State rejects judge's offer to dismiss suit

Oklahoma trial starts today as Cherokees ready appeal

— Oklahoma on Wednesday rejected a federal judge's offer to dismiss the state's lawsuit against poultry companies so the matter of the Cherokee Nation's role in the case can be resolved.

U.S. District Judge Greg Frizzell raised the idea of allowing the 10th U.S. Circuit Court of Appeals in Denver to determine whether the state of Oklahoma's pollution lawsuit filed in 2005 against Springdale-based Tyson Foods Inc. and six other poultry companies can go on without the Cherokees, a federally recognized American Indian tribe based in Tahlequah, Okla.

The trial to determine whether the poultry companies have polluted the Illinois River watershed with bird manure is scheduled to start today in Tulsa.

Frizzell ruled last weekthat the tribe's Sept. 2 request to intervene in the lawsuit was untimely, but on Wednesday he mentioned the possibility that the Cherokee Nation is an "indispensable party" to the lawsuit. It could be difficult to award equitable relief if Oklahoma wins without the tribe's participation on some of Oklahoma's federal and state claims, Frizzell said.

The judge said he didn't want to "walk out on thin ice" if the appellate court can resolve the issue of the Cherokee Nation's involvement before he conducts what's expected to be an eight-week trial.

"Three heads are better than one," Frizzell said, referring to the three-judge appellate court. "Those are brilliant people.

"I have no ego or vanity tied up in these rulings at all."

Bob Nance, a private at-torney working for Oklahoma Attorney General Drew Edmondson on the case, told Frizzell he was "somewhat surprised" to hear the judge raise the idea of dismissing the lawsuit entirely on the eve of the trial.

"Aren't you happy?" Frizzell asked Nance.

Nance was displeased.

"We do object to any ... dismissal at this point," Nance said.

Oklahoma's decision to plow ahead with the lawsuit was in contrast to its request last week that the trial be delayed for four months to allow the Cherokee Nation to intervene. However, after Frizzell last week denied the tribe's intervention and suggested the Cherokees could file their own lawsuit against the companies if they choose, Oklahoma withdrew its request for a delay.

On Wednesday, LouisBullock, a private attorney working for Oklahoma, told Frizzell it "still remains unclear to me whether we have the necessary parties in this case," and he hinted to the judge that he might want to reconsider whether to insert the Cherokee Nation into the current lawsuit. Frizzell wouldn't budge, however.

"It was not timely," Frizzell told Bullock.

The Cherokee Nation said it intends to appeal Frizzell's decision to the Denver court.

Today's trial starts with opening statements from Edmondson and other attorneys working for Oklahoma. The poultry companies' attorneys will present their statements, too, and Oklahoma is expected to call its first witnesses inthe case.

Those witnesses are scheduled to be former Oklahoma Secretary of Environment Miles Tolbert, current Oklahoma Secretary of Environment J.D. Strong and Oklahoma Scenic Rivers Commission member Gerald Hilsher.

Northwest Arkansas, Pages 11, 16 on 09/24/2009

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