TULSA, Okla. (AP) — A federal judge on Tuesday blocked a request by the Cherokee Nation to intervene as a plaintiff in Oklahoma's water pollution lawsuit against 12 Arkansas poultry companies, clearing the way for the case to go to trial.
U.S. District Judge Gregory K. Frizzell explained in his bench ruling that if he allowed the tribe's request, it would likely trigger more than a four-month delay in the case, as new motions are filed with the court from both parties.
Frizzell, acknowledging there was "no perfect resolution to this issue," said the nation could still bring a separate lawsuit against the companies. Diane Hammons, Attorney General for the nation, said the tribe planned to appeal.
The jury trial is set to start Monday and could last two months. Pretrial settlement talks between Oklahoma and the industry appeared to have fizzled in recent weeks. The case has drawn national attention because it could lead to similar lawsuits across the country challenging how the poultry industry does business.
Oklahoma Attorney General Drew Edmondson sued the companies in 2005, claiming that the estimated 345,000 tons of chicken waste produced in the Illinois River watershed each year has wreaked environmental havoc on the land.
The state claims that runoff carries bacteria into lakes and streams and threatens the health of tens of thousands of people who boat and camp in the river valley every year.
The 1 million-acre watershed spans parts of Oklahoma and Arkansas and is dotted with 1,800 poultry houses, most in Arkansas. The area is among the largest in the U.S. for producing broilers, or birds raised for meat, and more than 55,000 people Oklahoma and Arkansas work for the industry.
"We agree with the court's decision, and look forward to presenting our case, which will outline how poultry farmers are acting responsibly in their use of poultry litter as a fertilizer on farmland," said Gary Mickelson, a spokesman for Tyson Foods Inc., one of the companies named in the lawsuit.
The other companies named in the lawsuit include Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George's Inc., George's Farms Inc., Peterson Farms Inc., Simmons Foods Inc. and Cal-Maine Farms Inc.
The Cherokee Nation, which claims more than 280,000 members and is based in the northeastern Oklahoma town of Tahlequah, filed a motion to intervene in the case after Frizzell ruled earlier this summer that Oklahoma could not win damages because the state failed to include the nation — whose lands lie within the watershed — as a plaintiff. The state had sought more than $611 million.
Oklahoma had asked to delay the case until January if the judge allowed the tribe to intervene.
In the hearing Tuesday, Hammons, the tribe's attorney general, told the judge that the nation never wanted to be a party in the case, but the poultry companies still inserted them into the legal fight.
Hammons said the tribe doesn't have the resources to bring a lawsuit of this size on its own, and other attorneys for the state argued Tuesday that joining the nation with Oklahoma would be the sensible and economical thing to do.
"The question is not who owns the water, it's a question of who owns the pollution," Hammons said.
Chad Smith, principal chief of the Cherokee Nation, attended part of the morning's hearing.
But attorneys for the poultry companies said it would be unprecedented, six days before the start of trial, to allow the tribe to intervene.
Jay Jorgensen, arguing for the companies, said dozens of witnesses had already cleared their schedules for the start next week's trial, with some already arriving in Tulsa.
"There's a million factors. We are three or four business days from the trial," he told the judge.
Frizzell appeared to foreshadow what would come of the long-running case.
"I'm the umpire trying to call fastballs coming in at 95 mph," he said, adding that the frame-by-frame "instant replay" would likely be done by the appeals court level.