State ex rel. Yost v. Hastings Dairy, L.L.C.

[Cite as State ex rel. Yost v. Hastings Dairy, L.L.C., 2025-Ohio-1900.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY

STATE OF OHIO ex rel. CASE NO. 2024-G-0052

DAVE YOST,

ATTORNEY GENERAL OF OHIO,

Civil Appeal from the

Plaintiff-Appellant, Court of Common Pleas

- vs -

Trial Court No. 2020 M 000026

HASTINGS DAIRY, LLC, et al.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Decided: May 27, 2025

Judgment: Affirmed

Dave Yost, Ohio Attorney General, and Nora Baty, Elizabeth M. Vanness, Kelly Becker,

and Morgan Trivunic, Assistant Attorneys General, Environmental Enforcement Section,

State Office Tower, 30 East Broad Street, 25th Floor, Columbus, OH 43215 (For Plaintiff-

Appellant).

Matthew T. Norman and Richard C.O. Rezie, Gallagher Sharp, LLP, 1215 Superior

Avenue, 7th Floor, Cleveland, OH 44114 (For Defendants-Appellees).

EUGENE A. LUCCI, J.

{¶1} Appellant, the State of Ohio ex rel. Dave Yost, appeals the judgment

denying it certain injunctive relief and assessing a $30,000 penalty against appellees,

Hastings Dairy, LLC, Lad Hastings, Hilltop Holdings, LLC, and Milk Maid, LLC (collectively

“Hastings”), on the State’s complaint for certain violations of R.C. Chapters 939 and 6111

and the rules promulgated thereunder. We affirm.

{¶2} In May 2019, a large manure storage pit at Hastings’ dairy farm in Geauga

County breached, and significant amounts of manure overflowed into neighboring waters,

including two ponds located on the property of nearby landowners (“the Murphy’s ponds”).

Thereafter, the Ohio Department of Agriculture (“ODA”) and the Ohio Environmental

Protection Agency (“OEPA”) investigated the breach. During the investigation, ODA and

OEPA officials discovered other alleged pollution sources at the facility.

{¶3} Thereafter, the State filed a complaint, twice amended, alleging seven

claims against Hastings, as follow: (1) failure to prevent the overflow and discharge of

manure from the large manure storage pit into waters of the state in violation of Ohio

Adm.Code 901:13-1-02; (2) failure to prevent the overflow and discharge of manure from

the temporary manure storage pit into waters of the state in violation of Ohio Adm.Code

901:13-1-02; (3) failure to prevent the overflow and discharge of manure from the freestall

barns into waters of the state in violation of Ohio Adm.Code 901:13-1-02; (4) failure to

prevent the overflow and discharge of manure from the silage area in violation of Ohio

Adm.Code 901:13-1-02; (5) improper composting of animal mortality in violation of Code

316 of the Field Office Technical Guide and Ohio Adm.Code 901:13-1-13; (6) illegal

discharge of pollutants into waters of the state in violation of R.C. 6111.04, R.C.

6111.07(A), and Ohio Adm.Code 3745-33-02; and (7) creating a public nuisance by

discharging sewage into waters of the state without a permit in violation of R.C.

6111.04(A)(2) and R.C. 6111.07(A).

{¶4} During the course of the proceedings in the trial court, the parties entered

into a consent order for a preliminary injunction (“the consent order”). As part of the

consent order, Hastings were enjoined from violating R.C. Chapter 939 and the rules

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promulgated thereunder. The consent order further required Hastings to: empty the large

manure storage pit pursuant to a schedule, with complete emptying to occur by August

30, 2020; demolish the operator-constructed emergency levee or hire a licensed

professional engineer to properly design and/or repair this levee to prevent seepage of

manure by August 30, 2020; place a staff gauge or other permanent marker in the large

manure storage pit by August 30, 2020, that would clearly indicate the maximum

operating level of the manure storage pit as determined by the ODA; empty the temporary

manure storage pit by March 20, 2020; refrain from adding manure to the temporary

manure storage pit; allow the ODA to inspect the temporary manure storage pit to assess

its permanent closure and abandonment by March 20, 2020; immediately maintain a

minimum of one foot of free board at all times in the concrete manure storage structure;

immediately ensure that the manure transfer pipe exiting the freestall barn and entering

the concrete manure storage structure was properly functioning, repaired, and

maintained; complete and submit a Comprehensive Nutrient Management Plan to the

ODA by August 30, 2020; allow authorized representatives access to their animal feeding

operation and property to verify compliance with the terms and conditions of the consent

order; and immediately begin following the Natural Resources Conservation Service Field

