Oklahoma Files Appeal in Poultry Litter Disposal Case

Oklahoma is seeking to overturn a federal judge’s decision against stopping 13 Arkansas-based poultry companies from disposing of bird waste in the Illinois River watershed.

The state’s 61-page appeal to the denial of a preliminary injunction was filed late on Dec. 15 with the 10th U.S. Circuit Court of Appeals in Denver.

Jackie Cunningham, a spokeswoman for the poultry industry, said the companies stood behind a statement they made when Oklahoma’s injunction request was denied several months ago: “It’s very gratifying the court gave consideration to our position in this matter and then came to the conclusion in the opinion and the order,” she said.

Charlie Price, spokesman for Attorney General Drew Edmondson, said the ruling “contained several troubling, and we believe inaccurate, legal interpretations that we feel compelled to present to the higher court.”

Edmondson suggests in the appeal that the district court didn’t offer sufficient findings or conclusions in its order supporting the refusal of the injunction, and was wrong to label testimony from two of the state’s expert witnesses “not sufficiently reliable.”

“Simply put, the opinion and order is severely lacking in the requisite factual findings and legal analysis,” Edmondson wrote, also noting in the appeal the district judge’s “brief seven-page” ruling.

In September, U.S. District Judge Gregory K. Frizzell wrote that Oklahoma had “not yet met its burden of proving that bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems.”

He also found that “the record reflects levels of fecal bacteria at similar levels in rivers and streams throughout the state of Oklahoma, including waterways in whose watersheds the record does not evidence similar application of poultry waste.”

That finding was a major argument in the poultry industry’s case against an injunction.

With Frizzell’s ruling, “the district court simply bypassed the expansive and liberal citizen suit liability standard altogether in favor of his own narrow, restrictive and irrelevant standard of whether poultry waste has historically been the ‘sole cause’ of bacterial levels in the waters of the IRW,” Edmondson wrote in the appeal.

The attorney general also said the court was wrong to find the testimony of two expert witnesses unreliable because their work had not been peer reviewed or published.

One witness, Valerie Harwood, a microbiologist and professor at the University of South Florida, testified at the injunction hearing that she used microbial source tracking to trace a path that contamination from poultry waste travels from fields into the watershed.

The second witness, geochemist Roger Olsen, testified that he had identified a poultry-specific biological “signature.”

Edmondson sued the 13 companies in 2005, accusing them of treating Oklahoma’s rivers like open sewers.

While gathering evidence for the pollution case, which figures to go to trial later in 2009, Edmondson said the state “discovered the excessive land application of poultry waste could be a danger to public health,” and argued in court for the injunction earlier this year.

Edmondson had requested the legal remedy by this year’s spring rains, arguing that bacteria found the waste could pose a health threat to the 155,000 people who recreate in the river valley annually.

The injunction could have halted a practice thousands of farmers have employed for decades in the 1 million-acre watershed, which occupies parts of Arkansas and Oklahoma: Taking the ammonia-reeking chicken waste – clumped bird droppings, bedding and feathers – and spreading it on their land as a low-cost fertilizer.

It also could have led to similar environmental lawsuits nationwide against the industry, which produced more than 48 billion pounds of chicken in 2006.

The Oklahoma-Arkansas region supplies roughly 2 percent of the nation’s poultry, and is one of several areas nationally where the industry is most concentrated. More than 1,800 poultry houses are in the watershed, most of them in Arkansas.

Companies named in the 2005 complaint include Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George’s Inc., George’s Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.