Thursday, July 23, 2009

Judge guts lawsuit in favor of polluters

The Morning News

Local News for Northwest Arkansas

Judge Dismisses Much Of Oklahoma Water Quality Lawsuit

By Doug Thompson
FAYETTEVILLE — A federal court judge dismissed all claims to monetary damages against Arkansas poultry companies in a water quality lawsuit brought by the Oklahoma attorney general.

The Cherokee Nation is an "indispensable" party to the lawsuit's claims and Oklahoma erred in not bringing the tribes into the 2005 suit against 13 Arkansas poultry companies, a federal judge ruled Wednesday in Tulsa, Okla.

The ruling sweeps away Oklahoma's claims of damages of up to $611,529,987, court documents show. The remaining claims are that the Arkansas companies are violating Oklahoma environmental and agricultural law in the disposal of chicken litter in the Illinois River watershed. The suit asks the court to force the poultry producers to comply with those laws.

The case is set for trial Sept. 21, U.S. District Judge Gregory K. Frizzell ruled earlier from his court for the Northern District of Oklahoma.

"While today's ruling removes some of the state's causes, it leaves intact the most important claims — those on injunctive relief," Attorney General Drew Edmondson said in a statement. "This case has never been about money. The case is about protecting the watershed from pollution.

"We are reviewing our options as to how to proceed," Edmondson said.

The Illinois River flows through Northwest Arkansas and northeast Oklahoma. The watershed of the river includes some of the poultry producing region of Northwest Arkansas.

"The Cherokee Nation is an indispensable party and, pursuant to (federal court) Rule 19-b, plaintiff's claims for damages should not, in equity and good conscience, be allowed to proceed among the existing parties," Frizzell said in a 23-page order issued Wednesday.

"We're pleased with the ruling and are grateful the court viewed this matter as seriously as we did," said a statement from Gary Mickelson, spokesman for Tyson Foods of Springdale. "The decision confirms our motion was not the 'legal gimmick' or 'scheme' the attorney general's office claimed it was. We will now be evaluating what the court's decision means to our overall case going forward."

Edmondson's office and the Cherokee Nation reached an agreement in May including the tribes in any monetary damages awarded to Oklahoma. That agreement was reached after defendants filed complaints the Cherokees, not Oklahoma, held much of the land and water rights in the region. That agreement did not satisfy federal court requirements, Frizzell ruled.

The governor of Oklahoma, not the attorney general, is the proper office holder to negotiate binding agreements with the Cherokees and even then any such agreement would require approval by the Oklahoma Legislature, said attorney Marvin Childers, head of the Poultry Federation, an industry lobby.

Frizzell's ruling is without prejudice, which means Oklahoma can refile for monetary damages if an agreement is reached with the Cherokees and get the required state legislative approval, Childers said. "The judge's ruling was very clear about what hoops everybody would have to jump through," he said.

Edmondson is running for governor of Oklahoma.

Arkansas Attorney General Dustin McDaniel said while it's technically true the state could refile the monetary claims, "If I were in that position, I'd give long and hard consideration of whether I wanted to go fight this fight again."

McDaniel tried to have Arkansas included in the lawsuit as an interested party, claiming Oklahoma's suit was an attempt to impose Oklahoma law on Arkansas farmers. That attempt to intervene was unsuccessful.

"Oklahoma may claim that it's not about the money, but I doubt the private firm that's representing them in this case feels the same way," McDaniel said. Those private lawyers had incurred $25 million in expenses by the end of last year, Edmondson told an Oklahoma legislative committee in January.

With the monetary claims struck down, the remaining parts are all based on proving Arkansas poultry operations are the cause of pollution in the Illinois River, McDaniel said.

Oklahoma doesn't have any more evidence that poultry is causing pollution of their rivers than it did when they couldn't convince the court to issue an injunction to stop land application of litter in the Illinois watershed, McDaniel said.

When Frizzell denied the injunction, he said levels of pollution in the Illinois River were no higher than Oklahoma rivers that didn't have poultry litter spread in their watersheds.

"Nothing's over until it's absolutely over, but the ruling today is devastating to the state of Oklahoma's case," McDaniel said Wednesday. "Farmers I've talked to in the last hour are hopeful that this truly is the beginning of the end of this litigation. I think they have good cause to believe that."

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