Mr. Jack Gibson, Executive Director Arkansas Livestock and Poultry Commission P.O. Box 5497, One Natural Resources Drive Little Rock, Arkansas 72215
Dear Mr. Gibson:
This is in response to your request for an opinion on the authority of the Arkansas Livestock and Poultry Commission to order the destruction of a diseased poultry flock. Specifically, you indicate that several days ago a "commercial broiler breeder flock" involving in excess of 6,000 birds was diagnosed with "mycoplasma gallisepticum," which you note is a highly pathogenic poultry disease. You note that ordinarily this disease is found only in backyard poultry flocks, as opposed to the larger poultry operations, and therefore inquire as to the Commission's authority to order destruction of the flock.
It is my opinion that the Commission does have the authority to have the flock destroyed, but only in accordance with the provisions of A.C.A. § 2-40-109 (Cum. Supp. 1991) and the rules and regulations of the Commission promulgated thereunder.
Section 2-40-109 provides in subsection (a) as follows:
When the Arkansas Livestock and Poultry Commission determines that any flock1 of chickens, turkeys, ducks, geese, or other poultry is diseased and that the flock should be destroyed and properly disposed of to prevent the spread of the disease, the commission may negotiate for and buy that flock at a price that would reasonably approximate the market value of that flock if it were not diseased and may dispose of the diseased poultry in such manner as it deems appropriate to prevent the spread of disease.
Subsection (b) of the statute provides that if the commission is unable to acquire the flock by negotiation, it shall have the authority to condemn the flock and dispose of it. Subsection (c), however, authorizes the Commission to adopt rules and regulations with regard to the condemnation of such flocks, and requires such rules to provide for an opportunity for the owner of the flock to be heard, to be awarded fair compensation for the birds, and to otherwise be provided due process in the condemnation process.
The Commission has adopted Rules and Regulations pursuant to the statute above. Part II, § 2.01 of the "Regulation Prescribing the Procedures for Condemning a Diseased Poultry Flock" identifies "Mycoplasma Gallisepticum (MG)" as a "pathogenic disease," and provides procedures for the condemnation of flocks infected with the disease. The rule provides that if the State Veterinarian, after consultation with the Arkansas Poultry Federation, determines that this type of disease constitutes a "grave danger to the poultry industry of the township in which the flock is located," he will enter an order directing the disposal of the flock by approved methods. The rule also provides, however, that the State Veterinarian will negotiate with the owner of the affected flock, and after consultation with the Arkansas Poultry Federation, may make an offer of compensation to the flock owner. If the parties are unable to settle the issue of compensation by mutual agreement, a hearing is to be conducted pursuant to Section 1.10 of the Rule. The purpose of the hearing is "to assure the flock owner fair compensation for the birds destroyed." Rule 1.10.
It is therefore my opinion that the answer to your question is "yes," the Commission, acting through the State Veterinarian, does have the authority to order the destruction of a flock infected with mycoplasma gallisepticum, but only in accordance with the procedures outlined above.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh
1 The statute does not place any numerical restrictions upon the term "flock." The ordinary meaning of this term is "a group of birds or mammals assembled or herded together," or "a large number." Webster's Seventh New Collegiate Dictionary (1979) at 320.