The question presented in this appeal is whether the appellee, Arkansas Game and Fish Commission, acted unconstitutionally by declaring Lake Maumelle to be a “zone,” as that term is used in Ark. Const, art. 35, § 8, for the purpose of regulating fishing in the lake. We disagree with the chancellor’s conclusion to the extent he said that the commission could regulate the lake as it pleased because its authority was derived from its contract with the Little Rock Waterworks pursuant to which the commission managed the lake. However, we affirm the result and hold that it was not an unconstitutional or otherwise improper use of the commission’s authority to make one lake a zone for the purpose of regulating the fishing there.
The commission issued a regulation saying that black bass under fifteen inches long could not be taken from the lake. In an earlier action, the appellant challenged the regulation, and the chancellor ruled the regulation was violative of Ark. Const, art. 35, § 8, which provides:
The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and furbearing animals therein, and fix penalties for violations. No rule or regulations shall apply to less than a complete zone, except temporarily in case of extreme emergency.
Thereafter, the commission issued a minute order making every identifiable body of water a separate zone.
Next, the appellant challenged the commission’s action in making each body of water a zone. The chancellor held that the appellant lacked standing to bring the challenge. This court reversed. Magruder v. Arkansas Game & Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985). Upon remand, the chancellor upheld the commission’s action, stating in his order:
That the Arkansas Game and Fish Commission has constitutional authority pursuant to Amendment 35 . . . to regulate animal and fisheries resources, as well as statutory and contractual authority in this limited fact situation, and no vested property right exists in the Arkansas Game & Fish Commission for this particular lake, ....
The chancellor relied on Ark. Stat. Ann. § 19-4223 (Repl. 1980) which gives waterworks commissioners authority to manage municipally-owned waterworks, and Ark. Stat. Ann. § 19-4232 (Repl. 1980) which provides that if waterworks commissioners choose to allow fishing on their premises the game and fish commission regulations on fishing will be in effect and “may not be abrogated by the rules and regulations of the operating authority.” His conclusion seemed to be that regardless of Amendment 35, the commission had authority to regulate the lake because the waterworks commissioners had conferred their management authority upon the game and fish commission.
1. The commission’s authority
The appellant’s position is that the commission has no authority to make a lake a zone. He states the order making each body of water a zone “does not ‘divide the state into zones’ ” as the amendment requires. He cites no authority for that statement. He does, however, discuss the history of the amendment, and he cites Arkansas Game and Fish Commission v. Clark, 192 Ark. 840, 92 S.W.2d 699 (1936), in which we held that a commission regulation applying to only one county was invalid. He said the regulation in question was invalid because it applied to less than the whole state and thus violated Amendment 14 and the prohibition of local or special legislation. To the Clark case we would add Depree v. State, 184 Ark. 1120, 44 S.W.2d 1097 (1932), and its similar holding. The appellant argues these cases show the reason for Amendment 35 limiting the commission to regulating entire zones rather than “local” areas.
The problem with the appellant’s argument is that just the opposite can as easily be said. The Clark and Dupree decisions tied the hands of the commission, forcing its regulations to apply statewide despite the obvious variety among the streams, rivers, lakes and lands found in Arkansas. It is at least equally likely that the amendment, enacted in 1945, was passed to untie, or at least to loosen, the knot.
We are thus not persuaded by the appellant’s argument that the commission may not make a zone of a single lake because of any prohibition to be found in Amendment 35. That leaves only the question whether the commission abused its discretion in doing so.
2. Abuse of discretion
Dr. Larry Aggus, a Fayetteville entomologist, testified that the commission’s minute order making each identifiable body of water a separate zone for regulatory purposes was “state of the art fishery management in the United States,” because each body of water may have different requirements as a “management unit” because of the varieties of fish in it and the nature of the lake or stream. Mr. Kim Erickson, Chief of Fisheries of the Oklahoma Department of Wildlife Conservation, testified that, although they are not called “zones,” the management units in Oklahoma are individual bodies of water, each of which may be subjected to special regulation. The testimony of these witnesses and of Mr. Henderson, an employee of the Arkansas Game and Fish Commission explaining the same regulatory need stated by the other witnesses, went unrebutted by the appellant.
