When he steps up —in his boots and western suit with his cowboy hat on the table–he will look U.S. District Court Judge Greg Frizzell in the eye and say something like “Your honor, may it please the court.”
And with that the trial that Oklahoma Attorney General Drew Edmondson has waited more than four years for will begin today in Tulsa. Across the courtroom, he will face a busload of lawyers from the Arkansas poultry industry.
They will square off over the issue of whether tons of poultry litter can be spread on the lands of the Illinois River Basin without wreaking environmental havoc on the public surface water.
Poultry litter is a mixture of raw poultry manure and bedding material such as sawdust, wood shavings or rice hulls.
Each year, an estimated 345,000 tons of chicken waste is produced in the 1,800 poultry houses in the one million acre Illinois River watershed that Oklahoma and Arkansas share.
Chicken farmers contract with poultry companies to raise the birds. The poultry companies argue, they neither own nor are responsible for the poultry litter.
Edmondson has little use for the poultry companies’ argument that it is not their problem.
The AG is fond of saying: “They own the birds. They own the feed that goes into the birds. They own the drugs that go into the birds to keep them healthy. But they don’t own the stuff that comes out the other end?”
Edmondson will argue that year after year the disposal of tons of poultry litter on the land means bacteria and phosphorus content is being captured in the Illinois River, degrading once clear waters.
For the poultry industry, the wrong trial outcome could spell increased costs. Now poultry litter has a value because it is used as fertilizer. Oklahoma State University even runs a “poultry litter” market that currently has twice as many buyers as sellers.
But if it cannot be used as local fertilizer, chicken farmers might be stuck with transportation costs to get rid of the material. “It boils down to whether farmers can spread litter as fertilizer or have to have it transported outside the watershed,” says Marvin Childers, Poultry Federation spokesman.
To say today’s trial has been a long time in the making is hardly an understatement. Filed in June 2004 after four years of negotiations between Oklahoma and the poultry companies failed, the 10th Circuit Court of Appeals in Denver has already been involved in the case.
Oklahoma won an important early ruling in 2007 when Judge Frizzell ruled Edmondson did not have to take the case back to the Oklahoma Arkansas River Compact Commission.
In 2008, however, Judge Frizzell denied Oklahoma’s request for a temporary injunction barring the use of poultry litter as fertilizer in the basin. He said Oklahoma had not presented evidence showing the river was solely polluted by poultry litter and not from other sources.
So far, the 10th Circuit has upheld the district court’s decisions.
Kelly Burch, who heads the AG’s Environmental Protection Unit, says
what the state seeks is an enforceable solution to a problem of
over-application of poultry litter in eastern Oklahoma.
years now, the poultry companies have been applying waste directly to
the land in eastern Oklahoma,” Burch said. “The waste can be a
beneficial fertilizer, but when it is over-applied as we allege, it
runs off into the water. From there, it causes a host of problems,
including dangerously high levels of fecal bacteria. This ends up in a
watershed where people recreate, and it is a potential health hazard.”
She says the poultry industry is causing “hefty price tag” damage that “will be born by taxpayers.”
than twenty public water supplies rely on the Illinois River Watershed
for their drinking water,” Burch said. “The treatment process necessary
to treat the water in the IRW can cause a new cycle of problems because
some of the chemicals used mix with the pollutants in the water and
produce suspected carcinogens.
Arkansas also had negotiations
with the poultry companies. Those talks brought about new voluntary
standards for how to apply poultry litter while restricting runoff.
The poultry companies will argue similar techniques could be used in
Oklahoma has also had a difficult time getting some of
its evidence accepted by the court. The poultry lawyers blocked an
expert witness for Oklahoma who said bacteria from poultry litter was
in the river. There was no independent “peer review” for the expert’s
work, the poultry lawyers successfully argued.
But in August,
the poultry companies lost a bid to have part of Oklahoma’s Illinois
River watershed pollution lawsuit dismissed by claiming that poultry
litter wasn’t solid waste.
Judge Frizzell ruled that poultry
litter, the mixture of poultry waste and bedding material, may be
considered a solid waste if it is applied in excessive amounts on
fields as fertilizer.
There also was a series of rulings this
month leading up to today’s trial. Judge Frizzell said Oklahoma
couldn’t ask for monetary damages because the Cherokee Nation was not
included as a party in the lawsuit.
The Cherokee Nation, whose
lands are in the river basin, then asked to be included and that
request was denied. The Cherokee Nation appealed its exclusion to the
10th Circuit in Denver, but that was not decided before today’s start
of the trial.
The Arkansas poultry companies Oklahoma is suing
include: Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc.,
Cobb-Vantress Inc., Cal-Maine Foods Inc., Cal-Maine Farms Inc., Cargill
Turkey Production LLC, George’s Farms Inc., Peterson Farms Inc. and
Simmons Foods Inc.
Oklahoma’s lawsuit against the Arkansas
poultry industry is one of the first big cases assigned to Judge
Frizzell after his appointment to the federal bench by former President
George W. Bush.
There will be no jury. Both sides agreed to have Frizzell be the sole decision maker.