Poultry lawsuit is partially dismissed
BY CURTIS KILLMAN World Staff Writer
Thursday, July 23, 2009
7/23/09 at 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
