The Oklahoma State Attorney General sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the application and disposal of poultry litter in the watershed. State of Oklahoma v. Tyson Foods, Inc. et. al. Case No. 05-CV-329-GFK(PJC). The suit alleged claims under the Superfund and Hazardous Waste laws, and nuisance among other things.

Two weeks before trial, the Cherokee Nation moved to intervene in the case as a necessary party, but the Court wouldn’t allow it. The Court also decided that, although the damage claims would not be tried, the injunctive claims as well as the state penalty claims could be tried without the Cherokee Nation as a party in the suit. The reasoning was, in part, that the Cherokee Nation would be potentially prejudiced if the remaining damage claims went forward without it but would not be prejudiced if the remaining injunctive and state law penalty claims were tried. The Cherokee Nation filed an immediate appeal with the Tenth Circuit Court of Appeals but did not ask that the case be stayed pending the outcome of the appeal.

The case has now been tried to the Court. It began on September 24, 2009 and only this month concluded with closing arguments. The Court’s rulings in response to a Rule 52(c) motion during the trial include:

• Poultry litter is an agricultural commodity for which there is both a market and a market value in the watershed.
• Poultry litter has market value because it can be beneficially used as a fertilizer and soil amendment.
• The State of Oklahoma did not produce sufficient evidence to convince the Court that farmers, ranchers, or other applicators of poultry litter in the Illinois River Watershed applied poultry litter within the watershed solely to discard it.
• Under the applicable law and the evidence produced at trial, poultry litter is not a “solid waste” under RCRA and therefore the State’s RCRA claim was dismissed.

This ruling is very important because of the focus on nutrient and nonpoint source pollution issues under the Clean Water Act. According to EPA’s website, “[s]tates report that nonpoint source pollution is the leading remaining cause of water quality problems.” See here. In response, EPA has developed a “National Nutrient Strategy” and is focusing more on these issues than ever before.

By Linda C. Martin, lmartin@dsda.com