The notorious lawsuit suit brought by Oklahoma Attorney General Drew Edmondson, who claimed that poultry companies were responsible for polluting the Illinois River watershed in northeastern Oklahoma and northwestern Arkansas, is nearing its end.
Eight integrator companies were sued in June of 2005 for the actions of their contract growers. The lawsuit held that the use of poultry litter as a fertilizer on the lands in the Illinois River watershed led to pollution of river and its tributaries. The state of Oklahoma was seeking $800 million in natural resource damages and $1.5 billion in remediation requests.
Oklahoma's newly elected attorney general, Scott Pruitt, said he will review the merits of the lawsuit that the state has pursued for five years against poultry companies. In fact, the poultry industry may win this legal battle, but plaintiff attorneys are exploring the prospects for new litter lawsuits in other states.
Lessons for poultry industry
Whether or not the new attorney general decides to drop the lawsuit, Marvin Childers, an attorney for The Poultry Federation, speaking at the National Poultry and Animal Waste Symposium, said, “We confidently await the district court’s decision in the trial.”
Even though the court hasn’t issued a final ruling, Childers said that the entire industry can learn from this lawsuit, as have the plaintiff’s lawyers.
Tobacco lawyers now focused on poultry litter
Edmondson hired a group of South Carolina trial lawyers on a contingency fee basis to handle the lawsuit for the state. The contract in Oklahoma calls for one-third of all monetary damages and one-third of the value of any injunctive relief, with a cap of 50% of the total monetary damages, to be paid to the lawyers. Childers said that these lawyers were involved in the state tobacco settlements and that they are now marketing this poultry litter lawsuit to attorney generals across the country.
“What can other states expect? You can expect trial lawyers looking for state business,” Childers said.
The Oklahoma Attorney General has said publicly that the lawyers representing the state spent over $30 million in direct costs and for experts, not including attorney fees, to pursue this case. Childers said that much of the legal legwork done for this case could be now be used in litigation in other states.
Who owns the water?
Several aspects of Oklahoma’s lawsuit have already been decided on in favor of the poultry industry by U.S. District Court Judge Gregory K. Frizzell. In October of 2008, the poultry company lawyers filed a motion to dismiss all of the monetary claims for the “public waters” because of a 200-year-old dispute between the state of Oklahoma and the Cherokee Nation over the water rights.
“Because of the dispute between the Cherokee Nation and the State of Oklahoma and because the Cherokee Nation was not brought in as a party to the law suit, the poultry company’s argued that if damages were awarded to Oklahoma there could be a later lawsuit for damages from the Cherokee Nation. The court decided to throw out the $800 million in monetary damages on July 22, 2009,” Childers said.
A month after the ruling and four years after the filing of the lawsuit, the Cherokee Nation filed a motion to intervene. On September the 15, 2009, the judge denied the Cherokee Nation’s motion to intervene because it was “untimely.”
No imminent danger
Two and a half years after filing the lawsuit, Oklahoma’s lawyers asked the court for a preliminary injunction because of the imminent danger to anyone swimming in the Illinois River. The district court denied motion for the preliminary injunction.
“The court found that the state failed to prove that the bacterial levels that the state was worried about were caused by the fertilization of pastures with poultry litter,” Childers said. “The judge also found that the expert witnesses used by the attorney general’s lawyers were not credible and that the standard of proof was not met and their testimony was not admissible.”
Vacation hot spot
The Illinois River Watershed is extensive, draining over 1 million acres in six counties in two states, Arkansas and Oklahoma. Around 300,000 people live in the watershed, and nine municipal wastewater treatment facilities directly discharge to the Illinois River or its tributaries.
In the Illinois River watershed lawsuit the Oklahoma Attorney General represents the citizens of Oklahoma, but the attorney general has other clients. These other clients include the agencies responsible for enforcing regulations regarding the application of poultry litter in Oklahoma and the Oklahoma Tourism and Recreation Department. Attorneys for the poultry companies were able to use magazine ads paid for by the Oklahoma Tourism and Recreation Department promoting the Illinois River as one of the most scenic rivers in America as evidence that no damage had been incurred in the watershed.
On January 6, 2010, the district court granted the poultry companies’ partial motion for a directed verdict at the close of the Oklahoma Attorney General’s case. The court dismissed the states Resource Conservation and Recovery Act (RCRA) claim, the nuisance per se claims and the claims related to bacterial contamination. The only point left for the final ruling was the potential for injunctive relief.
According to Childers, “Poultry litter was described in the trial as a valuable nutrient and that this nutrient was regulated in Oklahoma and Arkansas. There was no evidence of improper application of poultry litter either in Arkansas or Oklahoma.”