TAHLEQUAH, Okla. – Lawyers representing poultry companies blamed for polluting a scenic river took steps to appeal a federal judge’s rejection of their efforts to dismiss a lawsuit filed in 2005 by the state of Oklahoma.
The move could delay for months litigation that languished 13 years after trial before U.S. District Judge Gregory K. Frizzell weighed in on the evidence. Frizzell found and concluded in January 2023 the “actual and ongoing injury to the waters of the Illinois River watershed” caused by the poultry integrators “constitutes irreparable harm and warrants injunctive relief.”
Oklahoma Attorney General Gentner Drummond seeks a judicial order that would require remediation of environmental harms to the Illinois River caused by the poultry industry’s business practices.
Lawyers representing the poultry integrators – which among others include Tyson Foods, Simmons Foods, Cobb-Vantress, Cal-Maine Foods and Cargill – contend the evidence presented at trial is “so stale” it cannot support a finding of liability and an order for “prospective injunctive relief.”
Frizzell had scheduled an evidentiary hearing allowing the state to show whether wastes produced by poultry industry still threatens water quality and overall health of the state-designated scenic river. Poultry integrators would be allowed to present evidence showing present conditions render the state’s claims moot.
Poultry integrators contend the hearing ordered by the court would be neither practical nor legally sound and “would not cure the problems defendants have raised.”
“An interlocutory appeal stands to advance the case — and save both the court and the parties considerable time and resources,” the poultry integrators’ lawyers argue. “If the 10th Circuit later reversed on the threshold ground that district courts lack authority to grant injunctive relief on a stale record, any efforts spent litigating a remedy will have been wasted.”
Drummond’s team has yet to respond to the defendants’ most recent motions. In its response to defendants’ motion to dismiss, lawyers representing the state the passage of time alone “is not an intervening circumstance” that would render the state’s claims moot.
The attorney general also alleged an absence of any meaningful change of poultry industry practices since the 2010 trial concluded. Significant changes would be necessary to erase threats posed by poultry industry practiced to the Illinois River and its tributaries.
Save the Illinois River President Denise Deason-Toyne said she is not surprised by the poultry integrators’ most recent motions. She was surprised, however, that it took them so long after the judge denied their motion to dismiss the lawsuit.
“They have no evidence the river is any better or that any significant changes have been made to their business practices,” Deason-Toyne said. “I guess they figure they can delay the outcome long enough — hopefully for those necessary changes to be made.”
Former state Attorney General Drew Edmondson filed the lawsuit against 13 Arkansas-based poultry companies after several years of trying to negotiate ways to reduce the industry’s contribution of phosphorus pollution within the Illinois River Watershed. Elevated phosphorus levels in surface waters spur algae blooms, which deplete oxygen levels, degrade water quality and harm aquatic life.
Phosphorus can enter streams from other sources — lawn fertilization and treated wastewater are examples. But the industry’s practice of applying excessive amounts of poultry wastes as fertilizer on agricultural land has been found to be a major contributor to the problem.
Oklahoma Agriculture Secretary Blayne Arthur, in a letter sent to the U.S. District Court of Northern Oklahoma, expressed fears about how Frizzell’s anticipated ruling might impact her agency and agricultural producers.
“The final ruling forecasted to the parties is based on circumstances that existed 13 years ago,” Arthur said, adopting the poultry integrators’ arguments. “Court-ordered modifications to standards and requirement applicable to the poultry industry do not contemplate current conditions, laws, technology, and information — all of which are significantly different than they were more than a decade ago.”
As an example, Arthur cited a phosphorus application standard of 300 milligrams per kilogram in 2010. That standard remains in effect today because state lawmakers prohibited the adoption of federal recommendations published in 2021 that would have reduced the application standard to 200 milligrams per kilogram.