DENVER—A federal appeals court is weighing whether Oklahoma should be allowed to stop poultry companies in Oklahoma and Arkansas from spreading poultry waste in the Illinois River watershed, a closely watched case that could increase the cost of raising chickens.
A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver heard arguments in the case Wednesday.
The judges noted that Oklahoma hasn’t proved that bacteria in the 1,500-square-mile watershed are caused by poultry waste.
Attorney Fredrick Baker, representing Oklahoma, said the state doesn’t have to prove contamination, only that 345,000 tons of chicken waste dumped there annually “may” cause contamination.
A judge denied Oklahoma’s request for an injunction in September. The judge agreed with the poultry industry that cattle and human waste could also be causing the contamination. The request was part of a larger pending environmental lawsuit.
The 10th Circuit judges did not say when they will rule.
Oklahoma Attorney General Drew Edmondson is suing 13 Arkansas poultry companies over the effects of over-application of chicken waste in the watershed. Edmondson said the bacteria contamination was discovered as they prepared for the lawsuit, which was filed in 2005.
State officials estimate the application of untreated poultry waste in the watershed is the equivalent of untreated human waste from between 4.2 million and 10.7 million people.
“We’re dealing with a public health issue,” argued Baker to judges who expressed skepticism over the need for an immediate stop to poultry litter dumping over fears of bacteria contamination.
“Your burden is that it’s this poultry waste, not just some poultry waste, which is the question if you’re going to shut down these farms,” Judge Paul Kelly said during Wednesday’s arguments. “And that’s what you’re asking.”
Later he added: “It (the purported bacteria from litter) hadn’t done anything yet, and this has been going on for years.”
Middleman farmers and poultry growers in Oklahoma and Arkansas whose livelihoods are tied to the success of the industry have a major stake in the outcome.
If Oklahoma wins, it could pave the way for similar lawsuits that could require poultry companies to turn to more expensive and difficult ways of disposing of the waste.
Jay Jorgensen, arguing on behalf of the poultry companies, argued that the state is misplacing the burden on them, not those who apply the waste to their fields.
“Poultry litter has a value, it’s a commodity that’s bought and sold in this market,” Jorgensen argued. “And the state had admitted that they couldn’t find a single person anywhere who has become sick from the application of poultry litter. I submit that the state has failed to meet the applicable standard.”
Another component in the case is the science the state is using to prove the need for an injunction. In his September ruling, the lower court judge rejected the research of two of Oklahoma’s expert witnesses, labeling their testimony “not sufficiently reliable” because their work had not been peer-reviewed or published.
“You can have an expert who has a very sound scientific presentation that happens to be newly applied to this case,” Judge Michael Murphy said Wednesday.
Jorgensen asked the court to apply the peer-review standard in admitting scientific evidence.
Baker, the state’s attorney, argued that Oklahoma is not alone in arguing that poultry litter may be causing bacterial contamination. He cited federal agencies that hold the same view.
Companies named in Oklahoma’s 2005 pollution lawsuit include Tyson Foods Inc., Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George’s Inc., George’s Farms Inc., Peterson Farms Inc., Simmons Foods Inc., Cal-Maine Farms Inc. and Willow Brook Foods Inc.
About 1,850 poultry producers operate in Illinois River watershed, with about 360 on the Oklahoma side. Ed Fite, administrator for Oklahoma Scenic Rivers Commission, said after the hearing that the area in northeastern Oklahoma and northwestern Arkansas has tripled in population to 600,000 in the past 25 years.
