Judge rules against preliminary injunction in Tulsa
Judge rules against preliminary injunction in Tulsa

Published: September 29, 2008

TULSA - A federal judge on Monday denied Oklahoma's request for a preliminary injunction to stop 13 Arkansas poultry companies from disposing of bird waste in the Illinois River watershed.

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Attorney General Drew Edmondson, who requested the injunction last year, said the ruling had no impact on the state's environmental case against the companies, which figures to begin in 2009.

Edmondson sued the companies in 2005, accusing them of treating Oklahoma's rivers like open sewers. While gathering evidence for the pollution case, Edmondson said the state "discovered the excessive land application of poultry waste could be a danger to public health," and argued in court for the injunction earlier this year.

In a seven-page ruling, U.S. District Judge Gregory K. Frizzell wrote that Oklahoma "has not yet met its burden of proving that bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems."

He also said that "the record reflects levels of fecal bacteria at similar levels in rivers and streams throughout the state of Oklahoma, including waterways in whose watersheds the record does not evidence similar application of poultry waste."

The judge also labeled as "not sufficiently reliable" the testimony of two of the state's expert witnesses because their work had not been peer reviewed or published.

One witness, Valerie Harwood, a microbiologist and professor at the University of South Florida, testified at the injunction hearing that she used microbial source tracking to trace a path that contamination from poultry waste travels from fields into the watershed.

The second witness, geochemist Roger Olsen, testified that he had identified a poultry-specific biological "signature."

"The testimony before this court reveals no one outside this lawsuit who has either validated or sought to validate Harwood's and Olsen's scientific work," the judge wrote.

Edmondson defended the injunction request, saying, "we believed the health implications were sufficiently serious to bring to the court's attention as early as possible."

"As the court acknowledged in its ruling, we faced a heightened burden of proof in this hearing," he said in a statement Monday. "Since the testimony of two of our experts was discounted, we could not meet that burden."

The injunction could have halted a practice thousands of farmers have employed for decades in the 1 million-acre watershed, which occupies parts of Arkansas and Oklahoma: Taking the ammonia-reeking chicken waste — clumped bird droppings, bedding and feathers — and spreading it on their land as cheap fertilizer.

It also could have led to similar environmental lawsuits nationwide against the industry, which produced more than 48 billion pounds of chicken in 2006.

The Oklahoma-Arkansas region supplies roughly 2 percent of the nation's poultry, and is one of several areas nationally where the industry is most concentrated. More than 1,800 poultry houses are in the watershed, most of them in Arkansas.

Scott McDaniel, an attorney for one of the defendants, Peterson Farms Inc., said Monday that the attorney general did not produce any farm-specific evidence of contamination, and instead relied on untested science to make a case.

"We've gone through several years of just battling back and forth in the press, and this was the first opportunity for everybody to put their evidence on the table," McDaniel said. "We're pleased to have won this round."

Jackie Cunningham, community relations director for the Poultry Community Council, said the ruling recognized "what we have been saying since this lawsuit began: that the science simply does not support the attorney general's claims against the hard working farmers of northeast Oklahoma and Northwest Arkansas."

Companies named in the 2005 complaint include Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George's Inc., George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.

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