NORTHWEST ARKANSAS Focus : Sampling of soil gains court OK

BY ROBERT J. SMITH

Posted on Friday, March 24, 2006

Oklahoma Attorney General Drew Edmondson gained a federal court’s permission Thursday to begin seeking samples from 21 farms where birds are fattened for the Arkansas poultry industry.

U. S. Magistrate Sam Joyner said at a hearing in Tulsa that Oklahoma showed “there’s definitely good cause” for pursuing the samples of soil, water and litter on the poultry farms.

The specific farms where Edmondson wants to sample haven’t been selected.

Attorneys for the poultry industry on Thursday afternoon described Joyner’s decision as a small step against them in their bid to stop the attorney general’s office from taking samples.

Farmers who are picked must be subpoenaed and would have a chance to allow or object to the sampling in the U. S. District Court at Tulsa.

“Whoever the lucky growers are in the attorney general’s bulls-eye will have a right to come in and say, ‘they can’t come onto my property, ’” said John Elrod, an attorney for Simmons Foods Inc., one of eight companies being sued in federal court by Edmondson. “The pro- cess is just beginning.”

Edmondson claims poultry litter spread on fields by farmers pollutes the Illinois River watershed. The watershed includes large sections of Benton and Washington counties in Arkansas. The 99-mile-long river flows into Oklahoma south of Siloam Springs.

“This lawsuit is about whether the Illinois River watershed has been polluted by chicken litter,” Joyner said in granting the state’s request.

The companies opposed Oklahoma’s effort to take samples.

Edmondson filed a federal lawsuit last June against Cargill Inc. of Minneapolis; Cobb-Vantress Inc. and Simmons Foods Inc., both of Siloam Springs; George’s Inc. of Springdale; Peterson Farms Inc. of Decatur; Tyson Foods Inc. of Springdale; Willow Brook Foods of Springfield, Mo.; and Cal-Maine Foods Inc. of Jackson, Miss.

Edmondson said his office will work with poultry companies over the next few days to determine where samples should be taken. The 21 sites will be farms in Oklahoma or company-owned farms in Arkansas, he said.

Both sides predicted the issue likely will return to court before a single sample is taken.

“Obviously the legal battles are not over,” said Edmondson, who said he expects the firms to object to how, where and when the state takes samples.

Elrod, the Simmons Foods attorney, agreed that there could be disagreement about protocol. The companies will want to do their own sampling when the attorney general’s samples are taken.

“We want to make sure it’s verifiable, and that it’s scientifically defensible,” Elrod said.

Edmondson cited “imminent threats to human health” in court documents filed last month in requesting permission to sample poultry litter, groundwater and private land in the watershed. The litter is used as fertilizer, and rainfall can carry phosphorus found in litter into rivers where it can cause degradation.

Edmondson asked the judge in February to expedite the discovery process so sampling can take place during the spring, when poultry farmers clean out their poultry houses and when storms are more likely to sweep excess litter into streams.

He predicted in a telephone interview Thursday that the sampling is possible in April, but it’s more likely to be May.

“I fully expect the poultry companies to delay at every opportunity,” Edmondson said.

Attorneys for the poultry companies said the issue would be back in court once Oklahoma issues subpoenas to contract growers on whose land it wishes to take samples. The state seeks to prove that the companies are responsible for the handling of litter from the independent farms, something the firms contest.

“What’s at issue here are the rights of third parties that aren’t present,” poultry firm attorney John Tucker argued in Thursday’s hearing.

The companies complained that Oklahoma created the emergency under which it sought the court action, noting it delayed raising the issue until just before spring.

Edmondson said the delay was caused by Arkansas Attorney General Mike Beebe’s attempt to sue Oklahoma in the U. S. Supreme Court over the water fight. The nation’s highest court refused to hear the petition in February, leaving it for the federal court in Tulsa to consider. Edmondson filed his motion to speed up the federal case in Tulsa the following day.

Oklahoma’s attorneys assured the judge that steps would be taken to preserve biosecurity at the poultry farms to prevent the spread of bird disease. They said sample takers would wear protective gear, sanitize vehicles and consider the companies’ biosecurity measures.