At long last, the fate of the Illinois River watershed is about to be decided.

Attorney General Drew Edmondson made the opening statement in the long-awaited case against 11 poultry companies that he claims are partially responsible for degrading streams in the eastern Oklahoma watershed.

Edmondson contends the practice of applying poultry litter to the watershed as a fertilizer has caused once “crystal-clear” waters to become polluted. Edmondson believes his team can link poultry litter with excessive amounts of bacteria and other pathogens found in the watershed.

Attorneys for the defendants see things quite differently. They contend the poultry growers abide by agricultural management plans that they believe ensure no adverse environmental impacts will occur from litter application. They also contend the farmers care about the environment and act responsibly to preserve it, and in fact drink from water wells located in the watershed.

We do not envy U.S. District Judge Gregory Frizzell’s task. The complicated case hinges on highly technical issues and could have national implications. Even before the trial started last week, Frizzell had to admonish the 30-plus lawyers involved to control their emotions. He issued the stern warning after he noticed some attorneys grimacing and contorting their faces. “You need to keep your reactions to yourself,” he said.

This case is causing emotions to run high in other venues as well, because so much is at stake. Oklahomans are concerned about the future of their beloved waterways, with good reason, and poultry growers are understandably concerned about their fates.

The case could even have a bearing on Edmondson’s race for the governorship. He faces a serious primary challenger next summer in Lt. Gov. Jari Askins.

Perhaps a settlement still is a possibility at this late date, though that seems unlikely. Observers can only hope that the final outcome serves the best interests of Oklahoma and Oklahomans.

FAYETTEVILLE, AR (KUAF - NPR) - After four years of negotiations, hearings and motions, the much-anticipated trial pitching the state of Oklahoma against eleven Arkansas poultry companies started Thursday in Tulsa Federal Court.
At stake is whether farmers can continue to spread poultry waste on pastures–or be forced to haul it out of the region.
Oklahoma claims the poultry litter has damaged the Illinois River Watershed. The trial may take up to six weeks.  Click here to listen to the entire story.

TULSA, OK — Oklahoma’s lawsuit trial against the poultry industry began Thursday morning. Lawyers, led by the Oklahoma Attorney General, gave their opening statements.

The state claims poultry pollution is contaminating the Illinois River watershed and filed the suit four years ago.
The Illinois River Watershed covers a million acres in Oklahoma and Arkansas. Oklahoma Attorney General Drew Edmondson says the watershed has been under attack by the poultry industry going back decades.

“They are being degraded,” Edmondson said of the waterways. “Lake Tenkiller in the summer months is 70% oxygen dead. It changes the wildlife that lives in the stream and in the lake.”

Edmondson claims that waste from poultry farms has contaminated creeks and streams that flow into the watershed. He says the poultry industry produced enough waste from 2001 to 2006 to cover a two-lane highway, 18 inches deep from Tulsa to Fayetteville, Arkansas.

9/20/2009 Related story: As Poultry Lawsuit Nears, River Is Healing

Edmondson is suing 11 poultry companies, including Tyson and Cargill, saying the industry is no longer a mom and pop operation and needs to be regulated.

Jackie Cunningham is with the Poultry Community council.

“The poultry industry has done an incredible job of standing up for environmental stewardship,” Cunningham said. He said that the poultry industry has a waste management plan that is already approved by the state of Oklahoma.

“That nutrient management plan tells the property owner where, when, and how much they can apply litter to their property,” he said

“That agency that regulates that is the state Department of Agriculture, and they have stated that farmers and ranchers are doing a good job and abiding by the laws.”

In court, the state presented several photos showing piles of poultry waste and litter being spread across farms, in some cases less than a quarter of a mile from the Illinois River.

Edmondson says he’s targeting the large companies instead of the individual farmers because those companies have control over the entire operation.

“The scientific evidence is that it is a severe problem, it is caused by poultry, and they, the companies and not the growers, need to be responsible for the safe disposal of the waste,” Oklahoma Attorney General Drew Edmondson said.

Edmondson is asking the court to limit waste that can be applied to the ground and he wants the excess litter shipped out of the watershed and destroyed.

Attorney General Drew Edmondson painted a bleak picture of the Illinois River watershed Thursday as the state of Oklahoma opened its case in a pollution lawsuit against the poultry industry.

What Edmondson says: The Illinois River, once a pristine waterway, has become “unsightly” due to runoff containing poultry litter that was applied to fields to grow hay. The companies at the center of the lawsuit have been aware for years of the problems that can occur from the overuse of poultry waste as a fertilizer.

