Coconino County v. Antco, Inc. – 12/19/2006

December 21, 2006

Arizona Court of Appeals Division One Reverses Trial Court’s Decision Citing Improper Application of the Doctrine of Primary Jurisdiction and Remands for Consideration of the Doctrine of Preemption.

ADEQ inspected Antco’s composting facility several times, but found no violations. Coconino County filed a complaint against Antco alleging its composting practices violated various ADEQ regulations. Antco filed an answer and a counterclaim for declaratory judgment seeking a declaration that state statute precluded the County from regulating the use of land for agricultural composting. The parties filed cross motions for summary judgment. Relying on the doctrine of primary jurisdiction, the trial court dismissed the entire case without prejudice in deference to ADEQ for an initial decision on the matter and declined to rule on any other issue. Both parties appealed.

Judge Weisberg’s opinion analyzed the distinction and interplay between three legal doctrines: exhaustion of remedies, primary jurisdiction, and preemption. The Court held that the exhaustion of remedies doctrine was clearly inapplicable because no administrative action was pending with respect to Antco at the time the trial court dismissed the County’s complaint and because ADEQ acknowledged the County’s statutory right to initiate enforcement actions independently. The Court further held that trial court improperly applied the doctrine of primary jurisdiction, which may not be used to prevent a local government from taking actions that are within its power or after the appropriate administrative agency has had an opportunity to determine the matter. The Court concluded that the trial court should have analyzed the case under the doctrine of preemption, inquiring into the scope of the County’s power to act and the possible preemption of that power by the state.

Judge Weisberg authored the opinion; Judge Thompson and Ehrlich concurred.