In re Moore
| Decision Date | 21 June 2004 |
| Docket Number | Adversary No. 03-1100.,Bankruptcy No. 02-16606.,Bankruptcy No. 02-16836.,Bankruptcy No. 02-17267.,Bankruptcy No. 02-17171.,Bankruptcy No. 02-17184.,Bankruptcy No. 02-16607.,Bankruptcy No. 02-17269. |
| Citation | 310 B.R. 795 |
| Parties | In re Richard MOORE. In re Bobby Brooks. In re Pigs To Hogs, Inc. In re Gone Hog Wild. In re Pig Palace, Inc. In re James Blissard. In re Jerry Milner. Jim Norman, et al., Plaintiffs v. Prestage Farms, Inc., et al., Defendants. |
| Court | U.S. Bankruptcy Court — Northern District of Mississippi |
Jeffrey K. Tyree, Jackson, MS, Craig M. Geno, Ridgeland, MS, for Debtors.
Danny E. Cupit, Jackson, MS, Nina S. Tollison, Oxford, MS, William Liston, Winona, MS, for Plaintiffs.
Trudy D. Fisher, William F. Blair, Jeffrey K. Tyree, John E. Wade, Jr., Jackson, MS, Robert J. Dambrino, III, Grenada, MS, James H. Herring, Canton, MS, for Defendants.
On consideration before the court are motions for summary judgment filed by Prestage Farms, Inc., (Prestage Farms), and each of the seven debtor entities (debtor/defendants) in the above adversary proceeding; a response thereto having been filed by Jim Norman, et al, (plaintiffs); and the court, having considered same, hereby finds as follows, to-wit:
I.
Since the Chapter 12 debtors are presently named defendants in the above captioned adversary proceeding, this court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157, as well as, the General Order of Reference entered by the United States District Court for the Northern District of Mississippi on July 27, 1984.
The aspects of this cause of action which directly affect the Chapter 12 debtor/defendants would be considered collectively a core proceeding as defined in 28 U.S.C. § 157(b)(2)(A), (B), and (O). Because of the direct impact upon the debtor/defendants, the aspects of this cause of action which seek relief against Prestage Farms would be considered collectively a "non-core" or "related" proceeding as contemplated by 28 U.S.C. § 157(c).
II.
On February 27, 2004, an opinion and order were entered in this proceeding relating to the motions for summary judgment filed by Prestage Farms and the seven debtor/defendants. The opinion and order are incorporated herein by reference. The court withheld a dispositive decision on the motions for summary judgment until the parties could brief the issue of whether an individual plaintiff enjoyed a private right of action to seek redress for violations of the Mississippi Air and Water Pollution Control Law, codified in Miss.Code Ann. § 49-17-1 through § 49-17-43, (referred to occasionally herein as the "law").
The motions for summary judgment asserted that the cause of action initiated by the plaintiffs was barred by the one year statute of limitations found in Miss.Code Ann., § 95-3-29 (1972), which is set forth in pertinent part as follows:
§ 95-3-29 Immunity of Certain Agricultural Operations From Nuisance Actions.
(1) In any nuisance action, public or private, against an agricultural operation, including forestry activity, proof that said agricultural operation, including forestry activity, has existed for one (1) year or more is an absolute defense to such action, if the conditions or circumstances alleged to constitute a nuisance have existed substantially unchanged since the established date of operation.
(2) The following words and phrases as used in this section shall have the meanings given them in this section:
(a) "Agricultural operation" includes, without limitation, any facility for the production and processing of crops, livestock, farm-raised fish and fish products, livestock products, wood, timber or forest products, and poultry or poultry products for commercial or industrial purposes.
(b) "Established date of operation" means the date on which the agricultural operation, including forestry activity, commenced operation. If the physical facilities of the agricultural operation, including forestry activity, are subsequently expanded, the established date of operation for each expansion is deemed to be a separate and independent "established date of operation" established as of the date of commencement of the expanded operation and the commencement of expanded operation shall not divest the agricultural operation of a previously established date of operation.
....
(3) The provisions of this section shall not be construed to affect any provision of the "Mississippi Air and Water Pollution Control Law."
....
