CAFO approved after use of dodgy notice procedure

I wrote a couple of weeks ago about the State of Arkansas's approval of a CAFO (Concentrated Animal Feeding Operation) in the Buffalo National River watershed--an approval that came after notice of the permit application was made only in the state-wide paper, the Arkansas Democrat-Gazette, but not in either the Newton County Times or the Harrison Daily Times, the latter two papers having far greater circulation in the relevant area:  Newton County.

I have since had an opportunity to review the relevant Arkansas law on notice.  Arkansas Code Section   8-4-203, under the Water and Air Pollution Control Act and labeled "Permits generally."  It states in relevant part:

(d)(1) When an application for the issuance of a new permit or a major modification of an existing permit is filed with the department, the department shall cause notice of the application to be published in a newspaper of general circulation in the county in which the proposed facility is to be located.

While I have been unable to find any case interpreting "newspaper of general circulation in the county," a Westlaw search of Arkansas case law reveals that many sections of the Arkansas Code use similar language regarding necessary notice, whether the issue is selling foreclosed property or the annexation of land into a city.  Regarding the latter, the relevant statute, Arkansas Code Section 19-101, prescribes the following notice after a city votes to annex land:    

and thereupon the petitioners or their agent shall cause a notice to be published in some newspaper of general circulation in the county, not less than three (3) consecutive weeks; and, if there be no newspaper of general circulation in the county, a notice shall be posted at some public place within the limits of said proposed incorporated town for at least three (3) weeks before the time of such hearing which notice shall contain the substance of said petition, and state the time and place appointed for the hearing thereof.’

This law provides an alternative for the situation when there is no newspaper of general circulation in a county:  another form of local notice. Just holding out the very possibility that there might be no such newspaper of general circulation in a county implies that a statewide newspaper, such as the Arkansas Democrat-Gazette, will not satisfy the requirement of a newspaper of general circulation in a county.   This is because it is extremely unlikely that there would be no such state newspaper to satisfy the requirement of a "newspaper of general circulation in the county," if in fact a statewide newspaper would do the trick.  Further, the statute is instructive regarding what notice is adequate if that newspaper of general circulation is lacking:  the notice must be posted "at some public place within the limits of said proposed incorporated town."  In other words, notice must be local. Posting the notice in Little Rock, for example, would not be sufficient when the land being annexed is in Crossett.  (See City of Crossett v. Anthony, 250 Ark. 660 (1971)).  In a 2001 case, notice regarding a proposed annexation was provided under an apparent successor to Section 19-101, Arkansas Code Section 14-40-601 et seq.  That notice, related to property in Crittenden County, was provided in the local West Memphis-based Evening Times, not in the Arkansas Democrat-Gazette.  (City of Marion v. Guaranty Loan and Real Estate Co., 75 Ark. App. 427 (2001)).

In the foreclosure context, Arkansas Code Section 18-49-104 (Supp. 1997) stipulates:  

(c)(1) The mortgagee, trustee, or vendor shall publish a notice of the sale in a newspaper published and having a general circulation in the county in which the property is situated or, if this is not available, then in a newspaper of general statewide daily publication one (1) time.

This statute also suggests that notice in a newspaper "having general circulation the county" requires notice in a local paper.  After all, it contrasts the "newspaper published and having a general circulation in the county" with a less desirable option if such a paper is not available:  "a newspaper of general statewide daily publication."  The latter would be the Arkansas Democrat-Gazette.  

All of these statutes refer to "newspaper of general circulation in the county," stipulating "county" and thereby implying that notice in a statewide newspaper is not adequate. Whether read individually or collectively, these provisions suggest that the Arkansas environment code notice provision required meaningful notice in Newton County, to Newton County residents.  Surely no in the Arkansas Department of Environmental Quality in Little Rock thought notice in the Arkansas Democrat-Gazette would be meaningful or effective.    

Meanwhile, I would love to see the Newton County circulation stats on the Newton County Times vs. the Arkansas Democrat-Gazette.  Those challenging the CAFO permit for the Big Creek hog farm need to track down that information.  They also need to think carefully about the purpose of the notice provision:  presumably to provide notice to those who have a more direct stake in the process and its outcome.

I close with some other data about Newton County, to paint a picture of the socio-economic milieu where this is happening because I think that milieu sheds light on who these people are, as well as their sources of news and information.  Newton County is a persistent poverty county in the Arkansas Ozarks, with a population of about 8,000 and a poverty rate of 21.6%.  The median household income there is just under $30K, and the median value of an owner-occupied home is about $76,000.  Jobs are scarce, to say the least.