Arkansas environmental regulators have asked the state's highest court to review and stay all proceedings in a Newton County Circuit Court case regarding a hog farm within the Buffalo National River watershed.
The Arkansas Department of Environmental Quality said in filing this week that Newton County Circuit Judge John Putman has reached beyond his jurisdiction. Putman went too far, department attorneys argue, when he issued orders suggesting he has stayed any department actions related to C&H Hog Farms' permit application and requiring the department to "show cause" why it should not be found in contempt of court for denying the farm's permit application in November.
The filings address a knotty legal situation that has left regulators and attorneys unsure of how several filed appeals regarding various C&H Hog Farms permitting decisions can proceed.
The department denied the hog farm a new permit on two occasions last year, which would mean the facility must close. C&H's existence has been contested since 2013, when it first opened, because of its proximity to the Buffalo National River.
The department is not a party to the Newton County court case in which Putman issued his orders. Because of that, the department's attorneys contend, the department "has no adequate remedy" to challenge the circuit court's orders "except by petition for an extraordinary writ."
The department filed a petition with the Arkansas Supreme Court for a writ of certiorari, which, if granted, would allow the Supreme Court to review the case and vacate Putman's orders. If the court decides not to grant the writ, the department requests an alternative writ of prohibition. If granted, that would order Putman to terminate his order for the department to show cause on the contempt allegations.
Putman issued an order in October staying the Arkansas Pollution Control and Ecology Commission decision that had been appealed to his court. The commission is the department's appellate body, and its decision had remanded C&H's denied permit application back to the department for re-issuance as a draft denial instead of a final decision. C&H appealed that decision because it did not reverse the department's decision to deny the permit.
In January, Putman issued an order asserting that, because of his stay order, he has total jurisdiction over matters related to C&H Hog Farms' permit application.
The Newton County court hearing on the contempt issue is scheduled for Wednesday.
Because the matter C&H appealed to Putman's court is limited to the commission's decision, the "circuit court's jurisdiction does not extend to control C&H's" permit application or any decisions surrounding it, department attorneys argued in their filing.
Putman argued, after C&H attorneys filed a motion asking him to, that his stay of the commission's decision meant that the department could not proceed with the permitting decision, which prompted him to order the department to appear before him and argue why it should not be found in contempt of court.
The department's attorneys assert in their Supreme Court filing that the department has the "exclusive power and duty to make permitting decisions." Further, the department is statutorily required to complete its permitting process, which had already proceeded to the public comment period before Putman issued his stay.
The department also has filed a motion to stay proceedings in that case while deciding on the petition for extraordinary writ. The motion also requests for the Supreme Court to expedite its consideration of the petition and rule on it before Wednesday's hearing in Newton County Circuit Court.
Earlier this week, C&H attorneys filed their fourth circuit court case related to the permit denial. It appealed the commission's dismissal of its appeal of its second denial. The commission dismissed the appeal, arguing that it had no jurisdiction because of Putman's stay order.
State Desk on 02/23/2019