Mention an outdoor getaway in Oklahoma, and more often than not, recreation on the Illinois River or Lake Tenkiller — described by The Oklahoman in 1974 as “the most beautiful waterway in the state” — probably tops most lists.

But keeping that waterway beautiful has been — and continues to be — a protracted and frustrating legal process.

And while poultry companies were found liable 11 months ago for polluting the vast, twostate Illinois River Watershed, remedies to the state ordered in the federal lawsuit judgment are now 10 months past due.

And the poultry companies, including processing giant Tyson Foods, are now trying to get the judgment dismissed, which would negate their liability and any requirement for relief to the state and the 25,000-square-mile watershed.

While poultry companies would like to avoid any culpability for increased levels of nitrogen, phosphorus and even E. Coli in waterways within the watershed, the state is pressing for accountability — if nothing more than the courts now imposing stringent pollution controls.

Now in its 23rd year since the state first began its pursuit of reform as well as a resolution, is it now more likely that stall tactics and litigious delays by the poultry industry and its allies have taken their toll on efforts to return the Illinois River and Lake Tenkiller to their oncepristine condition?

How it all started

While chicken farms in northeastern Oklahoma and northwestern Arkansas are not new to the watershed area, raising poultry flourished in the 1990s into the 2000s, thanks to burgeoning production contracts between local farms and companies like Tyson Foods and Simmons Foods.

But the increased chicken population and newfound profits came at a cost: Lots and lots of chicken litter produced on the farms and used by area crop farmers as fertilizer, creating pollutants that seep into the groundwater.

That’s when residents near Lake Tenkiller and the Illinois River started noticing the once-clear waters were no longer so clear.

Importantly, those scenic waterways are the source for numerous utility companies providing drinking water to the area. But runoff from chicken farms was believed to increase pollution, which increased water treatment costs.

The same pollution has occurred for homes with groundwater wells.

That’s when Oklahoma Attorney General Drew Edmondson launched the state’s push in 2001 to reduce water pollution and hold the growing poultry industry accountable.

But negotiations were laborious and fruitless. Early talks included mostly disingenuous settlement proposals by poultry companies the state could not reasonably accept.

Meanwhile, the growing pollution problem continued toward an irreversible tipping point, despite Edmondson’s urgent calls to preserve clean water.

And the problem has not gotten any better. The state chicken population has more than doubled to more than 200 million, according to the Oklahoma Department of Agriculture.

By 2004, Tyson Foods had submitted a settlement offer characterized as addressing the state’s concerns about phosphorus, but the companies were still unwilling to accept the state’s terms regarding waste management.

While a subsequent settlement proposal by Tyson agreed to cap phosphorus levels in fertilizer application, the amount was still almost twice as high as the peracre requirement the state would accept.

Just as important in the early negotiations was the financial compensation the state expected from the companies in fines and lake restoration costs (calculated in 2002 at $23.3 million) along with rehabilitation of scenic river watersheds (projected at about $70 million).

The court of public opinion

With Edmondson and poultry companies negotiating, Oklahoma Farm Bureau, the state’s largest agriculture lobbying organization, wanted to be included in the fray.

When Edmondson, a Democrat, said no, OFB turned to the court of public opinion, running commercials and ads criticizing the state’s pursuits against the poultry industry, and claiming any agreement would negatively impact the livelihood of local chicken farmers. In addition, supporters were urged to air their grievances with state legislators and the state attorney general’s office.

The Oklahoma Farm Bureau, which receives financial support from poultry companies, perpetuated claims that Edmondson was targeting small operations rather than the large poultry corporations. In addition, the OFB likened the fate of poultry farmers to that of the 1990s’ tobacco industry, which settled for billions of dollars in state lawsuits, characterizing Edmondson as a money-grubber and political opportunist.

According to recent reporting by Investigate Midwest (www.investigatemidwest. org), an independent and nonprofit newsroom, current leaders with the OFB defend the organization’s pursuits from almost 20 years ago as an effort to protect “our members against government overreach and advocating for a regulatory process that is fair, transparent and fact-based,” said OFB spokesperson Rachel Havens.

Havens also maintains that water quality in the Illinois River Watershed has consistently improved over the last two decades, “thanks in large part to the voluntary conservation efforts of Oklahoma poultry producers.”

While phosphorus rates have declined in some parts of the Illinois River Watershed during the past 20 years, a report by Save the Illinois River, Inc., showed rates at more than twice the state’s limit for scenic rivers.

Investigate Midwest, which serves the public interest by exposing dangerous and costly practices of influential agricultural corporations and institutions through in-depth and data-driven investigative journalism, gave Tyson and Simmons an opportunity to comment on the lawsuit. Those requests were declined and directed to the Poultry Federation, an advocacy group with offices in Oklahoma and Arkansas.

“Oklahoma’s farmers and ranchers, and the protein industry that partners with them to deliver affordable food to America, have consistently complied with and supported the development of the nutrient management regulations that have been in place for decades,” Marvin Childers, president of the Poultry Federation, told Investigate Midwest in an emailed statement. “The companies targeted by this lawsuit, filed more than 18 years ago, will continue to drive adherence to regulatory programs with nutrient plans written by experts, ensure the protection of clean water for generations to come, and support the ability of farmers to feed the nation while protecting their livelihoods and their communities.”

Proceedings take a twist

Eighteen years after negotiations were severed without resolution, the state and poultry companies resumed talks in 2023 following a U.S. district judge’s ruling in the state’s favor. But no agreement was reached during the eight weeks set aside for the parties to approve a remedy.

Instead, for those who thought the proceedings couldn’t get any weirder, Tyson et al. countered with a motion seeking to dismiss the lawsuit, despite the ruling from almost a year ago.

What is the litigants’ justification?

