Oklahoma AG to seek special master in poultry case over Illinois River pollution, while judge extends negotiation deadline

Judge extends negotiation deadline

TULSA -- Oklahoma's attorney general wants a court-appointed special master to oversee any agreement his state and Northwest Arkansas poultry companies arrive at in their negotiations to settle their federal court lawsuit, he said after a court hearing on Friday.

U.S. District Judge Gregory K. Frizzell granted a 90-day extension to Friday's deadline for the parties to reach such an agreement, granting the motion requested by both sides during a status hearing in Tulsa on Friday afternoon. The next court date in the case is set for 1:30 p.m. June 16.

Oklahoma sued 11 Arkansas poultry companies in 2005. The ruling found poultry litter from the farms supplying birds to those companies pollutes the Illinois River. The river flows from Northwest Arkansas through Oklahoma to the Arkansas River.

The Illinois was named a protected scenic river by the Oklahoma Legislature in 1970 and was considered pristine at the time, according to the U.S. Geological Survey and other authorities. Phosphorus pollution has severely affected water quality and fish in the river, according to court testimony. The lawsuit's trial ended Sept. 24, 2009. Frizzell issued his ruling in the case in January.

"I am absolutely content that they are negotiating in good faith," Attorney General Gentner Drummond told Frizzell about poultry companies at Friday's hearing. The parties could have asked for the 90-day continuance without a hearing but agreed it would be better to appear before the judge and show they were earnest in their talks. The case involves 11 named defendants including Tyson Foods Inc., Cargill Inc. and others.

Neither Frizzell nor attorneys for the defendants guaranteed Frizzell negotiations would succeed but reported the negotiations were making progress. "It's a heaving lift," Drummond told the judge, with many issues to resolve in Frizzell's ruling, which runs for 214 pages.

Frizzell did not mean to imply the task would be simple when he set a preliminary deadline of Friday to reach an agreement, the judge said from the bench. But he wants results, he said: "Something has to be done."

"If I thought it would help to for you to don muck boots and clean sediment out of Tenkiller Lake, I'd consider it," Frizzell said. The Illinois flows into the lake before draining into the Arkansas River.

Drummond will notify the court if negotiations falter, he assured the judge. "If this reaches the point of impasse you'll be the first to be notified," Drummond told the judge.

Voluntary efforts have curtailed the release of phosphorus into the river, testing results from Arkansas and Oklahoma show and the January court ruling acknowledges. Further reduction is needed, the ruling says without specifying to what degree. Phosphorus from poultry litter is a key food for algae, and algae destroys water clarity and drains dissolved oxygen from water, Frizzell said.

Frizzell's ruling criticized the current arrangements for controlling litter pollution as too informal. For instance, the ruling says the poultry companies tell growers to follow rules to prevent runoff of phosphorus from litter, but they make little effort to make sure those rules are followed.

Neither side went into detail after the hearing about the status of negotiations, other than Drummond stating he wanted a special master. Under federal law a special master is designated by a judge to make sure court orders are followed. Drummond wants a special master because improving the river's water quality is a long-term matter, he said.

"Any accord will not just be for remediation, but to go forward in improving water quality," Drummond said after the hearing.

If negotiation fails he expects poultry companies to appeal Frizzell's ruling. If that happens he will also appeal Frizzell's pretrial decision that Oklahoma cannot seek monetary damages in the case.

An attorney for the Cherokee Nation joined the attorney general's office at Friday's hearing, although Frizzell had not allowed the nation to join the original lawsuit as a co-plaintiff. The nation may not be a formal party to the suit but is still affected, Drummond said.

The poultry companies and his office are using a 2003 agreement between the city of Tulsa and Arkansas companies as an example to follow in their negotiations, Drummond said. That suit involved pollution of water in Lake Spavinaw and Lake Eucha.

The most conservative estimate given in the trial of the amount of chicken litter produced by the defendants' operations was 354,000 tons in 2009. Litter consists of waste and the wood shavings or rice hulls spread on the floors of chicken houses to absorb that waste.

Relief sought in the lawsuit includes curtailing runoff from litter. The relief could include restrictions on how much litter is used and how it can be applied in the watershed. Recommendations made by expert witnesses in the trial include removing all poultry litter outside the watershed, buffer strips to control runoff, excavation of phosphorus-laden soil, applying alum to fields to bind phosphorus there, stream bank stabilization and constructing wetlands.

The January ruling in the Illinois River case: nwaonline.com/318tysoncase/


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