LOWELL — Oklahoma Attorney General Drew Edmondson likened this week's poultry-litter trial to a child accused of raiding a cookie jar.
The Illinois River watershed is Edmondson's cookie. Poultry companies accused in a federal lawsuit of polluting the watershed represent the child.
"If the cookie is gone from the cookie jar, and there are crumbs on the kid's face, you don't need an eyewitness," Edmondson said.
For his lawsuit, the attorney general has no eyewitnesses and no one who claims to have been sickened by exposure to bird manure. However, he's collected truckloads of investigative evidence in his bid to show how Springdale-based Tyson Foods Inc. and six other poultry companies with operations in Arkansas have polluted the Illinois River and its 1 millionacre watershed.
Edmondson spent more than five years preparing for Thursday, the beginning of the trial in U.S. District Court in Tulsa to decide whether farmers' use of poultry manure as a crop fertilizer is polluting rivers.
Edmondson says it is.
The companies say it isn't.
The trial is expected to take eight weeks.
The companies have refused to pay the more than$100 million being sought by Edmondson to settle the lawsuit, although Edmondson revealed in a Sept. 9 interview that he'd take less.
"The case could be settled for less than [the $100 million], but I'm not at liberty to talk specifics," Edmondson said.
Edmondson and private attorneys hired by his office are to detail the environmental wrongdoing allegations against seven defendants: Tyson Foods Inc., Simmons Foods of Siloam Springs, Cargill Inc. of Minneapolis, Cobb-Vantress Inc. of Siloam Springs, George's Inc. of Springdale, Peterson Farms of Decatur and Cal-Maine Foods Inc. of Jackson, Miss.
The companies are to counter with claims that the lawsuit is politically driven by a rogue attorney general who unfairly targeted the poultry businesses.
They are to tell U.S. District Judge Greg Frizzell about other potential sources of pollution besides the 1,800 poultry houses in the watershed. They plan to mention leaky septic tanks, city sewer plants, golf courses, cattle, geese and deer as culprits.
The companies say Edmondson failed to prove that any river pollution comes from chicken or turkey manure. The manure is a valuable fertilizer that helps farmers grow crops and raise hay to feed their cattle, company advocates say.
"Mr. Edmondson's lawsuit singles out the poultry industry, and it ignores more significant sources," said Gary Mickelson, a Tyson Foods spokesman.
Edmondson agrees that there are other sources.
"Our argument is they are the major source," Edmondson said of the poultry firms.
Greg Perryman, a farmer who raises chickens for Simmons Foods near the Washington County town of Cincinnati, said Edmondson cherry-picked the poultry industry because it's the only place he can get money.
"Drew knows he can't get money from the farmers so that's why the companies are the target," Perryman said. "But the only people who suffer if he gets money is the farmer."
IN THE BEGINNING
Arkansas and Oklahoma have squabbled for decades over the Illinois River.
The 99-mile stream starts near Hogeye in Washington County, traveling north before making a hard bend to the west near U.S. 412. Much of the flow includes sewer plant discharges from Fayetteville, Rogers and Springdale before the river crosses into Oklahoma south of Siloam Springs.
After reaching Oklahoma, limestone bluffs rise over it, luring 140,000 canoeists who float it each summer.
"The Illinois River and its surroundings are a unique venue, one of Oklahoma's 11 ecosystems," said Gerald Hilsher, a Tulsa attorney who's on the Oklahoma Scenic Rivers Commission. "Some naturalists or environmentalists simply believe, like Teddy Roosevelt, that certain unique environments should be kept pristine and original, for the benefit of generations to come."
Ed Fite, director of the commission that's responsible for protecting the Illinois and five other state-designated "scenic rivers," said Oklahoma's fondness for the Illinois is no different than Arkansas' affection for the Buffalo National River.
"Everyone's got a river they love," Fite said.
The U.S. Supreme Court in 1992 gave Oklahoma the right to protect the Illinois River from Fayetteville's sewer plant and from pollutants resulting from the economic boom in Northwest Arkansas, saying downstream states can require upstream states to meet water-quality standards at the state line.
In 2002, the Oklahoma Water Resources Board imposed tight limits on how much phosphorus can flow in Oklahoma's six scenic rivers.
That led to a 2003 promise from five Northwest Arkansas cities. Bentonville, Fayetteville, Rogers, Siloam Springs and Springdale signed a deal promising Oklahoma to spend millions of dollars to upgrade sewer plants to meet the new phosphorus limit by 2012.
Oklahoma never reached a similar deal with the chicken companies blamed for much of the degradation of the Illinois and its tributaries. High phosphorous levels contained in litter can result in algae blooms that choke off oxygen in the water, killing fish and plants.
Even so, Edmondson and the poultry companies spent years trying to avoid a trial - starting negotiations long before the federal lawsuit was filed in 2005.
Both sides met periodically for three years before Edmondson accused the companies of "delay and deceit" in January 2005. He was displeased when the companies ran television advertisements during the University of Oklahoma's national championship football game accusing him of taking steps that could put farmers "out of business and drive 12,000 jobs out of Oklahoma."
After a hiatus, talks resumed. There were negotiations in June 2005, days before Edmondson filed his federal lawsuit. Negotiations occurred again in July that year but broke off a month later.
DECISION'S IMPACT
"Economic Impact of Arkansas Agriculture 2009," a study prepared by Jennie Popp, a University of Arkansas agriculture economist, shows that agriculture accounted for $15.2 billion of Arkansas' economy in 2007. Agriculture provided one of every six jobs in the state and 15 percent of all the state's labor income, the report shows.
Arkansas farmers produced 6.38 billion pounds of broiler chickens in 2008, the U.S. Department of Agriculture reported. Poultry provides 40,707 jobs and $1.12 billion in wages in Arkansas, Popp's report showed. Only Georgia produces more chicken.
Benton and Washington counties rank third and fourth among U.S. counties in how many broilers they raise.
Research by Popp shows that poultry provides one of every four agriculture jobs in Arkansas. Salaries linked to the Arkansas poultry industry total $1.29 billion each year.
"There's not a sector of the economy that isn't affected by the poultry industry," Popp said. "The guy who works at the bowling alley should be glad they are here. You wouldn't associate bowling with chicken, but that's the point. The whole sector is impacted."
MONEY QUESTIONS
Money has always been a central theme of the lawsuit, Mickelson said.
Edmondson, who's running for governor, said the issue is restoration of the watershed, and it'll take money to make the repairs.
Early on, Edmondson said his 2005 lawsuit could result in attorneys general in several states challenging poultry operations.
Arkansas Attorney General Dustin McDaniel suggested that's unlikely now because on July 22, the judge limited Oklahoma's ability to obtain natural resource damages without the Cherokee Nation's participation in the case.
The poultry companies also criticized Edmondson for hiring a flock of private attorneys to assist the state with its case. The private lawyers, who are being paid on a contingency basis, could receive up to one-half of any money the companies must pay. The firms have spent more than $25 million collecting evidence and in fees paid to expert witnesses to bolster Oklahoma's case.
"The private lawyers have a financial interest," Mickelson said. "It should be about truth and justice and not money for lawyers."
Both sides are expecting the dispute to continue long after the trial ends.
Even Frizzell, the judge, acknowledged the likelihood that whatever decisions are made in the chicken lawsuit are likely to be appealed to the U.S. Circuit Court of Appeals in Denver.
"We could all spend the rest of our careers together, ladies and gentlemen," Frizzell told the attorneys at a Sept. 4 hearing.
Arkansas, Pages 11, 15 on 09/23/2009