Governor signs controversial poultry litter bill
Measure increases fines on operators shields industry from legal action
A bill shielding the poultry industry from future lawsuits and increasing fines on farmers who are “bad actors” passed the legislature on the final day of the session and was signed by Gov. Kevin Stitt on
Senate Bill 1424, by Sen. Brent Howard, R-Ada, and Rep. John Pfeiffer, R-Orlando, is characterized by its author as a “carrot and stick” approach. It increases fines on operators who violate poultry waste management regulations but protects those with a Nutrient Management Plan in good standing.
The Oklahoma Department of Agriculture Food and Forestry issues nutrient management plans to confined poultry feeding operations. The plans govern the in-house storage, handling, and distribution of chicken waste as fertilizer used on nearby fields or trucked to other areas.
The bill also creates a presumption that any operation in compliance with a current Nutrient Management Plan is protected from civil liability and extends that protection from criminal or civil action to the farmer, poultry waste applicator, and commercial integrator as long as the operation follows the guidelines of the Nutrient Management Plan.
The bill’s authors presented the measure as a way to protect the state’s responsible farmers “from frivolous lawsuits” and punish “bad actors” who might be operating outside the rules.
Critics quickly attacked the bill this session, starting with former Attorney General Drew Edmondson, who filed suit against the poultry industry in 2005 and saw a decision and findings of fact in U.S. Northern District Court Judge Gregory Frizzell’s courtroom last year.
Howard continued to tout the effectiveness of the state’s poultry act for improving water quality, but critics pointed to Frizzell’s findings, which noted that those same regulations have only curbed the worst and continue to pollute state waters with heavy fertilizer applications at rates higher than what plants can use.
Edmondson assured critics the bill would not retroactively impact that lawsuit but feared for necessary future action. Edmondson warned the new language defining a Nutrient Management Plan changes from requiring that “There shall be no discharge of poultry waste to waters of the state” to offering “Measures designed to prevent the discharge of poultry waste to waters of the state.”
Critics pointed to that eased language and protection from liability with alarm.
The Inter-Tribal Council of the Five Civilized Tribes, the City of Tulsa, several other municipalities, conservation groups, and small-operation farmers organized letter-writing and social media campaigns.
“We are deeply disappointed by today’s vote and the fact that this critical issue was rushed through on the final day of the session,” Cherokee Nation Principal Chief Chuck Hoskin Jr. noted via email Thursday. “The complete lack of transparency surrounding the bill’s advancement is unacceptable and poses a serious threat to the safety of our natural resources in northeast Oklahoma. The Cherokee Nation, as the largest tribal sovereign government in the state, remains steadfast in our commitment to protecting our waterways and ensuring the health of all citizens within our reservation. We will continue to explore ways that we can protect our citizens despite the actions of the state today.”
Attorneys who have filed lawsuits bristled at the idea their lawsuits on behalf of Oklahoma landowners are “frivolous” and said the bill will not stop their efforts.
Matt Alison, attorney for the Indian and Environmental Law Group in Tulsa, said passage of the bill was not a surprise. The bill should not impact the groups’ pending litigation against the Oklahoma Department of Agriculture, filed on behalf of Spring Creek Coalition, and a suit filed against the Oklahoma Water Resources Board on behalf of several Delaware County residents, he said.
“I’m very skeptical about the viability of that statutory language,” Alison said. “The legislature, no matter their motivation, can’t legislate that away. The Constitution will still take precedence, and I think our clients and Oklahomans should take heart in knowing the Constitution still protects their individual rights.”
Tulsa attorney David Page, who has at least five pending lawsuits naming local operations and integrators, has repeatedly said the legislature can’t erase trespass law and that he will continue filing suit.
“It’s a sad day for Oklahoma and a sad day for personal property rights,” he said. “This law will not affect current cases. Future lawsuits will just have to get past it. Still, the Oklahoma Constitution states you can’t take personal property without just compensation, and that’s what these operations do with their stink and dust and disease. They make their neighbor’s property unliveable, and that is taking their private property.”
Increased fines for operators
The bill addresses violations of the Oklahoma Registered Poultry Feeding Operations Act with a new fee structure, including the possibility of being found guilty of a misdemeanor and a fine not to exceed $1,000.
Farmers or applicators who are found guilty of failing “to take such action as may be reasonable and necessary to avoid pollution” of waterbodies, except as otherwise provided by law, or violate rules set by the State Board of Agriculture to prevent pollution from poultry feeding operations would, upon conviction, be guilty of a misdemeanor punishable for each violation by a fine of not less than $500 nor more than $10,000, imprisonment for not more than six months or both.
The bill adds that the Ag Department “may take one or more of the following actions,” including fines for noncompliance with administrative actions such as late paperwork or a penalty of $10,000 per day for noncompliance with provisions of the nutrient management plan that led to the pollution of any water body.
The bill directs any fines collected to fund future enforcement efforts.
It also defines a 30-day period for producers and integrators to correct “flagrant” issues. Still, the Department of Agriculture can extend that period or give the producer 90 days before terminating their integrator-producer contract.
