OKLAHOMA CITY—Oklahoma Attorney General Drew Edmondson isn’t confident about his recent appeal against the poultry industry, but predicted Thursday he would win the larger case if it went to a jury trial.
“If I were confident that they would’ve studied the briefs, I’d be more confident in the outcome,” Edmondson said of the state’s argument on Wednesday before a three-judge panel at the 10th U.S. Circuit Court of Appeals in Denver. “But they did not increase my confidence by their questions. They questioned us pretty hard.”
Edmondson, who spoke to The Associated Press on Thursday, is seeking to overturn a federal judge’s refusal to stop the industry from spreading chicken waste in the Illinois River watershed.
He sued 13 Arkansas poultry companies in 2005, claiming that over-application of poultry litter in the watershed could be a danger to human health. While preparing for the pollution trial, Edmondson said he discovered contamination in the region and asked a judge for an injunction to stop the companies from spreading the waste.
In September, U.S. District Judge Gregory K. Frizzell refused to grant one, agreeing with the poultry industry that cattle and human waste also could be causing the contamination.
Key in the ruling was his rejection of research done by two of Oklahoma’s expert witnesses, labeling their testimony “not sufficiently reliable” because their work had not been peer-reviewed or published.
One witness, Valerie Harwood, a microbiologist and professor at the University of South Florida, testified at the injunction hearing that she used microbial source tracking to trace a path that contamination from poultry waste travels from fields into the watershed.
The second, geochemist Roger Olsen, testified that he had identified a poultry-specific biological “signature.”
Oklahoma appealed the ruling on the injunction and argued its case Wednesday. The larger pollution case is set to begin in September.
“I thought they sounded fairly skeptical,” Edmondson said. “I think they were very reluctant to reverse Judge Frizzell, and that’s probably appropriate that there should be a burden on whoever’s asking the 10th Circuit to reverse a federal court.”
Edmondson predicted the state would prevail in getting the research of Harwood and Olsen admitted at trial, and predicted a victory in the case.
“I believe we will win this at trial,” he said. “As we said in our briefs, I think Judge Frizzell was very concerned that there were other sources of pollution besides poultry and held us to a standard of proving that poultry was either the predominant source or the exclusive source, and that’s an incorrect standard.”
Edmondson said he was still open to settling the case before it goes to trial, but added that he would be seeking three things from the industry if that happened: injunctive relief to stop virtually all poultry litter application on land in the watershed, about $25 million to cover the cost of litigation and compensation to the state to reclaim the waters and prevent future damage. He said the payment of attorney fees would come out of the last component.
“Twenty-five million is cost,” he said. “That’s what we’re in the hole. So, it’s $25 million before anybody gets a dime.”
Gary Mickelson, a spokesman for Tyson Foods Inc., one of the companies Oklahoma is suing, said Thursday that “the court has instructed both sides not to comment publicly about settlement negotiations and, unlike the attorney general, we will respect those instructions.”
“However, we will say that Mr. Edmondson is not accurately representing what he has demanded in confidential settlement discussions,” he said.
