Poultry bill critics say they won’t rest
Commentary roils around HB 4118, awaiting conference committee action
Supporters and opponents say they can only guess at the fate of key legislation on poultry feeding operations that has been lined up for a conference committee since May 1.
The status means some in-house disagreement remains on House Bill 4118 by Rep. David Hardin, so a committee will hammer out issues before bringing it back for floor votes.
More than one Capitol insider said off the record it’s become derisively known around the legislative halls as “that chicken s — t bill.” Still, critics statewide continue to hammer legislators, anticipating a sudden resurrection with little time for public reaction before the legislature adjourns later this month.
Steve Thompson, vice president of public policy for Farm Bureau, said the bill is the subject of more of his media requests this session than any other topic. He said that opposition–most visibly from The Inter-Tribal Council of the Five Civilized Tribes and the City of Tulsa — is well-meaning but does not appreciate the whole story behind its intent and effect.
He said the measure uses one narrow standard, adherence to state-issued Nutrient Management Plans, to incentivize poultry farmers to follow best practices designed to conserve clean water and benefit all concerned.
Drew Edmondson, the former Oklahoma attorney general whose 2005 lawsuit against poultry producers continues to slowly simmer atop the desk of a federal court judge in Tulsa, said it is the well-informed who see the dangers of a bill that shields corporate poultry operations from liability to the detriment of all concerned.
What is a family farm?
A busy Creek County farmer, Nate Beaulac, took a few minutes over the phone to colorfully sum up his thoughts on HB 4118 as substance expressed from the south end of a northbound bull.
He penned an open letter to state leadership last week noting that he and his partners run a 240-acre farm that supplies beef, poultry, and other livestock to restaurants and individuals statewide using ecologically responsible soil-first practices.
The Oklahoma Department of Agriculture Food and Forestry issues the Nutrient Management Plans emphasized by HB 4118 to dictate the storage and handling of chicken litter and its application as fertilizer. Litter is the feces, feathers, and other detritus, including dead chickens, that collect in poultry barns.
Beaulac is one of several smaller operators to speak up in recent days, expressing particular ire over its author’s characterization of the bill protecting Oklahoma’s small family farms from frivolous lawsuits.
These farmers have a different definition of a family farm. He said that doing things by the book means no-till, regenerative, soil-first practices that don’t include commercial fertilizers or broadcasting chicken litter.
“We use an ecologically responsible approach. We rotate our animals through the pastures and focus on building healthy soil,” Beaulac said.
In his letter, Beaulac zeroed in on U.S. Northern District Court Judge Gregory Frizzell’s 2023 decision and findings of fact against poultry industry giants Tyson Foods, Simmons Foods, and others.
The judge’s findings sided entirely with the state and blamed the poultry industry for the continued high phosphorus levels in the Illinois River. The ag giants are challenging the suit for dismissal based on their claim that 13 years was too long to wait for a ruling, and many things have changed. The suit is entering its 14th year on Judge Frizzell’s list of things to do.
“After reading what I can only assume is legislation designed by the lobbyists working for these companies, I find it hard to fathom why any Oklahoman would support it,” Beaulac wrote.
The bill states it will be “‘creating a presumption that compliance with a current Nutrient Management Plan insulates poultry growers, operators, integrators, and waste applicators from any private right of action or any collateral enforcement; establishing that the Oklahoma Registered Poultry Feeding Operations Act grants statutory immunity from nuisance liability.”
While poultry operations grow hundreds of thousands of chickens provided by and shipped back to corporate Arkansas processing companies, Farm Bureau can’t divide its membership by “little ag versus big ag,” Thompson said.
“This is just how modern agriculture works,” he said. “Many of our producers have got to contract with somebody. They can’t do it without a corporate partner.”
Thompson said the Frizzell decision “rattled” the industry and reflected a friendly climate to lawsuits despite data showing improved water quality in the Illinois River.
The idea that Farm Bureau or its members want to protect people who are bad actors or allow practices detrimental to the environment is insulting, he said.
HB 4118 signals corporate partners that “Oklahoma is still a place where contractors can grow and that we want it done the right way,” he said. “The way the climate is for lawsuits, they’ll take their business elsewhere, and our local producers have to make contracts with the rest of the agri-business chain.”
Lawsuits will continue
Some of Rep. Hardin’s northeast Oklahoma neighbors bristled when he heralded his bill as protection against frivolous lawsuits through state regulations. They say that weak rules and a lack of agency oversight forced them to file lawsuits.
Two suits filed by the Indian Environmental Law Center for several residents and the Spring Creek Association, one against the Oklahoma Water Resources Board and one against the Department of Agriculture, continue progressing slowly through the courts.
