Hog farm files dismissal appeal

Newton County operating permit denial at heart of case

FILE — C&H Hog Farms, seen from the air in May 2017.
FILE — C&H Hog Farms, seen from the air in May 2017.

A Newton County hog farm has filed its fourth case in circuit court in the past six months, this time appealing a dismissal of its appeal of its second operating permit denial.

C&H Hog Farms is asking Newton County Circuit Judge Gordon Webb to order the Arkansas Pollution Control and Ecology Commission to clarify a decision it made last month regarding the hog farm's appeal of its permit denial.

But the decision to remand the commission's decision shouldn't be made until another case has fully been resolved, including any appeals, C&H's attorneys argue. The court should wait for Newton County Circuit Judge John Putman to decide whether the commission, on a separate appeal by C&H, should issue a reversal of the farm's first permit denial.

In that case, Putman has stated in orders that he is the only judge with jurisdiction over matters related to C&H's appeal. C&H had argued that that was the case before Putman issued any orders with that opinion.

The latest appeal provides another layer of litigation in a case that was described as a "mess" by multiple lawyers at a commission hearing last month.

But the appeal isn't a surprise to those involved, who acknowledged that C&H Farms owners were not happy with the commission's decision at that hearing.

Last month, commissioners attempted to reach a delicate balance of trying to decide how to handle the permit appeal and C&H's request for a stay on the permit denial -- on which they were required to make a decision -- while also facing a judge's order stating that only the judge has jurisdiction over permit matters.

After two hours of debate, the commission dismissed the appeal but did not specify whether the dismissal was "with prejudice" or "without prejudice." "With prejudice" means the appeal cannot be refiled.

"There was a great deal of anxiety obviously at the last meeting of us trying to do anything at all," Commissioner Doug Melton said Thursday, but he noted that the decision was unanimous.

"We decided to leave this in the hands of the circuit judge," Melton said.

Not specifying whether the appeal was dismissed with prejudice or without prejudice was insufficient, C&H's attorneys argued in their appeal of the commission's decision, filed Tuesday in Newton County Circuit Court.

"It is up to the Commission to make its decision clear, and support its decision with appropriate findings," the complaint reads. "In the absences of clearly articulate findings, C&H is unable to provide more specific allegations in this matter regarding the errors in Minute Order 19-05."

Minute Order 19-05 is the order that dismissed the appeal.

The commission could pursue only an involuntary dismissal if C&H, the plaintiff, had failed to comply with court rules, a court order or if no court action had been taken in the past 12 months, C&H's attorneys argued. That's established under Arkansas' Rules of Civil Procedure, Section 41, the attorneys note.

Webb should remand the decision back to the commission to specify whether the dismissal was with or without prejudice, and the commission should additionally identify what reasons it had, per the Rules of Civil Procedure, to dismiss the case.

C&H Hog Farms has long been the target of environmental groups concerned about its proximity to the Buffalo National River.

The hog farmers applied for a new operating permit in April 2016, ahead of the existing permit's scheduled expiration on Oct. 31, 2016.

In April 2017, the Arkansas Department of Environmental Quality issued a preliminary decision to issue the permit, and subsequently accepted public comment before making a final decision. In January 2018, the department issued a final decision denying the permit, citing application deficiencies raised in public comments.

Later that year, after C&H argued that the decision should not be final, the commission, which is the department's appellate body, determined that the department needed to issue the denial as a preliminary decision and again accept public comment.

C&H appealed the commission's decision, arguing that the department's denial should have been reversed, as well.

The department subsequently initiated another public comment period, which C&H argued in its appeal -- overseen by Putman -- it should not have been able to do because of the appeal before Putman. Putman agreed, but has not issued an order finding the department, which is not a party in the case, in contempt of court for doing so. A hearing on the matter is scheduled for Wednesday.

In November, the department issued its second final decision denying the farmers a new permit. C&H appealed and requested a stay on the denial, which was granted pending the commission's January meeting, which is when the commission dismissed the appeal for lack of jurisdiction.

Metro on 02/22/2019

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