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[Archived] Group threatens injunction against Oklahoma water pact

| Oklahoma Scenic Rivers Commission | April 21, 2017


Farmers want in on river talks
 
BY ROBERT J. SMITH ARKANSAS DEMOCRAT-GAZETTE
6/6/05


   Arkansas poultry companies and Oklahoma Attorney General Drew Edmondson will resume negotiations this week about how to curtail river pollution, and the Oklahoma Farm Bureau is contemplating its move in response. 


   Jeramy Rich, the bureau’s public policy director, said any agreement between Edmondson and the companies won’t mean much if poultry farmers, sewer plant operators and other phosphorus producers aren’t included in the talks. "We’d seek injunctive relief on behalf of growers who are our members if they aren’t at the table," Rich said. "Strike any deal you want, but if it’s punitive to growers, there’s going to be someone representing them legally, and that’s the Oklahoma Farm Bureau." 


   Phosphorus is a nutrient found in poultry litter. Farmers must regularly clear soiled litter from poultry houses and often spread it to fertilize their own hay fields or sell it to other farmers. Phosphorus that plants don’t use can be washed into streams, where it can fuel algae growth and degrade water quality. 


   Oklahoma has taken a stand to protect its scenic rivers and water sources, focusing on phosphorus contributed by poultry operations. But there are other sources of phosphorus, including commercial fertilizers and sewer plant discharges. 


   Edmondson’s prior threat to sue nine poultry companies and Rich’s threat to seek a court injunction hang over negotiations that start Tuesday in Tulsa. 


   Edmondson said he thinks a settlement is possible despite years of disagreement, threats and angry words between his office and poultry companies’ representatives. 


   "The stakes are very high for both sides," Edmondson said. "If we are forced to litigate, the state of Oklahoma could lose. But if we win, it could be very damaging to some of the companies. A settlement is in the interest of both sides." 


   Experts in environmental negotiation said all parties must be included for discussions to be fruitful. 


   "You’ve got to have all the interests represented," said E. Janice Summer, director of the Center for Public Policy Dispute Resolution at the University of Texas Law School in Austin. "That could be two or three people or it could be 27. You’ve got to cover somebody who could kill the deal later. 


   "The Oklahoma Farm Bureau being left out might not be a good sign." 
   
‘IT’S THEIR LAND’ 


   Poultry Partners Inc., a group founded March 31 that includes 350 farmers from Oklahoma and Arkansas, asked Edmondson on May 11 to allow farmers to be part of this week’s negotiations. 


   Edmondson has said he won’t allow the farmers or anyone else to join the talks with the poultry companies. But Keith Morgan, president of Poultry Partners, said an assistant attorney general told the farmers’ attorney on Thursday they could submit a position paper spelling out what poultry farmers want. 


   Assistant Attorney General Kelly Hunter-Birch talked with Poultry Partners’ attorney, Ken Williams of Tulsa, but didn’t agree to allow the position paper, said Charlie Price, an Edmondson spokesman. 


   Poultry Partners leaders met for four hours Thursday to write the position paper, said Washington County Judge Jerry Hunton, a poultry farmer who lives near Prairie Grove and is vice president of the group. 


   The key request in the paper is to have a seat at this week’s discussion. 


   The group also will make clear that it’s willing to live with litter-spreading limits put together by unbiased scientists but not those of "tree-hugging environmentalists," Hunton said. 


   "It would have been nicer to be invited to the table," Hunton said. 


   Bev Saunders, who raises chickens for Peterson Farms near Colcord, Okla., said farmers should be heard. 


   "The position of the farmers is they want to protect their livelihood, and they want to hear what’s said and decided upon," said Saunders, who helped organize Poultry Partners. 


   "We don’t believe a global solution is even possible without our input." 


   Janet Wilkerson, a vice president with Decatur-based Peterson Farms Inc. who speaks on behalf of other poultry companies in this week’s negotiations, said companies favor the inclusion of farmers and others. 


   "The issue really comes down to private land and private property, and they need to be at the table," Wilkerson said. 


   "It’s their land we are talking about." 


   Oklahoma approved a phosphorus limit in 2002 for the state’s six scenic waterways: the Illinois River, Flint Creek, Lee Creek, Little Lee Creek, Barren Fork Creek and the Upper Mountain Fork River. 