We agree with the appellant that, given this approach, the commission could make every acre in Arkansas a separate zone. As long as the commission did so with demonstrable justification related to its constitutionally-defined purposes, the zones would not be illegal.
In Arkansas State Game and Fish Commission v. Stanley, 260 Ark. 176, 538 S.W.2d 533 (1976), we reviewed an injunction which had been issued to prevent the commission from harvesting timber at Bayou Meto. The chancellor’s finding was that the commission’s action was ultra vires, arbitrary, capricious, and unlawful. We reviewed the testimony and reversed. Some of the language of that opinion discussing the powers of the commission under Amendment 35 applies here:
Judicial interpretation of these powers has been rather limited, but this court has, on occasion, been called upon to review various actions and has commented upon the extent of, and limits on, the constitutional grant. We have held that the Commission has a very broad discretion in determining how wildlife shall be conserved. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, 215 Ark. 229, 219 S.W.2d 948 [1949]; Hampton v. Arkansas State Game & Fish Comm’n, 218 Ark. 757, 238 S.W.2d 950 [1951]. In Wrape, we said that the Amendment is complete within itself and that it was intended by the Amendment to either provide or leave to the Commission, methods for attaining the ends enumerated. See also, State v. Casey, 225 Ark. 149, 279 S.W.2d 819 [1955]. We have said that the powers of the Commission are broad. Arkansas State Game & Fish Comm’n v. Hornaday, 219 Ark. 184, 242 S.W.2d 342 [1951]; State v. Casey, supra. [260 Ark. at 181-182, 538 S.W.2d at 535]
There may well be a difference of opinion about the propriety of the particular procedure adopted to accomplish the basic purposes of Amendment 35, but it certainly cannot be said that there is not respectable authority supportive of the approach being taken. In considering the matter we must remember that the commission is composed of members having knowledge of and interest in wildlife conservation. [260 Ark. at 189, 538 S.W.2d at 540.]
Amendment 35 does not define “zone.” See Shellnut v. Arkansas Game and Fish Commission, opinion on rehearing, 222 Ark. at 32, 258 S.W.2d at 575 (1953). Given the broad authority the people have conferred on the commission, our previous recognition that the intent of Amendment 35 is to take advantage of the expertise of that body, and the evidence in this case that they are exercising that expertise in a way that is not only reasonable but also laudable in the opinion of professionals, we can hardly say there was an abuse of the commission’s discretion when it made each body of water a separate zone.
One dissenting opinion in this case accuses the majority of not using common sense and of abandoning the constitution rather than interpreting it. No evidence in the record before us supports the conclusion that the designation of each body of water as a separate zone is lacking in common sense. The evidence before the court is that it makes not only common sense but also scientific sense to recognize that each body of water has different characteristics which may require different regulatory approaches. No authority whatever is cited in the dissenting opinion in support of the conclusion that we are abandoning rather than interpreting the constitution.
The other dissenting opinion also cites no authority for its apparent conclusion that a particular body of water cannot constitute a “zone.” Reference is made to the Shellnut case, as being supportive of the majority’s position, and to the Clark case, discussed in Part 1. above, as having been a precursor to Amendment 35 with a different suggestion of the impetus it may have given the authors of the amendment. We disagree that the decision in the case before us now will offer an insidious opportunity for rampant “spot” regulation or zoning. As stated at the outset, the issue here is whether the appellee acted unconstitutionally in making Lake Maumelle a “zone.” We find the appellee made the case required by Arkansas Game and Fish Commission v. Stanley, supra, that its decision was not arbitrary.
Affirmed.
Hickman and Glaze, JJ., dissent. Purtle, J., not participating.