Defendants argue: The poultry companies say there is no evidence that any poultry applied to the land has caused or could cause pollution in the Illinois River watershed. In fact, many of the causes of bacterial and pathogenic water contamination are likely caused by cattle manure. Area nurseries and municipal wastewater treatment plants within the watershed are also large contributors to degradation of the watershed. Click here to read the full article.

TULSA, Okla. (AP) — Attorneys for Oklahoma and the Arkansas poultry industry traded barbs in federal court Thursday, disputing whether the companies knew for decades that over-application of chicken waste on farmland was polluting the Illinois River watershed.

“They have been aware of these problems, and the evidence pointing in their direction for years,” said Oklahoma Attorney General Drew Edmondson, who presented the first part of the state’s opening remarks in its pollution lawsuit against 11 poultry companies. As he spoke, photographs of poultry litter piled high near barns and river banks flashed on monitors.

Robert George, an attorney for Tyson Foods Inc., one of the defendants in the case, responded in his opening statement that Oklahoma was launching an attack on “hardworking farmers” and defended the use of poultry litter as a valuable resource.

“Poultry litter is not on trial,” George told a packed Tulsa courtroom, filled with industry executives and dozens of attorneys. “Growers want litter. They will use it or sell it, but either way, it’s a valuable commodity to them.”

Oklahoma sued the industry in 2005, claiming the hundreds of thousands of tons of bird waste it spreads on fields on the Oklahoma-Arkansas border is one of the major causes of pollution in the 1 million-acre river valley.

The case is being closely studied by other states thinking about challenging the way Big Poultry does business. The trial will resume Wednesday.

To illustrate the harm caused by massive amounts of poultry litter in the river valley, state attorney David Page set two glass jars filled with dark brown waste on a table before U.S. District Judge Gregory K. Frizzell.

“What’s in this waste?” he asked before ticking off its contents: phosphorus, nitrogen, arsenic, estrogen, antibiotics and harmful pathogens.

For decades, farmers in northeastern Oklahoma have emptied litter from their chicken houses and spread the droppings on their fields as a cheap fertilizer to grow other crops.

The state argues runoff from the fields has polluted the Illinois River with harmful bacteria that threatens the health of the tens of thousands of people who raft and fish there each year.

But George countered that Oklahoma failed to take into account the waste from cattle operations and municipal water treatment plants, among other sources. The industry also argued that Arkansas and Oklahoma have sanctioned the practice of spreading chicken waste on farmland by issuing farmers permits to do it.

In a six-year period, Page claimed, nearly 942 million birds were raised in the watershed, which spans portions of Oklahoma and Arkansas, producing an estimated 2.7 million tons of waste in that time.

Edmondson has said the industry took the easy and cheap way out when it came to properly disposing of the waste, rather than burning it as energy, processing it into pellets or composting it.

He also accused the companies Thursday of placing the burden of handling the waste on the farmers who raise birds.

“The Illinois River watershed is … a huge asset to the state of Oklahoma and to the nation,” he said. “We have the legal tools at our disposal to fix it.

“This precious asset belongs to our children and grandchildren. It belongs to the future,” he told the judge.

The other defendants named in the lawsuit are Cargill Inc., Cal-Maine Foods, Inc.; Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cargill Turkey Production L.L.C., George’s Inc., George’s Farms Inc., Peterson Farms Inc. and Simmons Foods Inc.

Copyright © 2009 The Associated Press. All rights reserved.

TULSA, Okla. — Poultry waste puts as much phosphorous in the Illinois River watershed every year as 8 million people, attorneys for Oklahoma said Thursday.
“We are here today to determine the future of the Illinois River watershed,” Oklahoma Attorney General Drew Edmondson said in his opening remarks at a trial in which Oklahoma is suing 11 Arkansas poultry companies
Edmondson and his co-counsel, David Page, opened the federal court case arguing phosphorous is particularly damaging to water quality in the river and chicken litter is particularly high in phosphorous.

Phosphorous is the pollutant that makes poultry waste a greater threat to the Illinois River than others because phosphorous is a key food for algae, Edmondson said. Algae destroys water clarity and drains dissolved oxygen from water.

It is the nitrogen in poultry litter that is useful for fertilizer, according to Page and Edmondson. An application of poultry litter with enough nitrogen to do the job will apply eight times as much phosphorus as the fertilized plants can absorb, Edmondson said.

Edmondson is suing to prohibit application of litter as a fertilizer on land that has already absorbed an equivalent to 65 pounds of phosphorus or more per acre, he said. He also seeks remedial action to stop runoff and for review and analysis of antipollution practices, with the cost of the review being paid for by the poultry companies.

The companies contend poultry litter cannot be singled out as the cause of the phosphorus in the watershed that has been affected by rapid growth.

