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— A jury will decide whether Arkansas poultry companies violated Oklahoma’s public nuisance law, but the judge will rule on five other claims in the federal lawsuit.

U.S. District Judge Greg Frizzell last Wednesday rejected the poultry companies’ request for a bench trial on all six claims made by Oklahoma Attorney General Drew Edmondson. Edmondson accuses the companies of polluting the Illinois River watershed with bird manure.

“The state’s claim for civil penalties for violations (of Oklahoma state law) is legal in nature and the state has a constitutional right to a jury trail to determine whether defendants are liable on this claim,” Frizzle wrote in his decision.

Edmondson favored a jury trial.

While a jury will decide if the companies must pay civil penalties for violating Oklahoma’s public nuisance law, Frizzell will decide how much they pay - if anything. The maximum penalty is $10,000 per violation, but Edmondson has never said how many violations there are.

Edmondson, who filed a federal lawsuit against Springdale-based Tyson Foods and seven other companies in 2005, was unavailable for comment Thursday. Charlie Price, an Edmondson spokesman, said the state looks “forward to presenting our evidence to the judge and the jury.”

Tyson Foods spokesman Gary Mickelson said the defendants are preparing for the Sept. 21 trial.

“We respect the judge’s decision and look forward to finally having the opportunity to present the real facts, as opposed to Mr. Edmondson’s political rhetoric, both to a judge and jury,” Mickelson said. “We will explain how the poultry industry supports the lawful and responsible use of poultry litter as an organic fertilizer on farmland.”

Edmondson claims the companies are polluting the watershed by allowing farmers to spread manure on crops as fertilizer. The manure leaches into streams where it degrades water quality, Edmondson claims.

The defendants in the lawsuit are Tyson Foods; Simmons Foods of Siloam Springs;

Cargill, Inc., of Minneapolis; Cobb-Vantress, Inc., of Siloam Springs; George’s, Inc., of Springdale; Peterson Farms of Decatur; and Cal-Maine Foods, Inc., of Jackson, Miss.

A former defendant - Willow Brook Foods of Springfield, Mo. - paid $120,000 and promised not to operate in Oklahoma as part of a settlement.

Having a jury sit through what’s expected to be weeks of complicated, tedious testimony by expert witnesses will make the trial far longer than it would have been if Frizzell had kept the decision-making power on all matters, said Wes Doss, a Fayetteville attorney who’s not involved in the lawsuit.

“If I were the state of Oklahoma, I’d want a jury because the issue has a chance to inflame the jury,” Doss said.

Bob Balfe, a former U.S. attorney who’s now in private practice in Rogers, said juries tend to be more emotional than judges. For the jury’s benefit, Oklahoma’s attorneys may bring up issues of regionalism, suggesting out-of-state companies from Arkansas are polluting Oklahoma’s rivers, he said.

“Jurors are used to seeing cases on TV and a lot of drama, and it’s hard for them to disassociate their feelings about the lawyers and the participants and focus on the cold, hard facts of the case,” Balfe said.

“Judges are going to be more dispassionate. The impact of trying a case to a jury as opposed to a judge is you want to delve more into issues that will invoke an emotional part of the jury.”

News, Pages 3 on 10/07/2009

Print Headline: Poultry case will be heard by jury

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