In this context, the defendants asserted that the respective farms were fully operational for more than one year before the plaintiffs filed their lawsuit in the Montgomery County Chancery Court. Accordingly, they argued that § 95-3-29(1) provided an absolute defense to the plaintiffs' nuisance cause of action. 1
In response, the plaintiffs alleged that the one year bar of § 95-3-29(1) did not apply because the farming operations had not remained "substantially unchanged" since their respective established dates of operation. In addition, they asserted that their cause of action also included violations of the Mississippi Air and Water Pollution Control Law which is specifically excepted from the one-year statute of limitations by § 95-3-29(3).
As to whether a private right of action exists under the Mississippi Air and Water Pollution Control Law, the court previously concluded in its earlier order as follows:
2. If the court concludes that a private right of action does exist, the one year period of limitations set forth in § 95-3-29(1) will not bar the plaintiffs' cause of action, if it is indeed viable, under the Mississippi Air and Water Pollution Control Law. The motions for summary judgment will thereafter be overruled to this extent.
3. If the court concludes that a private right of action does not exist, § 95-3-29(1) bars the plaintiffs' cause of action against Gone Hog Wild, Inc., Pig Palace, Inc., as well as, Prestage Farms' Isolation Farm # 1, and Isolation Farm # 5. This could also be applicable to Pigs to Hogs, Inc., if it never installed an operable incinerator.
4. In addition, should a private right of action not exist, § 95-3-29(1) would likewise bar the plaintiffs' cause of action against Prestage Farms and the remaining debtor/defendants for events occurring prior to the installation of the incinerators on the respective farms, as well as, to any operations not substantially changed by the installation of the incinerators. Any nuisance activities or events attributable to or caused by the incinerators would remain actionable if the installation of the incinerators substantially changed the previously existing operations.
III.
The question of whether a private right of action exists under the Mississippi Air and Water Pollution Control Law is an issue of first impression in Mississippi. However, to draw from an analogy, the court would look to Doe v. State ex rel. the Mississippi Department of Corrections, 859 So.2d 350 (Miss.2003), where the Mississippi Supreme Court was called upon to determine if a private right of action was created under the Uniform Act for Out-of-State Parolee Supervision. This Act, which is known as the "Compact" and is found at Miss.Code Ann. § 47-7-71 (Rev.2000), provides that the "receiving state" will assume responsibility over parolees and probationers released from the "sending state."
After serving six years for a conviction for aggravated assault and attempted robbery in Illinois, Michael M. Adams was considered for parole. As provided in the "Compact," he was released from the Illinois prison system and moved to Mississippi to reside with his parents where his supervision became the responsibility of the Mississippi Department of Corrections. Shortly after establishing residency in Mississippi, Adams was indicted, tried, and convicted of rape. The victim filed a notice of claim with the Attorney General of the State of Mississippi pursuant to the Mississippi Tort Claims Act. She then filed suit against the State of Mississippi alleging willful and gross negligence on the part of the state parole board and the Mississippi Department of Corrections in receiving and supervising Adams. The State asserted a statute of limitations defense contending that any alleged tortious conduct occurred not at the time of the rape, but rather on the date when the Mississippi Department of Corrections accepted Adams for supervision. The trial court granted the State's motion for summary judgment on the statute of limitations issue, and an appeal was taken. In its opinion, the Mississippi Supreme Court noted that it was first required to determine whether a private right of action could be brought under the Uniform Act for Out-of-State Parolee Supervision. The court held as follows:
The general rule for the existence of a private right of action under a statute is that the party claiming the right of action must establish a legislative intent, express or implied, to impose liability for violations of that statute. See Blockbuster, Inc. v. White, 819 So.2d 43, 44 (Ala.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo.1997); Nichols v. Kan. Political Action Comm., 270 Kan. 37, 11 P.3d 1134, 1143 (2000); Charlton v. Town of Oxford, 774 A.2d 366, 372 (Me.2001); Walker v. Chouteau Lime Co., 849 P.2d 1085, 1086 (Okla.1993). We have also found no private right of action for violations of various statutes and regulations. See, e.g., Moore ex rel. Moore v. Mem'l Hosp. of Gulfport, 825 So.2d 658, 665-66 (Miss.2002) (); Allyn v. Wortman, 725 So.2d 94, 102 (Miss.1998) ()
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