The City of Tulsa, Cherokee Nation, and several municipalities signed resolutions opposing HB 4118, specifically citing the potential to file lawsuits for relief in the future.
Delaware County landowner Eric Rusk is one of five clients who have filed suit against operators and the industry with Tulsa Attorney David Page. He is among several who say they are essentially trapped in their own homes and are now unable to sell due to unlivable conditions.
He stood on his porch, a little over 300 yards from a string of broiler chicken barns, and described the filth for his attorney, visiting microbiologist Valarie Harwood of the University of South Florida Department of Integrative Biology, and Tulsa environmental geologist and geochemist Bert Fisher.
He described how putrid dust chases him out of his yard, how prevailing winds dictate whether friends or family can visit or if barbecuing is possible, and how swarms of flies turn every surface black before green mold starts to grow.
Harwood is one of the pioneers behind source-tracking biology, which gained popular headlines during the COVID pandemic when news outlets began reporting municipal wastewater system testing that revealed the presence of diseases.
Long before COVID, Harwood and others developed procedures to identify pollution sources. The shorthand version is that science can examine a water sample or a swab off a surface and determine whether it contains the feces of cattle, geese, humans, chickens, or any elements considered natural in those surroundings.
Complaints aired
In Adair County, Clarence Manning said he’d filed 50 complaints with the Ag Department to no avail. At least 80 poultry houses stand within a mile of his home, the closest about 400 yards uphill to the south, perfectly aligned with prevailing winds.
“At night, I shine my flashlight up in the air, and it sparkles,” he told Harwood.
Her tests might tell him what’s in that sparkly air he’s breathing, what’s setting on surfaces, and what’s growing mold on everything he owns.
Six years ago, Leon and Tammy Scott told the Tulsa World they likely would sell their home, where only a southeast wind doesn’t carry poultry odors and dust their way.
Harwood eyed their garage, boats, and home, constantly coated with what the Scotts call “chicken dust.” She also eyed a bathtub filled with stained water, which they were using to flush toilets because the county water system had been down for weeks.
“We used just to use our well. It was crystal clear until it went bad after the farms came in,” Leon Scott said. “We had to connect to county water.”
They’ve been picking up bottled water at the community fire department while they wait for county services to resume.
Page said he won’t let HB 4118 stop his lawsuits if it passes. He believes it is an unconstitutional infringement on private property rights.
“It would create a defense the poultry companies will use to defend their activities,” Page said. “We will continue to argue and take them to court until we find a fair-minded judge. It’s my opinion that the bill is solidly unconstitutional. They’re trying to take away Oklahoman’s private property rights and give our land away to a bunch of big poultry companies.”
When told of these examples, Thompson said that, if true, the cases involved problems beyond the scope of HB 4118. Some other solutions might be available, and farming practices should generally not spill over onto neighboring properties.
He emphasized that HB 4118 and a companion bill that increases fines for “bad actors” are intended to incentivize operators to follow the rules set by the Ag Department.
Courts drive the future
Speaking to a Tahlequah audience after the debut of “Common Enemy,” a Humane Leauge documentary focused on the worst of confined feeding operations in Oklahoma, Save The Illinois River president Denise Deason-Toyne brought up HB 4118 and took the audience back to 2016.
She compared HB 4118 to State Question 777. Oklahomans killed that initiative, which would have installed strict challenges to any new regulations regarding agriculture.
“They called it ‘The Right to Farm,’ we all called it ‘The Right to Harm,’” she said. “This new bill is basically a reincarnation of that type of situation.”
Also speaking on the film debut panel, Edmondson added to the history lesson with insight on the 1991 Supreme Court decision Oklahoma won against Arkansas, the city of Fayetteville, and its weak wastewater treatment plant. That case set the precedent that neighboring states must honor the water quality standards of states downstream.
He said that while proponents of HB 4118 have touted improved water quality in the Illinois River, they have overstated the role of nutrient management plans and that the poultry industry remains one of the only industries that does not accept responsibility for disposing of its waste but passes it on to producers, haulers, and municipalities.
“When negotiations started some 30 years ago, we sat down with poultry and all the municipalities. We told them, ‘We’ve got this standard and don’t want to sue you like we did Fayetteville.’ We reached an agreement with the municipalities with an 8-year lead in time to upgrade.”
“I would credit the work those municipalities have done for most of the improvement in the quality of the Illinois River, and it came not at the expense of the polluters but at the expense of the taxpayers in those communities,” he said.
He said that a final outcome for the state’s 2005 lawsuit against the poultry industry remains the missing piece in courtroom negotiations and will set the way forward for Oklahoma and the agri-business chain.
