Court orders facelift for poultry lawsuit’s 15th anniversary
Parties are directed to update science before a December hearing
TULSA — Oklahoma’s lawsuit against the poultry industry is getting a facelift on the 15th anniversary of its original trial date.
In a Friday afternoon hearing, U.S. Northern District Court Judge Gregory Frizzell directed all parties to prepare to return to court with updated evidence for a December 3–6 hearing in the Tulsa courthouse.
The judge opened the hearing by acknowledging his recent denial of a poultry industry motion to dismiss the suit, claiming evidence had aged beyond relevance. While not warranting dismissal, he allowed a final ruling should consider updated evidence if any exists.
However, the judge did not back down from previous statements that the Illinois River and Lake Tenkiller have suffered at the hands of the industry and that remediation of the watershed is necessary as “hundreds of thousands of tons” of the industry’s poultry litter has been applied within the Illinois River watershed.
Attorney General Gentner Drummond said the judge was right to request the information.
Boiled down, the court’s request of the state is to show whether phosphorus build-up remains an issue in the lands and waters. Meanwhile, poultry company attorneys must gather any new information that shows the issues may be moot.
“It is an update of some of the evidence; we are not retrying the case,” Drummond said.
Former Attorney General Drew Edmondson filed the suit in June 2005 against 13 poultry companies and subsidiaries, including Tyson Foods, Simmons Foods, Cargill Inc., and others.
A long list of motions and hearings followed until a non-jury trial played out in federal court in Tulsa from September 2009 through February 2010.
Frizzell issued his decision and findings of fact in January 2022.
Despite an order to agree on a settlement within 60 days, the parties secured a postponement and then went to mediation for several months. Mediation failed, and then the poultry industry attorneys filed a motion to dismiss the case in June 2024, based on the time elapsed since the 2010 trial and changes to the environment and industry.
That motion was denied.
The primary issue is phosphorus pollution across 1 million acres of the Illinois River Watershed in eastern Oklahoma. Phosphorus loading has degraded the water quality of the Illinois River watershed, adding algae to the streams and turning crystal-clear Lake Tenkiller an emerald green.
While other entities contribute to water pollution, the poultry industry’s practice of leaving operators to dispose of chicken manure and other matter collected from barns that house thousands of chickens as field fertilizer is blamed for a large part of the ongoing problem.
A ruling on the case could impact current industry practices in the watershed, and elsewhere across the state.
Blayne Arthur, state Secretary of Agriculture, weighed in on the case with a letter to Frizzell, earlier this week. She expressed concern “on behalf of our state’s agriculture producers.”
She wrote that Ag interests worried the judge might rule and set requirements “best left to elected legislators and officials in the executive branch.”
The Sept. 5 letter zeroed in on potential changes to the state’s chicken litter fertilizer limits.
Those limits, cited by Frizzell in his January 2023 findings, are a crucial issue.
Blayne stated that at the time of closing arguments in 2010, the state’s soil test phosphorus limit was 300 pounds per acre. That mirrored federal agency requirements until those dropped to a recommendation not exceed 200 in 2011.
She stated that the Oklahoma Legislature passed a law effective May 2022 mandating the Ag Department enforce the pre-existing standard of 300.
“Contrast that law with the ruling that poultry litter shall not be applied beyond a soil test phosphorous limit of 120 and could never be applied at greater than 65 pounds per acre,” Blayne wrote. “With respect, any such court-ordered standard will conflict with state law, making compliance confusing and untenable.”
Frizzell told Drummond in Friday’s hearing that, as a federal judge, he recognizes democratic processes and is not interested in overruling state laws and regulations.
Asked if Secretary Arthur’s letter indicated state agencies were not on the same page, Drummond responded, “Under State Title 74 I am the chief legal agent for the state of Oklahoma. Full stop.”
Former Attorney General Drew Edmondson said in a pre-hearing interview that Oklahoma still needs to learn the lesson that using agencies designed to serve industries should not stand as the environmental regulators of those same industries.
He said the phosphorous maximum should have been reduced long ago.
“The problem with chicken litter as fertilizer is it is essentially 50 percent nitrogen and 50 percent phosphorus, and those two should not be applied at equal levels,” he said.
Nitrogen dissipates because it is volatile, and plants use more nitrogen than phosphorus quickly. Phosphorus, he said, is forever. It remains in the soil until it is washed away.
Oklahoma State University’s soil test interpretation guidelines recommend a maximum of 65 pounds per acre of phosphorus for most crops. A maximum recommended application of 100 pounds per acre would apply only on land with zero phosphorus and intended to grow corn, which can absorb more phosphorus than other crops.
“You won’t find an acre anywhere in eastern Oklahoma that needs to apply 300,” Edmondson said. “It builds up, and when it rains, it runs off into the bar ditches and finds its way to the Illinois River and Lake Tenkiller.”
