Federal Judge Denies Some Motions To Dismiss Chicken Litter Lawsuit
Last updated Thursday, June 14, 2007 8:54 PM CDT in News
By John L. Moore
THE MORNING NEWS
TULSA, Okla. -- Federal Judge Gregory Frizzell rejected requests to dismiss some of the allegations in a lawsuit brought by the Oklahoma attorney general against 14 poultry companies over pollution in the Illinois River watershed.
Thursday was the first day of a scheduled two-day hearing in the suit brought by Oklahoma Attorney General Drew Edmondson. He filed the suit shortly before negotiations broke down between Oklahoma and the poultry companies in 2005.
Many of the companies are located in Arkansas, including Tyson Foods, the world's largest meat producer.
Edmondson claims poultry litter spread on fields in the watershed is polluting the river and Lake Tenkiller with excessive nutrients, particularly phosphorus, and other hazardous substances. Tahlequah, Okla., uses Lake Tenkiller as drinking water.
Last month, a judge rejected a request from Arkansas that it be allowed to intervene. Frizell started the morning preparing both sides for the coming discussions on whether contingency fee lawyers will be allowed to work on the case for Edmondson's office.
Arguments on a motion to prevent contingency fee lawyers from working on the case will be argued today.
Those arguments are based on a recent decision by the 10th Circuit Court of Appeals that held New Mexico's attorney general could not use state laws to sue for damages to natural resources because the laws would not allow the state to spend money from those damages to pay attorneys.
On Thursday, Frizzell denied motions that would have dismissed several counts of Edmondson's lawsuit based on Oklahoma laws and common law and under federal laws allowing citizens suits involving solid waste disposal.
The citizens' suits require proper notice to allow alleged violators the chance to clean up their act and avoid a lawsuit or to notify a government agency they need to address the problem.
Jay Jorgensen, an attorney representing Tyson Foods, said the state did not provide specific enough locations or tell the companies how much litter was too much on areas where the pollution allegedly occurred.
"They have repeatedly said it is the entire 1 million acre watershed. Does that mean inside every home, every church and Wal-Mart parking lot," Jorgensen said. "Where was I supposed to go first in that 90 days' notice from the state."
Oklahoma attorneys maintain the watershed is specific enough and the poultry companies know who is spreading litter and any poultry litter runoff is too much and pollutes the watershed.
Frizzell denied the motion. He said the companies know who the growers are and there is no evidence on record now that they don't know who transports their litter out of the watershed.
But Frizzell said he sees the issue of the 1 million acre watershed as a Superfund site will be an important issue.
Poultry company lawyers argued federal laws regulating interstate commerce prevented Oklahoma from suing poultry companies for farmers spreading poultry litter on fields in Arkansas.
Frizzell also denied that motion.
Scott McDaniel, an attorney for Peterson Foods, argued the entire case should be dismissed or postponed until Oklahoma has sought a resolution of the issue through the Arkansas Oklahoma Arkansas River Compact Commission.
McDaniel argued federal Clean Water Act regulations provide a comprehensive regulation program to address the issue of non point source pollution such as the spreading of chicken litter on fields.
State and federal regulations and the federally authorized compact commission are the appropriate routes to a solution.
The compact commission was created in 1970 and has a process for the two states to decide on water use and quality issues that arise in the Arkansas River basin.
The Illinois River watershed is a part of the Arkansas River basin.
AT A GLANCE
Poultry Litter Suit
Oklahoma Attorney General Drew Edmondson sued eight poultry companies and six of their subsidiaries in June 2005 for pollution in the Illinois River watershed. Although excessive levels of phosphorus are one of the primary concerns, the lawsuit covers a variety of other substances allegedly in poultry litter.
Poultry litter is a combination of excrement from the chickens or turkey and the bedding material such as wood chips or rice hulls spread underneath the birds in poultry houses.
Source: Staff Report
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