For nearly 20 years, there has been ongoing litigation of some sort between Oklahoma and Arkansas regarding the Illinois Water Rivershed. The most recent courtroom battle, State of Oklahoma v. Tyson Foods, Inc., has nearly come to a close – the parties have made their best arguments and the waiting game has begun as U.S. District Court Judge Gregory Frizzell contemplates a decision in the complicated case. As we patiently await a verdict, it’s interesting to consider the history of the previously fought battles over water and review the path the current case has taken.
The first case between the neighboring states that focused on water quality was Arkansas v. Oklahoma, decided in 1992. This case challenged whether discharge permits for a municipal sewage treatment facility in Northwest Arkansas were properly issued since the discharges would ultimately reach an Oklahoma river. After many appeals, the United States Supreme Court decided that the EPA had properly issued the permit to the Arkansas sewage treatment plant.
The second case between the two states was the 2003 case, City of Tusla v. Tyson Foods, Inc. The City of Tulsa filed suit against several large poultry companies, alleging that the companies’ growers had polluted the lakes used by the city for its water supply. Initially, the court found that poultry litter contained a hazardous substance, phosphate, which is regulated by several federal laws. The court’s ruling was vacated, however, after the parties to the lawsuit reached a settlement agreement.
The current case, State of Oklahoma v. Tyson Foods, Inc., again involves some of the nation’s largest poultry companies. The Oklahoma Attorney General’s Office filed the suit in 2005 against 14 poultry companies, alleging that the companies are responsible for the over-use of poultry litter as fertilizer in the Illinois River Watershed resulting in violations of federal environmental laws and several state laws.
Even before the trial officially started, both sides were trading jabs. At one point, poultry companies sponsored campaign ads that were critical of Oklahoma Attorney General Drew Edmondson. These ads were pulled prior to the election. The State of Oklahoma asked Judge Frizzell for an injunction that would stop the spread of poultry litter within the one million acre watershed. This request was denied. Later the poultry companies asked to have the case dismissed because the Cherokee Nation, which has water rights in the watershed, was not a part of the lawsuit. The case was not dismissed, but Judge Frizzell did rule that the State of Oklahoma could not seek nearly $600 million in monetary damages because it failed to properly include the Cherokee Nation.
After months of pre-trial motions between the parties, the case that was filed in 2005 finally went to trial in September 2009. During the four-month trial, controversy was easy to find. Both sides challenged everything from which reports could be entered as evidence to the qualifications of expert witnesses. Thousands of pages were entered into the official record, often resulting in frustration from Judge Frizzell.
At last both sides have rested their cases – the State of Oklahoma concluding their case on December 15, 2009, and the poultry companies concluding their defense on January 13, 2010. So now we wait for a decision that certainly won’t be the last part of this story. No matter the outcome, the unsuccessful party will appeal and plead their case at the next level. It seems that the disputes over water between Oklahoma and Arkansas could go on for another twenty years.
Shannon Mirus is a staff attorney at the National Agricultural Law Center in Fayetteville, Ark.
