The 10th Circuit Court of Appeals heard oral argument today on the State's appeal of Judge Gregory Frizzell's denial of a motion for preliminary injunction to prevent the further land application of poultry litter while the case winds its way toward a fall 2009 trial date. The State was seeking to halt land application of litter in the Illinois River Watershed (IRW) due to the "substantial and imminent" danger caused by bacteria originating from the chicken litter. The Poultry Companies defended on the grounds that the State could not scientifically identify poultry waste as a leading or primary cause of the high bacteria levels in the IRW, as other non-poultry areas of Oklahoma also have high bacteria levels, and the State's expert witnesses asserting a DNA link between the bacteria and poultry was not sufficiently reliable to be considered.
Thus, the issues for the appeals court to decide is whether Judge Frizzell, the trial judge, applied the correct legal standard - "substantial and imminent danger," whether the State met its burden of proof in meeting that standard, and whether the State's microbiological experts scientific method and study meets the evidentiary standard announced in Daubert v. Merrel Dow Pharmaceuticals, Inc., which grants to the court the "gate-keeping" function of what scientific evidence will be admitted before a jury or other trier of fact.
Today's hearing was held before a panel of experienced appellate judges - Judge Kelly, Judge Ebel, and Judge Murphy. This case was set on an expedited docket, and a decision could be published by May or June (my guess). The court inquired as to the trial date (September, 2009).
Most notably, there was some criticism by Judge Ebel of the lack of detail in Judge Frizzell's order. Appellate courts like to have the full context and as much detail as necessary in the legal reasoning behind the decision they are being asked to review. In this case, Judge Ebell referred to the lower court opinion as "inadequate," a rather "terse opinion," and that it left "nothing for the appellate court to go on."
The State's case was argued by Frederick Baker, a lawyer with the Motley Rice law firm of South Carolina. Attorney General Edmondson was at counsel table. The Poultry Defendants were represented by Jay Jorgenson, a lawyer with the Washington, D.C. firm of Sidley & Austin.
Mr. Baker, for the State of Oklahoma, explained to the Court that there was much more evidence in the record concerning the proliferation of poultry waste bacteria in the Illinois River than just the two expert witnesses testimony at issue under Daubert. Mr. Baker went on to explain that the federal RCRA statute governing hazardous and solid waste disposal does not require proof of a "sole source" of contamination to prove that improper disposal "may present a substantial and imminent danger." The Court inquired about the correct standard to be applied in a preliminary injunction case and whether issues concerning "balancing of the equities" - whether the alleged harm to the public must be weighed against the harm to the poultry growers and users of the chicken litter as fertilizer -- an issue not addressed in Judge Frizzell's ruling. At this point, it was suggested by the Court that the failure by the State to obtain a preliminary injunction at this time did not necessarily mean that it would not succeed upon the full trial of the case. This was a very important point that many in the media are missing. The further point is that the other part of the case surrounds the issue of nutrient overload caused by chicken waste that was not a part of the preliminary injunction at all.
The Poultry Defendants urged the lack of causation - the failure to absolutely link the bacteria in the IRW to poultry with appropriate scientific evidence and through a "fate and transport" study. This was an issue that caught Judge Kelly's attention. He wanted to know how the State could identify bacteria as belonging not just to chickens, but to the chickens raised by these Defendants. On rebuttal, it was pointed out that all of the chicken producers in the IRW are defendants, not just Tyson, but this is still appears to be an issue of concern for Judge Kelly.
As to the admissibility of the scientific studies of Dr. Harwood (identifying a poultry source of bacteria through DNA testing) and Dr. Olson (identifying a poultry source of bacteria through chemical changes in water), Judge Murphy raised the issue that no single Daubert factor is decisive, and that a new application of a standard methodology or scientific principle should not be disallowed on that basis alone or because it has not yet been published or subjected to peer review. (In asking the question, he was stating the State's argument for allowing this new scientific approach into evidence.
Mr. Jorgenson, on behalf of Tyson, raised the specter of Dr. Harwood's paper being rejected for publication by a scientific journal to the Court. (There was an article on this published in Tulsa World yesterday.)
There was some confusion exhibited about whether the State of Oklahoma actually issues permits for land application of chicken litter through the Dept of Agriculture or simply licenses chicken litter applicators and approves best management plans submitted by the growers. Again, this is a cause of concern because the appeals court is not seeing all of the issues in context.
In retrospect, as I was being interviewed by the Associated Press, it came clear to me that one point not made in the Briefs or in the oral argument was that the reason for the lawsuit, as opposed to simply enforcing Oklahoma laws against our Oklahoma growers, is that more than 2/3 of the poultry waste issue resides in Arkansas where our regulatory enforcement mechanisms would not work even assuming an aggressive enforcement attitude by our Dept of Agriculture.
Outlooks: The Court could remand (send back) the case to Judge Frizzell and request a more detailed opinion. The Court could review entire record and determine if Judge Frizzell was right or wrong and decide the case on the basis of the record presented. The preliminary injunction standards require: (I) that the state prove it will likely succeed on its lawsuit, (ii) that the failure to enjoin land application of litter will cause irreparable harm, (iii) that the balance of equities favors action now, and (iv) that it is in the public interest. Not issuing the injunction now, does not mean a death knell to the position that poultry waste applied to farmlands results in bacterial harm to the river that can endanger public health. That can still be pursued at the trial.
Sorry, I can't tell you where the appeals court will come down. Sometimes their questions seem to show them leaning one way or the other, but the final decision (the published opinion) appears quite different. I don't play slots and I don't predict appellate outcomes. Hope this is informative.