Unlike Han Solo, the Star Wars character played by Harrison Ford, federal Judge Gregory K. Frizzell was not frozen in carbonite as a wall ornament for Jabba the Hutt. Nor has his honor been in a coma.
He just has not ruled in the State of Oklahoma v. Tyson Foods Inc. et al, a civil case filed on June 13, 2005, and heard by the judge without a jury between Sept. 21, 2009, and Feb. 18, 2010. For the past 10 years, however, Judge Frizzell has left the celebrated case involving widespread water pollution blamed by Oklahoma on mostly Arkansas poultry companies to go without a decision in a sort of judicial purgatory.
Neither Frizzell nor anyone inn his Court for the Northern District of Oklahoma would comment about the status of the case. The busloads of lawyers involved in the case were left to wonder and speculate.
Frizzell himself just 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 decade thinking about it.
But it does mean everybody involved is again getting themselves up to speed and attorneys are checking themselves an out like its new case all over again.
Fifteen years ago, it was former Oklahoma Attorney General Drew Edmondson who sued Tyson, 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 73, 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, expressed optimism to the Tulsa World newspaper 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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