it’s been almost 16 years since the State of Oklahoma sued most of the nation’s poultry industry-led Tyson Foods for environmental damages to its most popular waters for $1.6 billion. Oklahoma wanted monetary damages and injunctive relief against the poultry producers it blamed for storing and disposing of hundreds of tons of poultry waste on land within its most precious watershed.
Oklahoma did not get what it wanted but is among hundreds of parties who still must monitor the case, which after all this time has yet to be dismissed.
Known as the “Bus Loads of Lawyers” case when it went to trial from 2007 to 2010, Oklahoma v. Tyson Foods et al. has remained alive in the federal district courts longer than almost any case. Its docket runs 430 pages and serves as a directory of attorneys representing the poultry industry and water quality interests.
It is seen not only for not having an end but for being one of the most prominent environmental cases ever tried.
The State of Oklahoma sought $1.6 billion in damages and injunctive remedies under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA).
CERCLA is also known as the Superfund, and the RCRA is the principal federal law in the United States governing the disposal of solid waste and hazardous waste.
Oklahoma sought to clean and protect the Upper and Lower areas of its Illinois River; some shared with Arkansas and used for poultry production. Flint Creek, Barren Fork Creek, and Tenkiller Lake and their tributary areas are seeking protection.
Tyson, however, prevailed on all of Oklahoma’s monetary claims. Federal Judge Gregory K. Frizzell Jr. dismissed those. A few claims remain open, as does the case in Oklahoma’s Northern District.
The CERCLA and RCRA claims, along with general nuisance laws and other statutory claims, were dismissed years ago.
Usually, neither Frizzell nor anyone in the Northern District of Oklahoma comments about the status of the case. The busloads of lawyers involved are left to wonder and speculate.
Until this past year.
Frizzell himself caught the attention of a few hundred attorneys involved in the case by saying he has a “250-page draft and an opinion on the horizon.” He did not say when that horizon will be reached or share where he might come down after thinking about it for 15 years.
Not long after the judge’s statement, the COVID-19 pandemic all but shut down the nation’s district courts. Clerks were sent home and judges stayed away from their courtrooms. Not that we know if the pandemic is responsible for delaying Oklahoma v. Tyson for yet another year.
After 16 years with the major issues decided, there’s not much new in the court’s docket about the environmental issues that brought the case. But occasionally, there is a reminder that the case was important. On Dec. 28, 2020, Independent Tulsa Geologist Robert Jackman asked Judge Frizzle to view his paper for Amicus status in the case. Jackman said when his family learned to scuba at Gene’s Dive Shop on Tenkiller Lake, visibility was 10 feet in clean water. Now that visibility is “none to three feet,” he says.
“Chicken litter is not just chicken poop,” he continued. “Fact is with 2 percent mortality rate in the broiler commercial flocks, culled chickens –their decaying remains — are mixed in with the litter.
And 16 years ago, it was then Oklahoma Attorney General Drew Edmondson who sued Tyson along with Cargill, Cobb-Vantress, Aviagen, Cal-Maine Foods, George’s, Peterson Farms, Simmons Foods, Willow Brook Foods, and various subsidiaries.
Oklahoma’s dispute with the poultry industry also offered an opportunity to look into chicken litter application on land, said to be one of the cheapest if not entirely safe methods of disposing of the material on land. It is widely used around the world and it rarely comes up in court cases.
Edmondson, now 74, served as Oklahoma’s AG for 16 years, from 1995 to 2011. He said phosphorus and nitrate levels were damaging the Illinois River and Tenkiller Lake, popular recreation waters, and the poultry companies were responsible.
Boiled down, the unresolved dispute pitted “non-point” pollution, led by poultry litter and its run-off against “point source” concerns that involve municipal wastewater treatment and other systems including those for poultry waste.
The Illinois River is a 145-mile-long tributary of the Arkansas River in Arkansas and Oklahoma. Oklahoma has long blamed Arkansas for polluting the river. Wastewater discharge by Fayetteville, home of the University of Arkansas, has been blamed for phosphorus contamination as far back as the 1980s.
Chicken manure is very high in nitrogen and also contains potassium and phosphorus. The high nitrogen and balanced nutrients are why chicken manure compost is the best kind of manure to use as fertilizer. How the water quality impacts of the runoff, however, is pretty easy to follow.
Oklahoma sued Arkansas over Fayetteville’s heavy phosphorus load and the case went to the Supreme Court in 1992, finding an upstream state could enforce its standards on downstream states.
Under a 2003 agreement, Oklahoma set a phosphorus level for scenic rivers and Arkansas agreed to a 75 percent reduction in phosphorus output. Discharges of poultry levels were not addressed in that agreement.
Edmondson, now in private practice with Riggs Abney in Oklahoma City, still expresses optimism about Frizzell’s ruling whenever it comes. During the long wait, he’s twice run to be the state’s governor and twice failed to make it.
Time marching on has also brought improvements in Illinois River water quality. The two states reached another agreement in 2008 with both adopting 0.037 parts of million as a maximum phosphorus pollution level.
Arkansas and Oklahoma also agreed to cooperate planning and pollution steps in the one million acre watershed. Poultry litter is being removed from the watershed and poultry operations have to report their operations to the Oklahoma Department of Food and Forestry.
A ruling in Oklahoma v. Tyson Foods Inc. et al is still going to have value, though. As an unresolved case, it has not been possible to appeal decisions Frizzell made while hearing the dispute. For example, he ruled Oklahoma could not seek damages if proved the poultry industry knew it was in violation by polluting the watershed.
More aggressive reclamation and environmental work might also result from a ruling by the district court judge. Edmondson says the poultry industry caused the damages and it should pay for it, not taxpayers.
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