Office Technical Guide Code 590 standard ("NRCS Code 590") for the land application

of animal manure.

{¶5} On January 6, 2021, the State filed a motion for Hastings to show cause as

to why they should not be held in contempt for failing to abide by terms of the consent

order, including their failure to completely empty the large manure storage pit. Thereafter,

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the trial court issued an order finding Hastings in contempt and issuing purge conditions

including a new schedule for Hastings to meet for emptying the large manure storage pit.

{¶6} Thereafter, Hastings moved for an extension of the deadline to empty the

large manure storage pit. In an order dated July 25, 2022, the trial court noted that, at the

hearing on Hastings’ motion, the parties entered into discussions to resolve the matter,

and they filed status reports thereafter. Accordingly, the trial court denied Hastings’

motion for an extension as moot and indicated that Hastings could refile their motion if

the parties were unable to resolve the issues.

{¶7} On August 31, 2022, the State filed a second motion for Hastings to show

cause as to why they should not be held in contempt for their failure to completely empty

the large manure storage pit and their failure to install a staff gauge in the pit. In response,

Hastings requested the court dissolve the requirement that they completely empty the pit.

{¶8} Following a hearing, the trial court issued an order finding Hastings in

contempt, but ordering that, as an alternative to completely emptying the large manure

storage pit, and as part of new purge conditions, Hastings could employ a qualified

professional to conduct a study of the pit, no later than August 1, 2023, to determine its

capacity and then install a measuring gauge in the pit.

{¶9} Thereafter, the State moved for summary judgment on the issue of liability.

On May 30, 2024, the trial court granted the State summary judgment on the issue of

liability on the seven violations set forth in the State’s complaint.

{¶10} On October 21, 2024, the parties filed several stipulations into which they

entered, including:

a. No cattle remain on Hastings Farm;

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b. Defendants have sold all milking parlor equipment that was

previously used at Hastings Farm;

c. All animal feed/silage storage piles have been removed

from the Farm;

d. There are no manure inputs to the concrete manure storage

structure;

e. There are no manure inputs to the large earthen manure

storage structure;

f. As of August 2024, neither the Ohio Department of

Agriculture nor [Hastings] have immediate concerns about the

structural integrity of the large earthen manure storage

structure . . . .

{¶11} Thereafter, the matter proceeded to trial on the issues of injunctive relief

and civil penalties. In a judgment entry dated November 27, 2024, the court denied further

injunctive relief and imposed a penalty on Hastings of $30,000, representing $5,000 per

day for each of the six days following the initial breach. The State appeals this judgment

and raises two assigned errors for our review.

{¶12} In its first assigned error, the State contends:

{¶13} “The trial court erred as a matter of law when it failed to order injunctive

relief even though it had found that the statutory requirements for the injunction had been

met.”

{¶14} The State maintains that the trial court applied the incorrect legal standard

when denying its requests for injunctive relief. Because the State alleges error with

respect to the application of the law, we review this assigned error de novo. Schutz v.

Cuyahoga Cty. Bd. of Revision, 2018-Ohio-1588, ¶ 6.

{¶15} The State sought injunctive relief pursuant to R.C. 939.07(B) and

6111.07(B). R.C. 939.07(B) provides, “The attorney general, upon the written request of

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Case No. 2024-G-0052

the director [of agriculture], shall bring an action for an injunction in any court of competent

jurisdiction against a person violating or threatening to violate rules adopted under

division (E) of section 939.02 of the Revised Code or an order issued under division (A)(4)

of this section.” Likewise, R.C. 6111.07(B) provides, in relevant part, “The attorney

general, upon written request of the director [of environmental protection], shall bring an

action for an injunction against any person violating or threatening to violate this chapter

or violating or threatening to violate any order, rule, or condition of a permit issued or

adopted by the director pursuant to this chapter.”

