TULSA — Defense attorneys on Thursday criticized Oklahoma for asking a federal judge to cut poultry manure’s use in the Illinois River watershed when the state has the ability to do it on its own but has not changed it.
Gary Weeks, who represents Springdale-based George’s Inc., made an impassioned plea to U.S. District Judge Greg Frizzell during arguments that closed a 50-day trial to determine if six poultry companies have polluted the watershed with the manure.
Weeks told the judge it’swrong for Oklahoma Attorney General Drew Edmondson to ask Frizzell to limit the manure’s use to fields where phosphorus is below 65 pounds per acre across the watershed that includes portions of Oklahoma and Northwest Arkansas.
Neither the Oklahoma Legislature nor its state agencies have been asked to implement the 65-pound limit. The current Oklahoma limit is 300 pounds per acre.
“One ought to master themselves before they look to master others,” Weeks said. “Your honor, it’s just not right.”
Frizzell seemed to recognize the difficulty he faced early on Thursday,describing to a state attorney his discomfort with putting such a tight limit on the manure’s use when the state legislature and the Oklahoma Department of Agriculture, Food and Forestry have refused.
“We’ve got the 300 standard here,” Frizzell said. “You may disagree with it, but that’s what we’ve got.
“What’s this court to do? With the bang of my gavel, make the law go away?”
Bob Nance, an attorney representing Oklahoma, told Frizzell that the “political situation” would make it difficult for the Oklahoma Legislature to be asked to pass such a law. He said passing a law in Oklahoma wouldn’t affect the manure’s use in Arkansas, and that’s why it’s appropriate for the federal court to takeaction.
“If you are trying to remedy their unreasonable behavior, what do you do?” Nance told Frizzell. “That’s 65.”
Mark Hopson, a Tyson Foods Inc. attorney, said Oklahoma made a conscious decision to ask Frizzell to write an injunction rather than the legislature to implement a new manure-spreading limit.
“They’d rather you takethe political heat,” Hopson said.
John Tucker, a Tulsa attorney who represents Cargill, said Oklahoma wants Frizzell to create “a parallel universe” to determine whether farmers and the companies are following the 65 pounds limit and is wrong in its claim that Arkansas doesn’t regulate its poultry farmers adequately.
“Oklahomacontends Arkansas is a black hole filled with hillbillies and Jed Clampetts,” Tucker said, referring to the lead character of the 1962-71 TV comedy series. “Perhaps it’s Oklahoma that’s out of step and not Arkansas.”
Frizzell didn’t say when he’ll decide whether Springdale-based Tyson Foods and the five other defendants caused pollution that degraded Lake Tenkiller, the Illinois River that feeds it, and the river’s tributaries. The state claims manure’s use as fertilizer by poultry farmers is the responsibility of the companies, and the phosphorus in the manure is harming waterquality.
“It was and can be a beautiful river again, but it’s not today,” said Louis Bullock, an attorney for the state. “It’s a green slimy mess today.
“The lake itself has turned green.”
Bullock told Frizzell that because the companies knew it was likely the manure would pollute the river, the impact was intentional. Tyson Foodsis the biggest of the six companies, producing about 62 percent of all the poultry in the watershed. Those 703 million chickensproduced by Tyson between 2000-2007 generated the majority of the 354,000 annual tons of poultry waste in the watershed, Bullock said.
“They don’t have the purpose of polluting water, but you act with an intent when you know what will result from your conduct,” Bullock said.
“They should know better and do know better.”
Hopson delivered the companies’ main defense argument, saying the state failed to prove there’s any injury to the watershed.He called it “virtually nonexistent.”
He also argued Oklahoma failed to prove poultry manure moved from fields to the water and polluted it. While the state did have water and edge-of-field samples showing phosphorus, the state “failed to connect the dots” to show how the phosphorus was from manure that was spread on fields.
Hopson also said there are many other sources of phosphorus in the watershed. Those include city sewer plants, cattle and septic tanks.
“It’s just unrealistic to ignore the impact of 200,000 cattle,” Hopson told Frizzell.
Hopson also questioned the “serious credibility issues” with one of the state’s key expert witnesses, Bernard Engel. The Purdue University professor was responsible for modeling the watershed to evaluate how phosphorus moved from fields to streams, but Hopson said he was sloppy, assumed too much and used a computer system incapable of modeling such a large watershed.
Edmondson filed his federal lawsuit against the companies in 2005.
The Illinois River’s headwaters are near the Washington County town of Hogeye, and the 99-mile river trickles into Benton County before flowing toward Oklahoma. In Oklahoma, the Illinois is a state-designated “scenic river,” giving it the state’s highest environmental protections.
Hopson suggested Frizzell has his work cut out for him in evaluating the piles of paperwork and evidence presented in the case. Oklahoma’s case is weak, he said.
“Even the best trufflefinding pig in the world is not going to be able to sort this evidence,” Hopson said.
News, Pages 3 on 02/24/2010