Is the Arkansas Department of Health required to enforce its public water system rules (including fluoridation), and what can a citizen do if the Department refuses?

Plain-English summary

Senator Bryan King asked six questions about the Arkansas Department of Health's enforcement of the rules governing public water systems, with particular attention to fluoridation. The AG grouped the answers by topic.

The Department of Health (and the State Board of Health that adopts the rules) is responsible for ensuring public water suppliers follow the regulations governing public water systems. Section 20-7-136(c) of the Arkansas Code tasks the Board with adopting fluoridation rules covering permissible fluoride concentrations, equipment, recordkeeping, reporting, and testing. The Board's rules are implemented by ADH.

ADH does not have discretion to selectively enforce. Ark. Code Ann. § 25-15-214 makes it illegal for an agency to "unlawfully, unreasonably, or capriciously fail, refuse, or delay to act" in any case of rulemaking or adjudication. The statute is a check on selective enforcement: if a regulation is on the books, the agency cannot pick and choose which ones to ignore.

If ADH falls short on its enforcement duties, accountability runs two ways. Internally, the agency head and the Department's employees are responsible to the Board for ensuring the Department's legal obligations are met. Externally, any person "injured by a state agency's alleged inaction" can sue under the Administrative Procedures Act. The Act gives an injured citizen a cause of action against the agency for its failure to act.

The "redress of grievances" framing in Question 5 prompted a side discussion. The phrase comes from the First Amendment to the U.S. Constitution and Article 2, § 4 of the Arkansas Constitution. Historically, "petition for redress of grievances" was an independent right with its own procedural force (the Magna Carta first recognized it; English and colonial assemblies treated petitions as serious business and referred them to committees). Modern jurisprudence has largely collapsed the petition right into freedom of speech (Boy Scouts v. Dale, Hague v. CIO). So "filing a redress of grievances" is not a technical legal procedure in 2015. The practical citizen remedy is an APA suit under § 25-15-214.

The opinion does not address the underlying policy question (whether water fluoridation is a good idea). The AG was answering a question about ADH's legal obligations, not about whether fluoridation should continue.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas water fluoridation policy is statutory. Ark. Code Ann. § 20-7-136(c) directs the State Board of Health to adopt rules covering permissible concentrations of fluoride, equipment requirements, recordkeeping, reporting, and testing. The ADH Rules and Regulations Pertaining to Public Water Systems implement those rules.

The Board adopts; the Department enforces. Ark. Code Ann. §§ 20-7-101 to -109 (as amended by Act 1100 of 2015) set up the Board's structure and the Department's relationship to it. The Board makes policy decisions through rulemaking; the Department carries those policies out in day-to-day enforcement.

The selective-enforcement bar comes from the Administrative Procedures Act. Section 25-15-214 makes "unlawfully, unreasonably, or capriciously" failing to act a violation. The Act also provides judicial review and a cause of action for affected parties. A citizen who can show injury can sue.

The discussion of "redress of grievances" was the AG addressing the precise framing of Senator King's question. The First Amendment phrase has historical depth (the right traces back to the Magna Carta) but limited modern procedural content beyond what the speech and assembly clauses already protect. The opinion did not suggest the constitutional right is dead, only that it does not give citizens a standalone procedure separate from APA litigation.

Common questions

Can ADH refuse to enforce a fluoridation rule it disagrees with?
No, per the AG's reading. § 25-15-214 bars an agency from capriciously failing to act. If the rule is on the books, ADH must enforce it.

What can a citizen do if ADH won't enforce?
Sue under the Administrative Procedures Act. The citizen needs to show injury from the agency's inaction, but if that threshold is met, the suit is available.

Is "filing a redress of grievances" a real legal procedure?
Not as a standalone procedure in 2015. The constitutional right to petition exists, but its practical content has largely been absorbed into the speech and assembly clauses. The operative remedy for an agency-inaction grievance is APA litigation, not a separate petition-filing procedure.

Could the General Assembly intervene?
The legislature can change the underlying rules through legislation (as Act 1100 of 2015 did to the ADH framework). It can also conduct oversight hearings and pressure ADH politically. But the AG opinion was about legal remedies, and the legislative remedy is policy-level, not litigation.

Does this opinion say anything about whether fluoridation should continue?
No. The AG opinion is about ADH's enforcement obligations, not about the merits of fluoridation policy. That is a question for the General Assembly and the Board, not the AG.

