OKLAHOMA CITY — A 17-year-old lawsuit between the state of Oklahoma and Arkansas poultry producers might finally be resolved this spring, after a federal court in Tulsa ruled in favor of the state last week.
Last Wednesday, U.S. District Judge Gregory Frizzell issued a 214-page finding of fact and conclusion that endorsed the state’s arguments on the public nuisance and trespassing claims it made against several poultry companies that had operations within the watershed of the Illinois River in eastern Oklahoma.
The case was filed by former Attorney General Drew Edmondson in June 2005 and had 11 defendants, including corporate giant Tyson Foods Inc. A bench trial ended Sept. 24, 2009.
Frizzell’s sharply worded ruling left little to the imagination.
“The court has found that each defendant contributed to phosphorus loading of the waters of the IRW (Illinois River Watershed). The Tyson Defendants, Cargill Defendants, and George’s Defendants all own or manage poultry farms in the IRW; all defendants have — in the past — placed poultry with growers located in the IRW; and all defendants except Cal-Maine and Peterson continue to do so,” Frizzell wrote. “Each defendant has imported phosphorus-laden feed into the watershed. Poultry waste generated at farms is typically land applied on fields in the IRW.”
Overwhelming evidence, the judge wrote, “establishes that phosphorus from land-applied poultry waste runs off the fields in environmentally significant quantities, causing injury to the waters of the IRW. Defendants have known or should reasonably have known since at least the mid-to-late 1980s that phosphorus in the runoff of land applied poultry waste injures the waters of the IRW. Yet they have continued to place their birds in the IRW, to import feed, and to apply — and allow their growers to apply — poultry waste from defendants’ birds to fields in the IRW. None of the defendants have made any provision for the appropriate management of the poultry waste.”
A byproduct of poultry litter, phosphorus in water is a key ingredient of cyanobacteria, also known as blue-green algae, which drains dissolved oxygen from water and is known to make both animals and humans ill. Toxic blooms of the algae have killed livestock and pets in Oklahoma.
Court records show that experts estimated that the defendants’ poultry operations generated more than 354,000 tons of litter per year.
“As late as the 1960s, its waters were crystal clear,” Frizzell wrote about the IRW. “But that is no longer the case. The river is polluted with phosphorus, with adverse consequences that include low dissolved oxygen; abundant filamentous green algae; blue-green algae in Lake Tenkiller near the river’s terminus; greatly decreased transparency; and significant detrimental impacts on the numbers and species of fish.”
Several Oklahoma lakes, including Lake Tenkiller – a federal reservoir created in 1952 – have regularly warned visitors of blue-green algae blooms. Court records show that 18 utilities in the state draw drinking water from the lake.
Edmondson said the judge’s fundings were very thorough and detailed.
“I’m very pleased with the final result,” Edmondson said.
He said the ruling could have a tremendous effect on the Illinois watershed.
Edmondson said the ruling should also be a clear signal to the agricultural community in Oklahoma that it has not paid proper attention to what has been designated as a scenic river in the state.
“There are people in those arenas that ought to be reading this opinion,” he said. “I’m certain the poultry industry – whether they are in Oklahoma or Georgia or North Carolina – are going to be paying a lot of attention to the findings of this federal court. Because from this day on, they are vulnerable and had better change their actions.”
Not only does Frizzell’s ruling target poultry producers, but the judge also recognized other sources of phosphorus, including that created by cattle, from point sources such as wastewater treatment plants and even soil erosion.
Oklahoma’s new attorney general, Gentner Drummond, called the ruling “a great and historic day for Oklahoma.”
“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,” Drummond said. “Oklahoma has amazing natural resources that deserve our vigilant protection. We will thoroughly review the judge’s decision and determine the appropriate path forward.”
Oklahoma, Drummond said, has amazing natural resources that deserve protection.
“We will thoroughly review the judge’s decision and determine the appropriate path forward,” he said.
Frizzell’s order gives both sides a small window to hammer out an agreement.
“The parties are hereby directed to meet and attempt to reach an agreement with regard to remedies to be imposed in this action,” Frizzell wrote.
“On or before March 17, 2023, they shall advise the court whether they have been able to do so,” he wrote. “The agreed remedies, if any, must be approved by the court. In the event the parties are unable to reach an accord, the court shall enter judgement.”
While Edmondson was, originally, the key player in the lawsuit, he said any future involvement in the settlement of the case was solely up to Drummond.
“I have spoken with Attorney General Drummond, and any future role for me is totally up to him,” Edmondson said. “But he knows I am ready to be of any assistance I can be going forward. I think his mind and heart are in the right place, and I look forward to working with him in any capacity that he calls me to do.”