TULSA — It’s no surprise to lawyers that a year has passed with no ruling in Oklahoma’s environmental lawsuit against Arkansas poultry companies.
U.S. District Judge Greg Frizzell of Tulsa must be meticulous because any ruling in the case is ripe for appeal to the 10th U.S. Circuit Court of Appeals in Denver, said Bruce Myers, a senior attorney with the Environmental Law Institute, a nonprofit research and education organization. Frizzell oversaw the 50-day bench trial that ended Feb. 18, 2010.
“It’s been a while since it’s ended, but it’s not unheard of” for no decision to have come, Myers said. “It wouldn’t shock any lawyer for them to hear a year has passed.”
The complex environmental lawsuit Oklahoma filed in 2005 accuses Springdalebased Tyson Foods Inc. and five other poultry companies of polluting the Illinois River watershed with poultry manure.
“I was on the stand for two days,” said Ed Fite, administrator of the Oklahoma Scenic Rivers Commission. “I couldn’t get a full paragraph into the record without one of the 30 lawyers standing up to object.
“I would not want to be in Judge Frizzell’s shoes.”
Gary Mickelson, a spokesman for Springdale-based Tyson Foods, said the company recognizes Frizzell now faces “the arduous task of reviewing the exhibits and testimony from a trial that spannedfive months.”
“That process takes time and the decision in this case should be the product of careful reflection by the court, rather than meeting any party’s arbitrary expectation of timeliness,” Mickelson wrote in an e-mail.
MANURE AS FERTILIZER
The lawsuit accuses the defendants of polluting the 1 million-acre watershed in Oklahoma and Arkansas by allowing contract farmers to spread bird manure on crops as fertilizer.
Farmers pull poultry litter from the houses where poultry is raised mostly in the late winter and early spring. They spread the litter - wood chips or rice hulls that soak up waste - on hay fields to green up bermuda and other grasses.
Oklahoma contends in the lawsuit that rainfall takes the phosphorus-laden manure from fields and washes it into the Illinois River, its tributaries and Lake Tenkiller. The phosphorus promotes algae growth and degrades water quality, the lawsuit says
The Illinois River is one of Oklahoma’s six state-designated “scenic rivers,” giving it special environmental protection. Its 99-mile course starts near the Arkansas community of Hogeye in Washington County and it flows intoOklahoma south of Siloam Springs.
Ed Brocksmith, secretarytreasurer of the river protection group Save the Illinois River, said he’s willing to wait on Frizzell’s decision “as long as he gets it right.”
“What’s right is an order from the judge that in some manner would help manage excess poultry litter,” Brocksmith said. “The Illinois River will never be an honest to gosh scenic river until we can do that.
“I’m just a retired guy in Tahlequah [Okla.], and he’s a federal judge. I don’t know if he has a time limit for how long he can wait.”
Farmers have heard far less about the poultry lawsuit in recent months than they did a year ago, said Fayetteville firefighter Joe Snodgrass, who keeps 25 cows on his 40-acre farm near Lincoln.
“Back when it was a hot topic, it was a lot to sort through, and we knew that the judge had to do that,” Snodgrass said. “That’s all above me. I’m sure I don’t know all the information that’s out there.”
Even with the possibilitythat Frizzell would take action intended to curtail litter’s use as fertilizer, it remains a valuable commodity.
Oklahoma wants the judge’s decision to include a long-term provision to forbid the spread of poultry litter on fields where soil tests measure phosphorus at more than 65 pounds per acre. Oklahoma’s current standard is 300 pounds per acre.
Arkansas relies on a phosphorus index to determine how much can be spread, taking into account the results of soil tests but also adjusting for the distance between a field and a stream, the slope of a field and other factors.
Poultry litter is cheaper than commercial fertilizer, and many farmers consider it to be superior.
“I don’t know what the judge is going to do,” said Lincoln farmer Leon Tucker, who paid $175 for each of the 26 loads he spread on his fields last month. “I have no idea, but I know that chicken litter is what made this country. It made this country, and you can look now and see it’s going downhill because people aren’t using it as much.”
COURTS ARE SLOW
In comparison to other federal civil cases, a year’s wait for a decision isn’t extraordinary.
Records kept by the Administrative Office of U.S. Courts show 44 percent of the 306,816 civil trials hadawaited a judge’s decision for more than a year. That’s as of Sept. 30, 2009, the most recent statistics available to the public.
Of the 306,816 civil cases, 11.7 percent remained undecided for more than three years.
Federal judges in the Northern District of Oklahoma where Frizzell presides were quicker than the national average. Of the 889 civil cases, 616 (69.2 percent) were decided in less than a year. About 4.6 percent of the 889 cases were undecided for more than three years.
Myers theorized that Frizzell may have purposely delayed his decision, waiting until the Cherokee Nation exhausted its appeals in a bid to intervene as a plaintiff in the federal lawsuit.
Nine days before the trial’s start on Sept. 24, 2009, Frizzell excluded the federally recognized Indian tribe, whose territory overlaps the watershed. He said the Cherokee Nation knew about the lawsuit and waited too long to ask the district court for permission to become involved.
The tribe unsuccessfully fought that decision, exhausting its final appeal Nov. 19.
Had the appellate court determined Frizzell shouldn’t have excluded the tribe, the judge likely would have had to conduct a new trial, said Vicki Bronson, a Fayetteville attorney who helped represent Simmons Foods,a Siloam Springs company that’s one of the six defendants.
“Even now, once he started writing his opinion, it’s going to take several months,” Bronson said.
The Cherokee Nation may not be done, though. Cherokee Nation Attorney General Diane Hammons said in an e-mail last week that the tribe has been approached by lawyers who want to represent the tribe in a separate lawsuit against the companies.
“The silver lining to the cloud of not being allowed in the existing lawsuit is that all options are still open to us,” Hammons wrote. “We are not bound by any decision that Judge Frizzell may issue, and indeed, may choose to litigateon our own.”
Even after Frizzell makes his decision in Oklahoma v. Tyson, appeals are possible.
Then-Oklahoma Attorney General Drew Edmondson spearheaded the poultry lawsuit before giving up the post to run unsuccessfully for governor. He declined comment for this article.
Edmondson twice told reporters during the trial that he’d appeal Frizzell’s ruling that poultry manure isn’t “solid waste” as the term is defined by the federal Resource Conservation and Recovery Act. However, now any appeal will be up to Attorney General Scott Pruitt, who also declined to comment.
Edmondson also talked about appealing after Frizzell excluded Oklahoma’s legal claims under the federal Comprehensive Environmental Response, Compensation and Liability Act, but that possible reason for appealwill be Pruitt’s call, too.
Once Frizzell rules, the Federal Rules of Appellate Procedure give parties 60 days to file notices of appeal.
Northwest Arkansas, Pages 17 on 02/20/2011