Health Law

Chicken Industry Wins In 10th Circuit Over State of Oklahoma In "Poultry Litter" Case

By Marler Clark LLP

 In a 2-to-1 vote,  the United States Court of Appeals for the Tenth Circuit ruled against the State of Oklahoma in the ongoing "poultry litter" litigation.   The action continues a  federal trial  court's denial of Oklahoma's motion to stop Tyson Foods and other chicken companies from dumping "poultry litter" on land within the Illinois River Basin.

The Denver-based Appeals Court found Oklahoma did not prove poultry litter contamination was responsible for pollution of the river basin. So-called "poultry litter" covers everything from bird droppings to fertilizer and the bedding material used under the chicks. It also collects all sorts of bacteria, including E. coli, salmonella and campylobacter, all of which can lead to illness and even death in humans.

Oklahoma is suing the chicken industry under the federal Resource Conservation and Recovery Act (RCRA). The state sought a preliminary injunction to block dumping poultry litter on the one million acre basin. The Illinois River is popular for water recreation, and provides drinking water for local residents.

The Appeals Court ruling means it will be business as usual for the poultry industry in the IRB unless and until Oklahoma wins at the trial court level.   Its RCRA lawsuit could be heard later this year.   Had Oklahoma won this round in the Appeals Court, it would have been in a much stronger position going forward.

The Courthouse News Service reported:

"The district court, based on the evidence presented, simply could not establish a sufficient link between land-applied poultry litter and bacteria in the [watershed]," Judge Kelly wrote, "and therefore preliminary injunctive relief was not appropriate."

In a partial dissent, Judge Ebel said the lower court had applied an overly strict legal standard in evaluating the state's claims.  The state needed only to demonstrate a substantial risk of harm, not prove causation, Ebel argued.

While not in the Illinois River Basin, the Town of Locust Grove, OK has figured in the state's fight with the poultry industry.   Attorney General Drew Edmondson blames "poultry litter" for last year's outbreak of E. coli 0111 at the town's Country Cottage restaurant.  The state's official report on the outbreak, however, did not make such a connection.

The court's decision can be found here.

Full post as published by e.Coli Blog on May 18, 2009 (boomark / email).