from the St. Francis County Circuit Court, Noe does not argue (as he did in federal court) that the MBTA, federal statutes, and federal regulations preempt the AGFC Codes. Rather, he argues that the treaties with Great Britain, Mexico, Japan, and Russia preempt the AGFC Codes because each treaty contains an exception specifically authorizing the taking, possessing, and buying or selling of migratory birds for propagating purposes.
Since McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819), it has been accepted that Congress has the constitutional authority to preempt state law. Goforth v. Smith, 338 Ark. 65, 71, 991 S.W.2d 579, 582 (1999). On this issue, the United States Constitution reads as follows:
Goforth, 338 Ark. at 71, 991 S.W.2d at 583 (citing U.S. Const. art. 6, cl. 2).
A state-law claim is preempted by a federal law when (1) congressional enactments explicitly preempt state law; (2) state law regulates conduct in a field that Congress intended the federal government to occupy exclusively; (3) state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress; and (4) compliance with both state and federal law is impossible. Goforth, 338 Ark. at 71, 991 S.W.2d at 583. In any preemption analysis, the overriding principle that must guide our review is whether Congress intended to preempt state law. Emerald Dev. Co. v. McNeill, 82 Ark.App. 193, 197,
We hold that the trial court did not err in finding that Noe failed to satisfy his burden of proving preemption in this case. First, the language of the treaties does not explicitly preempt state law regulating migratory birds and does not purport to exclusively occupy the field of migratory-bird regulation for propagating purposes or for private game farms. In fact, the language of the treaties expressly provides that the exceptions are to be regulated by other authorities.
We likewise hold that the trial court did not err in finding that the AGFC Codes do not conflict with the treaties. We agree that there is no express requirement in the federal treaties that Noe have a permit to sell ducks. Therefore, his failure to obtain an AGFC permit is not a violation of federal law. However, because the treaties do not preempt the AGFC Codes, Noe is required to comply with state law as long as it does not conflict with federal law.
The AGFC Codes, consistent with the language of the treaties, allow the rearing, breeding, propagating, producing, distributing, and selling of ducks with proper approval of the AGFC. Ark. Game & Fish Comm'n Code §§ 11.03, 15.05, 15.12. These state regulations are consistent with the treaties in that they provide additional protection for migratory birds, which in no way conflicts with the purpose or intent of the treaties. Because state regulations are more restrictive than the treaties, compliance
In sum, we hold that the trial court did not err in finding that the AGFC Codes were not preempted by and not in conflict with the migratory-bird treaties that the United States entered into with Great Britain, Mexico, Japan, and Russia. As such, we affirm Noe's convictions.
GLADWIN and MARTIN, JJ., agree.
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