Third parties sit, wait on result

Litter suit affects other litigation

— Almost forgotten amid all the wrangling between Oklahoma and the poultry companies it sued is the second, rarely mentioned lawsuit the legal spat spawned.

The trial to determine if Oklahoma is correct in its allegation that Springdale based Tyson Foods and other poultry companies have polluted the Illinois River watershed with poultry litter started Thursday in Tulsa, but the related lawsuit against more than 160 Oklahoma cities, counties, public utilities, golf courses and other businesses sits in limbo for now.

The poultry companies argue that "third-party defendants" could be responsible for some of the pollution being blamed on poultry farming.

If Oklahoma wins and the poultry companies are forced to pay financial penalties, the poultry companies must decide at some point whether to pursue their lawsuit against the socalled "third-party defendants" identified in a 189-page complaint.

"The allegations against us are unprovable," said Park Medearis Jr., a lawyer who represents the city of Tahlequah, a defendant in the third-party case.

The poultry companies identified the third-party defendants "to try to harass the smaller parties into some sort of settlement or to raise enough concern and get someone else to intervene," Medearis said.

Oklahoma sued Tyson Foods and other poultry companies in June 2005, accusing them of polluting the Illinois River watershed. Oklahoma Attorney General Drew Edmondson claims bird manure that farmers use to fertilize pastures has degraded rivers, streams and Lake Tenkiller. The pollution violates state and federal laws, Edmondson claims.

In response, the poultry companies in October 2005 asked the U.S. District Court at Tulsa to involve more than 160 other potential sources of pollution on the Oklahoma side of the two-state watershed. The companies claim the third-party defendants are partly responsible for any pollution Edmondson has found.

Oklahoma and attorneys for the third-party defendants argued successfully in an August 2006 hearing that the businesses shouldn't be part of the case that started last week.

Federal Magistrate Sam Joyner, who has since retired, said leaving the third-party defendants in the main case would "unduly complicate" it.

So, Joyner severed it, meaning the third parties became defendants to a separate federal lawsuit. The magistrate's decision made the companies the plaintiff in a lawsuit against the 160 entities.

None of the third-party defendants identified by the poultry companies are in Arkansas despite the fact that roughly half of the watershed and the majority of the poultry businesses are in Arkansas.

Tyson Foods spokesman Gary Mickelson wouldn't say whether the companies intend to pursue the lawsuit if they lose the lawsuit against them.

"We would rather not speculate," Mickelson said.

Brian Berry, an attorney who owns Town Branch Guest Ranch, one of the smaller companies in the second suit, suggested the potential cost to the third parties was lessened by a July 22 ruling in the central lawsuit. That ruling said Edmondson couldn't obtain $611 million in natural resource damages, meaning the poultry companies are likely to pay far less if they lose.

Berry, whose ranch has rental cabins and a private sewage system, said it would be "extremely expensive to attribute" responsibility for any pollution in the watershed toTown Branch and the other third-party defendants.

Edmondson in 2005 described the poultry companies' attempt to involve all those defendants in the federal lawsuit "strictly a stunt."

Ed Fite, the director of the Oklahoma Scenic Rivers Commission, said he knows many of the people who are third-party defendants. They don't talk much about the lawsuit against them.

"I know a lot of individuals will be glad when all the litigation is resolved," Fite said. "I just don't like something hanging over us."

Attorneys for the poultry companies on Thursday during their opening arguments pointed to those third parties as possible sources of watershed pollution. Parts of a video shot from a helicopter were shown to District Judge Greg Frizzell showing Arkansas sewer plants, cattle standing in Oklahoma pastures near theIllinois River and large nurseries on the banks of Oklahoma's Lake Tenkiller.

"I've got three hours of this, judge," said John Elrod, an attorney working for Siloam Springs-based Simmons Foods, one of the poultry companies sued by Edmondson.

Elrod's video presentation was at the end of Thursday's opening statements. The trial resumes Wednesday.

Edmondson said the poultry companies' defense will surely hinge on blaming others.

"They say they aren't responsible," Edmondson said. "It's either cows or pigs or humans or something besides poultry."

Among the defendants in the third-party lawsuit is the Illinois River Ranch Property Owners Association, a 3,600-acre rural subdivision near Kansas, Okla. The poultry companies contend the association's private sewagesystem releases phosphorus and other substances into the watershed.

John McClure of Tulsa, the association's president, said the 50 people who own homes on the association's acreage rarely discuss the lawsuit.

"I know they said, 'You're named in this lawsuit,' but I haven't heard a word about it, and nobody has said anything about it in a long, long time," McClure said.

Kurt Robinson, who is among 500 homeowners in a gated community called Flint Ridge, said he doesn't have a clue about what will come of the litigation against the third-party defendants. Deer Valley, Flint Ridge's nine-hole golf course, is identified in the lawsuit.

Robinson, who is also president of a river protection group called Save the Illinois River, wouldn't guess at what the poultry companies will do.

"Let's hope they won't go after us," Robinson said. "We've got a lot of Arkansas people living in Flint Ridge."

Northwest Arkansas, Pages 7, 8 on 09/28/2009

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