OKLAHOMA CITY — On April 7, Oklahoma Attorney General Gentner Drummond called on a federal court to approve the settlements that he has secured from Tyson, Cargill, George’s Inc., and Peterson Farms, totaling at more than $31 million to clean up poultry litter from the Illinois River Watershed.
Currently, the settlements from those poultry companies have not been disputed, but the district court has yet to approve them or make any kind of ruling, so the entire case is in limbo.
“Cargill, George’s, Peterson Farms, and Tyson did the right thing. They came to the table and worked hard to reach agreements that will deliver real remediation to the Illinois River Watershed,” Drummond said in a statement. “The court owes it to the people of Oklahoma to approve these agreements without delay. The door to a fair and reasonable settlement remains open to the hold-out defendants, Simmons and Cal-Maine, as well. Their co-defendants found a path forward. They should too.”
Drummond also warned that every day without a ruling risks unravelling agreements that took months of good-faith negotiations to reach.
To protect these settlements and hopefully reach a ruling, Drummond filed in two federal courts on April 7. According to a release from Drummond’s team, in the U.S. District Court for the Northern District of Oklahoma, the State filed a notice urging the court to act on the pending settlements.
In the Tenth Circuit Court of Appeals, the State filed an opposition to a motion by the settling defendants that could, if granted broadly, allow Simmons and Cal-Maine to pause their own obligations in the case.
Additionally, Drummond warned the district court that if the settling defendants’ motion gives any kind of relief to Cal-Maine and Simmons, then the state of Oklahoma will be forced to withdraw all pending settlements, causing all defendants to be forced back into full, active litigation.
Unfortunately, despite Drummond’s hard work and fight for these settlements, on April 8, Oklahoma Northern District Court Judge Gregory K. Frizzell rejected the proposed settlement agreements. In early 2023, Frizzell originally ruled that the poultry companies were responsible for pollution in the Illinois River Watershed and must do their part to clean it up.
However, in the three years since that ruling, Oklahoma and the poultry companies have not been able to agree on any plan to start the clean-up process. The time it has taken to reach an agreement is one of the reasons why Judge Frizzell has rejected the settlements.
“Had the parties truly wished to reach a negotiated resolution of this matter without regard to outcome, such agreement could have been reached at any time in the nearly three years between the court’s Findings of Fact and Conclusions of Law and the Judgement,” Frizzell wrote in his rejection. “The parties’ failure to do so suggests they “roll[ed] the dice” and now seek to erase the result of the gamble through vacatur.”
Frizzell went on to add that the poultry companies are still breaking the law with their poultry waste management.
“Settling defendants have presented no evidence that run-off from land-applied poultry waste has ceased to be a source of phosphorous, causing injury to the IRW waters such that the objectives of the Judgment — abatement of the nuisance and compliance with federal law — have been achieved,” Frizzell added.
Frizzell gave multiple reasons to support his rejection, among which includes:
- The proposed judgments do not limit the application of poultry waste to reduce phosphorus runoff into the waters of the IRW. The proposed consent judgments simply do not prevent the application of poultry manure at rates exceeding agronomic need and would result in continuing phosphorus pollution.
- The proposed consent judgments are insufficient in duration. Based on testimony by Soil Scientist and Geomorphologist Gregory Scott, this court concluded that a thirty-year period of oversight by a special master is warranted. Yet, the proposed consent judgments would expire in only ten years with respect to Cargill and Peterson and would expire in only seven years with respect to George’s and Tyson. The parties cite no evidence suggesting that a seven (or ten) year term is sufficient to remediate phosphorus pollution in the waters of the IRW or ensure that no additional pollution occurs.
- The proposed “Monetary Relief Fund” contained in the proposed consent judgments would fail to provide sufficient monies to remediate the phosphorus pollution caused by the settling defendants.
- Under the proposed consent judgments, the defendants would pay no penalties to the Oklahoma Department of Environmental Quality Revolving Fund for their violations of Oklahoma’s Environmental Quality Code.
- The proposed consent judgments do not assure that the amount of poultry waste applied to the lands of the IRW will decrease.
- The proposed structure is unworkable. Defendants Cal-Maine and Simmons have not reached settlement agreements with the State in this matter.
- The proposed consent judgments would fail to adequately fund the duties of the special master contemplated by those agreements. Nor would the special master be adequately equipped to ensure the settling defendants’ compliance with the Litter Removal Commitments, as the proposed consent judgments include no staffing or administrative provisions.
- During the hearings on the motions, the State conceded that up to 50 percent of the settling defendants’ one-time payments into the Monetary Relief Fund could be expended on attorney’s fees and costs, rather than remediation. However, the fifty percent limitation is not included in any of the proposed consent judgments and, as a result, the State could devote more of the funds to attorney’s fees, rather than remediation or conservation.
- The proposed consent judgements contain releases of nonparty contract growers that are or were previously under contract with the settling defendants, but the releases exceed the scope of this litigation, and this court lacks the jurisdiction to include such releases in this case.
- Finally, although the court does not wish to discount the concerns of contact growers in the Illinois River Watershed, the asserted economic harm to the poultry industry and Oklahoma poultry farmers is too speculative to justify a finding of exceptional circumstances.
The Oklahoma Farm Bureau expressed their thoughts on the judge’s ruling:
“Oklahoma Farm Bureau members are greatly disappointed by the U.S. District Court’s rejection of the negotiated settlement between four poultry companies and the State of Oklahoma in the decades-old poultry lawsuit,” Oklahoma Farm Bureau President Stacy Simunek said in a statement. “The settlements that were negotiated in good faith and rejected by the court would have provided a workable path forward to ensure clean water in the watershed for all Oklahomans while providing a way for our contract poultry farmers to continue their critical job of raising food.
“Our members are frustrated that the court chose to ignore the years of dedicated effort the agriculture community has undertaken since the case was originally filed as ag producers have increased efficiency, followed state-approved nutrient management plans for poultry farms, implemented voluntary conservation methods and moved litter out of the watershed,” Simunek continued. “Without a settlement or a path forward, these family poultry producers stand to lose their poultry contracts, and many will soon face the difficult reality of declaring bankruptcy even though they have followed every applicable law and regulation. OKFB will continue to advocate for the family poultry producers who have done everything asked of them yet still find themselves in the crosshairs of a court judgment that is based on information that is now more than 20 years old.”
Now, after years of litigation and months of settlement negotiations, the Oklahoma poultry industry is back to square one on a resolution to this case. It leaves farmers and producers to wonder where they can go from here and how much longer they will have to wait for a conclusion to this decades-long case.
