In documents filed ahead of this week’s closing arguments in a trial against 11 poultry companies, the State of Oklahoma says it could live with an application limit of 65 pounds of poultry litter per acre.
Poultry companies, however, want to come out of the federal trial in Tulsa with no limits, saying the state had failed to demonstrate any “substantial threat to human health, drinking water, recreational use, or wildlife.”
Final oral arguments begin Thursday before U.S. District Court Judge Gregory Frizzell, who is hearing the civil trial without a jury. Judge Frizzell conducted the trial, hearing testimony on and off for four months, between Sept. 24, 2009 and Jan. 26, 2010.
Frizzell, appointed to the federal bench by President George W. Bush, ruled against Oklahoma’s motion for a preliminary injunction to stop the mostly Arkansas-based poultry industry from dumping poultry litter on fields in the Illinois River basin after the lawsuit was filed in October 2005.
Poultry litter is a mixture of chicken manure and bedding materials left off after the birds are taken to slaughter. Most is spread on fields as a low cost fertilizer. While independent farms and ranches raise most chickens, Oklahoma contends the birds are owned, leased, or otherwise controlled by the poultry companies the state is suing.
With upwards of 150 million chickens being raised in the watershed, Oklahoma has been attempting to prove the runoff from the fields where poultry litter is spread is over-loading the river basin with too much phosphorous. Excess phosphorous levels cause the basin’s Lake Tenkiller to be 70 percent oxygen-dead in the summer, according to the state.
Oklahoma Attorney General Drew Edmondson, now a candidate for governor, has been addressing the case on the campaign trail. He’s used private out-of-state plaintiffs’ law firms to assist his environmental division with the case. Edmondson says those law firms have covered the $25-30 million invested in the state’s case, but “not a penny” of tax money has been involved.
Frizzell, however, has narrowed the scope of the case. “Any causes of action where the state could recoup a lot of money or the lawyers could get paid have been removed from the case,” Edmondson told a newspaper editorial board last week.
Edmondson wants Frizzell to rule in time for the spring cycle for applying chicken litter as fertilizer. The federal judge took six months to rule against the preliminary injunction motion, an action that was upheld by the 10th Circuit Court of Appeals in Denver.
The 10th Circuit still has not ruled on Frizzell’s decision to exclude the Cherokee Nation from joining the State of Oklahoma in the trial. However, the Tulsa trial court rules will likely mean other issues will be trucked up on appeal to Denver.
The defense attorneys making closing arguments this week are representing: 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 Farm Inc., Peterson Farms Inc. and Simmons Foods Inc.
Other poultry areas in the country are closely watching the outcome of the case.