Judge holds poultry companies liable, remedy pending

In less than eight weeks, poultry companies accused in a long-running federal lawsuit of polluting the Illinois River watershed will either announce they’ve reached an agreement with the state regarding remedies to be imposed, or a judge will render a judgment on remedies.

U.S. District Judge Gregory Frizzell last week ruled in the state’s favor in a lawsuit filed 18 years ago against 14 poultry companies operating within the Illinois River watershed in eastern Oklahoma. The lawsuit filed by then-Attorney General Drew Edmondson, which resulted in a lengthy trial 13 years ago, alleged that overuse of poultry waste (commonly referred to as litter) as crop fertilizer had polluted the watershed.

In his ruling, Frizzell determined that the poultry companies had “unreasonably interfered with the public’s right to the use and enjoyment of the waters” in Oklahoma, particularly the Illinois River watershed and Lake Tenkiller.

Frizzell’s ruling said the state had established its case regarding excess phosphorus in watershed waters, which is alleged to have leached into nearby streams due to over application of fertilizer on lands within the watershed, usually in close proximity to poultry farms. The judge found compelling the state’s allegation that poultry waste generated by poultry farmers was the source of the phosphorus, and that the environmental damage to watershed waters was inextricably tied to poultry litter.

In his more than 200-page report, Frizzell wrote “it is clear that poultry waste is a major contributor to the levels of phosphorus in the water of the [watershed],” and that the poultry companies “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.”

While 14 poultry companies were defendants in the original lawsuit in 2005, the number of defendants was subsequently narrowed to 11. Those remaining defendants include Tyson Foods, Tyson Poultry, Tyson Chicken, Cobb-Vantress, Cal-Maine Foods, Cargill, Cargill Turkey Production, George’s, George’s Farms, Peterson Farms and Simmons Foods.

Attorney General Gentner Drummond lauded last week’s decision as “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.”

Frizzell found in favor of the state on trespassing and public nuisance-related claims, and ordered the parties to meet and attempt to reach an agreement regarding remedies by March 17. If an agreement is not reached by then, Frizzell will render a judgment on remedies, which could include injunctions, significant penalties and even banning chickens in the watershed.

In its lawsuit, the state is seeking relief that would hold poultry companies responsible for the waste their birds generate, and limit application of poultry litter on watershed lands. The state also wants to require poultry companies to remediate the watershed, to pay to investigate remedial actions regarding the effects of poultry litter application and to pay for implementing remedial actions.

The 2009 bench trial in U.S. District Court for the Northern District of Oklahoma concluded on Sept. 24, 2009. In the 148-day proceedings, Frizzell presided over 52 days of trial.

In the wake of Frizzell’s ruling, Edmondson was elated by the finding, but warned that any improvements in waste disposal by poultry companies are voluntary, and could end without notice.

The Illinois River watershed comprises about 1 million acres in northeastern Oklahoma and northwestern Arkansas.