Is the Arkansas AG's 1979 opinion that the Adjutant General could sell harvested timber from Camp Robinson still valid, and must the Military Department now use the Marketing & Redistribution Section to make those sales?

Plain-English summary

Major General Mark H. Berry, the Adjutant General of Arkansas, asked whether Op. Att'y Gen. 79-114 (a 1979 opinion concluding the Adjutant General could sell timber harvested from Camp Robinson) was still good law, and whether the Military Department had to use the Marketing & Redistribution Section of the Office of State Procurement to handle those sales.

The AG's answer was a nuanced yes-and-no. The 1979 opinion's substantive conclusion was still valid: the Adjutant General remained the custodian of property at Camp Robinson (now codified at Ark. Code Ann. § 12-63-402, formerly § 11-1802) and had statutory authority to "lease or sublease such property or portions thereto for such rentals ... as he shall deem to be in the best interest of the National Guard" (§ 12-63-403(a)). That authority included selling severed timber.

But the procedure had changed. In 1979, use of the Marketing & Redistribution Section by state agencies was optional. The 1979 opinion noted that "no procedure has been approved per se by the [L]egislature for the sale of such timber" and pointed the Adjutant General to what is now § 12-63-305 (surplus military real property). That permissive regime ended with Act 589 of 2001, which made use of M&R mandatory. Section 25-8-106(b)(2)(A) now requires state agencies to use M&R to dispose of surplus personal property unless specifically exempted in writing by the State Procurement director.

The bridge between timber and "personal property" was the legal rule that timber severed from real property becomes personal property. Standing timber is part of the real estate; once cut, it is personal property. Since severed timber is personal property and the Adjutant General was selling severed timber, the sale fell under § 25-8-106's mandatory M&R requirement.

The AG also flagged two practical points. First, the Adjutant General had to comply with applicable federal law and obtain any federal approvals needed for the timber sale (Camp Robinson is a National Guard installation with federal nexus). Second, under § 12-63-403(d), the proceeds from any sale must be used for "the maintenance, operations, improvements, and personnel costs of Camp Robinson." The Military Department could not divert the timber-sale revenue to other purposes.

The procedural answer was therefore: yes, use M&R; or, alternatively, request and receive a written exemption from the State Procurement director.

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

Camp Robinson is the Arkansas National Guard's primary training installation, located in North Little Rock. Ark. Code Ann. § 12-63-402 designates the Adjutant General as custodian of all military property and reservations belonging to the State of Arkansas, including Camp Robinson. Section 12-63-403(a) authorizes the Adjutant General to lease or sublease such property "as he shall deem to be in the best interest of the National Guard."

The 1979 opinion (Op. Att'y Gen. 79-114) extended that leasing authority to the sale of severed timber. The 1979 reasoning was straightforward: if the Adjutant General can lease the land for income, the Adjutant General can also harvest timber and sell it for the same purpose. The 2015 opinion accepted that reasoning as still good.

What changed was the procedural overlay. Ark. Code Ann. § 25-8-106, as amended by Act 589 of 2001, required state agencies to use the Marketing & Redistribution Section of the Office of State Procurement to dispose of surplus personal property. The pre-2001 statute (Ark. Stat. Ann. § 5-813 (Repl. 1976)) had said only that state agencies "are authorized to utilize" M&R, which made participation optional. Act 589 of 2001 changed "authorized" to required.

The categorization of severed timber as personal property is a long-standing common-law principle. Standing timber attached to land is part of the real estate. Once cut and separated, the wood is chattel (personal property). The Military Department's timber sales would therefore be sales of personal property and fall under § 25-8-106.

The 1979 opinion had pointed to what is now § 12-63-305 (procedures for disposing of surplus military real property). The AG in 2015 distinguished that path: real property versus personal property. Section 12-63-305 covered the real-property surplus path; § 25-8-106 covered the personal-property surplus path. Severed timber went down the personal-property path.

Section 12-63-403(d) added a use-of-proceeds restriction: any funds the Military Department receives from such sales must be used for the maintenance, operations, improvements, and personnel costs of Camp Robinson. The Military Department could not treat timber-sale proceeds as general operating money.

Common questions

Did the AG say the 1979 opinion was wrong?
No. The AG said the 1979 opinion's substantive conclusion (Adjutant General has authority to sell Camp Robinson timber) was still valid. Only the procedural requirements had changed.

What is M&R and why does it matter?
The Marketing & Redistribution Section is a unit within the Office of State Procurement that handles disposition of surplus state personal property. It runs sales, manages bidding, and ensures uniform procedure across state agencies. Mandatory use means agencies cannot sell surplus property on their own initiative.

