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Poultry lawsuit is partially dismissed
A federal judge rules that monetary damages can't be pursued because the Cherokee Nation wasn't party to the suit.
 
By CURTIS KILLMAN World Staff Writer
Published: 7/23/2009  2:33 AM
Last Modified: 7/23/2009  3:26 AM

The state of Oklahoma cannot continue to pursue damages totaling more than $600 million in its lawsuit against the poultry industry because it failed to properly include the Cherokee Nation, a federal judge ruled Wednesday.

Tulsa U.S. District Judge Gregory Frizzell sided with poultry industry assertions that portions of the lawsuit should be dismissed because the state lacks standing to pursue the pollution damage claims on its own.

"This court concludes that, with respect to the claims for money damages, disposing of the case in the Cherokee Nation's absence may impair or impede the Cherokee Nation's ability to protect its interests," Frizzell wrote in his order.

Frizzell's order did not affect the state's claims for injunctive relief related to the use of poultry litter in the Illinois River watershed.

Opponents of the lawsuit, both within the poultry industry and its supporters, hailed the ruling.

Arkansas Attorney General Dustin McDaniel, who tried unsuccessfully to intervene in the case on the side of the poultry industry, called the ruling "devastating" to the state of Oklahoma's case. "I think it's a milestone event in the course of this litigation," he said.

The poultry industry said it was pleased with the ruling and "grateful the court viewed this matter as seriously" as it did.

"The decision confirms our motion was not the 'legal gimmick' or 'scheme' the Attorney General's Office claimed it was," said Tyson Foods Inc., one of 13 poultry companies
named in the lawsuit, in a news release.

"We will now be evaluating what the court's decision means to our overall case going forward."

Attorney General Drew Edmondson said he is reviewing his options in light of the decision.

"While today's ruling removes some of the state's causes, it leaves intact the most important claims — those on injunctive relief," Edmondson's office said in an e-mail. "This case has never been about money. The case is about protecting the watershed from pollution."

While the state's claim for injunctive relief was not affected by the ruling, a judge has previously ruled against the state's request for a preliminary injunction barring the spreading of poultry waste in the watershed.

"If we prevail on the injunctive issues at trial, we accomplish our goal of stopping these companies' reckless waste dumping practices," Edmondson said. "If we stop the pollution, the watershed will benefit."

A trial is set for Sept. 21.

The state, led by Edmondson, sued 13 poultry companies in 2005, claiming that they are legally responsible for the handling and disposal of poultry waste that has damaged portions of the Illinois River watershed in Oklahoma.

Poultry companies in October asked that damage claims be dismissed because the state failed to join the Cherokee Nation in the case.

State and Cherokee Nation officials responded by announcing that tribal officials had agreed to delegate and assign the state "the right to prosecute any of the Nation's claims" against the poultry companies for their alleged pollution of the watershed.''

But Frizzell said the agreement between the Cherokee Nation attorney general and Edmondson's office was not enough.

Oklahoma law explicitly sets forth the requirements the state must follow when entering into cooperative agreements with Indian tribes, Frizzell's order states.

The law includes requirements that involve the governor, the Secretary of the Interior and the state Legislature, none of which have been demonstrated by Edmondson's office, Frizzell wrote.

Frizzell also found no legal authority for the state to make the effective date of the agreement with the Cherokee Nation retroactive to June 13, 2005, the date the lawsuit was filed.

Cherokee Nation Attorney General Diane Hammons said in a statement Wednesday that Frizzell "misconstrued" the agreement with the state of Oklahoma.

"We had assigned our right to prosecute the Illinois River watershed pollution claims to the state," Hammons said. "That agreement was between the Attorneys General of the nation and the state, and only concerned the right to litigate the lawsuit. It was not a state/tribal cooperative agreement that needed to go through the governmental approval processes of either the state or the nation."

Meanwhile, poultry growers in Oklahoma are welcoming the decision to knock out monetary damages, an attorney for the growers said.

"That's huge, because even if the companies lose the rest of the case ... they wouldn't be hit with these huge amount of monetary damages so they wouldn't go out of business," said Michael Graves, an attorney for Poultry Partners Inc., a trade association of poultry growers.

"That's good for my clients because they want to continue raising poultry and they can't raise poultry for a company that's gone out of business," Graves said.


Curtis Killman 581-8471
curtis.killman@tulsaworld.com
By CURTIS KILLMAN World Staff Writer

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Some reader comments for this story were copied from "State cannot pursue damage claims in poultry lawsuit, judge rules," which was published on 7/22/2009.

