DIVISION III
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
ANDREE LAYTON ROAF, JUDGE
CACR 01-1393
December 4, 2002
LANCE THROCKMORTON APPEAL FROM WHITE COUNTY
APPELLANT CIRCUIT COURT
[CR 2000-84-2B]
v.
HONORABLE BILL MILLS,
STATE OF ARKANSAS CIRCUIT JUDGE
APPELLEE
AFFIRMED
Lance Throckmorton was convicted in White County Circuit Court of violation of Arkansas Game & Fish Commission Regulation 6.07, which requires all persons to wear "hunter orange" while hunting. Throckmorton was fined $50 and assessed court costs. On appeal, Throckmorton argues that the trial court erred in finding him guilty of a violation of the regulation because the State failed to meet its burden of proof that the Commission complied with the requirements of the Administrative Procedures Act in promulgating the regulation. We affirm.
On October 16, 1999, Officer Dennis Widener of the U.S. Fish and Wildlife Service was working along the boundary of the Bald Knob National Wildlife Refuge. While patrolling the area, he approached Throckmorton after seeing him and another gentleman in a deer stand without the required orange vest. After confirming that Throckmorton was licensed to hunt, Widener cited him for violation of Game & Fish Regulation 6.07, for failing to wear his hunter's orange vest.
Throckmorton challenged the citation, and a trial was held on September 28, 2000, in Searcy Municipal Court. Throckmorton was found guilty and fined $100. He appealed this conviction to circuit court, and that trial was held on August 31, 2001. At trial, Throckmorton testified that he was not hunting at the time Widener approached him and that he had just finished a deer drive, was uncomfortably warm, and had removed his coat to cool off for a moment. He stated that he had just climbed into the deer stand when Widener saw him. Widener testified as well and stated that he observed Throckmorton and another gentleman, John Capps, sitting in a deer stand without the required orange hunting vests. He also testified that he followed Throckmorton to his vehicle to retrieve his license and that after confirming that he had a hunting license, he cited Throckmorton for violation of Regulation 6.07. The circuit court found Throckmorton guilty of violating the regulation and fined him $50. From that conviction comes this appeal.
Throckmorton argues on appeal that, at the time of the offense, Ark. Code Ann. § 25-15-204 (Repl. 2002) required that the Game & Fish Commission give thirty (30) days notice of any amended changes to the Commission's regulations, that the Commission failed to comply with the statutory requirements, and that such noncompliance invalidated the regulation. We disagree.
Regulation 6.07 of the Arkansas Game & Fish Commission was enacted in 1992. At that time, the Administrative Procedures Act, in pertinent part, provided that:
(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:
(1) Give at least twenty (20) days notice of its intended action.
(A) The notice shall include a statement of the terms or substance of the intended action, or a description of the subjects and issues involved, and the time, the place where, and the manner in which interested persons may present their views thereon.
. . . .
(C) The notice shall be published as specified by law or, if no manner of publication is so specified, then in those newspapers of general dailycirculation and, where appropriate, in those trade, industry, or professional publications which the agency may select;
(Emphasis added.) In 2001, the Administrative Procedures Act was amended to extend the time of public notice to thirty (30) days. Ark. Code Ann. § 25-15-204 (Repl. 2002).
Our caselaw is well-settled on the retroactive application of legislation. An amendatory act of legislation will not be construed as retroactive when it may be reasonably construed otherwise. U.S. Term Limits, Inc., v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994) (citing Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979)). Additionally, legislation will be considered prospectively applied unless the Legislature expresses an intent to have the legislation applied retroactively. See City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001). In this instance, the Legislature did not express an intent to have the recent amendment to the Administrative Procedures Act applied retroactively.1 Consequently, the 2001 amendment to the Administrative Procedures Act is not applicable to this case, and we must determine whether the Commission complied with the Administrative Procedures Act in effect at the time the regulation was enacted; we find that it did.
The State supplemented the appellant's addendum with State's Exhibit "A," which includes the Statement of Legal Advertising. The Statement of Legal Advertising states that the Commission placed a public notice in the Arkansas Democrat Gazette on February 23, 1992, regarding the scheduled hearing on the enactment of Regulation 6.07. This public notice was twenty-three days prior to the hearing held on March 16, 1992. The published notice included a list of items on the agenda, which included an item on "[i]mplementation of and/or amendment of regulations pertaining to the Enforcement Division of Arkansas Game and Fish Commission." It is clear thatthe Commission complied with the 1992 version of Ark. Code Ann. § 25-15-204, as evidenced by the Legal Statement of Advertising and the public notice placed in the Democrat Gazette.
Affirmed.
Stroud, C.J., and Hart, J., agree.