Could the agency head themselves be sued?
The opinion frames internal responsibility as running through the agency head and the Board. External litigation under the APA typically names the agency, but the agency head may be named in their official capacity.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-017
April 29, 2015

The Honorable Bryan King
State Senator
871 CR 814

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Green Forest, Arkansas 72638

Dear Senator King:

I am writing in response to your request for an opinion on several questions regarding the fluoridation of public water. You provide the following background for your questions:

This matter is in regards to the fluoridation of public water and the Arkansas Department of Health Rules and Regulations Pertaining to Public Water Systems, especially Section VII Operation, Paragraph G.

You ask the following six questions:

1. Is the Arkansas Department of Health (ADH) responsible for ensuring that public water suppliers follow the rules and regulations pertaining to public water systems?
2. If the answer to Question 1 is "yes," is the ADH responsible for deciding which rules and regulations are enforced?
3. Is the ADH required by law to make sure that all rules and regulations are followed by the water operators?
4. If the ADH is not performing its job requirements by not enforcing all rules and regulations pertaining to its department, whose responsibility is it to hold it accountable to follow the law?
5. Could an elected official or resident of the State of Arkansas file a redress of grievances if all laws, rules and regulations are not followed?
6. Who is responsible for ensuring that the ADH complies with the law and is performing protocol?

RESPONSE

The answer to Question 1 is "yes." If Question 2 is asking whether the Department has discretion to selectively enforce regulations, then the answer is "no." The answer to Question 3 is "yes." The answer to Questions 4 and 6 is twofold. Within the Department, public employees and the agency head are responsible to ensure that the Department fulfills its legal obligations. Outside the Department, all persons who have been injured by a state agency's alleged inaction are authorized to file suit under the Administrative Procedures Act, specifically A.C.A. § 25-15-214. The answer to Question 5 is that the Arkansas citizen, if injured by the agency's alleged inaction, could file a lawsuit under the Administrative Procedures Act.

DISCUSSION

Because several questions overlap, I will group them by topic instead of addressing them sequentially.

Question 1: Is the Arkansas Department of Health (ADH) responsible for ensuring that public water suppliers follow the rules and regulations pertaining to public water systems?
Question 3: Is the ADH required by law to make sure that all rules and regulations are followed by the water operators?

The answer to both questions is "yes." The General Assembly has tasked the State Board of Health with adopting regulations relating to fluoridation:

The State Board of Health shall adopt rules relating to the fluoridation of water systems that shall include without limitation:
(1) Permissible concentrations of fluoride to be maintained by a water system; and
(2) Requirements and procedures for maintaining permissible concentrations of fluoride including without limitation:
(A) Necessary equipment;
(B) Recordkeeping;
(C) Reporting; and
(D) Testing.

This statute speaks about the authority of the "State Board of Health." The Board's regulations are implemented by the Arkansas Department of Health.

Question 2: If the answer to Question 1 is "yes," is the ADH responsible for deciding which rules and regulations are enforced?

If this question is asking whether ADH has the authority to selectively enforce applicable statutes and regulations, then the answer is "no." There are many bases for this conclusion. One such basis is A.C.A. § 25-15-214, which makes it illegal for an agency to "unlawfully, unreasonably, or capriciously fail, refuse, or delay to act" in any "case of rule making or adjudication."

Question 4: If the ADH is not performing their job requirements by not enforcing all rules and regulations pertaining to their department, whose responsibility is it to hold them accountable to follow the law?
Question 6: Who is responsible for ensuring that the ADH complies with the law and is performing protocol?

The answer to Questions 4 and 6 is twofold. Within the Department, public employees and the agency head are responsible along with the Board for ensuring that the Department fulfills its legal obligations. Outside the Department, all persons who have been injured by the Department's alleged inaction are authorized to file suit under the Administrative Procedures Act, specifically A.C.A. § 25-15-214.

Question 5: Could an elected official or resident of the State of Arkansas file a redress of grievances if all laws, rules and regulations are not followed?

As noted above, citizens are authorized by statute to sue for injuries caused by an agency's alleged inaction. This might, in some sense, be considered a "redress of grievances." But, technically, "filing a redress of grievances" would not be a recognized way to challenge any alleged inaction.

The term "redress of grievances" is found in the First Amendment to the U.S. Constitution: "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." A similar provision is found in Article 2, section 4 of the Arkansas Constitution: "The right of the people peaceably to assemble to consult for the common good, and to petition, by address or remonstrance, the government, or any department thereof, shall never be abridged." Though the right to petition was originally distinct from the rights of speech and assembly, the right to petition has now "almost completely collapsed into freedom of speech." (David Bernstein, Freedom of Assembly and Petition, The Heritage Guide to the Constitution, 316-317 (2005).)

Under contemporary jurisprudence, the right to petition is mostly considered a right to associate with other groups or persons to collectively express certain views. See generally Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Hague v. CIO, 307 U.S. 496 (1939).

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

Leslie Rutledge
Attorney General
LR/RO:cyh