{¶16} Here, the State made two specific requests for injunctive relief. First,

because Hastings had ceased farm operations, the State requested the court to order

Hastings to comply with the best management practices for closure of the large manure

storage pit. Second, the State requested the court to order Hastings to remove

contaminated sediment from the Murphy’s ponds through dredging.

{¶17} In denying the requested injunctive relief, with respect to closure of the large

manure storage pit, the trial court noted that the evidence established that Hastings had

removed approximately 90 percent of the manure from the pit. The court referenced that

Hastings had exhausted their remaining budget for further efforts at the site and intended

to sell the farm after resolution of the case. The court concluded that, although the farm

was “closed,” there was no indication as to how long the farm would remain closed

following a sale. Further, the court reasoned that, pursuant to the parties’ experts’

testimony, so long as no new manure was added to the large manure storage pit, it would

be operationally safe for at least two years, and it did not pose any realistic pollution

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threats at that time. Therefore, the court declined the State’s request for injunctive relief

on this issue.

{¶18} The court then addressed the State’s request for a requirement that

Hastings dredge the Murphy’s ponds. The court, citing Hritz v United Steel Workers of

Am., AFL-CIO, 2003-Ohio-5284 (12th Dist.), determined that it was impossible for it to

conclude that an order to dredge the ponds was an “equitable” result because the State

had failed to provide a cost and benefit analysis. See id. at ¶ 41, quoting Perkins v.

Quaker City, 165 Ohio St. 120, 125 (1956).

{¶19} The State contends that it was entitled to injunctive relief as a matter of law,

and actions brought under R.C. 939.07(B) and R.C. 6111.07(B) are not subject to ordinary

equitable principles applicable to private injunction actions. In support, the State relies on

Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51 (1978).

{¶20} Ackerman pertained to an action brought by the director of health pursuant

to R.C. 3721.08 to enjoin a facility from operating a nursing home. R.C. 3721.08 provides

that the director may petition a court for an order enjoining a person from operating a

nursing home under certain conditions. Ackerman at 55. Because the prerequisites for

“such injunctive relief” in that case were met, the Ohio Supreme Court reasoned that,

unless equitable defenses or maxims were also to be considered, then the injunction

should be granted. In addressing this issue, the Supreme Court stated:

It is established law in Ohio that, when a statute grants a

specific injunctive remedy to an individual or to the state, the

party requesting the injunction “need not aver and show, as

under ordinary rules in equity, that great or irreparable injury

is about to be done for which he has no adequate remedy at

law . . . .” Stephan v. Daniels, [27 Ohio St. 527, 536 (1875)].

([See also] State v. Alexander Brothers, Inc.[, 43 Ohio App.2d

154 (5th Dist. 1974)]; 29 Ohio Jurisprudence 2d, 176,

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Injunctions, Section 13; and 42 American Jurisprudence 2d

776, Injunctions, Section 38, for further support of the

propositions that the traditional concepts for the issuance of

equity injunctions do not apply in statutory injunction actions.)

Moreover, it is the majority rule in federal courts and the law

in a growing number of state jurisdictions that, where an

injunction is authorized by a statute designed to provide a

governmental agent with the means to enforce public policy,

“no balancing of equities is necessary,” Brown v. Hecht Co.[,

137 F.2d 689, 692 (D.C.Cir. 1943)]; State v. O.K. Transfer

Company[, 215 Or. 8, 15 (1958)]; and “[i]t is enough if the

statutory conditions are made to appear.” [O.K. Transfer

Company at 15-16]. See also[] United States v. San

Francisco[, 310 U.S. 16, 30 (1940)]; Conway v. State Board

of Health[, 252 Miss. 315 (1965)]; Nevada Real Estate Comm.

v. Ressel[, 72 Nev. 79 (1956)]; Arizona State Board of Dental

Examiners v. Hyder[, 114 Ariz. 544 (1977)].

