by Audie Ayer
Arkansas Farm Bureau

The difference is significant between the overall lawsuit Oklahoma filed against poultry companies and the preliminary injunction the U.S. District Court of Northeastern Oklahoma in Tulsa currently is considering.

   Justin Allen, chief deputy attorney general for Arkansas, said the original lawsuit will advance to a “trial on the merits,” a jury trial, in the fall of 2009 — “unless it’s resolved or dismissed.”

   “The injunction is not the entire case,” he said. “Whether or not (Judge Gregory Frizzell) grants the injunction, the case will move on and will go to a trial by jury.”

   To help Frizzell decide whether to grant the preliminary injunction, he received various friends-of-the-court briefs. As this going to print, he had not yet ruled on the request.

   “(The judge has) been presented with a lot of information,” Allen said. “He’s doing the best he can with a very difficult situation.”

   If Frizzell grants the injunction Oklahoma seeks, the poultry companies have some options. They can accept his order as written, or they can appeal to the 10th Circuit Court of Appeals in Denver, Colo.

   Allen said the litter ban will remain in effect during an appeal, although the poultry companies can ask that it be delayed while the appeal is ongoing. Whether such a request is granted is unknown, Allen said.

   Allen explained the difference between a preliminary injunction and a final trial.

   “If you build a house and put part of it over my property line, I can file suit to determine the boundary. However, I may also ask the court to preliminarily enjoin the construction work before the ultimate issue is decided. That way, the irreparable harm of construction is delayed until the case is decided.”

   In this case, Oklahoma contends spreading litter constitute irreversible harm and seeks to have that stopped even before a final decision is made in the case.

   “If the injunction is granted, (I think) the poultry companies will seek an immediate appeal to the 10th Circuit, and will seek a stay of the order granting the preliminary injunction. If that’s granted, litter application will be able to continue while the appeal proceeds,” said Allen.

   If the judge denies the injunction, Oklahoma can’t appeal. Preparations for the trial in the fall of 2009 will simply continue.

   If the judge grants the injunction, Oklahoma will likely contend it has proved that continued application of poultry litter poses substantial “risk” to public health and safety. If the injunction is denied, the companies will likely contend that insufficient scientific evidence exists to prove litter application the “risk” Oklahoma claims. A decision on the injunction is not the end of the case, but the winner will likely have significant momentum on his side.

   Finally, after the final trial, an appeal can be made to the 10th circuit; then, if needed, to the U.S. Supreme Court.

   “It’s very difficult to get your case heard there,” Allen said. Note that the Supreme Court’s earlier decision not to hear Arkansas’ original jurisdiction case would have no bearing or influence a second time around. The court might hear the case this time or again, refuse it. If the latter occurs, the 10th Circuit Court of Appeals decision is final.