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Judge’s orders complicate state panel’s deliberations - Democrat Gazette

26 Jan 2019 9:34 AM | Anonymous member (Administrator)

Arkansas Democrat Gazette

Judge’s orders complicate state panel’s deliberations                                               

 Emily Walkenhorst | Today at 2:13 a.m. | Updated January 26, 2019 at 2:13 a.m. 

An environmental regulatory commission addressed what one attorney called a "God-awful mess" Friday by dismissing a hog farm's appeal of its permit denial, arguing that the commission's hands were tied by a circuit judge's order that was requested by the hog farm owners.

The dismissal means the Arkansas Department of Environmental Quality's order shutting down C&H Hog Farms' new operating permit stands.

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At the same time, Newton County Circuit Judge John Putman has already asked the department to appear in his court and argue why that order was not in contempt of his court. Putman has issued a stay on an Arkansas Pollution Control and Ecology Commission order that allowed the department to make a second denial of C&H's permit.

C&H appealed the department's second denial to the commission in December. The owners asked the commission to stay the department's decision until legal actions were seen through.

On Jan. 18, Putman issued another order stating, "At the present time, this court and no other agency or tribunal has jurisdiction over the Plaintiff's application for a Regulation No. 5 permit."

That left commissioners wondering what they could do with the active C&H appeal before them without violating Putman's order that restrains them from acting.

Department regulations require the commission to act upon a request for a stay in a permit appeal at the first commission meeting after the request, commission Administrative Law Judge Charles Moulton explained to the members. The commission had no choice but to act, lest they violate state rules, he said. Yet acting could lead Putman to believe the commission was violating his order.

"This is unprecedented, there's no doubt about it," Moulton said.

Sam Ledbetter, an attorney for the intervening Ozark Society, said the problem could be avoided if C&H withdrew its appeal of the permit denial.

"They're trying to drag this thing out," Ledbetter said of C&H, before calling the situation a "God-awful mess" and noting the two C&H attorneys' more than 75 years of legal experience.

"I've never seen anything like this before in my life," he said.

C&H attorney Chuck Nestrud countered that the farm's owners needed to appeal.

"If we did not appeal that decision, we would not have exhausted our administrative remedies," he said.

The commission discussed what to do with the appeal for more than two hours, with the terms "confusing mess," "confusing morass of maneuvering" and "blowing my mind" all used.

Over and over, commissioners questioned whether any of the motions proposed would not be considered in violation of Putman's stay and determination that he had sole jurisdiction.

Court-transfer snag holds up hog farm's suit against Arkansas agency

"I just feel like the horse is on its back and being beaten beyond death at this point," Moulton said nearly an hour and a half into the proceedings.

Other than the one that passed, motions included dismissing the C&H appeal and vacating the department's decision; ceasing to accept new docket filings; tabling the decision until after department officials appear in Newton County Circuit Court to argue why they should not be held in contempt of court (Feb. 27); and adjourning the meeting.

"It seems to me that, if we want to take any action that is consistent with the judge's order," then dismissing the appeal and vacating the decision "is the only way forward to deal with this," Commissioner Chris Gardner said.

Moulton said none of those were legal options, and that vacating the department's decision would still constitute an action on the permitting decision.

An hour and a half into the meeting, Gardner proposed another idea.

"We will dismiss the appeal because of Judge Putman's decision that we don't have subject matter jurisdiction," he said. Then they'd let Putman figure out whether that was OK.

The motion mirrored the first one considered by the commission, proposed by Commissioner Doug Melton, but removed the words "with prejudice." It passed without opposition.

Including the words "with prejudice" would have meant that C&H could not appeal the denial again.

Melton's proposal had been defeated 6 to 5.

Of the 12 men present on the commission Friday, none vocalized opposition to Gardner's motion on a voice vote. Commission Chairman Robert Reynolds votes only in the event of a tie. The commission's 13th member, Bekki White, was absent.

After Friday's hearing, Nestrud said he and others were reviewing the case but "most likely will appeal" the commission's dismissal.

Nestrud had asked the commission to make one of two decisions: take no action except passing an order that would affirm C&H can stay open during the circuit court stay; or stay the department's denial during the appeal process.

Commissioners argued C&H couldn't argue that the commission had no jurisdiction and then ask the commission to act by imposing a stay.

Department attorneys maintain that the permit denial was permissible because the department is not a party in the case in which Putman issued the stay.

The lawsuit from which the order stems is C&H's appeal of the Arkansas Pollution Control and Ecology Commission's decision to remand the department's original permit denial back to the department for a draft denial and a second round of public comments.

C&H appealed the commission's order because it "remanded" but did not "reverse" the department's original permit denial. Putman issued the stay in October on the department's first permit denial and on the commission's decision to remand the permit issue.

C&H has two other active legal cases related to its permit denial, one of which is also overseen by Putman.

Last summer, C&H appealed a commission decision to uphold an order by Moulton denying motions made by C&H that argue that its original permit was indefinitely active until another type of permit was issued.

The final case, C&H's lawsuit against the department for alleged violations of the Arkansas Freedom of Information Act, still does not appear in a Pulaski County Circuit Court records search more than a week after Newton County Circuit Court officials said they would mail the case to the county.

Putman, who also presided over that case, ordered the case to be transferred to Pulaski County on Nov. 30.

Metro on 01/26/2019

Print Headline: Hog farm's permit appeal is dismissed

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