concurring. On September 29, 1998, the chancery court ordered the State of Arkansas to monitor Horseshoe Lake to make sure that the decreed lake levels were followed by Lowell Taylor. On July 2, 1999, the chancery court ordered the State of Arkansas to take lake level readings on Horseshoe Lake at least twice a month and report to the court and to the attorneys of record. On July 28, 1999, the chancery court directed officials from Arkansas Game and Fish Commission and Arkansas Soil and Water Commission, neither of which was a party to the action, to appear and tell the court why the two commissions should not be responsible for monitoring the lake levels. On September 10, 1999, the chancery court held that the two Commissions were obligated by law to oversee water levels and found that the State of Arkansas’s failure to monitor Horseshoe Lake constituted arbitrary and capricious conduct.
The majority opinion correctly concludes that the two state commissions were never joined as parties to the action and, thus, could not be held accountable for failure to act. Having the State of Arkansas as a party was simply not enough to bring specific state commissions before the court.
By the same token, I cannot condone the argument made by counsel from the Attorney General’s office at oral argument that he took the chancery court’s orders to mean that counsel himself and the Attorney General’s staff were to travel to Horseshoe Lake in Crittenden County to gauge the lake levels. That is an unreasonable interpretation of the court’s orders. Clearly, the chancery court did not have counsel from the Attorney General’s office in mind when he ordered the State to check lake levels. Though the proper commissions to perform the task at hand were not before the court, it strains credulity for counsel for the Attorney General’s office to argue that he believed he was the enforcement mechanism for the State.