Poultry companies reply to Oklahoma AG in Illinois River case

Boxes of chicks are prepared to be handed off to Cooperative Extension agents from 66 of the state's 75 counties as part of the annual Poultry Chain program in April 2022. University of Arkansas System Division of Agriculture photo. - Submitted photo

None of the Oklahoma attorney general's arguments against dismissing a federal court judgment against Arkansas poultry companies makes the evidence in the case newer, and no verdict given 13 years after the trial ended should stand, those poultry companies argued Friday.

"Had the state's lawyers presented themselves for trial in September 2009 with a case featuring no evidence more recent than 1996, the court would have tossed them out on their collective ear," poultry company attorneys said in a brief filed Friday. The 11 poultry companies made their motion to dismiss the case on Oct. 26. The Oklahoma attorney general's office, which brought the case, replied to the dismissal motion on Nov. 10.

The Illinois River's headwaters lie in Northwest Arkansas. From there the river flows into Oklahoma. Oklahoma brought the suit against poultry producers in 2005, contending litter from poultry growers polluted the scenic river. The case went to trial in U.S. District Court in Tulsa, Okla. That trial ended in September 2009. Thirteen years and more than three months passed before U.S. District Judge Gregory K. Frizzell issued his ruling against the poultry companies on Jan. 18 of this year, ruling against the poultry companies.

The Oklahoma attorney general argued the passage of time did not undo the damage done by the runoff from poultry litter applied as fertilizer, as cited in the verdict. "There have been no intervening circumstances that moot this case; mere passage of time does not make the case moot," according to the office's Nov. 10 response to the motion to dismiss. "The defendants have not alleged that they have changed their poultry waste practices, or that they are planning on doing so."

But if damage continued and had not been reduced by extensive efforts in Arkansas, Oklahoma would have insisted the judge act in a timely manner, the poultry companies replied Friday.

"Oklahoma offers no explanation why it sat idly by for more than 13 years following the close of trial, neither asking the court to rule or reopen the record" to update the evidence, nor seeking court-ordered relief to reduce pollution pending a ruling, Friday's reply says. "... Nor does Oklahoma seriously dispute that the trial record is now stale or that a court abuses its discretion by granting prospective relief on a stale record."

"The court cannot find liability, enter judgment, and order prospective injunctive relief on a record more than 13 years old," the Friday filing says. Such a delay between the close of trial and a verdict is unprecedented in any federal or state court in the United States, the defendants argue.

No court date is yet set for a hearing on the dismissal motion, court records show. None of the case documents or statements made in hearings give the reason or reasons Frizzell took more than 13 years to give a ruling.

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The poultry companies reply to the Oklahoma attorney general: nwaonline.com/1120poultryreply/