If the watershed was in such peril and the pollution so devastating, why had the state not pushed more aggressively for a court ruling?

“Six Oklahoma Attorneys General have held that office (since Edmondson), but despite bearing the burden of proof, not one of them asked this court to rule or sought relief from the Tenth Circuit,” Tyson’s attorney wrote in the motion to dismiss, Investigate Midwest reported.

But only four of those six subsequent AGs served long enough to advance a court decision.

The latest, Gentner Drummond, was in the state’s top law enforcement chair when U.S. District Judge Gregory Frizzell made his ruling on Feb. 22, 2023.

In Frizzell’s decision, the poultry companies accused in a long-running federal lawsuit of polluting the Illinois River watershed were directed to negotiate an agreement with the state regarding remedies to be imposed, or the task would fall to Frizzell to render a judgment on remedies.

The long-standing lawsuit, originally filed in 2005 by Edmondson against 14 poultry companies operating within the watershed, led to a lengthy trial 13 years ago, in which it was alleged that overuse of poultry waste (commonly referred to as litter) as crop fertilizer had polluted the watershed.

In his ruling, Frizzell determined that the poultry companies had “unreasonably interfered with the public’s right to the use and enjoyment of the waters” in Oklahoma, particularly the Illinois River watershed and Lake Tenkiller.

Litter ‘is a major contributor’

Frizzell’s ruling said the state had established its case regarding excess phosphorus in watershed waters, which is alleged to have leached into nearby streams due to over application of fertilizer on lands within the 1 millionacre watershed, usually in close proximity to poultry farms. The judge found compelling the state’s allegation that poultry waste generated by poultry farmers was the source of the phosphorus, and that the environmental damage to watershed waters was inextricably tied to poultry litter.

In his more than 200page report, Frizzell wrote “it is clear that poultry waste is a major contributor to the levels of phosphorus in the water of the [watershed],” and that the poultry companies “have done little — if anything — to provide for or ensure appropriate handling or management of the poultry waste generated by their birds at their growers houses.”

While 14 poultry companies were defendants in the original lawsuit in 2005, the number of defendants was subsequently narrowed to 11. Those remaining defendants include Tyson Foods, Tyson Poultry, Tyson Chicken, Cobb-Vantress, Cal-Maine Foods, Cargill, Cargill Turkey Production, George’s, George’s Farms, Peterson Farms and Simmons Foods.

When Frizzell’s ruling was handed down, Drummond lauded the decision as “a great and historic day for Oklahoma.”

“While this decision has been a long time coming, it is important to note that in the intervening years since the filing of the suit, the poultry industry has made, or is willing to make, strong improvements in waste disposal to ameliorate the extent of the problem,” Drummond said in February 2023. “Oklahoma has amazing natural resources that deserve our vigilant protection. We will thoroughly review the judge’s decision and determine the appropriate path forward.”

While Edmondson was elated by the finding, he warned that any improvements in waste disposal by poultry companies are voluntary, and could end without notice.

Frizzell found in favor of the state on trespassing and public nuisance- related claims, and ordered the parties to meet and attempt to reach an agreement regarding remedies. If they could not reach an agreement, Frizzell will render a judgment on remedies, which could include injunctions, significant penalties and even banning chickens in the watershed.

In addition, the state also wants to require poultry companies to remediate the watershed, to pay to investigate remedial actions regarding the effects of poultry litter application and to pay for implementing remedial actions.

Why has it taken so long?

Of the six attorneys general that followed Edmondson, Scott Pruitt may have been in the best position to push for a ruling, serving as AG for six years. But Pruitt received more than $40,000 in donations from poultry companies named in the lawsuit, according to FollowTheMoney. com.

In addition, Pruitt, a Republican, publicly criticized the lawsuit after being elected, and said in 2015 that “regulation through litigation is wrong in my view.”

According to Investigate Midwest’s reporting, the state’s rebuttal to Tyson’s motion to dismiss contends that the length of time since the trial concluded shouldn’t change anything, especially since the poultry companies have not demonstrated any intention of discontinuing its waste practices that pollute the watershed.

Additionally, Drummond wants the judge to appoint a “master” to oversee pollution remediation throughout the watershed.

But despite the ruling in favor of the state, the poultry companies continue to fight the lawsuit, and it may be only a matter of time before financial reparations are inevitable.

Before that happens, however, even Frizzell admits the likelihood of even more delays, including appeals to the U.S. Court of Appeals for the Tenth Circuit, where decisions can take several years.

While Frizzell told parties in March 2023 that if the decision falls to him, he will do his best “to render a fair and just adjudication.” A proper ruling notwithstanding, no one should be surprised by “future litigation and money spent on attorneys rather than on remediation and the work that needs to be done,” Investigate Midwest reported Frizzell saying.

In its review of thousands of documents from the attorney general’s office, now kept in the Oklahoma State Archives, Investigate Midwest found documents from one of the longest legal cases in state history that show:

• Poultry companies publicly said they wanted to protect local farmers while at the same time blaming those farmers for litter pollution during private negotiations with the state.

• Before the state filed its lawsuit, the poultry companies made settlement offers they knew Edmondson’s office would not accept, prolonging negotiations while publicly stating the attorney general was unwilling to compromise.

• The Oklahoma Farm Bureau, financially backed by some poultry companies and with some of its leaders working as contract poultry farmers, attacked Edmondson over his pursuit of stricter standards on chicken litter removal.

Edmondson is no longer involved in the case and did not participate in last year’s settlement meetings, Investigate Midwest reported. But when negotiations ended without an agreement, the former attorney general said he wasn’t surprised based on his original work with the companies.

“I didn’t think they would agree to anything, just keep trying to delay this thing,” Edmondson said. “The (companies) aren’t going to agree to anything. They won’t change their ways unless they are paid to or made to.”