Appeals court rules tribe can’t join poultry suit

By Tim Talley
Oklahoma City (AP) September 2010

A federal appeals court recently rejected Cherokee Nation’s request to intervene in Oklahoma’s water pollution lawsuit against 11 Arkansas poultry companies.

The divided three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver upheld U.S. District Judge Gregory K. Frizzell’s decision last year to prevent the tribe from being added as a plaintiff in a lawsuit the state filed against the companies in 2005.

Oklahoma claims poultry companies are legally responsible for the disposal of poultry waste that allegedly has damaged portions of the Illinois River Watershed in northeastern Oklahoma. It has allowed bacteria to be carried into lakes and streams and threaten the health of tens of thousands of people who boat and camp in the region every year, the state contends.

The tribe, whose lands lie within the watershed, filed a motion to intervene and protect its legal interests after Frizzell ruled Oklahoma could not win damages against the poultry companies because the state failed to include the Cherokee Nation as a plaintiff. The state had sought more than $611 million in damages.

The judge denied the intervention motion in September 2009, less than a week before the case was set to go to trial, ruling that the tribe had waited too long and that granting the motion would likely cause a lengthy delay. Frizzell said the tribe could still file a separate lawsuit against the poultry companies.

The appellate court, in a majority opinion written by Judge Harris L. Hartz, agreed with Frizzell, ruling that the poultry companies’ legal rights might be prejudiced by a lengthy trial delay but that the tribe’s legal rights would not be affected by rejection of its motion to intervene.

In a dissenting opinion, Judge Deanell Reece Tacha wrote that it did not make legal sense for Frizzell to rule that the tribe was a necessary party to the case and then – just over a month later – deny its motion to intervene.

Sara Hill, an assistant attorney general for the Tahlequah-based Cherokee Nation, said in a statement that the tribe moved as quickly as it could to try to intervene.

“The Cherokee Nation has sought to protect its own water rights as well as the quality of that water since the inception of this lawsuit and will continue to do so,” Hill said. She said the court’s decision does not prevent the tribe from filing a separate lawsuit against the poultry producers.

“The Nation remains committed to cleaning up the Illinois River Watershed and holding polluters responsible for their actions,” Hill said.

The 1 million-acre Illinois River watershed spans parts of Oklahoma and Arkansas and includes about 1,800 poultry houses, mostly in Arkansas. The area is among the largest in the U.S. for producing broilers, or birds raised for meat, and more than 55,000 people in the two states work for the industry.

Closing arguments in the case wrapped up in February following a four-month trial, but Frizzell has not yet ruled.

Defendants in the lawsuit include Tyson Poultry Inc., Tyson Chicken Inc., Cobb-Vantress Inc., Cal-Maine Foods Inc., Cargill Inc., Cargill Turkey Production L.L.C., George’s Inc., George’s Farms Inc., Peterson Farms Inc., Simmons Foods Inc. and Cal-Maine Farms Inc.