Ackerman at 56-57. See also State ex rel. Pizza v. Rezcallah, 84 Ohio St.3d 116, 123

(1998) (recognizing that “[t]he General Assembly has provided that if a nuisance, as

defined in R.C. 3719.10 or 3767.01(C), was admitted or established under R.C. 3767.11

or 3767.03, the courts were statutorily required to enter a judgment entry, including an

order of abatement and a permanent injunction against the owners irrespective of their

degree of culpability in the creation or perpetuation of the nuisance[,]” but holding that a

mandatory closure order would be unconstitutional as applied).

{¶21} In their answer brief, Hastings maintain that Ackerman is not applicable to

actions for injunctive relief brought under R.C. 939.07(B) and 6111.07(B) because these

statutes do not specify a certain type of injunctive relief that should be granted upon proof

of specific conditions.

{¶22} However, in addressing an injunction action brought under R.C. 6111.07(B),

the Seventh District applied Ackerman, holding:

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In this case, the statute requires that the State prove that

someone is “violating or threatening to violate this chapter or

violating or threatening to violate any order, rule, or condition

of a permit issued or adopted by the director pursuant to this

chapter.” R.C. 6111.07(B). Once it does so, the trial court has

the authority to issue an injunction. This is a statute designed

to provide a governmental agent with the means to enforce a

public policy. The legislature gave the trial court the ability to

issue a statutory injunction without a demonstration of the

common-law requirement of irreparable harm. Accordingly,

Appellants’ argument that equitable principles must apply is

meritless.

State v. Tri-State Group, Inc., 2004-Ohio-4441, ¶ 42 (7th Dist.).

{¶23} Here, R.C. 6111.07(B) authorized injunctive relief on two violations in this

case. R.C. 939.07(B), which contains relevant language substantially similar to that of

R.C. 6111.07(B), authorized injunctive relief on five violations in this case. Although both

statutes authorize injunctive relief upon proof of certain violations, neither statute specifies

a certain type of injunctive relief that should be granted.

{¶24} Thus, pursuant to the statutes, the State was required only to demonstrate

a violation of the relevant chapters or rules to obtain “an injunction.” However, it does not

follow that the trial court was required to order the precise injunctive relief the State

requested, as the statutes at issue do not specify the nature of the injunctive relief to be

imposed. Thus, “[t]he law does provide for the State to receive injunctive relief. However,

the law does not require the trial court to grant every type of relief that the State requests.

The court should grant the relief which is reasonable under the circumstances.” State ex

rel. Petro v. RSV, Inc., 2006-Ohio-376, ¶ 37 (7th Dist.), citing Alexander Bros., Inc., 43

Ohio App.2d at 155 (“injunctive relief should have been granted upon such reasonable

terms as might be ordered by the trial court”).

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{¶25} Applying these principles to the trial court’s judgment, first, with respect to

the State’s request that the court order implementation of the best practice methods for

complete closure of the large manure storage pit, the court did not improperly apply

equitable principles in denying the request. Instead, given the uncertainty as to whether

the farm would resume operations after sale and given the evidence that the pit would not

pose a danger of overfilling by rainwater for at least two years, it determined that complete

closure requirements were not warranted. We discern no error of law in the court’s denial

of this request.

{¶26} Next, with respect to the State’s request that the trial court order dredging

of the Murphy’s ponds, the court stated:

No evidence was presented as to the necessary scope of this

dredging work, or, most importantly, the cost. Nor was there

any evidence presented to the Court of any alternative

methods to improve the water quality of these ponds, such as

aeration. Moreover, the evidence suggests real improvement

in the water quality of such ponds has already been achieved

in the 3 and 1/2 years since the spill; indeed, the ponds appear

to have acceptable water quality at this time.

While this Court is sympathetic to the plight of the Murphys

and acknowledges the ponds may not be as pristine today as

they may have been prior to the spill, the Murphys could

always have pursued civil remedies against the Hastings

wherein these remedial issues, or damages, could have been

more thoroughly investigated and litigated. Even in this case,

the demand for dredging of these ponds did not appear

among the State’s requests until over three years after the

May[ ]2020 breach, in its 6/20/23 2nd Amended Complaint.

