A federal judge ruled in favor of the state of Oklahoma on Wednesday, nearly 18 years into a lawsuit that blames the poultry industry for pollution in the Illinois River watershed and 13 years after a lengthy trial in the case.
U.S. District Judge Gregory Frizzell found for the state on the trespassing and public nuisance-related claims it leveled against the various poultry companies that operated within the watershed in eastern Oklahoma.
“The court concludes all defendants, by their conduct, have unreasonably interfered with the public’s right to the use and enjoyment of the waters of the IRW (Illinois River watershed) in Oklahoma,” Frizzell wrote in his 200-plus page Findings of Fact and Conclusions of Law report.
“The state further established that a significant cause of the excess phosphorus in the waters of the IRW is the land application of litter from defendants’ poultry,” Frizzell wrote. Poultry waste is commonly referred to as litter when mixed with other bedding materials.
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“The State’s injuries from phosphorus concentrations in the rivers and streams of the IRW and Lake Tenkiller are significant,” Frizzell continued. “Defendants are liable to the State for statutory public nuisance and for federal common law nuisance with respect to their conduct in the Oklahoma portion of the IRW and their conduct in the Arkansas portion of the IRW.”
Frizzell gave all parties involved in the lawsuit until March 17 to come to an agreement “with regard to remedies to be imposed in this action.”
Should the parties not come to an agreement that Frizzell approves, he wrote that he would enter a judgment on his own.
The ruling comes more than 13 years after a bench trial concluded on Sept. 24, 2009, in U.S. District Court for the Northern District of Oklahoma.
“This is a great and historic day for Oklahoma,” said Oklahoma Attorney General Gentner Drummond. “While this decision has been a long time coming, it is important to note that in the intervening years since the filing of the suit, the poultry industry has made, or is willing to make, strong improvements in waste disposal to ameliorate the extent of the problem.
“Oklahoma has amazing natural resources that deserve our vigilant protection. We will thoroughly review the judge’s decision and determine the appropriate path forward.”
Former Oklahoma Attorney General Drew Edmondson filed the lawsuit June 13, 2005, against 14 poultry companies that had operations in the Illinois River watershed, alleging that overuse of poultry litter as crop fertilizer had caused pollution in the watershed. The number of companies named was eventually narrowed to 11.
The remaining defendants are Tyson Foods Inc.; Tyson Poultry Inc.; Tyson Chicken Inc.; Cobb-Vantress Inc.; Cal-Maine Foods Inc.; Cargill Inc.; Cargill Turkey Production LLC; George’s Inc.; George’s Farms Inc.; Peterson Farms Inc.; and Simmons Foods Inc.
Frizzell presided over 52 days of trial that were spread out over a 148-day period.
The state of Oklahoma alleged that poultry litter generated by poultry farmers was high in phosphorus, which leached into nearby streams when overly applied as fertilizer on lands within the watershed.
The watershed comprises about 1 million acres, with slightly more than half in northeastern Oklahoma and the balance in northwestern Arkansas.
Frizzell agreed with the state that the majority of the poultry waste generated by birds owned by the defendants has been applied in the Illinois River watershed, usually on or in close proximity to the poultry farms.
The judge also determined that while the poultry companies criticized the state for not adequately considering other potential sources of phosphorus, he found that “based on the evidence produced at trial, it is clear that poultry waste is a major contributor to the levels of phosphorus in the water of the IRW.”
Frizzell also agreed that the defendants “have done little — if anything — to provide for or ensure appropriate handling or management of the poultry waste generated by their birds at their growers houses.
Frizzell agreed with the state that pollution from phosphorus had caused the following in the watershed:
• Low-dissolved oxygen in the Illinois River
• Abundant filamentous green algae
• Blue-green algae in Lake Tenkiller
• Reduced transparency
Frizzell earlier rejected a claim from the state that land application of litter had caused bacterial pollution in the watershed waters.
The state in its lawsuit is seeking an injunction that:
• Makes the poultry companies responsible for waste generated by their birds and precludes land application of poultry waste in the Illinois River watershed at rates greater than the agronomic rate.
• Requires remediation of the watershed.
• Requires the defendants to pay to undertake an investigation of remedial actions to address the effects of land application of poultry waste in the watershed and to pay for the costs of implementing the remedial actions.
Reached by telephone Wednesday, Edmondson called the ruling “pretty much a home run for the state of Oklahoma.”
Edmondson said that since testimony concluded in the trial in 2009 the watershed has seen some improvement in its waters.
He attributed some of the improvement to upgrades to municipal wastewater treatment plants in the watershed.
Edmondson said poultry companies have been voluntarily shipping some of the poultry litter out of the watershed.
“The problem with that is it was voluntary, and as the price of gasoline goes up, that could end overnight,” Edmondson said.
“The judge’s order has memorialized the law and the facts, both of which are incredibly helpful to the position of the state of Oklahoma,” Edmondson said. “What is remaining is for Oklahoma, through the attorney general and the poultry industry, to try to hammer out a negotiated settlement that they could submit to the court.
“The court indicated that if there is a failure to do that then the court would rule.”
Edmondson said the judge could take injunctive relief if both sides fail to come to an agreement.
“He could enjoin the industry from spreading any litter on the land,” Edmondson said. The judge could also levy “significant” penalties,
He said the judge could go so far as to ban the placement of chickens in the watershed.
Asked if he thinks such a position could be likely, Edmondson replied: “If the industry does not agree to a very significant negotiated settlement, then I would urge the court to do that.”
Edmondson emphasized that he is no longer attorney general and is not in charge of seeing the lawsuit through.
He commended both Frizzell and Drummond for their efforts in the case.
Earlier this month, Drummond filed an appearance in the federal poultry pollution lawsuit.
Edmondson said Drummond’s filing indicates “his personal interest in fighting this fight for the people of Oklahoma, which I appreciate very much.”
A spokesperson for Tyson Foods said company officials were reviewing the ruling and had no comment Wednesday.
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