Oklahoma House OKs bill to shield poultry growers as state attorney general pursues penalties against Arkansas companies

Environmental group leader cries foul

Chickens are shown in a Farmington chicken house in this September 2008 file photo. (Arkansas Democrat-Gazette file photo)
Chickens are shown in a Farmington chicken house in this September 2008 file photo. (Arkansas Democrat-Gazette file photo)

A bill to exempt Oklahoma poultry growers from environmental lawsuits such as the one Oklahoma recently won against poultry companies in Arkansas passed the Sooner state's House of Representatives last week.

House Bill 4118 passed 68-28 Monday. The bill states: "Land application of poultry litter in compliance with a current nutrient management plan shall not be the basis for criminal or civil liability in Oklahoma," among other provisions.

Oklahoma's attorney general filed suit in federal court in 2005 against 11 Arkansas poultry companies for polluting the Illinois River by their growers' land application -- the use of poultry litter as fertilizer for pastures. The river's headwaters lie in Northwest Arkansas.

The Arkansas defendants argued their growers implemented nutrient management plans -- state-approved practices of applying fertilizer to minimize the runoff of phosphorus and other pollutants. The companies took other measures, including shipping tons of litter out of the Illinois River watershed, according to court documents.

U.S. District Judge Gregory K. Frizzell ruled against the poultry companies, but the ruling did not end the lawsuit. The case moved to the penalty phase.

Meanwhile, the defendants filed to dismiss the case, citing the 13-year gap between the end of the trial in September 2009 and the verdict against them in January 2023. Such a long delay between the close of trial and a verdict is unprecedented in any federal or state court in the United States, the defendants argue in pending motions.

The Oklahoma Attorney General's Office had no comment on the pending legislation, citing the ongoing lawsuit. The defendant poultry companies also had no comment.

The Oklahoma Farm Bureau Federation, a lobby for rural residents, sought the legislation in large part because of Frizzell's ruling, said Steve Thompson, federation vice president of public policy.

"There was other litigation we thought was unfair and illegitimate where people were being sued for things outside their control," Thompson said in a phone interview Thursday. "But then there was this ruling, which was just ridiculous."

"We believe that if you're following the law, you should not be sued," Thompson said.

The Oklahoma Legislature can only make law for Oklahoma, Thompson said, so any protection it could offer could not be extended to Arkansas. Growers in northeast Oklahoma who would be protected by the House bill if it becomes law are growers for the Arkansas defendants, he said.

"The Attorney General's Office ran up $24 million in legal bills pursuing that case," Thompson said. "It's not done anything for water quality."

The science of protecting water quality has advanced a great deal since Oklahoma filed suit against Arkansas poultry companies in 2005, said state Sen. Brent Howard, R-Altus. Howard is Senate sponsor of HB 4118 and an attorney. The bill would protect only the poultry growers who scrupulously follow their state-approved management plans, he said. A poultry grower who violates the plan would still be liable, he said.

The law would have no effect on the federal case against the Arkansas growers, Howard said.

"It's not within our ability to change the past," he said in a phone interview Thursday. "We're looking forward."

Howard estimated the bill's chances of becoming law as "fair to good," he said. The bill had not been assigned to a Senate committee as of Friday.

Rep. David Hardin, R-Stilwell, confirmed he introduced the bill as written by the Oklahoma Farm Bureau Federation.

"There's been a lot of frivolous lawsuits against poultry growers," he said in in a phone interview Thursday.

Both Hardin and Howard said up-to-date management plans would protect water quality, and any flaws in those plans can be fixed if they arise.

"Any changes we need to make can probably be done by regulation, not by legislation," Hardin said.

Denise Deason-Toyne, president of the Save the Illinois River environmental group of Tahlequah, Okla., said the bill would make it impossible to seek damages against a poultry grower who pollutes so long as the grower involved stuck to a state-approved management plan.

"If you have a bunch of poultry houses right next to you and waste happens to seep into your well, the grower has immunity," she said Wednesday.

"It's an asinine, reprehensible thing," Deason-Toyne said of the bill.

If passed, HB 4118 sacrifices the rights of other landowners while protecting poultry growers, she said. The bill will face opposition in the Senate and could face a state constitutional court challenge if it becomes law, she said.

"He's trying to do what his constituents in Adair County want," Deason-Toyne said of Hardin. "I understand that. But this is blanket immunity. He's pandering to his constituents."

Hardin said the bill would protect poultry growers, "but the state of Oklahoma would be wide open" to court action if it wrote inadequate regulations and approved management plans that did not work.

"The plans work," he said. "Water quality in the state is improving every year" thanks to adoption of such plans.

"You don't have to take my word for it. Talk to the conservation districts" about improvement in water quality over the years after management plans are in place, Hardin said. "We have the evidence. We all have the same goal: safe, clear water."

"I understand their passion for the environment, but people need to read the bill and come to their own conclusions," Hardin said.

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On the web

Oklahoma House Bill 4118's latest version: nwaonline.com/225exempt/