An Ohio appeals court recently tossed out a $492,800 fine against an Ashtabula drilling company for draining wetlands and damaging a creek after the trial court judge proceeded to conduct a trial against it without a company representative or its attorney present.

The Eleventh District Court of Appeals last week reversed the ruling of a trial court against Big Sky Energy Inc. of Jefferson, which granted the state a permanent injunction and fine against the company’s drilling operation for improperly draining a wetland and dumping sediment into Hubbard Creek. The company had filed objections to the state’s January 2012 request, but did not receive notice of an April 2012 court hearing on the matter.

At trial, Ashtabula County Common Pleas Court Judge Gary Yost stated that he believed the court did send a notice to Big Sky and its attorney, but even if it didn’t, “the onus is really on the attorney to track the case,” he wrote. The hearing proceeded with the Ohio Attorney General’s Office representing the Ohio Environmental Protection Agency (EPA), and Judge Yost finding that Big Sky repeatedly, for years, refused to cooperate with EPA. He granted the permanent injunction in May and levied a fine of $100 per day of violation for the 4,928 days (13 and a half years) that the state contended Big Sky was in violation.

Big Sky appealed the decision, citing the unfairness of proceeding to trial without providing notice to the company and the Eleventh District sided with the company.

Writing for the Eleventh District, Judge Cynthia Westcott Rice rejected the state’s argument that since Big Sky’s counsel had engaged in previous filings and preliminary actions on the matter, he had an ongoing duty to check the appearance docket to remain current on the case. It was the state’s position that the company at least had “constructive notice” of a trial and it was not a violation to proceed without Big Sky.

Judge Rice wrote it is not uncommon for a proceeding to exclude a party for a preliminary injunction, which is temporary, but a permanent injunction requires greater attention to procedural safeguards to protect an accused party’s interest.

“In this matter, these safeguards were either overlooked or ignored,” she wrote.

Judge Rice noted Ashtabula County has two local rules governing the scheduling of civil cases that include a status check within the first three months of the case being filed; a scheduling conference within the first four months; and a formal pretrial hearing within the first 12 months. She found none of those took place, and instead, the case proceeded to trial less than two months after the state filed its case and six weeks after Big Sky responded denying the charges. Further, she noted, another local court rule required the judge to order a scheduling conference with all parties to cover key dates and she found no such conference occurred.

“Had the court followed Local Rules 6 and 7, it would have been unnecessary to discuss the application of ‘constructive notice’ in this case,” she wrote.

The appellate court vacated the common pleas court ruling, including the civil penalties, and ordered a new trial.

Judges Timothy P. Cannon and Diane V. Grendell concurred in the decision.

State ex rel. DeWine v. Big Sky Energy, 2015-Ohio-2594
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2015/2015-Ohio-2594.pdf
Civil Appeal From: Ashtabula County Common Pleas Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: June 30, 2015

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