Request in hog-farm case nixed by justices

Arkansas’ highest court rejected Tuesday environmental regulators’ request to review and stay proceedings in a lower court related to a judge’s suggestion 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 isn’t 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’s 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 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 didn’t explain the decision. Justice Josephine Linker Hart didn’t participate in the decision.

Department spokesmen and attorneys for C&H didn’t 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 Putman prevented them from being able to act on the appeal, which it was required to do.

The case before Putman leading 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 didn’t 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 isn’t 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 stayed a lower court decision remanding the permit application back to the department.

The department 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 it wasn’t 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 didn’t rule, requesting the department show cause why it shouldn’t be found in contempt.

Putman canceled the

hearing 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.

Since it opened in 2013, C&H has been targeted by environmental groups and others because of its proximity to the Buffalo National River.