Cattle in the river’s watershed produce eight times as much waste as poultry does, attorneys for poultry companies replied.

What the state seeks is to single out poultry when disposal of the 254,000 tons per year of waste it produces is applied as fertilizer in a managed and controlled fashion while 2 million tons a year of cattle waste is not, Tyson attorney Robert George countered in his opening statements.

“Nobody’s following these cows around,” George said, while poultry litter application follows best management practices advocated by Oklahoma and Arkansas state agencies and industries.

Phosphorus binds to soil and is very hard to dislodge, George said in his opening. “Cattle graze right down to the streams where there’s water,” he said. “An estimated 45 percent of their waste goes directly into the water or riparian (stream bank) areas.”

Additional phosphorous-bearing waste goes directly into the river and major tributaries from wastewater treatment plants, according to the poultry companies.

Research by the Oklahoma Department of Environmental Quality shows phosphorous levels in the Illinois River are as high or higher than other Oklahoma rivers, including those that have no poultry operations in their watershed, George said. “If you want to know what drives phosphorous levels in the scenic rivers, it’s sewer plants,” George said. “The data does not lie.”

Edmondson has contended 350,000 tons of waste is produced each year by poultry growers, but that figure is too high, George said. The industry’s number also takes into account what remains after some litter is moved outside the watershed after it’s sold as fertilizer, he said.

U.S. District Judge Gregory K. Frizzell presides over the federal trial, which is in recess until Wednesday. The trial is expected to take at least six weeks, according to attorneys for each side. There is no jury.

by Curtis Killman

A judge on Tuesday rejected the state’s request that he reconsider his earlier ruling that the state could not pursue damages totaling more than $600 million in its poultry litter pollution lawsuit.

U.S. District Judge Gregory Frizzell sided with the poultry industry’s claim that federal law didn’t authorize the state to seek damages on its own, noting that the Cherokee Nation has an ownership interest in the Illinois River watershed. In his original ruling, Frizzell said the Cherokee Nation’s claim of water rights in the watershed meant that it should have been a party in the lawsuit as it related to damage claims made by the state.

In other matters, Frizzell denied a request by the state that he grant an injunction in connection with the land application of poultry litter in the watershed.

In arguing for the injunction, attorneys for the state contended that the poultry companies knew or should have known that “enormous” amounts of poultry litter were being generated in the watershed and required disposal.

The poultry industry also has long known poultry waste could and did run off in the watershed, the state argued.

Under questioning by Frizzell, state attorney Robert Nance said the state was seeking a “complete cessation” or a “very severe” limitation on land application of poultry litter.

Poultry industry attorneys argued that whether they knew or should have known that the land application of poultry litter could harm the watershed was an issue better left

to be decided at trial.

Several attorneys representing separate poultry companies also pointed out that the state has yet to attribute any poultry litter runoff from fields to a specific poultry company.

The state, led by Attorney General Drew Edmondson, is suing 12 poultry companies, claiming that they are legally responsible for the handling and disposal of poultry waste that has damaged portions of the Illinois River watershed in Oklahoma.

A trial is scheduled to begin Sept. 21.

Twelve poultry companies being sued by Oklahoma for polluting the Illinois River watershed are asking a judge to throw out a statement made by a member of their own legal team on how poultry litter is used.

In their filing Tuesday in Tulsa federal court, the companies cited a statement made by defense attorney Patrick Ryan at a preliminary hearing in 2008 that there’s no question “that there has been an over-application of litter on some or many farms. That’s not an issue in our book.” Oklahoma has said that the statement was an admission by the industry that the litter has been applied in violation of the law. The companies argue Ryan’s statement should be excluded because it was taken out of context and does not constitute evidence.

“Even if Mr. Ryan’s statement were somehow relevant evidence,” the companies say in the filing, “it should nevertheless be excluded because its … value is substantially outweighed by the danger it presents of unfair prejudice, confusion and delay.”

Gary Mickelson, a spokesman for Tyson Foods Inc., one of the companies named in the suit along with its subsidiaries Tyson Poultry Inc. and Tyson Chicken Inc., declined to comment beyond the court filing.

The motion is among dozens expected to be filed before the trial starts Sept. 21 asking the court to decide which evidence can be introduced to a jury.

Oklahoma Attorney General Drew Edmondson sued the poultry companies in 2005, claiming that the estimated 345,000 tons of chicken waste produced in the watershed each year has wreaked environmental havoc on the land. He claims that runoff carries bacteria into lakes and streams and threatens the health of tens of thousands of people who boat and camp in the river valley every year.

