Boston Mountain Regional Solid Waste Management District v. Benton County Regional Solid Waste Management District

          Rehearing Denied December 11, 2019

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          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-629], HONORABLE XOLLIE DUNCAN, JUDGE

         Harrington, Miller, Kieklak, Eichmann & Brown, P.A., Springdale, by: Thomas N. Kieklak, for appellant/cross-appellee.

         Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Fayetteville, by: Curtis E. Hogue and M. Scott Hall, for appellee/cross-appellant.

         OPINION

         RITA W. GRUBER, Chief Judge

          This appeal arises from a dispute between two regional solid-waste management districts over statutory fees related to the movement or disposal of solid waste within and between districts. Instead of the equal division of fees called for in the

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code, the Benton County Circuit Court found that the statutory fee division provided for an "unjust enrichment" to the appellant Boston Mountain Regional Solid Waste Management District and that the entire fee should be paid over to the appellee Benton County Regional Solid Waste Management District. The Boston Mountain District appeals, arguing that the statutory scheme should be enforced as written because the statute is presumed constitutional. The Benton County District cross-appeals, arguing that the circuit court erred in not declaring the statute unconstitutional. We reverse on direct appeal and dismiss the cross-appeal.

          I. Background Facts

         A brief history of the legislation and this lawsuit is helpful. In March 1991, the Arkansas legislature passed Act 752 of 1991 as part of an overhaul of the state’s solid-waste management system and recycling programs. The Act renamed regional solid-waste planning districts and solid-waste service areas as regional solid-waste management districts to be governed by regional solid-waste management boards. Act 752 also greatly expanded the powers and duties of the regional solid-waste management boards, which are the entities responsible for providing solid-waste management systems for their districts. The Act gave the boards authority to assess service fees for solid-waste collection services. See Ark. Code Ann. § 8-6-714(b) (Repl. 2018). The Act was silent as to any limits on the amount of the fees and whether they could be assessed on districts that disposed of solid waste from an adjoining district. Section 8-6-714 was substantially rewritten by Act 209 of 2011. Pertinent to this appeal, the boards were given authority to "fix, charge, and collect rents, fees, and charges of no more than two dollars ($2.00) per ton of solid waste related to the movement or disposal of solid waste within the district[.]" See Ark. Code Ann. § 8-6-714(a)(1)(A). As amended, section 8-6-714(c)(3) further specified certain conditions and circumstances under which fees may be assessed:

(A) Districts shall determine by interlocal agreement how the districts shall:

(i) Assess and administer the ...