TAHLEQUAH, Oklahoma – Clean-water advocates expressed hope that a federal judge’s rejection of poultry integrators’ latest effort to derail a lawsuit filed in 2005 by Oklahoma might spur another attempt to negotiate a settlement.
In its lawsuit, which languished 13 years after trial before U.S. District Judge Gregory K. Frizzell weighed in on the evidence, Oklahoma seeks remediation for environmental harms to the Illinois River caused by the poultry industry’s business practices.
Lawyers representing the poultry companies argued in a motion to dismiss, filed Oct. 26, 2023, the state’s evidence was old and stale, rendering its claims moot. A record of evidence “so stale,” they argued, could not support a finding of liability, a judgment, and an order for “prospective injunctive relief.”
Oklahoma Attorney General Gentner Drummond and his team of lawyers argued otherwise, stating the passage of time alone “is not an intervening circumstance” that would render the state’s claims moot. They cited an apparent absence of meaningful change of industry practices necessary to erase the threat of future harm to the Illinois River and its tributaries.
Frizzell sided with the state of Oklahoma. In an order filed this past Wednesday, he cited a passage from the findings of facts and conclusions of law published by the court on Jan. 18, 2023.
“The court specifically found and concluded that ‘actual and ongoing injury to the waters of the IRW constitutes irreparable harm and warrants injunctive relief,’” Frizzell states in the court document. “Defendants have failed to demonstrate that the state is not susceptible to long-lasting and continuing injury from defendants’ trespass and nuisance created thereby.”
Citing legal precedents from the U.S. Supreme Court, Frizzell states in his order that an “action is not moot if a plaintiff has ‘a concrete interest, however small, in the outcome.’” He acknowledged defendants’ assertions that water quality within the watershed has improved since the case was tried in 2010 but noted “progress [with respect to phosphorus levels] has plateaued” at unacceptable levels.
Phil Bacharach, communications director for the Office of the Attorney General, declined to comment about Frizzell’s most recent ruling. He said any next steps are up to the court.
Former state Attorney General Drew Edmondson, who spearheaded the lawsuit against the poultry companies, said the defendants’ motion to dismiss “lacked merit” on both the facts and the law.
“There had been a passage of time during which the number of poultry houses in the watershed showed a marked increase, but the industry could not even allege that practices had changed or that harm was not still occurring,” Edmondson said Friday in response to a request for comment sent by email.
“The judge’s ruling was a strong recitation of the harms created by this industry to the Illinois River, its tributaries and Lake Tenkiller,” Edmondson said. “I will be looking forward to the status/scheduling hearing set for next month.”
Attempts to contact defendants’ representatives were unsuccessful. A spokesman for the defendants told the Arkansas Democrat-Gazette they would formulate a response to the ruling.
Denise Deason-Toyne, president of Save the Illinois River Inc., said the Tahlequah-based citizens coalition was “pleased, but not surprised” by Frizzell’s ruling.
“The arguments raised were basically a ‘Hail Mary,’ which were eloquently intercepted and knocked down by Judge Frizzell,” Deason-Toyne said. “We hope the parties will reengage in settlement discussions, but based upon the past history of the defendants, we expect an appeal.”
Deason-Toyne said STIR was “even more pleased” by Frizzell’s pledge to “expeditiously enter a final order and judgment” for injunctive relief. A final order is required before the parties can appeal a decision.
Edmondson predicted this outcome nearly a year ago while addressing STIR members and supporters during its annual banquet and awards ceremony. His assessment came while he was helping Drummond and his team negotiate a mediated settlement with poultry companies.
“I am a firm believer that the poultry companies are no more willing to negotiate and agree to something that would adequately protect the Illinois River than they were in the late 1990s and the early 2000s,” Edmondson said during the event. “They aren’t going to give up without a fight to the very bitter end.”
Edmondson said the outcome of Oklahoma’s lawsuit against the poultry defendants “could be a template for cleaning up watersheds not only in Oklahoma, but across the nation.”