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Oklahoma poultry companies file last motions
TULSA, Okla. (AP)--Poultry companies sued by Oklahoma in 2005 should be prohibited from allowing waste generated by birds owned, leased or otherwise controlled by them to be applied on fields in the Illinois River watershed in excess of a certain amount, the state of Oklahoma argues in a document filed Feb. 5. Eight minutes later, those same companies submitted their own lengthy document in which they claimed the state had demonstrated no "substantiated threat to human health, drinking water, recreational use or wildlife'' and asked that the state's request for an injunction be denied. The twin filings set the stage for closing arguments, which are scheduled to be held Feb. 11 in Tulsa federal court before U.S. District Judge Gregory Frizzell. Frizzell is considering the case without a jury. He heard 50 days of testimony from Sept. 24 to Jan. 26. He gave the parties until Feb. 5 to file their proposed findings of fact and conclusions of law. In this era of electronic filing, each side worked until the 11th hour and beyond to frame the issues in the complicated environmental law case. The state filed its 375-page document at 11:19 p.m., while the poultry companies submitted their 183-page entry at 11:27 p.m. In its filing, the state asked Frizzell to issue an order restricting the land application of poultry waste in the Illinois River watershed to rates not greater than 65 lbs. per acre. The state suggested such a standard "would be effective in addressing the injuries to the waters of the state, would be implementable, and would be economically viable." It also requested that the defendants be required to remove from the watershed all poultry waste generated by their birds that cannot be land-applied in the area at issue under the standard. The state also claimed it was entitled to remediation of the Illinois River watershed at the defendants' expense as well as reporting, monitoring and auditing requirements to be placed on the companies with a special master appointed by the court to oversee compliance. Also, the state asked to recover its attorney fees and costs and left blank a place for Frizzell to impose civil penalties against the companies for each year since 1993 they have conducted poultry operations in the watershed. However, in their filing, the defendants suggested that Frizzell should find there has been no showing by the state of irreparable injury. While there is evidence in the record of increased algae production and heightened phosphorous in some parts of the watershed, there is no credible evidence that those conditions would be made better if poultry litter applications were banned or even reduced, the defense asserted in its Feb. 5 pleading. In the same document, the defense claims that any "injury'' to the watershed is largely aesthetic. It asserts there is no "substantiated threat to human health, drinking water, recreational use or wildlife'' connected to poultry litter. The filing suggests that Frizzell should find that any order prohibiting the use of litter as a fertilizer would not only impose substantial costs on the defendants, but would also devastate many ranchers and poultry farmers and generally have a negative impact on the economy in the watershed of more than 1 million acres. In addition, the companies claim that the proposed injunction sought by the state "is simply not the proper tool to redress the injury for which the state seeks relief.'' The industry claimed in its filing that any such federal court intervention "would be akin to the system the state already has in place to implement and enforce the laws and regulations governing the land application of poultry litter.'' It is unknown how long it will take Frizzell to make a decision after closing arguments Feb. 11. In 2008, it took him more than six months after the conclusion of a hearing in the case to issue an order denying the state's request for a preliminary injunction.
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