Even the State appears to have paid scant attention to these

ponds for years after the spill as the evidence indicates a

lengthy period of time passed before further investigation.

Injunctive relief is an “[‘]extraordinary remedy equitable in

nature, and . . . its issuance may not be demanded as a matter

of strict right. An application for an injunction is addressed to

the sound discretion of the court, . . . and its allowance is a

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matter of grace.’” Hritz[, 2003-Ohio-5284, at ¶ 41 (12th Dist.)],

quoting Perkins [165 Ohio St. at 125]. Whether it will be

granted depends on the character of the case, the peculiar

facts involved, and other factors, among which are those

relating to public policy and convenience. Id. Injunctive relief

may be refused if granting it would be inequitable or unjust.

In this case, where no cost/benefit analysis for the proposed

injunctive relief—namely, “dredging” these two ponds—has

been presented it is impossible for this Court to conclude an

order to dredge these ponds is an equitable result.

Recognizing the significant expenditures the Defendants have

already incurred in this matter, including renting and operating

pumps to aerate the creek and ponds immediately following

the spill, and recognizing also that the water quality in these

ponds has recovered significantly, ordering this most drastic

of remedies without any knowledge of its costs and practical

difficulties is not equitable. If the State had serious concerns

about the release of “toxins” from these ponds, it is hard to

explain the significant delay in pursuing this particular remedy.

{¶27} Based on this analysis, to the extent that the trial court erred in applying

equitable principles to the State’s request for a dredging order, it did so with respect to

the lack of evidence as to the scope, costs, and benefits of such an order. However, the

lack of this evidence would have also prevented the trial court from properly determining

whether dredging was reasonable under the circumstances. Compare Tri-State Group,

Inc., 2004-Ohio-4441, at ¶ 43 (7th Dist.) (trial court did not abuse its discretion with

respect to the scope of injunctive relief where “[t]he evidence at trial . . . establishe[d] that

the only way to ensure both full compliance with the permits and that there is no

environmental damage from the site is to have the types of requirements contained in the

trial court’s judgment entry”), with State ex rel. Williams v. Skinner, 1979 WL 208823, *2

(1st Dist. Aug. 1, 1979) (pursuant to Ackerman, “the Attorney General is entitled to an

injunction sufficient to provide him with the means necessary for the enforcement of public

policy as expressed by the General Assembly in the several statutes involved in this type

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Case No. 2024-G-0052

of case,” but mandatory clean-up injunction was not warranted by the facts). Accordingly,

insofar as the trial court erred as a matter of law in applying equitable principles to the

State’s request for a dredging order, the State was not prejudiced by the trial court’s error,

as it did not affect the outcome of the case. See Civ.R. 61 (“The court at every stage of

the proceeding must disregard any error or defect in the proceeding which does not affect

the substantial rights of the parties.”).

{¶28} Therefore, the State’s first assigned error lacks merit.

{¶29} In its second assigned error, the State maintains:

{¶30} “The trial court erred as a matter of law by failing to mandate civil penalties

for each day of each violation.”

{¶31} In the State’s second assigned error, it again alleges error with respect to

the trial court’s application of the relevant law. Accordingly, we review this assigned error

de novo. Schutz, 2018-Ohio-1588, at ¶ 6.

{¶32} Civil penalties are authorized in this case pursuant to R.C. 939.07(C)(1) and

R.C. 6111.09(A). R.C. 939.07(C)(1) permits the director of the ODA to request the

Attorney General to seek civil penalties for violations of the rules promulgated under that

chapter. R.C. 939.07(C)(2) provides, “The civil penalty for which an action may be brought

under division (C)(1) of this section shall not exceed ten thousand dollars per violation.

Each day that a violation continues constitutes a separate violation.”

{¶33} R.C. 6111.09(A) provides that “any person who violates section 6111.07 of

the Revised Code shall pay a civil penalty of not more than ten thousand dollars per day

of violation.” (Emphasis added.) R.C. 6111.07(A) provides that “[e]ach day of violation is

a separate offense.”