   Arkansas is required to meet the limit — 0.037 milligrams of phosphorus per liter of water — in the four streams that have headwaters in Arkansas before flowing west into Oklahoma. Arkansas officials have described the numeric goal as unachievable, particularly in the Illinois River, which drains large sections of fast-growing Benton and Washington counties in Northwest Arkansas. 


   There’s a history of lawsuits between the poultry companies and Oklahoma entities. 


   In 2001, the Tulsa Metropolitan Utility Authority sued six poultry companies and Decatur for contributing phosphorus to creeks in the Eucha-Spavinaw watershed, which includes part of western Benton County. Tulsa gets its drinking water from the watershed. 


   The companies and Decatur settled the lawsuit in 2003 for $7.5 million. 


   Under the agreement, the companies paid the money and poultry farmers in the Eucha-Spavinaw watershed had to reduce the amount of litter spread on their land. 


   In the settlement, Decatur agreed to reduce its phosphorus discharge to 1 milligram of phosphorus per liter of water by January 2006. 


   Saunders said farmers disliked the agreement and think it hurt their operations. 


   "We don’t want to be left out this time around," she said. 


   Edmondson in 2002 threatened to sue nine poultry companies operating in Arkansas, saying companies are polluting streams. Earlier this year, Edmondson notified the poultry companies that he filed a required 90-day federal lawsuit notice. 


   The March 9 notice went to Peterson Farms, Tyson Foods Inc. of Springdale, Simmons Foods Inc. of Siloam Springs, George’s Inc. of Springdale; Cobb-Vantress Inc. of Siloam Springs; Willow Brook Foods of Springfield, Mo.; Cal-Maine Farms of Jackson, Miss.; Aviagen Inc. of Huntsville, Ala.; and Cargill Inc. of Minneapolis. 


   Edmondson in his notice accused the companies of violating the federal Solid Waste Disposal Act in their handling of litter from poultry houses. 


   The most recent rift between Edmondson’s office and officials in Arkansas occurred in May, when Washington County workers found water quality monitoring devices in several streams. 


   A spokesman for Edmondson said the devices were taking samples in preparation for a lawsuit. 


   Hunton fumed, saying Edmondson should have sought permission before placing the devices. 


   Edmondson responded that the private company working for his office should have sought permission. 


   "As far as the public sites, Arkansas is not North Korea," Edmondson said. "People have a right to travel through the state without seeking the permission of the county judge to go on public land. 


   "I’m not surprised by anything anymore. It was much ado about nothing. When I found out the county judge was a Simmons contract grower, I wasn’t surprised." 


   Hunton said his connection to the poultry industry shouldn’t matter. 


   The water monitoring devices remain in use. 


   "If I was just a disgruntled poultry grower, I would have just gone out and picked those suckers up," Hunton said. 


   "But I’m interested in the science." 


INVOLVING ALL STAKEHOLDERS 


   Experts in environmental negotiation said there’s reason to believe Edmondson and the poultry companies can reach a deal, even if it’s not accomplished this week. 


   The threat of a lawsuit often keeps sides talking, they said. 


   "It doesn’t hurt to have it pending," Summer said. 


   Involvement of a mediator — retired federal judge Thomas R. Brett of Tulsa — is a hopeful sign an agreement can be reached, they said. 


   "That’s huge that they have a mediator," said Kirk Emerson, director of the U.S. Institute of Environmental Conflict Resolution in Tucson, Ariz. The organization, which hasn’t been involved in the Arkansas-Oklahoma phosphorus issues, receives federal funding to help negotiate settlements between federal agencies and individuals, environmental groups and government entities. 


   "There’s a lot of environmental litigation that doesn’t satisfy any of the parties, but there’s a lot more to be gained by working collaboratively early on before it ends up in court," Emerson said. 


   A good mediator should be able to keep the issue focused and help the parties set aside past squabbles, said Weldon Schieffer, program manager for the Institute for Issue Management and Alternative Dispute Resolution at Oklahoma State University in Stillwater. 


   "The subject should be the water," Schieffer said. 


   "It shouldn’t be whether the legal issues prevail over another set of issues because there will always be another legal goaround. 


   "These kinds of issues are so big and complex that they keep coming. A process that eliminates people for a dialogue, like a courtroom often does, leaves stakeholders to get interested later."