Arkansas environmental regulators must appear before a judge next month to argue why they should not be held in contempt of court for denying C&H Hog Farms a new operating permit, according to court records.
The Newton County Circuit Court order is the latest in C&H's two circuit court appeals, one commission appeal and one civil lawsuit regarding its permit denial this year.
C&H Hog Farms is near Mount Judea in Newton County, about a half mile from Big Creek, which is a tributary of the Buffalo National River.
The Arkansas Department of Environmental Quality, which denied the permit, is not a party in the appeals related to its permit denial. But Judge John Putman ordered department officials to appear in his court Jan. 9 to explain why they were not acting in contempt of court when they continued with the permitting process after Putman stayed a commission order to reopen the public comment period on the permit.
"C&H alleges, among other things, that on November 19, 2018, with knowledge of this court's October 17, 2018, order, ADEQ issued a permit decision regarding C&H's application for a Regulation No. 5 permit, which included a process to shut down C&H's operation," Putman wrote. "After examining C&H's motion and the exhibits attached to said motion, the court finds that the motion should be granted."
Putman stopped short of holding the department in contempt of court, instead ordering Department Director Becky Keogh and Associate Director in the Office of Water Quality Caleb Osborn, to appear Jan. 9 to "show cause" why they should not be held in contempt.
If found in contempt, the charge would be civil, not criminal, although both charges are punishable with jail time and fines, said Richard Mays, an attorney for intervening environmental groups.
Department spokesman Nate Olson said the matter is under review, and the agency could not comment.
After the stay, "any further action by ADEQ pending the appeal would be null and void, because ADEQ does not have jurisdiction to act after the notice of appeal," C&H's attorneys argued in their motion to order the department to show cause.
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 second round of public comments.
Because the department is not a party in the circuit court case, the order to show cause is "a very interesting issue," Mays said.
"ADEQ certainly has a relationship to the commission, but they are not the same," Mays said.
The commission is the department's appellate and rule-making body. People appeal department decisions to the commission, and people and the department petition the commission to change environmental regulations.
In August, the commission ordered the department to reissue its denial of C&H's permit as a draft decision open to public comment. The department had previously issued its denial as a final decision, reversing its proposed approval in 2017. The department received public comment on that proposal that spring.
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.
In his order, Putman said the Newton County Circuit Court "obtained jurisdiction over C&H's application" when the farm appealed the commission's decision Sept. 6.
C&H's attorneys asked for the stay "to avoid potential confusion and preserve the status quo of C&H's operating authority pending completion of C&H's appeals to the Court and any other appellate courts to which this matter may be appealed."
The day after the department denied C&H's permit, Nov. 20, C&H's attorneys filed a motion to order the department to show cause why they should not be held in contempt. Attorneys attached documents that they said showed that the department knew about the stay order.
The Jan. 9 hearing is the only circuit court hearing scheduled among the three circuit court cases C&H has filed.
C&H also has appealed an Arkansas Pollution Control and Ecology Commission decision to uphold an order by the commission's administrative law judge denying motions made by C&H that argue that its original permit was indefinitely active until another type of permit was issued.
Putman is also overseeing that appeal.
C&H attorney Chuck Nestrud said Thursday that he believes the appeal has been fully briefed, but he requested that oral arguments in the case be added to the Jan. 9 court date.
A Jan. 4 preliminary hearing on C&H's appeal of its second permit denial is to be held via teleconference.
That appeal is before the Arkansas Pollution Control and Ecology Commission, which is the department's appellate body. An appeal of a commission decision would go to circuit court.
C&H's attorneys have requested a stay of the department's second permit denial and asked the commission Thursday to continue that hearing to a later date.
"We don't think that that appeal should proceed until the circuit court's appeals are resolved," Nestrud told the Arkansas Democrat-Gazette.
The Buffalo River Watershed Alliance, the Arkansas Canoe Club, the Ozark Society, Gordon Watkins, Marti Olesen, Alan Nye, Robert Cross and David Peterson -- all opponents of C&H's operating location in the Buffalo National River's watershed -- have filed a motion to intervene in the appeal. The parties have successfully intervened in the two circuit court appeals and successfully intervened in C&H's appeal of its first permit denial earlier this year.
C&H's third circuit court case is a lawsuit that says the department violated the Arkansas Freedom of Information Act when it did not provide records requested by C&H. The agency argued that the request was too broad.
The case has been moved from Newton County Circuit Court but has yet to be transferred in Pulaski County Circuit Court, where it was ordered to go Nov. 29, according to Nestrud and a Pulaski County Circuit Clerk records department employee.
Sunday on 12/30/2018