Personal Injury Law

Poultry Litter War Sees Battle In Denver; Remains Unsettled

Above the bench in the Tenth Circuit Courtroom in Denver where a battle was fought this week between the State of Oklahoma and the poultry industry are the words: 'Reason is the soul of all law.'

The 'poultry litter' war being waged by Oklahoma Attorney General Drew Edmondson and the mostly Arkansas-based chicken companies originally caught our attention because of its possible impact on campylobacter incidents in the Illinois River watershed.

It was also a colorful dispute at the trial court level. We got some laughs out of the quotes we were reading in the Arkansas Democrat Gazette, where reporter Robert J. Smith has a knack for covering mouthy attorneys.

AG Edmondson wanted Judge Greg Fizzell, the trial judge, to grant Oklahoma's motion for an emergency injunction to stop further application of poultry litter in the Illinois River watershed. Last September, however, Fizzell denied the injunction. He found that cattle and human waste (from failing septic systems) were contaminating the Illinois, but left the poultry litter pollution issue for trial.

When Fizzell ruled, the town of Locust Grove, OK was reeling from an outbreak of E coli 0111, a rare strain, that eventually killed a Pryor, OK man and sickened 313 others. About third of those ended up in area hospitals. All who became ill were linked to the popular Country Cottage restaurant.

After Oklahoma's Department of Health failed to link the 0111 to any food or water source, the state's investigation appeared to be at a dead-end. Then last month, AG Edmondson raised the possibility that the E. coli 0111 came from private well water contaminated by poultry litter.

Locust Grove is some distance from the Illinois River watershed, but the AG's fingering poultry litter brought the chicken companies down on him in the 0111 outbreak investigation.

All of which made for high drama in the Tenth Circuit Court of Appeals this week where AG Edmondson went seeking to over-turn Fizzell's denial of the emergency injunction.

Edmondson, a Democrat who may run for Governor of Oklahoma, in 2010, was there with attorney Fredrick Baker of the South Carolina-based law firm of Motley Rice.

Edmondson brought Motley Rice into the case because Oklahoma needed the resources they brought to the table, the AG told us. He says they've brought $24 million to the investigation to date. That's the only way Edmondson could effectively combat a courtroom full of chicken company attorneys and their PR men.

Edmondson knows that its an uphill battle to get an appellate court to overturn a trial court judge on a ruling out of a emergency or preliminary injunction hearing.

Oklahoma's problem is some of the original research commissioned for the trial court has yet to get through the 'peer-review' process to be published in an acceptable scientific journal. At the same time, the chicken attorneys can say no one has ever proven bacteria from poultry litter has ever made anyone sick.

Meanwhile, the AG forced the state Health Department to begin testing wells in the Locust Grove area, finding almost one in five is producing a "dangerous to humans" bacterial stew, but no finding yet of that always rare 0111.

And near the town of Hogeye, south of Fayetteville, the Illinois River begins in Arkansas. It becomes a scenic river in Oklahoma before being dammed to form Tenkiller Lake near Tahlequah. It empties into the Arkansas River.

Reason might mean doing something to clean it up. What the law requires is up to federal Judges Paul Kelly, David Ebel, and Michael Murphy.

Full post as published by Campylobacter Blog on March 13, 2009 (boomark / email).