Receiver asks court to dismiss $18 fee suit

Tuesday, July 30, 2019

By Scott Loftis

A court-appointed receiver for the Ozark Mountain Solid Waste District has filed a new motion in Carroll County Circuit Court asking a judge to dismiss a class-action lawsuit challenging an $18 annual assessment being charged to property owners in six north Arkansas counties.

In the motion filed Monday, attorney Mary-Tipton Thalheimer argues that an amended complaint filed on July 1 by plaintiff’s attorneys Matt Bishop and Kristi Howerton asks the court to enjoin the solid waste district from collecting the $18 “service fee,” which would cause the district to violate a previous order by a Pulaski County Circuit Court judge that directed the district to collect the service fee.

Thalheimer’s motion also argues that the Arkansas Department of Environmental Quality should have been named as a defendant in the plaintiff’s most recent complaint, since it asks the court to declare the legislative act that funds the ADEQ unconstitutional. Alternatively, Thalheimer writes in her motion, ADEQ should be “joined as a necessary party” — added to the lawsuit as a defendant.

Thalheimer is attorney with the Little Rock law firm of Quattlebaum, Grooms & Tull PLLC. She represents Geoffrey Treece, also an attorney with the Quattlebaum Firm.

The nominal plaintiff in the suit is Paul Summers of Berryville.

Bishop and Howerton have argued that as a court-appointed receiver for the solid waste district, Treece has no standing to intervene in the case on the district’s behalf.

The case is being presided over by Carroll County Circuit Judge Scott Jackson, who has not ruled on Treece’s participation. A trial date is scheduled for Friday, Sept. 13, at the Carroll County Eastern District Courthouse in Berryville.

Defendants in the lawsuit are the Ozark Mountain Solid Waste District and Carroll County tax collector Kay Phillips.

The $18 assessment is included on the 2018 tax statements for property owners in Carroll, Baxter, Boone, Marion, Newton and Searcy counties — the six counties that composed the solid waste district. After filing suit in Carroll County, Bishop and Howerton have since filed similar complaints in each of the other five affected counties.

Pulaski County Circuit Judge Tim Fox issued an order imposing the fee on April 21, 2017, following a recommendation from Treece.

Treece recommended that the fee be imposed to recoup bondholders who purchased $12,340,000 in bonds issued by the solid waste district in October 2005 to finance the purchase of the North Arkansas Board of Regional Sanitation (NABORS) Landfill in Baxter County. The $18 assessment, which is likely to continue for 30 years or more, also is intended to repay up to $16.5 million that ADEQ is expected to spend cleaning up the site of the landfill.

Summers’ lawsuit alleges that the $18 annual assessment constitutes a tax on property owners in the six counties and is an “illegal exaction,” that the solid waste district does not have the authority to impose a tax, that there is no statutory basis for the assessment, that the assessment is barred by Amendment 65 (adopted in 1986) to the state constitution, that the solid waste district is statutorily barred from charging the $18 fee to pay bondholders, that the ADEQ appropriations bills are unconstitutional, that a court cannot impose a tax and that the solid waste district’s board of directors did not approve the $18 charge.

The suit asks the court to declare that the $18 charge is an illegal exaction and that the ADEQ appropriations bills are unconstitutional, to enjoin the defendants from levying or collecting the $18 charge and to refund any amounts already paid, and to award reasonable attorneys’ fees “to be paid from the sums illegally exacted.”

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