Harrison Daily Times
Hog farm lawsuit ruling coming soon
By JAMES L. WHITE jamesw@harrisondaily.com
MOUNTAIN HOME — With the potential forced closing of C&H Hog Farm near Mt. Judea, Newton County Circuit Judge John Putman told parties in a lawsuit Tuesday that he would rule as soon as possible on a motion to dismiss the suit.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea. Manure from the hogs is collected in ponds before being spread on approved pasture land.
The PCE remanded the denial back to ADEQ because there had been no public notice. In September, C&H appealed PCE’s decision that just remanded the permit back to ADEQ instead of reversing and remanding the decision for denial.
Judge Putman issued a stay of ADEQ Jan. 10 denial, saying his court gained jurisdiction when C&H appealed. The order said there could be no further action in the case until he issued further rulings.
In the meantime, ADEQ issued public notice of intent to deny the permit and held two public hearings, then issued another denial Nov. 19, ordering closure of the hog farm a month later.
C&H filed a motion to hold ADEQ in contempt of court for issuing that denial even though Putman had issued the stay in September.
The Tuesday hearing was scheduled to be heard in Mountain Home where Putman was already holding court because it was the only date upon which attorneys involved could agree.
PCE was represented by deputy attorneys general Dara Hall and Sarah Tacker.
Hall began arguments by saying that PCE protected C&H’s right to due process by remanding ADEQ’s decision back to the agency to follow state law by making public notice, then PCE closed its docket.
Hall said that after ADEQ followed orders to provide public notice, then accepted public comments and issued the Nov. 19 denial the Jan. 10 denial was moot.
Hall said the circuit court can only hear appeals of final decisions, but the decision hadn’t been finalized until Nov. 19. As such, the circuit court couldn’t provide any relief for C&H.
Judge Putman asked Hall about the decision to remand without reversing ADEQ’s decision. Hall said the ultimate consequence was the same and the court could only hear an appeal after C&H has exhausted all other administrative appeals of a final decision.
That would include an appeal to PCE of ADEQ’s November denial. PCE moved for dismissal of C&H’s current appeal.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit.
Little Rock lawyer Richard Mays, representing the watershed and canoe club, said the administrative law judge in the appeal to PCE of the Jan. 10 decision did not include reversal of ADEQ’s decision for fear that doing so would indicate the remand was done on the merits of the permit denial rather than just the procedure ADEQ failed to follow.
Mays told Putman that no one is opposed to the hog farm other than its location so near Big Creek, a tributary of the Buffalo National River. His clients and other environmentalists fear manure from the farm will eventually pollute the Buffalo.
C&H was represented by Little Rock lawyers Bill Waddell and Chuck Nestrud.
Waddell said the Dec. 19 closure date set by ADEQ was key to the decision. The deputy attorneys general were using arguments the PCE hadn’t even approved, he said.
Nestrud said PCE didn’t give ADEQ any instructions regarding the reprimand, so ADEQ was able to issue the Nov. 19 denial prior to the Tuesday hearing, which had been scheduled since late October, and give the PCE the argument that the Jan. 10 denial was moot.
Putman asked the lawyers who would be held in contempt of court should he rule on that motion. Waddell said that party would be ADEQ because it not only ignored the stay Putman had ordered in September, it also ordered the Dec. 19 closure date.
Hall also told Putman that PCE filed a new supplemental motion in the case Monday. Putman hadn’t seen that motion, nor the answer C&H filed later that same day.
Putman said he had hoped to rule on the motion to dismiss from the bench Tuesday, but the additional motions meant he would have to review them before making a ruling.
However, with the Dec. 19 closure date looming, Putman said he would make a ruling on the motion to dismiss as soon as possible.