Lawyers representing the poultry companies initiated the effort this past after the plaintiff and defendants declared their inability to reach a mediated settlement agreement. After being ordered on June 12 to mediation, the parties met twice in mid-September with the mediator, retired Tenth Circuit Judge Deanell Reece Tacha, and again on Oct. 12 for an all-day session.
U.S. District Judge Gregory Frizzell in Tulsa published in January his findings of facts presented during a trial that concluded in February 2010 along with his legal conclusions. The judge found the poultry companies’ conduct “constitutes a public nuisance,” and the “actual and ongoing injury to the waters of the IRW constitutes irreparable harm.”
In their combined motion to dismiss, lawyers representing the poultry companies allege the lapse of 13 years between the trial and Frizzell’s findings and conclusions renders the dispute moot. They argue that injunctive relief is unavailable when the record of evidence is “so stale.”
“In 2010, the state entreated the court to enter sweeping injunctive relief,” the defendants’ lawyers state in their supporting brief. “But injunctive relief requires evidence of current and ongoing harm or impending injury, and the record before the Court says nothing about whether injunctive relief is needed or justified in 2023 and beyond.”
The poultry companies’ lawyers say “significant changes” that have occurred within the watershed during the past decade provide evidence of staleness. Some of those changes include a doubling of the human population in northwest Arkansas, the evolution of farming practices and land management, and the investment of “hundreds of millions of dollars into improving wastewater treatment, and water quality.”
“The IRW of today is not the IRW of 2010. Nor was the law static,” defense lawyers state in the introductory portion of their brief. “Since 2010, federal and state courts have issued path-marking decisions addressing nuisance, trespass, causation, and federal common law.”
Despite those changes and the plaintiffs’ “claims of exigent environmental harm,” lawyers for the poultry companies said Oklahoma officials “sat idly by” and “continued to issue nutrient-management plans to farmers and ranchers, instructing them to abide by these plans to avoid polluting the waters of the IRW.”
Phil Bacharach, communications director for Attorney General Gentner Drummond’s office, said Oklahoma’s attorney general “will continue seeking a resolution of this matter that is in the best interests of Oklahoma.” A more detailed response to the motion to dismiss is expected to be filed on or before Nov. 10 with the U.S. District Court of Northern Oklahoma.
Denise Deason-Toyne, president of Save the Illinois River, a grass-roots coalition of clean-water advocates based in Tahlequah, said Monday the arguments presented by the poultry companies appear to be “somewhat of a stretch” given the “minimal improvement in the water quality of Oklahoma’s scenic rivers and streams.”
“What evidence do they have that anything has really changed that much?” Deason-Toyne said about water quality in IRW streams. “After all these years the phosphorus standard still is not being met a majority of the times when it’s tested.”
Water quality reports submitted Sept. 28 to the Arkansas-Oklahoma Arkansas River Compact Commission show total phosphorus levels in the Illinois River at the state line exceeded scenic rivers standards 97% of the time. While average annual phosphorus loading began to decline after the five-year reporting period of 1998-2002, phosphorus levels started climbing again during the 2015-2019 reporting period.
That trend of increasing phosphorus loading, according to compact commission reports, continued through the following six reporting periods, including the most recent five year reporting period of 2018-2022.
A two year study completed in 2016 found phosphorus levels that exceed the 0.037 mg/L standard set for Oklahoma’s scenic rivers tended to spur the production of nuisance algae in IRW streams and rivers. Stream overloading of nutrients such as phosphorus and nitrogen promotes vegetative growth, which depletes dissolved oxygen levels and reduces water quality and threatens aquatic life.
Poultry company lawyers acknowledge the novelty of their arguments but consider their questions of constitutional and prudential mootness and due process important enough to argue orally before the court.
Frizzell ordered Drummond and his team to file the state’s response by Nov. 10. Lawyers for the poultry companies will have until Nov. 17 to file a reply brief should they choose to do so.
Poultry companies that joined the motion to dismiss include Tyson Foods, Cobb-Vantress, Cargill, George’s Farms, Peterson Farms, Simmons Foods and various subsidiaries of those corporations that operate in Oklahoma.
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Thanks to Tom Langston for sending in this photo.
From left: George Foster, Rita Foster, David Shackelford, Heidi DeRosier, Vera Jerson, Adele Shackelford, Tom Langston, Wes DeRosier
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