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Monitored Litigation


July 08, 2010
Poultry litigation summary

BACKGROUND INFORMATION
In 2005, Oklahoma’s Attorney General Drew Edmondson initiated a legal battle against poultry companies that had the potential to change the face of American agriculture forever. Fortunately, the industry wasn’t afraid to fight back to protect not only their sector of agriculture, but to protect the entire industry. So far, they have proven to be a tough opponent for seasoned legal veteran W.A. Drew Edmondson.
In 2005, talks between the poultry companies and Edmondson over the Illinois River watershed began to fizzle. Bringing the courts into the picture seemed more certain as each day passed. In March 2005, Edmondson filed a 90-day notice of intent to sue the poultry companies for polluting the Illinois River watershed.
Amidst the threat of litigation, in early June 2005, the two groups met once again at the negotiation table, this time mediated by retired U.S. Federal District Judge Thomas Brett. However, the talks proved unsuccessful.

THE STATE’S LAWSUIT AND CLAIMS
On June 13, 2005, Edmondson filed suit in federal court for the Northern District of Oklahoma (see Timeline, June 2005). Edmondson asked for all past and future monetary damages, a permanent injunction on the use of litter in the Illinois River watershed, restitution, punitive and exemplary damages, maximum statutory penalties, prejudgment interest, all attorney fees and costs of the suit, and any other relief as just and appropriate.

EVENTS THROUGHOUT THE SUIT
The lawsuit heated up in March 2006 when Edmondson was granted an order to take samples of water, soil, and waste from poultry operations “under the custody or control of” poultry companies located in the Illinois River watershed. The sampling began in June 2006.
Mike Beebe, then Arkansas Attorney General, in disagreement with Edmondson’s lawsuit, sought to intervene Arkansas as a party in May 2006. Although Beebe’s request was ultimately denied, Arkansas was later allowed to file an amicus (friend-of-the court) brief in the suit.
The poultry companies also sought to add land and business owners to the suit, by enjoining them as third parties that might be engaging in practices leading to the degradation of the watershed. However, this attempt was denied by the federal judge and the companies were told any claims against third parties would have to be pursued once the State’s case was resolved.
On Nov. 14, 2007, Edmondson sought a preliminary injunction from the court to ban the use of poultry litter application to any land in the Illinois River watershed. The federal judge denied the injunction on September 29, 2008. The State subsequently appealed to the Tenth Circuit where the district court’s order denying the injunction was affirmed on May 13, 2009. On May 5, 2008, the court allowed Arkansas, Oklahoma Farm Bureau, and Poultry Partners, Inc. to file friend-of-the-court (amicus) briefs.
In affirming the district court’s order, the Tenth Circuit stated the district court “could not establish a sufficient link between land-applied poultry litter and bacteria in the Illinois River watershed”.
The poultry industry saw its biggest victory on July 22, 2009 when the federal judge found the Cherokee Nation may possess a legally protected interest in the Illinois River watershed, making them an indispensable party to the litigation. This ruling prevented Oklahoma from recovering any monetary damages against the poultry companies without the Cherokee Nation as a party to the litigation. Even though the Cherokee Nation had assigned its right to prosecute any claims relating to the poultry litigation to the State, the federal judge said the agreement was invalid.
The State still had the option of seeking civil penalties and injunctive relief at the trial.
Later that July, a second victory came when the federal judge denied the use of the findings from two expert witnesses hired by the state. A third victory came in September 2009, when the court rejected the Cherokee Nation’s request to intervene, citing the intervention was not timely. The Cherokee Nation appealed to the Tenth Circuit, where a ruling is yet to be made.
The trial in the poultry litigation finally began in September 2009 and lasted for 50 days.
Another victory for the poultry industry was in December 2009 when the federal judge threw out the state’s claim that poultry litter is considered solid waste under federal law. To be considered waste, the litter would have to be discarded, thrown away, or abandoned. The federal judge said it was not.
It is now June 2010 and the trial is over. Both sides are waiting for the final ruling in this lengthy, costly, and many would say, unnecessary case.




 


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