On Wednesday, July 22, 2009, a federal judge ruled that the State of Oklahoma cannot pursue damages against several poultry companies with operations in the Illinois River watershed because the state failed to name the Cherokee Nation as a plaintiff. As the judge views the case, the Cherokee Nation is an indispensible party to the lawsuit. Oklahoma was seeking $611 million in damages from claims that poultry waste from the various companies polluted the Illinois River watershed.
Justin Juozapavicius, reporting for the AP, writes that Federal Judge Gregory K. Frizell ruled that since the alleged pollution in the Illinois River Valley lies in area set aside by the federal government for the Cherokee Nation, Oklahoma did not have the authority to seek damages on the nation’s behalf. This ruling essentially deemed invalid a May 19 agreement reached by Oklahoma and the Cherokee Nation in which the parties agreed to let the state to pursue the lawsuit on the Cherokee Nation’s behalf. Despite Wednesday’s ruling Oklahoma can still push the lawsuit forward to prevent the companies from allegedly dumping excess animal waste in the watershed. To read the AP story click here. To read the court opinion click here.
The trial for the case is set for September 21, 2009. Other states are paying close attention to the suit because of the potential precedential impact it could have. Yet, without the prospect of receiving damages it remains to be seen how eager other states will be to bring similar lawsuits.
Oklahoma Attorney General Drew Edmondson claims that every year 345,000 tons of poultry waste makes its way to the watershed via water runoff from poultry farms in the area. There the waste causes environmental destruction to the riparian habitat’s flora and fauna, as well as causes a threat to human health for those who use the watershed as an outdoor recreation area.
According to the AP article, over 55,000 people in Oklahoma and Arkansas work in the poultry industry in the area. The area is one of the nation’s premiere locations for broiler production and 1,800 poultry houses are located within the watershed.
Both Oklahoma and the companies are considering their options in light of yesterday’s ruling. One option is for the parties to reach an out-of-court settlement. Another option is for Oklahoma to ask Judge Frizzell for permission to appeal the ruling to the 10th Circuit Court of Appeals located in Denver, Colorado. Additionally, as the Arkansas Democrat Gazette reports, the state could simply seek injunctive relief to prevent farmers from spreading the animal manure on their farm land as a fertilizer.
Edmondson initially brought the lawsuit in 2005. Edmondson maintains that, even without the money damages, if the state can prevent the pollution they will have achieved their goal. However, the AP quotes Arkansas Attorney General Dustin McDaniel as stating, ‘“This ruling is devastating to the state of Oklahoma’s case.”’
The Arkansas Democrat Gazette points out in their story that the state of Arkansas had earlier tried to join the lawsuit. Additionally, the paper reports Edmondson’s political prospects may come into play as the future of the suit is considered since he is running for governor of Oklahoma in 2010. However, the Democrat Gazette reports that Edmonson campaign spokesperson Emily Lang stated pursuing the lawsuit and running for governor are not “mutually exclusive.” To read the Democrat Gazette story click here.
To read additionally posts on The United States Agricultural & Food Law and Policy Blog on this subject click here for a post from July 9; click here for a post from June 6.
