The focus on the future of the controversial C&H Hog Farms operation in Newton County now shifts from Little Rock to Jasper where a hearing is set for Feb. 27th for two state officials to appear and show cause why they should not be held in contempt of court.
On Friday, the action was in Little Rock where an environmental regulatory commission addressed what one attorney called a “God-awful mess” by dismissing a hog farm’s appeal of its permit denial, arguing that the commission’s hands were tied by a circuit judge’s order requested by the hog farm owners.
The Arkansas Democrat Gazette reports the dismissal means the Arkansas Department of Environmental Quality’s order shutting down C&H Hog Farms’ new operating permit stands.
At the same time, Newton County Circuit Judge John Putman has already asked the department to appear in his court and argue why that order was not in contempt of his court.
Putman has issued a stay on an Arkansas Pollution Control and Ecology Commission order that allowed the department to make a second denial of C&H’s permit.
C&H appealed the department’s second denial to the commission in December. The owners asked the commission to stay the department’s decision until legal actions were seen through.
On Jan. 18th, Putman issued another order stating, “At the present time, this court and no other agency or tribunal has jurisdiction over the Plaintiff’s application for a Regulation No. 5 permit.”
That left commissioners wondering what they could do with the active C&H appeal before them without violating Putman’s order that restrains them from acting.
Department regulations require the commission to act upon a request for a stay in a permit appeal at the first commission meeting after the request.
Sam Ledbetter, an attorney for the intervening Ozark Society, said the problem could be avoided if C&H withdrew its appeal of the permit denial.
“They’re trying to drag this thing out,” Ledbetter said of C&H, before calling the situation a “God-awful mess” and noting the two C&H attorneys’ more than 75 years of legal experience.
Ledbetter said he had never seen anything like this before in my life.
C&H attorney Chuck Nestrud countered that the farm’s owners needed to appeal.
The commission discussed what to do with the appeal for more than two hours, with the terms “confusing mess,” “confusing morass of maneuvering” and “blowing my mind” all used.
Over and over, commissioners questioned whether any of the motions proposed would not be considered in violation of Putman’s stay and determination that he had sole jurisdiction.
An hour and a half into the meeting Commissioner Chris Gardner said the commission would dismiss the appeal because of Judge Putman’s decision that they did not have subject matter jurisdiction. Then, they’d let Putman figure out whether that was OK.
Commissioners argued C&H couldn’t argue the commission had no jurisdiction and then ask the commission to act by imposing a stay.
Department attorneys maintain the permit denial was permissible because the department is not a party in the case in which Putman issued the stay.
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 a second round of public comments.
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.
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