State seeks injunction in poultry litter case

By Jim Stafford

Published: February 20, 2008

TULSA — Attorney General Drew Edmondson told a federal judge here Tuesday that the poultry industry has "infested” waterways in northeastern Oklahoma with pollution that is a risk to the public's health.

The state is seeking an injunction from Federal Judge Gregory K. Frizzell barring the spread of poultry litter in the million-acres Illinois River watershed that stretches from northwest Arkansas through northeast Oklahoma to Lake Tenkiller.

In a 20-minute opening statement, Edmondson claimed that the poultry industry has "infested rivers, streams and wells with biological pathogens” in the Illinois River watershed. The request for the injunction against spread of poultry litter is a prelude to the multimillion-dollar lawsuit that Edmondson filed against the industry in 2005.

The threat to people who live in the watershed area or recreate in its waters is so serious that an injunction can't wait until the state's pollution lawsuit against 13 poultry companies begins next year, Edmondson said.

Opening statements in the hearing were delayed almost an hour as attorneys for both sides wrangled over three motions that involved the expected testimony of expert witnesses and the state's request to eliminate some data prepared by one of its witnesses.

Edmondson outlined the state's case and the list of witnesses it expects to call over the three days that Frizzell has allotted it to make its case. The poultry industry defense will have its turn after that.

"Injunctive relief is authorized when there may be risk of harm,” Edmondson said. "If an error is to be made, the error must be made in protecting the public health and the environment.”

However, in his opening statement for the defense, Tyson Foods attorney Patrick Ryan told the judge that the state's request would harm the "little guy,” the poultry farmers who grow millions of chickens and turkeys on a contract basis for the corporations.

Plus, the application of chicken litter on land throughout the Illinois River watershed is specifically authorized by the state through a permitting process by the state Agriculture Department, he said.

"The state has not been able to identify a single person who has become ill because of contact with water in the watershed,” Ryan said.

Edmond told the judge that there are 1,835 poultry houses in the Illinois River watershed area, 80 percent of which are on the Arkansas side of the border.

Although the integrated poultry companies have tried to distance themselves from the poultry waste created by millions of birds each year, Edmondson said the birds are property of the corporations.

"Farmers have never, ever owned the birds, unless, of course, if a bird dies,” he said. "then it becomes the property of the farmer.”

The state's first witness was Oklahoma Secretary of Environment Miles Tolbert, who along with Edmondson filed for the injunction on behalf of the state.

Tolbert identified poultry waste as the "primary” source of fecal pollution in the watershed, although other sources such as cattle, humans and other wildlife also contribute to levels of bacteria that result in a state of "impairment” of the rivers and lakes in the area, he said.

"We need to have this relief now in order to protect the public health this summer and ongoing,” Tolbert said from the witness stand.

Under a contentious cross examination by Ryan, Tolbert said he had not considered taking similar enforcement steps against the cattle industry, despite documentation that showed cattle were the primary fecal source of pollution in every other watershed area of the state.

"Have you filed lawsuits against ranchers and cattlemen,” Ryan asked?

Tolbert answered "no.”

When asked why he had filed a lawsuit against the poultry integrators, Tolbert replied that it was because it is the integrator's waste.

"The farmers feed birds owned by the integrators,” Tolbert said. "What comes out the other side is the result of the integrators' actions.”

The hearing moved on to an afternoon session in which Judge Frizzell would not allow Dr. Barry Wynn of Tahlequah to testify as an "expert” witness for the state, although he did permit his testimony.

Wynn said he developed a strategy to treat patients injured in the Illinois River with a procedure similar to someone injured in a barnyard accident because of the frequency of infections that occurred in the wounds.

The hearing is expected to continue through the end of this week, then break for a week and resume March 3.

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