Report Comment
Angry Citizen!, Bluejacket (7/23/2009 7:53:30 AM)
There's no question that this industry pollutes waterways, but there are so many origins of water pollution in our state that shutting down polutry operations forever won't necessarily make a difference in water quality.
Report Comment
KJNOKIE, TULSA (7/22/2009 4:33:24 PM)
Just close the poultry farms and companies and be done with it. Our health is more important.
Report Comment
Riverok, Tahlequah (7/23/2009 9:56:12 PM)
Eagle 4, I like you take on this lawsuit.

Tyson and the other Arkansas poultry companies don't give a flip about Oklahoma's water quality.

Let's hope Drew Edmondson will find a way to teach them a good, expensive lesson. Drew is no dummy and the "fat lady has not sung yet!"

Riverok
Report Comment
Jason L., Tulsa (7/22/2009 10:11:52 PM)
As the AG said, the money is not the point. Recovery of the watershed is. I am glad that the poultry industry is relieved and can now focus on better practices.

To tell the truth I did not even know there was a damages component to the lawsuit. Goes to show that what is important remains unchanged.
Report Comment
Popeye, T-Town (7/22/2009 6:20:54 PM)
I don't think Edmondson was off target going after this pollution. It's a shame the rule of law is so complicated when a State tries to protect is streams, rivers and lakes.

Even if this suit fails, the message should be clear: Don't chicken poop around with Oklahoma.
Report Comment
Eagle 4, Tulsa (7/23/2009 6:31:25 AM)
Politico,
I must say I am shocked by your punny - I cluck in admiration. :)

Oklahoma may not be getting any chicken feed from the Arkansas scofflaws, but they still might be forced to remove Ex-lax from their chickens' menu.
Report Comment
Eagle 4, Tulsa (7/23/2009 12:51:01 PM)
If a neighbor of mine decided to make my backyard a settlement pond for his sewage, I would hope the judge would not rule in favor of the septic company because I didn't protest with just the right language.

I would pay a few more cents per chicken to have Arkansas, or should I say Mr. Tyson and company, haul that crap to their lakes.
Report Comment
Eagle 4, Tulsa (7/23/2009 4:14:42 PM)
Well, Girl, if I was buying and selling beaver pelts I wouldn't OWN, repeat not own, the beavers' corpses either but I would have some responsibility for their slaughter, wouldn't I?

This denial of responsibility and ignorance toward anything but a bottom line profit is what got us into this stinking mess to begin with. People screaming about their great grandchildren's pocketbooks should raise their voice for their health also. We all should stand on the moon and realize this little blue ball is all we have and it belongs to everyone, not just moneymakers. And before you profit worshippers jump all over me, let me add that profit is necessary and good - it is only the MEANS of profit that can be injurious or criminal.

