Poultry injunction is a trial balloon

By Jim Stafford

Published: February 27, 2008

Welcome to a halftime report on the state's request for a federal injunction to bar the spread of poultry litter in the Illinois River Watershed in northeastern Oklahoma.

The Tulsa hearing before Federal Judge Gregory K. Frizzell has paused for the week to accommodate Frizzell's schedule. It will resume Monday.

The plaintiffs, led by Attorney General Drew Edmondson and a team of about a dozen attorneys, made their case for the injunction over four days last week. Attorneys for the defense began presenting their witnesses Friday and will pick it up again next week for an expected three more days of testimony.

Here's some background before we break down what we heard in the first four days of testimony:

The hearing is part of a lawsuit brought by Edmondson on behalf of the state against 13 mostly Arkansas-based poultry companies. The defendants include Tyson Foods Inc. and two of its subsidiaries, Cobb-Vantress Inc., Cal-Maine Foods and Cal-Maine Farms, Cargill Inc. and Cargill Turkey Production, George's Inc. and George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc., and Willow Brook Foods Inc.

The state claims that the poultry companies have polluted the waterways and ground water in the watershed area by applying hundreds of thousands of tons of poultry waste annually on the land in the region.

According to the state, the waste from more than 1,800 poultry houses within the watershed area contains minerals and bacteria that have washed into the water and caused it to be hazardous to people who use it for recreation or for consumption.

Expert witnesses for the state have documented their discovery of poultry waste "markers” found through chemical analysis of bacteria and minerals in the watershed.

Most common term heard in the first week of testimony: "fecal bacteria.” Enough said.

The state even put an agricultural economist on the witness stand who tried to show that poultry companies control every aspect of poultry production, even though the chickens and turkeys are raised in houses owned by farmers who contract with them. Poultry companies have tried to distance themselves from the waste left over from poultry production, which becomes the responsibility of the farmers that own it.

Defense attorneys — and there are about a dozen of them —attacked the credibility of the state's experts throughout the week, and began their case Friday with an engineering expert who faulted the sample collection process by a firm hired by the plaintiffs. The defense expert documented multiple cases where he alleged the sample takers violated what he called "SOP — standard operating procedure” in collecting the samples, making them all suspect, he said.

So, let's break down the first half and see if we can determine which side has made the biggest impression with Judge Frizzell, who ultimately will decide whether to impose the ban on poultry waste application in the watershed.

First, the judge has not revealed favoritism toward either side, at least that I can detect. Mostly, he has shown frustration with the glacier-like pace of the proceedings. On Friday he said, "Frankly, this is the longest preliminary injunction I've ever conducted.” At another point, he told one of the attorneys that he had 200 other cases pending.

Often, when an attorney has tried to press the same point over and over, Frizzell will tell him that he got the point and to move on.

The judge obviously isn't trained as a scientist, so you have to wonder how he can make a decision based on the facts in this case.

Maybe the bigger question hovering over the proceedings revolves around the question of why the request for the injunction was filed in the first place.

In his opening statement, Edmondson said the state couldn't wait until the trial is heard next year when its multimillion dollar lawsuit against the poultry industry is expected to be conducted. The harm and the danger from the poultry pollution were too great to wait.

However, I see the injunction request as sort of a trial balloon on the part of the state. First, the state gets to see how its witnesses will perform on the stand and how the defense will counter when confronted with their testimony. Great game planning for the actual trial.

Beyond that, if the state wins an injunction it might just prompt the poultry companies to consider some sort of settlement in order to avoid the possibility of an astronomical punitive award by a jury sympathetic to the state's case.

Meanwhile, both teams are in their respective locker rooms this week, adjusting their game plans for the second half of the hearing. Second half kickoff is 9 a.m. Monday

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