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{¶34} Generally, “[a]ssessing an environmental civil penalty lies within the trial

court’s discretion.” State ex rel. DeWine v. Deer Lake Mobile Park, 2015-Ohio-1060, ¶ 41

(11th Dist.), citing State ex rel. Ohio AG v. Shelly Holding Co., 2012-Ohio-5700, ¶ 23,

citing State ex rel. Brown v. Dayton Malleable, 1 Ohio St.3d 151, 157-158 (1982).

However, as set forth above, the State does not argue that the trial court abused its

discretion in ordering the civil penalty in this case. Instead, it maintains that the trial court

erred as a matter of law in failing to properly apply the statutory framework. We limit our

discussion accordingly.

{¶35} In the trial court’s judgment entry, it stated:

Lastly, the State seeks the civil penalties set forth above.

While the Court recognizes the regulations provide for daily

penalties up to $10,000 for violations, at the end of the day, in

this case there was arguably only one major polluting event.

It occurred over just a few days in late May and early June[ ]

2020. It was ugly, messy, and dangerous, but, fortunately, this

major event was never repeated. Certainly the State

expressed concerns to this Court at certain subsequent times

over that a breach of the embankment could be repeated but

the Hastings did much to prevent a reoccurrence. And, in this

Court’s view, the other water and waste violations discovered

by the State on the farm after the initial event were relatively

minor; none resulted in significant pollution in any event. The

Defendants promptly remedied some of those violations and

eventually all of them, at significant cost, in any event.

Therefore, the Court concludes that under these

circumstances, the State is not entitled to a daily penalty sum

commencing on the date of the initial breach up until today,

especially when the docket also reflects the State itself

initiated and/or joined with the Defendants in many requests

for more time for the Hastings to resolve the various issues

and concerns, or for trial preparation extensions. While the

Court acknowledges the State’s patience, perhaps due to a

desire to permit this farm to survive this crisis, it would be

unfair to attribute all the blame for delay upon the Hastings.

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{¶36} The court then proceeded to a discussion of the factors set forth in Dayton

Malleable for assessment of a civil penalty. Thereafter, the court imposed a civil penalty

on Hastings in the amount of “$30,000 which is intended to represent $5,000/ day of the

six days following the initial breach.”

{¶37} On appeal, the State maintains that the trial court was required by law to

assess the civil penalty by assigning a particular penalty amount for each separate

violation and determining each day the violation continued. The State maintains that this

method of calculation is required by the provisions of R.C. 939.07, R.C. 6111.07(A), and

R.C. 6111.09(A).

{¶38} However, those statutes do not require the trial court to individually assess

penalties for multiple violations. Instead, those provisions set forth that each day a

violation continues constitutes a separate offense and set the maximum amount of civil

penalties a trial court may assess as “up to” or “not more than” ten thousand dollars per

day of violation. The court did impose a civil penalty, as permitted by R.C. 939.07(C) for

violations of Chapter 939, and as required by R.C. 6111.09(A) for violations of R.C.

6111.07, and there is no dispute that the penalty did not exceed the statutory maximum

of $10,000 per day that the violations continued. “As long as the amount assessed is less

than the statutory maximum, it is within the trial court's discretion to fix that amount.” Deer

Lake Mobile Park, 2015-Ohio-1060, at ¶ 41 (11th Dist.), citing Dayton Malleable, 1 Ohio

St.3d at 157.

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{¶39} Accordingly, we discern no error “of law” in the trial court’s assessment of

the civil penalty. Therefore, the State’s second assigned error lacks merit.

{¶40} The judgment is affirmed.

MATT LYNCH, J.,

SCOTT LYNCH, J.,

concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this court, appellant’s assignments of error

lack merit. It is the judgment and order of this court that the judgment of the Geauga

County Court of Common Pleas is affirmed.

Costs to be taxed against appellant.

JUDGE EUGENE A. LUCCI

JUDGE MATT LYNCH,

concurs

JUDGE SCOTT LYNCH,

concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate

pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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