SCOTT LILES, Baxter Bulletin
Published 9:24 p.m. CT Feb. 25, 2019
The Arkansas Supreme Court has been asked to review and stay all proceedings in a Newton County Circuit Court case involving a hog farm operating near the Buffalo National River.
The Arkansas Department of Environmental Quality filed the request last week, arguing that Newton County Circuit Court Judge John Putman had reached beyond his jurisdiction.
Putman went too far, the department argues, when he issued orders suggesting he had stayed any department actions related to C&H Hog Farms’ permit application and requiring ADEQ to appear in court and explain why it should not be held in contempt of court for denying the hog farm’s permit application in November.
On two occasions last year, ADEQ denied C&H’s application for a new operating permit, which the hog farm needs to remain in business. C&H has continued to operate while it appealed those rulings to first the Arkansas Pollution Control and Ecology Commission, and then to the Newton County Circuit Court.
Putman issued an order in October staying the commission decision that had been appealed to his court. The commission serves as the department’s appellate body and had remanded C&H’s denied permit application back to ADEQ for re-issue as a draft denial, instead of a final decision. C&H appealed that decision to the circuit court because the commission did not reverse the department’s decision to deny the permit.
In January, Putman issued an order arguing that he has total jurisdiction over matters pertaining to C&H’s application due to his stay order.
ADEQ is not a party to the Newton County case in which Putman issued his orders. Because of that, the department argues in its filing, ADEQ “has no adequate remedy” to challenge the circuit court’s orders “except by petition for an extraordinary writ.”
The department asks for a writ of certiorari, which would allow the Supreme Court to review the case and vacate Putman’s orders. In the event the state’s highest court does not grant that writ, ADEQ requests that the Supreme Court issue a writ of prohibition that would order Putman to terminate his order for the department to appear in court on the contempt allegations.
Since the issue C&H appealed to the circuit court was limited to the commission’s decision, the circuit court’s jurisdiction does not extend to control of the hog farm’s permit application or any decisions surrounding it, ADEQ argues in its Supreme Court filing.
The department argues in its filing that it has the “exclusive power and duty to make permitting decisions.” The department is statutorily required to complete its permitting process, it notes, and that process had already advanced to the public comment period before Putman issued his stay.
Attorneys for C&H last week filed their fourth circuit court case related to the permit denial. The hog farm appealed the commission’s dismissal of its appeal of its second denial. The commission dismissed the appeal in late January, arguing that it had no jurisdiction because of Putman's stay order.
In 2013, C&H Hog Farms obtained a five-year permit to operate a large-scale hog farm next to Big Creek, a tributary of the federally protected Buffalo River. The farm houses 6,500 hogs, and the animals’ liquid waste is retained in two ponds and sprayed across 600 acres of adjacent farmland as fertilizer.
Since it started operation, the hog farm has been opposed by conservation groups worried that the hog waste could potentially pollute the Buffalo.
C&H Farms of Vendor is owned by cousins Jason Henson, Phillip Campbell and Richard Campbell.