Could the Military Department skip M&R if it found a better buyer?
Only by obtaining a specific written exemption from the State Procurement director. Without that exemption, M&R is mandatory.

Does this apply to standing timber or only cut timber?
The opinion specifically addresses severed timber, which is personal property. Standing timber would be part of the real estate and would go through the surplus-real-property procedure in § 12-63-305 instead, if the underlying land were being disposed of. But typical timber sales involve harvest and removal, which makes the timber personal property at the point of sale.

Where does the money from a timber sale go?
Under § 12-63-403(d), proceeds must be used for the maintenance, operations, improvements, and personnel costs of Camp Robinson. The Military Department cannot direct the proceeds to other purposes.

Does federal law affect this?
Possibly. Camp Robinson is a National Guard installation with federal-state shared characteristics, and the AG flagged that federal laws or regulations might apply and federal approvals might be needed. The opinion did not analyze federal law in detail but warned the Military Department to be mindful of it.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-033
May 19, 2015

Major General Mark H. Berry
The Adjutant General
Camp Joseph T. Robinson, Bldg. 6000
North Little Rock, Arkansas 72199-9600

Dear General Berry:

This is in response to your request for my opinion concerning the continuing validity of an opinion previously issued by this office involving the harvesting and sale of timber located on Camp Robinson. Your questions are:

1. Is the opinion provided in the Attorney General's opinion dated August 24, 1979, still valid under current Arkansas law?
2. Is the Arkansas Military Department required to market any harvested timber through the Marketing and Distribution Office of the Department of Finance and Administration?

RESPONSE

In my opinion, Op. Att'y Gen. 79-114 remains valid to the extent it concludes that the Adjutant General is the custodian of the property at Camp Robinson and may sell timber harvested there. But as explained in response to your second question, the Military Department must now go through the Marketing and Redistribution Section (M&R) of the Office of State Procurement for such sales unless the Department obtains a specific written exemption from the State Procurement director. Accordingly, the answer to your second question is "yes," in my opinion.

DISCUSSION

Question 1: Is the opinion provided in the Attorney General's opinion dated August 24, 1979, still valid under current Arkansas law?

In the opinion to which you refer, it was determined that the Adjutant General had the authority to sell timber harvested from the Camp Robinson reservation. Two statutes formed the basis for this opinion. One was the law that makes the Adjutant General custodian over all military property and reservations belonging to the State of Arkansas. The other states that the Adjutant General "shall have the authority to lease or sublease such property or portions thereto for such rentals ... as he shall deem to be in the best interest of the National Guard."

While the cited statutes at the time dealt with the Adjutant General's authority to lease or sell real property and improvements at the camp, it was (and still is) reasonable to opine that this authority extended to selling severed timber. Where I must now depart from that opinion because of subsequent changes in the law is the procedure the Adjutant General is to follow for the sale of such timber. This leads me to your second question.

Question 2: Is the Arkansas Military Department required to market any harvested timber through the Marketing and Distribution Office of the Department of Finance and Administration?

Yes. Section 25-8-106(b)(2)(A) of the Arkansas Code requires state agencies to use the services of M&R to dispose of surplus personal property, unless specifically exempted in writing by the director of the Office of State Procurement. This requirement represents a significant change in the law from what it was in 1979.

At the time of the 1979 opinion, the use of M&R by state agencies was optional. (See Ark. Stat. Ann. § 5-813 (Repl. 1976) ("All State Agencies ... are authorized to utilize the services of the Marketing and Redistribution Section of the Department of Finance & Administration.").) This permissive authorization was changed to a requirement with the enactment of Act 589 of 2001.

In fact, that opinion made no mention of the Adjutant General using M&R to handle timber sales from Camp Robinson. The opinion instead stated that "no procedure has been approved per se by the [L]egislature for the sale of such timber," and directed the Adjutant General to use the procedures outlined in what is now Ark. Code Ann. § 12-63-305 (Repl. 2003) regarding the disposal of surplus military real property. But timber severed from real property becomes personal property, and Ark. Code Ann. § 25-8-106 (Repl. 2014) now requires that all state surplus personal property sales go through M&R.

It is therefore my opinion that the answer to your second question is "yes." The Military Department must utilize the services of M&R for its severed timber sales in accordance with Ark. Code Ann. § 25-8-106 and in line with the rules promulgated by the Office of State Procurement and the Department of Finance and Administration. If any federal laws or regulations apply or approvals are needed, the Military Department must be mindful of them as well. Finally, all funds received by the Military Department from such sales must be used for the maintenance, operations, improvements, and personnel costs of Camp Robinson.

Assistant Attorney General Ray Pierce prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/RP:cyh