Companies Want Runoff Case Dismissed

LINCOLN, Neb. (DTN) -- Though a judge ordered food companies including Tyson Foods and Cargill to reduce poultry litter pollution into the Illinois River in northwest Arkansas and northeast Oklahoma back in January, those companies told the court last week too much time has passed and the court should dismiss any remaining claims for relief.

U.S. District Judge Gregory Frizzell for the Northern District of Oklahoma ruled in January 2023 that the state of Oklahoma and the companies were required to agree on a remedy to reduce the pollution or the court would decide how to do it.

Both sides in the case failed to reach an agreement, according to court documents, after the court sided with Oklahoma on trespassing and public nuisance claims.

In a motion to dismiss remaining claims for relief in the 18-year-old case, the companies argue any penalties or relief of any kind would be based on outdated information as to pollution levels and other watershed issues.

ASKED TO GO NO FURTHER

"This case should go no further," attorneys for Tyson and other food companies said last week in their motion to dismiss.

"The court's jurisdiction extends only to live cases and controversies. When no effectual relief can be entered on the record before the court, the dispute is moot and must be dismissed. In 2010, the state entreated the court to enter sweeping injunctive relief. But injunctive relief requires evidence of current and ongoing harm or impending injury, and the record before the court says nothing about whether injunctive relief is needed or justified in 2023 and beyond."

The motion said the record on the case does not "contain evidence" to support any award of penalties.

"In all events, ordering any remedy on this record, following so lengthy and prejudicial a delay, would violate defendants' due process rights," the motion said.

"Since 2010, federal and state courts have issued path-marking decisions addressing nuisance, trespass, causation and federal common law. Yet for all that time, despite claims of exigent environmental harm, the plaintiff, the State of Oklahoma, has sat idly by.

"Six Oklahoma attorneys general have held that office, but despite bearing the burden of proof, not one of them asked this court to rule or sought relief from the 10th Circuit. Instead, for 13 years, Oklahoma continued to issue nutrient-management plans to farmers and ranchers, instructing them to abide by these plans to avoid polluting the waters of the IRW."

COMPANIES SUED; AREA AFFECTED

Oklahoma sued Tyson Foods Inc.; Tyson Poultry Inc.; Tyson Chicken Inc.; Cobb-Vantress Inc.; Cal-Maine Foods Inc.; Cargill Inc.; Cargill Turkey Production LLC; George's Inc.; George's Farms Inc.; Peterson Farms Inc.; and Simmons Foods Inc.

According to Save The Illinois River Inc., as of 2019 there were 398 farms in the Arkansas counties of Benton and Washington, with the capacity to house more than 42 million birds at 1,835 poultry houses.

The Oklahoma counties of Adair, Cherokee and Delaware are in the watershed. As of 2018, poultry producers in those Oklahoma counties reported a licensed bird capacity of about 23.3 million at 1,054 poultry houses.

The original lawsuit filed by Drew Edmondson, who was then Oklahoma's Attorney General, alleged poultry producers in the watershed have been polluting the river with phosphorous and bacteria from waste generated from poultry and "applied to lands" in the watershed.

The case was filled with several twists and turns throughout the years. At one point the state of Arkansas had petitioned the Supreme Court to enjoin the lawsuit and that was rejected, so the state then unsuccessfully attempted to intervene in the case.

Read more on DTN:

"Food Cos. Ordered to Cut Poultry Runoff," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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