The 1 million-acre watershed spans parts of Oklahoma and Arkansas and has 1,800 poultry houses. The area is among the largest in the U.S. for producing broilers, or birds raised for meat. More than 55,000 people in Oklahoma and Arkansas work in the poultry industry.

The companies have already won several key pretrial victories. In the most significant, a judge stripped more than $611 million in monetary damages Oklahoma was seeking from the companies because the state failed to include the Cherokee Nation — whose lands lie within the watershed — as a plaintiff.

The judge said the state could continue to pursue the lawsuit to stop poultry companies from disposing of what Oklahoma claims are excessive amounts of chicken waste on farmland in the watershed.

The case has drawn national attention because other states could use the Oklahoma lawsuit as a template for similar lawsuits seeking to change the way the industry does business.

The other companies named in the lawsuit are Cobb-Vantress Inc., Cal-Maine Foods Inc. and Cal-Maine Farms Inc., Cargill Inc. and Cargill Turkey Production LLC, George’s Inc. and George’s Farms Inc., Peterson Farms Inc. and Simmons Foods Inc.

by Curtis Killman

When it gets its case to a trial, the state of Oklahoma will not be permitted to use scientific findings from two scientists it has hired to bolster its claim that bacteria and pollution in the Illinois River watershed could be traced to poultry litter, a federal judge has ruled.U.S. District Judge Gregory Frizzell ruled Wednesday in Tulsa that the research methods used by one state expert witness, geochemist Roger Olsen, were “subjective” and that his conclusions were “unreliable.”

The ruling follows a similar decision by Frizzell on Tuesday to exclude the testimony of another state expert witness.

The decisions are the latest in a string of recent pretrial court victories for 13 poultry companies that Attorney General Drew Edmondson sued in 2005.

He claims that they are legally responsible for the handling and disposal of poultry waste that has damaged portions of the Illinois River watershed in Oklahoma.

The poultry industry was successful last week in its claim that the state couldn’t recover monetary damages totaling more than $600 million because the Cherokee Nation, which claims an interest in the watershed, was not a party to the lawsuit.

In the latest court decision, attorneys for the poultry industry had objected to the state’s use of certain expert testimony.

The poultry industry has questioned both the methods and conclusions of several state-hired scientists.

Olsen has testified that poultry waste contains a unique combination of chemicals

and bacterial components, a biological “signature” that he claimed was present in environmental samples collected throughout the watershed.

Frizzell also excluded testimony from Valerie Harwood, a University of South Florida microbiologist who Edmondson claimed had isolated a biological fingerprint for the bacteria that would track to poultry.

The rulings this week were in line with Frizzell’s 2008 decision to reject the state’s request for a preliminary injunction to ban the use of poultry waste as fertilizer in the watershed.

In seeking the injunction, Edmondson claimed that use of poultry waste, called litter by the industry, as a fertilizer resulted in unacceptable levels of pathogens entering the watershed.

But Frizzell ruled that the state had failed to meet the applicable standard of showing that the bacteria levels in the Illinois River watershed could be traced to the application of poultry litter.

The judge noted that evidence showed that fecal bacteria in the watershed came from a number of sources, including cattle manure and human waste.

Charlie Price, spokesman for the Attorney General’s Office, said that “although we are disappointed that part of Harwood’s and Olsen’s testimony was excluded, neither is essential to our case. Our case remains intact and strong, and we look forward to presenting our evidence in September.”

The trial is scheduled to begin Sept. 21.

Hopefully this week’s decision by a federal court to strip monetary damages from Drew Edmondson’s lawsuit against poultry companies will save the state from becoming the nation’s environmental laughingstock.Edmondson had come up with his claim of $610 million in damages to Oklahoma scenic streams by calling folks around the state and asking how much they would be willing to spend out of pocket to dump millions of pounds of alum into Oklahoma’s Illinois River. He then extrapolated that the average number folks said they would pay, and that is how he came up with the $610 million figure that poultry companies needed to pay his confined attorney funding operation.

With the incredible talent working at the Oklahoma Department of Environmental Quality, the Oklahoma Health Department, the Oklahoma Water Resources Board and the Oklahoma Scenic Rivers Commission, promoting the dumping of millions of pounds of alum into a scenic stream is a clear sign of how little Edmondson really cares about Oklahoma water quality.

Now that the money has been taken out of the equation, perhaps Edmondson will focus on his run for governor and let Oklahoma’s professionals do their jobs — protecting and promoting water quality in Oklahoma.

Rick Stubblefield, Tahlequah

Editor’s note: Stubblefield is the Adair County representative to the Oklahoma Scenic Rivers Commission. He has twice served as that group’s chairman.