Justices reject request to stay hog-farm case

Contempt-of-court warning against regulators allowed

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

Arkansas' highest court rejected Tuesday environmental regulators' request to review and stay proceedings in a lower court related to a judge's suggestion that the regulators are in contempt of his court.

The Arkansas Department of Environmental Quality should be found in contempt for denying C&H Hog Farms a new operating permit, based on current court filings, Newton County Circuit Judge John Putman stated in a December order asking the department to show why it is not in contempt. Putman has claimed in orders that, because of a case before him, his court has sole jurisdiction over C&H's permit application.

Department officials were scheduled to present their case at 1 p.m. today in Newton County, but Putman canceled that hearing late Tuesday, according to Richard Mays, an attorney for intervening environmental groups and individuals in the case. That is because Mays' clients still have an active petition before the Arkansas Supreme Court asking for the same thing the department did.

The Arkansas Supreme Court on Tuesday denied the department's motions for the Supreme Court to review the case -- a writ of certiorari -- and to find Putman had overstepped his jurisdiction and halt circuit court proceedings until justices can rule.

The department petitioned the Supreme Court on Thursday and requested a decision by today.

The court denied the petitions Tuesday in a one-paragraph order that did not explain the decision. Justice Josephine Linker Hart did not participate in the decision.

Department spokesmen and attorneys for C&H did not respond to requests for comment.

The decision is the latest movement in several legal battles between C&H and environmental regulators over the permit denial. Those legal battles led the Arkansas Pollution Control and Ecology Commission -- after two hours of debate about what commissioners could even legally do -- to dismiss an appeal of C&H's latest permit denial out of concern that Putman had prevented them from being able to act on the appeal, which it was required to do.

The case before Putman that led to the jurisdictional dispute is one in which C&H appealed a commission decision to remand its first permit denial back to the department for reissuance as a proposed decision, rather than a final one. C&H asserted the commission's decision did not go far enough and should have reversed the denial.

Since it opened in 2013, C&H has been targeted by environmental groups and others because of its proximity to the Buffalo National River. Opponents fear the amount of waste from the farm could find its way into the river and pollute the water.

In filings Monday, attorneys for C&H Hog Farms called the department's request "last-minute" and contended the department sat "on the sidelines" for months before making its request Thursday. The department could have intervened in the case but chose not to, attorneys argued.

Putman first ordered the department to "show cause" why it is not in contempt back in December. That was after C&H Hog Farms asked Putman to issue the order, a month after the department denied C&H's permit, and two months after Putman had stayed a lower court decision that remanded the permit application back to the department.

The department had already reopened the permit application process in response to the decision by the lower court -- the Arkansas Pollution Control and Ecology Commission -- and was in the middle of the public comment period when Putman issued his order staying the commission's decision.

The department, later arguing that it was not a party to the case Putman was overseeing, responded to the public comments and issued a final order in November denying the new permit, meaning the farm would have to shut down.

C&H then accused the department of contempt of Putman's stay order. Putman agreed but did not rule, requesting that the department show cause why it should not be found in contempt.

Putman canceled the hearing scheduled for today on the contempt charge, in which department Director Becky Keogh and Caleb Osborne, the associate director of the office of water quality, were ordered to appear. In a letter to parties Friday, Putman said he would favor continuing the hearing for a later date, if the parties agreed, because of Mays' clients' pending motion before the Arkansas Supreme Court. Parties then agreed to continue the hearing scheduled for today.

Mays' clients -- the Buffalo River Watershed Alliance, Arkansas Canoe Club, Gordan Watkins and Marti Oleson -- also petitioned the Supreme Court on Friday for a writ of certiorari or writ of prohibition of Putman's stay, arguing that the case before Putman is based on an order that cannot be appealed because it is not a final decision. Further, the circuit court does not have the jurisdiction Putman claims it does, the parties argue.

On Feb. 1, the parties appealed Putman's stay order to the Supreme Court.

Both cases are pending.

State Desk on 02/27/2019

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