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The State of Oklahoma and the Cherokee Nation of Oklahoma agree on procedure in poultry suit. 5/22/09
|Agreement in Oklahoma Poultry Lawsuit
TAHLEQUAH, Okla. – The Cherokee Nation and Oklahoma governments signed an agreement May 19 acknowledging
both parties’ interest in the Illinois River and assigning the state the right to prosecute tribal claims in a case against the
river’s alleged polluters.
In the case of Oklahoma v. Tyson Foods, Oklahoma Attorney General Drew Edmondson is suing Tyson Foods and other
poultry companies for allegedly polluting “the lands, water and other natural resources” located in and along the Illinois
River in the state.
In 2008, 13 defendants in the lawsuit filed a motion stating the suit ignores the rights and authority of the CN, which is not
a party in the case. The defendants argued the suit should be dismissed because the CN, not the state, owns the water
resources that are the case’s focus.
Edmondson called the motion a “legal gimmick” distracting from the issue of poultry litter polluting the river.
CN Attorney General Diane Hammons said the May 19 agreement represents the tribe’s authorization to the state to
proceed in the litigation without the CN entering as a party.
“Both the state and the Cherokee Nation are committed to the protection of the Illinois River Watershed and the longevity
of those resources for our citizens,” said Hammons, who along with Edmondson, signed the agreement.
The two parties also agreed that the “Cherokee Nation has substantial interests in lands, water and other natural
resources located within the Illinois River Watershed,” though the extent of those interests has not been fully decided.
“We are happy that the state acknowledges that we have an interest in these resources,” Hammons said.
The agreement does not however transfer any ownership interest in the water or any other natural resource in the
Edmondson and Hammons said it was not necessary for the court to resolve the “precise nature of each sovereign’s
interests” in the watershed’s resources to determine that Oklahoma has “sufficient interests” to prosecute the case, which
is set to begin in September.
“It is in the best interest of both sovereigns to avoid the unnecessary time and expense with such an exercise at the
present time,” the agreement states.
The accord also allows Oklahoma to confer with Hammons’ office regarding any court filings in the lawsuit. However, it
does not limit the state’s right to control the content of court filings in the case.
“It’s significant for the state to acknowledge the Cherokee Nation’s governmental rights, and it’s a good sign that both
governments can work together on this case,” Principal Chief Chad Smith said. “Neither the state nor the Nation wanted
the delay or additional expense that the addition of another party to the case would mean at this point in the litigation.”
In response, the defendants filed a notice on May 20 in the U.S. District Court for the Northern District of Oklahoma
stating the accord does not explain the legal implications of the provisions it contains. In the filing, defendants state the
court “need not decide whether the nation or the state is the proper plaintiff because the parties have agreed among
themselves that the state has standing.”
“…This attempt to achieve standing by contract has substantial legal problems that have not been addressed for the
benefit of the court,” the May 20 notice states. “It may not be possible for a party to retroactively obtain standing for a
federal lawsuit, as the purported agreement attempts. Standing is determined at the time the action is filed. Although a
party must maintain standing throughout the litigation, it may not create standing later and apply it retroactively.”
The defendants argue further that Oklahoma law prescribes a process the state must follow when entering into
agreements with Indian tribes. The process includes a requirement that the governor or a designee negotiate and enter
into cooperative agreements on behalf of the state with federally recognized tribes.
Tyson Foods Media Relations Director Gary Mickelson said Edmondson does not have the authority to reach such an
agreement with the CN without approval of the state Legislature and the U.S. Department of Interior.
“It also fails to resolve the important question we raised in our motion over who owns the water resources that are the
focus of this case. We believe this issue must still be addressed by the federal court,” Mickelson said. “Mr. Edmondson
and his outside attorneys have known about the ownership issue for several years. However, until we filed our motion last
fall, they chose to ignore the rights of the Cherokee Nation in this litigation.”
In May, a federal appeals court rejected Edmondson’s bid to stop Oklahoma and Arkansas poultry growers from
spreading poultry waste in the watershed while the lawsuit makes its way through court.
The 10th U.S. Circuit Court of Appeals ruled a federal judge was within his discretion in denying the injunction and that
Oklahoma failed to link the poultry waste, which is used as fertilizer, to bacteria in the watershed.
The poultry industry has argued that cattle and human waste could also be causing elevated bacteria levels in the
watershed. Oklahoma argues it doesn’t have to prove contamination, only that 345,000 tons of poultry waste dumped
there annually “may” cause contamination.
The appellate court did not address the merits of the state’s pending lawsuit, only that Oklahoma had not proved
“irreparable harm” in asking to block poultry companies from dumping poultry waste.
State officials estimate the affect of untreated poultry waste in the watershed is equivalent to untreated human waste from
between 4.2 million and 10.7 million people.