It's all hunky-dory to say "sorry" after befouling an entire watershed but is that really enough compensation? Even if Mr. Edmondson loses this entire suit, he has raised people's awareness of the fragility of our environment in the face of massive undertakings and hopefully we'll not have another Superfund site in NE Oklahoma.
Report Comment
Mitch B, Tulsa (7/23/2009 6:48:43 AM)
I'll bet Judge Frizzell would rule differently if he had chicken poop in his drinking water and the lake where he recreates.
This is not over yet!
Don't give up Drew, keep hope alive.
Report Comment
Online predator, Muskogee (7/22/2009 5:02:12 PM)
Take that Drew Edmondson!
Report Comment
LostboyfromKS, Tulsa (7/22/2009 5:30:58 PM)
That's just clucked up!
Report Comment
Arbythree, Tulsa (7/23/2009 10:06:55 AM)
Are you saying the Judges and business are like birds of a feather on this one?
Report Comment
Citizen M, Bartlesville (7/23/2009 4:50:16 PM)
Judge Frizzell is a nice enough guy, but I would appeal one of his rulings in a heartbeat. I suspect the AG knows a whole lot more about what procedures need to be followed with Indian tribes than a former Tulsa county judge.
Report Comment
water watcher, (7/23/2009 11:28:01 AM)
Edmondson had asked for $610 million in damages. The number came from a survey that Edmondson paid for calling folks around the state of Oklahoma and asking what they would be willing to pay out of pocket to pour millions of pounds of alum in the Illinois River. They need multiplied the average that folks said they would pay by the number of people who live in Oklahoma, and that is how they came up with the $610 million in damages. If you think it is lunacy to promote dumping millions of pounds of ALUM into a scenic stream, join the club...Edmondson will no doubt try and distance himself from the litigation now that the money is off the table - he will blame the out-of-state attorneys he hired for screwing up and get on with running for governor. The poultry industry has already donated more money to improve water quality than anyone Edmondson and his make-believe environmental buddies want to discuss - this sham lawsuit was a prelude to a run for governor - nothing more, nothing less.
Report Comment
LEO, (7/23/2009 8:37:32 AM)
If the court knew that the Cherokee Nation was suppose to be included in this lawsuit why did this not come out before this and if the Cherokee Nation was suppose to be in included in the lawsuit why are they suppose to be in the suit?
Report Comment
NE Oklahoma Girl, NE Oklahoma (7/23/2009 8:10:51 AM)
Close the poultry farms? Are you crazy? Do you realize what that would do to Oklahoma agriculture and the economy of NE Oklahoma? You must be against farmers all together if you're making that statement. And for those that aren't in the business, they have cleaned up their act. Many truck all of their litter out of the watershed when new regulations were put into place and have been doing this for a few years. The area didn't get this way in a year, so it's not going to take only one year to fix it. Common sense on that one.
Report Comment
NE Oklahoma Girl, NE Oklahoma (7/23/2009 3:10:06 PM)
Eagle 4, Tyson does not *repeat DOES NOT* own the litter. The farmer who owns the houses owns the litter. And that farmer doesn't go spreading the litter wherever they please, they spread it on their own land and on the land of others that buy it from them.

There were some good regulations put in place stemming from this but they need to give some time to allow them to work. You can't fix this in one day, but changing one portion of where the pollution comes from isn't the way to fix it either. It will help, but not fix the problem like everyone likes to think.
Report Comment
NE Oklahoma Girl, NE Oklahoma (7/24/2009 8:25:24 AM)
It would be great and wonderful if we could pinpoint the one item that is adding to the problems in the IRW, but we can't. No matter how many of you city folk want to blame the farmer, you're not out here seeing what's actually happening.
I've saw more housing go up since I've graduated h.s. than the entire 18 years prior. By you're arguement, you're telling me the sediment isn't an issue. You're also telling me that people coming out with their 4-wheelers and tearing up the creek area by running them through it isn't having any effect. Nothing but the chickens is contributing to the pollution. This is what you're essentially saying with your arguements.

I will be one to admit that the farmers have a portion of the responsibility for pollution. They spread litter, they use to over spread it. But since they started some education programs on how to manage the litter, it's changed. Regulations have been put into place. Why does everyone ignore the fact that the ways have changed out here, and just see what has been done before?
Report Comment
Bedazzled, (7/22/2009 10:39:51 PM)
Most already knew the judges would side with big business. It is the GOP way.
Report Comment
Bedazzled, (7/22/2009 10:40:12 PM)
I wish I had put money on a bet on this one.
Report Comment
Bedazzled, (7/25/2009 12:18:37 AM)
This isn't a surprise, corporations will win every time.
Report Comment
Jumbo, (7/23/2009 9:56:26 AM)
As a lawyer, I know Judge Frizzell to be a good and thoughtful Judge. He applies the law to the facts as any good Judge should. Everyone should at least understand that, regardless of what his ruling may be on any particular issue, it will be based solely on his application of the law to the facts before him. It will not be based on any bias one way or the other. Though I know nothing about this particular case or what filings were presented to him, I am sure this recent ruling is no exception to his long and principled career as a Judge.
Report Comment
love 918, (7/22/2009 4:20:34 PM)
Another pillar of the poultry case comes crashing down. It won't be long before the whole thing collapses.

Its sad. The poultry companies, State of OK, and OK law firms have spent millions to fight for and against Drew Edmondson's whims. Wish that money could have been spent on a real lawsuit for a real cause.
Report Comment
love 918, (7/23/2009 3:54:52 PM)
Water watcher, not all the firms hired were out-of-state. Riggs Abney is in Tulsa and OKC, and they made substantial donations to Edmondson's AG and now governor campaigns. Kinda fishy.

Sure wish someone competent would have tackled this case. But I think most competent people realize that poultry litter is only a small part of the Illinois river problems.
Report Comment
love 918, (7/23/2009 3:55:43 PM)
By the way, excellent comment water watcher.
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