by Carol Rolf
Special to Arkansas Agriculture

Nearly three years after its initial filing, Oklahoma Attorney General Drew Edmondson’s lawsuit against poultry companies has yet to see its day in court. However, with new players jumping in all the time, the ultimate impact on one of Arkansas’ largest industries is still uncertain.

   The twisted path of the 2005 lawsuit Oklahoma filed against more than a dozen poultry companies has left even the most seasoned legal and agri-business leaders scratching their heads — and has left an entire industry hanging in the balance.

   The suit that Drew Edmondson, Oklahoma attorney general, filed in the United States District Court for Northeast Oklahoma in Tulsa, accuses the companies of polluting the Illinois River watershed with runoff from poultry litter. The watershed encompasses approximately 1 million acres in parts of northeastern Oklahoma and Northwest Arkansas.

   Naturally, poultry producers are concerned over the validity of Edmondson’s charges, the possibility of judge and jury bias due to the Tulsa location of the court and trial, and the lack of producer representation throughout the entire legal process.

   In November 2007, Edmondson sought a preliminary injunction to prohibit the companies from spreading litter in the watershed. Much speculation exists as to what effect this will have on individual growers.

   In the suit’s initial stages, and throughout the now almost three-year-long case, the companies and others affected initiated legal actions to address these issues.

   Initially, the poultry firms filed numerous motions to dismiss the case. Motions to dismiss argue that lawsuits are without basis and are filed at the start of a case. The court granted only one of them, with little significance. The companies also tried to address what might yet become jury pool bias.

   An often-asked question is, “Was a change of venue ever requested?” Technically, yes, but legally no. Such a request would have officially moved the trial to a different physical location, due simply to a perceived bias of the jury pool. However, the poultry companies instead had asked that candidates for the jury pool be summoned from an outside district — in this case, another judicial district in Kansas — and the court agreed.

   In 2005, Gov. Mike Beebe, then Arkansas’ attorney general, sought to enter into the controversy with a separate suit against Oklahoma in the United States Supreme Court. The Supreme Court only hears original jurisdiction cases in certain situations where two states disagree.

   Beebe contended Oklahoma’s actions infringed on Arkansas’ state sovereignty by trying to impose the will of Oklahoma’s citizens upon the citizens of Arkansas. The Supreme Court turned the case down without explanation.

   Then in 2006, Beebe sought to intervene in the pending action in Oklahoma on behalf of Arkansas. The following year, the court denied the motion, ruling that if Arkansas intervened, the lawsuit would then be between two states — and the district court would no longer have jurisdiction because only the U.S Supreme Court can hear claims between states. It appeared that the citizens of Arkansas would have no voice in the pending case.

   Accordingly, Arkansas Farm Bureau began work on these issues. Anticipating that Oklahoma would try to stop litter application, ARFB assisted Washington County poultry grower Gene Pharr in a lawsuit filed in 2005 with the Pulaski County Circuit Court. Pharr’s case contended that farmers who follow a state-approved nutrient management plan should be able lawfully to apply poultry litter on their property without fear of legal liability. The Arkansas Natural Resources Commission, against whom Pharr’s suit was filed, agreed, as did the court. The judgment laid the groundwork for ARFB’s later legal efforts.

   ARFB kept Arkansas’ congressional delegation abreast of its efforts in the case throughout the 108th Congress, when HR-1398 and SB-807 were introduced. The congressional representatives made several unsuccessful attempts at attaching the bills to appropriation legislation as the 108th session ended.

   Identical, these proposals would have exempted poultry litter and other manure application from CERCLA, the Comprehensive Environment Response, Compensation & Liability Act that’s also called Superfund.

   The bills were reintroduced under their same numbers in the 110th Congress. House leaders have assigned HR-1398 to the Energy & Commerce Committee, where it’s pending. SB 807 is awaiting action in the Senate’s Environment & Public Works Committee. Discussion of the whole CERCLA/poultry exemption issue has been thorough, but neither committee has officially voted on its bill. ARFB is still working for passage of the exemption.

   The Arkansas Attorney General’s office, Arkansas Farm Bureau and several other state Farm Bureaus and agriculture producer organizations all filed “friend-of-the-court,” or amicus curiae, briefs in the lawsuit. Arkansas’ brief says in part that Oklahoma contends, “that poultry litter is a ‘solid waste’ that has been ‘discarded’ in the Arkansas portion of the Illinois River watershed.”

   Charles L. Moulton, Arkansas’ senior assistant attorney general, says the state’s amicus brief was “very narrow” and focused on two central issues:

1. “We don’t believe poultry litter is a solid waste, as the lawsuit contends, and does not fall into the realm of (the Resource Conservation & Recovery Act).”

2. “If the judge does grant an injunction, it would do away with an existing regulatory system already in place in Arkansas.”

Arkansas Farm Bureau’s brief spotlighted four points:

1. The consent judgment granted in the Pharr suit.

2. Arkansas’ regulatory framework that addresses the concerns Oklahoma raised.

3. Interstate agreements such as the Arkansas River Compact and the Statement of Joint Principles & Actions.

4. The fact that Oklahoma has not shown poultry litter as an RCRA “solid waste” and has not established litter as an “imminent and substantial endangerment” to public health and the environment.

   Poultry growers in the watershed in Arkansas and Oklahoma also worry an injunction will affect them as much as the poultry companies. Growers outside the watershed are also watching this case with apprehension.

   Justin Allen, chief deputy attorney general for Arkansas, said, “If the injunction is granted, it is likely that it could have some impact on the poultry growers. We just don’t know what that will be. It will all depend on the wording of the judge’s order.”

   While it’s important to note ARFB’s activities on this issue, it’s also important to understand why more has not been done.

   “At this point in the legal process,” said Bill Waddell, ARFB legal counsel, “Arkansas Farm Bureau has not sought to officially intervene on behalf of its members and other poultry growers out of concern that should the judge rule in Oklahoma’s favor, it could expose them to liability they currently do not face.

   “While any negative ruling regarding the injunction itself or the overall lawsuit will negatively impact the companies, growers are currently not legally a party in the lawsuit. Intervening could conceivably open the door to Arkansas growers’ exposure to CERCLA.”